DEEPAK KUMAR S/O LATE RAMESH CHANDRA SHARMA Vs. STATE OF BIHAR THROUGH ADDITIONAL DIRECTOR GENERAL OF POLICE, CABINET VIGILANCE DEPARTMENT, GOVT.OF BIHAR, PATNA

JUDGEMENT

(1.) PETITIONER has come to this Court for quashing of his prosecution in Araria P.S. Case No. 298 of 2005, which was originally instituted under Sections 406,409 and 120B IPC. The case was instituted at the instance of Executive Engineer, Rural Works Department, Division -2, Araria. Subsequently in view of the allegation Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act was added and it has now been designated as Special Case No. 16 of 2006.

(2.) THE allegation in the FIR is basically that the petitioner was entrusted with about Rs. 5.99 crores for being used in the Indira Awas Yojna for the financial year 2004 -2005. It is alleged that on his transfer to Jharkhand, on cadre bifurcation, he submitted accounts only to the extent of about Rs. 2.61 crores. Thus, about Rs. 3.38 crores have been misappropriated by the petitioner. The case is under investigation. In the meantime, for the alleged defalcation, an explanation was called for from the petitioner. A departmental proceeding was also initiated. In the departmental proceeding, he was given liberty to go to Araria and submit detailed accounts. Petitioner submitted detailed accounts, which he could not submit as he was emergently transferred and was required to handover charge immediately. Inter alia, in the proceeding, the stand was that out of Rs. 3.38 crores, allegedly not accounted for, Rs. 3.30 crores itself had been advanced to two Junior Engineers under order of the Executive Engineer himself. This transaction had not been looked into. For the balance, there were proper vouchers. The explanation having been given, was examined by the Executive Engineer, who had lodged the FIR itself. On examination of accounts now, it was found that the petitioner had fully accounted for the money and there was no embezzlement much less temporary embezzlement. Reports accordingly have been submitted. The petitioner was totally exonerated by the State of Jharkhand as the petitioner was allocated Jharkhand cadre. The charge of embezzlement much less temporary embezzlement could not be established. As noted above, both the proceedings i.e. criminal proceeding and the departmental proceeding were financially on the basis of same allegation. In my view, the case is squarely covered by a decision of the Apex Court in the case of P.S. Rajya V/s. State of Bihar since reported in (1996)9 SCC 1 wherein in similar circumstances and in facts officer was being prosecuted by the Central Bureau Investigation for having disproportionate assets. A departmental proceeding had also been initiated on the same charge. In the departmental proceeding the officer was exonerated and his explanation having been accepted he moved Ranchi High Court for quashing the prosecution, which application was summarily dismissed. The Apex Court was then moved and the Apex Court quashed the criminal proceeding holding that when in a departmental proceeding where evidence is to be gone into on basis of preponderance of evidence, the charge could not be established. Then no useful purpose would be served by continuance of the criminal proceeding on the same very charge where in a criminal case, the charge has to be established beyond reasonable doubt. The fact is the same and same must be the result. The criminal prosecution cannot be sustained and is quashed accordingly.

(3.) WITH the above observations and directions, this criminal writ petition is allowed.