ROHITASHWA KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) A Criminal trial of an incident of 29.3.1985 is still pending for the last 24 years against the petitioner, who was then posted as Superintendent of Police, Bikaner and is now stayed in pursuance to the order passed by this Court in the present Criminal Miscellaneous Petition filed in the year 1997, despite dismissal of four previous Criminal Misc. Petitions filed by the present petitioner in pursuance to the order passed in the Criminal Case pending against him. By this instant petition, the petitioner has prayed for setting aside the order dated 15.3.1997 passed in Criminal Case No. 77 of 1987, State v. Rohitashwa Kumar" pending before the learned ACJM, Ratangarh and consequently to quash the proceedings of the said case.

(2.) The main ground of this petition is that the petitioner has been exonerated in the Departmental Enquiry vide order of the State Government dated 13.12.1989 (Annex.3) passed in the light of the report of the Enquiry Officer (Annex.2), which is the same subject matter of the F.I.R. No. 80/1985, Police Station Sadar, Bikaner (Annex.1). In this F.I.R., the allegation against the petitioner was that while he was posted as Superintendent of Police, Bikaner, he telephoned to his subordinate Addl. S.P. that he was coming to his house with his wife for a social visit. Petitioner came alone and was seated in the drawing room, where drinks were offered, as desired. The complainant Addl. S.P. Sh. R.D. Goyal was sitting in the drawing room and watching T.V. The petitioner SP sent out orderly Umesh Kumar to bring 'paan' (beetle) and asked the complainant R.D. Goyal to get his vehicle parked and to listen to a complainant one Peeru Khan, who was standing outside the boundary wall. When the complainant Goyal went outside, petitioner finding the wife of Addl. S.P. alone, pressed her breasts with an intention to outrage her modesty and informed about his intention to come again on the next day. The lady slapped the petitioner culprit, who, on seeing the resistance, immediately ran out of the house. When the complainant Goyal returned to the drawing room, she narrated the story to him, which was overheard by the orderly Umesh Kumar and Driver. A complaint to this effect was sent by the Addl. S.P. to the DIG, Bikaner and DGP, Rajasthan, Jaipur on the same day and on 25.3.1985 respectively. A preliminary enquiry was conducted by an officer of the rank of Inspector General of Police and after investigation by the CID CB, the challan was filed in the Court of learned Judicial Magistrate, Bikaner on 24.4.1985 under Sections 451 and 354 I.P.C. against the petitioner. The charges were accordingly framed on 23.4.1986. Against this ottler of framing charges, petitioner moved S.B. Cr.Misc. Petition No. 132/1986 under Section 482 Cr.P.C. before this Court, which was dismissed on 21.7.1986. When the learned Magistrate started the evidence of the prosecution, the petitioner moved an application for transfer of the case before this Court and the case was transferred by the order of this Court dated 13.3.1987 passed in S.B. Cr.Transfer Misc. Petition No. 227/1987 before the ACJM, Ratangarh. In between the years 1987 and 1989, ten prosecution witnesses were examined and the complainant R.D. Goyal was called for evidence but after several adjournments, the cross-examination was deferred for one or the other reason. Ultimately, the Court closed the cross-examination of R.D. Goyal (." W-11) on 20.7.1989 and the case was fixed for statement of the accused under Section 313 Cr.P.C. However, by another S.B. Cr.Misc. Petition No. 339/1989, the cross-examination of the complainant witness was again opened. Further, the adjournments were sought and ultimately the cross-examination was closed on 11.1.1994. That order was also challenged before this Court by way of filing S.B. Cr.Misc. Petition No. 131/1994 and vide order dated 4.7.1994, this Court granted last chance of cross-examination of the complainant witness (PW-11) but the witness was not cross-examined and the Court again closed the cross-examination and recorded the statement under Section 313 Cr.P.C. Then the long list of 35 witnesses was produced by the defence, out of which 6 witnesses were examined. During the pendency of this trial, the departmental enquiry was also ordered against the petitioner and the charge in the departmental enquiry was as under:

(3.) But in the said departmental enquiry, the petitioner was exonerated vide Annex.3 dated 13.12.1989 against which he filed S.B. Cr.Misc. Petition No. 447/1991, which came to be dismissed on 13.11.1991 on the ground that the criminal proceedings cannot be quashed merely on the basis of exoneration by the Disciplinary Authority. On the same ground, the accused petitioner filed another S.B. Cr.Misc. Petition No. 528/1995, which was dismissed as withdrawn on 21.7.2005. During the pendency of these petitions, the petitioner also approached this Court for stay of the trial but the same was denied vide order dated 10.3.1995 and 19.12.1995. Despite dismissal of the two Misc. Petitions on the ground of exoneration, this third Misc. Petition has been filed on 9.5.1997 for quashing the F.I.R. as well as the Criminal trial pending in the Court of learned ACJM, Ratangarh in Criminal Case No. 77 of 1987, State v. Rohitashwa Kumar. The main ground of this third Misc. Petition is that Annex.6, the order of the learned trial Magistrate dated 15.3.1997, whereby he rejected the application of the petitioner, Annex.5, which was moved on the basis of the judgment of the Hon'ble Supreme Court in P.S. Rajya v. State of Bihar, reported in 1996 Cr.L.R. (SC) 497 and the ground of argument in this Misc. Petition is also this judgment. In the cited case, it has been held by the Hon'ble Supreme Court that if the departmental proceedings are on identical charges, then the criminal proceedings should be quashed, as it requires higher degree of proof.