Bombay High Court

Bombay High Court: The Division Bench of S.B. Shukre and G. A. Sanap, JJ. allowed an application setting aside an FIR for the offences punishable under Sections 13(1)(c)(d) and 13(2) of the Prevention of Corruption Act, 1988 in the matter of departmental proceedings being based on identical/similar charges.

The complaint had been filed against applicant by an Enquiry Officer, Deputy Superintendent of Police, Anti-Corruption Bureau, who had conducted an open enquiry in the irregularities committed by various officials of the Irrigation Department in executing Gosikhurd Project on river Vainganga. It was alleged that while evaluating tenders, this applicant had updated the tenders by increasing price of tendered work and that was done by him without following the established procedure.

Senior Advocate, Mr Anil S. Mardikar for the applicant submitted that departmental enquiry was held against the applicant on similar allegation and in this enquiry, the applicant was exonerated of charge 1. He took the Court through the order dated 22-06-2018 passed in departmental enquiry, showing exoneration of applicant from the charge based on similar allegation. He further submitted that the standard of proof in departmental enquiry proceeding being that of preponderance of probability, was much lower than the standard of proof of evidence being beyond reasonable doubt required for proving guilt of the accused in a criminal case.

The Prosecutor for the State submitted that since the investigation was still going on, it is quite possible that new material may be discovered and then, this case may take an entirely different turn.

The Court was of the opinion that when investigation of any case is underway, it may be that some further material is collected during the course of investigation and then some new offence is made out. But even for arising of such an eventuality, it is not necessary that the present investigation based upon same set of allegations should be allowed to be continued, as it is always open to the police to carry out enquiry into fresh allegations and register a new crime if fresh allegations prima-facie disclose some new offence.

The Court relied on the observations of Ashoo Surendranath Tewari v. CBI, (2020) 9 SCC 636 where the Supreme Court held that when upon a given set of facts, an officer is exonerated in a departmental enquiry, which requires a much lower standard of proof for proving the charge, the criminal proceedings based upon same set of facts cannot be proceeded with as the standard of proof required in a criminal proceeding is much higher. The Supreme Court has also held that what is required to be examined in such a case is whether or not the allegations made in departmental enquiry and the allegations in the criminal complaint are similar and identical and it is found that they are similar, the criminal proceedings must not be allowed to be proceeded further as it would be an abuse of the process of the Court.

The Court found that in the present case the foundation of the criminal complaint made against the present applicant were the same set of allegations which constituted the charge levelled against the applicant in the departmental enquiry proceedings. The Court was of the view that since the departmental enquiry proceedings insofar as charge was concerned went in favour of the applicant and he was exonerated then it has wiped out the very basis of the criminal complaint filed against him.

The application was allowed and the FIR was quashed and set aside holding that the criminal investigation being carried out against the applicant in its present form cannot continue otherwise it would be nothing but abuse of process of law. But, at the same time, if any other enquiry is made by the Investigating Officer and some new material constituting new offence is discovered, the Enquiry Officer would always be at liberty to book the applicant for the new offence prima-facie found against him.

[Keshav v. State of Maharashtra, 2022 SCC OnLine Bom 1314, decided on 20-06-2022]

Advocates who appeared in this case :

Shri Anil S. Mardikar, Senior Advocate along with Shri Ved Deshpande, Advocate, for the Applicant;

Shri A.S. Fulzele, APP, for the non-Applicants/State.

*Suchita Shukla, Editorial Assistant has reported this brief.

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