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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     No.      1334      OF     2012   (@ SLP(Crl.) No. 1383 of 2010)

STATE OF N.C.T. OF DELHI              … APPELLANT

VERSUS

AJAY KUMAR TYAGI      …RESPONDENT

J     U     D     G     M     E     N     T      

CHANDRAMAULI     KR.     PRASAD,     J.      

Ajay Kumar Tyagi, at the relevant time, was working as  

a Junior Engineer with the Delhi Jal Board.  Surinder  

Singh, a Constable with the Delhi Police applied to the  

Delhi Jal Board, hereinafter referred to as ‘the Board’,  

for water connection in the name of his wife Sheela Devi.  

The application for grant of water connection was cleared  

by the Assistant Engineer and the file was sent to said  

Ajay Kumar Tyagi (hereinafter refered to as      ‘the  

accused’).   

Constable Surinder Singh lodged a report with the Anti  

Corruption Branch alleging that the accused demanded bribe  

of Rs. 2000/- for clearing the file and a sum of Rs.

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1000/- was to be paid initially and the balance amount  

after the clearance of file.  On the basis of the  

information lodged, a trap was laid and, according to the  

prosecution, the accused demanded and accepted the bribe  

of Rs. 1000/-.  This led to registration of the first  

information report under Section 7/13 of the Prevention of  

Corruption Act.   

After investigation, charge-sheet was submitted on 19th  

of September, 2002 and the accused was put on trial.  

Charges were framed by the Special Judge.

In respect of the same incident, a departmental  

proceeding was also initiated against the accused and the  

Article of Charges was served on him.  In the departmental  

proceeding it was alleged that the accused “being a public  

servant in discharge of his official duties by corrupt and  

illegal means or otherwise, abusing his official position,  

demanded, accepted and obtained Rs. 1000/- (One Thousand)  

as illegal gratification other than legal remuneration  

from Sh. Surinder Singh S/o Shri Ram Bhajan r/o H.No. 432-

A, Gali No. 2, 80 Sq. Yards, Village Mandoli, Delhi in  

consideration for giving a report on the water  

connection”.   

The enquiry officer conducted the departmental inquiry

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and submitted its report.  The inquiry officer observed  

that “the evidence on record does not substantiate the  

charge of demand and acceptance of bribe”  by the accused  

and, accordingly, recorded the finding that the charge  

against the accused has not been proved due to lack of  

evidence on record.   

It seems that no action was taken on the report of the  

inquiry officer due to pendency of the criminal case  

pending against the accused.  Accordingly, he filed writ  

petition before the Delhi High Court inter alia praying  

for conclusion of the departmental proceeding.  The  

submission made by the accused did not find favour with  

the High Court and by the judgment and order dated 2nd of  

February, 2007, it dismissed the writ petition inter alia  

observing as follows:

“Hence, I do not find the action of the  respondents in keeping the departmental  proceedings in abeyance to be in any manner  unjustified specially when the petitioner  inspite of the pendency of the criminal case  against him has not been suspended from  service and is continuing to perform his  duties.”

Thereafter, the accused resorted to another remedy  

under Section 482 of the Code of Criminal Procedure and  

prayed for quashing of the first information report lodged

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against him under Section 7/13 of the Prevention of  

Corruption Act.  The prayer for quashing of the first  

information report was founded on the ground that since  

the accused has been exonerated in the disciplinary  

proceeding by a detailed speaking order, the first  

information report deserves to be quashed on that ground  

alone.  Reliance was placed on a decision of this Court in  

the case of P.S. Rajya v. State of Bihar, 1996 (9) SCC 1.  

The High Court referred to the allegation made in the  

criminal case and the departmental proceeding and observed  

that “there is not even an iota of doubt that the charges  

framed in both the proceedings are the same”.  

Accordingly, it quashed the criminal proceedings and while  

doing so, observed as follows :

“Considering the foregoing discussion, I am of  the view that if the departmental proceedings  end in a finding in favour of the accused in  respect of allegations which form basis for  criminal proceedings then departmental  adjudication will remove very basis of  criminal proceedings & in such situation  continuance of criminal proceedings will be a  futile exercise & an abuse of the process of  Court.  I find that the charge in the present  case is based on the same allegations which  were under consideration before the Enquiry  Officer of the Jal Board.  If the charge could  not be proved in the departmental proceedings  where the standard of proof was much lower it  is very unlikely that the same charge could be  proved in a criminal trial where the standard  of proof is quite stringent comparatively.

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Thus, the prosecution of the petitioner in  criminal proceedings would only result in his  harassment.”

Aggrieved by the same, the State has preferred this  

special leave petition.

Leave granted.

It is relevant here to state that after quashing of  

the criminal proceeding by the High Court, the  

disciplinary authority, by order dated 25th of March, 2009,  

exonerated the accused of the charges “subject to the  

condition that if any appeal is filed by the State and an  

order contrary to the impugned High Court order dated  

25.08.2008 is received, the matter will be re-opened”.  

The disciplinary authority had referred to the order of  

the High Court quashing the criminal prosecution and  

exonerated the accused on that ground alone.  

When the matter came up for consideration before a  

Bench of this Court on 13th of September, 2010, finding  

conflict between two-Judge Bench decisions of this Court,  

it referred the matter for consideration by a larger Bench  

and, while doing so, observed as follows:

“The facts of the case are that the  respondent has been accused of taking bribe

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and was caught in a trap case.  We are not  going into the merits of the dispute.  However, it seems that there are two  conflicting judgments of two Judge Benches of  this Court; (i) P.S. Rajya vs. State of Bihar  reported in (1996) 9 SCC 1, in which a two  Judge Bench held that if a person is  exonerated in a departmental proceeding, no  criminal proceedings can be launched or may  continue against him on the same subject  matter, (ii) Kishan Singh Through Lrs. Vs.  Gurpal Singh & Others 2010 (8) SCALE 205,  where another two Judge Bench has taken a  contrary view.  We are inclined to agree with  the latter view since a crime is an offence  against the State.  A criminal case is tried  by a Judge who is trained in law, while  departmental proceeding is usually held by an  officer of the department who may be untrained  in law.  However, we are not expressing any  final opinion in the matter.

In view of these conflicting judgments,  we are of the opinion that the matter has to  be considered by a larger Bench.”

This is how the matter is before us.

Mr. J.S. Attry, Sr. Advocate appearing on behalf of  

the appellant submits that the very assumption, on which  

the High Court had proceeded, that the accused has been  

exonerated in the disciplinary proceeding is unfounded on  

facts.  He points out that the inquiry officer had  

submitted its finding and found the allegation to have not  

been proved but that would not mean that the accused has  

been exonerated in the disciplinary proceeding also.  He  

points out that the report of the inquiry officer was yet

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to be considered and nothing prevented the disciplinary  

authority to disagree with the finding of the inquiry  

officer and punish the accused after following the due  

process of law.  On this ground alone the order of the  

High Court is fit to be quashed, submits      Mr. Attry.

Mr. Chetan Sharma, Sr. Advocate representing the  

respondent-accused, however, submits that at such a  

distance of time, the disciplinary authority is precluded  

from passing any order and the disciplinary proceeding  

shall be deemed to have been ended in exoneration.

We have bestowed our consideration to the rival  

submissions and we find substance in the submission of Mr.  

Attry.  True it is that the inquiry officer has submitted  

its report and found the allegation to have not been  

proved but, that is not the end of the matter.  It is well  

settled that the disciplinary authority is not bound by  

the conclusion of the inquiry officer and, after giving a  

tentative reason for disagreement and providing the  

delinquent employee an opportunity of hearing, can differ  

with the conclusion and record a finding of guilt and  

punish the delinquent employee.  In the present case,  

before the said stage reached, the accused filed an  

application under Section 482 of the Code of Criminal

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Procedure for terminating the criminal proceedings and the  

High Court fell into error in quashing the said  

proceedings on the premise that the accused has been  

exonerated in the departmental proceeding.  As the order  

of the High Court is founded on an erroneous premise, the  

same cannot be allowed to stand.   

It is worthwhile to mention here that in the writ  

petition filed by the accused himself seeking conclusion  

of the departmental proceeding, the High Court had  

observed that keeping the departmental proceeding in  

abeyance till the pendency of the criminal case is not  

unjustified, and that order has attained finality.  

Further, the order dated 25th of March, 2009 passed by the  

disciplinary authority exonerating the accused from the  

charges, is founded on the ground of quashing of the  

criminal proceedings by the High Court and in that, it has  

clearly been observed that if an order contrary to the  

High Court order is received, the matter will be re-

opened.   

As we have taken the view that the impugned order of  

the High Court suffers from an apparent illegality, the  

same deserves to be set aside so also the order of the  

disciplinary authority founded on that and, in the light

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of the direction of the High Court, the departmental  

proceeding has to be reopened and kept in abeyance till  

the conclusion of the criminal case.   

Now we proceed to consider the question of law  

referred to us, i.e., whether the prosecution against an  

accused, notwithstanding his exoneration on the identical  

charge in the departmental proceeding could continue or  

not!

Mr. Sharma, with vehemence, points out that this  

question has been settled and set at rest by this Court in  

the case of P.S. Rajya (Supra), which has held the field  

since 1996, hence at such a distance of time, it is  

inexpedient to reconsider its ratio and upset the same.  

Mr. Attry, however, submits that this Court in the  

aforesaid case has nowhere held that exoneration in the  

departmental proceeding would ipso facto terminate the  

criminal proceeding.

We have given our anxious consideration to the  

submissions advanced and in order to decipher the true  

ratio of the case, we have read the judgment relied on  

very closely. In this case, the allegations against the  

delinquent employee in the departmental proceeding and

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criminal case were one and the same, that is, possessing  

assets disproportionate to the known sources of income.  

The Central Bureau of Investigation, the prosecutor to  

assess the value of the assets relied on the valuation  

report given later on.  This Court on fact found that “the  

value given as basis for the charge-sheet is not value  

given in the report subsequently given by the valuer.”  

This would be evident from the following passage from  

paragraph 15 from the judgment:   

“15…….According to the learned counsel the  Central Vigilance Commission has dealt with  this aspect in its report elaborately and  ultimately came to a conclusion that the  subsequent valuation reports on which CBI  placed reliance are of doubtful nature. The  same view was taken by the Union Public  Service Commission. Even otherwise the value  given as basis for the charge-sheet is not the  value given in the report subsequently given  by the valuers.”

Thereafter, this Court referred to its earlier  

decision in the case of State of Haryana v. Bhajan Lal,  1992 Supp (1) SCC 335, and reproduced the illustrations  laid down for exercise of extraordinary power under  

Article 226 of the Constitution of India or the inherent  

powers under Section 482 of the Code of Criminal Procedure  

for quashing the criminal prosecution. The categories of  

cases by way of illustrations, wherein power could be

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exercised either to prevent the abuse of the process of  

the court or otherwise to secure the ends of justice read  

as follows:

“(1) Where the allegations made in the first  information report or the complaint, even if  they are taken at their face value and  accepted in their entirety do not prima facie  constitute any offence or make out a case  against the accused.

(2) Where the allegations in the first  information report and other materials, if  any, accompanying the FIR do not disclose a  cognizable offence, justifying an  investigation by police officers under Section  156(1) of the Code except under an order of a  Magistrate within the purview of Section  155(2) of the Code.

(3) Where the uncontroverted allegations made  in the FIR or complaint and the evidence  collected in support of the same do not  disclose the commission of any offence and  make out a case against the accused.

(4) Where, the allegations in the FIR do not  constitute a cognizable offence but constitute  only a non-cognizable offence, no  investigation is permitted by a police officer  without an order of a Magistrate as  contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or  complaint are so absurd and inherently  improbable on the basis of which no prudent  person can ever reach a just conclusion that  there is sufficient ground for proceeding  against the accused.

(6) Where there is an express legal bar  engrafted in any of the provisions of the Code  or the Act concerned (under which a criminal  proceeding is instituted) to the institution  and continuance of the proceedings and/or

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where there is a specific provision in the  Code or the Act concerned, providing  efficacious redress for the grievance of the  aggrieved party.

(7) Where a criminal proceeding is manifestly  attended with mala fide and/or where the  proceeding is maliciously instituted with an  ulterior motive for wreaking vengeance on the  accused and with a view to spite him due to  private and personal grudge.”

The aforesaid illustrations do not contemplate that on  

exoneration in the departmental proceeding, the criminal  

prosecution on the same charge or evidence is to be  

quashed.  However, this Court quashed the prosecution on  

the peculiar facts of that case, finding that the said  

case can be brought under more than one head enumerated in  

the guidelines. This would be evident from paragraphs 21  

and 22 of the judgment, which read as follows:

“21. The present case can be brought under  more than one head given above without any  difficulty.

22. The above discussion is sufficient to  allow this appeal on the facts of this case.”

Even at the cost of repetition, we hasten to add none  

of the heads in the case of P.S. Rajya (Supra) is in  

relation to the effect of exoneration in the departmental  

proceedings on criminal prosecution on identical charge.  

The decision in the case of P.S. Rajya (Supra), therefore  

does not lay down any proposition that on exoneration of

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an employee in the departmental proceeding, the criminal  

prosecution on the identical charge or the evidence has to  

be quashed.  It is well settled that the decision is an  

authority for what it actually decides and not what flows  

from it.  Mere fact that in P.S. Rajya (Supra), this Court  

quashed the prosecution when the accused was exonerated in  

the departmental proceeding would not mean that it was  

quashed on that ground.  This would be evident from  

paragraph 23 of the judgment, which reads as follows:

“23. Even though all these facts  including the Report of the Central Vigilance  Commission were brought to the notice of the  High Court, unfortunately, the High Court took  a view that the issues raised had to be gone  into in the final proceedings and the Report  of the Central Vigilance Commission,  exonerating the appellant of the same charge  in departmental proceedings would not conclude  the criminal case against the appellant. We  have     already     held     that     for     the     reasons     given,    on     the     peculiar     facts     of     this     case,     the    criminal     proceedings     initiated     against     the    appellant     cannot     be     pursued.   Therefore, we do  not agree with the view taken by the High  Court as stated above. These are the reasons  for our order dated 27-3-1996 for allowing the  appeal and quashing the impugned criminal  proceedings and giving consequential reliefs.”

(underlining ours)

From the reading of the aforesaid passage of the  

judgment it is evident that the prosecution was not  

terminated on the ground of exoneration in the  

departmental proceeding but, on its peculiar facts.  

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It is worth mentioning that decision in P.S. Rajya  

(supra) came up for consideration before a two-Judge Bench  

of this Court earlier, in the case of  State v. M. Krishna  Mohan, (2007) 14 SCC 667.  While answering an identical  question i.e. whether a person exonerated in the  

departmental enquiry would be entitled to acquittal in the  

criminal proceeding on that ground alone, this Court came  

to the conclusion that exoneration in departmental  

proceeding ipso fact would not lead to the acquittal of  

the accused in the criminal trial. This Court observed  

emphatically that  decision in P.S. Rajya (supra) was  

rendered on peculiar facts obtaining therein.  It is apt  

to reproduce paragraphs 32 and 33 of the said judgment in  

this connection:

“32. Mr Nageswara Rao relied upon a  decision of this Court in P.S. Rajya v. State  of Bihar [1996 (9) SCC 1]. The fact situation  obtaining therein was absolutely different. In  that case, in the vigilance report, the  delinquent officer was shown to be innocent.  It was at that juncture, an application for  quashing of the proceedings was filed before  the High Court under Section 482 of the Code  of Criminal Procedure which was allowed  relying on State of Haryana v. Bhajan Lal  [1992 Supp. (1) SCC 335] holding: (P.S. Rajya  case [1996 (9) SCC 1, SCC p.9, para 23)]

“23. Even though all these facts  including the report of the Central  Vigilance Commission were brought to the

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notice of the High Court, unfortunately,  the High Court took a view that the issues  raised had to be gone into in the final  proceedings and the report of the Central  Vigilance Commission, exonerating the  appellant of the same charge in  departmental proceedings would not conclude  the criminal case against the appellant. We  have already held that for the reasons  given, on the peculiar facts of this case,  the criminal proceedings initiated against  the appellant cannot be pursued.”

Ultimately this Court concluded as follows:

“33. The said decision was, therefore,  rendered on the facts obtaining therein and  cannot be said to be an authority for the  proposition that exoneration in departmental  proceeding ipso facto would lead to a judgment  of acquittal in a criminal trial.”

This point also fell for consideration before this Court  

in the case of Supdt. of Police (C.B.I.) v. Deepak  Chowdhary, (1995) 6 SCC 225, where quashing was sought for  on two grounds and one of the grounds urged was that the  

accused having been exonerated of the charge in the  

departmental proceeding, the prosecution is fit to be  

quashed.  Said submission did not find favour with this  

Court and it rejected the same in the following words:  

“6. The second ground of departmental  exoneration by the disciplinary authority is  also not relevant. What is necessary and  material is whether the facts collected during  investigation would constitute the offence for  which the sanction has been sought for.”

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Decision of this Court in the case of Central Bureau  of Investigation v. V.K. Bhutiani, (2009) 10 SCC 674, also  throws light on the question involved.  In the said case,  

the accused against whom the criminal proceeding and the  

departmental proceeding were going on, was exonerated in  

the departmental proceeding by the Central Vigilance  

Commission.  The accused challenged his prosecution before  

the High Court relying on the decision of this Court in  

the case of P.S. Rajya (supra) and the High Court quashed  the prosecution.  On a challenge by the Central Bureau of  

Investigation, the decision was reversed and after relying  

on the decision in the case of M. Krishna Mohan (supra),  this Court came to the conclusion that the quashing of the  

prosecution   was illegal and while doing so observed as  

follows:   

“In our opinion, the reliance of the High  Court on the ruling of P.S. Rajya was totally  uncalled for as the factual situation in that  case was entirely different than the one  prevalent here in this case.”

Therefore, in our opinion, the High court quashed the  

prosecution on total misreading of the judgment in the  

case of P.S. Rajya (Supra).  In fact, there are

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precedents, to which we have referred to above speak  

eloquently a contrary view i.e. exoneration in  

departmental proceeding ipso facto would not lead to  

exoneration or acquittal in a criminal case.  On principle  

also, this view commends us.  It is well settled that the  

standard of proof in department proceeding is lower than  

that of criminal prosecution.  It is equally well settled  

that the departmental proceeding or for that matter  

criminal cases have to be decided only on the basis of  

evidence adduced therein.  Truthfulness of the evidence in  

the          criminal case can be judged only after the  

evidence is adduced therein and the criminal case can not  

be rejected on the basis of the evidence in the  

departmental proceeding or the report of the Inquiry  

Officer based on those evidence.  

We are, therefore, of the opinion that the exoneration  

in the departmental proceeding ipso facto would not result  

into the quashing of the criminal prosecution.  We hasten  

to add, however, that if the prosecution against  an  

accused is solely based on a finding in a proceeding and  

that finding is set aside by the superior authority in the  

hierarchy, the very foundation goes and the prosecution  

may be quashed.  But that principle will not apply in the

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case of the departmental proceeding as the criminal trial  

and the departmental proceeding are held by two different  

entities.  Further they are not in the same hierarchy.

For the reasons stated above, the order of the High  

Court is unsustainable, both on facts and law.

Accused shall appear before the trial court within  

four weeks from today.  As the criminal proceeding is  

pending since long, the learned Judge in sesin of the  

trial shall make endeavour to dispose off the same  

expeditiously and avoid unnecessary and uncalled for  

adjournments.  

In the result, the appeal is allowed, the order of the  

High Court is set aside with the direction aforesaid.   

    …..………….………………………………….J.

                 (R.M. LODHA)

..…. ………..……………………………….J.

                         (CHANDRAMAULI KR. PRASAD)

    …..………….………………………………….J.

                     (SUDHANSU JYOTI MUKHOPADHAYA)       New Delhi August 31, 2012