Smt. B.H. Bharathi V. Karnataka Lokayuktha Police Shivamogga Division and Mr. Fhairoz s/o Bhasha

CW/20678/2025

AI Insights

The case involves Smt. B.H. Bharathi, a Police Sub-Inspector, who was accused of demanding and accepting bribes in connection with the smooth movement of lorries. Initially not named in the FIR, she was later implicated based on conversations with the complainant during the investigation. A departmental enquiry exonerated her, but the criminal proceedings continued. The High Court examined whether the exoneration in the departmental enquiry should lead to the quashing of the criminal proceedings, ultimately deciding against it based on the evidence and the standards of proof required in criminal versus departmental proceedings.

• Counselvise Citation: [2026] 140 COUNSELVISE.COM (IT) 833155 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 30-01-2026
• Assessment Year: misc
• Other Referred Cases: ASHOO SURENDRANATH TEWARI v. DEPUTY SUPERINTENDENT OF POLICE, EOW, CBI, Radheshyam Kejriwal v. State of W.B., P.S. Rajya v. State of Bihar, KARNATAKA LOKAYUKTA BAGALKOTE DISTRICT v. CHANDRASHEKAR
• Laws Referred To: Prevention of Corruption Act, 1988
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: B B PATIL
• Assessee Lawyers: PARAMESHWAR HEGDE
• Keywords: Bribe; Corruption; Criminal Proceedings; Departmental Enquiry; Quashment
• Section: 7(a); 482

Judgement Text

" 1 Reserved on : 27.11.2025 Pronounced on : 30.01.2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.13175 OF 2023 BETWEEN: SMT.B.H.BHARATHI W/O ANILKUMAR, AGED ABOUT 52 YEARS, WORKING AS PSI, SHIVAMOGGA RURAL P.S, R/O NO.116, VIVEKANANDA LAYOUT, 3RD CROSS, 1ST MAIN, GOPALA, SHIVAMOGGA – 577 205. ... PETITIONER (BY SRI PARAMESHWAR N. HEGDE, ADVOCATE) AND: 1 . KARNATAKA LOKAYUKTHA POLICE SHIVAMOGGA DIVISION, FORMERLY ANTI-CORRUPTION BUREAU REPRESENTED BY ITS SPL.PP, HIGH COURT OF KARNATAKA, BENGALURU – 01. 2 . MR FHAIROZ S/O BHASHA, Printed from counselvise.com 2 AGED ABOUT 45 YEARS, LORRY DRIVER, R/A NEAR MAKKA MASJID, CHANNAGIRI, CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 213. ... RESPONDENTS (BY SRI B.B.PATIL, ADVOCATE FOR R-1; R-2 SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ENTIER PROCEEDINGS IN SPL.C.C.NO.217/2023 REGISTERED FOR THE OFFENCES P/U/S 7(a) OF PREVENTION OF CORRUPTION ACT, 1988, BY THE 1ST RESPONDENT POLICE (KARNATAKA LOKAYUKTHA P.S., SHIVAMOGGA) AND PENDING ON THE FILE OF 1 ADDL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 27.11.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CAV ORDER The petitioner/accused No.3 is at the doors of this Court calling in question proceedings in Spl.C.C.No.217 of 2023 pending before the 1st Additional District and Sessions Judge, Shivamogga registered for offence punishable under Section 7(a) of the Prevention of Corruption Act, 1988 (‘the Act’ for short). CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA Printed from counselvise.com 3 2. Heard Shri Parameshwar N. Hegde, learned counsel appearing for the petitioner and Shri B.B.Patil, learned counsel appearing for respondent No.1. 3. Facts in brief, germane, are as follows: On 03-01-2019, respondent No.2 registers a complaint before the Lokayuktha Police alleging demand of bribe. A pre-trap mahazar is drawn by the Anti-Corruption Bureau on 03-01-2019 and on the pre-trap mahazar being drawn, a trap is laid and the tainted currency notes are seized from the hands of accused No.1. The petitioner is accused No.3, working as a Police Sub-Inspector. The petitioner was not the accused in the FIR, but the Police conduct investigation pursuant to registration of crime and during investigation found the conversation between the petitioner and the complainant with regard to demand or acceptance and drew the name of the petitioner as accused No.3 in the said charge sheet. The concerned Court takes cognizance of the offence and registers Spl.C.C.No.217 of 2023, which is what has driven the present petitioner/accused No.3 to this Court in the subject petition. Printed from counselvise.com 4 4.1. The learned counsel appearing for the petitioner taking this Court through the documents appended to the charge sheet and even the charge sheet would seek to contend that there is no allegation of demand or acceptance against the petitioner. The petitioner is not caught with the tainted currency. All that happened is qua accused No.1 and not the petitioner. The learned counsel would seek to place reliance upon the evidence of the complainant where the complainant himself in evidence says that there was no demand from the hands of the petitioner. Therefore, the learned counsel submits that the entire allegations now boiled down to a person who has been caught with the tainted currency i.e., accused No.1. 4.2. The learned counsel further submits that on the same set of facts, a departmental enquiry was conducted and in the departmental enquiry, after examination of all the witnesses, it is found that the petitioner was not guilty of any of the offence and therefore, has been exonerated. Exoneration of which has been accepted by the Disciplinary Authority and the departmental enquiry has thus ended in favour of the petitioner. The learned Printed from counselvise.com 5 counsel submits in the light of the departmental enquiry ending in favour of the petitioner where probabilities are preponderant, the criminal trial should not be permitted to continue, as what would require in a criminal trial is proof beyond all reasonable doubt. He would seek quashment on all the aforesaid grounds. 5.1. Shri B.B. Patil, learned counsel representing respondent No.1 takes this Court through the statement of objections to contend that even if the complainant has retracted from the complaint and contended that the petitioner has not demanded any amount, it would not mean that the respondent cannot prove demand and acceptance in a full-blown trial. He would submit that the pre-trap mahazar-2 would clearly pin the petitioner down, as there are conversations between the petitioner and the complainant. In that light, the learned counsel submits that it is a matter of evidence and the petitioner has to come out clean in a full-blown trial. The indulgence under Section 482 of the CrPC, at this juncture would be contrary to law, is the submission of Shri B.B. Patil, learned counsel. Printed from counselvise.com 6 5.2. Insofar as exoneration in the departmental enquiry is concerned, the learned counsel submits that there were 27 witnesses in the criminal trial. In the departmental enquiry, about 6 witnesses were examined and the key witnesses, the FSL report or the author of the FSL report are not even made a witness in the departmental enquiry. He would submit that the Apex Court, in the judgments that the petitioner is relying, has clearly held that if all the circumstances are identical qua witnesses or the documents, then the departmental enquiry can become the foundation, perhaps for quashment of proceedings, but not otherwise. He has placed a memo depicting the witnesses examined, witnesses not examined, the purport of their examination and non-examination. 6. The learned counsel appearing for the petitioner would join issue in contending that he has also produced a memo wherein about 6 to 7 key witnesses who are necessary to be examined are examined in the departmental enquiry and in the departmental enquiry, it was found that the petitioner has neither demanded nor accepted any amount for the departmental enquiry to continue. The learned counsel submits that the petition be allowed on the Printed from counselvise.com 7 strength of the judgment of the Apex Court in the case of ASHOO SURENDRANATH TEWARI v. DEPUTY SUPERINTENDENT OF POLICE, EOW, CBI1 and the judgment rendered in the aftermath of ASHOO SURENDRANATH TEWARI supra or hitherto that which have been followed by the Apex Court in the case of ASHOO SURENDRANATH TEWARI supra. 7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 8. The service of the petitioner and registration of crime are all a matter of record. On 03-01-2019, the 2nd respondent complainant registers a complaint before the Lokayuktha alleging that the petitioner has demanded and accepted illegal gratification. On the same day, a pre-trap mahazar is drawn, a trap is laid and tainted currency notes are seized from the hands of accused No.1. The petitioner is accused No.3 who was working as a Police Sub- Inspector. The petitioner was not drawn as an accused at the time 1 (2020) 9 SCC 636 Printed from counselvise.com 8 of registration of crime. On conduct of investigation, the petitioner is drawn into the web of crime only on the conversation between the petitioner and the complainant, which according to the prosecution was a clear case of demand or acceptance, as the case would be. The concerned Court takes cognizance of the offence and registers Spl.C.C.No.217 of 2023. It is at that juncture the petitioner is before the Court. 9. The primary contention of the petitioner is that, on the same set of facts, the departmental enquiry has been conducted and petitioner has been completely exonerated of the allegation. Judgment of the Apex Court in the case of ASHOO SURENDRANATH TEWARI supra is the sheet anchor of the learned counsel for the petitioner. In the said judgment the Apex Court has held as follows: “…. …. …. 8. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya v. State of Bihar [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1: 1996 SCC (Cri) 897], the question Printed from counselvise.com 9 before the Court was posed as follows: (SCC pp. 2-3, para 3) “3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission.” 9. This Court then went on to state: (P.S. Rajya case [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 : 1996 SCC (Cri) 897] , SCC p. 5, para 17) “17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it.” 10. This being the case, the Court then held: (P.S. Rajya case [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 : 1996 SCC (Cri) 897] , SCC p. 9, para 23) “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 [Prabhu Saran Rajya v. State of Bihar, Criminal Miscellaneous No. 5212 of 1992, order dated 3-8-1993 (Pat)] 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 Printed from counselvise.com 10 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.” 11. In Radheshyam Kejriwal v. State of W.B. [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , this Court held as follows: (SCC pp. 594-96, paras 26, 29 & 31) “26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B.N. Kashyap [B.N. Kashyap v. Crown, 1944 SCC OnLineLah46 : AIR 1945 Lah 23] the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage of the said judgment: (SCC OnLineLah: AIR p. 27) ‘… I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined.’ *** 29. We do not have the slightest hesitation in accepting the broad submission of Mr Malhotra that the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little Printed from counselvise.com 11 higher degree whereas in a criminal case the entire burden to prove beyond all reasonable doubt lies on the prosecution. *** 31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case.” 12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows: (Radheshyam Kejriwal case [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , SCC p. 598) “38. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; (v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, Printed from counselvise.com 12 criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.” 13. It finally concluded: (Radheshyam Kejriwal case [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , SCC p. 598, para 39) “39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court.” A 3-Judge Bench of the Apex Court following the judgment in RADHESHYAM KEJRIWAL v. STATE OF WEST BENGAL – (2011) 3 SCC 581 and P.S. RAJYA v. STATE OF BIHAR – (1996) 9 SCC 1 holds that when the allegations of the witnesses are the same, the documents marked are the same, if in a departmental inquiry which runs on the principle of preponderance of probability, the charge could not be proved, the Apex Court holds that in a criminal trial where the charge is required to be proved beyond all reasonable doubt, it can hardly be proved. Therefore, quashes the proceedings against the accused therein. The said Printed from counselvise.com 13 judgment has been followed in plethora of cases by this Court or coordinate benches of this Court. 10. In a subsequent judgment in the case of KARNATAKA LOKAYUKTA BAGALKOTE DISTRICT v. CHANDRASHEKAR2 which is tossed before the Apex Court against the judgment rendered by a coordinate Bench of this Court, the Apex Court holds that in all circumstances the principle that once an employee is exonerated in a departmental enquiry, the criminal trial would automatically vanish, is not accepted. The Apex Court in KARNATAKA LOKAYUKTA BAGALKOTE DISTRICT v. CHANDRASHEKAR supra has held as follows: “…. …. …. 3. The appellant is the Lokayukta of the State of Karnataka, an independent body tasked also to conduct enquiries on complaints of corruption and initiate and continue prosecution; such powers having been statutorily conferred under the Karnataka Lokayukta Act, 1984. On facts, suffice it to notice that the respondent, an Executive Engineer (Electrical) with the Works and Maintenance Division, HESCOM, Bagalkot regulated by the Karnataka Electricity Transmission Corporation Limited Regulations, was alleged to have demanded a bribe from an electrical contractor to clear five bills, at the rate of Rupees two thousand each. The contractor complained to the Anti-Corruption Bureau who prepared a trap, with identifiable, powdered notes kept in a packet entrusted with the 2 2026 SCC OnLine SC 13 Printed from counselvise.com 14 complainant, to be handed over to the Executive Engineer. The trap was successful, and the notes were recovered from the pocket of the Executive Engineer whose hands turned pink on dipping in the prepared solution, which proved the taint of corruption. 4. Disciplinary proceedings were initiated and so was criminal prosecution launched, the former by the department itself and the latter by the Lokayukta who is the appellant herein. On the claim that the departmental proceedings ended in exoneration, the delinquent employee approached the High Court, for quashing the criminal proceedings. The High Court by the impugned judgment relied on Radheshyam Kejriwal v. State of W.B., a three-Judge Bench decision to hold that if there is an exoneration on merits where the allegation is found to be not sustainable at all and the person held innocent, then criminal proceedings on the same set of facts and circumstances cannot be allowed to continue especially based on the principle of higher standard of proof in criminal cases. The learned Single Judge also refused to follow a later judgment of this Court in State (NCT of Delhi) v. Ajay Kumar Tyagi; finding the later judgment to be per incuriam, having been passed in ignorance of the earlier one. 5. There can be no doubt regarding the principle that if the later Bench holds contrary to the earlier Bench decision of coequal strength, on the same point, the contrary dictum expressed by the later Bench would be per incuriam as held by a Constitution Bench in National Insurance Company Limited v. Pranay Sethi. But the question arising herein is as to whether there was a conflict with the earlier and later judgments. 6. In Radheshyam Kejriwal, the raid on the premises of the appellant therein, by the Enforcement Directorate gave rise to proceedings under the Foreign Exchange Regulation Act, 1973. Initially, a show-cause notice was issued by the Director of the Enforcement Directorate proposing adjudication proceedings under Section 51 of the FERA, which, after explanation received was concluded with a decision taken by the Adjudicating Officer that the contravention of the provisions alleged cannot be sustained since the transaction itself is not Printed from counselvise.com 15 proved. The said order became final for reason of the Enforcement Directorate having not challenged it. Later, on the same set of facts, as enabled under Section 56 of the FERA criminal proceedings were initiated, which even as per the enactment could be continued without any prejudice to any award of penalty by the Adjudicating Officer under Section 51 of the FERA. It is in this context that the three-Judge Bench, by a majority, held inter alia that though the adjudication and criminal proceedings are independent of each other, if in the former the offender is exonerated on merits then the criminal prosecution also comes to an inevitable end. It was also categorically found that if the exoneration in the adjudication proceeding is on a technical ground and not on merits, the prosecution could continue. 7. In Radheshyam Kejriwal the adjudication proceedings and the criminal proceedings were under the FERA, one for penalty; to recoup the economic loss caused by the transaction contravening the provisions of the statute and the other, prosecution; to provide penal consequences as a deterrent measure. The subject matter of the offence alleged in both proceedings was the contravention of the provisions of the statute through the transaction detected. When the adjudication proceedings found the transaction alleged to have not taken place, then it cuts at the root of the prosecution too. Other decisions under the FERA, where the two proceedings of adjudication and prosecution were found to be independent; the decision in one having no bearing on the other, were noticed. So were the decisions under the Income Tax Act, 19616 noticed, wherein, when the penalty imposed on a presumed violation of the provisions of the I.T. Act was set aside by the Tribunal; the last fact-finding authority under the scheme of the I.T. Act, for that reason alone the prosecution was found redundant and quashed. Radheshyam Kejriwal2 culled out the principles in the following manner: 38. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; Printed from counselvise.com 16 (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; (v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases. 39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. [underlining by us for emphasis] 8. In Radheshyam Kejriwal the very substratum of the allegation of violation of the provisions of FERA was Printed from counselvise.com 17 found to be non-existent, an adjudication on merits that the transaction alleged had not occurred. In the instant case the Enquiry Report found that for reason of the Officer in charge of the trap having not been examined, the department was unable to establish the charge, not at all an exoneration on merits, but more a discharge for lack of diligence. The ratio decidendi of that case cannot be extended to every situation where a statute provides for a civil liability and a criminal liability, in which event Courts would be presuming what logically follows from the finding, without any application on the facts. 9. In a disciplinary enquiry the employer satisfies itself as to whether the misconduct alleged is proved and if proved, decides on the proportionate punishment that should be imposed; both of which are in the exclusive domain of the employer, to be determined on the standard of preponderance of probabilities. In a criminal prosecution launched what assumes significance is the criminality of the act complained of or detected which has to be proved beyond reasonable doubt. Both are independent of each other not only for reason of the nature of the proceedings and the standard of proof, but also for reason of the adjudication being carried on by two different entities, regulated by a different set of rules and more importantly decided on the basis of the evidence led in the independent proceedings. If evidence is not led properly in one case, it cannot govern the decision in the other case where evidence is led separately and independently. 10. No doubt, the principles in Radheshyam Kejriwal are applicable in a disciplinary inquiry, which was the specific question considered in Ajay Kumar Tyagi; interestingly by the very same Hon'ble Judge who authored the majority judgment in Radheshyam Kejriwal. True, the earlier decision was not noticed in the latter decision; according to us with just cause since there were distinctions on facts. 11. Ajay Kumar Tyagi was a case in which a successful trap was laid and there was exoneration in the enquiry conducted without a final order by the Disciplinary Authority. Therein the Disciplinary Authority Printed from counselvise.com 18 had not passed an order, in deference to the pending criminal prosecution, which action of deferment was unsuccessfully challenged in a writ petition by the delinquent. Then a further writ petition was filed challenging the continuance of the criminal prosecution on the ground of exoneration in the Enquiry Report, which stood allowed. The Disciplinary Authority then passed an order exonerating the delinquent, subject to a challenge to the quashing of the criminal proceedings. In the SLP filed against the order of quashing there was a reference to a larger Bench noting the divergence of opinion with regard to the quashing of a prosecution based on exoneration in a disciplinary proceeding. Even before answering the reference the larger Bench found the quashing to be wrong insofar as the Disciplinary Authority having power to differ from the findings in the report of enquiry and the High Court, in that case having upheld the action of the Disciplinary Authority, keeping in abeyance the final order. We pause here to notice that herein the Disciplinary Authority passed an order concurring with the findings in the Enquiry Report on 08.07.2024, produced as Annexure R-1, with a rider that the order is subject to the proceedings in the criminal case, the consequences of which would necessarily follow. 12. The reference too was answered in Ajay Kumar Tyagi. A two-Judge Bench decision of this Court in P.S. Rajya v. State of Bihar was referred to wherein the criminal prosecution was quashed when the departmental proceedings concluded in exoneration. In P.S. Rajya, the allegation was of possession of assets disproportionate to the source of income. The Central Vigilance Commission dealt with the charge and in its elaborate report concluded that the valuation report on which CBI placed reliance is of doubtful nature. The Court on facts found that the value given as a base for the chargesheet was not the value given in the reports subsequently given by the valuers. The decision in P.S. Rajya relying on State of Haryana v. Bhajan Lal; the water shed decision in invocation of the inherent powers under Section 482 of the Criminal Procedure Code, 1973 for quashing criminal prosecution, held that the prosecution in that case should Printed from counselvise.com 19 be quashed for more than one reason as laid down in Bhajan Lal. Ajay Kumar Tyagi categorically held that the quashing of criminal proceedings in P.S. Rajya was not merely on account of the exoneration in the disciplinary proceedings. Referring to a number of decisions, it was held so in paragraphs 24 & 25 which are extracted hereunder: “24. Therefore, in our opinion, the High Court quashed the prosecution on total misreading of the judgment in P.S. Rajya case (1996) 9 SCC 1. In fact, there are precedents, to which we have referred to above, that 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 a 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 cannot be rejected on the basis of the evidence in the departmental proceeding or the report of the inquiry officer based on those evidence. 25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in 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 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.” 13. We are of the opinion that in the present case the distinction as brought out in Ajay Kumar Tyagi squarely applies and the ratio decidendi therein is not regulated by the ratio of the earlier judgment Printed from counselvise.com 20 in Radheshyam Kejriwal. In Radheshyam Kejriwal, the adjudication proceedings and the prosecution were both by the very same entity, the Enforcement Directorate under the FERA. In Ajay Kumar Tyagi, the allegation was of a demand and acceptance of bribe in which a trap was laid, and the prosecution was commenced and continued by the ACB while the departmental proceedings were by the Delhi Jal Board under which the delinquent employee worked. Identical is the fact in this case where the ACB laid the trap, commenced and continued the criminal proceedings, at the behest of the appellant, while the department carried on with the enquiry. The findings in the enquiry report also do not persuade us to quash the criminal proceedings as we would presently notice. 14. At the outset, we cannot but reiterate that the enquiry report in disciplinary proceedings is not conclusive of the guilt or otherwise of the delinquent employee, which finding is in the exclusive domain of the disciplinary authority. The enquiry officer is appointed only as a convenient measure to bring on record the allegations against the delinquent employee and the proof thereof and to ensure an opportunity to the delinquent employee to contest and defend the same by cross-examination of the witnesses proffered by the department and even production of further evidence, in defense. The enquiry officer, strictly speaking, merely records the evidence and the finding entered on the basis of the evidence led at the enquiry does not have any bearing on the final decision of the disciplinary authority. The disciplinary authority takes the ultimate call as to whether to concur with the findings of the enquiry authority or to differ therefrom. On a decision being taken to differ from the findings in the enquiry report as to the guilt of the delinquent employee, if it is in favour of the delinquent employee nothing more needs to be done since the enquiry stands closed exonerating the employee of the charges levelled. If the decision is to concur with the finding of guilt by the Enquiry Officer, then a show-cause is issued with the copy of the Enquiry Report. However, while differing from the finding of exoneration in the enquiry report, necessarily the disciplinary authority will not only have to issue a show- Printed from counselvise.com 21 cause against the delinquent employee, with a copy of the Enquiry Report, but the show-cause notice also has to specifically bring to attention of the delinquent, the aspects on which the disciplinary authority proposes to differ, based on the facts discovered in the enquiry so as to afford the delinquent employee an opportunity to proffer his defense to the same. 15. Having thus stated the law regulating the final decision in a departmental enquiry, we cannot but notice that in the present case, there is a final order produced as passed by the Disciplinary Authority. The learned Counsel for the respondent vehemently argued that a retired District Judge was the Enquiry Officer, which according to us gives the enquiry no higher sanctity than that would be conferred on any enquiry report in any disciplinary proceeding carried out by a person not trained in law. The Enquiry Officer often is appointed as an independent person who would have no connection with the management to ensure against any allegation of bias. A retired judicial officer being appointed as an enquiry officer does not confer the enquiry report any higher value or greater sanctity than that is normally available to such reports. We cannot but observe that in this case the Enquiry Officer fell into an error by requiring proof at a higher level than that necessary under preponderance of probabilities and so did the Disciplinary Authority, in concurring with the same. 16. We also notice the specific findings in the enquiry report. The exoneration was on the basis of two aspects, one, the Inspector of the ACB who carried out the trap having not been examined and the other, two independent witnesses accompanying the trap team having stated that they were standing outside the office room wherein the handing over of the bribe took place. The first ground of the Inspector not having been examined, according to us, based on the preponderance of probabilities, is not imperative, especially when the two independent witnesses were examined. More so, insofar as the department not being at fault since three summons were taken out and a further request was made again for summoning the witness, which was declined by the Enquiry Officer. We cannot but notice that there would be no consequence in not responding to a summons in departmental proceedings, while a like failure in criminal proceedings would Printed from counselvise.com 22 be more drastic. The criminal court has ample powers to ensure the presence of a witness in a criminal proceeding, which the Enquiry Officer does not possess. In this context, the fact that the prosecuting agency and the one carrying on the departmental enquiry being two entities assumes significance. Further, here the trap was laid by the ACB, and the prosecution was conducted at the behest of the Lokayukta, and we cannot presume or anticipate any laxity on the prosecuting agency of not bringing the Inspector to the box, before the criminal court. More pertinently we cannot, on such anticipated laxity put an end to the prosecution. 17. We looked at the evidence laid at the enquiry, not to regulate the order in the departmental proceedings which is not challenged before us, but to satisfy ourselves and to understand whether there is total exoneration on merits, which we find to be absent. In the present case, the witnesses proffered by the department where, (i) the complainant; the contractor who complained of the demand of bribe and (ii) two independent witnesses, government officers in two different departments who accompanied the trap team. PW-1, the complainant categorically stated that a bribe was demanded from him of Rupees ten thousand to clear five bills at the rate of Rupees two thousand each. He complained to the ACB whose Inspector marked the notes, powdered them and put them in a packet, after noting down the numbers to later identify them. The trap team along with the complainant and two witnesses went to the office of the delinquent employee. The complainant went inside the office room wherein he handed over the packet containing the money to the delinquent employee, who counted and put it in his pant's pocket, clearly spoken of by the complainant at the enquiry. The complainant gave the signal as agreed upon, a missed call on the mobile, when the trap team went in, checked the pockets of the delinquent employee, recovered the packet with the money and when the hands of the delinquent employee were dipped in the solution earlier prepared, the colour changed bringing forth the taint. 18. PW-2 and PW-3 were the independent witnesses who were standing outside the office room when the complainant went in. They deposed that on the signal being given, the officers went inside the room and the witnesses followed. They witnessed the money being taken out from the pocket of the Printed from counselvise.com 23 delinquent and the delinquent's hands being dipped in a solution which displayed the tainted colour. Even without the examination of the Inspector who laid the trap we are of the opinion that there was sufficient proof on the standard of preponderance of probabilities to find the delinquent guilty of the charge of demand and acceptance of bribe. The complainant and the independent witnesses have spoken about the incident of the successful trap laid. 19. On the principles of law as stated hereinabove and also on the peculiar facts coming out from the above case, we are not convinced that this is a fit case where the criminal proceedings can be quashed on the exoneration of the delinquent employee in a departmental enquiry. We find the decision in Ajay Kumar Tyagi to be squarely applicable. The appeal stands allowed permitting the continuation of criminal proceedings. We make it clear that since the disciplinary authority has accepted the enquiry report, there cannot be reopening of the same based on the findings hereinabove; but a conviction in the criminal case would bring in consequences as mandated by rules regulating the service, specifically reserved in the order of the disciplinary authority, Annexure R-1.” (Emphasis supplied at each instance) The Apex Court considers an identical circumstance where the accused therein was also alleged of demand and acceptance and a trap had been laid. The Apex Court distinguishes RADHESHYAM KEJRIWAL, AJAY KUMAR TYAGI and P.S. RAJYA and holds that, in all circumstances the said principle would not be applicable and it would be owing to the peculiarity obtaining in each of the case. The Apex Court did not get convinced that it was a fit case in which Printed from counselvise.com 24 criminal proceedings could be quashed on the exoneration in a departmental enquiry. The Apex Court has considered all the judgments, but not the judgment in the case of ASHOO SURENDRANATH TEWARI supra. As observed, ASHOO SURENDRANATH TEWARI is a judgment rendered by three Judges and the judgment in the case of CHANDRASHEKAR supra is the one rendered by two Judges. However, the Apex Court has considered RADHESHYAM KEJRIWAL and AJAY KUMAR TYAGI, both of which were judgments rendered by three Judges. Whether a subsequent judgment rendered by three Judges would become applicable or a judgment rendered by the subsequent judgment which follows the earlier three Judge bench decision need not be gone into in the case at hand, as the Apex Court in CHANDRASHEKAR supra has clearly held that it was rendering its order in the peculiar facts of the case. Therefore, it is necessary to notice the facts obtaining in the case at hand and a comparative chart of the witnesses examined both in the criminal case and the departmental enquiry. Printed from counselvise.com 25 11. The learned counsel for the Lokayuktha has placed on record list of witnesses not examined in the departmental enquiry but were sought to be examined in the criminal trial. The chart of comparative witnesses in Spl.C.C. and Departmental Enquiry is as follows: “List of Witnesses not examined Sl. No. Name and Nature of Witness Witnesses cited in chargesheet in Spl.C C No.407/2016 Witnesses examined in Departmental Enquiry 1. Kumaraswamy (senior officer of accused) CW-4 Not Examined 2. H.C.Krishnamurthy (Head Constable) CW-5 Not Examined 3. Vasanth. R (Civil Police Constable) CW-6 Not Examined 4. Theerthalingappa G.P (Spot Sketch reporter) CW-7 Not Examined 5. Anand. T (Chemical Examiner) CW-8 Not Examined 6. C.Srividya (FSL) CW-9 Not Examined 7. Jenath.M (FSL) CW-10 Not Examined 8. Vasanth Kayakad (Police Constable) CW-11 Not Examined 9. M.N.Nagaraj (Police Constable) CW-12 Not Examined 10. Yogeeshwarappa (Police Constable) CW-13 Not Examined 11. Hareesh K.S (Police Constable) CW-14 Not Examined 12. Lachhanaik (Police Constable) CW-15 Not Examined Printed from counselvise.com 26 13. Surendra H.G (Police Constable) CW-16 Not Examined 14. Arun Pawar (Police Constable) CW-17 Not Examined 15. Nodal officer BSNL CW-18 Not Examined 16. Nodal Officer Airtel CW-19 Not Examined 17. Imran Beigh (Police Inspector) CW-20 Not Examined 18. Ravi S (Sanctioning Authority) CW-23 Not Examined 19. B.M.Lakshmiprasad (Sanctioning Authority) CW-24 Not Examined 20. R.Vasanthkumar (Investigation officer) CW-25 Not Examined 21. Umesh Ishwar Naik (I.O i.e submission of Chargesheet) CW-26 Not Examined” CW-4 is an Officer who is senior to the petitioner and may not be material. CW-7 who is the spot sketch reporter is material witness. CW-8 is the chemical examiner. CW-9 is the officer of Forensic Science Laboratory. So is CW-10. Since the conversations have happened between the petitioner and the complainant, the nodal officers of both BSNL and Airtel and the investigating officer CW-25 and the officer in-charge of the Police Station CW-26 are necessary to be examined. The most important witness, the Investigating Officer, is not even examined in the departmental inquiry. Therefore, it is not a case where the evidence in the departmental Printed from counselvise.com 27 enquiry is identical to the evidence in the criminal trial. As many as 21 witnesses, few of whom are key witnesses, are not even examined in the departmental enquiry. Therefore, the departmental enquiry, in the peculiar facts of this case, has travelled only on the periphery of the alleged demand or acceptance. 12. The plea that is put forth by the learned counsel for the petitioner is that the petitioner has neither demanded nor accepted. The learned counsel for the 1st respondent in the statement of objections has clearly brought out the alleged conversation between the complainant and the petitioner. The complainant is a lorry driver who was said to be in the sand transport business. Accused No.1 is said to have induced the complainant to get into sand transport business. On a particular day, a demand was placed for ₹50,000/- to be paid for movement of lorries to continue in a smooth manner not for once, but for every 15 days. The complainant is said to have paid ₹32,500/- and the remaining ₹17,500/- was all that was found in the pre-trap mahazar. In that light, this Court would not exercise its jurisdiction under Section Printed from counselvise.com 28 482 of the CrPC and obliterate the proceedings. It is for the petitioner to come out clean in a full-blown trial. 13. Finding no merit in the petition, the petition stands rejected. Sd/- (M.NAGAPRASANNA) JUDGE Bkp CT:MJ Printed from counselvise.com "