Crl.M.C.No.1303/2021

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 CRL.MC NO. 1303 OF 2021** **AGAINST THE COMMON ORDER IN CRL.M.P.655 OF 2017 IN CC 47/2014 OF ADDITIONAL SPECIAL SESSIONS JUDGE (SPE/CBI- III,** **ERNAKULAM)** ## **PETITIONER/PETITIONER/ACCUSED NO.5:** J.RAJESH KUMAR AGED 47 YEARS S/O.LATE P.T.JOSEPH, PRALADIYIL HOUSE, EDAPPALLY NORTH VILLAGE, D.NO.50/322A, ERNAKULAM, PIN682024. BY ADVS. S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.MANJUNATH MENON SRI.SACHIN JACOB AMBAT SHRI.HARIKRISHNAN S. ## **RESPONDENTS/RESPONDENT/DEFACTO COMPLAINANTS:** 1 CENTRAL BUREAU OF INVESTIGATION REP.BY ITS STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM PIN 682 031. 2 INSPECTOR OF POLICE CBI/ACB, KOCHI 682 035 BY ADV SRI.P.VIJAYAKUMAR SRI SUVIN R MENON -CGC FOR CBI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.10.2021, THE COURT ON 21.10.2021 PASSED THE FOLLOWING: Crl.M.C.No.1303/2021 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J ************************ Crl.M.C.No.1303 of 2021 ------------------------------------Dated this the 21[st] day of October, 2021 ------------------------------------------- ## **O R D E R** Whether exoneration of a public servant in the departmental proceeding would ipso facto constitute sufficient ground for exonerating him of the charges based on same facts in the criminal proceeding? This is the core question that arises for consideration in this case. 2. The petitioner is the fifth accused in the case C.C.No.47/2014 pending in the Court of the Additional Special Judge (SPE/CBI)-III, Ernakulam. 3. The Central Bureau of Investigation (CBI) received information that the customs officials posted at the Cochin International Airport were regularly and systematically obtaining Crl.M.C.No.1303/2021 3 and collecting money as illegal gratification from the passengers who arrive from the foreign countries for the purpose of granting customs clearance to them and that the amount so collected was being shared among the customs officers. The CBI requested the Managing Director of the Cochin International Airport to record the activities at the international arrival area of the Airport for a period of ten days. On 17.10.2006, the CBI received ten compact discs which contained the recording made during eight days from 10.10.2006 to 17.10.2006. The visuals contained in the compact discs, _prima facie,_ showed customs officials demanding and accepting bribe from the passengers. The CBI registered a case on 18.10.2006 against identifiable customs officials. On that day, at around 19:30 hours, the CBI conducted search at the international arrival area of the Airport. During the search, foreign currency notes of different countries were recovered from many customs officials, including the petitioner who was working as Superintendent of Customs. Foreign currency was also recovered from the suitcases of certain customs officials. Crl.M.C.No.1303/2021 4 4. After completing the investigation of the case, the CBI filed charge-sheet against 25 customs officials for the offences punishable under Sections 7 and 13(1)(a) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and under Section 120B of the Indian Penal Code. The Special Court took cognizance of the offences. 5. As already noticed, the petitioner was the Superintendent of Customs on duty in the airport. The allegation against him in the charge-sheet filed by the CBI is that, he had entered into a criminal conspiracy with the other customs officials, who were on duty in the airport, to obtain illegal gratification from the passengers who arrive from abroad, for giving customs clearance to the passengers and that he had also obtained the share of the money collected as bribe pursuant to such conspiracy and thereby, he has committed the offence punishable under Section 120B of the I.P.C read with Sections 7 and 13(1)(a) and 13(1)(d) read with 13(2) of the Act. Crl.M.C.No.1303/2021 5 6. The petitioner filed an application for discharge in the trial court under Section 239 of the Code of Criminal Procedure, 1973 (for short 'the Code'). The trial court considered that application alongwith the application filed by another accused for the same relief. As per the order dated 27.02.2018, the trial court dismissed both applications. 7. The aforesaid order is under challenge in this application filed by the petitioner under Section 482 of the Code. 8. Heard learned senior counsel who appeared for the petitioner and also the learned Central Government Standing Counsel who appeared for the CBI. 9. Learned senior counsel has submitted that departmental enquiry in the matter was conducted against the petitioner and he was exonerated of the charge framed against him in that enquiry. Learned senior counsel would contend that, once a person is exonerated of the charges in the departmental enquiry, criminal proceedings against him on the same facts shall not be continued. Crl.M.C.No.1303/2021 6 10. _Per contra,_ learned Central Government Standing Counsel would submit that exoneration of a person in departmental enquiry would not ipso facto lead to exoneration of him in the criminal proceedings. He would submit that, result of the criminal proceedings would depend upon the truthfulness of the evidence collected by the investigating officer which would be decided only after trial. ## 11. In **P.S. Rajya v. State of Bihar : (1996) 9 SCC 1** , the question that arose for consideration was, whether continuation of the prosecution against the accused under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 was justified notwithstanding the fact that on an identical charge the accused 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. The Apex Court answered this question stating as follows: _“At the outset we may point out that the learned counsel for the respondent could not but accept_ Crl.M.C.No.1303/2021 7 _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. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings. In this context, we can usefully extract certain relevant portions from the report of the Central Vigilance Commission on this aspect. .... 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_ Crl.M.C.No.1303/2021 8 _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 initialed against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above.”_ (emphasis supplied) ## 12. In **State v. M. Krishna Mohan : AIR 2008 SC 368** , the Apex Court held that the decision in **P.S.Rajya** (supra) was 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. It was also observed that: _“In a case of this nature where departmental proceeding was initiated only as against respondent No.2, the enquiry officer did not have the benefit to consider all the materials which could be brought on record by the Department in the light of the investigation made by a specialized investigating agency, the evidence of_ Crl.M.C.No.1303/2021 9 _experts and deposition of witnesses to show that forgery of document has been committed by forging thumb impression and handwriting, we are of the opinion that exoneration of respondent No.2 in the departmental proceedings cannot lead to the conclusion that he was not guilty of commission of the offences where for he was charged”._ (emphasis supplied) 13. In **C.B.I. v. V.K. Bhutiani : (2009) 10 SCC 674** , it was held that the report of the Central Vigilance Commission in departmental enquiry may be a relevant factor but it cannot be held to be "be all or end all" of the matter for prosecuting the accused persons. ## 14. In **Radheshyam Kejriwal v. State of West Bengal :** **(2011) 3 SCC 581** , the precise question considered was, when the accused is exonerated before the adjudicating authority, whether his prosecution on same set of facts can be allowed or not. It was a case in which the accused prayed for dropping of the criminal proceeding on the ground that he was exonerated in the adjudication proceeding under the Foreign Exchange Crl.M.C.No.1303/2021 10 Regulation Act, 1973. The Apex Court elucidated the principles in this regard and held as follows: _"In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court"._ In the above case, the effect of exoneration of a person in departmental enquiry on the criminal prosecution against him, was not the question dealt with by the Apex Court. 15. In **State of N.C.T. of Delhi v. Ajay Kumar Tyagi : (2012) 9 SCC 685** , the specific question considered by the three-Judge Bench of the Apex Court was, whether the prosecution against an accused, notwithstanding his exoneration on the identical charge in the departmental proceeding, could continue or not. The Apex Court held that the decision in the case Crl.M.C.No.1303/2021 11 of **P.S. Rajya** (supra), does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed. It was further held as follows: _“In fact, there are 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 cannot 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_ Crl.M.C.No.1303/2021 12 _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”._ (emphasis supplied) ## 16. In **State of Bihar v. Dhirendra Prasad Shrivastava :** **2015 (1) RCR (Criminal) 445** , the Apex Court followed the decision in **Ajay Kumar Tyagi** (supra) and set aside the order of the High Court by which it had quashed the criminal proceedings on the ground that the accused was exonerated in departmental proceeding instituted on the same charges. 17. Learned senior counsel for the petitioner has brought to the attention of this Court the later decision by a three-Judge Bench of the Supreme Court in **Ashoo Surendranath Tewari v. Deputy Superintendent of Police : (2020) 9 SCC 636** to Crl.M.C.No.1303/2021 13 buttress his contention that the criminal proceedings are liable to be quashed on the ground that the petitioner has been exonerated in the departmental proceeding. 18. In **Ashoo Surendranath Tewari** (supra), the competent authority had refused sanction for prosecution against the accused for the offences under the Indian Penal Code. The Special Court, while discharging the accused for offences under the Act, refused to do so to the extent of the offences under the Indian Penal Code. The High Court agreed with the Special Court that there was no need for sanction under Section 197 of the Code. The High Court considered an order of the Central Vigilance Commission which went into the facts of the case in great detail and concurred with the competent authority that on merits no sanction ought to be accorded and no offence under the Penal Code was in fact made out. Though this report was heavily relied upon before it, the High Court brushed it aside. The Apex Court, relying upon **Radheshyam Kejriwal** (supra), found that the accused should have been exonerated on the basis of the report Crl.M.C.No.1303/2021 14 of the Central Vigilance Commission. The Apex Court found that the chances of conviction in a criminal trial involving the same facts appeared to be bleak and discharged the accused of the offences under the Penal Code. 19. In **Ajay Kumar Tyagi** (supra), the Supreme Court has categorically held that exoneration in departmental proceedings would not ipso facto result in quashing of the criminal prosecution. In **Ashoo Surendranath Tewari** , it has been laid down that if the allegations in the adjudication proceedings as well as the criminal proceedings are identical and if the exoneration of the person concerned in the adjudication proceedings is on merits, the trial of the person concerned shall be an abuse of the process of the Court. In **Ashoo Surendranath Tewari** (supra), the decision in **Ajay Kumar Tyagi** (supra) has not been either referred to or considered by the Apex Court. Both the aforesaid judgments have been rendered by Benches of co-equal strength. Crl.M.C.No.1303/2021 15 20. This Court is inclined to follow the ratio laid down in **Ajay Kumar Tyagi** (supra) for the following reasons. 21. In the first place, the question considered by the Apex Court in **Ashoo Surendranath Tewari** (supra) was not whether an accused can be exonerated from criminal proceedings on the ground that he has been exonerated in departmental proceedings. In **Ashoo Surendranath Tewari** (supra), the Apex Court relied upon the earlier decision in **Radheshyam Kejriwal** (supra) and found that the High Court was not justified in not relying upon an order of the Central Vigilance Commission which went into the facts of the case in great detail and which concurred with the competent authority that on merits no sanction ought to be accorded. The Apex Court found that on a reading of the CVC report on the same facts, the accused should have been exonerated and that in view of the detailed CVC order, the chances of conviction in a criminal trial involving the same facts appeared to be bleak and therefore, the accused was entitled to be discharged. Effect of exoneration of a person in Crl.M.C.No.1303/2021 16 departmental proceedings on the criminal prosecution against him was not the question decided in **Ashoo Surendranath Tewari** (supra). On the other hand, in **Ajay Kumar Tyagi** (supra), the Supreme Court has categorically held that exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case and it would not result in quashing of the criminal prosecution. 22. In the second place, in **Ashoo Surendranath Tewari** (supra), the Apex Court placed reliance upon the earlier decision in **Radheshyam Kejriwal** (supra) which dealt with the effect of the adjudication proceedings on criminal prosecution. **Ajay Kumar Tyagi** (supra) which dealt with the effect of exoneration of a person in departmental proceedings was not referred to or considered in that decision. 23. In the third place, even if it is assumed or accepted that **Ajay Kumar Tyagi** (supra) and **Ashoo Surendranath Tewari** (supra) have dealt with the same issue, the inviolable recourse open to the High Court is to apply the earliest view as Crl.M.C.No.1303/2021 17 the succeeding ones would fall in the category of per incuriam (See **Sundeep Kumar Bafna v. State of Maharastra : AIR 2014 SC 1745** ). 24. In the aforesaid circumstances, this Court has no hesitation to follow **Ajay Kumar Tyagi** (supra) and to hold that exoneration of a person in departmental proceeding would not ipso facto lead to exoneration or acquittal of that person in the criminal case which is based on same facts or result in quashing of the criminal prosecution against him. 25. In view of the above finding, the materials produced by the petitioner relating to the departmental enquiry conducted against him need not be considered by this Court to take a decision on the question whether he is entitled to be discharged or not. As observed in **Ajay Kumar Tyagi** (supra), 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 that Crl.M.C.No.1303/2021 18 evidence. 26. Now, the question arises whether the impugned order passed by the Special Court is liable to be interfered with on factual grounds. 27. The prosecution has produced materials to prove that ten dollar (US) was seized from the purse kept by the petitioner while he was at the arrival area of the airport. The prosecution has also produced the currency declaration register which would show that the petitioner had not declared that he had ten dollars with him. This is a circumstance creating a strong suspicion that he would have obtained it from another customs officer who had collected it as illegal gratification from the passengers who had arrived from abroad. It is pertinent to note that the prosecution has produced materials in the form of statements of passengers and video visuals to show that some of the other accused, who are customs officials, had collected foreign currency from passengers as illegal gratification. Therefore, there are sufficient materials produced by the prosecution to prove circumstances Crl.M.C.No.1303/2021 19 indicating that the petitioner was a person involved in the conspiracy hatched by the customs officers to obtain illegal gratification from the passengers. 28. The offence alleged against the petitioner is only criminal conspiracy punishable under Section 120B of the Indian Penal Code. Criminal conspiracy, as defined in Section 120A of the I.P.C, means agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. 29. Very often, conspiracy is hatched in privacy and secrecy. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence, whenever any one of the conspirators does an act or series of acts, he could be held liable under Section 120B of the I.P.C. 30. The essence of a criminal conspiracy is the unlawful combination. The encouragement and support which coconspirators give to one another rendering enterprises possible Crl.M.C.No.1303/2021 20 which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with liability under Section 120B of the I.P.C. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. The prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. It is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. 31. Section 10 of the Indian Evidence Act states that, where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of Crl.M.C.No.1303/2021 21 such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. The basic principle which underlies Section 10 of the Indian Evidence Act is the theory of agency and hence every conspirator is an agent of his associate in carrying out the object of the conspiracy. Direct evidence in proof of a conspiracy is seldom available; offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out and all this is necessarily a matter of inference (See **Ram Narain Popli v. C.B.I : AIR 2003 SC** Crl.M.C.No.1303/2021 22 ## **2748** ). 32. At the stage of considering an application for discharge, what needs to be considered is whether there is sufficient ground for presuming that the offence has been committed and not whether sufficient ground for convicting the accused has been made out. While exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities, which is really the function of the court after the trial starts. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on their face value, disclose the existence of the ingredients necessary to constitute the offence. At the stage of framing of the charge and/or Crl.M.C.No.1303/2021 23 considering the discharge application, a mini trial is not permissible (See **State of Karnataka v. M.R.Hiremath : AIR 2019 SC 2377** and **State of Rajasthan v. Ashok Kumar Kashyap: 2021 SCC OnLine SC 314** ). 33. When the above principles are applied to the facts emerging from the materials produced against the petitioner by the prosecution, it can be found that the trial court has rightly dismissed the application for discharge filed by him. 34. Consequently, this petition filed under Section 482 Crl.P.C is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.1303/2021 24 ## **APPENDIX OF CRL.MC 1303/2021** ## PETITIONER'S ANNEXURES ANNEXURE A CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.47 OF 2014 OF SPE/CBI-III, ERNAKULAM. ANNEXURE B TRUE COPY OF THE ORDER DATED 21.12.2017 PASSED BY COMMISSIONER OF CUSTOMS ANNEXURE C CERTIFIED COPY OF COMMON ORDER IN CRL.M.P.NO.333 OF 2014 AND CRL.M.P.NO.655 OF 2017 DATED 27.2.2018. ANNEXURE D TRUE COPY OF MEMORANDUM OF CHARGES DATED 14-07-2009 ISSUED BY COMMISSIONER OF CUSTOMS ANNEXURE E TRUE COPY OF ENQUIRY REPORT DATED 09.05.2016 OF THE ASSISTANT COMMISSIONER ANNEXURE F TRUE COPY OF OFFICE MEMORANDUM DATED 2011-2017 ISSUED BY DIRECTOR, CENTRAL VIGILANCE COMMISSIONER ANNEXURE G TRUE COPY OF COMMUNICATION DATED 05-122017 OF COMMISSIONER OF CUSTOMS ## RESPONDENTS' ANNEXURES NIL TRUE COPY P.S. TO JUDGE