# Om Narayan Tiwari v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-12
- **Case number:** Application U/S 482 No. 15070 of 2020
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-narayan-tiwari-v-state-of-u-p-anr-45434
- **Pages:** 9

## Headnote

(A) Criminal law - Code of Criminal
Procedure,
1973
-
Section
161
-
Prevention of Corruption Act, 1988 -
Section 13(1)(e) - Criminal misconduct by
a public servant - standard of proof in
department proceeding is lower than that
of criminal prosecution - 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
84 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal case cannot be rejected on the
basis of the evidence in the departmental
proceeding or the report of the Enquiry
Officer based on those evidence . Para -
22

Applicant, a senior clerk, in the office of Chief
Medical Officer - upon enquiry was found having
assets beyond his known and legal source of
income - The applicant seeks quashing of the
charge sheet and consequential proceedings -
ground - applicant came to be exonerated in
disciplinary proceedings on an identical charge.
Para - 4

HELD:- In the given facts to contend that
exoneration in disciplinary proceedings would
tantamount to quashing of criminal proceedings
would be travesty of justice.Para- 35

Application u/s 482 Cr.P.C. dismissed.
(E -7)

List of Cases Cited:-

## Text

11 All. Om Narayan Tiwari Vs. State of U.P. & Anr.
83
was earlier made and an attempt for family
settlement was there, but it could not be
successful. Divorce petition has been filed
by Desh Deepak Dwivedi with allegations
and this complaint has been filed with
above contention of demand of dowry,
cruelty with regard to it, ill-treatment as
well as assault, abuse and intimidation.
This contention of complainant was very
well reiterated in the statement u/s 200
Cr.P.C. and this was further corroborated by
two witnesses in their statements recorded
u/s 202 Cr.P.C. Moreso, an enquiry u/s
202(1) Cr.P.C. by a Gazetted Police Officer
was got conducted by Magistrate and report
of Gazetted Police Officer i.e. Dy. S.P. is
also of fact that there had been a complaint
regarding demand of dowry, cruelty with
regard to it and ill-treatment of Kumkum
Dwivedi by her husband and in-laws was
filed before District Magistrate, Gorakhpur,
it was taken under consideration and an
attempt for its disposal by way of
mediation by District Probation Officer was
made, but was unsuccessful. There was
complaint of above demand of dowry and
cruelty with regard to it. What else was
required by the Magistrate for making a
prima-facie case for passing summoning
order u/s 204 Cr.P.C. Hence the order
passed by the Magistrate was against the
proposition of law on the point of
summoning u/s 204 Cr.P.C., as written by
the learned Sessions Judge, Maharajganj,
while deciding the Criminal Revision.
Hence the impugned order of the learned
Sessions Judge, Maharajganj, is well in
accordance with law and has rightly set
aside the order of C.J.M., Maharajganj.

9. Accordingly, this application merits
its dismissal. Dismissed as such.

10. However, from all those facts and
circumstances, it is apparent that the
Officer, presiding as C. J. M., Maharajganj,
who has passed the order dated 17.3.2020
in Complaint Case No. 379 of 2019,
Kumkum Vs. Desh Deepak, u/s 498A, 323,
504, 506 I.P.C. and 3/4 D. P. Act, P. S.
Paniyara, District Maharajganj, is either not
in a position to appreciate law or visualize
the observations made by learned Sessions
Judge, Maharajganj, or is with some
extraneous influence. Hence the learned
Sessions Judge, Maharajganj, is being
expected to make file to some other Court
of Magistrate for disposal.
----------
(2020)11ILR A83
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.10.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Application U/S 482 No. 15070 of 2020

Om Narayan Tiwari ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vikas Budhwar, Sri Shrawan Kumar
Ojha, Vinay Saran(Senior Adv.)

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal law - Code of Criminal
Procedure,
1973
-
Section
161
-
Prevention of Corruption Act, 1988 -
Section 13(1)(e) - Criminal misconduct by
a public servant - standard of proof in
department proceeding is lower than that
of criminal prosecution - 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
84 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal case cannot be rejected on the
basis of the evidence in the departmental
proceeding or the report of the Enquiry
Officer based on those evidence . Para -
22

Applicant, a senior clerk, in the office of Chief
Medical Officer - upon enquiry was found having
assets beyond his known and legal source of
income - The applicant seeks quashing of the
charge sheet and consequential proceedings -
ground - applicant came to be exonerated in
disciplinary proceedings on an identical charge.
Para - 4

HELD:- In the given facts to contend that
exoneration in disciplinary proceedings would
tantamount to quashing of criminal proceedings
would be travesty of justice.Para- 35

Application u/s 482 Cr.P.C. dismissed.
(E -7)

List of Cases Cited:-

1. Ashoo Surendranath Tewari Vs The Deputy
Superintendent of Police, EOW, CBI , Criminal
Appeal No. 575 of 2020(arising out of SLP (Crl.)

2. St. of N.C.T. of Delhi Vs Ajay Kumar Tyagi ,
(2012) 9 SCC 685

3. P.S. Rajya Vs St. of Bih.,(1996) 9 SCC 1

4. State Vs M. Krishna Mohan, (2007) 14 SCC
667

5. Central Bureau of Investigation Vs V.K.
Bhutiani's, (2009) 10 SCC 674

6. Radheyshyam Kejriwal Vs St. W.B. &
anr.(2011) 3 SCC 581

7. Avinash Sadashiv Bhosale (D) through legal
heirs Vs U.O.I.,(2012) 13 SCC 142

8. G.M. Tank Vs St. of Guj. & ors. (2006) 5 SCC
446

9. Depot Manager, A.P. State Road Transport
Gorakhpur Vs Mohd. Yusuf Miya, (1997) 2 SCC
699
(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Vinay Saran, Senior
Advocate, assisted by Sri Vikash Budhwar
and Shrawan Kumar Ojha, learned counsel
for the applicant and learned A.G.A. for the
State.

2. The petition is being decided
without calling for counter affidavit on
consent of the parties.

3. By the instant petition filed under
Section 482 of the Code of Criminal
Procedure, 1973 ( for short ''Cr.P.C.'). the
applicant seeks the following relief:

"It is, therefore, most respectfully
prayed that this Hon'ble Court may
graciously be pleased to allow this
application, and further be pleased to
quash the impugned charge-sheet dated
17.12.2019 alongwith cognizance dated
05.08.2020 passed by learned Special
Judge (Prevention of Corruption Act)
Special Court No. 1, Varanasi in Special
case No. 517 of 2020, State Vs. Om
Narayan Tiwari arising out of Case Crime
No. 867 of 2012, under section 13(1)(E)
read with section 13(2) of Prevention of
Corruption Act, 1988, Police Station
Kotwali, District Ballia pending in the
court of Special Judge (Prevention of
Corruption Act), Special Court No. 1,
Varanasi."

4. The applicant, a senior clerk, in the
office of Chief Medical Officer, District
Ballia, upon enquiry was found having
assets beyond his known and legal source
of income. The applicant seeks quashing of
the
charge
sheet
and
consequential
proceedings on the ground that applicant
came to be exonerated in disciplinary
proceedings on an identical charge. It is
11 All. Om Narayan Tiwari Vs. State of U.P. & Anr.
85
submitted that prosecution of the applicant
on the charge that was the basis of the
disciplinary proceedings is abuse of the
process of the Court.

5. The facts giving rise to the instant
petition, briefly stated, is that an F.I.R.
came to be lodged on 30 November 2012
by
Inspector,
Vigilance
Department,
Gorakhpur, under Section 13(1)(e) of the
Prevention
of
Corruption
Act,
1988
(hereinafter referred to as "P.C. Act").

6. It is alleged that the Vigilance
Department vide letter dated 23 November
2010, directed an open enquiry against the
applicant. In the enquiry, it was found that
applicant being a public servant, during the
period of enquiry, had spent Rs. 16,52,742
over and above his known source of
income. The applicant was, prima facie,
found
guilty
of
having
acquired
disproportionate assets.

7. The Investigating Officer (for short
"I.O.") collected documents, including,
declaration
filed
by
the
applicant;
document of the Sales Tax department;
income and bank statements related to the
applicant and his family members; financial
assitance given by the relatives of the
applicant in purchasing the property and
construction of the house; the documents
relating to expenses incurred by the
applicant and the family. The statement
under Section 161 Cr.P.C. was recorded of
the family members; executive engineer of
the electricity department; bank official;
wife of the applicant and official of the
insurance
company.
I.O.
upon
investigation, prima facie, was of the
opinion that the applicant had amassed
assets disproportionate to his known source
of income. The check period is from the
date of appointment (28.04.1987) to 31
December 2012. (Parcha No. 2 at page 45
of the petition)

8. Sanction of the competent authority
for prosecution was granted on 4 January
2019 which is part of the case diary.
Charge sheet was filed on 17 December
2019, cognizance by the competent court
was taken on 5 August 2020 summoning
the applicant to face trial.

9. Earlier a complaint came to be filed
against the applicant before the Lokayukta,
Uttar Pradesh, on 15 September 2006 in
terms of the Uttar Pradesh Lokayukta and
Up-Lokayuktas Act, 1975. Applicant was
subjected to notice to show cause. Pursuant
thereof, the applicant replied and recorded
his statement before the Lokayukta. The
report dated 20 August 2010 came to be
submitted holding the applicant, prima
facie, guilty of acquiring disproportionate
assets, thereby, directing the Government
to take necessary action against the
applicant for misconduct and prosecute the
applicant for the offence under the P.C.
Act.

10. It appears, thereafter, on the report
of the Lokayukta, applicant came to be
charge sheeted (12 October 2010) in
disciplinary proceedings initiated by the
Disciplinary Authority. The charge against
the applicant, inter-alia, was that being a
clerk he had amassed property of several
crores; purchased a residential plot in the
name of his wife; the market value as on
date was valued approximately at Rs. 50
lakh. The imputation of misconduct, thus,
was that applicant being a clerk, had
acquired assets beyond his known legal
means. The applicant denied the allegation
and
submitted
his
reply,
inter
alia,
contending that the parcel of land was
purchased on 5 June 1992 for Rs. 95,200/-
86 INDIAN LAW REPORTS ALLAHABAD SERIES
by his wife, Rs. 13,850/- was spent on
Stamp and Rs. 700 towards expenses for
registration i.e. total 1,09,750,00/- was
incurred. Subsequently, a house was
constructed
thereon
valued
at
Rs.
1,20,000/-. It was further stated that the
wife of the applicant is an income tax
assessee engaged in purchase and sale of
agricultural products (vegetables, potatoes,
grains etc.). Further, the applicant had
borrowed money from his family members
and
other
relatives.
Enquiry
Officer/Additional
Director,
Medical
Health
Family
Welfare,
Azamgarh
Division, Azamgarh, on considering the
evidence did not find the charge of
disproportionate assets proved against the
applicant. The applicant, however, was
held guilty for not taking prior permission
nor informing the Government before
purchasing the property and building a
house. Applicant came to be punished,
withholding one increment temporartily.

11. It is, in this backdrop, the learned
Senior counsel appearing for the applicant
submits that the applicant came to be
exonerated in disciplinary proceedings on the
charge of disproportionate assets. The
prosecution of the applicant under the P.C.
Act for the same charge based on the same
material is unsustainable and abuse of the
process of the Court. In support of his
submission, reliance has been placed on the
decision rendered by the Supreme Court in
Ashoo Surendranath Tewari Versus The
Deputy Superintendent of Police, EOW,
CBI 1 (for short ''Ashoo Tewari case').

12. In rebuttal, learned Additional
Government Advocate (A.G.A.) submits that
exoneration of the applicant in departmental
disciplinary proceeding would not mean
exoneration or acquittal in the criminal case.
The standard of proof in a departmental
proceedings is lower than that of criminal
prosecution. It is further urged that the I.O.
had not accepted the explanation of the
applicant that the alleged income of the wife
of the applicant is bonafide/genuine, rather, a
sham coverup of illegal earnings of the
applicant. She was not registered with the
relevant authorities for trade, including, the
Sales Tax department. It is further urged that
the applicant had siphoned of his ill acquired
money through different channels. It is
further submitted that Lokayukta on the same
materials furnished by the applicant had
returned a finding, prima facie, holding the
applicant guilty of acquiring disproportionate
assets beyond known source of income. The
exoneration
of
the
applicant
in
the
disciplinary proceeding would not absolve
him of the culpability of the offence.

13. The facts, inter se, parties are not
in dispute.

14. The question that arises for
determination is whether a person who is
exonerated in a departmental disciplinary
proceedings no criminal proceedings can be
advanced or may continue against him on
the same subject matter/or charge.

15. It would be apposite to consider
the law on the proposition being pressed by
the learned counsel for the applicant.

16. In State of N.C.T. of Delhi Vs
Ajay Kumar Tyagi2 (for short "NCT
Delhi case"), a three Judge Bench was
called upon to answer a reference referred
by a two Judge Bench on having noticed
conflicting
views.
The
issue
for
consideration by the Larger Bench is as
follows:

"The facts of the case are that the
respondent has been accused of taking
11 All. Om Narayan Tiwari Vs. State of U.P. & Anr.
87
bribe 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."

17. On having considered the
decisions, including that rendered by the
High Courts, the Supreme Court, answered
the reference in the following terms:

"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 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."

18. Upon answering the reference the
order of the High Court quashing the
criminal prosecution was reversed being
unsustainable on misreading P.S. Rajya
case.

19. In P.S. Rajya v. State of Bihar3,
(for short ''PS Rajya' case) the question
before the Court was as to whether:-

"3. .......the respondent is justified
in pursuing the prosecution against the
appellant under 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."

20. The Court clarified in para 23 of
the report that "...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..."

21. In NCT Delhi, the Court,
therefore, was of the opinion that the
prosecution was not terminated on the
ground of exoneration in the departmental
proceedings but on the peculiar facts. The
observation is as follows:

"The decision in the case of P.S.
Rajya (supra), therefore 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 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), the Supreme Court
quashed the prosecution when the accused
was
exonerated
in
the
departmental
proceeding would not mean that it was
quashed on that ground."

22. P.S. Rajya case came up for
consideration before the Supreme Court in
State v. M. Krishna Mohan4, thereafter,
in the case of Central Bureau of
Investigation v. V.K. Bhutiani's5, the
88 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court held that quashing of the
prosecution
was
illegal
holding
that
exoneration in departmental proceedings
would not lead to exoneration or acquittal
in criminal case. 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 Enquiry Officer based on
those evidence.

23. On having considered the law,
reverting to Ashoo Tiwari case relied by
the learned counsel for the applicant. The
Supreme Court relying on Radheyshyam
Kejriwal Vs. State of West Bengal and
another6
(for
short
''Radheyshyam
Kejriwal case), set aside the judgment of
the High Court and Special Judge and
discharged the appellant from the offence
under the Penal Code. The facts, therein,
was that the employer SIDBI did not
consider it a fit case, consequently,
declined permission to prosecute the
appellant.
The
Chief
Vigilance
Commission (CVC) after having gone
through the arguments put forth by the CBI
and SIDBI during the course of joint
meeting was of the opinion that the
appellant may have been negligent without
any criminal culpability.

24. In Radhey Shyam Kejriwal, the
adjudicating authority under the provisions
of the Foreign Exchange Regulation Act,
1973
was
not
convinced
with
the
Enforcement Directorate to impose penalty
upon the appellant. In other words, if the
departmental authorities themselves, in
statutory adjudication proceedings recorded
a categorical and an unambiguous finding
that there is no such contravention of the
provisions of the Act, it would be unjust for
such departmental authorities to continue
with the criminal prosecution and say that
there is sufficient material. It would be
unjust and an abuse of the process of the
court to permit Enforcement Directorate &
Foreign Exchange Regulatory Authority to
continue with criminal proceedings on the
very same material.

25. After referring to various
decisions the Supreme Court culled out the
ratio of the decisions as follows:-

"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 8 the
person facing trial for identical violation
will depend upon the nature of finding. If
11 All. Om Narayan Tiwari Vs. State of U.P. & Anr.
89
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."

26. The Court finally concluded:

"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."

27. In nutshell, to recapitulate, in
Radhey Shaym Kejriwal, the statutory
adjudicating authority did not find prima
facie case to impose penalty for violation
of the Act. The prosecution based on the
same material was held unjustified and
abuse of the process of the Court. In
Ashoo Tiwari, CVC agreed with the
competent authority of SIDBI, after
hearing the CBI, that complicity and
culpability of the appellant was not
found. The Court relying on para 38(vii)
of Radhey Shaym Kejriwal and having
regard to the detail CVC order was of the
considered opinion that the "chances of
conviction in a criminal trial involving
the same facts appear to be bleak".

28. Both the decisions were decided
on the peculiar facts arising therein, the
decisions do not lay down any proposition
that exoneration of an employee in
departmental disciplinary proceedings, the
criminal prosecution on the identical charge
or
evidence
has
to
be
quashed
automatically.

29. Even otherwise in a case were
acquittal of the employee by the criminal
court is concerned it does not preclude the
employer from taking disciplinary action if
it is otherwise permissible. The two
proceedings, criminal and departmental, are
entirely different. They operate in different
fields and have different objectives. In
service jurisprudence, the purpose of
enquiry proceeding is to deal with the
delinquent employee departmentally and
impose penalty in accordance with the
service
rules.
The
rule
relating
to
appreciation of evidence and proof in the
two proceedings is also not similar. In
criminal law burden of proof is on the
prosecution to prove the guilt. "without
reasonable doubt", on the other hand,
penalty can be imposed on the delinquent
employee on a finding recorded on the
basis of "preponderance of probability"
(Refer-Avinash Sadashiv Bhosale (D)
through legal heirs Vs. Union of India7,
G.M. Tank Versus State of Gujarat and
others8; Depot Manager, A.P. State
Road Transport Gorakhpur Vs. Mohd.
Yusuf Miya9).

30. Reverting to the facts of the case
in hand, it is not in dispute that the
statutory authority Lokayukta held the
applicant,
prima
facie,
guilty
of
disproportionate assets and misconduct,
accordingly,
recommended
criminal
prosecution and disciplinary proceedings
against
the
applicant.
The
90 INDIAN LAW REPORTS ALLAHABAD SERIES
Department/Employer of the applicant in
compliance lodged an FIR being Crime
Case No. 578 of 2010, under section
13(1)(e) of Prevention of Corruption Act,
1988.

31. At the same time the department
initiated disciplinary proceedings. The
charge-sheet did not contain any specific
charges or imputation of misconduct. The
points framed by the Lokayukta for
determination of the complaint against the
applicant contained in the order of the
Lokayukta was taken as the charge against
the applicant. The Enquiry Officer on
considering the reply of the applicant and
the evidence returned a finding that the
charge of disproportionate assets is not
proved.
The
Enquiry
Officer
further
records that he is constraint to disagree
with
the
findings
recorded
by
the
Lokayukta. The enquiry report came to be
accepted by the disciplinary authority i.e.
Director (Administration) Family Welfare,
U.P. Lucknow, vide order dated 22 March
2017.

32. That what is writ large from the
above noted facts is the manner in which
the departmental authorities proceeded
against the applicant departmentally to
scuttle the Lokayukta report and the
prosecution against the applicant. Charge
was not framed; imputation of misconduct
was not reduced nor detailed; disciplinary
authority sat in appeal over the reasoned
findings of the statutory authority- the
Lokayukta. The Act confers powers of
court upon the Lokayukta to summon and
examine witness or records, such power is
lacking in the disciplinary authority. The
scope, objective and ambit of enquiry in
both the proceedings is distinct and
different.
In
the
same
breath
the
complainant/informant
(Deputy
Chief
Medical Officer, NRHM Ballia) vide
communication dated 30 December 2020
requested the I.O. not to proceed with the
investigation pending disciplinary enquiry.
The chain of facts clearly reflects the
influence of the applicant, a clerk, upon the
officials of the department. The conduct of
the disciplinary authority on the face of the
material brought on record tantamounts to
perpetuating fraud and corruption by
conspicuously attempting to shield the
applicant under the garb of exoneration in
disciplinary proceedings.

33. The subsequent FIR came to be
lodged
by
the
Vigilance,
upon
investigation, charge-sheet was filed, which
is under challenge.

34. I have carefully gone through the
voluminous material brought on record
with the assistance of the learned counsel
for the parties. I would restrain from
entering into the merit of the evidence. The
enquiry/investigation by the Lokayukta/I.O.
is in detail, meticulous and supported by
cogent evidence. It would suffice to take
note of the admitted case setup by the
applicant. Applicant came to be appointed
on compassionate ground in 1987. He was
married in 1988. Applicant and his wife do
not have ancestral agricultural land. The
plot of land was purchased by his wife in
1992 and the house, thereon, came to be
constructed immediately thereafter. The
source of income setup by the wife is trade
in agricultural produce. The applicant
created the asset within 5 years of his
service and 4 years of marriage. The
trading business of the wife is not
registered with any of the statutory
authorities,
including,
Sales
Tax
Department. The trade transaction is in
cash. The documents/accounts pertaining
sale/purchase
was
not
maintained.
11 All. Smt. Anjana & Ors. Vs. State of U.P. & Anr.
91

35. In this backdrop of admitted facts
the applicant came to be let off in the
departmental disciplinary proceedings on
the ground that the wife is an income tax
assessee, thus, taking her income to be
lawful. On the other hand, the authorities
trained in enquiry/investigation, prima
facie, found the explanation furnished by
the applicant a mere cover up of his
unexplained income far beyond his known
and legal source. The alleged business and
income of the wife, prima facie, was taken
to be a sham transaction - the basis for
prosecution. In the given facts to contend
that exoneration in disciplinary proceedings
would tantamount to quashing of criminal
proceedings would be travesty of justice.

36. Having regard to the law and
reasons hereinabove, the petition lacks
merit, accordingly, dismissed on fact and
law.

37. The trial court to proceed in
accordance
with
law
without
being
influenced by the observations made in the
order and judgment.
----------
(2020)11ILR A91
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.10.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Application U/S 482 No. 15217 of 2020

Smt. Anjana & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Vikas Rana

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal law - Indian Penal Code,
1860 - Sections 452/323/506 - Code of
criminal procedure, 1973 - Section 200 -
Examination of complainant - Section 202
Cr.P.C - Postponement of issue of process
- Issuance of process should not be
mechanical nor should it be made as a
instrument of harassment to the accused -
Lack of material particulars and nonapplication of mind as to the materials
cannot be brushed aside as a procedural
irregularity - inquiry or the investigation
as the case may be, by the Magistrate is
mandatory where the accused is residing
beyond the area of exercise of his
jurisdiction
-
examination
of
the
complainant
and
the
witnesses
as
envisaged under section 200 Cr.P.C could
not be equated or be a substitute for the
inquiry/investigation
required
under
section 202 Cr.P.C. Para - 10,17,25

Complaint filed by opposite part no.2 (
Husband) - under section 156 (3) Cr.P.C against
the applicants -averments - marriage of the
applicant no. 1(wife) with opposite party no. 2
was solemnized on 07.06.2017 - later on their
relationship
became
strained
-
applicant
summoned - pending before judicial magistraate
- applicant accused persons are the resident at
a place out side the territorial jurisdiction of the
learned Judicial Magistrate - statements of the
witnesses were recorded under section 202
Cr.P.C.Para - 2,5,26

HELD:- Prima facie, the dispute is of
matrimonial nature or outcome of matrimonial
dispute. Criminal proceedings are malicious
and to wreck vengeance cannot be rejected at
the out right in the back ground of the facts
of the present case. Contradictions in the
statements of complainant and the witnesses
also appear to have some substance. Fair
chances of resolution of matrimonial dispute
through the process of mediation, cannot be
ruled out.Para -28

Application u/s 482 Cr.P.C. Pending .(E -7)

List of Cases Cited:-