The Supreme Court has reiterated that, in case of exoneration in departmental proceedings on merits and 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.
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, observed the bench headed by Justice RF Nariman in a judgment delivered on Tuesday.
The accused in this case was an employee of Small Industries Development Bank of India (SIDBI) against whom an FIR was lodged alleging that he was involved in diversion of funds to co-accused. Relying on Central Vigilance Commission (CVC), he contended that he was victim of one Muthukumar's (co-accused) plot. The High Court had refused to discharge the accused from the case and thus he approached the Apex Court in appeal.
Referring to this report, the bench, also, comprising Justices Navin Sinha and Indira Banerjee, observed:
A reading of this Report shows that, at the highest, the appellant may be negligent without any criminal culpability. In fact, the positive finding of the CVC that the appellant appears to be a victim of Muthukumar's plot is of some importance.
The Court, referring to P.S. Rajya vs. State of Bihar, (1996) 9 SCC 1, further observed.
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.
Referring to Radheshyam Kejriwal vs. State of West Bengal and Another, (2011) 3 SCC 581, the bench had summarized the principles as follows:
- Adjudication proceedings and criminal prosecution can be launched simultaneously;
- Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
- Adjudication proceedings and criminal proceedings are independent in nature to each other;
- The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
- 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;
- 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
- 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."
Taking note of point (7), the bench discharged the accused and observed:
From our point of view, para 38(vii) is important and if the High Court had bothered to apply this parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated.. Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dated 22.12.2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak.
Case name: ASHOO SURENDRANATH TEWARI vs.DEPUTY SUPERINTENDENT OF POLICE, EOW, CBICase no.: CRIMINAL APPEAL NO. 575 OF 2020Coram: Justices RF Nariman, Navin Sinha, Indira BanerjeeCounsel: Advocate Subhash Jha and ASG Vikramjit Banerjee