DR HAMIDULLAH BHAT vs CENTRAL BUREAU OF INVESTIGATION

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision: October 13, 2023

+ CRL.M.C. 2585/2021

DR HAMIDULLAH BHAT ….. Petitioner
Through: Mr. Adit S. Pujari, Mr. Chaitanya Sundriyal, Mr. Zeeshan Thomas and Ms. Manika Vohra, Advocates

Versus

CENTRAL BUREAU OF INVESTIGATION ….. Respondent
Through: Mr. Rajesh Kumar, SPP with Ms. Mishika Pandita, Advocate
CORAM:
HON’BLE MR. JUSTICE SAURABH BANERJEE
J U D G M E N T

1. The petitioner vide the present petition under Section 482 of the Code of Criminal Procedure, 1973 [CrPC], seeks quashing of Order dated 25.08.2021 passed by Sh. Ajay Gulati, Ld. Special Judge (PC Act), Rouse Avenue Courts, Delhi in Case No.18/2020 titled ‘CBI vs Dr. Hamidullah Bhat’, and setting aside of Notice dated 27.08.2021 on formal charge whereby the petitioner has been charged for commission of offences under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act 1988 [PC Act].
2. Learned counsel for the petitioner submits that the petitioner has been exonerated for the very same allegations of Disproportionate Assets [DA] in the Departmental Enquiry [DE] initiated against him vide findings dated 19.08.2011 which was accepted by the Disciplinary Authority on 04.12.2012. He further submits that the Ld. Trial Court has, in the impugned order dated 25.08.2021 on charge, out of the two properties namely Eros Garden property and Noor Nagar property involved herein, accepted the valuation of the Noor Nagar property at the same rate as that in the DE, but rejected the valuation of the cost of construction of the Eros Garden property. He submits that if the valuation of the cost of construction of Eros Garden property is accepted, the total DA amount is of Rs.85,000/- (approx. 1.5%), which is less than 10% DA in terms of M. Krishna Reddy v. DSP, Hyderabad (1992) 4 SCC 45.
3. Learned counsel for the petitioner, relying upon the judgment dated 04.07.2022 of a Co-ordinate Bench of this Court in WP (Crl.) 1279/2021 titled Johnson Jacob v. State and order dated 31.08.2023 of this Court in CRL.M.C. 1626/2023 titled Captain Arvind Kathpalia vs. Govt. of NCT of Delhi and Anr., both of which rely on Ashoo Surendranath Tewari vs Deputy Superintendent of Police, EOW, CBI & Anr (2020) 9 SCC 636, submits that the criminal prosecution against the petitioner be quashed in light of the allegations, witnesses and documents presented before the Inquiry Officer, and those proposed to be presented and examined by Ld. Special Judge, (PC Act), are similar, if not identical.
4. Learned counsel for the petitioner further submits that the Central Bureau of Investigation [CBI] was granted sanction to prosecute the petitioner (erstwhile public servant) by the Sanctioning Authority vide Sanction Letter dated 27.01.2020, without taking into account the exoneration of the petitioner in the DE for the very same charge which is contradictory to law established by the Hon’ble Supreme Court in CBI vs Ashok Kumar Aggarwal (2014) 14 SCC 295.
5. Learned counsel for the petitioner also submits that even otherwise the Investigating Agency has committed multiple grave errors during the investigation in assigning valuation to jewellery, household items and other assets of the petitioner without any evidence, much less their original valuation.
6. Lastly, the learned counsel for the petitioner places reliance on Ashoo Surendranath Tewari (supra) where the Hon’ble Supreme Court reiterated the test laid down in the case of Radheshyam Kejriwal vs. State of West Bengal (2011) 3 SCC 581 to submit that if the petitioner has been exonerated in the departmental proceedings after due examination of the very same witnesses who are also to be examined in the present case as well, including documents and questionable valuation of other assets, therefore, the chances of his conviction are very bleak.
7. Learned SPP appearing for respondent/CBI opposing the present petition submits that exoneration in the DE does not extinguish the right of the CBI to investigate the offences under the PC Act. He further submits that the departmental authority conducting the enquiry is not equipped and further it is conducted by the Officers from the Department of the petitioner, thereby being susceptible to prejudices and bias.
8. The learned SPP then goes on to underscore the inadequacies in the departmental proceedings and submits that strict principles of criminal jurisprudence are not applicable to the departmental proceedings, therefore, the same cannot tantamount to exoneration in the criminal case.
9. Lastly, relying on Radheshyam Kejriwal (supra), learned SPP submits that, since the departmental proceedings are conducted by a quasi-judicial body and not a competent court of law, provisions of Article 20(2) of the Constitution of India and Section 300 of the CrPC are not attracted to subsequent criminal proceedings.
10. This Court has heard the learned counsel for the petitioner and the learned SPP for CBI and perused the documents on record.
11. Without adverting to the merits of the matter, admittedly, the case is at a stage wherein the trial is underway and the evidence is yet to be concluded. It is also admitted that the petitioner has been exonerated in the DE, however, criminal proceedings qua him are still pending before the Ld. Special Judge, (PC Act), under Section 13(2) read with 13(1)(e) of the PC Act, for disproportionate assets in his name.
12. It is noteworthy that the valuation of the land of the Eros Garden property is the same, both in the chargesheet and the DE report, but the valuation of construction of the house at the aforesaid land varies, while in the DE report, it is valued at Rs.12,50,000/-, whereas in the chargesheet, it is valued at Rs.25,26,900/-. Further, there is also a difference in the valuation of the household items as the same in the DE report are valued at Rs.3,25,500/- whereas in the chargesheet they are valued at Rs.3,90,300/-. Therefore, the contention that the DE and the criminal proceedings are on the ‘same set of facts and circumstances’ appears to be far-fetched.
13. Further, this is a case wherein Flat No.95/III, Surajkund, Faridabad, Haryana was procured by the petitioner before the check period, however, sold on 28.03.2000 i.e. during the check period, whereby he earned a profit of Rs.8,79,260/-. However, the departmental proceedings has given the benefit of the entire sale proceeds of Flat No.95/III, Surajkund, Faridabad i.e. Rs.15,00,000/- as earnings.
14. The facts herein reveal that the investigation has established that the petitioner/accused earned a total income of Rs.56,99,586/- and incurred a total expenditure of Rs.21,03,636/- during the check period. But against his likely savings of Rs.35,95,950/-, the petitioner was instead found in possession of assets amounting to Rs.54,99,254/- which are disproportionate to the tune of Rs.19,03,304/- to his known source of income and for which he could not satisfactorily account for.
15. The following table illustrates the difference (of values under different heads) between chargesheet and departmental enquiry:
Chargesheet
Departmental Enquiry
Total Income = Rs. 56,99,586/-
* Rental Income = Rs. 5,10,725/-
* Profit on sale of property of Surajkund = Rs. 8,79,260/-

* Bank Interest = Rs. 26,361/-
* Sale of flat eros garden = Rs. 9,20,000/-

* Income from salary = 65,873/- (not included in Departmental enquiry)
Total Income = Rs. 59,61,522/-
* Rental Income = Rs. 5,59,325/-
* Profit on sale of property of Surajkund = Rs. 15,00,000/-

* Bank Interest = Rs. 24,249/-
* Sale of flat eros garden = Rs. 4,60,000/-

* Income from LIC Policies = 1,25,081/- (not included in Chargesheet)
Total Expenditure = Rs. 21,03,636/-
* Education of son (Mohsin) = Rs. 69,090/-
* Non verifiable expenditure = 7,39,361/-
* Policy 3680 = Rs. 43,686/-(not included in Departmental enquiry)
* Purchase of flat of Eros Garden = Rs. 4,83,755/- (not included in Departmental Enquiry)
Total Expenditure = Rs. 13,60,851/-
* Education of son (Mohsin) = Rs. 11,160/-
* Non verifiable expenditure = 7,17,403/-
* Policy 3680 = Rs. 38,832/-(not in Chargesheet)
* Jewellery = Rs. 78,550/- (Not included in chargesheet)
Likely Savings = Rs. 35,95,950/-
Likely Savings = Rs. 46,00,671/-
Assets Acquired = Rs. 54,99,254/-
Assets Acquired = Rs. 47,85,294/-
DA = Rs. 19,03,304/- (33.39%)
DA = Rs. 1,84,623/-

16. What follows is that the present is a case wherein the number of witnesses [DE-6 and CBI-34] and number of documents [DE-21 and CBI-35] are substantially different. It is also a matter of fact that CBI, being a specialised agency, is better equipped than a departmental enquiry, since they are acting in different domains and following different procedure(s) of law. As such, they cannot be equated at par with each other. Merely, few similarities here and there cannot lead to the conclusion that both proceedings before the DE and those before the CBI are one and the same and they ought not to be equated.
17. It is pertinent also to note that the law on the fate of criminal proceedings after exoneration in DE has been reiterated by the Hon’ble Supreme Court in Ashoo Surendranath Tewari (supra) where the Hon’ble Supreme Court relied on its previous judgement by a Full-Bench in Radheyshyam Kejriwal (supra), to hold as under:-
“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, 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.”

18. In cases wherein the accused persons have been exonerated by the competent authorities/ Tribunal after adjudication and wherein criminal proceedings are also pending against the very same accused persons, the Court is treading on thin ice. On one hand, if the exoneration in the departmental proceedings is on merits and the criminal prosecution is also on the same set of facts and circumstances, generally the criminal prosecution ought not to be allowed to continue. Whereas on the other hand, if the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings are on different set of facts, it would have no bearing on criminal proceedings. Reliance in this regard is placed on Ajay Kumar Tyagi (supra) wherein it has been held as under:
“24. Therefore, in our opinion, the High Court quashed the prosecution on total misreading of the judgment in the case of P.S. Rajya (Supra). In fact, there are 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.

25. 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.”

19. Similarly, the Hon’ble Supreme Court in M. Krishna Mohan (supra) also held as under:-
“33. 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 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 wherefor he was charged.”

20. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as the criminal proceedings are identical and the exoneration of the concerned person in the departmental proceedings is on merits holding that there is no contravention of the provisions of any Act.
21. In the present case, though the exoneration in the departmental proceedings is not on technical grounds or by giving benefit of doubt, however, there is substantial difference between the valuation of assets in the DE report and the criminal proceedings. It is also apparent that the evidence, both documentary and oral, before the DE and the criminal proceedings, are also considerably different. Therefore, it is safe to conclude that the factors for consideration for the Ld. Special Judge, (PC Act) are significantly broader than the ones considered in the DE report. In any event, in the facts and circumstances of the present case, the proceedings before the DE and those before the Ld. Special Judge, (PC Act) are not inter-dependent and thus, culmination of the DE proceedings leading to the exoneration of the petitioner herein cannot, ipso facto annul the criminal proceedings qua the petitioner herein. Reliance is once again placed upon Ajay Kumar Tyagi (supra).
22. This Court, under the facts and circumstances involved herein, finds that, as neither the documents nor the witnesses before the DE proceedings are similar to those before the Ld. Special Judge, (PC Act), and they are not covering the same set of facts, existence of one does not eclipse the other.
23. In view of the aforesaid, reliance placed by the learned counsel for the petitioner on Captain Arvind Kathpalia (supra) and Johnson Jacob (supra) is misplaced, as the situation/position in both are not the same/identical particularly, in view of the fact when the Ld. Special Judge, (PC Act) vide orders dated 29.01.2008 and 20.03.2010, did not accept the closure reports filed by the CBI and thus directed for carrying out further investigation on the suggested parameters, whereas in both aforesaid cases, the DE and the criminal proceedings were based on the same set of facts, which, is not the case in hand.
24. Needless to say, this Court finds that the impugned order dated 25.08.2021 whereby the Ld. Special Judge, (PC Act) had framed charges under Section 13(2) read with 13(1)(e) of the PC Act, upon due consideration of the conspectus involved, has rightly proceeded with the framing of charges qua the petitioner.
25. In view of the aforesaid examination of the factual matrix and the settled position of law, this Court is of the opinion that the present is not a case calling for quashing of the impugned order dated 25.08.2021 and setting aside the Notice dated 27.08.2021.
26. Accordingly, the present petition is dismissed.

SAURABH BANERJEE, J.
OCTOBER 13, 2023/rr

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