The Misconceived Notion in Ashoo Tewari: Grant of Sanction is an ‘Administrative Function’ and not a ‘Departmental Proceeding’
In a recent judgment pronounced on September 08, 2020, the three judge Bench of the Supreme Court of India, comprising of Justices Rohinton Nariman, Navin Sinha and Indira Banerjee, in the matter of Ashoo Surendranath Tewari v. The Deputy Superintendent of Police, EOW, CBI & Anr. [Criminal Appeal No. 575 of 2020, arising out of SLP (Crl.) No. 5422 of 2015], quashed the criminal proceedings while relying on the reading of the CVC report which concurred with the view of the Disciplinary Authority (“DA”) which refused to grant sanction, a legal requirement under Section 19 of the Prevention of Corruption Act to prosecute public servants, to the CBI in order to proceed with criminal prosecution against the appellant. The Bench, while placing reliance on the CVC report on the matter, took additional support of the rationale that the criminal prosecution cannot proceed on the same set of facts and allegations for which the departmental proceeding has exonerated the accused on merits of the matter, so that even if the hypothetical was entertained where the criminal trial continued, it would not result in conviction as the chances of conviction appeared bleak in light of the CVC report.
Albeit the judgment’s foundation and the end result are clearly in the interest of justice, however, the problematic aspect of the judgment lies where the Bench relies upon the importation of the ‘Standard of Proof’ from the Departmental/Adjudicatory Proceedings to affect the consequences of the Criminal Proceedings, by utilising the exoneration in the departmental proceeding as the basis to quash the criminal proceeding. The author of the instant article will focus on this issue of importation of the concept of standard of proof from a departmental proceeding to affect a criminal proceeding as both the proceedings function in different spheres of law, which are governed by distinct jurisprudence.
At the very outset, one thing that must be understood in reference to Ashoo Tewari is that there was no need for the Court to go into this line of thought comprising of the fact that the departmental proceedings are governed by lower standard of proof while the criminal proceedings are governed by higher standard of proof. The Court unnecessarily went into this question, which does not have any direct bearings on the matter and therefore, the same cannot be said to form a precedent on this proposition. To further clarify, the exercise to grant sanction under Section 19 of the Prevention of Corruption Act by the Disciplinary Authority is an ‘administrative function’. The CVC in term of its powers and functions under Section 8(1)(f) of the CVC Act, 2003, directs all administrative authorities to scrupulously follow the guidelines while considering and deciding the requests for Sanction for prosecution. The Commission had laid down, vide CVC Circular No. 005/VGL/11 dated 12.05.2005, that the grant of sanction would be an administrative act [See also Supdt. of Police (C.B.I.) v. Deepak Chowdhary]. The reason provided was to protect the public servant from harassment by frivolous or vexatious prosecution, and the question of giving opportunity to be heard does not arise at this stage as the sanctioning authority only has to see whether the facts would prima facie constitute the offence. Therefore, the exercise of such a function being performed by the DA will not be governed by the principles of Natural Justice or other judicial principles which holds influence over a judicial proceeding such as the Departmental Proceeding/Adjudicatory Proceeding that would be undertaken by the DA. However, since the Bench unnecessarily went into this question, the same would appropriately fall for consideration as a legal issue to be examined.
Flawed Application of the ‘Standard of Proof’ Doctrine between Departmental and Criminal Proceedings
The Bench observed, in Para 7, that there are a number of judgments which have held that the criminal proceedings can be quashed, when the departmental proceedings had failed to prove the charge due to lack of evidence, because there is a higher ‘standard of proof’ required to secure a conviction in criminal proceedings as opposed to proving a charge in departmental proceedings. The standard of proof for proving a charge in departmental proceedings is based on the doctrine of ‘preponderance of probabilities’ where the departmental enquiry needs to prove the evidence, on the basis of preponderance of proof although the evidence may not be entirely free from doubt, that the accused has committed the delinquency. However, that is not the case in matters of criminal prosecution where the standard of proof must satisfy the doctrine of ‘guilt beyond reasonable doubt’ in order to secure conviction.
Thus, the rationale of the Bench is that since departmental proceedings have a lower threshold of ‘standard of proof’, which was not satisfied in proving the charge, whereby the Bench is confusing the concept of departmental proceeding with the exercise of an administrative function by referring to the refusal of sanction by the DA and consequently by the CVC as the accused being ‘discharged’, and therefore, the Bench proceeds on the assumption that there is no basis to continue with the criminal proceeding as it is a well-recognised principle that criminal culpability must be ascertained ‘beyond reasonable doubt’.
However, the above stated justification applied by the Court is incorrect, as it is based on the flawed perception that departmental proceedings and criminal proceedings are the same in nature and function. Moreover, the reliance placed on the decision of P.S. Rajya v. State of Bihar is incorrect and per incuriam because numerous precedents have ruled that P.S. Rajya will not be considered as a precedent on the said proposition.
The Supreme Court of India in State v. M. Krishna Mohan had held that P.S. Rajya did not lay down any proposition with respect to quashing of criminal proceedings as the natural result of exoneration in departmental proceedings. The Court held that P.S. Rajya quashed the criminal proceedings because of the peculiar facts of that particular case, and it was not quashed on the ground that the departmental proceedings exonerated the accused, which is evident from the plain reading of paragraph 23 of P.S. Rajya judgment. In Central Bureau of Investigation v. V.K. Bhutiani, the accused was exonerated in the departmental proceeding by the Central Vigilance Commission. The accused challenged his criminal prosecution before the High Court relying on the decision of the Apex Court in the case of P.S. Rajya,and the High Court quashed the prosecution. However, upon challenge by the Central Bureau of Investigation, the decision of the High Court was reversed placing reliance upon the decision of M. Krishna Mohan, where the Apex Court came to the conclusion that the quashing of the criminal prosecution was incorrect. It would also be pertinent to mention that in State of N.C.T. of Delhi v. Ajay Kumar Tyagi, a three judge Bench of the Apex Court had held that the exoneration in departmental proceedings would, ipso facto, not result into the quashing of the criminal prosecution. The Court further explained that the decision of P.S. Rajya must be understood to have been rendered on the basis of the peculiar facts of the matter, which is evident from a clear reading of the report in P.S. Rajya itself.
The Need for Compartmentalisation of the ‘Standard of Proof’ Doctrine Vis-à-vis Departmental and Criminal Proceedings
The primary consideration that one must keep in mind while analysing departmental proceedings and criminal proceedings, which are investigating the accused on the same set of facts and allegations, is that the two proceedings are completely independent of each other and follow different jurisprudence. The result of one proceeding which is based on the different sets of standards of proof therein should not impact the second proceeding as they are distinct from each other in nature, therefore, any influence of one over the other will severely damage the sanctity of either of the proceedings, which would not be in the interest of justice, equity and fair play.
The Supreme Court of India and many High Courts, in a majority of judgements have held that exoneration of an accused in departmental proceedings would not mean an, ipso facto,quashing of criminal proceedings, as the two proceedings are distinct entities following different sets of law, governed by separate considerations and independent factors. In Ajay Kumar Tyagi, the Court elaborated upon the principle governing the proposition that exoneration in departmental proceeding would not, ipso facto, result in quashing of the criminal proceeding or acquittal of the accused. The Court held that, while it is a well-settled proposition that the ‘standard of proof’ in departmental proceedings is lower as opposed to criminal prosecution, it is also an equally well-settled principle that departmental proceedings and criminal proceedings have to be decided ‘only’ on the basis of the evidence adduced therein. The Court clarified that the ‘truthfulness’ of the evidence in a criminal case can be adjudged only after the evidence is adduced therein and the criminal case cannot be rejected on the basis of the evidence adduced in the departmental proceeding or the report of the Inquiry Officer based on that evidence. Therefore, the two proceedings function independently of each other and there should be no apprehension of the outcome of one proceeding affecting the other, because the ingredients of delinquency/misconduct in criminal prosecution and departmental proceedings, as well as the standards of proof required in both cases are not identical, however, what may affect the outcome of the subsequent proceedings may be the contradictions, which the witnesses may make in their depositions, and thus it is, therefore, necessary to consider all relevant matters in each individual case [See CVC Circular No. 1/DSP/3 dated 03.02.1981 regarding starting of Departmental proceedings along with prosecution]. However, in especially rare cases, where the interest of justice demands it, the accused can be saved from the rigmarole of the criminal trial only in cases where the departmental proceeding has arrived at a positive and conclusive finding of innocence of the accused instead of failure to prove the charges because of lack of satisfaction of the standard of proof required therein, provided the facts found in both the proceedings and the allegations are identical.
It would be pertinent to mention here that the rationale of departmental exoneration being the basis of quashing criminal prosecution requires the existence of the underlying principle that the two proceedings are equivalent to each other in nature or hierarchy, however, as it was stated above, that is not the case. This false equivalence can be highlighted while illustrating the various differences between the two proceedings.
False Equivalence of Departmental and Criminal Proceedings
Nature and Objective of the Proceedings: The scope of departmental enquiry and judicial proceedings, and the effect of acquittal in a criminal proceeding has been examined by a three judge Bench of the Apex Court in Depot Manager A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and Others, wherein the Court held that the purpose of departmental enquiry and of prosecution are different, where the criminal prosecution is launched for an offence for violation of a duty which the offender owes to the society, and the law has provided that the offender shall make satisfaction to the public. Therefore, a crime is an act of commission in violation of law or of omission of public duty. On the other hand, the purpose of departmental enquiry is to maintain discipline in the service in order to effectuate efficiency in public administration. The trial for the criminal offence should be conducted in accordance with the proof of the offence as per the Evidence Act. The converse is true for departmental proceedings as well, where the enquiry relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules or law, and the settled legal position is that the strict standard of proof or applicability of the Evidence Act stands excluded. Thus, departmental proceedings are constituted with the objective to ascertain whether the accused is guilty of civil delinquency while a criminal proceeding aims to ascertain whether the accused is liable for criminal culpability. Therefore, one proceeding functions in the sphere of civil law while the other proceeding functions in the sphere of criminal law, therefore, any comparison between the two different sets of laws may result into flawed conclusions.
Difference in Scope of Powers: The Investigating Officer has a much wider scope of powers to investigate offences under the Indian Penal Code [I.P.C.] using the procedure defined in the Code of Criminal Procedure [Cr.P.C.] and the recording of evidence under the Evidence Act, while an Inquiry Officer has severely restricted powers of investigation under the concerned statutory rules or law. For example, in departmental proceedings, the Inquiry Officer does not enjoy the same powers as an Investigating Officer with respect to remand, search, seizure, etc. Furthermore, in departmental proceedings, in contradistinction to criminal proceedings, you cannot cross-examine the evidence or even cross-examine the accused on oath, which naturally means that the accused enjoys a greater liberty to lie. In Sreerama Murty v. C.W.C. [1991 (1) SLR], the Court held that circumstantial evidence is enough to record conviction, and the evidences/documents adduced in departmental proceedings do not have to qualify the test of cross-examination. In State of Haryana v. Rattan Singh, wherein the Court held that the Evidence Act will not apply to ‘domestic enquiry’, and at times, even hearsay evidence can be accepted as evidence in the ‘domestic enquiry’ as long as it has reasonable nexus and credibility. Therefore, the technicalities of criminal law cannot be invoked and the strict mode of proof prescribed by the Evidence Act may not be complied with equal vigour in departmental proceedings. In a recent judgment of the Apex Court in Karnataka Power Transmission Corporation Limited v. Sri C Nagaraju & Anr., the Court reiterated that the object of a departmental enquiry is to find out whether the delinquent is guilty of misconduct under the Conduct Rules for the purpose of determining whether he should be allowed to continue service. It, thus, follows that due to the different natures of the proceedings, the ‘quality’ of the evidence in the two proceedings are quite different since the standard of proof, mode of enquiry and the rules governing enquiry and trial in both the cases are significantly distinct and different.
Purpose behind the Different Evidentiary Threshold Standards: It is of primary importance to consider the logic behind having varying thresholds for the different proceedings in respect of the ‘standard of proof’ that is required to be satisfied in order to ascertain the criminal culpability or the civil delinquency of the accused. Since departmental proceedings enjoy very limited powers to conduct an enquiry, and therefore the departmental proceedings are governed by the principle of ‘preponderance of probabilities’ which requires a much lower standard of proof to be established to prove the charge of civil delinquency. However, criminal proceedings enjoy wide scope of powers, and therefore, criminal proceedings are subjected to the doctrine of establishing ‘guilt beyond reasonable doubt’ to ensure that no innocent person is wrongly convicted of a crime in contravention of the golden principle of criminal law,which posits that every individual enjoys the presumption of ‘innocence until proven guilty’. In Mohd. Yousuf Miya, the Court held that the enquiry in the departmental proceedings relates to the conduct of the delinquent officer and the proof required on that behalf is not as high as in the case of a criminal offence. The nature of evidence in criminal trial is entirely different from what it is in departmental proceedings. In the former, the prosecution has to prove its case beyond reasonable doubt on the touchstone of human conduct in the witness box, while the standard of proof in the latter proceedings is not the same as criminal proceedings. The evidence is different in both the proceedings from the perspective of the Evidence Act, where the evidence required in the departmental enquiry is not governed by the Evidence Act. This judicial exposition has been further affirmed by a three judge Bench of the Apex Court in Ajit Kumar Nag v. General Manager (PJ) Indian Oil Corporation Limited Haldia & Ors., where the Court held that in a criminal trial, while observing that the two proceedings are distinct from each other and they operate in different fields and have different objectives, the incriminating statement made by the accused in certain circumstance or before certain officers is wholly inadmissible in evidence. The strict rules of evidence and procedure would not apply to departmental proceedings. As mentioned previously, the degree of proof to order a conviction is different from the degree of proof to record the commission of delinquency. The rationale for this line of thought can be attributed to the fact that the rules relating to the appreciation of evidence in the two proceedings are not similar.
CONCLUSION
From the above discussion, the observation that becomes amply clear is that it would be a flawed understanding of the nature of the two proceedings to allow any form of parallel equation between the two proceedings so as to enable the importation of the ‘Standard of Proof’ doctrine from one proceeding to affect the other. The result of such a flawed understanding would only cause detrimental effect to departmental proceedings from an administrative point of view. In certain situations, the accused will exercise his utmost ability to secure a favourable verdict in the departmental proceeding, which is easier to manipulate and influence in a democracy, so that he can avoid the criminal proceeding entirely where there is a higher probability of the accused being held criminally culpable. Therefore, it would be incorrect for the criminal proceeding to be quashed against the accused, on the basis of the exoneration in the departmental proceeding, on the ground that the ‘standard of proof’ will not be satisfied as it failed to be satisfied in the departmental proceeding because the ‘standard of proof’ in both the proceedings are being governed by distinct jurisprudence.
Jaiyesh Bhoosreddy is a Fourth Year Law Student from University School of Law and Legal Studies, GGSIPU)
This judicial exposition has been further affirmed by a three-judge Bench of the Supreme Court in Ajit Kumar Nag v. General Manager (PJ) Indian Oil Corporation Limited Haldia & Ors., where the court held that in a criminal trial, while observing that the two proceedings are distinct from each other and they operate in different fields and have different objectives, the incriminating statement made by the accused in certain circumstance or before certain officers is wholly inadmissible in evidence.