DIBAKAR BEHERA vs STATE OF ODISHA
- Court
- Odisha High Court
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 398 of 2024
An application under Section 397 read with Section 401 of the Code of
Criminal Procedure.
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Dibakar Behera Petitioner
..….
-versus-
State of Orissa Opp. Party
……
Advocates who appeared in this case through hybrid mode :
For Petitioner : Mr. Hrudananda Mohapatra, Adv.
For Opp. Party : Mr. Sangram Das, Standing Counsel
(for Vigilance Department)
CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
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Date of hearing: 28.01.2026 :: Date of Judgment: 14.05.2026
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Savitri Ratho, J This application has been filed challenging the order
dated 03.04.2024 passed by the learned Special Judge (Vigilance),
Cuttack in T.R. No.25 of 2018 under Annexure-7, rejecting the
application of the petitioner filed for discharge.
CRLREV No. 398 of 2024 Page 1 of 32
PROSECUTION ALLEGATIONS IN BRIEF
2. Krushna Mohan Sahoo , father of the complainant had
purchased a piece of land from one Sanatan Mallick in October
2017 . But before registering the sale deed, the Sub Registrar ,
Narsinghpur asked for a report from the Tahasildar Narasinghpur if
any building was standing on the plot. On 15.11.2017 , the latter
asked the petitioner – the Revenue Inspector , Siara to submit the
report . When no report was received , on 27.11.2017 , the
complainant and his father had gone to the Office of the R.I. Siara
and met him . On 28.11.2017 , the accused persons had gone to the
spot for enquiry . That day , the complainant and his father had met
the petitioner , and the petitioner told him that he has to pay some
amount for the report and to meet his peon – co accused Ganeswar
Sahoo who would tell the amount . The peon demanded Rs 3,000/-
but the complainant and his father stated that they could not pay the
amount . On 29.11.2017 , they met the petitioner and told him that
they could not pay the amount of Rs 3,000/ which the peon had
demanded. He asked them to wait outside and talked with the peon.
The peon came out and told them that they had to pay at least Rs
2,000/- for the report to be sent to the Sub- Registrar. On
3.12.2017, he told them to pay Rs 2,000/- Thereafter, the
CRLREV No. 398 of 2024 Page 2 of 32
complainant reported the matter to the Vigilance authority and
stated that they would go to on 05.12.2027 to pay the amount .
Basing on his written report , on 04.12.2017 at 2.40 P.M. , Cuttack
Vigilance P.S. Case No.54 dated 04.12.2017 under Section 7 of the
Prevention of Corruption Act, 1988 (in short “the P.C. Act”) was
registered against the petitioner Sri Dibakar Behera, Revenue
Inspector and co-accused Sri Ganeswar Sahoo Chainman Siaria
Revenue Circle under Narasinghpur Tahasil regarding demand of
illegal gratification of Rs.2000/- by them, to submit enquiry report
in connection with RSD No. 10451700471 dated 23.10.2017 to the
Tahasildar Narasinghpur,. One Sri Shiv Narayan Bhadra, Inspector
Vigilance Cuttack Division was directed to lay the trap and Sri
Ananta Narayan Mohnaty, DSP Vigilance Cuttack Division was
directed to investigate the case.
3. During investigation, preparation was made on
05.12.2017 and on the same day, the trap was laid at the R.I. Office
Siaria , where Sri Dibakar Behera, R.I. and Sri Ganeswar Sahoo,
Chainman were caught red handed while accepting bribe of
Rs.2000/- from Sri Gyana Ranjan Sahoo of Vill-Kanpur, in
presence of overhearing witness Sri Pramod Kumar Singh. Hand
wash of co accused Ganeswar Sahoo turned pink. Handwash of the
CRLREV No. 398 of 2024 Page 3 of 32
petitioner was not taken as he had not handled the money . After
investigation, charge sheet was placed against the petitioner and Sri
Ganeswar Sahoo for commission of offences under Section 13(2)
read with Section 13(1)(d), 7 and 12 of the PC Act.
IMPUGNED ORDER
4. The petitioner had filed application under Section 239 of
the Cr.P.C. before the learned trial Court for discharge. The same
was rejected on 03.04.2024 by a reasoned order holding that at the
stage of framing of charge, it is the duty of the Court to consider
the prima facie evidence against the accused from the materials
available in the record. Taking note of the contention of the
petitioner that at no point of time he had accepted the tainted cash,
the learned trial court held that prima facie, there were sufficient
materials to presume that the petitioner had committed the offences
under Section – 13(2) read with Section 13(1) (d) / 7 / 12 of the PC
Act and the pleas of the petitioner can be adjudicated during course
of trial. While doing so, the learned trial Court has referred to the
decisions of the Supreme Court in the case of Sonu Gupta vs
Deepak Gupta and others , Ajay Kumar Parmar vs State of
Rajasthan : (2012) 12 SCC 406, State of Bihar vs Ramesh Singh:
(1977) 4 SCC 39, State of Orissa vs Debendranath Padhi:(2005) 30
CRLREV No. 398 of 2024 Page 4 of 32
OCR SC 177 , Rajbir v State : (2006) 4 SCC 51 , State vs L.
Muniswamy : ( 1977) 2 SCC 699 , State vs Somanath : (1996) 4
SCC 659 , State vs Mohanlal : (2000) 6 SCC 338 , CBI vs Dr.
Anu Kumar Srivastava : AIR 2017 SC 3698 , State by the
Inspector of Police , Chennai vs Selvi and another :AIR 2018 SC
81 .
SUBMISSIONS
5. I have heard Mr. Hrudananda Mohapatra learned counsel
for the Petitioner and Mr. Sangram Das learned Standing Counsel
for Vigilance and perused the records and the written note of
submissions submitted by the learned counsel.
PETITIONER
6.
Mr. Hrudananda Mohapatra learned counsel for the
Petitioner submitted that :-
(a) The co-accused, Ganeswar Sahoo has demanded the
money and accepted the same at the time of trap. The detection
report also reveals this. There is no mention in the charge-sheet that
any demand was made by the petitioner at any time or that he
accepted the tainted money. The bribe money was also not seized
from him.
CRLREV No. 398 of 2024 Page 5 of 32
(b) It is the settled position of law that in absence of demand
and acceptance of bribe, offence under Section 7, and Section 13(2)
& 13(1)(d) or Section 12 of the PC Act is not made out. The
learned Special Judge, Vigilance, Cuttack without considering the
aforesaid legal position , has passed the impugned order.
(c) For registration of the sale deed as alleged, the Sub-
Registrar had directed the Tahasildar, Narasinghpur to submit
enquiry report and the Tahasildar had directed the petitioner to
cause enquiry and submit report. Due to his busy schedule i.e.
survey of crop loss and due to unseasonal rain the petitioner visited
the spot on 28.11.2017. Inquiry had been completed by the
petitioner, but there was delay in submission of report due to non-
mention of specific location of the land in question.
(d) In the absence of the demand of bribe and acceptance of the
same by the petitioner and as the work which had been allotted to
the petitioner had already been completed , the alleged offences
were not made out against him. Hence he should have been
discharged from the offences. The impugned order was therefore
unjust, unreasonable and without application of judicial mind.
(e) In the departmental proceeding initiated against the
petitioner for the same allegations, it was specifically opined by the
CRLREV No. 398 of 2024 Page 6 of 32
Inquiring Officer, after analyzing all the evidence collected during
enquiry, that the petitioner has not demanded any gratification. He
was absent in the office, during the alleged monetary transaction,
so the Inquiring Officer, he recommended for exonerating the
petitioner from the charges levelled against him. But the findings of
the Inquiring Officer, has not been considered by the learned trial
court and the application filed by him under Section 227 of the
Cr.P.C. for discharge has been illegally rejected vide the impugned
order dated 03.04.2024.
In support of his submissions Mr. Mohapatra, learned
counsel for the Petitioner has relied on the decisions in the case of
(i) Niranjan Bharati vs. State of Orissa: (2003) 26 OCR 274
Ashoo Surendranath Tewari vs. the Deputy Superintendent of
(ii)
Police, EOW, CBI & Anr. : (2020) 6 SCC 636,
(iii) Kishore Chandra Das vs. State of Odisha (Criminal Revision
No. 37 of 2021 decided on 02.11.2023) and
(iv) Mahendra Maharana vs. Republic of India : 2024 Supp-1
OLR 121 .
WRITTEN NOTE
7. Mr. Mohapatra, learned counsel for the Petitioner has
CRLREV No. 398 of 2024 Page 7 of 32
submitted written note of submission referring extensively to the
statements of the witnesses recorded under Section 161 of the
Cr.P.C. to emphasise that;
(i) that the petitioner had not made any demand and the co-accused
demanded the money and counted the notes kept it under the table
cloth of the R.I on the left side. On being challenged the petitioner
had stated that he did not know who kept the money there.
(ii) From the statement of witness Ananta Narayan Mohanty , it is
apparent from the issue register of 2016-17, that by the time of
detection , on 05.12.2017, the enquiry report of the R.I had already
been dispatched on 04.12.2017.
iii) In the Enquiry Report in the Departmental Proceeding at
Annexure-5 , it has been stated that it reveals that on the same sets
of facts, the departmental proceeding had been initiated and the
petitioner has been exonerated whereas the criminal prosecution is
continuing.
STATE
8. Mr. Sangram Das, learned Standing Counsel of the
Vigilance submitted that :
CRLREV No. 398 of 2024 Page 8 of 32
i) At the stage of framing of charge, the Court is not to conduct a
mini trial by examining the probative value of statements. This is to
be done during trial after recording of evidence.
ii) The standard of proof in a disciplinary proceeding and a
criminal trial are different as because in a criminal trial witnesses
are administered oath before their evidence is recorded.
iii) Contention of the learned counsel for the petitioner that as the
report had been submitted before the date of detection, the
allegation of demand and payment of bribe cannot be accepted to
be true, is liable to be rejected as this could not be within the
knowledge of the petitioner who fulfilled the demand by paying the
bribe. In support of his submissions, Mr. Das, learned Standing
Counsel has relied on the decisions of the Supreme Court in the
cases of
(i) T. Manjunath vs. State of Karnataka : 2025 SCC Online SC
2597 ,
(ii) State of Tamil Nadu vs. R. Soundirarasu & Ors. : (2023) 6
SCC 768 and this Court in the case of
iii) Rikhiram Chandrakar vs. State of Odisha (Vigilance)
th
(Criminal Misc. Case No. 2783 of 2021 and batch decided on 10
April, 2025)
CRLREV No. 398 of 2024 Page 9 of 32
JUDICIAL PRONOUNCEMENTS
9. Apart from the decisions relied on by learned counsel for
the parties , reference has been made to decision(s) which is
relevant for deciding this Criminal Revision.
9.1 In the case of Niranjan Bharati , (supra), the Court
allowed the appeal and set aside the conviction of the appellant
under Section 13(2) and Section 7 of the P.C. Act, as it was found
that no work was pending with the appellant and the dates on which
demand was made, was not proved.
9.2 In Radheshyam Kejriwal vs. State of West Bengal
and Another, (2011) 3 SCC 581 , the Supreme Court has held
as follows :-
"26. We may observe that the standard of proof in
a criminal case is much higher than that of the
adjudication proceedings. The Enforcement
Directorate has not been able to prove its case in
the adjudication proceedings and the appellant
has been exonerated on the same allegation. The
appellant is facing trial in the criminal case.
Therefore, in our opinion, the determination of
facts in the adjudication proceedings cannot be
said to be irrelevant in the criminal case. In B.N.
Kashyap [AIR 1945 Lah 23] the Full Bench had
not considered the effect of a finding of fact in a
CRLREV No. 398 of 2024 Page 10 of 32
civil case over the criminal cases and that will be
evident from the following passage of the said
judgment: (AIR p. 27)
"... I must, however, say that in answering
the question, I have only referred to civil
cases where the actions are in personam
and not those where the proceedings or
actions are in rem. Whether a finding of
fact arrived at in such proceedings or
actions would be relevant in criminal cases,
it is unnecessary for me to decide in this
case. When that question arises for
determination, the provisions of Section 41
of the Evidence Act, will have to be
carefully examined."
xxx xxx xxx
“ 29. We do not have the slightest hesitation in
accepting the broad submission of Mr Malhotra
that the finding in an adjudication proceeding is
not binding in the proceeding for criminal
prosecution. A person held liable to pay penalty
in adjudication proceedings cannot necessarily
be held guilty in a criminal trial. Adjudication
proceedings are decided on the basis of
preponderance of evidence of a little higher
degree whereas in a criminal case the entire
CRLREV No. 398 of 2024 Page 11 of 32
burden to prove beyond all reasonable doubt lies
on the prosecution.
”
xxx xxx xxx
31. It is trite that the standard of proof required
“
in criminal proceedings is higher than that
required before the adjudicating authority and in
case the accused is exonerated before the
adjudicating authority whether his prosecution
on the same set of facts can be allowed or not is
the precise question which falls for
determination in this case."
After referring to various judgments, in paragraph
38 , the ratio of the decisions were culled out, as follows: -
"38. The ratio which can be culled out from these
decisions can broadly be stated as follows:
(1) 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;
CRLREV No. 398 of 2024 Page 12 of 32
(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."
Finally in paragraph 39 , it was held as follows : -
"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
CRLREV No. 398 of 2024 Page 13 of 32
proceedings, the trial of the person concerned shall
be an abuse of the process of the court."
9.3 Ashoo Surendranath Tewari
In the case of (supra),
the Supreme Court referred to its earlier decision in
Radheyshyam Kejriwal ( supra) and held as follows : -
“7. 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. In P.S. Rajya
vs. State of Bihar, (1996) 9 SCC 1 , the question
before the Court was posed as follows:-
"3. The short question that arises for our
consideration in this appeal is whether
the respondent is justified in pursuing
the prosecution against the appellant
under Section 5(2) read with Section
5(1)(e) of the 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."
This Court then went on to state:
"17. At the outset we may point out that
the learned counsel for the respondent
could not but accept the position that the
CRLREV No. 398 of 2024 Page 14 of 32
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."
This being the case, the Court then held:
“2 3. 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 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 initiated
against the appellant cannot be pursued.
Therefore, we do not agree with the view
taken by the High Court as stated above.
These are the reasons for our order
dated 27-3-1996 for allowing the appeal
and quashing the impugned criminal
proceedings and giving consequential
reliefs."
From our point of view, para 38(vii) is important
“…
and if the High Court had bothered to apply this
CRLREV No. 398 of 2024 Page 15 of 32
parameter, then on a reading of the CVC report on
the same facts, the appellant should have been
exonerated.
8. 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. We, therefore, set aside the judgment of
the High Court and that of the Special Judge and
discharge the appellant from the offences under the
Penal Code.”
9.4 In the case of Kishore Chandra Das (supra), this Court
has held as follows:-
32. On a careful analysis of the factual background of
“
the present case, as well as keeping in view the law laid
Radheyshyam
down by the Hon'ble Supreme Court in
Kejriwal's case as well as in Ashoo Surendranath
Tewari's case (supra) this Court is of the considered
view that the charges in both the Disciplinary
Proceeding as well as RISSP in the Vigilance case are
identical and based on self same facts. Moreover, the
Petitioner having been exonerated from the Disciplinary
proceeding which was conducted pursuant to the
relevant Service Rules and the outcome of such
Disciplinary Proceeding having attained finality, it
would be an abuse of process of law if the criminal trial
CRLREV No. 398 of 2024 Page 16 of 32
in shape of vigilance case is allowed to continue against
the Petitioner. This Court further observes that the
present case falls within one such rarest of rare case as
has been held by the Hon'ble Supreme Court of India in
Paragrph-38 of the judgment in Radheyshyam
Kejriwal's case. Accordingly, this Court is also of the
considered view that the learned trial court has
committed a gross illegality by not allowing the
discharge petition of the Petitioner. Accordingly, the
impugned order dated 17.11.2020 is hereby set aside.
Further, this Court has no hesitation in allowing the
application under section 239 Cr.P.C. filed by the
Petitioner to discharge him from the CTR No.26 of 2014
arising out of Sambalpur he CTR No.26 Vigilance
P.S.Case No.44 dated 30.06.2012.
”
( emphasis supplied)
T. Manjunath
9.5 In the case of (supra), the Supreme Court
has held as follows:-
“ 31. We may further observe that when a witness
deposing on oath in a criminal trial resiles from the
original version and does not support the
prosecution case, he would be liable to face
prosecution for perjury. Under this pressure, the
witness may choose to speak the truth. Thus, the
mere fact that some of the witnesses did not support
the department's case in the disciplinary proceedings
CRLREV No. 398 of 2024 Page 17 of 32
would, by itself, not give any assurance that they
would behave in the same manner at the criminal
trial. In the present case, as is evident, the
exoneration of the accused-appellant in the
departmental proceedings is merely on the ground
that the decoy and associating witnesses did not
support the case of department.
32. The possibility of the criminal case still
resulting into conviction, irrespective of the factum
of the witnesses turning hostile being a realistic
possibility, we feel that there is no merit behind the
argument of Shri Kamat that exoneration in the
departmental proceeding should lead to automatic
discharge in the criminal case. Hence, the said
argument advanced on behalf of the accused-
appellant, placing reliance on Ashoo Surendranath
Tewari (supra), has no merit and is rejected.
33. Though the core facts in both proceedings may
bear resemblance, the viewpoint, scope, and
standards for adjudication are entirely different, and
each is governed by a distinct forum and procedure.
Hence, exoneration in the departmental proceedings
does not, ipso facto, furnish a ground for dropping
the criminal charges more particularly in Trap
Cases ( emphasis supplied)
.”
9.6 In the case of Mahendra Maharana (supra), this Court,
was considering the prayer for discharge of the accused . While
CRLREV No. 398 of 2024 Page 18 of 32
hearing the Appeal against conviction of the accused , found
discrepancies in the evidence of witnesses regarding recovery of
tainted money from the appellant’s left hand which was also found
to be stained, but as there was no allegation that he had used that
hand , and no work was pending with the appellant and all records
had not been produced before the sanctioning authority, set aside
the conviction of the appellant.
9.7 In the case of R. Soundirarasu (supra), the Supreme
Court has held as follows:-
78. In Munna Devi v. State of Rajasthan , this
“
Court held as under: (SCC p. 632, para 3)
"3. The revision power under the Code of
Criminal Procedure cannot be exercised in a
routine and casual manner. While exercising
such powers the High Court has no authority
to appreciate the evidence in the manner as
the trial and the appellate courts are
required to do. Revisional powers could be
exercised only when it is shown that there is
a legal bar against the continuance of the
criminal proceedings or the framing of
charge or the facts as stated in the first
information report even if they are taken at
the face value and accepted in their entirety
do not constitute the offence for which the
accused has been charged."
79. Thus, the revisional power cannot be exercised
in a casual or mechanical manner. It can only be
exercised to correct manifest error of law or
procedure which would occasion injustice, if it is
CRLREV No. 398 of 2024 Page 19 of 32
not corrected. The revisional power cannot be
equated with the appellate power. A Revisional
Court cannot undertake meticulous examination of
the material on record as it is undertaken by the
trial court or the appellate court. This power can
only be exercised if there is any legal bar to the
continuance of the proceedings or if the facts as
stated in the charge-sheet are taken to be true on
their face value and accepted in their entirety do
not constitute the offence for which the accused has
been charged. It is conferred to check grave error
of law or procedure.
80. This Court in Asian Resurfacing of Road
Agency (P) Ltd. v. CBI, has held that interference
in the order framing charges or refusing to
discharge is called for in the rarest of rare case
only to correct the patent error of jurisdiction.”
(Emphasis supplied)
9.8 In the recent decision of The Supreme Court in the case
of The Karnataka Lokayuktha Bagalkote District, Bagalkot vs.
Chandrashekar & Another : 2026 INSC 31, where the Supreme
Court has referred to the decisions in Radheshyam Kejriwal
(Supra), Ajay Tyagi (supra) and P.S. Rajya ( supra), specifically
holding that the the principles in Radheshyam Kejriwal (supra)
are applicable in a disciplinary inquiry, which was the specific
CRLREV No. 398 of 2024 Page 20 of 32
question considered in Ajay Kumar Tyagi ( supra) and the very
same Hon'ble Judge who authored the majority judgment in
Radheshyam Kejriwal and that the earlier decision was not noticed
in the latter decision with just cause as there were distinctions on
facts. The relevant paragraphs of the decision are extracted
below:-
“ 5. There can be no doubt regarding the principle that
if the later Bench holds contrary to the earlier Bench
decision of coequal strength, on the same point, the
contrary dictum expressed by the later Bench would
be per incuriam as held by a Constitution Bench in
National Insurance Company Limited v. Pranay
4
Sethi . But the question arising herein is as to whether
there was a conflict with the earlier and later
judgments.
2
Radheshyam Kejriwal
6. In , the raid on the
premises of the appellant therein, by the Enforcement
Directorate gave rise to proceedings under the
Foreign Exchange Regulation Act, 19735. Initially, a
show-cause notice was issued by the Director of the
Enforcement Directorate proposing adjudication
proceedings under Section 51 of the FERA, which,
after explanation received was concluded with a
decision taken by the Adjudicating Officer that the
contravention of the provisions alleged cannot be
sustained since the transaction itself is not proved.
CRLREV No. 398 of 2024 Page 21 of 32
The said order became final for reason of the
Enforcement Directorate having not challenged it.
Later, on the same set of facts, as enabled under
Section 56 of the FERA criminal proceedings were
initiated, which even as per the enactment could be
continued without any prejudice to any award of
penalty by the Adjudicating Officer under Section 51
of the FERA. It is in this context that the three-Judge
Bench, by a majority, held inter alia that though the
adjudication and criminal proceedings are
independent of each other, if in the former the
offender is exonerated on merits then the criminal
prosecution also comes to an inevitable end. It was
also categorically found that if the exoneration in the
adjudication proceeding is on a technical ground and
not on merits, the prosecution could continue.
2
7. In Radheshyam Kejriwal the adjudication
proceedings and the criminal proceedings were under
the FERA, one for penalty; to recoup the economic
loss caused by the transaction contravening the
provisions of the statute and the other, prosecution; to
provide penal consequences as a deterrent measure.
The subject matter of the offence alleged in both
proceedings was the contravention of the provisions of
the statute through the transaction detected. When the
adjudication proceedings found the transaction
alleged to have not taken place, then it cuts at the root
of the prosecution too. Other decisions under the
CRLREV No. 398 of 2024 Page 22 of 32
FERA, where the two proceedings of adjudication and
prosecution were found to be independent; the
decision in one having no bearing on the other, were
noticed. So were the decisions under the Income Tax
Act, 19616 noticed, wherein, when the penalty
imposed on a presumed violation of the provisions of
the I.T. Act was set aside by the Tribunal; the last
fact-finding authority under the scheme of the I.T. Act,
for that reason alone the prosecution was found
2
redundant and quashed. Radheshyam Kejriwal
culled out the principles in the following manner:
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;
CRLREV No. 398 of 2024 Page 23 of 32
(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. [underlining by us for emphasis]
8. In Radheshyam Kejriwal² the very substratum
of the allegation of violation of the provisions of FERA
was found to be non-existent, an adjudication on
merits that the transaction alleged had not occurred.
In the instant case the Enquiry Report found that for
reason of the Officer in charge of the trap having not
CRLREV No. 398 of 2024 Page 24 of 32
been examined, the department was unable to
establish the charge, not at all an exoneration on
merits, but more a discharge for lack of diligence. The
ratio decidendi of that case cannot be extended to
every situation where a statute provides for a civil
liability and a criminal liability, in which event Courts
would be presuming what logically follows from the
finding, without any application on the facts.
9. In a disciplinary enquiry the employer satisfies
itself as to whether the misconduct alleged is proved
and if proved, decides on the proportionate
punishment that should be imposed; both of which are
in the exclusive domain of the employer, to be
determined on the standard of preponderance of
probabilities. In a criminal prosecution launched what
assumes significance is the criminality of the act
complained of or detected which has to be proved
beyond reasonable doubt. Both are independent of
each other not only for reason of the nature of the
proceedings and the standard of proof, but also for
reason of the adjudication being carried on by two
different entities, regulated by a different set of rules
and more importantly decided on the basis of the
evidence led in the independent proceedings. If
evidence is not led properly in one case, it cannot
govern the decision in the other case where evidence
is led separately and independently.
CRLREV No. 398 of 2024 Page 25 of 32
10. No doubt, the principles in Radheshyam
2
Kejriwal are applicable in a disciplinary inquiry,
which was the specific question considered in Ajay
Kumar Tyagi³ ; interestingly by the very same Hon'ble
Judge who authored the majority judgment in
Radheshyam Kejriwal². True, the earlier decision was
not noticed in the latter decision; according to us with
just cause since there were distinctions on facts.
11. Ajay Kumar Tyagi³ was a case in which a
successful trap was laid and there was exoneration in
the enquiry conducted without a final order by the
Disciplinary Authority. Therein the Disciplinary
Authority had not passed an order, in deference to the
pending criminal prosecution, which action of
deferment was unsuccessfully challenged in a writ
petition by the delinquent. Then a further writ petition
was filed challenging the continuance of the criminal
prosecution on the ground of exoneration in the
Enquiry Report, which stood allowed. The
Disciplinary Authority then passed an order
exonerating the delinquent, subject to a challenge to
the quashing of the criminal proceedings. In the SLP
filed against the order of quashing there was a
reference to a larger Bench noting the divergence of
opinion with regard to the quashing of a prosecution
based on exoneration in a disciplinary proceeding.
Even before answering the reference the larger Bench
found the quashing to be wrong insofar as the
CRLREV No. 398 of 2024 Page 26 of 32
Disciplinary Authority having power to differ from the
findings in the report of enquiry and the High Court,
in that case having upheld the action of the
Disciplinary Authority, keeping in abeyance the final
order. We pause here to notice that herein the
Disciplinary Authority passed an order concurring
with the findings in the Enquiry Report on 08.07.2024,
produced as Annexure R-1, with a rider that the order
is subject to the proceedings in the criminal case, the
consequences of which would necessarily follow.
12. The reference too was answered in Ajay Kumar
Tyagi³ . A two-Judge Bench decision of this Court in
P.S. Rajya v. State of Bihar was referred to wherein
the criminal prosecution was quashed when the
departmental proceedings concluded in exoneration.
In P.S. Rajya¹ , the allegation was of possession of
assets disproportionate to the source of income. The
Central Vigilance Commission dealt with the charge
and in its elaborate report concluded that the
valuation report on which CBI placed reliance is of
doubtful nature. The Court on facts found that the
value given as a base for the chargesheet was not the
value given in the reports subsequently given by the
valuers. The decision in P.S. Rajya¹ relying on State
of Haryana v. Bhajan Lal ; the water shed decision in
invocation of the inherent powers under Section 482 of
the Code of Criminal Procedure, 1973 for quashing
criminal prosecution, held that the prosecution in that
CRLREV No. 398 of 2024 Page 27 of 32
case should be quashed for more than one reason as
laid down in Bhajan Lal. Ajay Kumar Tyagi
categorically held that the quashing of criminal
proceedings in P.S. Rajya¹ was not merely on account
of the exoneration in the disciplinary proceedings.
Referring to a number of decisions, it was held so in
paragraphs 24 & 25 which are extracted hereunder:
“ 24. Therefore, in our opinion, the High Court
quashed the prosecution on total misreading of
the judgment in P.S. Rajya case (1996) 9 SCC
1. In fact, there are precedents, to which we
have referred to above, that 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 a
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 in 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
CRLREV No. 398 of 2024 Page 28 of 32
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."
13. We are of the opinion that in the present case the
distinction as brought out in Ajay Kumar Tyagi³
squarely applies and the ratio decidendi therein is not
regulated by the ratio of the earlier judgment in
Radheshyam Kejriwal . In Radheshyam Kejriwal , the
adjudication proceedings and the prosecution were
both by the very same entity, the Enforcement
Directorate under the FERA. In Ajay Kumar Tyagi³ ,
the allegation was of a demand and acceptance of
bribe in which a trap was laid, and the prosecution
was commenced and continued by the ACB while the
departmental proceedings were by the Delhi Jal
Board under which the delinquent employee worked.
Identical is the fact in this case where the ACB laid
the trap, commenced and continued the criminal
proceedings, at the behest of the appellant, while the
department carried on with the enquiry. The findings
in the enquiry report also do not persuade us to quash
the criminal proceedings as we would presently
notice. ”
19. On the principles of law as stated hereinabove
“
and also on the peculiar facts coming out from the
above case, we are not convinced that this is a fit case
where the criminal proceedings can be quashed on the
CRLREV No. 398 of 2024 Page 29 of 32
exoneration of the delinquent employee in a
departmental enquiry. We find the decision in Ajay
Kumar Tyagi³ to be squarely applicable. The appeal
stands allowed permitting the continuation of criminal
proceedings. We make it clear that since the
disciplinary authority has accepted the enquiry report,
there cannot be reopening of the same based on the
findings hereinabove; but a conviction in the criminal
case would bring in consequences as mandated by
rules regulating the service, specifically reserved in
the order of the disciplinary authority,Annexure R-1. ”
ANALYSIS AND CONCLUSION
10. The scope of a revision under Section 397 and 401 of the
Cr.P.C. and an Appeal under Section 389 of the Cr.P.C are vastly
Mahendra Maharana
different. In the case of (supra), while
hearing the Appeal against conviction of the Appellant therein, this
Court found discrepancies in the evidence of witnesses regarding
recovery of tainted money from his hands and defects while
obtaining sanction. The contentions of the learned counsel
regarding the evidence of witnesses can therefore be considered by
the learned trial Court after evidence is recorded and also by this
Court in case of any appeal being filed against the conviction if any
.
CRLREV No. 398 of 2024 Page 30 of 32
11. After going through the statements of the witnesses in the
case diary, it prima facie appears that demand had been made by
the petitioner along with the co accused. The amount was informed
to the complainant by the peon after consulting with the petitioner
. The bribe in the shape of tainted notes may not have been
received by the petitioner, but they were allegedly seized from
under the table cloth of his table where they had been placed by the
co accused . So handwash of the petitioner was not taken as he had
not handled the money. Hand wash of the co- accused who
received the tainted notes on his behalf, turned pink. The petitioner
may not have received the notes, but had demanded the amount and
was aware that the bribe had been paid and kept under the cover of
his table. This is not normal behaviour. An officer would not
permit any money to be placed on his table, if he has not demanded
the same or if the money was not meant for him. In view of the
allegation that the petitioner had demanded illegal gratification in
connivance with the co accused , his peon , recovery of the amount
of Rs 2,000/- from under the table cloth of his table and the conduct
of the petitioner and the co accused , gives rise to a strong
suspicion that he along with the co accused have committed the
offences under Section Section 13(1)(d), 7 and 12 of the PC Act,
CRLREV No. 398 of 2024 Page 31 of 32
which is sufficient to frame charge against him . Hence the learned
trial court has rightly rejected application of the petitioner filed for
discharging him.
12. In view of the above discussion, I am not satisfied that
the order 03.04.2024 passed by the learned Special Judge
(Vigilance), Cuttack in T.R. No.25 of 2018, rejecting the
application filed by the petitioner for discharge, calls for any
interference.
13. The Criminal Revision is accordingly dismissed.
………………………
(Savitri Ratho)
Judge
O rissa High Court, Cuttack.
th
The 14 May 2026 .
S.K. Behera, Senior Stenographer./ RKS
Signature Not Verified
Digitally Signed
Signed by: RANJAN KUMAR SETHI
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 05-Jun-2026 21:21:02
CRLREV No. 398 of 2024 Page 32 of 32