Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4664 of 2011 ====================================================== Dilip Kumar Jha, S/O Sri Munishwar Jha, R/O Flat No.203,, Swadha Apartment, Mohalla- Ashiana, P. S. Rajiv Nagar, Distt-Patna Versus .... .... Petitioner. 1. The State of Bihar 2. The Chief Secretary, Bihar, Patna 3. The Principal Secretary, Home (Police) Department Bihar, Patna 4. The Director General of Police, Bihar, Patna 5. The Inspector General of Police (Head Quarter) Bihar, Patna 6. Deputy Inspector General of Police, Champaran Range, Bettiah-Cum- Conducting Officer 7. Special Secretary, Home (Police) Department Govt. of Bihar, Patna 8. The Chairman, Bihar Public Service Commission Bailey Road, Patna .... .... Respondents. ====================================================== Appearance : For the Petitioner/s : Mr. Prafull Chandra Jha For the Respondent/s : Mr. Anjani Kumar, Sr. Adv., AAG-10 Mr. AC to AAG-10. ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 10 31-10-2013 Heard learned counsel for the petitioner and the State. 2. The petitioner was appointed as Dy.S.P. in the year 1999 and was posted in Bettiah District under Training as a Probationer. Prayer is for quashing the Resolution contained in Memo no. 2/M2-709/06 Home (Police) 10248 dated 21.12.2010 issued under the signature of the Special Secretary, Home (Police) Department, Government of Bihar, Patna whereby he has been partly held guilty of charge no.1, 2 and 4 and fully guilty of charge no.3 in the departmental proceeding and was awarded a punishment of stoppage of three increments with cumulative effect 2
Legal Reasoning
Patna High Court CWJC No.4664 of 2011 (10) dt.31-10-2013 2 / 7 and stoppage of promotion for a period of three years from the date it became due. 3. The claim of the petitioner is founded on the ground that his conduct was bonafide and the error if any at the best could be one of misappreciation of law. 4. The facts of the case in short is that the Officer-in- charge, Bettiah Town Police Station, namely, Shambhu Nath Jha along with other police personnel conducted a raid in Shere Panjab Lodge at Mina Bazar on receipt of secret information that some criminals are hiding in one of the rooms of the said lodge. In course of raid two girls were also found in the rooms of the lodge, in suspicious circumstance. The girls disclosed their names as Kavita @ Mira, aged 14 years and Shoba Mini, aged 25 years. They stated that Manager of the lodge, namely, Munna Singh and Md. Bahab have called them in the hotel and has fixed a rate of Rs.500/- per night. On enquiry, it transpired that Kavita @ Mira is resident of Nepal, whereas Shobha is resident of Bagha. They disclosed that Md. Bahab committed sexual intercourse with Kavita @ Mira and similarly, the Manager Munna Singh had a swipe with Shobha @ Mini. They further disclosed that they are in business of flesh trade for earning their livelihood. Kavita revealed that in the beginning, she was first brought to Bettiah on pretext of 3 Patna High Court CWJC No.4664 of 2011 (10) dt.31-10-2013 3 / 7 being taken to fair (Mela). However, she fell prey to sexual annihilation. The officer-in-charge, Bettiah Town police station on his self-statement instituted a case under Sections 3, 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 against both the girls, 6 named and 3 to 4 unnamed accused. 5. The petitioner was entrusted with the investigation. In course of investigation, the girls admitted of indulging in flesh trade. The petitioner after investigation submitted charge-sheet in the case under Immoral Traffic Act. The investigation was supervised by the superintendent of police, who duly approved it in his supervision note. 6. Later on, a complaint was received in the police department that the investigating officer (petitioner) and some others have committed irregularities in the investigation in as much as a minor has also been booked under the Immoral Traffic Act. After preliminary enquiry, charges were framed against petitioner. The charges are as follows: (i) While the petitioner was posted as Deputy Superintendent of Police, West Champaran, he submitted charge sheet against the victim Meera @ Kavita Kumari, aged about 14 years and Sobha under Immoral Traffic (Prevention) Act, 1956, which is against the very provisions of the Act. 4 Patna High Court CWJC No.4664 of 2011 (10) dt.31-10-2013 4 / 7 (ii) Neither the statement of the victim girl was recorded under Section 164 Cr.P.C. nor Section 376 of the Indian Penal Code was added to the F.I.R. (iii) The petitioner did not send undergarments of victims for forensic examination, and (iv) No separate case was registered under Section 376 of the Indian Penal Code. 7. The petitioner submitted his show-cause reply. The conducting Officer found the petitioner, partly guilty of charge nos.1, 2 and 4 and fully guilty under charge no.3. The enquiry report was forwarded to the disciplinary authority, namely, the Government for appropriate action. After issuance of second show-cause and after considering the reply of the petitioner, a punishment of stoppage of three increments with cumulative effect and stoppage of promotion for a period of three years from the date it became due was inflicted vide order dated 21.12.2010 (Annexure-17). 8. The petitioner pleads innocence and submits that he did not commit any act of omission or commission unbecoming of an Investigating officer or a police. Further, there has been no dereliction of duty. He submitted charge-sheet as per his understanding of the provisions of the Immoral Traffic 5 Patna High Court CWJC No.4664 of 2011 (10) dt.31-10-2013 5 / 7 (Prevention) Act, 1956. He submits that Section 7 of the Immoral Traffic (Prevention) Act, 1956 states that any person, who carries on prostitution and the person with whom such prostitution is carried on, in any premises, shall be punishable with imprisonment for a term which may extent to three months. He next submits that investigation was supervised by the Superintendent of Police, Bettiah, who too endorsed it. He submits that as charge-sheet was submitted against both the girls, she was not examined under Section 164 of Cr.P.C. As the victims (both the girls) admitted of taking to flesh trade for earning a living, he did not send the inner garments of the minor for Forensic examination, as sexual intercourse was not denied. For similar reasons he did not add Section 376 of the Indian Penal Code. 9. On the other hand, counsel for the State submits that a minor cannot be booked under the provisions of the Immoral Traffic (Prevention) Act, 1956. There is no lacuna in the departmental enquiry. No punishment is prescribed for a Minor victim. On these basis, the learned State counsel defends the enquiry report and order of punishment. 10. I have heard the counsel for the parties. I find that petitioner was posted at Bettiah as a Probationer. This would be amongst the first of the few investigations that he took over when 6 Patna High Court CWJC No.4664 of 2011 (10) dt.31-10-2013 6 / 7 he was assigned the task of investigation of Bettiah Town P.S. case no.412 of 2000, which was already registered under Immoral Traffic Act against the minor even. The main charges are that he even submitted charge-sheet against minor under Immoral Traffic Act, and did not add Section 376 of the I.P.C. and did not send either the inner garments for Forensic examination or recorded statement of the girls under Section 164 of Cr.P.C. 11. The defence of the petitioner is that as per his understanding of the provisions, he submitted charge-sheet against two girls including the minor girls as she admitted of flesh trade. I find that there is no allegation that petitioner acted with ulterior considerations or was biased against the minor or submitted charge-sheet in connivance or at behest of others. Furthermore, there is no whisper of moral turpitude or dereliction of duty. It appears that the petitioner at best misread the provisions of the Immoral Traffic Act and misinterpreted its scope and extent. As the petitioner in his wisdom found the case one under Immoral Traffic (Prevention) Act, 1956 even against a minor, he did not send her clothes to Scientific Laboratory and the girl to the court for recording statement 164 Cr.P.C., as generally the statement of accused is not recorded under Section 164 of Cr.P.C. The petitioner may be wrong, so far as interpretation of provisions or 7 Patna High Court CWJC No.4664 of 2011 (10) dt.31-10-2013 7 / 7 misreading of law is concerned, but there is no material to add any motive to the charges. 12. However, I equally do not find any infirmity in proceedings. Had the petitioner been in service for some years, and had some more experience, the matter would have been different, but as he was still a probationer conducting the very first few of the investigations, the punishment inflicted is excessive and disproportionate in the circumstances. As such, I set aside the order of punishment and remit the same to the Government for reconsidering the quantum of punishment in the light of discussions made above. 13. This application is thus allowed to the extent mentioned above. Uday/- (Samarendra Pratap Singh, J)