====================================================== Sajjan Kumar Choudhary son of Chulhai Choudhary Resident of vill. Dumaria Bujurg, Police v. Secretary, Department of Home
Case Details
Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17483 of 2008 ====================================================== Sajjan Kumar Choudhary son of Chulhai Choudhary Resident of vill. Dumaria Bujurg, Police Station-Parbatta District-Khagaria, terminated constable nol.59. .... .... Petitioner/s 1. The State Of Bihar through Commissioner-cum Versus Secretary, Department of Home(Police), Government Of Bihar, Patna. 2. The Director General-cum-Inspector General of Police, Bihar, Patna. 3. The Deputy Inspector General of Police, Eastern Range, Bhagalpur, Distrtict-Bhagalpur 4. The Superintendent of Police, Bhagalpur, District-Bhagalpur 5. The Dy. S. P. (Law & Order) Bhagalpur District-Bhagalpur. 6. The Dy. S. P. (Mu) IInd-cum-the then Conducting Officer, Bhgalpur, District-Bhagalpur 7. The Dy. S. P. (Mu), ist-cum-Conducting Officer, Bhagalpur, District-Bhagalpur. .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.17860 of 2008 ====================================================== Ram Kishore Singh son of Chandra Kant Singh, resident Of vill.-Ibrahimpur, P.S.-Khodabanpur, Distt.-Begusarai Dismissed Constable No.112. .... .... Petitioner/s 1. The State Of Bihar through Commissioner-cum- Versus Secretary, Department of Home(Police), Government Of Bihar, Patna. 2. The Director General-cum-Inspector General of Police, Bihar, Patna. 3. The Deputy Inspector General of Police, Eastern Range, Bhagalpur, Distt.-Bhagalpur. 4. The Superintendent of Police, Bhagalpur, Distt.-Bhagalpur. 5. The Dy. S.P. (Law and Order) Bhagalpur, Distt. Bhagalpur. 6. The Dy. S. P. (Mu) iind-cum- the then Conducting Officer, Bhagalpur, District-Bhagalpur. 7. The Dy. S. P. (Mu), Ist-cum- Conducting Officer, Bhagalpur, Distt.-Bhagalpur. .... .... Respondent/s ====================================================== Appearance : (In CWJC No.17483 of 2008)
Facts
Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 2
Legal Reasoning
this Court in the case of K. R. S. Naddar Vrs. Union of India and ors. reported in 1994(1) PLJR 823 and further in support of their contention regarding onus of proving the charges against the petitioners upon the authorities they have relied upon a decision of a Bench of this Court in the case of Kumar Upendra Singh Parimar Vrs. B. S. Co-Opt Land Dev Bank Ltd. and Ors. Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 7 reported in 2000(3) PLJR 10. Further more, in support of their claim that in case of acquittal in a criminal case no such punishment can be granted, learned counsels for the petitioners have relied upon the judgment of a Bench of this Court in the case of Ganesh Prasad Singh Vrs. The State of Bihar & ors. reported in 1993(1) PLJR 706. 10. On the other hand, learned counsel for the respondents opposes the submission of the learned counsels for the petitioners and states that criteria for considering a criminal trial as well as a departmental proceeding are completely different because police force being a disciplined force has to deal with such matters severely whereas in a criminal trial decision is taken strictly on the basis of evidence proving the guilt of the accused. Learned counsel for the respondents also submits that the report of the Deputy Superintendent of Police is self explanatory and the petitioners could not prove their alibi of being absent from the place of occurrence although it was fully proved that all the three accused persons along with the deceased had proceeded together. Learned counsel for the respondents claims that due procedure of law was followed after the report of Deputy Superintendent of Police, orders of suspension were passed and memo of charges were submitted whereafter enquiry was held in accordance with Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 8 law and the copy of the same was sent to the petitioners and only thereafter the orders of termination were passed against the petitioners. 11. Learned counsel for the respondents further submitted that from the appellate orders it is apparent that it has considered the points raised by the petitioners and also the facts and circumstances of the respective cases and only thereafter the appellate order was passed. Similarly, the authority deciding the memorials had also considered the entire facts and circumstances and had also considered the order of acquittal passed by the trial court in favour of the petitioners and only thereafter it has rejected the memorials on valid grounds. Hence, learned counsel for the
Arguments
For the Petitioner/s : Md. Mustaque Alam, Advocate Mr. R. S. Chaudhary, Advocate For the Respondent/s : Mr. D. K. Sinha,(AAG2) Mr. S. K. Singh, A.C. to AAG2 (In CWJC No.17860 of 2008) For the Petitioner/s : Mr. Siya Ram Shahi, Advocate Mr. R. S. Chaudhary, Advocate For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE S.N. HUSSAIN ORAL ORDER 7 28-01-2013 Both the aforesaid writ petitions have been heard together and are being decided by this common order because both of them arise out of the same occurrence, the allegation against the petitioners of both the cases and the findings in the impugned orders in case of both the petitioners are similar and the relief claimed by them are same. In both the writ petitions the dates of the report of the investigating officer, namely, Deputy Superintendent of Police, Bhagalpur, the dates of order of suspension of the Superintendent of Police, Bhagalpur, the date of memo of charges, the date of orders of their termination, the date of rejection of their appeals and the date of rejection of their memorials are the same and they have been acquitted by the trial court by the same order dated 3.4.2007. 2. In both the abovementioned writ petitions, the petitioners have challenged their orders of termination dated 24.1.2004, the orders passed in their appeals dated 16.11.2004 and the orders passed in their memorials dated 4.9.2008 and have Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 3 prayed to direct the respondent-authorities to reinstate them back in service and pay them full salary and other admissible allowances for the period they were kept out of service from the date of their dismissals. 3. Both the petitioners were in police service and were posted on deputation in Belari Police Camp as constable Nos. 59 and 112 under the Barh Police Station and they were put under suspension on 18.6.2002 by the Superintendent of Police, Bhagalpur, on the report of the Deputy Superintendent of Police, Law and Order, Bhagalpur, dated 17.6.2002 (Annexure-1), in connection with the murder of Assistant Sub Inspector, namely, Ramagya Choudhary, in the night between 6th and 7th June, 2002 in which three persons including the aforesaid two writ petitioners were implicated and Tarapur P. S. Case No. 70 of 2002 was initiated for offence punishable under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act in which cognizance was taken on 3.9.2004 and the matter was committed to sessions vide Sessions Case No. 916 of 2004 initiated against the petitioners. However, one of the three accused persons, namely, Sub Inspector, Nawal Kishore Singh admitted his guilt. 4. The departmental proceeding having been initiated against the aforesaid two petitioners and memo of charges having Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 4 been submitted against them on 23.6.2002 (Annexure-2), an enquiry was held by the Enquiry Officer who submitted his report on 29.11.2012 (Annexure-6), whereafter orders of termination were passed against the petitioners by the Superintendent of Police, Bhagalpur, on 24.1.2004 (Annexure-8). Against their respective orders of termination the petitioners filed separate appeals before the Deputy Inspector General of Police, Bhagalpur, who dismissed them vide orders dated 16.11.2004 (Annexure-10). Petitioners separate memorials filed before the Director General of Police, Bihar, were also rejected on 24.9.2008 ( Annexures-19 and 14 respectively). 5. However, in the meantime, the Sessions Case against the petitioners bearing Sessions Case No. 916 of 2004 was decided by the learned Additional District and Sessions Judge, Fast Track Court-III, Munger, vide judgment dated 3.4.2007 (Annexures-16 and 12 respectively) in which they were found and held not guilty of the aforesaid offence punishable under Sections 302/34 of the Indian Penal Code and section 27 of the Arms Act and were acquitted. The judgment in the Sessions Case was considered by the authority deciding the memorials of the petitioners on 24.9.2008 mentioned above. Thereafter, the petitioners filed the instant two writ petitions for the aforesaid relief. Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 5 6. The points raised by the learned counsels for the petitioners throughout in their appeals, memorials and before this Court are that the report of the Deputy Superintendent of Police, Bhagalpur, dated 17.6.2002 was made merely on the basis of suspicion and there was absolute dearth of any concrete material but inspite of that memo of charges were framed only on the basis of the said report. It is further stated that in the enquiry proceeding the said report of the Deputy Superintendent of Police, Bhagalpur, was the sole material on the basis of which the Enquiry Officer had submitted his report, although to prove his report the Deputy Superintendent of Police was not examined and only two witnesses deposed before the Enquiry Officer to prove the report and not the allegations therein against the petitioners and apart from that there was no material at all to implicate the petitioners in the alleged occurrence, but inspite of that the Enquiry Officer submitted his report against the petitioners only on the basis of suspicion and the report was accepted and the petitioners were granted harshest punishment of termination of service by the Disciplinary Authority on the basis of the report of 2004. 7. Learned counsel for the petitioners also submits that all those points were taken in the memorandum of appeal by the petitioners (Annexure-9) and the well settled principles of law was Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 6 already there that suspicion cannot take place of evidence but inspite of that the petitioners’ appeals were rejected holding that the petitioners could not prove themselves innocent although it was the prosecution which had the onus of proving the petitioners’ guilty, in which they have failed. 8. Learned counsel for the petitioners argued that the authority deciding the memorials of the petitioners was fully aware of the entire situation from the pleadings of the petitioners and the order of petitioners’ acquittal in the Sessions Case was also before him as is apparent from his orders themselves but inspite of that the memorials of the petitioners were rejected. Hence, no option was left with the petitioners but to move this Court for redressal of their grievances. 9. Learned counsels for the petitioners in support of their contention that suspicion howsoever strong it may be cannot take place of evidence, have relied upon a decision of a Bench of
Decision
respondents argues that there is no merit in the writ petitions and they are fit to be dismissed. 12. Considering all the submissions made by the learned counsels for the parties and the materials on records, it is quite apparent that the report of the Deputy Superintendent of Police, Bhagalpur, dated 17.6.2002 is the sheet anchor of the prosecution case and that was the sole document produced by the authorities in the enquiry proceeding but surprisingly enough the Deputy Superintendent of Police did not present himself to prove the same and the allegations made therein before the conducting Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 9 authority, rather two other officers came to prove only the filing of the report by the aforesaid Deputy Superintendent of Police. From a bare perusal it transpires that they did not prove the allegations made therein against the petitioners. 13. Further more, there being no other material to implicate the petitioners with respect to the alleged occurrence, the said report of the Deputy Superintendent of Police cannot be said to be anything more than suspicion as is very clear from the wordings of the report itself, and hence the enquiry officer had also expressed merely his suspicion against the petitioners in his reports. Hence, the orders of petitioners’ termination clearly appear to be only on the basis of suspicion and not on the basis of any concrete material against the petitioners. Law is well settled that suspicion howsoever strong it may be cannot take place of the concrete evidence and hence, the punishment of termination of petitioners’ services were rightly challenged by the petitioners in the writ petitions. 14. From a bare reading of the memorandum of appeals(Annexure-9) it is quite apparent that petitioners have raised specific points against the orders of their termination whereas from bare perusal of the appellate orders it transpires that those points have not been appropriately considered by the Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 10 appellate authority in the light of the settled principles of law rather many important points raised by the petitioners have been completely ignored. 15. From the appellate orders it is also apparent that the appeals of the petitioners were rejected on the ground that the petitioners could not disprove the allegations levelled against them and they have failed to prove their alibi or absence from the place of occurrence. The law is well settled that the question of alibi could have come to play only if there was some substantial evidence to prove the petitioners’ guilt but in absence of any such material there was no occasion for the authorities to reject the petitioners appeal merely on the ground that he was unable to prove his alibi specially when the law is well settled that it is for the prosecution to prove the allegation against the alleged accused. 16. So far as the orders of the authorities rejecting the petitioners memorials are concerned, it has failed to realize the aforesaid basic principles of law and has also ignored the effect of acquittal in the Sessions Case on the departmental proceeding and the subsequent orders specially when the Sessions Court while acquitting the petitioners and holding them not guilty had specifically stated that “ There is no any eye-witness of the occurrence and witnesses who have supported the prosecution do Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 11 not appear to be trustworthy in the light of the statement of I.O.(P.W.8). Even if their statement is admitted none of them appear to have supported the fact that the accused Sajjan Kumar Choudhary and Ramkishore Singh were found committing the offence or were found in any of the conspiracy having common intention to commit the crime.” 17. In the aforesaid facts and circumstances, this Court has no option left but to allow these writ petitions by quashing orders dated 16.11.2004 and 24.9.2008 passed against the petitioners in their appeals and memorials and the matter is remitted to the appellate authority, namely, Deputy Inspector General of Police, Bhagalpur, who shall consider the appeals of the petitioners afresh in the light of the aforesaid observations as well as in the light of the settled principles of law after giving opportunity to both the parties to support their pleadings and produce materials. If the claim of the petitioners are affirmed and the orders of the disciplinary authority are set aside, the appellate authority shall also consider reinstating the petitioners back in service with full salary and other admissible allowances for the period he was kept out of service from the date of their dismissals. 18. Learned counsel for the parties are directed to appear before the appellate authority, i.e. , Deputy Inspector Patna High Court CWJC No.17483 of 2008 (7) dt.28-01-2013 12 General of Police, Bhagalpur, along with a copy of this order as well as copy of their memorandum of appeals within a period of four weeks from today whereafter the appellate authority shall provide an opportunity to the petitioners to place their materials in support of their pleadings and thereafter the appellate authority shall decide the matters expeditiously preferably within three months from the date of filing of a copy of this order. (S.N. Hussain, J) sudip/-