High Court
Case Details
WP(C) 2594/2013 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN Heard Mr. S. S. Dey, learned counsel for the petitioner and Mr. B. C. Da s, learned senior counsel for Respondent Nos.1 and 2. Mr. R. K. Borah, learned G ovt. Advocate, Assam appears for Respondent Nos.3 and 4. By way of this writ petition, petitioner has challenged the orders dated 7.1.2013 and 18.3.2013 passed by the State Police Accountability Commission, As sam (Commission). By the first order dated 7.1.2013, the Commission besides issu ing other directions, had directed the Director General of Police(DGP), Assam to initiate departmental proceeding against the petitioner for the misconduct ment ioned in the order. The second order was passed by the Commission after the Poli ce Headquarters submitted its views on the directions issued, whereby the order dated 7.1.2013 has been made absolute. Petitioner is serving in the rank of Inspector of Police and is the Offi cer-in-Charge of Tinsukia Police Station.
Legal Reasoning
A complaint was lodged by Respondent No.5 before the Commission alleging police highhandedness and wrongful detention by personnel of Tinsukia Police St ation on 27.3.2012 at about 9:30 P.M. After examining the matter and also after obtaining the views of the affected person in a questionnaire form, the Commissi on passed the order dated 7.1.2013 directing Government of Assam as well DGP to initiate departmental action against the Superintendent of Police, Tinsukia. Di rection was also issued for registration of FIR against Respondent No.6 under Se ctions 342/166/217/218 IPC and to initiate disciplinary proceeding as well. The Commission further directed the DGP to initiate departmental proceeding against the petitioner. The Government of Assam as well as DGP were given liberty to sub mit their respective views and additional facts, if any, that may have a materia l bearing on the case within three weeks to enable the Commission to finalize it s view. Instead of submitting its views within the period specified, Assam Poli ce Headquarters sought for further time. Its views were finally submitted on 21. 2.2013. The views were examined by the Commission, which found that it was an at tempt to justify the action of the Superintendent of Police. Accordingly, consi dering all aspects of the matter, the Commission was of the opinion that it shou ld not review its order, which was made absolute.
Legal Reasoning
Mr. Dey, learned counsel for the petitioner submits that the complaint w as primarily against the respondent No.6. Since the Commission had directed depa rtmental action against the petitioner, he should not have been afforded a reaso nable opportunity of hearing in terms of Section 81 of the Assam Police Act,2007 . He has also referred to Section 82 of the said Act to contend that before comp letion of the enquiry and communication of its finding, the Commission is requir ed to give the DGP an opportunity to present his views and additional facts. He submits that as can be understood from the order of the Commission, lapse on th e part of the petitioner was his failure to produce the case diary before the Co mmission. He submits that the petitioner could not have produced the case diary since it was in the custody of the Criminal Court and his application for handin g over the case diary was turned down by the Court. Mr. R.K. Borah, learned Govt. Advocate, Assam submits on the basis of in structions that in terms of the direction of the Commission, Assam Police Headqu arters have issued show cause notice to the petitioner. Mr. B. C. Das, learned senior counsel appearing for the Commission submi ts that considering the objectives of the Assam Police Act, 2007, under which th e Police Commission has been set up, it is imperative for the Commission to ex amine cases of serious misconduct brought to its notice and issue necessary dire ction to the State as per mandate of the Police Act. He submits that the Commiss ion is basically a fact finding body and as and when the authorities would initi ate consequential action on the basis of such direction, the affected parties wi ll be entitled to procedural safeguards as provided under the law. He further su bmits that there is no violation of Sections 81 and 82 of the Act in the present case. Submissions made have been considered. Section 81 of the Police Act provides that if at the stage of an enquiry , the Commission considers it necessary to inquire into the conduct of any perso n and is of the opinion that the reputation of any person is likely to be effect ed by the enquiry, it will give a reasonable opportunity of being heard to the p erson in the enquiry and to produce evidence in his support. As per Section 82, in causing an enquiry by the Commission, it may after completion of the enquiry, communicate its finding to the DGP and to the State Government to register FIR and to initiate disciplinary action on the basis of such finding. As per proviso , the Commission before finalization of its opinion, in all such cases shall ask the DGP to place the departmental views and additional facts, if any. It furthe r provides that if any additional facts are placed before the Commission, which may have a material bearing on the case, it may review its finding. A perusal of the order dated 7.1.2013 shows that the petitioner was furn ished with a questionnaire, which he re-submitted after replying to the question s. The Commission examined the reply of the petitioner and held as follows :- (cid:28) The Commission heard Inspector Juga Kt. Bora, O/C Tinsukia P.S. and I/O S.I. C handan Milli. A questionnaire made out to the O/C. Who replied that he detailed a police staff for duty as per detailment register but could not furnish the nam e and particulars of the police personnel. It was also not written in the G.D. I n his reply he stated that the accused was taken into custody at 09:30 p.m. on 7 /03/2012 vide GDE No. 1403 and a case was registered at 10:30 p.m. on receiving the FIR from S.I. C.R. Gogoi vide No. 190/12 U/S.353/294/506 IPC. The case was e ndorsed to S.I. Chandan Milli for investigation. Aditya Mundhra was detained in connection with Case No. 190/12 and was sent to Civil Hospital Tinsukia on 27/03 /2012 at 10:05 P.M. for medical check-up. Inspector J. K. Bora, O/C. registered the case and supervised but no supervision report submitted to his superior. The OC was refrained from replying as to whether the period between taking Aditya M undhra to PS at 09:35 PM on 27.03.12 and his arrest at 10 AM on 28.03.2012 amoun ts to wrongful confinement. He served the arrest memo after Aditya Mundhra was a rrested having found him in the P.S. S.I. Chandan Milli stated that he was the I/O of Case No. 190/12 and he charge s heeted the case on 25/04/2012 vide C.S. No. 88/12. However, he disclosed that Ti nsukia P.S. Case No. 190/12 was registered by O/C Tinsukia P.S. on 27/03/2012 at 10:30 p.m. and endorsed to him for investigation. He arranged medical examinati on of Aditya Mundhra on 27/03/2012 at 10:05 P.M. and arrested him on 28/03/2012 at 10 A.M. The formalities of issuing arrest memo were done on 28/03/2012 at 10 A.M. at police station as the accuse was found in the P.S. He examined S.I. C.R. Buragohain who brought Aditya Mundhra to P.S. on 27/03/2012 at 09:30 P.M. On consideration of all the relevant records and statements, the Commission foun d the police action amounted to wrongful restrain and confinement to Aditya Mund hra, the complainant of SPAC Case No. 33/2012. (cid:29) The findings of the Commission are as under:- (cid:28)On consideration of all aspects of the matter, it is found as follows :- (a) The S.P. TinsukiaMr. P.P. Singh, IPS has endorsed his view of illegal ac tion of his subordinates-S.I. C.R. Buragohain, Inspector J.K. Bora and S. I. C handanMilli and disobeyed direction of law. The S.P. also framed an incorrect re corded and submitted a written report with intention to save S.I. C.R. Buragoha in, Inspector J.K. Bora, S.I. ChandanMilli from punishment. The S.P. has further disobeyed law with intent to cause injury to the victim of illegal police actio n- complainant AdityaMundra. (b) S.P. has also resorted to the strenuous method of concealing the illegal act of confinement of the complainant by taking plea of he being restrained by the Court order for not producing the relevant G.D.Es of Tinsukia P.S. and to ch oose not to appear before the Commission for clarification of the connected issu es. He has also been instrumental to non-appearance by the O/C Tinsukia P.S. bef ore the Commission at the first instance Grounds for his inability have differed in the correspondences to the Co (c) mmission for exemption to appear and not limiting to the temporary non-appearanc e, the S.P. has been instrumental to the Police. H Qrs’ communication with reque st to the Govt. to spare S.Ps from appearing before the Commission in flagrant d isobedience to the SPAC set up under the statute for Police Accountability to la w. (d) The S.P., Tinsukia, thus, appears to have abetted the illegal act of the S.I. C.R. Buragohain, O/C Inspector J.K. Bora and in the perfunctory investigat ion of the Case No.190/12 by S.I. Chandan Milli. The S.P. by his conduct in rela tion to the complaint has failed to demonstrate his duties, responsibilities as enumerated in the Assam Police Act Rule 47 and the connected duties and function under the provisions of Police Mannual Part II renders himself to be liable U/ s. 166/217/218 IPC for his shirking of responsibilities as head of the District Police. (e) His communication to the Police Headquarters as discussed above reveals an ominous design to over throw the reform and the generic change in the duties , functions and responsibilities of a District Superintendent of Police with ab solute integrity, honesty and diligence to his duties. The Commission viewed wit h concern that the SP, TinsukiaShri P.P. Singh, IPS has acted in an unbecoming m anner and conduct as District Superintendent of Police. He has abetted the unlaw ful act of his subordinate thereby involved himself in knowingly disobeying the lawful direction of the law thereby causing injury to person, disobeying the di rection of law to save person from legal punishment and in framing incorrect rec ord indicated in Sections 166/217/218 of the IPC. The Commission, in the set of circumstances is inclined to issue such direction to the Govt. of Assam as well as the DGP, Assam to initiate a departmental action against the S.P., Tinsukia. The Commission further directs the DGP, Assam to initiate steps for registering FIR against S.I. C.R. Buragohain U/s. 342/166/217/218 of the IPC and initiate D. P. in addition.The Commission also directs the DGP to initiate D.P. against Insp ector J.K.Bora of the Tinsukia Police Station for the misconduct mentioned above . The Govt. of Assam as well as the Director General of Police may submit their respective views and additional facts if any that may have a material bearing on the case within three weeks of the receipt of the order to ensure the Commissio n to finalize its opinion. (cid:29) As noticed above, the Police Headquarters submitted its views which were considered by the Commission by its order dated 18.3.2013 and it was held as fo llows :- (cid:28)The registration, investigation and returning the case in CS do not exo nerate the concerned police officials engaged in the entire process. It is found to have committed lapses constituting misconduct as defined in the Assam Police Act, 2007. In our order itself the issue was discussed at length. SI Chitta Ran jan Buragohain took Shri Aditya Mundra into custody at 9.45 P.M. but the person was arrested at 10:30 AM on the following day. Obviously the views in para 3 ove r looked the wrongful confinement of about 10 hours including the night in the police lock-up. The FIR itself does not disclose the offence U/s. 294 and 506 IP C. The Commission’s order is pregnant with all the connected issues along with obse rvations very clearly made out that Shri P.P. Singh, IPS, SP, Tinsukia disobeye d the law with an intent to cause injuries to the victim and with a view to pr otecting his subordinates. It is highly an arrogant view of the department that the observation of the Commission does not appear to be correct in spite of the fact that the Commission had to make long and continuous correspondences for arr iving at a factual report. Here note from the Police Headquarters to the Governm ent vide their letter No.APHQRS/SPAC/33/2012/13 dtd. 12.07.2012 for exempting al l SPs from appearance before the Commission and that SP, Tinsukia have been repe atedly called up by the Commission is a matter of record and exposes the attempt of the officer to keep the vital records like General Dairy away from the atten tion of the Commission. Obviously it was to protect the subordinate and to caus e injury to the victim. The law of the land amply indicates that Superintendent of a district cannot abs olve himself from the responsibility on day to day basis in respect of subordina te personnel and officials in the District Police. SP being a senior police offi cer is to perform duties assigned to him. The SP is main spring of the district police. Duties and functions of SP is indicated in the Police Act as well as in APM Part-II. The charter of duties and responsibilities are elaborately restated , which cannot be relegated to the subordinate police. He has the overall superi ntendence. His subordinate may fail but he cannot for the sake of the duties and responsibilities to the public. It is unfortunate that concerned police failed to take action for violation of the orders under section 144 Cr.P.C. How the pol ice can expect that a citizen would honour police who failed to honour a citizen . All things considered the Commission is of the opinion that it cannot review its order. The order is made absolute. (cid:29) In the circumstances of the case, I am of the view that there was no vio lation of either Section 81 or Section 82 of the Police Act by the Commission. Reasonable opportunity of hearing does not mean personal hearing in each and eve ry case. As noticed above, reply of the petitioner was sought for and considered by the Commission. Again, the views of the Police Headquarters were also consid ered. The Commission is headed by a retired High Court Judge and comprises of re tired IAS and IPS officers. It is statutorily mandated to ensure police accounta bility to law. In the present case, it had examined the matter in great detail a nd has arrived at the conclusion that the police action amounted to wrongful res train and confinement of the complainant, Respondent No. 5. Accordingly, the imp ugned directions have been issued. No prejudice is caused to the petitioner as h e will be provided with all procedural safeguards in the departmental proceeding . No case for interference is made out.
Decision
In view of above, this Court finds no merit in the writ petition, which is accordingly dismissed.