S. Prataban v. The Superintendent of Police, Madurai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.38031 OF 2006(O.A.NO.7230 OF 1998)S.Prataban.. Petitioner Vs.1.The Superintendent of Police, Madurai.2.DIG of Police, Madurai Range.. RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records of the firstrespondent in D.O.No.262/98, F1/PR No.57/97, dated 5.3.98 andconfirmed by the second respondent in his C.No.A6/AP24/98, dated30.7.98 and to quash the same and to direct the respondents toreinstate the applicant into service with all consequential servicemonetary benefits and to grant him such other further reliefs. For Petitioner : Mr.K.Venkatramani, SC for Mr.M.MuthappanFor Respondents : Mr.R.Neelakandan, GA - - - - ORDERHeard both sides.2.The petitioner was employed as Grade II Police Constableand was attached to the Chekkurani Police Station, MaduraiDistrict. He filed OA No.7230 of 1998, seeking to challenge theorder, dated 5.3.1998 passed by the first respondent, theSuperintendent of Police, Madurai, which was confirmed by the orderof the second respondent, dated 30.7.1998. 3.The petitioner was given a notice, dated 30.1.1998 askinghim to show cause as to why he should not be compulsorily retiredfrom service. The reason for the show cause notice was that thepetitioner was involved in Crime No.201/96 filed under Sections147, 148, 323, 324 r/w 506(2) IPC. He was placed under suspensionin involving in a criminal offence. He was convicted by theJudicial Magistrate, Thirumangalam for offences under Sections 148and 324 IPC to undergo three months simple imprisonment inC.C.No.136/97. 4.The petitioner gave his explanation, dated 2.3.1998,stating that he had filed an appeal before the Principal SessionsJudge, Madurai in Criminal Appeal No.120/97 against the conviction https://hcservices.ecourts.gov.in/hcservices/ and the learned District Judge in Crl.M.P.No.6787 of 1997 suspendedthe sentence, after executing the bond. Since the conviction wassuspended, he requested for dropping further action. Hisexplanation was rejected by the first respondent, stating that onlywhen there is final acquittal, his stand can be accepted andtherefore, he was compulsorily retired from service by an order,dated 5.3.1998.5.The petitioner filed an appeal before the appellateauthority. The appellate authority, i.e. the second respondentrejected the appeal, by an order, dated 30.7.1998. The petitionerchallenged the said order in O.A.No.7230 of 1998 before theTribunal. The Tribunal, by an interim order, dated 07.09.1998,granted stay of punishment. This was on the ground that in the showcause notice, there was no discussion regarding the facts leadingto the conviction in the criminal case and that was in violation ofRule 3(c)(i)(1) of the Tamil Nadu Police Subordinate Services(Discipline and Appeal) Rules. The said interim order came to becontinued until further orders by the Tribunal.6.On notice from the Tribunal, the respondents have filed areply affidavit, dated 5.12.1998. In the reply affidavit, it wasstated that the show cause notice issued was in accordance with therules and that the appellate authority had also considered allrelevant facts while rejecting his appeal. In view of the abolitionof the Tribunal, the matter stood transferred to this court and wasrenumbered as W.P.No.38031 of 2006.7.The learned Senior Counsel for the petitioner stated thatsubsequent to the filing of the OA, the criminal appeal inC.A.No.120 of 1997 was finally allowed in favour of the petitionerby the Additional District and Sessions Judge, Fast Track Court-3,Madurai, by his judgment, dated 31.1.2002. In the criminal case,the petitioner was arrayed as accused No.1 and he was also thefirst appellant before the Sessions Court. The Sessions Court,while allowing the appeal, in paragraph 7 had held as follows:"7.For the foregoing reasons, the Appealis partly allowed. The offences compoundablewith which A1, A3, A6, A7 and A8 arecompoundable and they are acquitted and theyare set at liberty and ordered to be releasedforthwith. As far as A2 and A4 are concerned,the conviction for offence u/s.326 I.P.C. isconfirmed. But the sentences are modified, thatboth of them are sentenced for Imprisonmenttill rising of the Court and to pay a fine ofRs.10,000/- (Rupees Ten thousand only) each, indefault to undergo Simple Imprisonment of OneYear each for the offence u/s.326 I.P.C. Thefine amount to be paid by A2 is ordered to begiven to P.W.4 as compensation. The fine amountto be paid by A4 is ordered to be given toP.W.3 as compensation u/s.357 Cr.P.C. (A2,Rs.10,000/- A4-Rs.10,000/- Total Rs.20,000)."(Emphasis added) https://hcservices.ecourts.gov.in/hcservices/

8.It must be noted that Section 320 of the Code of CriminalProcedure, 1973 provides for compounding of offences. Though thepetitioner was initially convicted under Section 326 IPC, theappellate court had altered the offence as one under Section 325IPC. Therefore, in terms of section 320(2) Cr.P.C., the chargeunder Section 325 IPC can be compounded by a person to whom thehurt was caused and with the permission of the Court. When oncecompoundable offence is committed, then Section 320(8) shall comeinto operation and it reads as follows:"320(8):The composition of an offenceunder this section shall have the effect of anacquittal of the accused with whom the offencehas been compounded."9.Therefore, the learned Senior Counsel stated that sincethe petitioner is no longer an offender, the respondents must bedirected to re-consider their stand in the light of the subsequentacquittal. 10.While there is no legal infirmity in the impugned orderpassed by the respondents, in the light of the subsequent events,the respondents are to be directed to consider the case of thepetitioner afresh. Initially, the respondents have taken advantageof the conviction by the trial court and even after noting thependency of the appeal, the punishment was imposed. Such decisionwas in accordance with the decision of the Supreme Court in DeputyDirector of Collegiate Education (Administration), Madras Vs.S.Nagoor Meera reported in 1995 (3) SCC 377. But the petitionernotwithstanding the legal action taken by the respondents, hadobtained an interim order and had continued in service.11.Therefore, in the light of the subsequent acquittal, therespondents will have to consider the case of the petitioner inaccordance with law. In the present case, the petitioner wassuspended initially in connection with PR No.57/97. In view of thesubsequent conviction, the disciplinary action contemplated was notproceeded with. Therefore, it is for the respondents, to take anappropriate action. But the respondents cannot hold the convictionby the trial court any more against the petitioner in view of theSessions' Court judgment, which acquitted the petitioner in termsof Section 320(8) of Cr.P.C. The respondents are directed to takean appropriate decision in accordance with law within a period oftwo months from the date of receipt of the copy of this order andcommunicate the result to the petitioner. The writ petition isdisposed of accordingly. However, there will be no order as tocosts. vvk Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Superintendent of Police, Madurai.2.DIG of Police, Madurai Range.1CC to Mr.Ayngaraprabhu, Advocate (SR.55388)1CC to Government Pleader, High Court, Madras (SR.54242)PRE DELIVERY ORDER INW.P.NO.38031 OF 2006KS (CO)SS (27.10.2009)