The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.1391 of 2019 K. Rajendra Swamy …. Petitioner Mr. B.S. Tripathy, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 03.04.2023 Order No 05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
persons. As prima facie evidence was made out against accused Lipu @ Amit Kumar Jee us 394 IPC, he submitted a report to SDJM, Cuttack to remand him in this case on 05.01.2010 as he was already in jail custody. Accused Lipu @ Amit Kumar Jee was accordingly remanded to judicial custody by SDJM, Cuttack on 11.01.2010. The statutory limitation period of 120 days of his judicial custody was scheduled to be completed on 10.05.2010, Being the I.O. of the case, he failed to submit charge sheet in time as a result of which accused Lipu@ Amit Kumar Jee was released on bail on 10.05.2010 by Hon’ble SDJM, Cuttack us 167(2) Cr.P.C. In this connection, his explanation was called for by DCP, Cuttack, but in disobedience of orders of the competent authority, he did not submit any explanation. He is, therefore, directed to show-cause by 25.7.10, as to why he shall not be dealt with suitably in the event of the charges being held to be proved against him. Any representation that he wishes to make in this regard shall be considered by the authority competent to pass final order before passing such orders.= 4.1. It is contended by Mr. Tripathy that the proceeding was initiated with the charge that the Petitioner since failed to submit the charge-sheet with regard to Purighat P.S. Case No. 105 dtd.02.09.2009 by 10.05.2010, one of the accused involved in the said case was released as per the provision contained under Sec. 167(2) of Cr.P.C. It is contended that the Petitioner after submitting the reply to the charges also participated in the enquiry so conducted against him. The Enquiry Officer in course of enquiry though found that the Petitioner in fact has submitted the charge- sheet/final form on 10.05.2010 and because of the negligence of concerned CSI, Sadar Court in not producing the same before the Court of learned SDJM, Cuttack, one of the accused was released Page 2 of 6 // 3 // on bail as per the provision contained under Sec. 167(2) of Cr.P.C.. The relevant extract of the finding of the Enquiry Officer is reproduced hereunder:- <However, the I.O. had submitted charge sheet in the case of 10.5.10 and sent the same to the Court through CSI, Sadar Court. But due to some inconvenience in the Office of the CSI, he (CSI) failed to produce the chargesheet before the learned SDJM, Sadar Court, Cuttack in time, for which out of the three accd. Persons only accd. Lipu @ Amit Kumar Jee was released on bail U/s 167(2) Cr.P.C. But the two other accd. Persons could not avail the same opportunity as by then the charge sheet against them was produced before the Court. Being the I.O. of the case, the Charged Officer should have ensured timely submission of the charge sheet before the Hon’ble Court but the Charged Officer failed to do so, for which one of the accd. Persons released on bail. Thus, it amounts negligence on the part of the Charged Officer. Though the charged officer was asked to explain for his such lapses but he failed to submit his explanation as the same was not properly served on him and no such acknowledgement as a token of his receipt is available in record. Taking the above facts into consideration, the Charged Officer is found guilty of the charge. However, lenient view may kindly be taken in respect of the Charged Officer for his such negligence being posted in an important Police Station like Purighat which is well known for its multifarious nature of police work which keeps the IIC preoccupied. The CSI also failed to intimate him regarding the lapse of limitation period.= 4.2. It is contended that even though the Enquiry Officer found that the Petitioner has in fact submitted the charge-sheet on 10.05.2010, and due to the latches of the CSI, the same could not be brought to the notice of the learned SDJM and accordingly one of the accused Page 3 of 6 // 4 // managed to get the benefit of bail, but he held the Petitioner guilty of the charges without any basis. 4.3. On being provided with the copy of the enquiry report though the Petitioner submitted his representation under Annexure-4, but the Disciplinary Authority-O.P. No. 2 without proper appreciation of the same issued the 2nd show-cause by proposing punishment of withholding of one increment which shall continue to hold for future for his gross misconduct under Annexure-5. It is contended that though the Petitioner submitted a reply once again to the 2nd show-cause issued under Annexure-6, the Disciplinary Authority without proper appreciation of the same, passed the impugned order of punishment vide order dtd.31.07.2017 under Annexure-7. 4.4. Mr. Tripathy, learned counsel for the Petitioner contended that challenging the order of punishment though the Petitioner preferred an appeal before the O.P. No. 1 vide Annexure-8, but the Appellate Authority without proper appreciation of the grounds taken in the memo of appeal and without assigning any reason whatsoever rejected the same vide order at Annexure-9. 4.5. Mr. Tripathy contended that the very basis of the charge is that due to non-filing of the charge-sheet by 10.05.2010 by the Petitioner as I.O. of the case one of the accused managed to get the benefit of bail as provided under Sec. 167(2) Cr.P.C.. But the said charge against the Petitioner was found not correct by the Enquiry Officer and due to the fault of the CSI, Sadar Court, the charge- sheet so submitted by the Petitioner on 10.05.2010 could not be brought to the notice of the competent Court. Therefore, the charge against the Petitioner cannot be held to be established. But the said fact was neither taken into consideration by the Disciplinary Page 4 of 6 // 5 // Authority nor by the Appellate Authority. It is accordingly contended that the impugned order passed under Annexure-7 and so confirmed under Annexure-9 are not sustainable in the eye of law. 5. Mr. Samal, learned AGA on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that even though the charge against the Petitioner was with regard to non-submission of the charge-sheet by 10.05.2010 in Purighat P.S. Case No. 105 of 2009 and in course of enquiry the Enquiry Officer came to a finding that the Petitioner had submitted the charge-sheet on 10.05.2010 and due to the fault of the CSI, the same could not be brought to the notice of the competent Court, but the Enquiry Officer since found the Petitioner guilty of the charges, the Disciplinary Authority as well as the Appellate Authority proceeded with the same while imposing the order of punishment. It is contended that in exercise of writ jurisdiction, power of this Court to go into the facts in case of this nature is very limited. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that the charge against the Petitioner is very specific i.e. due to non- submission of charge-sheet by 10.05.2010 as I.O. of the case, one of the accused was released on bail in terms of the provision contained under Sec. 167(2) Cr.P.C. It is found from the enquiry report that the Petitioner has in fact submitted the charge-sheet on 10.05.2010 and because of the fault of the CSI, the same could not be brought to the notice of the learned SDJM, Cuttack and accordingly the benefit was extended in favour of one of the accused as per the provision contained under Sec. 167(2) Cr.P.C. Page 5 of 6 // 6 // 6.1. In view of such finding of the Enquiry Officer that the Petitioner has in fact submitted the charge-sheet on 10.05.2010, as per the considered view of this Court the Petitioner cannot be held guilty of the charges. However, it is found that the Disciplinary Authority as well as the Appellate Authority have not considered that aspect while imposing the order of punishment under Annexure-7 and so confirmed under Annexure-9. 6.2. However, since it is found that the Appellate Authority while disposing the appeal, has not assigned any reason for rejecting the appeal, this Court while setting aside the order at Annexure-9, remits the matter to the Govt.-O.P. No. 1 to take decision on the appeal so filed under Annexure-8. It is observed that while deciding the appeal, the view expressed by this Court herein above shall be taken into consideration.
Arguments
2. Heard Mr. B.S. Tripathy, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition challenging the order of punishment passed in a Disciplinary Proceeding under Annexure-7 and confirmed by the Appellate Authority under Annexure-9. 4. It is contended that the Petitioner while continuing as Inspector In-charge, Purighat P.S., a proceeding was initiated against him with service of charges under Annexure-1. The charge framed against the Petitioner is reproduced hereunder:- <During his incumbency as IC, Purighat P.S. Cuttack, on 02.09.09 on the report of Biswanath Choudhury, he registered Purighat PS Case No 105 dated 02.09.09 u’s 394 IPC and took up investigation. The case was extremely sensitive as it involved // 2 // armed robbery of Rs.3.25 lakhs on the Ring Road by the accused
Decision
7. The writ petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Sneha Page 6 of 6