Delhi High Court
Hc Munshi Lal vs Commissioner Of Police & Ors. on 23 December, 2010
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Siddharth Mridul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 16th December, 2010
Judgment pronounced on: 23rd December, 2010
+ W.P.(C) 7478/2010
HC MUNSHI LAL ..... Petitioner
Through: Mr.Arun Bhardwaj and
Ms.Manpreet Kaur, Advocates.
versus
COMMISSIONER OF POLICE & ORS. ..... Respondents
Through: Ms.Jyoti Singh, Advocate.
W.P.(C) 8384/2010
CONST. SURINDER SINGH ..... Petitioner
Through: Mr.Arun Bhardwaj and
Ms.Manpreet Kaur, Advocates.
versus
COMMISSIONER OF POLICE & ORS. ..... Respondents
Through: Ms.Reeta Kaul, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. The above-captioned two writ petitions challenge the
judgment and order dated 6.1.2010 as also the judgment and
order dated 18.3.2010 passed in OA No.174/2008 and OA
No.309/2008. Vide order dated 6.1.2010 both Original
Applications were dismissed and vide order dated 18.3.2010,
two applications seeking review of the order dated 6.1.2010
WP(C) Nos.8384/2010 & 7478/2010 Page 1 of 29
were dismissed.
2. 5 officers of the Delhi Police; namely, HC Munshi Lal, Ct.
Surinder Singh, Ct. Ram Singhasan, Ct. Shrimant and Ct.
Banwari Lal were informed by a memorandum dated
22.2.2005 that on the indictment listed therein an inquiry
would be conducted under the Delhi Police (Punishment &
Appeal) Rules 1980 and that Insp.Ravinder Kumar would be
functioning as the Inquiry Officer. The order reads as under:-
"OFFICE OF THE DY.COMMISSIONER OF POLICE:NEW
DELHI DISTT.DELHI
ORDER
It is alleged against HC Munshi Lal No.408/ND (PIS No.28891382) Consts. Surender Singh No.590/ND (PlS No.28883811), Ram Singhasan No.1303/ND (PIS No.28960229), Shrimant No.1296/ND (PIS No.28950278) and Banwari Lal No.766/ND (PIS No.28890768) that while posted as PS Con. Place, they were detailed for night patrolling duty on the night intervening 1/2.01.05. During their patrolling duty they stopped a motorcycle No.UP-14 U-8187 at Outer Circle, Connaught Place near Minto Road when the riders Mr.Bhupender Tiwari and Varun Gupta were talking to a TSR to enquire about way to ITO. The policemen made Varun to sit in the TSR with a constable in which a girl was already sitting. Another constable took the motorcycle and made Bhupinder to sit on the pillion seat. After driving for about half an hour, they stopped at a dark area and threatened put the motorcyclist in Jail. Later the remaining three policemen also reached there and demanded all the money they have. The policemen then took Rs.8000/- from Varun Gupta and Rs.6000/- from Bhupinder.
The above act on the part of HC Munshi Lal No.408/ND Consts. Surender Singh No.590/ND, Ram Singhasan No.1303/ND, Shrimant No.1296/ND and Banwari Lal No.766/ND amounts to gross misconduct, indiscipline and dereliction in the discharge of their official duties, which render them liable to be dealt with departmentally.
Now, therefore, I, Ajay Kumar, Addl. Dy.
Commissioner of Police, New Delhi District New Delhi WP(C) Nos.8384/2010 & 7478/2010 Page 2 of 29 with the prior approval of Jt. C.P./NDR, Delhi under rule 15(2) of Delhi Police (Punishment & Appeal) Rules, 1980 do hereby order that HC Munshi Lal No.408/ND, Shrimant No.1290/ND and Banwari Lal No.766/ND be dealt with departmentally under the provision Delhi Police (Punishment & Appeal) Rules 1980 by Inspr. Ravinder Kumar, D-2471, who will complete the DE by holding proceedings on day to day basis and submit the findings expeditiously.
(AJAY KUMAR) ADDL. DY. COMMISSIONER OF POLICE:"
3. Formalizing the memorandum dated 22.2.2005, which contains the summary of allegations, the inquiry officer re- penned the summary of allegations and accompanied by the list of witnesses and list of relied upon documents served upon the 5 police officers, the summary of allegations, list of witnesses and list of relied upon documents. The summary of allegations read as under:-
"Summary of Allegation You are alleged that you, i.e. Munshi Lal No.408/ND, Ct.Surender N590/ND, Ct.Ram Singhasan No.1303.ND, Ct.Shrimant No.1296/ND and Ct.Banwari Lal No.766/ND that while posted as P.S. Connaught Place you were detailed for night patrolling duty on the night intervening 01/02-01-2005. During the patrolling duty you stopped a motorcycle No.UP-14-U- 8187 at outer circle, Connaught Place near Minto Road when the riders Mr.Bhupender Tiwari and Mr.Varun Gupta were talking to a TSR to enquire about way to ITO. You made Mr.Varun to sit in the TSR, with a Constable in which a girl was already sitting. Another constable took the motorcycle and made Bhupinder to sit on the pillion seat. After driving for about half an hour, you stopped at a dark area and threatened put the motorcyclist in jail. Later the remaining three policemen also reached there and demanded all the money they have. You then took Rs.8,000/- from Mr.Varun Gupta and Rs.6,000/- from Mr.Bhupinder.
The above act on the part of HC Munshi Lal No.408/ND, Ct.Surender No.590/ND, Ct.Ram WP(C) Nos.8384/2010 & 7478/2010 Page 3 of 29 Singhasan No.1303/ND amounts gross misconduct, indiscipline and dereliction in the discharge of your official duty which render you liable to be deal departmentally under the provisions of Delhi Police (Punishment & Appeal Rules - 1980).
(Ravinder Kumar) Inspector Enquiry Officer Addl.SHO/Tughlak Road"
4. The list of witnesses as also what was intended to be proved through the witness concerned were listed as under:-
"List of witnesses:
Name & Address of Brief Deposition
PWs
1 Mr. Bhupinder He will prove that the defaulter
Tiwari s/o L.B. policemen stopped him at Outer
Tiwari r/o 24/1, Circle, Connaught Place on the
Sector-14, night 01/02.01.2005 and then
Lucknow, U.P. taken to another place and took
Rs.6000/- from him.
2 Mr. Varun Gupta He will also prove that the
. s/o Arjun Dass r/o defaulter policemen stopped him
K-959, Sec-23, at Outer Circle, Connaught Place
Sanjay Nagar, on the night 01/02.01.2005 and
Ghaziabad, U.P. then taken to another place and
took Rs.8000/- from him.
3 Inspr. Brijender He will depose that he made
. Singh, Addl. enquiry from both the
SHO/Con. Place. complainants on the night of
01/02.01.2005 and called all night
patrolling staff to P.S. of whom the
complainants identified two
constables and then the identified
constables named the remaining
WP(C) Nos.8384/2010 & 7478/2010 Page 4 of 29
three policemen.
4 ASI Tara Chand, He will prove DD No.26-A, dated
. P.S. Connaught 01.01.2005, PS Con. Place vide
Place which he attended PCR call
regarding intercepting and taking
of money by policemen from two
persons at Connaught place.
5 Chitta Munshi, P.S. He will prove patrolling duty chart
. Con. Place. for the night 01/02.01.2005 vide
which the defaulter policemen
were detailed for night patrolling
duty.
(RAVINDER KUMAR)"
5. The list of relied upon documents which was supplied to the 5 delinquent officers reads as under:-
"List of Documents:1 DD No. 6-A, dated 02.01.2005, P.S. Connaught
Place.
2 DD No. 26-A, dated 01.01.2005, P.S. Connaught Place.3 DD No. 31-B, dated 01.01.2005, PS Connaught
Place.
4 Duty Roster dated 01.01.2005, PS Connaught Place.
(RAVINDER KUMAR) Inspector E.O. Addl.SHO, Tughlak Road."
6. Before the 5 listed witnesses could be examined, immediately upon receipt of the summary of allegations, list of witnesses and list of relied upon documents, the 5 charged officers filed an application dated 9.3.2005 before the Inquiry WP(C) Nos.8384/2010 & 7478/2010 Page 5 of 29 Officer praying that the 6 documents listed in the application be supplied to the charged officers as the same was necessary for the defence. The application dated 9.3.2005 reads as under:-
"To The Enquiry Officer Inspr. Ravinder Kumar, Addl. SHO/Tuglak Road, New Delhi.
Subject: Supply of Documents relevant for getting prepared solid defence.
Sir, It is requested that the copies of the following documents may kindly be supplied to the delinquents for getting prepared their solid defence :-
1 Copy of order of DE.
2 Copy of order of suspension 3 Copies of statements recorded earlier by Addl. SHO/C Place in his enquiry.
4 Copy of complaint of Mr.Bhupinder Tiwari and/or Varun Gupta and/or Khan and/or Chauhan or of Ct.
Dharum Raj No.2375/PCR or of Akhilesh having Cell No.9810118788.
5 Copies of proceedings conducted by ASI Tara Chand including the D.D Entry of his arrival recorded from D.D No.26A Dt.01.01.2005 P.S. Con. Place. 6 Copy of any other(s) documents prepared/got prepared or order(s) issued/got issued by Disc. Authority or Appellate Authority prior to ordering D.E. against the applicants/delinquents.
Delinquents."
7. The Inquiry Officer has admittedly received the application in question but for unexplainable reasons passed no order on the application and for unexplainable reasons we find that the 5 charged officers did not press for a decision on the application.
WP(C) Nos.8384/2010 & 7478/2010 Page 6 of 298. The inquiry proceeded. The 5 witnesses were examined and as reflected in the report of the inquiry officer, where we find the reproduction of the summary of evidence recorded by the inquiry officer, the examination-in-chief and cross- examination of the 5 prosecution witnesses reads as under:-
"PW-1. Shri Varun Gupta S/o Shri Arjun Gupta R/o K/959 sector 23 Sanjay Nagar, Ghaziabad (U.P.), Age 25 years.
He stated that on 01.01.2005 at about 6.00 PM he along with his friend Mr.Bhupinder Tiwari came to Connaught Place to purchase Air ticket for Lucknow (U.P.). At that time, the counter for ticket was closed. At about 9.00 PM, he along with his friend was present at outer circle Connaught Place and was enquiring to TSR about way to Ghaziabad (U.P.). In the meantime, 3-4 policemen got down from a Auto rickshaw and one of the policeman told him that he was teasing a girl as she was already sitting in the TSR. Two policemen made him to sit in the TSR & took to a dark area, (unknown area). Another constable took his motorcycle No.UP-14-U-8187 and made Mr.Bhupinder Tiwari to sit on the pillion seat and brought him to same place. He did not know the place as the Auto rickshaw parked between two buses. As he got down from Auto rickshaw, the girl was still sitting in it. His friend came there after 5-7 minutes later. The policemen threatened him with the allegation for teasing a girl and also told that he would not get bail out till 6 months. He requested to release him but the policemen threatened him and asked him how much money he had. Also demand Rs.80,000/- for releasing him. One of the policeman made his search and took out Rs.8000/- (16 notes each of Rs.500/- denomination). His friend was also present nearby him. One of the policeman was searching his friend and took out Rs.7000/-. As his friend told him that he had to go to Lucknow (U.P.) and asked fare for Lucknow (U.P.). Then policeman returned Rs.1000 (2 note, each of Rs.500/- denomination). After then, policemen threatened them to go straight to their destination. He made telephone call to his friend Mr.Atulesh Kumar who came to Minto Road near Mosque (Masjid) WP(C) Nos.8384/2010 & 7478/2010 Page 7 of 29 immediately and met them. He made telephone call to Police Control Room. After sometimes, police officers came there and they brought them to P.S. Connaught Place. In the police station T.I.P. of jawans was made and later the policemen returned Rs.14000/- to them. They signed some paper and left the P.S. Connaught Place.
Cross-examined by Shri Gambhir Singh Rana defence assistant on behalf of all the delinquents.
Q.01. How much time you stayed in P.S. Connaught Place?
Ans. About 12 to 12:15 am during the night (about 1:30 hours).
Q.02. From 6:00 pm to 12 midnight where you were present?
Ans. At about 6:00 they came to Delhi and made outing at India Gate ate food & ice cream. At about 9:00 pm they were asking to TSR about way to Ghaziabad.
Q.03. Who approached you and how much time you were there?
Ans. At about 9:15 pm they were approached and kept them till 11 or 11:15 pm. ...............
PW-2 CT.Shiv Dan Singh No.482/ND. (Chitha Munshi) P.S. Connaught Place, New Delhi.
He stated that he is working as "Chitha Munshi" of P.S. Connaught Place. He brought „Chitha‟ (Duty Roster) of dated 01/02.01.2005. According to duty Roster, CT.Surender Singh No.590/ND and H.C. Munshi Ram No.408/ND were detailed for patrolling duty from Minto Road to Bara Khamba Road. Ct. Ram Singhasan No.1303/ND was detailed for patrolling duty from Regal to Panchkunya Road, CT. Banwari Lal No.766/ND was on patrolling duty from Bara Khamba Road to Regal and CT.Shrimant No.1296/ND detailed for reserve night duty. As Ct. Ashok No.565/ND was remained absent on that day so CT.Shrimant No.1296/ND was sent for patrolling duty from Regal to Bara Khamba Road in place of CT. Ashok No.565/ND. Similarly, Head Constable Harender No.841/ND was on duty rest so CT.Ram Singhasan No.1303/ND was WP(C) Nos.8384/2010 & 7478/2010 Page 8 of 29 performing duty in his place as Night Reserve. After checking the copy of duty Roster marked exhibit PW- 2/A. Opportunity was given to all delinquents for cross- examination.
Cross-examination -Nil-
..............
PW-3 ASI Tara Chand No.1589/ND P.S. Connaught Place New Delhi.
He stated that on the intervening night o1/02.01.2005 he was performing his duty as Emergency Officer from 8 P.M. to 8 A.M. At about 12.37 A.M. he received DD No.26 A for enquiry. He along with CT. Satpal No.485/ND rushed to the spot near petrol pump-T- Point, Minto Road where S.I. Ajay Kumar, Night Checking Officer was already present there. One complainant Atulesh Kumar R/O C-2 Sarvodaya apartment Sahiba Bad (Ghaziabad) U.P. told him that his two friend namely Mr.Bhupinder Tiwari S/o Shri L.B. Tiwari r/o 24/1, Sector 14, Indra Nagar Lucknow (U.P.) and Mr.Varun Gupta S/o Shri Arjun Das Gupta R/o K-959 Sector 23, Sanjay Nagar, Ghaziabad (U.P.) who were present at outer circle with their motorcycle No.UP-14-U-8187 and were asking the way to Ghaziabad (U.P.). At the same time five policemen came there and they made enquiry to both and ultimately took out Rs.14000/- from them. ASI Tara Chand further stated that he brought them to P.S. Connaught Place in Gypsy & Produced before A.SHO/Connaught Place. He recorded their statements. DD No.26-A is marked Exh.PW-3/A. SHO/Connaught Place himself did further proceedings. NO recovery of Rs.14000/- made before him.
Opportunity was given to all delinquents for cross- examination.
Cross examination - Nil -
..............
PW-4 Inspector Brijinder Singh, A-SHO/Connaught
Place New Delhi.
WP(C) Nos.8384/2010 & 7478/2010 Page 9 of 29
He stated that he was present in the P.S. Connaught Place on the intervening night of 01/02-01-2005. At about 12:37 A.M. one PCR call received to police station Connaught Place. The caller was Atulesh Kumar who reported that his two friends were present at outer circle Connaught place with their motorcycle. Five policemen came there and they took out Rs.14000/- from his friends and left them at Pragati Maidan, now they were present at Odeon cinema. This information was marked to ASI Tara Chand for enquiry who was emergency officer. ASI Tara Chand reached to the spot where Shri Varun Gupta and Shri Bhupinder Tiwari both found there. They told that they were present at outer circle, Minto Road and talking to a TSR in which a girl was sitting. Five policemen came there and threatened them for legal action and ultimately they took out Rs.14000/- from both. ASI Tara Chand brought them to P.S. Connaught Place where he himself made enquiry to both. On enquiry, they told that they came to Connaught Place on motorcycle No.UP-14U-8187, while they were asking to a TSR about the way to I.T.O., then five policemen stopped them. Mr.Varun Gupta made sit in the same TSR and Mr.Bhupinder Tiwari made sit on the motorcycle as pillion rider and brought them to Pragati Maidan and took out Rs.6000/- from Bhupinder Tiwari and Rs.8000/- from Mr.Varun Gupta. Both had given their written complaints. After verification he called on patrolling staff of P.S. Connaught Place for identification CT.Banwari Lal No.766/ND and CT.Ram Singhasan No.1303/ND both were identified by the complaints. He made enquiring which resulted the matter of took out Rs.14000/- found correct, and both constables told their colleagues names as HC Munshi Lal NO.408/ND, CT.Shrimant No.1296/ND and CT.Surender Singh No.590/ND. According to duty roster, all were on patrolling duty except CT.Ram Singhasan No.1303/ND. All the policemen made negotiation with complainant parties and returned their Rs.14000/-. The complainants give their separate receipts of Rs.14000/-. He apprised the fact to the senior officer about this incident. Then a detail report was sent by Inspr.Ishwar Singh SHO/C. Place to senior officer, which is Exh.PW-4/A. WP(C) Nos.8384/2010 & 7478/2010 Page 10 of 29 Cross-examined by Defence Assistant Shri G.S.Rana on behalf of all defaulter/delinquents.
Q.01. When you reached Pragati Maidan? Ans. He did not know ASI Tara Chand was dealt with this call.
Q.02.When you called patrolling staff in P.S. Connaught Place?
Ans. About 2 or 2:30 A.M. in the night. Q.03. Any seizure memo prepared for identification? Ans. No. Q.04. Whether you have written statement any one of the five policemen?
Ans. No. Q.05. When you released the complainant? Ans. About 3:30 to 4:00 A.M. in the night. Q.06. Any seizure memo prepared of recovered money?
Ans. No. Q.07.Whether your statement recorded to this effect previously?
Ans. No. Q.08. Whether you sent your own report to this effect?
Ans. No. Cross-examined by Enquiry Officer. Q.01. Whether you conducted this enquiry in your presence?
Ans. Yes.
PW-5 Shri Bhupinder Tiwari S/o Shri L.B. Tiwari r/o H.No.24/1 sector-14 Indra Nagar, Lucknow (U.P.), Age 27 years.
He stated that on 01-01-2005 he along with his friend Mr.Varun Gupta s/o Shri Arjun Das Gupta R/o K/959, sector-23 Sanjay Nagar Ghaziabad (U.P.) came to Connaught Place from Noida by his motorcycle No.UP- 14U-8187 to purchase air ticket for Lucknow. At about 9:00 p.m. he along with his friend was asking to a TSR about the way to Ghaziabad. In the meantime, 4-6 policemen got down from a TSR (Auto Rickshaw) and his friend Mr.Varun Gupta made sit in the same WP(C) Nos.8384/2010 & 7478/2010 Page 11 of 29 TSR and another constable made him sit on the motorcycle as pillion rider. About 15-25 minutes the constable made round of the Connaught Place on the motorcycle and also threatened him that he would not bail out till six months and brought him in the dark area. The constable on motorcycle told him to take out all the money he had otherwise he would be sent to jail. At that time the Auto Rickshaw was parked about two meters from him. The constable brought him to the same place when the Auto Rickshaw parked where all the policemen were present there. They told him to take out all the money. Also they told his friend the same words. He had Rs.7000/- in his possession at that time. He had given all the money to one constable and also made request that he had to go to Lucknow. Then the constable returned him Rs.1000/- (Two note of Rs.500/- denomination). They had taken out Rs.8000/- from his friend Mr.Varun Gupta. Then the policemen told the both to go to Ghaziabad (U.P.) "Picche mur kar mat dekhna". After then they left the place and came to Connaught Place where Mr.Varun Gupta made telephone to Mr.Atulesh Kumar and told him the story. Mr.Atulesh Kumar told them to stop there and after half an hour, he reached there at petrol pump near Mosque (Masjid). Then Mr. Atulesh Kumar made call on No.100 to PCR. After a while many officers reached there and made enquiry to them and brought to P.S. Connaught Place. All the policemen on duty were called in P.S. for identification. They identified three policemen in the police station. They got their money Rs.14000/- (Rs.6000 to Mr.Bhupinder Tiwari and Rs.8000 to Varun Gupta) they signed receipt of the money and left the P.S. as per the order of police officer.
Cross-examination by Shri G.S.Rana Defence
Assistant on behalf of all the five
delinquents/defaulters.
Q.01. Where you and your friend reached P.S. Connaught Place?
Ans. About 12 midnight.
Q.02. How much time you stayed in P.S.? Ans. At about one or one and a half-hours. Q.03. When you left the farmhouse for Connaught Place?WP(C) Nos.8384/2010 & 7478/2010 Page 12 of 29
Ans. At about 6 or 6:00 PM.
Q.04 When you visited before reaching in Connaught Place?
Ans. They went to India Gate; they ate food in Jodhpur House and also ate ice cream then went out for Connaught Place.
Q.05. How much time you were kept with policemen? Ans. About 9:15 to 10:15 PM.
Q.06. When your friend Atulesh Kumar reached to you?
Ans. About 11:00 P.M. Q.07. Could you tell the name of policemen? Ans. No. Q.08. Could you identify the policemen? Ans. No."
9. As per the procedure to be followed, after the summary of evidence was recorded as afore-noted, a formal charge was required to be drawn up by the inquiry officer and he did the same by framing the charge and for which we note he verbatim reproduced the summary of allegations. The charge framed reads as under:-
"I, Inspector Ravinder Kumar, enquiry officer, charge you HC Munshi Lal No.408/ND, CT.Surender Singh No.590/ND, CT.Ram Singhasan No.1303/ND, CT. Shrimant No.1296/ND and CT.Banwari Lal No.766/ND that while posted for night Patrolling on the night intervening 01/02.01.2005. During your patrolling duty you stopped a motorcycle No.UP-14u-8187 at outer circle Connaught Place near Minto Road. When the riders Mr.Varun Gupta were talking to a TSR to enquire about way to I.T.O. The policemen made Mr.Varun Gupta to sit in the TSR with a constable in which a girl was already sitting. Another constable took the motorcycle and made Mr.Bhupinder Tiwari to sit on the pillion seat. After driving for about half an hour, you stopped at dark area and threatened to put the motorcyclist in jail. Later the remaining three policemen also reached there and demanded all the money they have. The policemen then took Rs.8000/-
from Mr.Varun Gupta and Rs.6000/- from Mr.Bhupinder Tiwari. The above act on the part of you H.C. Munshi Lal No.408/ND, CT. Surender Singh WP(C) Nos.8384/2010 & 7478/2010 Page 13 of 29 No.590/ND and CT.Ram Singhasan No.1303/ND and CT.Banwari Lal No.766/ND amount gross mis-conduct, indiscipline and dereliction in the discharge of your official duties which render you liable for punishment under the provision of Delhi Police (Punishment and Appeal Rules-1980)."
10. The charged officers thereafter examined 2 witnesses in defence and since no argument was advanced with respect to their deposition during inquiry, we need not trouble ourselves with penning what they deposed.
11. After recording defence evidence, arguments were heard by the inquiry officer and a report dated 14.5.2005 was submitted holding guilty all the 5 charged police officers. The findings returned by the inquiry officer are as under:-
"Conclusion:- From PW-1, PW-2, PW-3, PW-4 & PW-5 it is very much clear that the amount of Rs.14000/- were taken out by the policemen namely Hc.Munshi Lal No.408/ND, Ct.Surender Singh No.590/ND, Ct.Ram Singhasan No.1303/ND, Ct. Shrimant No.1296/ND and Ct. Banwari Lal No.766/ND from Mr. Varun Gupta and Mr.Bhupinder Tiwari. It is strongly proved since the said policemen returned the same amount to the complainants on the same night. It they did not do so why they returned the amount of Rs.14000/- to the complainants. From PW-4 it is very much clear that two constables namely Ct. Banwari Lal No.766/ND and Ct. Ram singhasan 1303/ND both were identified during TIP by the complainants in the P.S. there is contradictory statement of PW-4 regarding timing. Since PW-1 and PW-5 stated that they left P.S. at about 1:00 A.M. or 1:30 A.M. whereas PW-4 stated that they left P.S.Connaught Place at about 3:30 A.M. or 4:00 A.M. similarly, there is a contradictory statements of complainants about timing to reach P.S. Such contradictory statements about timing cannot avoid that the incident did not occur. From the above facts, evidence on file and discussion it is very much clear that the above said policemen WP(C) Nos.8384/2010 & 7478/2010 Page 14 of 29 took out Rs.14000/- from Mr.Varun Gupta and Mr.Bhupinder Tiwari by giving them threatening to be sent in jail. However the act of each delinquent/defaulter could not be categorized specifically. It might be possible that both the complainants were remained under fear due to illegal custody of policemen. Two constables namely Ct. Banwari Lal No.766/ND and Ct.Ram Singhasan No.1303/ND were identified by the complainants during TIP conducted in police station on the same night. These two constables disclosed the rest of delinquents. During cross examination of DW-2 by the under signed he disclosed the names of the patrolling staff as HC.Munshi Lal 408/ND, Ct.Shrimant 1296/ND, Ct.Banwari Lal No.766/ND and Ct. Surender Singh No.590/ND. Hence the charge is substantiated against all the five delinquents/defaulters.
12. Under cover of memorandum dated 24.6.2005 the report of the Inquiry Officer was furnished to the 5 charged officers who submitted individual responses on various dated in the month of July and highlighted various points therein. The common point highlighted by all was that the order passed by the Additional Deputy Commissioner of Police which contained the summary of allegations as also the separate summary of allegations drawn up by the inquiry officer and the charge drawn up after prosecution witnesses were examined were a verbatim copy of each other and suffered from the vice of vagueness. Who did what was not stated in either 3 documents and thus it was prayed that on account of vagueness, the very initiation of the indictment proceedings was liable to be dropped. They took the plea that by not deciding their application dated 9.3.2005 under which they had sought supply of documents prejudice was caused to their defence. They all highlighted that Ex.PW-4/A, the stated report prepared by the SHO of the concerned police station and as WP(C) Nos.8384/2010 & 7478/2010 Page 15 of 29 proved during inquiry by Insp. Brijender Singh, PW-4 was not a part of the relied upon documents and was introduced by the inquiry officer during inquiry without any formal orders being passed to said effect. They raised a grievance that Ex.PW-4/A was taken on record during testimony of PW-4 and the charged officers were called upon to cross-examine PW-4 on the same day. They all highlighted that the author of the report i.e. Insp. Ishwar Singh, SHO of the police station was not examined. They further highlighted that as deposed by ASI Tara Chand PW-3 it all started when DD No.26A was recorded at the police station pursuant to a PCR call made, as recorded in DD No.26A by one Akhilesh through Mobile No.9810118788 and that said Akhilesh was not examined as a witness. They also pointed out that in DD No.26A Akhilesh had named one „Khan‟ and „Chawhan‟, as the ones who had extorted money from his friends. They also referred to DD No.26A recorded by Insp. Ishwar Singh which contained the information regarding the incident which took place in the night and highlighted that as per the said DD entry separate statements of Mr.Bhupinder Tiwari and Mr.Varun Gupta were recorded. They all highlighted that no TIP memo was drawn up and in any case none was proved at the trial. They highlighted that no recovery memo pertaining to `14,000/- ostensibly extorted and allegedly recovered was drawn up, much less proved. They further highlighted that as per ASI Tara Chand PW-3, SI Ajay Kumar, the night checking officer, who was stated to be present when ASI Tara Chand reached a spot near petrol pump T-point Minto Road was not examined. They also highlighted that Varun Gupta did not identify before the Inquiry Officer the charged officers as the ones who had extorted money from Bhupinder Tiwari. They all highlighted that Bhupinder Tiwari likewise did WP(C) Nos.8384/2010 & 7478/2010 Page 16 of 29 not identify the charged officers before the Inquiry Officer as the ones who extorted the money. They highlighted that as per Bhupinder Tiwari 3 policemen were identified in the police station as the extortionists, but highlighted that Bhupinder Tiwari did not disclose as to who the 3 were. With reference to the testimony of Insp.Brijender Singh PW-4 they highlighted that as per him only Ct. Banwari Lal and Ct. Ram Singhasan were identified at the police stations by the victims and that the said two constables named the remaining 3, HC Munshi Lal, Ct.Shrimant and Ct.Surinder Singh.
13. Petitioners highlighted that qua them the only incriminating evidence was Insp.Brijender Singh‟s statement that Ct.Banwari Lal and Ct.Ram Sighasan named them as also Ct.Shrimant and not that at the stated TIP conducted in the night, the victims identified the petitioners as the extortionists.
14. In a nutshell, petitioners questioned their indictment on account of:- (a) vagueness of charge; (b) non-supply of relevant documents sought for before the inquiry officer; (c) taking on record Ex.PW-4/A DD No.6A being the stated report penned by the SHO of the police station; (d) stated statements of the victims recorded as per Ex.PW-4/A not being supplied;
(e) no contemporaneous record of stated TIP proceedings being prepared; (f) no recovery memo pertaining to `14,000/- being drawn up and reduced; (g) the two victims not identifying the 5 charged officers. Relatable to the petitioners being the additional plea that at best incriminating evidence, if at all, was Ct.Banwari Lal and Ct.Ram Singhasan being identified at the TIP and not the petitioners as also Ct. Shrimant and the Inquiry Officer brushing the 3 police officers with the same tainted paint as were brushed by Ct.Banwari Lal and Ct.Ram Singhasan.
WP(C) Nos.8384/2010 & 7478/2010 Page 17 of 2915. Vide order dated 6.10.2006, the Disciplinary Authority inflicted the penalty of reducing HC Munshi Lal for a period of 10 years from rank of Head Constable to Constable with further direction that the period spent on suspension would not be treated on duty. On the 4 constables penalty imposed was forfeiture of 10 years‟ approved service permanently entailing reduction in the pay by 10 stages.
16. It may be noted that the Disciplinary Authority did not discuss the effect of the application dated 9.3.2005 not being decided by the inquiry officer as also whether the charge was vague. It was not discussed as to what would be the effect of various contentions urged and as noted by us in brief in para 12 above. The Disciplinary Authority, though as penned an order spanning 4 pages, has discussed the evidence in page No.2 and 3, but the nuances pointed out by the charged officers had not been discussed.
17. Appeal filed aggravated the misery of the 5 police officers inasmuch as the Appellate Authority issued a show- cause notice on 6.9.2007 requiring the 5 officers to respond as to why extreme penalty of dismissal from service be not inflicted.
18. In the reply filed to the show-cause notice it was highlighted that the show-cause notice being predicated under the alleged power conferred by the CCS(CCA) Rules 1965 was bad in law inasmuch as the said Rules were not applicable. On merits, it was pointed out that the alleged misdemeanor was the only misdemeanor alleged against the 5 police officers.
19. The Appellate Authority rejected all appeals on 28.11.2007 and levied the penalty of dismissal from service with further direction that the period spent on suspension would not be treated as on duty.
WP(C) Nos.8384/2010 & 7478/2010 Page 18 of 2920. The 5 police officers approached the Central Administrative Tribunal by and under 5 separate Original Applications all of which have been dismissed vide impugned order dated 6.1.2010. Review sought by the petitioners has been turned down vide order dated 18.3.2010.
21. Whereas a writ petition filed by Ct. Shrimant registered as WP(C) No.1992/2010 came to be dismissed by this Court on 31.5.2010, Ct.Ram Singhasan and Ct.Banwari Lal have chosen to sit by and reconcile to their fate, petitioners, HC Munshi Lal and Ct.Surender have raised a challenge to the impugned decision passed by the Tribunal by filing the two captioned writ petitions.
22. With respect to WP(C) No.1992/2010 filed by Ct. Shrimant we may note that only one contention was urged pertaining to the language of the show-cause notice issued by the Appellate Authority and what was sought to be urged was that it shows the pre-determined mind of the Appellate Authority and for which contention urged was that the appellate order was required to be set aside. The plea was negated. We find that no contention other than as afore-noted has been dealt with, for the obvious reason, nothing else was urged.
23. Various arguments were advanced before us and we propose to list each argument and deal with it simultaneously rather than to separately note the submissions urged and thereafter deal with the same.
24. The first submission pertaining to the application dated 9.3.2005 being not decided by the Inquiry Officer allegedly vitiating the inquiry is negated by us for the reason the record of the inquiry shows the application being filed and notwithstanding the inquiry officer not deciding the same, the petitioners never raising any grievance before the inquiry WP(C) Nos.8384/2010 & 7478/2010 Page 19 of 29 officer that the application filed by them was not being decided. That apart, we find no pleadings and thus we record no argument being advanced as to how prejudice was caused on account of the application not being decided.
25. The plea that the report Ex.PW-4/A was introduced during inquiry and was not a part of the relied upon documents is rejected by us for the reason Ex.PW-4/A is a copy of DD No.6A and we find that the first document listed under the caption „List of Documents‟ is DD No.6A.
26. The third technical plea that the Appellate Authority exercised power under CCS (CCA) Rules evidenced by the show-cause notice dated 6.9.2007 is again rejected by us for the reason we find that under Rule 25(d) of the Delhi Police Punishment & Appeal) Rules, 1980, a power is vested in the Appellate Authority to enhance the punishment after issuing a show-cause notice to the party affected. It is settled law that if a power exists, mere wrong reference to the source of the power would not vitiate the exercise of the power.
27. Having dealt with the technical pleas which were urged, we deal with the pleas of substance and note that they are substantially the same as we have noted in para 12 above where we have highlighted the response of the petitioners as also their brethren before the Disciplinary Authority when they responded to the report of the inquiry officer.
28. A perusal of the order dated 22.2.2005 initiating the inquiry as also the summary of allegations framed by the inquiry officer as also the charge framed by the inquiry officer brings out a vagueness in all the three; the vagueness being the first assertion that all 5 charged officers during patrolling duty accosted Mr. Bhupender Tiwari and Mr. Varun Gupta while they were talking to a TSR driver and all made Varun sit in the WP(C) Nos.8384/2010 & 7478/2010 Page 20 of 29 TSR with a constable, in which TSR a girl was already sitting followed by the assertion that 1 constable took the motorcycle and made Bhupender sit on the pillion seat and after driving of about half-an-hour stopped at a dark area and threatened to put him in jail and later on 3 policemen also reaching the place. Who did what was never highlighted and this vagueness assumes importance in light of the testimony of Ct. Shiv Dan PW-2 as per which petitioners were detailed for patrolling duty from Minto Road to Barakhamba Road. Ct. Ram Singhasan was detailed for patrolling duty from Regal to Panchkunya Road, Ct. Banwari Lal was on patrolling duty from Barakhamba Road to Regal and Ct. Shrimant was detailed for reserve night duty but was sent to patrol from Regal to Barakhamba Road. This vagueness by itself may not be acquiring an aggravating nature sufficient to hold that the inquiry is vitiated on account of the officers not knowing that gravamen of the charge against them, which was that all of them were present when `14,000/- was extorted, but when we look at further evidence, it becomes apparent that the vagueness coupled with the evidence led assumes a proportion of significance.
29. As per Varun Gupta who appeared as PW-1 when he was inquiring from a TSR driver the way to Ghaziabad, 3 - 4 policemen got down from an auto rickshaw and one of them threatened to implicate him of teasing a girl who was sitting in the TSR. Thus, as per Varun Gupta 3 or 4 policemen accosted him and his friend Bhupender Tiwari and not 5 as alleged in the charge. As per Bhupender Tiwari 4 - 6 policemen had accosted him and Varun Gupta. By itself this may not be very aggravating qua the indictment being sustained but when seen in light of the fact that Bhupender Tiwari clearly deposes that WP(C) Nos.8384/2010 & 7478/2010 Page 21 of 29 after the incident was reported to the police and all police personnel on patrol duty around Connaught Place were summoned at the police station, he and his friend identified only 3 policemen in the police station. Who were those 3? There is no evidence. We note that according to Varun Gupta PW-1 the errant jawans were identified at the police station during TIP but he does not state how many. We highlight that the inquiry officer has not bothered to even try and ask clarificatory question whether the 5 charged officer, or anyone of them was identified by PW-1 and PW-5 at the police station. The aforesaid deficiency in the evidence assumes further negative proportion to the indictment when we find that no memo pertaining to TIP proceedings allegedly conducted at the police station have been drawn. No recovery memo pertaining to `14,000/- allegedly recovered has been drawn.
30. Though not otherwise relevant at a disciplinary inquiry, but having noted the aforesaid deficiencies and patent infirmities in the evidence it is a matter of significance that SI Ajay Kumar, the night checking officer whom ASI Tara Chand PW-3 claims to be the first one to reach the place of incident has not even been examined. The further problem is that Insp. Ishwar Singh the author of Ex.PW-4/A has for unexplainable reasons not being examined. In this connection we need to highlight that he was the best person to throw light on the alleged TIP proceedings stated to be conducted at the police station for the reason he is the author of DD No.6A (Ex.PW-4/A) and he has recorded therein as under:-
"All the night patrolling staff was immediately called and shown to both the above complainants. In front of Addl.SHO CP, both of them identified Ct.Banwari Lal No.766/NDP and Ct.Ram Singhasan No.1303/NDP and told that out of 5 policemen these 2 were present. Both the above constables on asking admitted that WP(C) Nos.8384/2010 & 7478/2010 Page 22 of 29 they have taken the money. .................. Separate statements of all the above were recorded."
31. We may note that as per the report it is noted that later on Ct. Banwari Lal and Ct. Ram Singhasan told that they were accompanied by Ct.Shrimant and the petitioners.
32. It is thus apparent that if the contents of Ex.PW-4/A are correct, at the TIP conducted at the police station only 2 policemen, Ct.Banwari Lal and Ct.Ram Singhasan were identified and later on these 2 implicated the petitioners and Ct.Shrimant.
33. It is apparent that the evidence is most inchoate and resting on flimsy grounds and the only thing of substance qua the petitioners would be the reference to them in Ex.PW-4/A and that too in the manner afore-noted as also what has been deposed by Insp.Brijender Singh PW-4 i.e. the petitioners being named by Ct.Banwari Lal and Ct.Ram Singhasan after the two were allegedly identified by the victims at the police station.
34. We are conscious that at a disciplinary proceedings strong probate evidence is also held to be sufficient evidence to sustain a finding and it is not the job of a Court exercising supervisory jurisdiction to re-appraise the evidence, but at the same time it is the duty of the Court exercising supervising jurisdiction to peruse the evidence and find out whether it is a case of no evidence or is it a case of such feeble and shaky evidence that no reasonable person would take the view that it is reasonably probable to conclude against the guilt of the charged officers.
35. It is unfortunate that the Tribunal has not discussed the issue in the manner it was so required to be discussed by the Tribunal. In a wishy-washy judgment the Tribunal has side- tracked the issues.
WP(C) Nos.8384/2010 & 7478/2010 Page 23 of 2936. In para 9, the Tribunal has discussed the arguments advanced pertaining to the alleged TIP proceedings and in respect whereof we may note that both the Disciplinary Authority as well as Appellate Authority have held that all the 5 charged officers were identified by the victims at the TIP conducted at the police station. We have noted the inchoateness in the said evidence and in respect of the petitioners have highlighted the contents of the report Ex.PW- 4/A as per which only Ct. Ram Singhasan and Ct.Banwari Lal were identified by the victims at the police station. It is apparent that qua the petitioners a two-fold argument was available; (i) that they were never identified at any TIP conducted at the police station; and (ii) the evidence pertaining to TIP proceedings is shaky. Qua Ct.Banwari Lal and Ct.Ram Singhasan only the second argument was available and not the first. It is apparent that the counsels engaged by the 5 police officers, and we note that 3 different counsels were engaged had argued on the above lines and the said arguments can hardly be called as confusing or contradictory or mutually conflicting. Without even highlighting what the arguments were, in para 9 of the impugned decision dated 6.1.2010 the Tribunal has recorded as under:-
"9. As mentioned above, accordingly to the respondents, the complainants had been brought to the Police Station and the Addl. SHO had called all the officers on patrolling duty in that area for identification. Different versions are sought to be projected by the defendants‟ counsels even regarding the TIP. While the learned counsel Shri Arun Bhardwaj relying upon the statement of DW/1, a DD Writer, would aver that no such TIP took place and even if it was that was not in the presence of the complainants. Interestingly, the learned counsel Ms.Avinesh Ahlawat would point to the DD No.30-A of ASI Tara Chand (PW/3) and aver that such identification had been WP(C) Nos.8384/2010 & 7478/2010 Page 24 of 29 deferred to the next morning. The third version would be coming from the learned counsel Shri Anil Singal, who while not denying that the TIP, as claimed by the respondents indeed took place, would submit that his client i.e. Shrimant had not been identified in course of the same. These mutually conflicting stands of the defendants‟ counsel could only appear because all these cases have been heard at the same time and we got an opportunity to appreciate the facts all in one go. Needless to say these would lead to their own logical interferences."
37. Sadly, the Tribunal has failed to even understand what was sought to be argued.
38. On the issue of the evidence, we find that the Tribunal has dealt with the issue in para 11 where the Tribunal has, before extracting the conclusions penned by the inquiry officer, which we have reproduced in para 11 above, opined as under:-
"On a careful perusal of the inquiry report as also the orders of the disciplinary and appellate authorities, we gather the impression that these are detailed documents showing due application of mind. We also find a specific point-wise addressing the contentions raised by the delinquents at all the levels both at the stage of inquiry findings as well as the disciplinary authority and the appellate authority. The points raised including some apparent inconsistencies had not been brushed aside but instead an overall view has been taken given the circumstances of the case. For instance, „the analysis of evidence‟ in the inquiry report takes due notice of the discrepancies in various statements regarding the timings of arrival and departure of the complainants from the police station as well as of the holding of the TIP. However, the conclusions in this case are based on taking a holistic view on the basis of the entire gamut of evidence."
39. The language used by the Tribunal may be fine for an essay but we find it inadequate in its content qua a judicial verdict.
WP(C) Nos.8384/2010 & 7478/2010 Page 25 of 2940. Let us re-run the evidence and see what emerges against whom. Varun Gupta PW-1 has deposed that at about 6:00 PM on 1.1.2005 accompanied by his friend Bhupender Tiwari he came to Connaught Place to buy air ticket and on finding the counter closed was enquiring at about 9:00 PM from a TSR the way to Ghaziabad when 3 - 4 policemen got down from an auto-rickshaw of whom 1 threatened to implicate him for teasing a girl who was already sitting in the TSR. 2 policemen made him sit in the TSR and took him to a dark area. Another constable made his friend Bhupender Tiwari sit on the pillion seat and brought him to the same spot. His friend came therafter 5 - 7 minutes. The policemen threatened him and demanded `80,000/- to release him. 1 policeman searched him and took out `8,000/-. 1 policeman searched his friend and took out `7,000/-. `1,000/- was returned and the policemen threatened him and his friend to go away. He made a telephone call to his friend Atulesh who came to Minto Road and met them. His friend telephoned the Police Control Room. After sometimes police officers came there and brought them to the police station where TIP of jawans was made and the policemen returned `14,000/- to them. It may be highlighted that Varun Gupta has not deposed that 5 policemen were present when money was actually extorted. He deposes of presence of 2. He only states that at the police station TIP was conducted. He does not state that 5 policemen were identified at the TIP. He does not state which of the delinquent officers were identified by him and his friend at the police station. Bhupender Tiwari PW-5 deposes substantially in sync with his friend Varun Gupta except with a different he states that 3 policemen were identified during TIP in the police station, but does not depose as to which 3 out of the 5 charged officers WP(C) Nos.8384/2010 & 7478/2010 Page 26 of 29 were identified at the police station during TIP proceedings. ASI Tara Chand PW-3 deposed that on receipt of DD No.26A he reached the spot where SI Ajay Kumar, Night Checking Officer was present where Atulesh Kumar the complainant told him that his friends Bhupender Tiwari and Varun Gupta were accosted by 5 policemen who took away `14,000/- from them and that he brought the 2 victims to the police station and recorded their statements pursuant whereto DD No.26A, Ex.PW-3/A was recorded. Relevant would it be to state that ASI Tara Chand only proved an incident being narrated to him and has not deposed of any delinquent police officer being identified in his presence. Insp.Brijender Singh PW-4 has deposed of the incident being narrated involving 5 policemen and that during TIP Ct.Banwari Lal and Ct.Ram Singhasan were identified by Varun Gupta and Bhupender Tiwari who returned `14,000/- and told the names of the petitioners and Ct.Shrimant. We note that the testimony of PW-4 is in harmony with what has been recorded in Ex.PW-4/A i.e. the complaint lodged vide DD No.6A by Insp.Ishwar Singh which contains a narration of the TIP conducted in which Ct.Banwari Lal and Ct.Ram Singhasan were named as the ones identified during TIP. Seen in light of the fact that no record of TIP proceedings, no recovery memos and no contemporaneous statements of the complainants have been recorded we are constrained to hold that qua the petitioners the only incriminating evidence is that they were named by Ct.Banwari Lal and Ct.Ram Singhasan and save and except the same we find no other evidence implicating them and the fact that the complainants were referring to 5 policemen of whom only 2 were identified by them during TIP would not mean that the remaining 3 were the petitioners and Ct.Shrimant. The solitary WP(C) Nos.8384/2010 & 7478/2010 Page 27 of 29 evidence is too weak even at a disciplinary proceeding to sustain the verdict of guilt.
41. Thus, the impugned orders levying penalty have to be set aside.
42. But a word needs to be spoken on the issue of the suspension of the petitioners followed by the petitioners being dismissed from service and the consequential order of in what manner period of suspension has to be reckoned and in what manner the period post dismissal from service till reinstatement has to be reckoned.
43. As is noted by us in our order dated 16.12.2010 when we had condoned the delay in re-filing the 2 writ petitions, the petitions had come up for hearing on 16.12.2010 and challenged 2 orders dated 6.1.2010 and 18.3.2010. We had condoned the delay in re-filing since petitioners were dismissed from service and keeping in view the severe penalty we thought it advisable that justice requires a hearing on merits. But, petitioners cannot take benefit of the delay caused by them for purposes of wages. On the period prior thereto, suffice would it be to state that an incident of extortion by policemen is indeed a grave misconduct and certainly invites the delinquent policeman to be suspended. That adequate evidence could not be led resulting in the indictment not being established would not mean that the suspension was unjustified. Accordingly, it has to be held that the suspension was justified and the decision not to treat said period as on duty for purposes of salary but to be reckoned as period spent on duty for purposes of pensionary benefits would meet the ends of justice and similarly the period post 28.11.2007 when petitioners were dismissed from service, till the date of reinstatement would be required to be treated as WP(C) Nos.8384/2010 & 7478/2010 Page 28 of 29 spent on duty for purposes of pensionary benefits and no salary to be paid would meet the ends of justice.
44. Accordingly, the 2 writ petitions stand disposed of setting aside the order dated 6.10.2006 passed by the Disciplinary Authority, 28.11.2007 passed by the Appellate Authority as also the impugned order dated 6.1.2010 and 18.3.2010 passed by the Tribunal. The 2 writ petitions and the 2 Original Applications filed by the petitioners stand disposed of setting aside the orders noted in the preceding sentence requiring petitioners to be reinstated in service with further directions that the period during which petitioners remained suspended and the period post they being dismissed from service and reinstated being treated as per para 43 above.
45. No costs.
PRADEEP NANDRAJOG, J.
SIDDHARTH MRIDUL, J.
DECEMBER 23, 2010 dk WP(C) Nos.8384/2010 & 7478/2010 Page 29 of 29