Delhi High Court
Philip Bara & Ors. vs State & Ors. on 17 January, 2011
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: January 17, 2011
+ Crl. MC No.2871 /2010
% 17.01.2011
Philip Bara & Ors. ...Petitioners
Versus
State & Ors. ...Respondents
Counsels:
Mr. Amandeep Singh for petitioners.
Mr. Sunil Sharma, APP for State/respondent. Mr. Arun K. Singh, Advocate for R-4 JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORAL
1. This petition under Section 482 Cr.P.C. has been preferred by the petitioners for quashing FIR No.252 dated 7th August, 2010 under Sections 167, 195, 196, 323, 355, 506 and 120B read with Section 34 of the IPC and the proceedings including the order dated 20th July, 2010 passed by learned MM in criminal complaint no.CC 1744 of 2009 titled "Hari Ram Tiwari v. Satish Singh and Ors."
2. The FIR was registered against the petitioners vide order dated 20th July, 2010 passed by learned MM on an application moved by respondent no.4 under Section 156(3) Cr.P.C. Petitioner no.1 is the Director (Vigilance) of NDMC, petitioner no.2 is the Chairman of NDMC and petitioner no.3 is the retired Additional Law Officer of NDMC.
3. Brief facts relevant for the purpose of deciding this petition are that the respondent no.4, a pharmacist employed with NDMC was allegedly found present at an election meeting on 3rd April, 2007. Her wife was contesting election as a candidate of All India Forward Block from Ward No.97, Kirti Nagar and her husband was found at dias Crl.MC 2871/2010 Page 1 Of 3 asking votes for her. A DD entry was made at Police Station Moti Nagar being DD No.45B about this. A show cause notice was sent to the respondent no.4 by the department and respondent no.4 in his reply dated 23rd May, 2007 admitted his presence at the site of election, however, he denied that he was present at the dias. Relevant portion of his reply reads as under:
"(d) That I was put under suspension by the NDMC service w.e.f. 09.12.2005 during the period of above said election and was unemployed w.e.f. 09.12.05 to 16.05.07. During the said period above said election was held and I was just well coming our friends, relatives, well wishers supporters and area persons of society only, being human in nature on the date 03.04.07 where is my fault? Will Sub Inspector Satish Singh pay the expenditure of the said programme which he has ruined, as the lady was unemployed and her companion were supported by society, friends and relatives, same became useless due to negligence of said complainant Sub Inspector."
4. From the above reply, it is apparent that respondent no.4 admitted his presence at the election meeting of his wife. A departmental enquiry was conducted and enquiry officer gave his report to the Disciplinary Authority and the Disciplinary Authority accepted the enquiry report and a disciplinary action was taken against respondent no.4 by the disciplinary authority. Respondent no.4 later on filed a complaint before the learned MM that he was not present on the spot and the photograph submitted by the concerned Sub Inspector did not show him present at the dais and he was at home at that time. This stand of respondent no.4 was just reverse to his earlier stand that he was present at the spot but was not on dias. He made the petitioners herein as an accused persons in his complaint before the learned MM alleging that the petitioners had colluded with police Sub Inspector and forged documents to show his presence at the election meeting. He examined one witness who stated that he was not present on the dais. On the basis of this statement, the learned MM directed registration of an FIR against petitioners and Sub Inspector.
Crl.MC 2871/2010 Page 2 Of 3
5. I consider that the learned MM acted in gross misuse of his powers. It is settled law that making a person as an accused is not a trivial act and it amounts to serious encroachment on the rights of the person. A person, who has not done any offence, cannot be made as an accused. I fail to understand how Sub Inspector, the Director (Vigilance), Chairman of NDMC, Additional Law Officer or Enquiry Officer could have been made accused in this case. The Enquiry was conducted by the Enquiry Officer and the respondent was at liberty to produce his evidence. An Enquiry Officer acts in a quasi- judicial manner and gives his report. It is his duty to give his finding of facts which may or may not be accepted by the Disciplinary Authority. The Disciplinary Authority if accepts the report of the Enquiry Officer, it has to initiate disciplinary action against the employee and if the employee is aggrieved by the disciplinary action taken against him, he has a right to appeal before the Appellate Authority and if he is still aggrieved from the decision of of appellate authority, he can go to the next higher forum. Under no circumstances, any of the officer of NDMC including Enquiry Officer, Presenting Officer, disciplinary Authority, Chairman of NDMC or the appellate authority who may turn down the appeal can be considered liable for any criminal action. Even if it is presumed that the conclusion arrived at by the Enquiry Officer was not correct, no criminal action can be brought against the Enquiry Officer for his conclusion. I find that the FIR registered against the petitioners was gross misuse of the judicial power by the learned MM.
6. The petition is allowed and FIR No.252 dated 7th August, 2010 under Sections 167, 195, 196, 323, 355, 506 and 120B read with Section 34 of the IPC and the proceedings including the order dated 20th July, 2010 passed by learned MM in criminal complaint no.CC 1744 of 2009 titled "Hari Ram Tiwari v. Satish Singh and Ors are hereby quashed.
January 17, 2011 SHIV NARAYAN DHINGRA, J rd Crl.MC 2871/2010 Page 3 Of 3