Central Administrative Tribunal - Delhi
Dalip Singh vs Comm. Of Police on 2 January, 2020
1
OA No.2737/2014
Central Administrative Tribunal
Principal Bench
OA No.2737/2014
New Delhi, this the 2nd day of January, 2020
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Mr. A.K. Bishnoi, Member (A)
HC Dalip Singh,
Aged about 44 years,
S/o Late Sh. Jai Dayal Singh,
R/o 0-8, Police Colony, Model Town,
Delhi.
...Applicant
(By Advocate : Shri Sachin Chauhan)
Versus
Commissioner of Police & Ors. through :
1. Commissioner of Police,
Police HQ, IP Estate,
New Delhi.
2. The Joint Commissioner of Police (P&L),
Rajpura Road, New Delhi.
3. The Dy. Commissioner of Police (P&L),
Rajpura Road, New Delhi.
...Respondents
(By Advocate : Shri Amit Anand)
ORDER (ORAL)
Justice L. Narasimha Reddy, Chairman :-
The applicant was working as Head Constable in the Jahangir Puri Police Station of the Delhi Police in the 2 OA No.2737/2014 year 2011. A complaint was received from one Smt. Ansaro Khatoon on 06.10.2009, wherein, it was stated that her daughter, by name, Ruksar Khatoon was employed as domestic servant in the Kothi at Ashok Vihar, but she did not come back on that day. She suspected that her daughter may have been kidnapped by one Niranjan and his friend Sumit. The complaint was received and FIR was registered. The investigation was entrusted to a Sub Inspector, by name, Shri Bhagwan. On 02.02.2010, the investigation was transferred to the applicant.
2. It is stated that the applicant recovered Ruksar from Muradabad on 03.07.2010 and got her medically examined. He was said to have recorded her statement and produced him before the Magistrate, where statement under Section 164 Cr.P.C was recorded. Ruksar is said to have stated before the Magistrate that Shri Naresh Gupta, her employer, took her for shopping in the market and thereafter kept her in a room for two days and raped her. Mr. Santosh and Niranjan are also said to have raped her and thereafter handed her over to Mr. Anil Gupta, who took her to Muradabad. On 3 OA No.2737/2014 16.08.2010, the case was handed over to a woman Sub Inspector, by name, Ms. Vinita. NBWs are said to have been taken against all the accused and that on 28.10.2010, Mr. Naresh Gupta was granted anticipatory bail.
3. Disciplinary proceedings were initiated against the applicant by issuing a summary of allegations on 15.02.2011. Several alleged lapses on the part of the applicant in the course of the investigation, at the relevant point of time, were mentioned. Thereafter, witnesses were examined and charge was framed. The applicant offered his defence and the Inquiry Officer submitted his report on 05.09.2012, holding the allegations against the applicant as proved. Copy of the same was made available to the applicant. On a consideration of the explanation submitted by him, the Disciplinary Authority (DA) passed an order dated 20.02.2013, imposing the punishment of reduction to a lower rank. An appeal was preferred against the order of punishment. The Appellate Authority (AA) passed an order dated 26.06.2014, modifying the punishment to the one of forfeiture of three years approved service of the 4 OA No.2737/2014 applicant. This OA is filed challenging the order of punishment, as modified in the appeal. A declaration is also sought to the effect that the very initiation of the proceedings against the applicant was unjustified and to restore the 3 years of approved service of the applicant, with all consequential benefits.
4. The applicant contends that on receipt of a complaint, the Station House Officer (SHO) registered an FIR, by invoking Section 363 of the IPC and entrusted the matter to a Sub Inspector for investigation. He contends that according to the norms prescribed in this behalf, the Head Constable is not competent to investigate any matters of this nature and still, the then SHO, entrusted the same to him. He submits that in obedience to such entrustment, he recovered the kidnapped girl and has brought to light, several features and instead of appreciating him for the progress in the case, disciplinary proceedings were initiated against him, only to help the accused, who were influential persons. He submits that in the course of inquiry, the then, SHO had admitted that the investigation ought not to have been entrusted to him i.e. the applicant, and the so called defects could have 5 OA No.2737/2014 been rectified. It is also stated that the Inquiry Officer has mechanically recorded findings, stating that the charge is proved. He further submits that various observations made by the Inquiry Officer, the DA and the AA, have the effect of weakening the case of the prosecution and any final word in this regard could have been said only by the Court.
5. The respondents filed counter affidavit opposing the OA. It is stated that the case was registered on a complaint of Mrs. Ansaro Khatoon, which has received the attention of the High Court and re-investigation was also done as per the orders of the Court. It is stated that the applicant has deviated from the prescribed procedure and has taken various steps, resulting in false implication of otherwise innocent persons. The respondents denied the allegations made by the applicant and contend that the inquiry was conducted, strictly in accordance with the prescribed procedure, and no illegality has crept in to the proceedings. It is also stated that the AA has examined the matter in detail in an objective manner and has, infact reduced the 6 OA No.2737/2014 punishment and the applicant cannot have any grievance.
6. We heard Shri Sachin Chauhan, learned counsel for applicant and Shri Amit Anand, learned counsel for respondents. Both of them reiterated the grounds in the respective pleadings and have expanded the same during the course of the arguments.
7. From the inception, the case registered on the complaint submitted by Mrs. Ansaro Khatoon was the one under Section 363 of IPC. The investigation thereof was entrusted to Sub Inspector, by name, Shri Bhagwan. In cases of this nature, complications are bound to come to light as and how the investigation progresses. Depending on the nature thereof, the investigation is taken up by superior authorities so that it proceeds on correct and appropriate lines. In the instant case, however, it has taken a reverse direction. Investigation which was in the hands of the Sub Inspector, was transferred to a Head Constable. To a specific question in the departmental inquiry, the SHO answered as under:-
7OA No.2737/2014
"Q.No.8Whether a head constable is entitled to investigate the case of u/s 363/376 IPC?
Ans. No. Q.No.9Is it true that the then SHO Insp. S.B. Yadav had marked the further investigation to HC Dalip on 2/2/10?
Ans. Yes Q.No.10Is is true that the then SHO Insp. S.B. Yadav had violated the provisions of S.O.No.303/09?
Ans. Yes."
It is clear that the very entrustment of the investigation to the applicant was contrary to the law.
8. The applicant was instrumental in recovering the girl who was said to have been kidnapped and recorded not only her statement under Section 162 Cr.P.C. but also arranged for recording statement under Section 164 Cr.P.C. before the Competent Magistrate. If anything further was required to be done, there would not have been any difficulty to do that, as long as the final report i.e. the charge sheet, was not filed. Instead, the respondents have chosen to initiate disciplinary proceedings against the applicant by issuing a memo. The allegations made against the applicant are as under:- 8 OA No.2737/2014
"1. The prosecutrix was recovered from Muradabad (U.P.) but I.O. while preparing a recovery memo has mentioned that statement of the prosecutrix u/s 162 Cr.P.C. recorded which will hit statement for prosecutrix 161 Cr.P.C.
2. I.O. did not examine the owner as well as neighbours in Muradabad (U.P.) from where the prosecutrix was recovered. I.O. did not try to verify whether prosecutrix was kept confined or she was staying willingly with Anil Gupta.
3. I.O. neither took any exhibit i.e. wearing cloths etc. in his custody from the spot where the prosecutrix was residing with Anil Gupta nor he prepared any pointing out memo.
4. The prosecutrix was medically examined but the I.O. did not take any under garments of the prosecutrix in Police possession.
5. After recovery of the prosecutrix, I.O. did not examine her in detail. She must have been interrogated with the help of N.G.O. or ladies staff which is mandatory.
6. On 4.07.10, statement of prosecutrix was recorded u/s 164 Cr.P.C. in which she leveled allegation of rape against Niranjan, Sumit, Naresh Gupta. Naresh Gupta is a businessmen and remaining two accused persons are servants. She did not make any allegation of rape against Anil Gupta with whom she stayed for about 8 months as husband and wife. But I.O. did not try to verify the facts of the gang rape as alleged by the prosecutrix in her statement. He neither try to get 9 OA No.2737/2014 identified the place of occurrence of rape as alleged by the prosecutrix nor did he prepare the pointing out memo of the same.
7. I.O. did not obtain the call detail of the accused persons, prosecutrix and the complainant to know their whereabouts at the time of commission of offence as well as during stay of prosecutrix with Anil Gupta.
8. I.O. did not verify the date and market where the Shopping was done with Naresh Gupta as she alleged in her statement U/s 164 Cr.P.C.
9. I.O. did not try to verify the application of prosecutrix in which she requested the Court to record her statement again u/s 164 Cr.P.C.
10. I.O. did not take blood sample of accused Santosh @ Rahul on 6/8/10 during his medical examination when he was arrested.
11. I.O. did not take permanent address of the complainant as well as prosecutrix as they have been residing as a tenant at the given address. The grounds to obtain the NBW against Shri Naresh Gupta were not sufficient as some facts were concealed by the HC, as he was regularly in touch with him. Moreover, the I.O. HC Dalip Singh clearly knows that the commission of rape has been occurred even then also he did not bother to mark the case file to the lady officer or informed the senior police officers.10 OA No.2737/2014
Thus HC Dalip, No.444/NW clearly violated the rules and regulations envisaged in Standing Order No.303/09 and curtailed the seriousness of the crime or section 376 IPC."
9. A perusal of at least some of the allegations extracted above, discloses that the disciplinary authority wanted to dig holes into the very statement recorded under Section 164. It is not as if that by the time the disciplinary proceedings were initiated, the final report was filed. As observed earlier, the investigation was transferred from the applicant to a lady Sub-Inspector, once it was realised that the allegations pertaining to the offence punishable under Section 376 IPC have surfaced.
10. The lists of so called lapses on the part of the applicant are such that they could have provided help to the defence counsel in the criminal case. That in fact was the contention of the applicant in his appeal against the order of punishment. The AA made the following observations in this behalf :-
"His one of the contention that implicating the appellant will indirectly benefit the accused during trial is true. But this does give liberty to the appellant to falsely implicate someone in a heinous criminal case such as 11 OA No.2737/2014 "rape" misusing his powers conferred by law. The stigma of "Rapist" has far reaching agonies on the social life of a person, even after the person is proved innocent of the charges. Moreover, these facts were revealed during the reinvestigation of the case on the direction of Hon'ble Trial Court and department has to fact embarrassment due to faulty investigation."
11. Even while accepting the contention of the applicant that the initiation of the proceedings would have helped the accused, the AA has gone a step further and gave a certificate of innocence to one of the accused, that too when the criminal case was pending. The whole episode smacks of a carefully planned effort to extricate some of the accused and to provide a fertile ground for them, by the time the case comes up for trial. The observations of the AA in concluding portion reads as under :-
"However, on careful perusal, it is hard to understand how Head Constable rank officer was allowed to investigate such a heinous case of rape in contravention of guidelines from the Apex court and instructions thereof? The then SHO was also directly involved in the investigation of the case on number of occasions and cannot escape with the responsibility for these lapse, but surprisingly was not subjected to the scrutiny of departmental proceedings. Why SHO has not taken corrective action to hand over the case to a competent officer as 12 OA No.2737/2014 per guidelines and Standing Order NO.303/09?
12. Once the applicant was able to elicit from the SHO that the investigation ought not to have been entrusted to him at all, the fault if at all, was with, the then, SHO who transferred the investigation from a Sub Inspector to a Head Constable. The AA did take exception to the very exercise and found fault with the administration. However, he went on commenting that the applicant ought to have taken steps to transfer investigation, little realising that he was not the one, who could have transferred the investigation.
13. It is rather unfortunate that in a gigantic establishment like Delhi Police such things have happened and the inference, if at all, is only that the applicant was made a scapegoat in the process of helping someone to come out of the case. The record also discloses that the applicant was directed by one ACP not to arrest the accused. That only shows the amount of interest which the higher administration has taken to protect the accused, than to take the investigation to its 13 OA No.2737/2014 logical conclusion. The whole episode is a sad reflection on the functioning of the establishment.
14. We do not find any basis for the very initiation of the proceedings, much less, for imposing punishment upon the applicant.
15. Therefore, the OA is allowed and the order of punishment dated 20.02.2013, as modified by the AA is set aside. The applicant shall be extended the consequential benefits, within a period of three months, from the date of receipt of a certified copy of this order.
( A.K. Bishnoi ) ( Justice L. Narasimha Reddy )
Member (A) Chairman
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