Patna High Court
Maharana Pratap Singh vs The State Of Bihar & Ors on 16 July, 2013
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.471 of 2004
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Maharana Pratap Singh son of Shri Bhuneshwar Singh, resident of village
Taranpur, P.S. Gaurichak, District Patna.
.... .... Petitioner
Versus
1. The State of Bihar.
2. Director General-cum-Inspector General of Police, Bihar, Old Secretariat,
Patna.
3. The Additional Director General of Police, Crime Investigation Department,
Bihar, Old Secretariat, Patna.
4. The Deputy Inspector General of Police, Crime Investigation Department,
Old Secretariat, Patna.
5. The Superintendent of Police, Crime Investigation Department, Old
Secretariat, Patna.
6. The Deputy Superintendent of Police, Crime Investigation Department, Old
Secretariat, Patna.
.... .... Respondents
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For the Petitioner : M/s Abbas Haider and Ranjay Kr. Singh, Advocates.
For the Respondents : Mr. Anis Akhtar, A.C. to G.A.3
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P R E S E N T : HONOURABLE MR. JUSTICE S.N. HUSSAIN
JUDGMENT
S.N. Hussain, J. This writ petition has been filed by the petitioner
challenging order of the Superintendent of Police, Crime
Investigation Department, Patna (respondent no.5) vide memo
no.1833 dated 21.06.1996 by which the petitioner was dismissed
from service with a further direction that he will not get anything for
the period of suspension except what had already been paid to him
and also challenging order of the Deputy Inspector General of Police,
Crime Investigation Department, Patna (respondent no.4) vide memo
no.2404 dated 14.07.1997 dismissing petitioner's appeal and also
Patna High Court CWJC No.471 of 2004 dt.16-07-2013
2
challenging order of the Director General of Police/Inspector General
of Police, Bihar (respondent no.2) vide memo no.2866 dated
06.08.2003dismissing revision/memorial of the petitioner and affirming the decision of the first authority. His further prayer is for directing the respondents to give the petitioner all consequential benefits arising out of his impugned dismissal.
2. The claim of petitioner is that after due procedures of law he was appointed as constable in Dog Squad of Crime Investigation Department (C.I.D.) and he joined the post in the year 1973 and for about 15 years continued to serve the department and only in the month of August, 1988 he proceeded on Earned Leave for two days, whereafter he was to resume his duty on 08.08.1988. However, on 07.08.1988 one Prem Kumar Singh lodged an F.I.R. bearing Kotwali P.S. Case No.882 of 1988 for cheating and extortion against unknown persons and on his request a raiding party was organized which went to Rajsthan Hotel, Patna on 08.08.1988 where the accused was expected to be coming to collect Rs.40,000.00 from the informant. In the meantime after availing his Earned Leave the petitioner came to Patna on 08.08.1988 and while he was proceeding towards his office to join his duty, the informant forcibly handed over a briefcase to him near Rajsthan Hotel and immediately thereafter he was arrested by the raiding party and was brought to Patna High Court CWJC No.471 of 2004 dt.16-07-2013 3 Kotwali Police Station where he was locked in the Hajat. On the same date the petitioner was suspended by his superior authority.
3. The police submitted its charge sheet on 05.10.1988 whereafter cognizance was taken and finally the trial commenced in which judgment dated 26.04.1994 was passed convicting the petitioner and other accused persons and punishing them by sentence for different charges. However, when the petitioner along with other co-accused preferred Criminal Appeal No.108 of 1994, the learned Additional Sessions Judge-XI, Patna, after full-fledged hearing allowed the appeal and set aside the order of conviction and sentence passed by the trial court holding that the prosecution had miserably failed to prove its case.
4. In the meantime, on 14.06.1989 a departmental proceeding was initiated against the petitioner on the written statement of the informant and show-cause notice along with memo of charges were served upon him which contained the following four charges:-
(i) Upon the written report of Shri Prem Kumar Singh, Kotwali P.S. Case No.882 of 1988 was registered under sections 392, 387, 420, 342, 419 and 34 of the Indian Penal Code and in connection with the same, the petitioner was arrested by the Kotwali Police while he was receiving Rs.40,000/- from the informant.
(ii) On 30.06.1976 Sanha P.S. Case was registered against the petitioner for cheating the Manager Patna High Court CWJC No.471 of 2004 dt.16-07-2013 4 of Eliphiston Cinema Hall by introducing himself as Sub-Inspector of CID for which he was held guilty and was punished;
(iii) The petitioner after availing his leave, was to resume his duty on 08.08.1988, but he failed to do so and on the said date he was arrested by the Kotwali Police;
(iv) The petitioner did not inform regarding his arrest on 08.08.1988 to the CID Headquarters.
5. On receipt of the show-cause notice the petitioner vide letter dated 15.03.1990 filed a representation requesting the authorities to keep the departmental proceeding pending till finalization of criminal case against him stating that if the petitioner cross-examines the witness in the departmental proceeding then the informant will take undue advantage in the court where the criminal case was pending. However, ignoring the request of petitioner the Conducting Officer proceeded with the enquiry and submitted his report on 23.06.1995 finding that the petitioner was guilty of the charges levelled against him. Thereafter the disciplinary authority, namely the Superintendent of Police issued second show-cause notice to the petitioner on 23.06.1995 along with an enquiry report in response to which the petitioner filed his detailed show-cause on 11.03.1996 stating the entire facts of the case and also stating the alleged illegalities committed by the Conducting Officer in course of the enquiry. But the Superintendent of Police passed the Patna High Court CWJC No.471 of 2004 dt.16-07-2013 5 impugned order dated 21.06.1996 accepting the enquiry report and dismissing the petitioner from his service without taking into consideration the show-cause filed by the petitioner against the proposed punishment. This order was affirmed by the Deputy Inspector General of Police as well as the Director General of Police vide impugned orders dated 14.07.1997 and 06.08.2003 in which also the points raised by the petitioner were not considered. In this regard learned counsel for the petitioner stated that the revision/memorial of the petitioner remained pending for a long time and only on a direction of a Bench of this Court vide order dated 13.05.2002 passed in C.W.J.C. No.5946 of 2002 the said memorial was decided on 06.08.2003 by the revisional authority in a haste post haste manner.
6. Now against the aforesaid impugned orders of the disciplinary authority as well as of the appellate and the revisional authorities the instant writ petition has been filed by the petitioner challenging the procedures adopted by the Conducting Officer in the enquiry and the manner in which the points raised by him in his second show-cause as well as in the memorandum of appeal and the revision application had been ignored by the concerned authorities, although it clearly proved that the entire allegations against the petitioner were false and fabricated due to the mischief and bias of Patna High Court CWJC No.471 of 2004 dt.16-07-2013 6 the allegationist as well as the frivolity in the evidence of the two witnesses produced in the departmental proceeding as the informant's claim was clearly rejected by the Court of law in the criminal appeal holding that the prosecution had miserably failed to prove the charges by any valid evidence. Hence learned counsel for the petitioner argued that the impugned orders were illegal, arbitrary and perverse and were fit to be quashed.
7. On the other hand, learned counsel for the respondents vehemently opposed the contentions of learned counsel for the petitioner and stated that out of the four charges, charge no.(iv) was found to be partially proved, whereas charge nos.(i), (ii) and (iii) were fully proved. The said report was prepared only after giving opportunities to the petitioner and after considering the evidence on record. So far the question of cross-examination is concerned, learned counsel for the respondents submitted that there was no chit of paper to show that the petitioner ever wrote to the Conducting Officer for cross-examination of the prosecution witness although the petitioner was present and participated in the enquiry.
8. Learned counsel for the respondents averred that charge nos.(i) and (ii) were proved by the evidences, which were never challenged by the petitioner, whereas charge nos.(iii) and (iv) were also proved by materials not denied by the petitioner. Patna High Court CWJC No.471 of 2004 dt.16-07-2013 7 Furthermore, no written explanation was filed by the petitioner during the enquiry and all these facts had been considered by the disciplinary authority as well as the appellate and revisional authorities in their respective orders, which are under challenge in the instant writ petition.
9. Learned counsel for the respondents asserted that after three years the petitioner filed an application to cross-examine witness no.1 on 10.08.1994, whereafter order dated 28.08.1994 was passed. Hence the petitioner was given sufficient opportunities but he deliberately did not cross-examine witness no.1 and in spite of written and verbal instructions petitioner did not appear at the relevant time and hence the impugned orders were well founded decisions requiring no interference from this Court.
10. Considering the averments made by learned counsel for the parties and the materials on record, it transpires that the allegations in the F.I.R. filed by the informant before the police and his written statement filed in the department were exactly the same alleging that while the informant Prem Kumar Singh along with one Devnath Singh was returning from Hotel Satkar, a friend of the latter met them and on his request they went to Room No.204 of Hotel Satkar for a cup of tea and while the informant and others were waiting in the room, a person in the uniform of Police Inspector and Patna High Court CWJC No.471 of 2004 dt.16-07-2013 8 another person in the uniform of Deputy Superintendent of Police entered the room, asked them why they were sitting there, bolted it from inside and opened the door of the bathroom attached to the room and a girl aged 25 years came out of the bathroom due to which the police officers stated that they were involved in some immoral acts. It was also claimed that on the direction of police officers on the point of revolver the girl and the informant put off their clothes and the said officers took the nude and vulgar photographs of informant with the girl and thereafter they snatched Rs.2,800.00 from the pocket of the informant and directed the informant and his acquaintance to pay Rs.1 lac or to face consequences. But the informant managed to pay only Rs.60,000.00 to the said officer and the remaining amount of Rs.40,000.00 was to be paid on 08.08.1988 near Rajsthan Hotel.
11. It is admitted fact that on the said allegation Kotwali P.S. Case No.882 of 1988 was registered by the Patna Kotwali Police Station for offences punishable under sections 392, 387, 420, 342, 419 and 34 of the Indian Penal Code to which subsequently section 411 of the Indian Penal Code was added, cognizance was taken and trial proceeded in which several witnesses and evidences were produced by the prosecution side and finally the petitioner was convicted and sentenced for different charges levelled against him Patna High Court CWJC No.471 of 2004 dt.16-07-2013 9 vide judgment dated 26.04.1994. However, against the said order petitioner filed Criminal Appeal No.108 of 1994, which was placed for hearing before learned Additional Sessions Judge-XI, Patna, who after hearing learned counsel for both the sides and after considering the materials on record as well as the findings of the trial court passed his judgment dated 16.02.1996 holding that no substantive evidence about the involvement of petitioner had been brought on record and hence the prosecution had miserably failed to prove its case. Accordingly, the impugned order of the trial court was set aside, the appeal was allowed and the petitioner and other co-accused persons were held not guilty and were accordingly acquitted.
12. From a bare perusal of the allegations levelled by the informant, who had filed written statement in the department against the petitioner and the story advanced by him does not appear to be convincing at all and there were several apparent loopholes in it as to why a person would go into the room of a Hotel only for having a cup of tea and furthermore why an acquaintance would take the informant and other persons to the room leaving a young girl in the toilet attached to the room. In the said circumstances, it was for the prosecution to prove the said allegation by reliable witnesses and documents giving satisfactory version on all the issues involved.
13. Furthermore, there was another angle also in the case Patna High Court CWJC No.471 of 2004 dt.16-07-2013 10 as the then Officer In-charge of Kotwali Police Station Sri Kumar Amar Singh, who deposed as witness in the departmental enquiry, had matrimonial relationship in the family of Sri Birendra Singh, who had bitter conflict and dispute with the family of petitioner as they were residents of the same village and hence the said Officer In- charge was said to be bent upon teaching a lesson to the petitioner and the said fact was also brought to the notice of the Conducting Officer, but its validity or otherwise was never considered by any of the authorities.
14. It also transpires from the record that the prosecution gave a list of seven witnesses in the proceeding but only two of them appeared out of whom one was the above mentioned Officer In- charge Sri Kumar Amar Singh, whereas the other was Sri Devendra Pathak, who in his cross-examination denied the involvement of the petitioner in the alleged occurrence, but the said statement was also ignored by the Conducting Officer and the petitioner had specifically alleged that it was done only due to influence of the Officer In- charge Sri Kumar Amar Singh.
15. A specific point has been raised in this regard by the petitioner that he was given no opportunity at all to cross-examine the above named prosecution witness Sri Kumar Amar Singh, the then Officer In-charge of Kotwali Police Station, who had deposed Patna High Court CWJC No.471 of 2004 dt.16-07-2013 11 against the petitioner. In reply, the respondents' claim is that there is no chit of paper to show that petitioner even wrote to the Conducting Officer for cross-examination. This excuse is not legal and proper as the accused is not required to write to the Conducting Officer to allow him to cross-examine the witness rather it was for the Conducting Officer to give opportunity to the accused to cross- examine the witness immediately after his examination-in-chief, but there is no material to show that any such opportunity was given by the Conducting Officer to the petitioner. In absence of such opportunity, the deposition of the said witness was not fit to be relied upon and it also proved that the Conducting Officer was clearly influenced by the said Officer In-charge.
16. Now considering the charges levelled against the petitioner, it transpires that charge no.(i) was with respect to the aforesaid criminal case bearing Kotwali P.S. Case No.882 of 1988 regarding cheating and extortion but in the said case petitioner was awarded clean acquittal as the prosecution had miserably failed to prove petitioner's involvement in any such case.
17. No doubt, the Apex Court in case of Union of India and another Vs. Bihari Lal Sidhana, reported in (1997) 4 Supreme Court Cases 385 held that acquittal of a person in a criminal case does not entitle him to automatic reinstatement because Patna High Court CWJC No.471 of 2004 dt.16-07-2013 12 disciplinary action can be taken even after acquittal and hence even during the pendency of criminal case termination of service is permissible. But subsequently the Apex Court in case of G.M. Tank Vs. State of Gujarat & Anr., reported in A.I.R. 2006 SC 2129 held as follows:-
31. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant.
The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his Patna High Court CWJC No.471 of 2004 dt.16-07-2013 13 judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
32. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case.
Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.
18. It further transpires that charge no.(ii) of the memo of charges was with respect to cheating the Manager of Eliphiston Cinema Hall for which a departmental proceeding was initiated much earlier in the year 1976 in which a punishment of black mark was imposed. A departmental proceeding having already been initiated against the charge which reached to its logical conclusion, this charge cannot be legally raised again in any other departmental proceeding including the instant proceeding.
Patna High Court CWJC No.471 of 2004 dt.16-07-2013 14
19. It also transpires that charge nos.(iii) and (iv) were petitioner's non-resumption of duty on 08.08.1988 when his Earned Leave had ended and his non-information to the C.I.D. Headquarters regarding his arrest on 08.08.1988. These charges are self- explanatory as the petitioner was to resume his duty on 08.08.1988 but on the same date he was arrested and was kept in the Hajat of the police station, which could be obvious reason for his non-joining on 08.08.1988 and non-information of his arrest on the same date.
20. Considering the aforesaid facts and circumstances, the charges levelled against the petitioner appear to be absolutely frivolous and misconceived, whereas the enquiry report submitted by the Conducting Officer was not on the basis of any sound, legal process rather it was based on the statement of an interested person, who was the Officer In-charge of the police station and the accused was not even allowed to cross-examine.
21. Furthermore, the police case was lodged on the same set of charges and similar evidence was adduced therein, but learned Additional Sessions Judge-XI, Patna after full consideration of the facts acquitted the petitioner on merit and not on any technical ground vide judgment dated 16.02.1996. However, the disciplinary authority as well as the appellate and revisional authorities in their respective subsequent orders dated 21.06.1996, 14.07.1997 and Patna High Court CWJC No.471 of 2004 dt.16-07-2013 15 06.08.2003 failed to give any valid and proper reason for differing with the findings of the criminal case. In addition to that the said authorities completely ignored the points discussed above, although they were specifically raised by the petitioner in his second show- cause, memo of appeal and revision application.
22. In the said circumstances, this writ petition is allowed, the aforesaid impugned orders of the authorities dated 21.06.1996, 14.07.1997 and 06.08.2003 are hereby quashed and the respondents-authorities are directed to give the petitioner all consequential benefits since the date of dismissal of his service, which has been quashed by this order.
Patna High Court, Dated 16th July, 2013 (S.N. Hussain, J) N.A.F.R. Harish/-