Central Administrative Tribunal - Delhi
Inspector Rajbir Singh (D-1/100) vs Government Of Nct Of Delhi Through on 30 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.592 of 2011 This the 30th day of August, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Inspector Rajbir Singh (D-1/100) PIS No.28790003 S/o Chandgi Ram, R/o C-11, Kiran Garden, Uttam Nagar, New Delhi-110059, posted with Delhi Police, at Rashtrapati Bhawan, New Delhi. Applicant ( By Ms. Jasvinder Kaur, Advocate ) Versus Government of NCT of Delhi through Commissioner, Delhi Police, PHQ, BSZ Marg, New Delhi. Respondent ( By Shri B. N. P. Pathak, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Rajbir Singh, an Inspector in Delhi Police, faced a joint regular departmental enquiry with one Inspector Dilip Kumar under the Delhi Police (Punishment and Appeal) Rules, 1980. The enquiry officer after recording statements of witnesses examined on behalf of the department, framed charge against the applicant and his co-delinquent, which reads as follows:
I, Vivek Kishore, Addl. Dy. Commissioner of Police, South WestDistrict, E.O. hereby charge you Inspt. Dilip Kumar No.D/3286 (PIS No.16890024) the then Inspr. L&O PS JP Kalan and you Inspr. Rajbir Singh No.D-1/100 (PIS No.28790003) the then SHO/JP Kalan that a case FIR No.37/08 u/s 498-A/304-B IPC, PS JP Kalan was being investigated by you Inspr. Dilip Kumar and supervised by you Inspr. Rajbir Singh, the then SHO/JP Kalan. During investigation Devender Kumar husband of the deceased was arrested on the same day but thereafter neither sincere efforts were made to arrest the remaining accused i.e. both the in-laws, jeth and jethani of the deceased nor investigation was carried out properly. The Post-mortem report of the deceased girl Manju was received during investigation from RTR Hospital in which cause of death was given as death is due to carino-cerebral damage (head injury) following blunt force impact, ante-mortem and recent. The photographs of the deceased girl also showed scratch mark on both the arms of the deceased which shows that there was scuffle before death. The result of PM report and photographs were not brought to the notice of ACP/Najafgarh. Considering PM report and photographs, Sec.302 IPS was required to be added in the case but you Inspr. Dilip Kumar, the then IO of the case and Inspr. Rajbir Singh, the then SHO/JP Kalan did not amend the section though the bail application of accused Devender Kumar was pending consideration in the Court of Ld. ASJ u/s 498-A/304-B IPC. Since the complainant was not satisfied with the investigation, he filed a complaint in the office of CP,Delhi with copies to DCP/South-West and ACP/Najafgarh alleging inaction and collusion of the local police with the accused persons. The complainant also appeared before ACP/Najafgarh and narrated his grievances and told that local police was not making sincere efforts to arrest the remaining accused persons. He further told that he was also not informed about the bail application filed on behalf of accused Devender Kumar. Considering the allegation ACP/Najafgarh transferred the investigation of this case to Inspt. Investigation Satender Yadav. On transfer of the investigation, Inspr. Satender Yadav added Sec.302 IPC in the case after assessing the available evidence. It was observed that you Inspr. Dilip Kumar, the then I.O. of the case did not carry out proper investigation and the same was also not supervised by you Inspr. Rajbir Singh, then then SHO/PS JP Kalan. Sincere efforts were not made for the arrest of accused persons with the intention to give them a chance for anticipatory bail. As per Post-mortem report and photographs, Sec.302 IPC should have been added and this should have also been brought into the notice of Ld. ASJ who was hearing the bail application of accused Devender Kumar but it was not done and the bail application was continued for hearing u/s 498-A/304-B IPC. The omission and commission on the part of you Inspr. Dilip Kumar, the then I.O. of the case and Inspr. Inspr. Rajbir Singh, the then SHO/PS JP Kalan was willful with mala fide intention to help the accused persons.
The above act on the part of you, Inspr. Dilip Kumar No.D/3286, the then I.O. of the case and Inspr. Rajbir Singh No.D-I/100, the then SHO/PS JP Kalan being supervisory officer amounts to gross misconduct, negligence and dereliction in the discharge of your official duties, which render you liable for punishment under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980. The applicant was given opportunity to lead evidence in defence which was availed by him. Four defence witnesses were examined by the applicant. The enquiry officer while discussing and assessing the evidence, came to the conclusion that the charge stood fully proved. The applicant was supplied copy of the report, against which he made representation. The disciplinary authority, vide orders dated 5.5.2010 dismissed the applicant and his co-delinquent from service. Aggrieved, the applicant filed an appeal, which has been partly allowed by the appellate authority vide order dated 3.1.2011. While holding the applicant guilty, the appellate authority has reduced the punishment to that of forfeiture of two years approved service permanently entailing proportionate reduction in pay. It has also been ordered that the intervening period from the date of dismissal to the date of the order would be treated as period not spent on duty on the principle of no-work-no-pay, but the same would not affect the pensionary benefits. The period from the date of the order to the date of joining has been ordered to be treated as leave of the kind due. These are the orders which have been challenged by the applicant in this Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985.
2. Two main allegations against the applicant, as may appear from the charge framed against him and his co-delinquent, are that even though on the basis of injuries suffered by the deceased and the post-mortem report, a case u/s 302-IPC was made out, the FIR was not registered under the said section; and that, but for the husband of the deceased, other accused involved in the crime, were not arrested. The applicant, before we may proceed any further, we may mention, was the supervisory officer, whereas the investigating officer of the crime was his co-delinquent. The applicant had offered explanation on both counts as mentioned above. As regards the first allegation, as mentioned above, his plea was that there could not be any ill motive on his part not to have added section 302 IPC as the FIR had already been registered u/s 304-B which would be more heinous crime, and further that adding of section 302 could be done after receipt of the post-mortem report, in which direction the applicant had proceeded, but before it could be done, the investigation of the case was handed over to another police officer. As regards the second allegation made against him, it has been the case of the applicant that insofar as the husband of the deceased is concerned, he was arrested on the same day, and that all out efforts were made to arrest the remaining accused persons, but in vain. He pleaded that the accused fled from the village and despite raids having been conducted ten times at their possible hideouts at different places, they could not be caught, which would be evident from the case diaries, and that there was not even an iota of evidence to prove that the remaining accused were roaming freely in the village. It was also the case of the applicant that even after transferring the investigation, two accused persons namely Ram Kumar, father-in-law and Jasvir Kumar, jeth of the deceased were arrested after 47 days by Inspector Satender Yadav; and Kamlesh, mother-in-law of the deceased, was arrested by Inspr. Tara Chand (the third investigating officer) on 28.8.2008 from village Kakrola, after getting her non bailable warrants from the court concerned; and that Savita, jethani of the deceased, remained absconding even after filing of challan and was declared proclaimed offender, and thus these facts would establish that the accused persons were at large and they were not roaming freely as was the allegation.
3. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. It is strenuously urged by Ms. Jasvinder Kaur, learned counsel representing the applicant, that the defence projected by the applicant has gone abegging as none of the authorities, i.e., the disciplinary authority or the appellate authority, had even remotely discussed the evidence led by the applicant. Shri B. N. P. Pathak, learned counsel representing the respondents, would, however, join issues with counsel for the applicant. Section 304-B IPC came to be inserted by Act 43 of 1986 with effect from 19.11.1986. As per provisions thereof, where death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death. Punishment under section 304-B can extend to imprisonment for life. Section 302 is punishment for murder, which can be death or imprisonment for life. In the context of the fact that the FIR was registered u/s 304-B, which also prescribes life sentence as the punishment, and that death caused by bodily injury is also covered under the said section, with the only exception that such injury is caused because of demand of dowry, the explanation furnished by the applicant that he was not mixed up with any one, needed a serious thought. We may not agree with the counsel for the applicant that section 304-B is a more heinous offence, but at the same time, it covers causing death by bodily injury as well because of demand of dowry. If an offence u/s 304-B is proved, in the matter of sentence, there may be no leniency with the accused and, as our experience shows, the normal punishment would be life sentence. Further, the plea of the applicant that after receipt of post-mortem report, he was proceeding in the direction of adding section 302 as well, but meanwhile the investigation was taken over by somebody else, also needed consideration. The applicant has given positive facts to show that the accused other than the husband of the deceased were absconding. He has given the number of raids conducted at their possible hideouts, supported by case diaries. He has also given exact dates as to when they were arrested, and we may mention that they were arrested even far after the investigation was taken over by somebody else, and one of the accused was declared proclaimed offender. This explanation given by the applicant also needed serious thought. What, however, transpires is that whereas the disciplinary authority concluded the guilt of the applicant and his co-delinquent on the basis of evidence of the father of the deceased, Preet Singh, examined as PW-2, and Sube Ram Yadav, ACP/Najafgarh, examined as PW-4, the defence as projected by the applicant, as mentioned above, has not been taken into consideration at all. The relevant part of the order passed by the disciplinary authority, reads thus:
During D.E. PW-2, Sh. Preet Singh, the complainant deposed that on the night of 09.04.2008, the dead body of his daughter was taken over by the police of PS Jaffarpur Kalan. He asked the SHO/Jaffarpur Kalan who was standing there that he was the father of the deceased girl and he should know that why they took away her body? On this SHO told him that this was their job and not his job. At that time 190-200 police personnel were standing there. Sh. Preet Singh further stated that he was thrown out from there and told to go to Jaffarpur Kalan. He remained in the Police Station for the whole night but nobody lodged his FIR. In the morning, his statement was recorded by Tehsildar. Sh. Preet Singh also stated that he did not get any help from the police. He took the dead body of his daughter at his residence and cremated her. He visited the Police Station many times and told the police to arrest the accused persons who were roaming freely. Preet Singh stated that when he asked the police to arrest the other four accused also then SHO told him that it was their job not his and told him to go from there. When he telephoned to the I.O. Inspr. Dalip Singh for arresting the other four accused, he was told to go wherever he wanted to complain. PW Preet Singh further stated that when the bail matter of the accused Devender Kumar came up for hearing in the court he was not informed by the police. Police did not inform him about the P.M. report and photographs. PW Preet Singh deposed that police were hand in glove with accused persons.
PW-4, Sh. Sube Ram Yadav, the then ACP/N.Garh deposed that complainant Sh. Preet Singh met him in his office and complained that investigation of his case was not being conducted properly and local police was favouring the accused persons and had not arrested the accused persons except husband of his deceased daughter. ACP stated that the complainant alleged that he was not informed timely when bail application of the accused Devender was being heard in the court of ASJ. ACP further stated that the complainant told him that his daughter was murdered and all accused persons were roaming freely. PW Sh. Sube Ram, ACP/N.Garh stated that thereafter he discussed the casefile i.e., P.M. report, Photographs etc. with I.O. and SHO and found that as per PM report and photographs, section 302 IPC should have been added in this case but the same was not done. ACP also stated that the result of the P.M. report was also not conveyed to him. ACP stated that thereafter he sent a report to DCP/SWD and transferred the investigation of this case to Inspr. Satender Singh.
I have head both the delinquents Inspr. Rajbir Singh No.D-I/100 and Inspr. Dalip Kumar No.D-3286. I have carefully gone through the statements of prosecution witnesses, defence witnesses and documents placed on record. In the light of the evidence on record the pleas taken by the delinquents do not carry any weight.
Taking into consideration the entire evidence, facts and circumstances of the case in its totality, I agree with the findings of the Enquiry Officer that the charges against the delinquents have been proved beyond any iota of doubt. The charges against the delinquents are very serious and there is no doubt that both these delinquents in connivance with each other deliberately tried to suppress the murder case.
4. Before the appellate authority, the applicant had raised number of issues which have been reproduced by the said authority in its order. Despite the fact that the issues raised by the applicant have been mentioned, there is no discussion thereon whatsoever. The relevant part of the order passed by the appellate authority reads, thus:
I have carefully considered the appeals in the light of facts & circumstances of the case, material available in DE file and also heard the appellants in O.R. Due procedure was followed by the disciplinary authority in finalizing the departmental proceedings. The mandatory opportunities were given to the appellants to defend their case and they had availed the same. The EO had submitted his findings on the basis of documentary evidence on DE file.
It is observed that the complainant Shri Preet Singh, in his statement alleged about misconduct of the appellants and had shown his dissatisfaction towards the manner of investigation. The ruthless behaviour of the appellants, in such a sensitive case, caused injustice and agony to the complainant. It is clearly mentioned in the PM report that scratch abrasions were present on the body and the death was caused due to ante-mortem head injury, but neither Section 302 IPC was added nor sincere efforts were made to arrest the other accused persons. Moreover, this fact was also not brought into the notice of Ld. ASJ who was hearing the bail application of the accused.
However, in my view, the acts of commission and omission on the part of the appellants do not amount to complete unfitness for police service. Therefore, taking a lenient view, the punishment of dismissal of the appellants from service is reduced to forfeiture of two years approved service permanently entailing proportionate reduction in their pay. The intervening period from the date of dismissal to the date of this order will be treated as a period not spent on duty, on the principle of no work no pay. However, it will not affect on their pensionary benefits. The period from the date of this order to the date their joining will be treated as Leave Kind Due.
5. The applicant, as mentioned above, led evidence in defence. Ms. Jasvinder Kaur, learned counsel representing the applicant, on the basis of evidence led by the prosecution and the defence, would endeavour to show us that the explanation furnished by the applicant is supported by positive evidence. She would want us to discuss the said evidence and give a quietus to this issue by setting aside the impugned orders. We are, however, of the view that it would not be feasible nor permissible in judicial review to enter into the arena of discussion of evidence. This exercise has to be done, at least in the first instance, by the concerned authorities. That being so, while setting aside the orders dated 5.5.2010 and 3.1.2011 passed by the disciplinary and appellate authorities respectively, we would require the disciplinary authority to go into the explanation of the applicant and give findings thereon based upon evidence led in the case. The Original Application shall be allowed in the manner as indicated above, but the consequential reliefs would abide by the final order that may be passed by the disciplinary authority. We would, however, expect the disciplinary authority to deal with the matter and pass final orders as expeditiously as possible and preferably within a period of three months from receipt of certified copy of this order. There shall be no orders as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/