Central Administrative Tribunal - Delhi
Om Prakash vs Commissioner Of Police on 5 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1573/2009 New Delhi this the 5th day of May, 2010 Honble Mr. Shanker Raju, Member (J) Honble Mr. N.D. Dayal, Member (A) Om Prakash, S/o Shri Lal Chand, R/o Room No. 1, P.S. Nangloi, Delhi. Applicant. (By Advocate Shri Ajesh Luthra) VERSUS 1. Commissioner of Police, PHQ, MSO Building, I.P. Estate, New Delhi. 2. Jt. Commissioner of Police, Southern Range, PHQ, MSO Building, I.P. Estate, New Delhi. 3. Deputy Commissioner of Police (West), Rajouri Garden, New Delhi. Respondents. (By Advocate Mrs. P.K. Gupta) O R D E R Shri Shanker Raju, Member (J):
Applicant while working as Sub Inspector in Delhi Police assails a minor penalty of censure inflicted by an order passed on 23.01.2009 and also an order passed in appeal on 20.04.2009 upholding the punishment.
2. While working in Police Station Kirti Nagar, a case was registered on the complaint of Y.K. Gupta against one accused Narender under Section 279/427 IPC. Both offences being bailable, applicant on a surety of Rs.15000/- released the accused on bail. Subsequently, during the trial when the accused did not appear in proceeding under Section 441 of Cr.P.C. whereby notice issued to the surety was received back unexecuted with the comments that the surety is not residing at the given address. Accordingly, an inquiry was conducted by SHO Kirti Nagar on the basis of ration card appended with the bail bond and it was found on the statement of house owner that the surety never lived in his house. The allegations against the applicant were his failure to verify the residential address of surety at the time of granting bail.
3. The aforesaid show cause notice was responded to with a contention that the applicant on the basis of a valid legal document issued by the Government granted bail accepting the surety, as such he is not liable to be held guilty. The aforesaid censure was confirmed and against which the appeal was also turned down, gives rise to the present O.A.
4. Learned counsel for the applicant states that the applicant has not committed any misconduct. There may be an error of judgment which cannot be treated as a misconduct and for which reliance has been placed on a decision of the Apex Court in Inspector Prem Chand Vs. Govt. of NCT of Delhi and Ors. (2007 (5) SCALE 421). Learned counsel would contend that the applicant is legally bound to release the accused in a bailable offence and if there is any error in judgment, that cannot be treated as a misconduct. It is in this background stated that the punishment and the orders passed by the disciplinary as well as appellate authorities are not speaking, without dealing with the contentions of the applicant.
5. Learned counsel also took exceptions to non-supply of the report of an inquiry conducted behind the back of the applicant before imposing the penalty.
6. On the other hand, learned counsel for the respondents has vehemently opposed the contention reiterating the facts alleged against the applicant. It is stated that the applicant has a duty to verify the address of the surety and his authenticity before granting bail. Having not done so, applicant has acted negligently for which penalty imposed is not only legal but also commensurate with the misconduct.
7. We have carefully considered the rival contentions of the parties and perused the material on record.
8. We have scanned through the entire Code of Criminal Procedure as well as Part III of Punjab Police Rules, more particularly Rule 26.21, Chapter XXVI which deals with Bail by a police officer, according to which, an officer in charge of a police station shall release a person accused of a bailable offence. Moreover, as per Section 50 of the Cr.P.C. if a person is arrested by an Investigating Officer on a charge with cognizable offence like 427 and 229 IPC, it is the duty of the I.O. to communicate the accused full particulars of the offence for which he is arrested or other grounds for such arrest and his right to be released on bail for which Section 50-A directs information to the relatives and friends as regards the arrest of a person. Having done so, applicant on informing the relative, a surety had approached which gave an undertaking on an affidavit with his address in proof thereof, a valid ration card and applicant having no occasion or duty bound to verify the antecedents of surety released the accused on bail.
9. However, Section 436 of the Cr.P.C. and beyond in the Chapter of Bail, clearly provides that in a bailable offence when the bail is given to an accused by the police, later on though there is no legal requirement to release the accused on bail but this has been done to ensure that the surety,etc. are verifiable as per Section 441 of the Cr.P.C. for which only Magistrate is competent. Having not done so, in the absence of surety, an inquiry revealed that the surety was not residing at the given address. But, however, his address has been traced out in the file which led to production of the surety and in an undertaking to produce the accused, no serious damage has been caused in the administration of justice.
10. In our considered view, a person can be held guilty of misconduct if it is laid down as a standard an act to be a condition precedent or mandatory to be discharged by a police officer before discharging the duties or a conduct which is attached to the performance of duties. As there is nothing under the Act or the Rules which bounds or mandates a police officer to verify the residential address of surety, in good faith the ration card was found to be an apt and legal proof of the surety. The applicant has not misconducted in any manner and has been punished only because the Trial Court judge has passed some orders. It is trite that if there is no misconduct, one cannot be punished and even if misconduct is as a result of error of judgment, one cannot be held guilty of the misconduct in view of Prem Chand (supra). This aspect not having been taken into consideration by the authorities, and coupled with the fact that behind the back of the applicant some inquiry was held, report of which was also not served upon him, constitutes an infraction to the principle of audi alteram partem in terms of contravention of principles of natural justice.
11. Resultantly, O.A. stands allowed. Impugned orders are set aside. Applicant is entitled to all consequential benefits as admissible in law. No costs.
( N.D. Dayal) (Shanker Raju) Member (A) Member (J) `SRD