Central Administrative Tribunal - Delhi
Ved Singh Malik vs Govt. Of Nct & Ors. Through on 13 February, 2014
Central Administrative Tribunal Principal Bench O.A. No.4224/2012 Order Reserved on: 31.10.2013 Order Pronounced on:13.02.2014 Honble Mr. V. Ajay Kumar, Member (J) Honble Mr. V.N. Gaur, Member (A) Ved Singh Malik, No.D-1/881 Security, S/o SH. Lal Singh, R/o Flat No.1, Staff Quarter, Shahdara, Police Station, Delhi-110094. -Applicant (By Advocate Shri M.K. Bhardwaj) -Versus- Govt. of NCT & Ors. Through: 1. The Commissioner of Police, Police HQ, I.P. Estate, New Delhi. 2. The Joint Commissioner of Police Security, (P.M.), Vinay Marg, Near Ashoka Hotel, New Delhi-110003. 3. The Dy. Commissioner of Police Security, (P.M.), Vinay Marg, Near Ashoka Hotel, New Delhi-110003. -Respondents (By Advocate Mrs. Rashmi Chopra) O R D E R Mr. V.N. Gaur, Member (A):
The applicant in this case was Station House Officer (SHO) when he was awarded a penalty of censure by the Disciplinary Authority (DA) for acts of gross misconduct, negligence, carelessness, lack of supervision and dereliction in discharge of his official duties vide order dated 26.05.2011. The applicant has filed this OA with the following prayer:
1) to quash and set aside the impugned order dated 26.5.2011 (A-1).
to quash and set aside the appellate authority order dated 10.2.2012 (A-2).
to declare the action of disciplinary authority in issuing show cause notice dated 03.05.2011 (A-3) as illegal and unjustified and allow the OA with exemplary costs.
2. The brief facts of the case are that the DA had sought explanation of the applicant vide Memo dated 27.09.2010 wherein the following observation of the Honble Court given in the judgment dated 23.07.2010 was reproduced:
1. The case unfolds the callousness of the whole system which includes the Medical Profession and the police. The social reaction is also primitive and contrary to the human right values. It shows how young girl was raped and the case was converted into the case for outraging the modesty of woman, on account of, gross illegal act of police officials who firstly not interested in recording crime for the date management and secondly, if they are compelled to do so to scale down the gravity of the offence, so that, the rate of crime in their area does not show that they are lacking in policing and further sheer lack of duty, on the part of attending doctor.
2. The complainant stated that she inquired from her in the presence of the accused whether he has done any battamiji (misbehave) with her. Her daughter said Yes and she was not able to walk properly and said to her that she is unable to urine and defecate. She tried to take her for urination but she could not urinate. Thereafter, the accused was taken by them to the Police Station alongwith the Child. They went to the SHO of the PS and thereafter the SHO sent them to the IO and thereafter, both of them asked her to check the private part of the child. She checked and found that there was swelling.
3. Dr. Umesh of GTB hospital deposed in the court that he had examined one girl namely Jannat, 9 years, female who was brought by ASI Yamuna Prasad with alleged history of assault at about 8.00 PM on 7.8.09. He stated that the patient complained of pain over upper lip.
4. The complainant has stated during deposition in Court that inside the Jhuggi the accused removed the clothes of her daughter Jannat (9) and removed his shirt and pant also and make Jannat to lie down and sat on her and put his private part into her private part (Apne Peshab Karne wale ko mere Pesap karne wali Jagh me lagaya aur mujhe dard hua). When cried he put cloth on her mouth and hit her on her face with danda and fist. She sustained injury on her right side near below cheek and on her lips. He also hit danda on her stomach. She started crying, on this, somebody on the way inquired as to why she is crying and why he is beating her, he said that she is his niece. Thereafter, he took her to Shastri Park and did the same act with her. Thereafter, taken her to room (explained by the mother it is a deserted hotel which are referred as rooms) then asked her let us sleep and asked her do not go out as police is outside and thereafter he did the same act with her and said that her mother and father does the same act which he is doing with her.
5. In this case, despite knowing the facts and having seen the assault on the private part of the prosecutrix, the police had chosen to scale down the offence.
6. Jannat (9) in her cross examination has stated that she stated the entire incident to the police uncle. She had also stated the above facts to the lady Magistrate.
7. The complainant stated during deposition that the police officials did not tell the doctor that the child has been sexually assaulted. She stated that the police official knew that the child has been sexually assaulted as he had made enquires in the police station in the presence of SHO where the child had disclosed those facts. She stated that she did not hand over the clothes of the child to the police but these were kept by her for many a days and the police/IO did not ask for the same.
3. The applicant submitted his explanation, which was followed by a Show Cause Notice (SCN) issued to him on 03.05.2011. The applicant had submitted his reply to this SCN also. After considering the reply of the applicant the DA passed an order dated 26.05.2011 censuring the conduct of the applicant in that case. The applicant had submitted an appeal, which was disposed of by the Appellate Authority (AA) on 07.02.2012, confirming the penalty awarded by the DA and rejecting the appeal. The applicant has filed this Application against these orders.
4. The learned counsel for the applicant submitted that the entire action of the DA was highly illegal, arbitrary and unjustified, as in this case the SHO was not the Investigating Officer (IO) and if there was any lapse in conducting the investigation it was the IO who was responsible. Further in the submission to the Court the ACP of the Sub-Division had stated that the inquiry was conducted in a justified manner and there was no fault on the part of the applicant. Once such a statement had been made by the ACP, the respondents cannot go back on that statement and take action against the applicant for dereliction of duty. The respondents have taken the disciplinary action on the observations made by the Honble Court alone and after having taken note of the fact that there was no misconduct on the part of the applicant. It has also been submitted that the DA has acted without assessing the available evidence and it is based on surmises and conjectures. There was no allegation of supervisory lapse against the applicant. The applicant has also averred that every body knew that the complainant woman was a woman of easy virtue and she could go to any extent in furtherance of her vengeance. Unfortunately the DA and AA failed to appreciate the same. The complainant had claimed that she had taken her daughter to a private Doctor, but the Doctor in his statement to the Court had stated that the girl had only complained about stomach pain. Thus the applicant could not have presumed otherwise. Once the applicant registered a case under Section 363/323/354 IPC, he could have also mentioned 376 IPC, had there been any mention of rape by the applicant. There was no allegation against the applicant of personal gain or taking action contrary to the Rules or ill motive and, therefore, the applicant could not have been subjected to disciplinary action.
5. The learned counsel of the applicant cited the decision in the case of State of Orissa v. Binapani Dei, AIR 1967 SC 1269, where the Honble Supreme Court held that:
It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act Judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case. On the issue that the DA did not consider the contentions raised by the applicant in his representation, the learned counsel referred to the case of Dai-Ichi Karkaria Ltd. v. Union of India & Ors., (2004) (4) SCC 57, where the Honble Supreme Court held that:
the embargo of arbitrariness is embodied in Article 14 of the Constitution. The Authority which has been given a very wide power must consider all relevant aspects governing the questions and issues before it. It must form the opinion on the basis of material before it by application of mind. Similar view was taken in the case of Consumers Action Group & Anr. V. State of Tamil Nadu & Ors., (2000) 7 SCC 425. The Honble Apex Court held that whenever any Statue confers any power on any authority, howsoever wide the discretion may be, the same has to be exercised reasonably, within the sphere that statue confers and such exercise of power must stand the test of judicial scrutiny. The judicial scrutiny is one of the basic features of our Constitution. The reason recorded to it discloses the justifiability of exercise of such power. Any decision taken without application of mind and ignoring all the relevant facts would be bad in law. The same view has been taken by the Honble Apex Court in the following cases:
i) Navaneaswara Reddy v. Govt. of Andhra Pradesh & Ors., AIR 1998 SC 939;
ii) Commissioner of Police, Delhi & Anr. V. Dhaval Singh, (1991) 1 SCC 246;
iii) State of Maharashtra & Ors. v. Ku. Tanuja, AIR 1999 SC 791; and
iv) Rajat Baran Roy v. State of West Bengal, AIR 1999 SC 1661.
6. On the issue of misconduct, the learned counsel relied on the decision in the case of Union of India v. J. Ahmed, AIR 1979 SC 1022 and Inspector Prem Chand v. Govt. of NCT of Delhi, JT 1007 (5) SC 294 where the Honble Apex Court has ruled that the act of negligence, errors of judgments, innocent mistakes, do not constitute any misconduct. The learned counsel also brought to our notice that the Honble High Court of Delhi in its order dated 22.05.2013 has set aside the judgment of the learned Court of ASJ, which was the basis for imposing the penalty of censure on the applicant, and, therefore, the punishment order has lost its sanctity.
7. The learned counsel for the respondents submitted that the conduct of the applicant was severely criticized by the Court of learned ASJ in its order dated 23.07.2010. On the basis of the finding of the Court the DA had proceeded, following the procedure prescribed under the Act and the Rules and imposed the penalty of censure after giving full opportunity to the applicant to defend himself. From the plain reading of the orders passed by the DA and the AA it is obvious that all the contentions raised by the applicant have been duly considered before passing the orders. It was not a fact that there was no allegation of supervisory lapse on the part of the applicant, as the Memo calling explanation itself had mentioned this as one of the lapses. The applicant has not been able to rebut the observations made by the Honble Court in his explanation submitted to DA and AA as a SHO under whose direction and control the IO works cannot absolve himself of the responsibility of supervising the investigation. Once the child had disclosed the fact of sexual assault, it was the duty of the applicant and the IO to have registered a case of rape and also advised the Government Doctor to medically examine the child in the context of the nature of assault. This was not done by the applicant. The learned counsel emphasized on the fact that the complainant was aware of the fact that the child was sexually assaulted, as was apparent from the perusal of the order passed by the learned ASJ. The applicant, therefore, cannot now take a plea that at the time of the complaint made by the mother and the child there was no mention of rape or that he did not suspect any such crime at that stage.
8. We have considered the arguments put-forward by the learned counsels and also gone through the record. If we look at the charges against the applicant in the light of the observations made by the learned Court of ASJ, the lapses on the part of the applicant appear to be quite serious. When there was a report of sexual assault on the child, he failed to register a case under Section 376 of IPC. He also failed in supervising the investigation done by ASI Yamuna Prasad at least to the extent that no action was taken to ensure that the child was examined by the Government Doctor with a view to ascertain the nature of sexual assault or rape. We do not agree with the submissions made by the learned counsel for the applicant that as a SHO he was not an IO and, therefore, for any shortcoming in the investigation he could not have been held responsible. As a supervisory officer he was fully responsible as well as accountable for the lapses on the part of the staff working under him even though the extent of the same would depend on the facts of the case.
9. Having said that we find that the whole scenario has changed after the order passed by the Honble High Court of Delhi on 22.05.2013 in Criminal Appeal no.214/2011. Before we examine the matter further in the background of the judgment of the Honble High Court, it is important to note that in this case there has been no separate inquiry into the allegations against the applicant and the whole case is hinging on the observations made by the learned ASJ in the order dated 22.05.2013. On the conduct of the police officials the learned ASJ has made observations like it shows how young girl was raped and the case was converted into the case for outraging the modesty of woman, on account of, gross illegal act of police officials who firstly not interested in recording crime for the date management and secondly, if they are compelled to do so to scale down the gravity of the offence, so that, the rate of crime in their area does not show that they are lacking in policing and further sheer lack of duty, on the part of attending Doctor. The order further mentions that They went to SHO of the PS and thereafter the SHO sent them to the IO and thereafter, both of them asked her to check the private part of the child. She checked and found that there was swelling. Further In this case, despite knowing the facts and having seen the assault on the private part of the prosecutrix, the police had chosen to scale down the offence. The order further states:
6. Jannat (9) in her cross examination has stated that she stated the entire incident to the police uncle. She had also stated the above facts to the lady Magistrate.
7. The complainant stated during deposition that the police officials did not tell the doctor that the child has been sexually assaulted. She stated that the police official knew that the child has been sexually assaulted as he had made enquires in the police station in the presence of SHO where the child had disclosed those facts. She stated that she did not hand over the clothes of the child to the police but these were kept by her for many a days and the police/IO did not ask for the same.
10. The crux of the matter is whether at the time when the SHO and IO came to know about the crime, was there any mention or apprehension of the offence of rape. In this connection, the Honble High Court in its order has noted that the testimony made by the child victim and her mother during her examination before the Court was at total variance to the version given at the time of registration of FIR. The Honble High Court has thereafter recorded the version of the complainant as made by the child victim before the police, as recorded by the learned ASJ on 16.01.2010, during the cross examination, and thereafter the statement of the mother of the child victim before the police before the Court of ASJ and during the cross examination. The Honble High Court has recorded its finding in the following paragraphs:
21. On comparative analysis of the oral testimony of PW-1A 'J' and PW-2 Amina, it is seen that they have narrated entirely different versions from that which was narrated immediately after the occurrence to PW-3 Ct.Mobin Ali and PW-4 ASI Yamuna Prasad who, while on patrolling, happened to reach the spot. The act of the Appellant did not exceed the stage of lifting the child in his lap and holding her in his grip till she raised alarm due to which he slapped her which drew the attention of PW-2 Amina, after which he being apprehended there and then and handed over to PW-3 Ct.Mobin Ali and PW-4 ASI Yamuna Prasad at the spot, rules out the possibility of taking away the child from the lawful custody of her parents to three different places and commit rape on her repeatedly and again bring her back to her house.
22. The so called explanation given by PW-2 Amina i.e. due to shame rape was not reported, has to be disbelieved for the reason that the Appellant was a young man of 25 years on that date whereas the child 'J' was just nine years old, had she been raped two-three times by the Appellant at different locations within such a short span of time, her private part would have shown marks of violence, tear as well as severe bleeding. Her condition would have been such at the time of reporting the matter to the police as well as during her examination at GTB hospital that even without uttering a word tell tale signs on her body would have revealed the offence of being raped thus requiring urgent medical aid including surgery to repair the tear. But she did not even have any bleeding what to talk of any other injury on her private part or other part of the body. This belies the entire deposition of PW-1A 'J' and PW-2 Amina in the Court which is unacceptable so far as accusation of rape is concerned. The MLC of the victim also rules out any possibility of rape being committed on her. The deposition of PW-1A 'J' and PW-2 Amina before the Court is not of sterling quality. In the given facts, learned Addl. Sessions Judge erred in placing reliance on Bharwada Bhoginbhai Hirjibhai v. State of Gujarat and Ranjit Hazarika v. State of Assam (Supra) to convict the Appellant for committing the rape.
23. From the above, it can be noticed that initially the case projected in FIR was that when 'J' handed over the utensil to the Appellant, he lifted her and pressed her in his grip and slapped her when she cried Mummy-Mummy. Later on, while deposing before learned Magistrate, PW-1A 'J' stated that she was raped twice but at the time of her examination before learned ASJ, she claimed to have been raped thrice by the Appellant within that short duration. PW-2 Amina, mother of the child victim though, has stated in her statement recorded under Section 161 Cr. PC, that she heard the cries of her daughter immediately and the Appellant was apprehended there and then but while deposing before the Court, perhaps to make the allegations of rape believable, she talked of searching around after her daughter got missing and the police was informed by son of her landlord about her missing daughter, there is no material to support this version. Commenting on the judgment given by the learned ASJ the order states:
31. Unfortunately, learned Addl. Sessions Judge, who is an experienced Judge, was swayed by the heinousness of the crime i.e. rape of a child, which was never committed by the Appellant or complained of by the victim or her family to the police or to the Doctor though the child was taken to GTB Hospital, which is a well equipped hospital, immediately for medical examination. The question that arises for determination in this Appeal is whether improvements made by a witness during examination before the Court which has the effect of changing the entire case of the prosecution, can be made basis of conviction for an offence which was never complained of or revealed to have been committed through medical examination or investigation so much so that till filing of the chargesheet, even the SHO/IO was never informed that child was raped.
32. On careful examination of entire evidence, I am of the view that learned Addl. Sessions Judge committed grave illegality in convicting the Appellant for committing the offences punishable under Sections 363/376(2)(f) IPC without any legal evidence worthy of credit available on record.
33. From the statement of PW-1A 'J',the child victim and PW-2 Amina, her mother, the prosecution has been able to prove its case only to the extent that the accused lifted the child in his lap when she was handing over the utensil to him and pressed her and when she cried, he slapped her. Thus, the offence that can be said to have been proved against the Appellant is of only under Section 354/323 IPC.
11. On the Sections under which the offence was registered and the trial conducted the Honble High Court has observed that the case registered for committing the offence punishable under Sections 354/323 IPC, which was given the color of committing offence punishable under Sections 363/376(2)(f) IPC at the time of deposition before the Court.
12. From the above analysis as contained in the judgment of the Honble High Court it is apparent that at the time of recording of FIR there was no mention of rape by the complainant and the offence was limited to Sections 323/354 and under such circumstances neither the IO nor the Supervisory Officer, i.e., SHO (applicant) could have been expected to add the Section of sexual assault/rape in the FIR and subject the child victim to the relevant medical examination. If there was no such expectation, the applicant cannot be held guilty of dereliction of duty or lack of supervision.
13. Keeping in view the above facts and for the aforesaid reasons, we find that the grounds on which the respondents had imposed the penalty of censure on the applicant no more exist after the finding recorded by the Honble High Court in its order dated 22.05.2013. We, therefore, allow this OA. The impugned orders dated 26.05.2011 & 10.02.2011 are quashed and set aside. No costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) San.