Madras High Court
M. Lakshmipathi vs The Joint Commissioner Of Police on 30 August, 2017
Author: V.Parthiban
Bench: V.Parthiban
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.08.2017 CORAM THE HONOURABLE MR. JUSTICE V.PARTHIBAN W.P.No.3257 of 2014 and M.P.No.1 & 2 of 2014 M. Lakshmipathi .. Petitioner Vs. The Joint Commissioner of Police, Central Crime Branch, Egmore, Chennai 600 008. .. Respondent Petition filed under Article 226 of The Constitution of India praying for issuance of a writ of Certiorari calling for the records of the respondent in connection with the impugned charge memo issued in Tha.Ko.No.100/Tha.Pi(Ma)2/2003 dated 21.08.2003 and quash the same. For Petitioner .. Mr.T. Ayngaraprabhu For Respondent .. Mr.R.A.S.Senthilvel AGP ORDER
Writ petition has been filed seeking for issuance of a writ of Certiorari calling for the records of the respondent in connection with the impugned charge memo issued in Tha.Ko.No.100/Tha.Pi(Ma)2/2003 dated 21.08.2003 and quash the same.
2.The case of the petitioner is that he was directly recruited as Grade -II Police Constable on 11.01.1978. Thereafter, he was promoted as Grade -I, in the year 1994 and further up-graded as Head Constable in the year 1999. According to the petitioner, he has received 25 rewards during his career in the Police Department. While working as Head Constable, the petitioner was implicated in the criminal case in Cr.No.2001 of 2003 on the file of CCB, Chennai for offences under Sections, 7, 13(2), r/w 13(1)(d) of the PC Act and also u/s.364 r/w.34, 385, r/w.34, 252, r/w.34 IPC. In view of the involvement in the criminal case, the petitioner was placed under suspension but however, the same was revoked on the orders passed by the then Tamilnadu Administrative Tribunal. Simultaneously, a departmental action was initiated against the petitioner by issuance of charge memo under Rule 3(b) of the Tamilnadu Police Subordinate Service (Disciplinary and Appeal) Rules vide charge memo dated 21.08.2003 containing two charges relating to the same allegations, which formed the basis for the criminal action initiated against the petitioner. The petitioner alongwith the other co-accused approached the then Tamilnadu Administrative Tribunal and the Tribunal had stayed all departmental proceedings till the out come of the criminal trial. The criminal trial was tried before the Special Court under the Prevention of Corruption Act and after trial, the criminal Court by judgment dated 23.12.2009, acquitted the petitioner and others on merit.
3.In the said circumstances, the petitioner has approached this Court, seeking to quash the charge memo issued to him.
4.The learned counsel appearing for the petitioner would submit that the petitioner was acquitted by the criminal Court and also drawn the attention of this Court, particularly, to paragraph No.81 of the judgment, where the criminal Court has categorically concluded that there was no valid evidence for establishing the charges against the petitioner and the witness had some motive against the petitioner and therefore, their evidence could not be relied for the purpose of holding the accused guilty. In the said circumstances, the learned counsel would impress upon this Court that when the acquittal is honourable, the question of proceeding with the departmental action on the charge memo, on the same set of allegations, does not arise and the same cannot be allowed to proceed. The learned counsel also brought to the attention of this Court to the decision passed by the Division Bench of this Court rendered in W.A.No.1287 of 2008 dated 02.09.2009, in which, the Division Bench had dealt with the concept of honourable acquittal, though the term honourable acquittal is not defined in the Criminal Procedure Code. The relevant portion of the judgment of the Division Bench in W.A.No.1287 of 2008 dated 02.09.2009, which discuss the concept of honourable acquittal as defined in paragraph Nos.9 and 10 are extracted below:
''9.Normally three concepts of evidence are taken into consideration before a judgment is rendered. They are on the (i) principle of evidence (ii) principle of no evidence and (iii) principle of insufficient evidence. As regard to the first principle, in the event the Court finds that there are enough evidence to prove the guilt, it convicts and imposes the punishment on the accused. Equally on the principle of no evidence, the Court acquitts an accused. For our purpose, the third principle would apply, where the Court is of the opinion that the evidence lacks sufficiency to hold that the prosecution has proved the offence "beyond shadow of doubt" or "beyond reasonable doubt". Here again sufficiency of evidence depends on the facts of the case and there may be cases where in the absence of any other evidence, the accused may be found guilty on the sole evidence of a witness which could be believed by the Court. Even in some cases, if one or more witnesses speak about the involvement of an accused, still the Court, may discard the evidence on various grounds including on the ground that their evidence cannot be believed etc. In such circumstances also, the Court may extend the benefit of doubt to an accused and consequently acquit him. Such acquittal is otherwise known as "acquittal of all blame".
10. In the above backdrop, the next question that arises for consideration is as to what is honourable acquittal. The code of Criminal procedure does not define either the acquittal or honourable acquittal and for that matter, the benefit of doubt as well. It is the Court by its judgments and by applying the principles of innocence of the accused and the burden on the prosecution to prove the offence, recognised the principle of giving benefit of doubt to acquit the accused. In the absence of any definition in the code of criminal procedure it is very difficult to define what is the meaning of the words "honourable acquittal". Again it depends upon the facts and circumstances of each case. The Court could reasonably presume that if an accused is acquitted or discharged because of some technicality not having been complied with or on the ground that though there is some evidence against him, he must be acquitted by giving the benefit of doubt, it may not amount to honourable acquitable on he other hand, if an accused is acquitted after full consideration of evidence because the prosecution witnesses are disbelieved and the persecution has miserably failed to prove the charges it would amount to honourable acquittal. In the event the Court while acquitting an accused neither say that the case against him is false nor does it say that the accused has been acquitted on the ground of benefit of doubt, then the acquittal may be honourable acquittal or acquittal or all blame.
Relying on the above, the learned counsel, would submit that the petitioner's acquittal falls within the observations made by the Division Bench of this Court and would submit that the the disciplinary action against the petitioners based on the charge memo is not valid. The petitioner had the benefit of honourable acquittal by the criminal Court. He would further point out that as against the order of the trial Court, an appeal was filed in Criminal Appeal No.148 of 2010 and this Court by judgment dated 23.08.2016, had dismissed the appeal. While dismissing the appeal, this Court discussed the nature of offence and ultimately, found that there was no error in the judgment passed by the trial Court. Relevant observations of this Court in the Criminal Appeal No. 148 of 2010 dated 23.08.2016, wherein, paragraph Nos.20 & 21 of the judgment is extracted below:
''20.In the case on hand, the view which is in favour of the respondents/accused has to be adopted for acquitting them. Further, P.W1 & 2's evidence is not reliable, as it is not corroborated by independent witnesses and the other material witnesses have turned hostile. PW.10, who supported the case of the prosecution in chief examination, admitted in his cross-examination about the contents of Exs.D-1 CD file, which disproves the prosecution case and supports the defence case.
21.Therefore, on a consideration of the entire evidence, this Court does not find any perversity in the impugned judgment of acquittal rendered by the trial Court. Hence, in my considered opinion, the findings rendered by the trial Court that the evidence of P.Ws.1 & 2 cannot be believed and relied upon, cannot be found fault with, as most of the material witnesses have turned hostile, thereby, not supporting the case of the prosecution. Thus, I do not find any valid reason to set aside the impugned judgement of acquittal passed by the trial Court.''
5.Upon notice, Mr.R.A.S.Senthilvel, learned additional Government Pleader entered appearance on behalf of the respondent, filed counter affidavit and made his submissions.
6.This Court has anxiously considered the rival submissions and perused the materials and pleadings placed on record. There is a considerable force on the contention putforth by the learned counsel appearing for the petitioner that the acquittal by the criminal Court can be safely considered as one of honourable acquittal. As this Court in paragraph No.21 of the judgment dated 23.08.2016 in W.A.No.418 of 2010 has concluded that though the evidence given by the prosecution cannot be relied upon, as the witnesses had same motive against the accused and moreover, the witnesses have also turned hostile and therefore, there was no evidence at all which can be relied upon for the purpose of establishing the guilt of the accused.
7.In the said circumstances, this Court can safely conclude particularly, with reference to the observations of the Division Bench of this Court as found in paragraph Nos.9 and 10, which was extracted supra that the acquittal by the criminal Court is honourable not by giving benefit of doubt. Moreover this Court in the criminal appeal has also found that there was no evidence against the accused and ultimately found that there was no infirmity in the order passed by the trial Court.
8.In view of the same, this Court has no hesitation in accepting the case of the petitioner that though the respondent had proceeded with departmental action by issuance of impugned charge memo in relation to the same set of allegations which formed the basis of the criminal trial and which of course ended in honourble acquittal, cannot be countenanced both on facts and on on law.
9.Therefore, this Court is of the considered view that the impugned charge memo for conducting departmental action against the petitioner is liable to be interfered with. Hence, the charge memo dated 21.08.2003 for the above stated reasons is set aside and therefore, the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.
30.08.2017 Index:Yes/No dn To The Joint Commissioner of Police, Central Crime Branch, Egmore, Chennai 600 008.
V.PARTHIBAN, J.
dn W.P.No.3257 of 2014 30.08.2017