Himachal Pradesh High Court
Between vs Superintendent Of Police on 13 August, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 13th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 7404 of 2019
Between:
NARENDER SINGH SON OF SH.
MOHINDER SINGH,R/O VILLAGE
AND P.O. CHAMUKHA, TEHSIL RAKKAR,
DISTRICT KANGRA, HIMACHAL PRADESH
....PETITIONER
(BY MS. SUNITA SHARMA, SENIOR ADVOCATE
WITH SH. DHANANJAY SHARMA AND SH.
RANVIR SINGH, ADVOCATES )
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY
(HOME) TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA-2.
2. DIRECTOR GENERAL OF POLICE,
HIMACHAL PRADESH SHIMLA-2
3. SUPERINTENDENT OF POLICE,
KANGRA, DISTRICT KANGRA, H.P.
....RESPONDENTS
(BY SH. SUDHIR BHATNAGAR, ADDITIONAL
ADVOCATE GENERAL WITH SH. R.P. SINGH,
AND SH NARENDER THAKUR, DEPUTY
ADVOCATE GENERALS.)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the
following:
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2
ORDER
Being aggrieved and dissatisfied with the order dated .
12.4.2016, passed by Director General of Police, Himachal Pradesh, whereby representation (Annexure A-2), dated 23.11.2015, having been filed by the petitioner to reinstate him in service on account of his acquittal in criminal case No.119 of 2014 vide judgment dated 24.7.2015 passed by Hon'ble High Court of Himachal Pradesh in Cr.
Appeal No.120 of 2014, came to be rejected.
2. For having bird's eye view, certain undisputed facts as emerge from the record are that the petitioner, who was constable in Police Department, came to be named in the FIR No.78/2013, dated 11.7.2013 under Sections 20 of the Narcotic Drugs & Substances Act,(for short 'Act'), registered at police Station, Bangana, District Una, Himachal Pradesh, on the allegation that he was unauthorizedly carrying narcotic substance. On the basis of information supplied by Sub Divisional Police Officer, Dehra, petitioner was placed under suspension w.e.f.11.7.2013. Vide judgment dated 24.3.2014, learned Special Judge, Una, District Una, H.P., convicted and sentenced the petitioner alongwith other co-accused under Sections 20 of the Act, as a consequence of which, he remained in judicial custody for 256 days with effect from 11th July, 2013 to 23rd March, 2014. On account of petitioner's being convicted and sentenced under Section 20 of the Act, Superintendent of Police, Kangra vide order dated 9.6.2014 ::: Downloaded on - 31/01/2022 22:52:58 :::CIS 3 dismissed him from service with effect from 11th July, 2013 as per the provisions laid down in Rule 16.19 of HPPR (Annexure A-1).
.
3. Petitioner herein, being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned court below, filed an appeal before the Division Bench of this Court, which came to be registered as Cr. Appeal No.120 of 2014.
Division Bench of this Court vide judgment dated 24th July, 2015, acquitted the petitioner of the offences punishable under Sections 20(b)(ii)( C) read with Section 29 of the Act and as such, petitioner by way of representation(Annexure P-2), dated 23.11.2015, requested the Superintendent of Police, Kangra at Dharamshala, Himachal Pradesh to reinstate him in service. However, such prayer of him came to be rejected vide order dated 12.4.2016, passed by Director General of Police, Himachal Pradesh, Annexure R-1, annexed with the reply filed by the respondents. In the aforesaid background, petitioner has approached the erstwhile H.P. Administrative Tribunal by way of Original Application No.1783 of 2019, however on account of abolishment of erstwhile H.P. Administrative Tribunal, case came to be transferred to this Court and stands registered as CWPOA No.7404 of 2019, praying therein following reliefs:-
1. That Annexure A-1 may be quashed and set aside and respondent may be directed to reinstate the applicant with all consequential benefits.
2. That the applicant is entitled for the full salary from the date it fell due.::: Downloaded on - 31/01/2022 22:52:58 :::CIS 4
3. That the suspension period is required to be counting for qualifying service.
4. That the respondents may be directed to reinstate the petitioner with seniority.
.
5. That the respondent No.2 may be directed to decide the representation Annexure A-6 in time bound manner.
4. Having heard learned counsel representing the parties and perused the material available on record, this court finds that there is no dispute interse parties that vide judgment dated 24th July, 2015, petitioner herein stands acquitted of the charges framed against him under Sections 20(b)(ii)( C) read with Section 29 of the Act. It is also not in dispute that as of today, no disciplinary proceedings are pending against the petitioner herein. Prayer made on behalf of the petitioner after his having acquitted in criminal case for reinstatement came to be rejected on the ground that acquittal of petitioner in appeal by Division Bench of this Court is not hounourable and he does not qualify for consideration of reinstatement in service.
It would be profitable to take note of order dated 12.4.2016, passed by Director General of Police, Himachal Pradesh, rejecting therein the prayer made on behalf of the petitioner for reinstatement herein below:-
" An acquittal has to be " hounourable" to qualify for consideration of reinstatement. There is no provision for automatic reinstatement in service. Another case has also been registered for which charge sheet is ready".
5. Having carefully perused the order passed by the competent authority, this Court has no hesitation to conclude that ::: Downloaded on - 31/01/2022 22:52:58 :::CIS 5 representation having been filed by the petitioner has been considered and rejected by the competent authority in slip shod .
manner without assigning any reason. Though, in the aforesaid order, it has been mentioned that acquittal has to hounourable to qualify for consideration of reinstatement, but there is nothing mentioned in the order that how petitioner cannot be said to have been acquitted hounourable vide judgment dated 24.3.2014, passed by Division Bench of this Court in Cr. Appeal No.120 of 2014.
6. Having carefully perused the judgment dated 24.3.2014, this Court finds that Division Bench of this Court acquitted the petitioner of the offences punishable under Sections 20(b)(ii)( C) read with Section 29 of the Act, after having discussed entire evidence available on record. If judgment passed by Division Bench of this Court, is read in its entirety, it clearly reveals that independent witnesses associated by the police while effecting recovery also not supported the case of the prosecution. PW-1 in his cross-examination by prosecution denied the suggestion that charas weighed 1.5 kg was recovered in his presence.
7. Though, learned Deputy Advocate General while referring to the judgment of acquittal passed by Division Bench of this Court argued that since appeal having been filed by the petitioner came to be allowed on technical grounds, his acquittal cannot be said to be hounourable, but this Court after having scanned the material available on record, finds no force in the aforesaid submission made ::: Downloaded on - 31/01/2022 22:52:58 :::CIS 6 by learned Deputy Advocate General. As has been observed hereinabove, Division Bench of this Court has discussed the entire .
evidence led on record by the prosecution, appeal of the petitioner has been not only allowed on the ground of non-adherence of statutory provisions contained under the Act, rather Division Bench taking into consideration entire evidence, proceeded to acquit the accused. Division Bench of this Court while acquitting may not have specifically mentioned that prosecution witnesses have not supported the case of the prosecution, but while acquitting the accused of offences Sections 20(b)(ii)( C) read with Section 29 of the Act, Division Bench of this Court has discussed the entire evidence and has not extended the benefit of doubt to the petitioner, rather has acquitted him honourably.
8. Expression 'hounourable' acquittal has been not defined anywhere, but such expression came to be discussed and reported in the judgment passed by Hon'ble Apex Court in S.Bhaskar Reddy and another versus Superintendent of Police, and another (2015)2 Supreme Court Cases 365, wherein it has been held that if Court below has recorded the finding of fact on proper appreciation and evaluation of evidence on record and has held that the charges framed in the criminal case are not proved against the accused, it shall be deemed to be hounourable acquittal. In the aforesaid judgment Hon'ble Apex Court has held that it is difficult to define precisely what is meant by the expression "honorably acquitted". When the accused is acquitted ::: Downloaded on - 31/01/2022 22:52:58 :::CIS 7 after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against .
the accused, it can possibly be said that the accused was honourably acquitted. It would be profitable to take note of paras No.21 to 23 and 26 herein- below:-
"21. It is an undisputed fact that the charges in the criminal case and the Disciplinary proceedings conducted against the appellants by the first respondent are similar. The appellants have faced the criminal trial before the Sessions Judge, Chittoor on the charge of murder and other offences of IPC and SC/ST (POA) Act. Our attention was drawn to the said judgment which is produced at Exh. P-7, to evidence the fact that the charges in both the proceedings of the criminal case and the Disciplinary proceeding are similar. From perusal of the charge sheet issued in the disciplinary proceedings and the enquiry report submitted by the Enquiry Officer and the judgment in the criminal case, it is clear that they are almost similar and one and the same. In the criminal trial, the appellants have been acquitted honourably for want of evidence on record. The trial judge has categorically recorded the finding of fact on proper appreciation and evaluation of evidence on record and held that the charges framed in the criminal case are not proved against the appellants and therefore they have been honourably acquitted for the offences punishable under 3 (1) (x) of SC/ST (POA) Act and under Sections 307 and 302 read with Section 34 of the IPC. The law declared by this Court with regard to honourable acquittal of an accused for criminal offences means that they are acquitted for want of evidence to prove the charges.
22. The meaning of the expression "honourable acquittal"
was discussed by this Court in detail in the case of Deputy Inspector General of Police & Anr. v. S. Samuthiram[3], the relevant para from the said case reads as under :-
"24. The meaning of the expression "honourable acquittal"
came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of ::: Downloaded on - 31/01/2022 22:52:58 :::CIS 8 blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of .
prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
(Emphasis laid by this Court) After examining the principles laid down in the above said case, the same was reiterated by this Court in a recent decision in the case of Joginder Singh v. Union Territory of Chandigarh & Ors. in Civil Appeal No. 2325 Of 2009 (decided on November 11, 2014.
23.Further, in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. (supra) this Court has held as under:-
"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles there from". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of ::: Downloaded on - 31/01/2022 22:52:58 :::CIS 9 approach and burden of proof, would not be applicable to the instant case."
24. (emphasis laid by this Court) Further, in the case of G.M. Tank v. State of Gujarat and Ors.(supra) this Court held as .
under:-
26. We have answered the alternative legal contention urged on behalf of the appellants by accepting the judgment and order of the Sessions Judge, in which case they have been acquitted honourably from the charges which are more or less similar to the charges levelled against the appellants in the Disciplinary proceedings by applying the decisions of this Court referred to supra. Therefore, we have to set aside the orders of dismissal passed against the appellants by accepting the alternative legal plea as urged above having regard to the facts and circumstances of the case."
9. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court is unable to accept the reasoning assigned by the competent authority while rejecting the representation having been filed by the petitioner pursuant to his acquittal in criminal case. Since, Division Bench of this Court after having discussed the entire evidence, proceeded to acquit the accused that too without extending benefit of doubt, it cannot be said that he was not honourably acquitted and as such, order dated 12.4.2016, passed by Director General of Police, Himachal Pradesh, is quashed and set-aside and respondents are directed to reinstate the petitioner in service forthwith. Consequential benefits, if any, be also released in favour of the petitioner. Pending applications, if any, also stand disposed of.
13th August, 2021 (Sandeep Sharma),
(shankar) Judge
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