Central Administrative Tribunal - Delhi
H C Amrish vs Comm. Of Police on 3 January, 2018
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.1479/2013
Reserved on:08.12.2017
Pronounced on:03.01.2018
Hon'ble Ms. Praveen Mahajan, Member (A)
H.C.Amrish
(P.I.S. No.28931087)
Presently posted at
P.C.R. 696, North Zone
Delhi Police
S/o Shri Devi Singh
R/o No.43, Police Colony
Model Town-II
Delhi - 110 009. .... Applicant
(By Advocate:Shri L.C.Rajput)
Versus
1. The Commissioner of Police
PHQ, I.P.Estate
New Delhi.
2. Joint Commissioner of Police
Central Range
Delhi Police
Delhi.
3. Shri Rupinder Kumar
Addl. Dy Commissioner of Police-I
North Distt.
Delhi Police
Delhi. .....Respondents
(By Advocate:Shri Vijay Pandita)
ORDER
The current OA has been filed against the Order dated 01.09.2011 passed by Shri Rupinder Kumar, Additional D.C.P.-I, North District, Delhi whereby the punishment of "censure" was inflicted upon the Applicant pursuant to the show-cause notice dated 08.04.2011. The appeal of the 2 applicant has been rejected by Shri Taj Hassan, Joint C.P. Central Range, Delhi vide order dated 17.12.2012. Being aggrieved of the same, the applicant has approached the Tribunal for redressal of his grievance.
2. Briefly stated, the facts of the case are that the applicant was posted as Head Constable at P.S. Kotwali in March, 2009. On 21.03.2009, a D.D.No.47-B P.S. Kotwali was marked to the applicant for enquiry. The applicant along with Constable Vinod Kumar reached the spot, New India Hotel and found that two persons, namely, Sunil Bansal and Dinesh Bansal were beating one Abhay Jain. The applicant and constable Vinod Kumar tried to control them, but they were very aggressive, and despite the police and other persons trying to separate them, they were adamant to further the fight with Shri Abhay Jain, who had already sustained injuries caused by them. The applicant states that he apprised his SHO of the situation, on telephone. The SHO, in turn informed the A.C.P. concerned. The SHO then ordered the applicant to arrest Sunil Bansal and Dinesh Bansal u/s 107/151 Cr. P.C. This fact stands confirmed by the SHO Shri Sunil Srivastava, in his statement dated 21.03.2009.
3. A Show Cause Notice dated 08.04.2011 was issued to the applicant alleging that a complaint was made by Shri Dinesh Kumar Bansal, Cable Operator regarding theft of cable wire which was marked to the Applicant. When he reached the spot, he reportedly found two persons, (Sunil Bansal and Dinesh Bansal) beating one Akshay Jain. All of them were medically examined in Aruna Asaf Ali Hospital. Though both Shri Sunil Bansal and Akshay Jain sustained some injuries, but the applicant arrested only Dinesh Bansal and Sunil Bansal under Section 07/151 Cr.P.C, who have no previous criminal record. Being the I.O of the call, the applicant should have verified 3 the facts of quarrel properly before arresting the complainant. He however failed to do so, which is a serious lapse on his part.
4. The applicant filed a reply to this show cause notice and submitted his explanation. However, the learned Additional D.C.P.-I, North District, Delhi vide his order dated 01.09.2011 inflicted and confirmed a punishment of censure on the applicant. The appeal against this order was also rejected by the appellate authority. The applicant submits that he was not afforded a fair opportunity to present his case. The punishment order as well as the appellate order have been issued without application of mind, hence the said order is bad in law. The said Akshay Jain‟s medical report shows that injuries were caused on his person, as he was assaulted by Dinesh Bansal and Sunil Bansal, but the authorities have not perused the M.L.C. carefully. The applicant further avers that it is the officer on the spot, who is the best judge to draw his conclusion as to who is at fault or likely to commit a cognizable offence. Conduct of the applicant cannot be doubted and censured in the circumstances of the case. He has, therefore filed this OA seeking the following relief :-
"a. Quash/set-aside the appellate order dated 17th December, 2012, punishment order dated 1st September, 2011 as well as the show-cause-notice dated 8th April, 2011 and the applicant may kindly be exonerated from the allegations/charges levelled against him, in the interest of justice, equity and circumstances of the case.
Pass such other further orders as this Hon‟ble Tribunal may deem fit and the proper in the facts and circumstances of the case.
Cost of the proceedings may also be passed in favour of the Applicant."
5. Rebutting these averments, the respondents state that the Head Constable Amrish (applicant), No.260/N {PIS No.28931087} was issued a 4 show cause notice vide office No.8162-63/Hap {P-II}/North Distt. dated 08.04.2011. An enquiry into the matter was got conducted through PG Cell/North Distt., which reveals that on 21.03.2009 complainant‟s brother Sunil Kumar Bansal made three PCR Calls regarding theft of cable wire, which was marked to the applicant. The enquiry report revealed that both the parties were engaged in the same business of Cable Operators. They used to make complaints/false complaints against each other. When the applicant reached the spot, he found that (as per the version of the applicant) Sunil and Dinesh were beating up Akshay. They were medically examined in Lok Nayak Hospital. As per the medical report, Sunil and Akshay sustained injuries, whereas Dinesh remained unhurt. However, the applicant arrested Dinesh and Sunil {both from one side} u/s 107/151 Cr. PC and let off Akshay from the other side. The action of the applicant was not transparent as he arrested only one party who had called up PCR thrice. Moreover, he did not bother to record the statement of the complainant before arresting them. Hence the applicant showed no sense of professionalism, and took biased action against one party only. As regards his contention that Dinesh and Sunil were beating up Akshay, the medical report suggests that both the parties sustained minor injuries.
6. This matter was enquired into by the P.G. Cell of North District. Since this was an independent inquiry, there was no need of intimating the applicant, whose misconduct was established in the enquiry, in accordance with the provisions of Delhi Police (P&A) Rules, 1980 as well as SO 125 (A-
20) of Delhi Police. Hence he was righty "censured" for the same.
7. On going through the proceedings, it is noticed that the name of the third party has been mentioned as Abhay Jain in the OA filed by the 5 applicant as well as in the Report of the SHO dated 30.04.2009. Other records of the case, namely, the show cause notice dated 08.04.2011 of the respondents, the Punishment order dated 01.09.2011 of the disciplinary authority and the appellate authority order dated 17.12.2012 have mentioned the name as Akshay Jain. I proceed to adjudicate the case on the assumption that both Abyay Jain and Akshay Jain are the same persons and the discrepancy is only on account of typographical error.
8. I have gone through the facts of the case, heard the pleadings of both the learned counsels and given my serious considerations to the issue, I observe that the statement of SHO Shri Sunil Srivastava, reproduced below, states that :-
"It is stated that I am posted as SHO/PS Kotwali. On 21.03.2009, a PCR call vide DD No.47B regarding quarrel was received at PS Kotwali and entrusted to HC Amrish No.260/N for enquiry and n/action. The HC alongwith the staff went to the spot i.e. near India Hotel, Chandni Chowk, Delhi where he found two persons, namely Sunil Kumar S/o Shri Raj Kumar R/o 1165, IInd Floor, Kuncha Mahajani, Chandni Chowk, Delhi & his brother Dinesh Kumar S/o Shri Raj Kumar R/o as above quarrelling with one Abhay Jain S/o Shri R.K.Jain R/o 667 Jheel Delhi and were very desperate. The HC alongwith the staff overpowered the above noted persons Sunil & Dinesh to prevent them from committing any cognizable offence and had they been not over powered by the police staff they could have committed any cognizable offence. The HC Amrish apprised me about the above facts and also informed that there is same business rivalry between the above noted Sunil & Abhay Jain over cable business & due to this business rivalry above said Sunil & Dinesh today picked a quarrel with Abhay Jain & gave beating to him. As the above said accused Sunil & Dinesh were very desperate and could have omitted any cognizable offence if not prevented by the police staff, I ordered HC Amrish No.260/N to arrest them u/s 107/151 Cr. PC as per law and on my directions HC Amrish 260/N arrested both Sunil & Dinesh u/s 107/151 Cr. PC, as per law & produced them before the SEM/N through Kalamdara on 22.03.09."
9. The order dated 17.12.2012 of Joint Commission of Police, Central Delhi states that "HC Amrish No.260/N appeared before me in Orderly Room and mentioned that there was a quarrel in which Sunil Bansal 6 and Dinesh Bansal were beating Akshay Jain. He informed SHO/Kotwali, Inspector Sunil Srivastav on telephone about the incident that they are very violent and can commit any cognizable offence. SHO/Kotwali asked him to arrest them u/s 107/151 CrPC, but he took preventive action u/s 107/151 CrPC against Sunil Bansal and Dinesh Bansal only. When he was asked to explain why he did not bound down Akshay Jain also in the said case, he had nothing to say. I have also gone through his submission which was not found satisfactory. I find no reason to interfere with the order passed by Disciplinary Authority. Hence, the appeal submitted by the appellant is rejected."
10. The aforementioned order dated 17.12.2012 of the appellate authority, appears contrary to the statement dated 30.04.2009 of the SHO Shri Sunil Srivastava who has categorically admitted that he asked the Head Constable Shri Amrish to arrest both Sunil & Dinesh and not arrest everybody, as inferred by the appellate authority in his finding. Hence there is a clear discrepancy in the finding of the appellate authority - which is contrary to the facts. The applicant obviously took action to arrest the duo, (Sunil & Dinesh) after getting the clearance and orders of SHO.
11. It is not disputed that the applicant apprised his senior (SHO) about the situation, telephonically. The SHO, directed the Head Constable, Shri Amrish, to arrest the (reportedly) more aggressive and violent of the three. The applicant took preventive action as per his evaluation of the situation. The applicant has clearly mentioned that the two brothers appeared to be more aggressive, hence to prevent a cognizable offence being committed, he arrested them.
12. It is not the case of the respondents that Shri Abhay Jain was known 7 to the applicant or any illegal gratification was received by the applicant from Shri Abhay Jain for not arresting him. Findings of the respondents, that the applicant acted in a partial manner is not supported by any evidence available on record. Rather, the statement of the SHO shows clearly that the applicant acted in a transparent manner by sharing his assessment of the situation with his senior, before taking any coercive action. When his senior, (SHO) confirmed his assessment, he proceeded with further action of arrest etc.
13. I have not found the statement of Inspector Shri Vinod who accompanied the applicant on record, which could either confirm or negate the stand of the applicant in this case. Hence I proceed to decide the case with the available facts placed before me.
14. Merely because Dinesh & Sunil had complained against Abhay Jain does not make them innocent, or, make Abhay Jain, a criminal. In a scuffle of this nature, there is always a possibility of persons from both sides sustaining injuries, which alone cannot be the sole factor, to determine whether a person‟s conduct warrants arrest. It is only the officer present on site, who, in his best judgement, can evaluate as to who is at fault, which the applicant did. He even shared his views with his seniors who confirmed his suggested line of action. There is no evidence, except an inference, drawn by the Respondents, that he acted in a partial manner towards Abhay Jain.
15. In view of the aforesaid discussions I feel that the allegation of lapse, or lack of transparency etc., on part of the applicant is not established. OA is hence allowed and the orders dated 17.12.2012, 01.09.2011 and 08.04.2011 are quashed. No costs.
(Praveen Mahajan) Member (A) 8 „uma‟