Allahabad High Court
Yamuna Singh And 3 Others vs State Of U P And 3 Others on 31 August, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 17.08.2022 Judgment delivered on 31.08.2022 Court No. - 82 Case :- WRIT - A No. - 10854 of 2022 Petitioner :- Yamuna Singh And 3 Others Respondent :- State Of U P And 3 Others Counsel for Petitioner :- P.K. Upadhyay,Kalpna Upadhyay Counsel for Respondent :- C.S.C. Hon'ble Saurabh Shyam Shamshery,J.
1. The legal issue which requires consideration of this Court is that : ''whether departmental disciplinary proceedings initiated under Rule (14) 1 of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (for short "Rules, 1991") can proceed simultaneously along with criminal proceedings initiated in pursuance of a first information lodged against same delinquent, arising out of same or similar facts?'.
2. Sri P.K. Upadhyay, learned counsel for petitioners and Sri G.N. Srivastava, learned Standing Counsel for the State respondents have relied upon different judgments passed by this Court and Supreme Court in support of their respective submissions. The submission of learned counsel for petitioners is that, there is an absolute bar to proceed with departmental disciplinary proceedings till the trial arising out of criminal proceedings is concluded, whereas stand of the State is that bar, if any, is not absolute. Both counsel have placed different interpretation of Regulations 486, 492, and 493 of Uttar Pradesh Police Regulations in their favour.
3. Learned counsel for petitioners has relied upon judgment passed by the coordinate Bench at Lucknow in Sanjay Rai Vs. State of U.P. and others and other connected cases, 2016 LawSuit(All) 3133 wherein it has been held that :-
"28. From the above discussion, the protections made available to police officers in departmental proceedings, where the offence, apart from being one under Section 7 of the Act 1861 is also a cognizable or a non-cognizable offence under the Criminal Law, becomes clear. In the event of a cognizable offence, it is mandatory to lodge an F.I.R. In a case involving a cognizable offence the protections under Regulation 486(I) are available as mentioned hereinabove, i.e. police officer cannot be subjected to disciplinary action unless an FIR is lodged, investigation is done, there is reason to believe that the charge is true, but, on account of insufficiency of evidence or for any other reason, final report is submitted and is accepted under Section 173 Cr.P.C. Unless this happens, the departmental proceedings cannot go on. Furthermore, if a chargesheet is filed in the criminal case, that is the charges are not only believed to be true but there is evidence to establish the same then also the disciplinary proceedings cannot go on, as, the intent of the regulations is that the police personnel should have the benefit of a trial by a competent Court of Criminal Jurisdiction so as to protect them from mala fide action. There is nothing in the regulations which permits the holding of a departmental inquiry where a chargesheet has been filed for commission of a cognizable criminal offence before a Court of competent Criminal jurisdiction.
29. In this context the judgments of the Supreme Court in the case of State of Punjab vs Raj Kumar, (1988) 1 SCC 701; State of U.P. and others vs Surender Pal, (1989) 2 SCC 470; and State of U.P and others vs. Babu Ram Upadhyay, AIR 1961 SC 751, where the Supreme Court had the occasion to consider the object and purport of regulation 486 of the UP Police regulations and a similar provision as was existing in the State of Punjab, were considered, may be referred. The Supreme Court in the case of Babu Ram Upadhyaya (supra) mentioned the object behind Regulation 486 of the U P Police regulations in para 30 which reads as under :
"30. Now what is the object of rule I of para. 486 of the Police Regulations? In our opinion, it is conceived not only to enable the Superintendent of Police to gather information but also to protect the interests of subordinate officers against whom departmental trial is sought to be held. After making the necessary investigation under chapter XIV of the Criminal Procedure Code, the Superintendent of Police may as well come to the conclusion that the officer concerned is innocent, and on that basis drop the entire proceedings. He may also hold that it is a fit case for criminal prosecution, which, under certain circumstances, an honest officer against whom false charges are framed may prefer to face than to submit himself to a departmental trial. Therefore, the rules are conceived in the interest of the department as well as the officer. From the stand point of the department as well as the officer against whom departmental inquiry is sought to be initiated, the preliminary inquiry is very important and it serves a real purpose. Here the setting aside of the order of dismissal will not affect the public in general and the only consequence will be that the officer will have to be proceeded against in the manner prescribed by the rules. ..."
41. Regulation 490 lays down the procedure for holding departmental proceedings. To the extent the procedure laid down therein is in conflict with the procedure prescribed in the Rules of 1991, same stands superseded for the reasons already mentioned earlier.
42. As far as Regulation 492 is concerned, though the same is not directly involved herein, but suffice it to say that it has been held to be directory, and not mandatory, by a Division Bench of this court in the case of Vijay Shanker Tiwari v. State of U.P. & ors., 1996 (14) LCD 126 which has been followed by the Full Bench of the Delhi High Court in the case of Commissioner of Police v. Sukhbeer Singh , 2014 SCC Online Delhi Delhi 1985.
43. As far as Regulation 493 is concerned, though the same is not directly attracted in the present case, nevertheless, it needs to be mentioned that there being nothing to the contrary contained in the Rules of 1991, the same is still binding upon the departmental officials, therefore, it is not open for the Superintendent of Police in the course of departmental proceedings against a police officer who has been tried judicially to re-examine the truth of any fact in issue at his judicial trial and the finding of the court on this count must be taken as final. As far as purport of the Ist part of Regulation 493 is concerned, it will depend upon the facts of a case, as, if a police officer is exonerated on the ground of insufficiency of evidence and the offence not being proved beyond reasonable doubt, which is the standard of proof applicable in criminal trials then it would be a moot point as to how far the observations or findings of the court, would be binding upon a Superintendent of Police in a departmental action, specially in view of the recitals contained in Clause (c) of Regulation 493. As far as Clause (a) and (b) of Regulation 493 are concerned a word of caution needs to be sounded as in view of the ratio in Kedar Nath Yadav's case (supra), the Superintendent of Police would not be justified in passing an order of dismissal straightway on the ground of conviction and sentence to rigorous imprisonment of a police officer regarding a criminal offence, as, the conduct leading to such conviction would have to be considered in view of Article 311(2)(c) of the Constitution of India to which the Regulations are subject, as mentioned in Regulation 477. In fact, they would be subject to it even otherwise.
44. As far as the entitlement of the department to proceed departmentally after judicial trial, is concerned, if it has resulted in conviction, then in view of Article 311(2)(c) of the Constitution action can be taken on the basis of the conduct leading to his conviction, but not otherwise. In this regard the Department does not have to wait for expiry of the period for filing a criminal appeal nor for a decision thereon, as this would be contrary to Article 311(2)(c) of the Constitution as held in Kedar Nath Yadav's case (supra). In the event of an acquittal Clause (c) of Regulation 493 would apply.
45. Thus, on a survey of the relevant provisions referred hereinabove it is evident that except in the case of non-cognizable offences, if an act constitutes an offence under Section 7 of the Act 1861 as also a cognizable offence under Criminal Law, no departmental action can be undertaken unless the eventualities mentioned in Regulation 486(I), specially Clause (6) thereof, are satisfied. In a case where chargesheet is filed such departmental action cannot be taken till the conclusion of the judicial trial. After its conclusion it can be held in the case of a conviction on the basis of conduct leading to such conviction and in the case of acquittal or discharge, in terms of Clause (c) of Regulation 493 keeping in mind the dictum of the Supreme Court in Kedar Nath Yadav's case (supra).
46. As far as the judgment of a Single Judge Bench of this Court in Case of Surendra Singh v. State of U.P., rendered in Writ Petition No.1735(SS) of 2011 on 6.1.2012, is concerned, in the said judgment the provisions of Regulation 483 and 486, though referred, its purport, object and effect have not been considered. Moreover, in view of the above discussion, the said judgment does not help the cause of the respondent, specially as the view taken herein is supported by a subsequent Division Bench judgment rendered in the case of Shiv Lal Sonkar v. the State of U.P., 2014 (107) ALR 91, as also, a Single Judge decision reported in AIR 1968 Alld. 20, U.P. Government v. Ramakant Shukla, wherein it was also held that departmental action means entire departmental proceedings, and not merely punishment."
4. Learned counsel for the petitioners has further relied upon a judgment of coordinate Bench in the case of Mool Chand Singh Vs. State of U.P. and others, Writ A No. 6405 of 2021, decided on 02.08.2021 and relevant paragraph Nos. 14 and 15 thereof are extracted hereinbelow :-
"14. Bare perusal of Regulations 492 and 493 would go to show that whenever a police officer has been judicially tried, the Superintendent must await the decision of the judicial proceeding, if any, before deciding whether further departmental action is necessary. Regulation 493 mentions that it will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a Police Officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial and the finding of the Court on these facts must be taken as final. Division Bench of this Court in the Case of Kedar Nath Yadav Vs. State of U.P. 2005(3) E.& C 1955, while considering these very Regulations, has taken the view, that even after enforcement of 1991 Rules, these two Regulations continue to hold the field.
15. Considering the aforesaid facts and circumstances of the case, the writ petition is disposed of with direction to the competent authority to decide the issue, as to whether disciplinary enquiry is to continue at all or not, and whether result of criminal trial is to be awaited, keeping in view overall fact and situation as prevailing on the spot, in the light of judgements rendered in Sanjay Rai's case (supra) and Somendra Singh's case (supra) within a period of two months from the date of receipt of copy of the order."
5. Per contra, learned Standing Counsel for the State respondents has relied upon a judgment of coordinate Bench of this Court in the case of Rinku Singh Vs. State of U.P. and others, Writ A No. 6978 of 2021 decided on 08.10.2021 and relevant paragraphs thereof are quoted below :-
"21. In the light of interpretation given by this Court in the case of Surendra Singh (supra) relating to Regulations 492 & 493 of Police Regulation, this Court finds that submission of learned counsel for the petitioner based upon Regulations 492 & 493 of Police Regulation is misplaced and is not sustainable in law, since in the instant case only charge sheet in the criminal case has been filed, and trial is yet to begin.
22. Now, coming to the second limb of argument that whether disciplinary proceeding and the criminal proceeding can proceed simultaneously where both proceedings have been initiated on the same set of charges and evidence in both the proceedings are identical and shall prejudice the criminal proceeding since petitioner would have to disclose the defence which he wants to take in the criminal proceeding. In the opinion of the Court, the said submission is also misconceived for two reasons; firstly, as detailed above, the charge against the petitioner in the criminal proceeding and disciplinary proceeding are not identical as there is one additional charge in the disciplinary proceeding which has been delineated above. Secondly, to succeed, the petitioner has to demonstrate that charge against the petitioner is grave and involves complicated questions of fact and law, and further if the disciplinary proceeding is continued that would prejudice the criminal trial of the petitioner.
23. In the case in hand, though a bald averment has been made in the writ petition in paragraph 31 that continuance of disciplinary proceeding would prejudice the criminal trial, there is no pleading in the writ petition as to how continuance of disciplinary proceeding would prejudice the criminal trial of the petitioner.
24. As the petitioner has failed to demonstrate that charge against the petitioner is grave and involves complicated questions of fact and law, and further how the continuance of disciplinary proceeding would prejudice the criminal trial of the petitioner, this Court is not inclined to accept the aforesaid submission of learned counsel for the petitioner. At this stage, it is pertinent to mention that early conclusion of the disciplinary proceeding is good in the interest of the employee as well as the department for the reason that if the employee is exonerated from the charges, he may not be out of service unnecessarily and may be reinstated, and if the employee is found guilty, the department will get rid of such employee who is not worth continuing in the employment."
6. Learned counsel for State has further relied upon another judgment of a coordinate Bench of this Court in the case of Prakash Ram Arya Vs. State of U.P. and others, Writ A No. 5818 of 2019, decided on 16.04.2019 of which relevant part is extracted hereinbelow :-
"In the facts of the case at hand, the charge against the petitioner is that the petitioner had overstayed the leave without approval and sanction and that he is charge-sheeted in criminal case under Section 302 I.P.C. for hatching criminal conspiracy to eliminate Vishal Williams for having illicit relationship with his wife. The department has set up two witnesses for departmental enquiry; (i) Sub-Inspector (Clerk) to substantiate that the petitioner proceeded on leave and overstayed the leave; (ii) the Investigating Officer of the criminal case to substantiate that petitioner is involved in the commission of the said crime and charge sheet has been filed against the petitioner. Whereas, in the criminal case, there are more than twenty prosecution witnesses in support of the charge.
On specific query, learned counsel for the petitioner is unable to point out as to how the charge in the disciplinary proceedings is based on the same facts and evidence which is subject matter of criminal trial; the witnesses in the disciplinary proceedings and criminal case are entirely different and the only witness, the Investigating Officer who has filed the charge-sheet in the Court is witness in the disciplinary proceedings, to only substantiate that criminal case has been instituted against the petitioner for heinous crime. The charge in disciplinary proceedings is overstayal without information and involvement in heinous crime. Petitioner is a fairly senior officer and being a member of the disciplined force, it is open to the disciplinary authority to proceed in departmental proceedings pending criminal trial. The learned counsel for the petitioner failed to show from the material placed on record as to whether the petitioner would be prejudiced in the criminal trial, in case the disciplinary proceeding is continued and proceeded with.
Having due regard the facts and circumstances of the case, I do not find any merit in the case."
7. Learned Standing Counsel has also placed reliance on another judgment of this Court in the case of Sudesh Singh Vs. State of U.P. and others, Writ A No. 9672 of 2018, decided on 10.04.2018. Relevant part is extracted below :-
"In the instant case, however, noticing the fact that cognizance in criminal case has been taken on 6.8.2015 and not much has been proceeded in the criminal case and that the standard of proof required in the departmental proceedings is one of preponderance of probability whereas in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt, this Court does not find any merit in the submission of learned counsel for the petitioner to postpone the departmental enquiry or to quash the departmental charge-sheet.
In view of the above, no merit is found in the present petition. However, looking to the fact that the charge-sheet has been served upon the petitioner on 9.2.2016 and the petitioner has submitted his reply, the Disciplinary Authority is hereby directed to make an endeavour to conclude the departmental proceedings expeditiously, preferably, within a period of four months from the date of submission of certified copy of this order, provided the petitioner co-operates."
8. Learned Standing Counsel for the State respondents has lastly placed reliance on another judgment passed by the coordinate Bench at Lucknow in the leading case of Surendra Singh S/o Ram Shanker Singh and another Vs. State of U.P. and another, Service Single No. 1735 of 2011, decided on 06.01.2012 of which relevant paragraphs are quoted hereinafter :-
"27. The above exposition of law clearly shows that the term "has been" in simple language means a thing already happened and here the term "judicially tried" means that police officer concerned's trial in the court of law is already complete but the decision is awaited.
28. Similarly Regulation 493 is attracted when trial is complete and judgment of trial court has also come, resulting in recording a finding in favour of police officer. It restrain the competent authority in such matter to create a situation where a contrary finding can be recorded in departmental proceedings vis a vis court's verdict and the Regulation provides that such a contingency should not occur hence it prohibits such a course to be followed by competent authority.
29. Going by the above discussion it becomes apparently clear that situation in the present cases do not attract either Regulation 492 or 493 in both these matters since the only stage at which the criminal cases proceeding presently are that a charge sheet has been filed against petitioners. The petitioners cannot be said to have undergone judicial trial so far. The trial is still awaited. For the purpose of understanding the meaning of word "Trial" one may simply refer to the provisions of Cr.P.C. and that would clearly show that an accused can be said to have tried when evidence by prosecution and defence has already led and matter has been argued before trial court. This itself leaves inescapable conclusion that both these writ petitions at this stage have to fail.
36. From bare perusal of charges levelled in departmental inquiry and criminal case it is evident that though the same emanate from a common incident but charges ex facie are different. In departmental proceeding the charges relates to violation of conduct rules and departmental rules while the charges in criminal case relates to an offence under Section 223 and 224 IPC. One of the basic difference besides others in these two are that in criminal case the element of mens rea, i.e., intention to commit offence is a necessary ingredient which has no place in respect to charges levelled in departmental inquiry. It is also true that evidence in two proceedings may be similar but the procedure of inquiry/trial, the assessment of evidence and other legal principle in two proceedings are totally different.
37. It is now well settled that departmental proceedings can proceed simultaneously with criminal proceedings and there is no bar as such therein as held by the Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Another 1999 (3) SCC 679 where it has been clearly held that the departmental as well as criminal, both the proceedings, can go on simultaneously as there is no bar in their being conducted simultaneously. The question as to whether during the pendency of criminal proceeding, the departmental proceeding should be stayed depends upon the facts and circumstances of the individual case. In Ajit Kumar Nag Vs. General Manager I.O.C. JT 2005 (8) SC 425, the Apex Court said that the procedure followed in both the cases as well as the subject matter of the departmental enquiry and criminal proceeding has different scope and it cannot not be said that when a criminal proceeding is going on a particular criminal charge, in that regard, the departmental proceeding cannot be allowed to proceed. The same view has been reiterated subsequently, in Chairman/ Managing Director TNCS Corporation Ltd. & others Vs. K. Meerabai JT 2006 (1) SC 444, Suresh Pathrella Vs. Oriental Bank of Commerce AIR 2007 SC 199 and Union of India & others Vs. Naman Singh Shekhawat 2008 (4) SCC 1.
38. Referring to Capt. M. Paul Anthony (supra), recently the Apex Court in Managing Director, State Bank of Hyderabad & another Vs. P. Kata Rao JT 2008 (4) SC 577 observed that the legal principle enunciated to the effect that on the same set of facts, the delinquent shall not be proceeded in a departmental proceeding and in a criminal proceeding simultaneously has been deviated from. It it also said that the dicta laid down by the Apex Court in Capt. M. Paul Anthony (supra), though has remained unshaken but its applicability has been found to be dependent on the facts and situations obtained in each case.
39. Similarly, in the case of Noida Entrepreneurs Assn. Vs. NOIDA & others JT 2007 (2) SC 620, the Court has reproduced the following conclusion deducible from various judgments as noticed in para-22 of the judgment in Capt. M. Paul Anthony (supra), namely :
"(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature, which involved complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
40. A similar view has also been taken in Indian Overseas Bank Vs. P. Ganesan & others AIR 2008 SC 553 and the Court held that where a prayer is made that so long as criminal proceedings are going on, departmental proceeding may not be proceeded, the Court must record a finding that the non grant of stay on departmental proceeding would not only prejudice the delinquent officer, but the matter also involve a complicated question of law. Nothing of that sort has been shown by the learned Counsel for the petitioner in the case in hand.
41. Following the aforesaid authorities of the Apex Court, this Court has taken a similar view in Priti Chauhan vs. State of U.P. & others 2008 (9) ADJ 388.
42. I, therefore, have no hesitation to hold that here is a case where it cannot be said that charges in departmental proceedings are same as in the criminal trial and thus also the submission that departmental inquiry cannot proceed simultaneously, cannot be accepted particularly."
(underline is the emphasis supplied by the learned counsel for respective parties)
9. The facts of the case are that a preliminary inquiry was conducted and thereafter following charge was framed on the petitioners under the above referred Rules, 1991 :-
"मैं आपको निम्नानुसार आरोपों से आरोपित करता हूँ।
"यह कि पिढ़वल में रघुनाथ यादव के ट्रैक्टर से बैटरी की चोरी की घटना के सम्बन्ध में दिनांक07.09.2019 को थाना घोसी पर पंजीकृत मु.अ.सं.-382/2019 धारा 379 भा.द.वि. में वांछित अभियुक्त ओकेश कुमार यादव की दिनांक 08/09.09.2019 की रात्रि समय लगभग 02:45 बजे अचानक तबियत खराब होने पर उसे तत्काल सामुदायिक स्वास्थ्य केन्द्र घोसी ले जाया गया जहां डाक्टरों द्वारा उसे समय लगभग 03:15 बजे मृत घोषित कर दिया गया। मृतक ओकेश यादव को पुलिस अभिरक्षा में थाना घोसी में दिनांक 07.09.2019 से दिनांक 09.09.2019 तक रखा गया तथा ओकेश यादव के चोटों की जानकारी होते हुए उपचार नहीं कराया गया। आप लोगों द्वारा यदि ओकेश यादव का चिकित्सा कराया गया होता तथा 24 घण्टे के अन्दर सक्षम मजिस्ट्रेट के समक्ष प्रस्तुत किया गया होता तो ओकेश यादव की मृत्यु नहीं होती। आप लोगों द्वारा पर्याप्त सावधानी के साथ कार्य नहीं किया गया। प्रारम्भिक जांच से आप लोग उक्त कृत्य के दोषी पाये गये। आपका यह कृत्य लापरवाही तथा स्वेच्छाचारिता का द्योतक है। आपके इस कृत्य से पुलिस विभाग की छवि धूमिल हुई है।""
(emphasis supplied by this Court)
10. Before that, an F.I.R. was lodged against the petitioners under Section 342 I.P.C. and 304 I.P.C. on 30.04.2022 and the relevant part of F.I.R. is reproduced hereinbelow :-
"नकल तहरीर- सेवा में, श्रीमान् प्रभारी निरीक्षक महोदय, थाना-घोसी जनपद-मऊ महोदय, निवेदन है कि मैं प्रार्थीनी संगीता यादव पत्नी स्व0 ओकेश यादव सा0 तिलई खुर्द नेवादा थाना घोसी जनपद मऊ की रहने वाली हूँ। मेरे पति ओकेश यादव पुत्र स्व0 रामधारी यादव सा0 तिलई खुर्द थाना घोसी जनपद मऊ को दिनांक 07.09.2019 समय लगभग 02:00 बजे दिन को ट्रैक्टर की बैटरी की चोरी के झूठे मामले में ग्राम हाजीपुर में विपक्षीगण द्वारा मेरे पति ओकेश यादव को मारा पीटा गया इसका विडियो भी विपक्षीगण द्वारा बनाया गया था। इस सूचना पर थाना घोसी की पुलिस थाना घोसी पर लेकर आयी थी आपसी पट्टीदारी होने के कारण आपस में दोनों पक्ष ग्राम लाखीपुर के सभ्रान्त व्यक्ति मान्धाता सिंह व ग्राम तिलईखुर्द के सुनील कुमार सिंह आदि सभ्रान्त व्यक्तियों द्वारा थाना प्रांगढ़ में पीपल के पेड़ के नीचे दोनों पक्षों के मध्य सुलह समझौते की बात चल रही थी मैं भी थाना पर थी, कि रात में अचानक मेरे पति ओकेश यादव की तबियत बिगड़ने लगी कि तभी मैं तथा ग्राम के सभ्रान्त लोगों व पुलिस द्वारा उचित इलाज हेतु सामुदायिक स्वा0 केन्द्र घोसी ले जाया जा रहा था कि रास्ते में मेरे पति की मृत्यु हो गयी। तब मेरे चचिया ससुर द्वारा दिनांक 09.09.2019 को तहरीर देकर मु.अ.सं. 383/2019 धारा 304 भा.द.वि. अच्छेलाल यादव आदि के विरुद्ध लिखवाया गया था। अब ज्ञात हुआ कि थाना घोसी पुलिस द्वारा दिनांक 07.09.2019 से दिनांक 09.09.2019 तक थाना घोसी में नाजायज तरीके से बैठाया गया था दवा इलाज नहीं करवाया गया जिससे मेरे पति ओकेश की मृत्यु हो गयी। जिसमें पूर्व में नियुक्त थाना प्रभारी निरीक्षक नीरज पाठक, उ0नि0 ओमप्रकाश, कां. यमुना सिंह, कां. राजमनी की लापरवाही व उपेक्षा के कारण मेरे पति की मृत्यु हुई थी। अतः निवेदन है कि उपरोक्त पुलिस वालों के विरुद्ध कानूनी कार्यवाही की जाये।"
(emphasis supplied by this Court)
11. Heard learned counsel for parties and perused the record.
12. The judgments cited on behalf of counsel from both side have proceeded on the basis of a different approach and interpretation to the relevant Regulations bearing No. 486, 492 and 493 of U.P. Police Regulations. For reference, they are mentioned herein :-
"486. When the offence alleged against a police officer amounts to an offence only under Section 7 of the Police Act, there can be no magisterial inquiry under the Criminal Procedure Code. In such cases, and in other cases until and unless a magisterial inquiry is ordered, inquiry will be made under the direction of this Superintendent of Police in accordance with the following rules :
I.- Every information received by the police relating the commission of a cognizable offence by a police officer shall be dealt with in the first place under Chapter XII, Criminal Procedure Code, 1973 (2 of 1974) according to law, a case under the appropriate section being registered in the police station concerned provided that -
(1) if the information is received, in the first instance, by a Magistrate and forwarded by the District Magistrate to the police, no case will be registered by the police;
(2) if the information is received, in the first instance by the police, the report required by Section 157, Criminal Procedure Code, shall be forwarded to the District Magistrate, and when forwarding it the Superintendent of Police shall note on it with his own hand what steps are being taken as regards investigation or the reasons for refraining from investigation.
(3) unless investigation is refused by the Superintendent of Police under Section 157(1)(b), Criminal Procedure Code and not ordered by the District Magistrate under Section 159, or unless the District Magistrate orders a magisterial inquiry under Section 159, investigation under Section 159, Criminal Procedure Code, shall be made by a police officer selected by the Superintendent of Police and higher in rank than the officer charged;
(4) on the conclusion of the investigation and before the report required by Section 173, Criminal Procedure Code is prepared, the question whether the officer charged should or should not be sent for trial shall be decided by the Superintendent of Police. Provided that before an officer whose dismissal would require the concurrence of the Deputy Inspector General under paragraph 479 is sent for trial by the Superintendent of Police, the concurrence of the Deputy Inspector General must be obtained;
(5) the charge sheet or final report under Section 173, or Section 169, Criminal Procedure Code, as the case may be, shall be sent to the District Magistrate; if the Superintendent of Police or the Deputy Inspector General had decided against a prosecution, a note by the Superintendent of Police giving the reasons for this decision shall be endorsed on, or attached to the final report;
(6) When the reasons for not instituting a prosecution is that the charge is believed to be baseless, no further action will be necessary; if the charged is believed to be true and a prosecution is not undertaken own to the evidence being considered insufficient or for any other reasons the Superintendent may, when the final report under Section 173, Criminal Procedure Code, has been accepted by the District Magistrate, take departmental action as laid down in paragraph 490.
II. When information of the commission by a police officer of a noncognizable offence (including an offence under Section 29 of the Police Act) is given in the first instance to the police, the Superintendent of Police may, if he sees reason to take action, either (a) proceed departmentally as laid down under head III of this paragraph and in paragraph 490, or (b) as an alternative to, or at any stage of the departmental proceedings, forward a report in writing to the District Magistrate with a request that he will take cognizance of the offence under Section 190(1)(b), Criminal Procedure Code, provided that report against Police Officers of having committed non-cognizable offence will (when made to the police and unless there are special reasons for desiring a magisterial inquiry or formal police investigation under the Code) ordinarily be inquired into departmental and will not ordinarily and then only if be referred to the District Magistrate until departmental inquiry is complete, a criminal prosecution is desired.
On receiving information either by means of a report in writing from the Superintendent of Police as laid down above, or otherwise as laid down in Section 190(1)(a) and (c), Criminal Procedure, of the commission by a Police Officer of a noncognizable offence, the District Magistrate may, subject to the general provisions of Chapter XIII, Part B, Criminal Procedure Code -
(a) proceed with the case under Chapter XVI Criminal Procedure Code;
(b) order an inquiry by a Magistrate or an investigation by the police under Section 202, Criminal Procedure Code, 1973 (2 of 1974); or an investigation by the police under Section 155(2);
(c) decline to proceed under Section 203, Criminal Procedure Code, 1973 (2 of 1974).
If an investigation by the police is ordered, it would be made under Section 155(3), Criminal Procedure Code by an officer selected by the Superintendent of Police and higher in rank that the officer charged and all further proceedings will be exactly as laid down for cognizable cases in paragraph 486 (1), (4), (5) and (6) above.
If no investigation by the police is ordered, and the District Magistrate, after or without magisterial inquiry, declines to proceed criminally with the case, the Superintendent of Police will decide, in accordance with the principles set forth in paragraph 486 (1) (6) above and subject to the orders contained in paragraph 494, whether departmental proceedings under paragraph 490 are required.
III.- When a Superintendent of Police sees reasons to take action or information given to him, or on his own knowledge or suspicion, that a Police Officer subordinate to him committed an offence under Section 7 of the Police Act or non-cognizable offence (including an offence under Section 29 of the Police Act) of which he considers it unnecessary at that stage to forward a report in writing to the District Magistrate under Rule II above he will make or cause to be made by an officer senior in rank to the officer charged, a departmental inquiry sufficient to test the truth of the charge. On the conclusion of this inquiry he will decide whether further action is necessary and if so, whether the officer charged should be departmentally tried, or whether the District Magistrate should be moved to take cognizance of the case under the Criminal Procedure Code; provided that before the District Magistrate is moved by the Superintendent of Police to proceed criminally with a case under Section 29 of the Police Act or other non-cognizable section of the law against an Inspector or Sub-Inspector, the concurrence of the Deputy Inspector General must be obtained. Prosecution under Section 29 should rarely be instituted and only when the offence cannot be adequately dealt with under Section 7.
492. Whenever a police officer has been judicially tried, the Superintendent must await the decision of the judicial appeal, if any, before deciding whether further departmental action is necessary.
493. It will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a Police Officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial, and the finding of the Court on these facts be taken as final.
Thus, (a) if the accused has been convicted and sentenced to rigorous imprisonment, no departmental trial will be necessary, as the fact that he has been found deserving of rigorous imprisonment must be taken as conclusively providing his unfitness for the discharge of his duty within the meaning of Section 7 of the Police Act. In such cases the Superintendent of Police will without further proceedings ordinarily pass an order of dismissal, obtaining the formal order of the Deputy Inspector General when necessary under paragraph 479(a). Should he wish to do otherwise he must refer the matter to the Deputy Inspector General of the range for orders.
(b) If the accused has been convicted but sentenced to a punishment less than of rigorous imprisonment a departmental trial will be necessary, if further action is thought desirable, but the question in issue at this trial will be merely (1) whether the offence of which the accused has been convicted amounts to an offence under Section 7 of the Police Act, (2) if so, what punishment should be imposed. In such cases the Superintendent of Police will (i) call upon the accused to show cause why any particular penalty should not be inflicted on him, (ii) record anything the accused officer has to urge against such penalty without allowing him to dispute the findings of the Court, and (iii) write a finding and order in the ordinary way dealing with any plea raised by the accused officer which is relevant to (1) and (2) above.
(c) If the accused has been judicially acquitted or discharged, and the period for filing an appeal has elapsed and / or no appeal has been filed the Superintendent of Police must at once reinstate him if he has been suspended; but should the findings of the Court not be inconsistent with the view that the accused has been guilty of negligence in, or unfitness for, the discharge of his duty within the meaning of Section 7 of the Police Act, the Superintendent of Police may refer the matter to the Deputy Inspector General and ask for permission to try the accused departmentally for such negligence or unfitness."
13. The judgments relied upon on behalf of petitioners have taken a strict interpretation of the above referred police Regulations that in a case where on basis of same or similar act, simultaneous proceedings i.e. departmental inquiry as well as investigation in pursuance of F.I.R., are undertaken there would be an absolute bar for the department to proceed with the departmenal inquiry till the conclusion of the criminal trial. However, the approach in the judgments relied upon by the respondents are on the basis of the interpretation of word ''trial' and that in a case where facts are not only same, but similar also, the departmental proceedings can go on simultaneously with the police investigation if the delinquent fails to demonstrate that in such case, he would be prejudice. The petitioners' side have mainly relied upon a judgment passed by the coordinate Bench at Lucknow in Sanjay Rai (supra), wherein the coordinate Bench has taken a strict view of the interpretation of the above referred Rules. However, Bench missed to take note of judgment passed by the Supreme Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Another 1999 (3) SCC 679 which has been taken consideration by the coordinate Bench in the case of Surendra Singh (supra) which has been heavily relied upon by learned Standing Counsel. The conclusion in Capt. M. Paul Anthony (supra) despite being repetition are mentioned hereinafter :-
"(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature, which involved complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
(emphasis supplied by this Court)
14. The coordinate Bench in Sanjay Rai (supra) has also placed reliance on State of U.P. and others Vs. Babu Ram Upadhyay (5 Judges), (1961) 2 SCR 679 : AIR 1961 SC 751, whereby majority has considered interest of both department of police as well as of delinquent that before taking decision to continue with departmental inquiry, a preliminary inquiry was held to be important. The Court was considering that on a complaint to police on administrative side, the department may take action or conduct inquiry as envisaged in Regulations. It would be relevant to quote paragraph No. 50 from the above referred judgment (minority):-
"50. It appears to us that the object of Rule 486 is that the authority concerned should first make a preliminary inquiry to find out if there is a case against the officer complained against either to proceed in a court or to take departmental action. The investigation prescribed by Rule 486 is only for this purpose. Incidentally it may be that after such an investigation, the authority concerned may come to the conclusion that there in no case either to send the case to court or to hold a departmental inquiry. But that in our opinion is what would happen in any case of complaint against a public servant in any department of Government. No authority entitled to take action against a public servant would straightaway proceed to put the case in court or to hold a departmental inquiry. It seems to us axiomatic if a complaint is received against any public servant of any department, that the authority concerned would first always make some kind of a preliminary inquiry to satisfy itself whether there is any case for taking action at all; but that is in our opinion for the satisfaction of the authority and has nothing to do with the protection afforded to a public servant under Article 311. Rule 486 of the Police Regulations also in our opinion is meant for this purpose only and not meant to carry out the object contained in Article 311(2). The opportunity envisaged by Article 311(2) will be given to the public servant after the authority has satisfied itself by preliminary inquiry that there is a case for taking action. Therefore, Rule 486 which is only meant to gather materials for the satisfaction of the authority concerned, whether to take action or not, even though a statutory rule cannot be considered to be mandatory as that would be forging a further fetter than those contained in Article 311 on the power of the Governor to dismiss at pleasure. We are therefore of opinion that Rule 486 is only directory and failure to comply with it strictly or otherwise will not vitiate the subsequent proceedings."
15. From the above discussion, the Court is of the view that before reaching to any conclusion, a holistic approach has to be taken including the purport of the above referred relevant Regulations of U.P. Police Regulations as well as the judgments referred hereinbefore especially the judgment passed by the Supreme Court in Capt. M. Paul Anthony and Babu Ram Upadhyay (supra). Therefore, before taking a decision whether to proceed or not with the departmental inquiry, the concerned authority has to apply mind on facts of the charge in departmental proceedings as well as contents of F.I.R. and the charge if framed in the criminal proceedings and if the authority arrived at a conclusion that departmental proceedings and criminal case are based on identical set of facts and continuation of departmental proceedings would adversely effect, the case of delinquent or he would be prejudiced, then only, a decision could be taken not to proceed with departmental inquiry till the trial is over. Even thereafter, if there is an inordinate delay in conclusion of trial, after a reasonable time, the concerned authority may review the decision and would have a liberty to proceed with the departmental proceedings.
16. The Regulation 486(II) would come into picture when a complaint is made to police authority against any police personnel about his involvement in a non-cognizable offence, and the police authority would be at liberty to lodge an F.I.R. or initiate departmental proceedings and for that purpose, preliminary inquiry has to be conducted. So far as report of cognizable offence is concerned, procedure is prescribed under Regulation 486 (I) that police investigation be carried on and in case final report is accepted, departmental inquiry can be initiated, however, in view of judgment of the Supreme Court in case of Lalita Kumari Vs. Government of Uttar Pradesh and others, (2008) 14 SCC 337, it is now mandatory to register F.I.R. where the information discloses commission of cognizable offence and further there may be a different situation when criminal investigation is initiated on an F.I.R. lodged by complainant/victim and departmental proceedings are initiated separately on same or similar facts and in these circumstances, the department has also liberty to take a decision in terms of Regulation 492 and 493 as well as considering the judgment of Capt. M. Paul Anthony (supra).
17. The above observation of this Court based on the basic difference in regard to standard of proof required in a departmental proceedings and in a criminal case which is different so much as the proof required in a departmental proceedings is one of preponderances of probability whereas in a criminal case, charge has to be proved by prosecution beyond reasonable doubt and further that the evidence led in the departmental inquiry could not be read in a criminal case. A criminal trial is considered to be commenced only before a Court of Sessions under Chapter XVIII of Cr.P.C. when under Section 226 (opening case of prosecution) after commitment of the case under Section 209 Cr.P.C., therefore, till proceedings are reached upto that stage, Regulations No. 492 and 493 have no role.
18. In the above background, the Court proceeded to consider the contents of charge framed against the petitioners in departmental proceedings as well as the contents of F.I.R. lodged against the petitioners.
19. On instructions, it has been stated at Bar by learned counsel for parties that in criminal case, investigation is still not concluded, therefore, as held earlier stage has still not come for consideration of Regulations No. 492 and 493. The contents of charge in the departmental proceedings are referred in paragraph No. 11 of this judgment that are of negligence and due process was not followed by the petitioners when victim was kept under detention, so much as no medical facility was provided as well as he was not produced before the Magistrate within 24 hours as prescribed under Criminal Procedure Code whereas in the first part of F.I.R., there was no allegation against petitioners, however, in later part of F.I.R., an allegation against the petitioners was also made that deceased was kept under detention illegally and no medical treatment was given to him.
20. Therefore, it cannot be said that departmental proceedings and criminal case are based on absolutely identical set of facts, though, similar to some extent. In the memo of charge, proposed witnesses are mentioned, however, till date investigation is not concluded. Therefore, outcome of the investigation is not on record and details of proposed witnesses are unknown at present stage.
21. At this stage to take a definite view that proposed witnesses, if any, be identical in the criminal case would not be a correct approach and since trial is not commenced till date and therefore, even the contents of Regulation No. 492 and 493 does not bar to continue with the departmental proceedings. However, during proceedings, the petitioners are at liberty, in case investigation is concluded and further in case any charge sheet is filed, and the proposed witnesses are same and the petitioners are able to show that continuance of departmental proceedings would cause prejudice to them, the concerned authority, if such departmental proceedings are not concluded, would be under obligation to consider grievance of the petitioners and at that stage, appropriate decision could be taken to continue with the departmental inquiry or not.
22. However, at this stage, the Court is of the view that there is no bar to continue with the departmental proceedings.
23. In view of above, the prayers made in this petition are rejected and the respondents are directed to proceed further with the departmental proceedings. However, after filing of the charge sheet, if any, and at the stage of commencement of trial the petitioners would have liberty to bring subsequent event on record in departmental proceedings, that continuation of the departmental proceedings may cause prejudice to them and in that case, the respondents shall take an appropriate decision.
24. In view of above and also considering the law on issue as well as facts of the present case, this writ petition is dismissed with aforesaid observations.
Order Date :- August 31, 2022 Nirmal Sinha [Saurabh Shyam Shamshery, J.]