Madras High Court
N.Ramasubbu vs The Commissioner Of Police on 27 February, 2012
Author: Chitra Venkataraman
Bench: Chitra Venkataraman, R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/02/2012 CORAM THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN and THE HONOURABLE MR.JUSTICE R.KARUPPIAH Writ Appeal (MD)No.132 of 2009 N.Ramasubbu .. Appellant Vs. 1.The Commissioner of Police, Madurai City, Madurai. 2.The Additional Deputy Commissioner of Police, Prohibition Enforcement Wing, Madurai City. .. Respondents Appeal filed under Clause 15 of the Letters Patent, against the order passed by this Court in W.P.(MD)No.3187 of 2005 on 17.10.2007. !For appellant ... Ms.AL.Ganthimathi ^For respondents ... Mr.M.Govindan, Special Government Pleader :JUDGMENT
(Judgment of the Court was delivered by CHITRA VENKATARAMAN, J.) The writ appeal is against the order of the learned single Judge in W.P.(MD)No.3187 of 2005 dated 17.10.2007 dismissing the writ petition filed by the appellant herein, seeking a writ of certiorarified mandamus to quash the order of the first respondent dated 04.04.2005 and to grant all consequential benefits to the appellant.
2.The appellant / writ petitioner was appointed as Grade-1 Police Constable on 15.04.1974 by direct recruitment and he was promoted as Head Constable on 13.07.1982 and then promoted as Sub-Inspector of Police on 25.05.1995. It is seen from the facts placed before this Court that while he was working as Sub-Inspector of Police, in K.Pudur Police Station, a case in Crime No.126 of 1999 was registered against one Baskaran alias Vedigundu Baskaran for offences under the Explosive Substances Act and he was arrested on 18.12.1999 by the Inspector of Police, one Vallinayagam, to whom, the appellant assisted as Sub-Inspector of Police. The said Baskaran alias Vedigundu Baskaran gave confessional statement which discloses the long standing enmity between him and one Ravi alias Solai Ravi. The appellant alleges that one Sakthivel, Inspector of Police, CB-CID, who was investigating the case in Crime No.352 of 1999 on the file of Alanganallur Police Station, called on the appellant to sign the statement under Section 161 Cr.P.C. The appellant was cited as Prosecution Witness No.21 in S.C.No.398 of 2002 on the file of the Principal Sessions Judge, Madurai. The said criminal case was filed against one Solai Muthiah, a retired Superintendent of Police and others for offences under Sections 364, 120-B, 302 and 201 IPC on the charge that the accused who were all police officials, had misused their powers and kidnapped Baskaran alias Vedigundu Baskaran, the accused in Crime No.126 of 1999, and had burnt him to death to screen the evidence. It is stated that in the course of his confessional statement, the said Baskaran alias Vedigundu Baskaran had spoken about one Ramaswami, the second accused in the case, who is stated to have contacted the appellant subsequently to find out the whereabouts of the said Baskaran alias Vedigundu Baskaran, and that the appellant had informed Ramaswami that Baskaran alias Vedigundu Baskaran had come out on bail and was staying at some place called "Iyer Bungalow". It is seen from the evidence recorded in the course of the proceedings of the learned Sessions Judge that the appellant is stated to have deposed that he did not know about the second accused-Ramaswami and he was not enquired before Ramaswami. It is also stated that the appellant was not enquired before the CB-CID police. Thus the appellant was treated as hostile witness. It is further seen from the documents placed before this Court that in citing the evidence given by the appellant, as prejudicial to the Department's interest and not reflecting the discipline and dignity of the services to which the appellant belongs to, the appellant was placed under suspension by order dated 25.08.2004 under Rule 3(e)(1)(i) of Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955.
3.The appellant filed W.P.(MD)No.1215 of 2004 before this Court, against the order of suspension. By order dated 15.09.2004, this Court granted interim stay. Subsequently, he was issued with the charge memo dated 20.10.2004 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955, with regard to the implication of the charges alleged about the statement made by the appellant in the course of enquiry before the CB-CID and subsequently, he turned hostile in the course of evidence before the Magistrate's Court. In the course of the Departmental Enquiry, the appellant gave his written statement and refuted the allegations about the statement given before the CB-CID. It is contended that no signature could have been obtained in a statement given in the course of 161 Cr.P.C. proceedings and hence, the signature said to have been obtained from him, was of no consequence and cannot be relied upon. Going through the events, ultimately, the facts were found against the appellant, which ultimately led to the passing of an order of punishment of compulsory retirement from services. The order thus passed by the Commissioner of Police, Madurai City, was challenged before this Court in the above writ petition.
4.In the course of the proceedings before this Court, the appellant contended that the deposition of the appellant before the Criminal Court was nothing but truth and he has precisely done the same by speaking the truth. Therefore, the appellant could not be punished severely by order of compulsory retirement. The appellant further stated that the Inspector of Police who was the Investigating Officer in the Criminal Court did not actually record his Section 161 statement, and the statement given before the Enquiry Officer was refuted by the appellant. He further pointed out that during the course of enquiry, he did not have sufficient opportunity to cross-examine the Department's witnesses. Thus, the appellant sought for quashing the proceedings.
5.On notice, the respondents filed their counter affidavit, wherein it was specifically averred that the Additional Deputy Commissioner of Police, Prohibition Enforcement Wing, conducted oral enquiry and based on the findings, the order of punishment of compulsory retirement, was passed. It is further stated that the police had investigated the case against Solai Muthiah, retired Superintendent of Police and ten other police personnel, and that Ramasubbu, Sub-Inspector of Police/ the appellant herein, arrested Baskaran alias Vedigundu Baskaran, the deceased in that case, from whom the appellant had obtained confessional statement on 18.02.1999 in K.Pudur Police Station for the charges filed under Sections 3 and 5 of Explosive Substances Act and 392 IPC. In connection with the trial of the case relating to the death of Baskaran alias Vedigundu Baskaran, the appellant was examined in the Court, who failed to identify the accused, viz. Sub-Inspector of Police-Ramaswami, now retired, stating that the appellant was not examined by CB-CID, thus causing great injustice to the prosecution. The respondents submitted that in a case wherein Police Officers were charged with the crime of kidnapping and murder and causing disappearance of evidence, the appellant, having made a statement before the CB- CID, being well aware of the facts and circumstances, retracted the statement and turned hostile, which is certainly unbecoming of the conduct of public servant. In the circumstances, the proceedings were rightly initiated against the appellant. It is further pointed out that CB-CID Investigation Officer had examined the appellant and obtained Section 161 Cr.PC statement as prosecution witness. Having taken note of the conduct of the appellant, thus, rightly the proceedings were passed.
6.In considering the submissions thus made, learned single Judge pointed out to the domestic enquiry, particularly to questions 5, 6, 7 and 8 of the Investigation Officer's cross-examination, which are extracted in the order made in the writ petition. The same are extracted hereunder:-
"Question No.5:
Is it correct that instead of examining me and recording my statement you yourself record the statement with the help of a constable? Answer:
I deny your suggestion. I wrote as per your dictation and only after reading the said statement and agreeing with the same and after you signing the statement, the statement was filed.
Question No.6:
Who had written the statement after you investigated and recorded my statement?
Answer:
It was recorded in my presence with a help of a constable who worked under me.
Question No.7:
After recording the statement where was the true copy set? Answer:
It has been kept safely in the Madurai CBCID Office.
Question No.8:
Is it correct to state when a witness statement is recorded under section 162 Cr.P.C. the signature should not be obtained in the said statement.
Answer:
Only in the statement forwarded to the Court, the signature should not be obtained."
Thus going by the records, this Court came to the conclusion that having made a statement before the CB-CID and a case was made charging the erring police officer, going back on the said statement, certainly had embarassed the Department and the credibility of the investigation and the proceedings taken against the erring police officers. It is further noted by the learned single Judge that the appellant was taken by surprise by the signature found in the statement and in order to get over the same, the appellant contended that all that the appellant had done before the Criminal Court was nothing but speaking the truth. Thus, rejecting the plea of the appellant, learned single Judge referred to the Division Bench judgment of this Court reported in 1990 L.W. (Criminal) 132 (Jothi Begaum v. State) on the similar circumstances, which pointed out to the stand of the official witness, who had pronounced the death of the deceased, and later on, turned hostile. This Court pointed out that the fact of an official witness turning fully hostile is something which in the normal course, does not happen and should not happen. Hence, this Court directed that an enquiry to be initiated to find out whose version is true, viz. that of the Inspector of Police, and take suitable action against the erring officer.
7.Learned counsel appearing for the appellant contended that since the appellant was consistently speaking the truth before the Court of law, he should not be given disproportionate punishment. She further stated that when the consistent case of the appellant was that he never made any statement as had been stated before the Enquiry Officer, the suggestion by the prosecution was incorrect, and that, the prosecution could not compel the appellant even as a prosecution witness, to give evidence contrary to truth. In the circumstances, the consistent plea taken by the appellant that he was not enquired by the CB- CID ought to have been acted upon, before passing the order of suspension.
8.Heard the learned counsel on either side and perused the materials available on record.
9.We do not think that this is a fit case where the Court should interfere with the order of the learned single Judge confirming the order of punishment. It may be relevant herein to point out that subsequent to the dismissal of the writ petition, the appellant herein approached the Director General of Police, Chennai by way of an Appeal Petition on 21.02.2008, which was later converted as Mercy Petition. Further, the said Appeal Petition was disposed of rejecting the plea of the appellant. After going through the files and the Appeal Petition thoroughly the Director General of Police came to the conclusion that considering the gravity of the delinquency, the punishment awarded was not excessive, and that in the Mercy Petition, the delinquent has not brought out any fresh points for consideration. As far as the present case is concerned, the stand taken before the learned single Judge is reiterated. No fresh facts or material are brought before this Court. Going through the Enquiry Report dated 19.04.2005, we have absolutely no hesitation in confirming the order of the learned single Judge.
10.A perusal of the Enquiry Report, particularly to the evidence of Sakthivel, the prosecution witness, points out to the appellant being asked by Ramaswami, the second accused in the case, about the whereabouts of the said Baskaran alias Vedigundu Baskaran. A reading of the evidence in the enquiry leaves no manner of doubt as regards further proceedings rightly taken for compulsory retirement of the appellant. When the respondents have thus arrived at a factual finding, and that there was no other material shown before this Court either as to the violation of principles of natural justice or as regards the prejudice caused on the conduct of the proceedings, we do not find any justifiable ground to disturb the orders of the authorities below.
11.In view of the foregoing reasons, we are in entire agreement with the reasoning of the learned single Judge. In the circumstances, we do not find any justifiable ground legally or otherwise, to interfere with the impugned order passed by the writ Court. Therefore, the writ appeal is dismissed. No costs.
KM To
1.The Commissioner of Police, Madurai City, Madurai.
2.The Additional Deputy Commissioner of Police, Prohibition Enforcement Wing, Madurai City.