Central Administrative Tribunal - Delhi
Dr. Kuldip N. Sharma vs State Of Gujarat Through on 7 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.48 of 2011 This the 7th day of April, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Dr. Kuldip N. Sharma, IPS, Managing Director, Gujarat Sheep and Wool Development Corporation Limited, Block No.18, 5th Floor, Udyog Bhawan, Gandhinagar-382011. Applicant ( By Shri I. H. Syed with Shri Varinder Kumar Sharma, Advocates ) Versus 1. State of Gujarat through Additional Chief Secretary, Government of Gujarat, Home Department, Sachivalaya, Gandhinagar-382010. 2. Shri Amit Anilchandra Shah, Minister of State (Home), Government of Gujarat, Home Department, Sachivalaya, Gandhinagar-382010. 3. Shri Narendra Damordas Modi, Chief Minister, Government of Gujarat, Sachivalaya, Gandhinagar-382010. 4. Director General of Police, Gujarat State, Police Bhawan, Gandhinagar-382010. 5. The Union of India through Secretary, Government of India, Ministry of Home Affairs, North Block, New Delhi-110001. Respondents ( By Shri Tushar Mehta, Additional Advocate General with Shri Arun Bhardwah for Respondents 1 & 4; Shri Bhupender Yadav for Respondents 2 & 3, Advocates ) O R D E R Justice V. K. Bali, Chairman:
The applicant who is a 1976 batch IPS officer and has unblemished service credentials spanned over a period of 33 years when the charge memo subject matter of challenge in this OA came to be issued, has Police Medal and the Presidential Medal for services rendered by him, and whose all reports, at least from 1995-96 to 2007-08 are outstanding, through his counsel, would contend that he may not be humiliated at the fag end of his career, particularly when the allegations subject matter of misconduct emanate from discharging of his official duties, and when there is nothing even prima facie to suggest that he could have any reason whatsoever to harm the career of Shri G. S. Malik, an officer far junior to the applicant. The counsel would contend that all charges are legally unsustainable; the same may have been framed by the competent authority, but it is a colorable exercise of power. The applicant may not have pressed personal mala fides on the part of 2nd and 3rd respondents, but it is urged that present is a classic case of legal mala fides and arbitrariness, and for these grounds, this Tribunal even in the limited power of judicial review vested in it, can well quash the charge, even though at its initial stage. Shri Mehta, the learned Addl. Advocate General, per contra, with equal vehemence, would contend that there would be no scope for this Tribunal to interfere at this initial stage and there is no illegality or arbitrariness involved in framing the charges against the applicant. Learned counsel representing the applicant has taken us through each charge separately and has endeavoured to show that the same would be legally unsustainable and the charge memo is also an outcome of legal mala fides and arbitrariness.
2. The applicant through OA No.45/2010 in the Bench at Ahmedabad in the State of Gujarat, which, on transfer to the Principal Bench, has been re-numbered as OA No.48/2011, asked for multifarious reliefs enumerated in the beginning of the OA under the caption Orders under challenge, as also at the end in paras 10 and 11. The same read as follows:
10. Relief sought The applicant respectfully prays that considering the totality of the facts and circumstances and grounds, which are mentioned hereinabove and which may be urged at the time of hearing, the Honourable Tribunal may be pleased to:-
(A) declare and hold that the action of the respondents of posting the applicant as Managing Director, Gujarat Sheep and Wool Development Corporation Ltd., Gandhinagar, is arbitrary, mala fide and not in public interest, and consequently quash and set aside the impugned notification dated 7.11.2009, so far as it orders posting the applicant as the Managing Director, Gujarat Sheep and Wool Development Corporation Ltd., Gandhinagar, and (B) declare and hold that the departmental inquiry initiated against the applicant vide Charge Memo dated 14.12.2009 is absolutely illegal, arbitrary and mala fide, and consequently quash and set aside the impugned Charge Memo dated 14.12.2009.
(C) declare and hold that the action of the respondent authorities of denying the vigilance clearance of the applicant for Central deputation is absolutely illegal, arbitrary and mala fide and consequently direct the respondent authorities to grant vigilance clearance to the applicant for Central deputation, and (D) declare and hold that the action of the respondent authorities of downgrading the overall assessment of the applicant in his Annual Confidential Report for the period from 2003-04 to 2007-08 is absolutely illegal, arbitrary, mala fide, and consequently quash and set aside the action of the respondent authorities of downgrading the overall assessment of the applicant in his Annual Confidential Report for the period from 2003-04 to 2007-08, and (E) award the cost of this application, and (F) grant any other relief or pass any other order which the Honourable Tribunal may consider as just and proper in the facts and circumstances of the case.
11. Interim relief sought (A) Pending hearing and final disposal of this Original Application, the Honourable Tribunal may be pleased to restrain the respondent authorities from considering the pendency of the departmental inquiry initiated against the applicant vide impugned Charge Memo dated 14.12.2009, as an impediment, for any purpose, including for purpose of promotion, deputation, vigilance clearance, etc., and/or (B) Pending hearing and final disposal of this Original Application, the Honourable Tribunal may be pleased to stay the effect, operation and implementation of the impugned Charge Memo dated 14.12.2009.
(C) Pending hearing and final disposal of this Original Application the Honourable Tribunal may be pleased to direct the respondent authorities to grant vigilance clearance to the applicant for Central deputation, and (D) Pending hearing and final disposal of this Original Application the Honourable Tribunal may further be pleased to stay the effect, operation and implementation of the action of the respondent authorities of downgrading the overall assessment of the applicant in his Annual Confidential Report for the period from 2003-04 to 2007-08, from outstanding to very good, and (E) grant any other interim relief or pass any other interim order which the Honourable Tribunal may consider as just and proper in the facts and circumstances of the case.
3. A preliminary objection came to be raised by the respondent State of Gujarat that multifarious reliefs, unconnected with each other and based upon different set of facts, would not be admissible in one OA. The objection prevailed with the Bench at Ahmedabad, as would be made out from the order passed on that behalf dated 15.7.2010. Aggrieved, the applicant filed a writ petition against the order aforesaid, which has been dismissed with liberty to the applicant to confine the OA referred to above to one relief, and as regards other reliefs, if he may so choose, to file separate OA. In consequence of orders referred to above, the applicant filed another OA No.331/2010, which, after its transfer to the Principal Bench, has been re-numbered as OA No.49/2011. In the OA aforesaid, the applicant has quoted the relevant part of the order dated 13.8.2010 of the Honble High Court, which reads as follows:
if the petitioner intends to confine his one prayer in the OA 45 of 2010, the Tribunal may allow the petitioner to pursue such one prayer in the Original Application. With regard to the rest of the prayers arising out of separate cause of action, the petitioner may file separate petitions The applicant thereafter avers that in view of the liberty granted to him by the aforesaid observations, he seeks liberty for pressing prayers mentioned in para 10(B), (E), (F) and para 11 (A), (B) and (E) of OA No.45/2010. For the relief as regards downgrading of his ACRs, he filed separate OA No.331/2010, now re-numbered as OA No.49/2010. This OA, we are disposing of by separate orders. While recording order in OA No.49/2011 we have already given in detail the reasons why the two OAs came to be transferred from the Bench at Gujarat to the Principal Bench. There would be no need to reiterate the said reasons.
4. Before we may give facts leading to filing of the present OA, we may mention that the learned counsel representing the parties addressed lengthy arguments as regards non-clearance of vigilance of the applicant for his Central deputation. It is only while preparing the judgment that it has come to our notice that the applicant has not pressed for the relief as regards giving vigilance clearance for his Central deputation. While hearing the arguments, it appeared to us that even if the applicant may not succeed for the main relief asked for by him as regards quashing of the charge, he may still succeed in getting vigilance clearance for his Central deputation, for which independent arguments would be available to him. However, once the applicant has not pressed for this relief, despite the arguments having been addressed by the learned counsel for parties, unmindful that such a prayer has not been pressed, there would be no question for us to grant any relief to the applicant on that count. It is a different matter, however, if the main prayer of the applicant is allowed and the charge is quashed, and as it is only because of the pendency of the departmental proceedings that the vigilance clearance of the applicant has been stalled, there shall be left nothing with the respondents so as not to give clearance to the applicant from vigilance angle for his Central deputation.
5. The applicant claims to be a decorated police officer and is stated to have a meritorious and distinguished service record, for which the government of India has awarded him the Police Medal and the Presidents Medal as well, and that his overall service record from 1995-96 to 2007-08 has been outstanding. The applicant takes serious exception to the memorandum dated 14.12.2009 vide which the State Government has proposed to hold an enquiry against him under rule 8 of the All India Services (Discipline & Appeal) Rules, 1969 (hereinafter to be referred as the Rules of 1969). The memorandum aforesaid is accompanied by substance of the imputations of misconduct in respect of which the enquiry is proposed to be held against the applicant, in Annexure-II. The applicant is to be departmentally tried on the following four articles of charge:
Charge No.I In the cases registered with C.I.D. Crime Zone Police Station Cr. No.3/05. 4/05, 5/05 Dy. S.P., CID (Crime) issued notices to Shri G. S. Malik, IPS (Class-I) the then S.P., Bharuch to come to Gandhinagar as a witness under section 160 of Cr.P.C. Shri Malik due to administrative inconvenience/leave requested the then Investigating Officer about his inability to remain present before him to give statement. More over Shri Malik vide his letter dated 26.05.2005 requested Dr. Sharma and the investigating officer to inform about the specific points on which his statement is asked for. Instead Shri Malik was asked to remain present before the Investigating Officer within 24 hours vide notice dated 01.02.2005. Shri Malik in reply to notice dated 01.05.2005 informed vide his letter dated 02.05.2005 to the investigating officer and a copy was also marked to Dr. Sharma, Addl. D.G., CID (Crime) specifically mentioning reasons for non appearance before the Investigating Officer. Moreover vide this letter, Shri Malik also drew attention of Investigating Officer towards Para 171 of Police Manual Part III. In addition to this, Shri Malik also informed Investigating Officer that if there is urgency then Investigating Officer may come to Bharuch and record his statement. Shri Maliks request was malafidely interpreted by CID (Crime) to be a Non cognizable offence punishable under section 174 of I.P.C., even though the request of Shri Malik was well within the official discharge of his duty looking to the provision of para 171 of Gujarat Police Manual Part 3.
(II). Resultantly Dr. Sharma as Additional D.G., (CID) (Crime) specifically vide his order dated 02.05.2005 issued a circular to initiate to register the non-cognizable offence in the CID (Crime).
Subsequent to this order dated 02.05.2005, CID (Crime) on 03.05.2005 registered a Non-Cognizable offence against Shri G. S. Malik, IPS the then Superintendent of Police, Bharuch with a malafide intention to barass Shri Malik and harm his career.
As such Dr. Sharma did not maintain absolute devotion to duty and conduct of Dr. Sharma is unbecoming of a member of the service thereby he violated Rule 3(1) of the AIS (Conduct) Rules, 1968.
Charge No.2 As per the provision of section 197 of Cr.PC it is necessary to get sanction of the disciplinary authority before filing a charge-sheet in the court against Shri Malik as he is Class-I IPS officer. A charge-sheet against Shri G. S. Malik, IPS was filed in the Honorable Chief Metropolitan Magistrate Court, Ahmedabad on 13-6-2005. Shri Malik is a class-I IPS officer and therefore prosecution sanction of Government is necessary. However, no sanction was sought from the Government by CID (Crime) before filing a charge-sheet in the Honble Chief Metropolitan Court, Ahmedabad. The action of CID (Crime) is illegal and without following the legal procedure as the charge-sheet filed by CID (Crime) in the case No.1/05 registered with Gandhinagar Zone police station in the Chief metropolitan Court, Ahmedabad is not in accordance with the provisions contained in section 195 and 197 of Cr.PC. Therefore, State Government decided to withdraw the same and issued an order No.VSF/15/2005/3526/Z on 26.4.2006. Honble court also supported the view of the State Government and held that before filing charge sheet, legal procedure was not followed and gave permission to withdraw the case vide its order dated 6.5.2006. Dr. Sharma allowed this illegal procedure under his supervision as the head of CID (Crime) and did not raise any objection against the illegal procedure. Thus Dr. Sharma failed to do effective supervision.
As such Dr. Sharma did not maintain absolute devotion to duty and thereby he violated Rule 3(1) of the IAS (Conduct) Rules, 1968.
Charge No.3 Dr. Sharma after taking over charge of Addl. D.G. CID (Crime) issued a compilation of Administrative instructions and procedures for investigation entitled Crime Investigation Department Duties and working procedure to streamline and standardize the procedure and functions of CID, Crime. In Chapter III on page 50 of this compilation, it has been mentioned that approval of a chargesheet against Class I officer of State/Central Government will be sanctioned only by Addl. D.G. CID, Crime. Shri Malik is a Class I IPS officer, but Sharma allowed ultra vires action of approving of Chargesheet against Shri Malik by D.I.G. level officer which is in contravention of standing order issued by himself. Dr. Sharma did not ask for any explanation from his subordinate officer i.e. D.I.G (Crime) for contravening the standing orders. Thus, Dr. Sharma failed to do effective supervision and thereby did not maintain absolute devotion to duty. Therefore, he violated Rule 3(1) of the A.I.S. Conduct Rules, 1968.
Charge No.4 Dr. Sharma continued to take interest in the case filed against Shri G. S. Malik even after his transfer from Addl. D.G., CID (Crime) to Addl. D.G. of Police (Training) while Dr. Sharma was Additional D.G. (Training) his subordinate officer Shri V. K. Valekar, Police Inspector asked to know the progress of the case against Shri G. S. Malik vide his letter dated 5-1-2006 at behest of Dr. Sharma. Shri Valekar was in no way concerned or connected with the progress of cases registered by CID (Crime). Moreover, in the said letter there is no mention of any reason as to why this information is sought? The letter was replied by DIGP, CID (Crime II) vide letter dated 25.1.2006. The fact that Dr, Sharma took interest in the case against Shri G. S. Malik even after his transfer from CID (Crime) to Training shows the attitude of vengeance and mala fide intention on behalf of Dr. Sharma against Shri Malik. Thus, the conduct of Dr. Sharma is unbecoming of member of Indian Police Service.
As such Dr. Sharma did not maintain absolute devotion to duty and conduct of Dr. Sharma is unbecoming of the member of service and thereby he violated Rule 3(1) of the AIS (Conduct) rules, 1968.
6. Initially when the OA was filed, the memorandum aforesaid was also challenged on the ground that the same is an outcome of mala fides entertained against the applicant by respondents 2 and 3, who happen to be the Minister of State (Home) and the Chief Minister of the State of Gujarat. Dates and events in that regard have been given in the OA. However, during the course of arguments, learned counsel representing the applicant would urge that he would not press for factual mala fides and would confine his case to only legal mala fides, in addition to his contention that the charges framed against him cannot legally sustain. In view of the stand taken by the applicant giving up factual mala fides, there would be no need to refer to the pleadings made by the applicant in the OA in that regard. The record of this case is in three volumes. Volume-I consists of 263 pages, containing the OA and the documents as also some judicial precedents. Volume-II starts from page 264 and ends at page 793, which contains counter to the OA, rejoinder, counter to the rejoinder and sur-rejoinder. Volume-III starts from page 794 and ends at page 995. It consists of rejoinders and counter to rejoinders. The learned counsel representing the parties have, in addition to addressing the court orally, filed written arguments as well. We are avoiding to reproduce lengthy pleadings made by the parties. Reference to pleadings insofar as the same be relevant, would be made while evaluating the contentions raised by the learned counsel representing the parties.
7. The genesis of the dispute and the chargesheet against the applicant lies in proceedings against Shri G. S. Malik, IPS, the then SP, Buaruch for registering a non-cognizable case against him and presenting challan, which, we are told, in Gujarat is known as charge u/s 173 Cr.PC before the court. It is not the case of the respondents that CID Crime Zone had wrongly registered criminal cases no.3/05, 4/05 and 5/04, nor is it their case that Shri G. S. Malik was not a material witness, and there was no need to record his statement while investigating the crimes as mentioned above. The gravamen of the charge is wrongly registering non-cognizable offence against Shri Malik and prosecuting him. We are in agreement with the contention raised by Shri Tushar Mehta, the learned Addl. Advocate General representing the State of Gujarat, that this Tribunal may not go into the issue on merits at this premature stage, when only a charge has been issued to the applicant, as there would be no scope for juridical review to interfere in the same on merits at this stage. However, with a view to understand the controversy in issue, brief facts as regards registration of the crime as mentioned above and the stand taken by the parties for rightly or wrongly proceeding against Shri Malik would need necessary mention. In that regard, in the reply filed on behalf of the 1st respondent, it has been pleaded that starting point of the dispute which culminated into the subject matter of charge memo dated 14.12.2009 is a newspaper report published in five newspapers viz. (1) Sandesh, (2) Gujarat Samachar, (3) Diaya Bhaskar, (4) Fulchhab, and (5) Indian Express. As per the news published, the then Superintendent of Police, Porbandar had telephonic conversation with one Mamu Miya Punju Miya, a dreaded criminal, who is also said to be facing trial for his prominent role in landing of RDX explosive at Porbandar and Jamnagar. It is further pleaded that Mamu Miya is not only closely connected with and involved in anti-social and anti-national activities, but is also having close nexus with international criminals like Dawood Ibrahim. As per the said news item published in leading dailies, the recorded telephonic conversation would reveal that the applicant was in contact with aforesaid Mamu Miya Punju Miya. It is pleaded that at the time when the aforesaid newspaper reports were published, the applicant was working as Additional DG, CID (Crime), and since there was a reference of the applicant in the said news reports, he found the said publication to be contrary to the Official Secrets Act, and registered three offences in CID (Crime), the department he was heading. The said offences were registered by the State CID (Crime & Railways) on its own in absence of any complaint from anyone, or any instructions from either the State Government or the Director General of Police, or under any direction of a competent court. The applicant thereafter through his subordinates, commenced investigation of the aforesaid offences and collected mobile phone data of several persons including that of the journalists of the said newspapers, to ascertain as to who leaked the contents of the telephonic conversation to the newspapers. It is pleaded that after receipt of the call records, the applicant through his team working under him, collected the mobile call data of approximately 20 IPS officers. One Shri G. S. Malik, IPS wrote several letters to his higher-ups pointing out that the applicant was entertaining a personal bias and ill-will against him. During the course of investigation into the foresaid three offences, the applicant, it is averred, appears to have found some telephonic communications between Shri Malik and some journalists. It is mentioned that the answering respondent would not know as to how the applicant chose to call Shri Malik during the aforesaid investigation. However, various summons under Section 160 Cr.PC were issued to Shri Malik by the investigating officer, whose investigation was being supervised by the applicant. The first summon dated 19.4.2005 was sent from the office of CID (Crime) to Shri Malik, who was posted as Superintendent of Police, Bharuch at the relevant point of time, requiring him to appear before the Dy.SP, CID (Crime) on 21.4.2005, i.e., within two days. On 21.4.2005, by a fax communication, Dy.SP, Bharuch intimated the Dy.SP, CID (Crime) that Shri Malik was not in a position to remain present before the CID (Crime) since he was on leave up to 24.4.2005. The second summon was issued under Section 160 Cr.PC on 25.4.2005 requiring Shri Malik to remain present before Dy.SP CID (Crime) on 27.4.2005, i.e., within two days. On 26.4.2005, Shri Malik addressed a communication to the applicant seeking certain information relating to the purpose of the investigation and also requested that the Dy. SP CID (Crime) who was investigating into the offence under direct supervision of the applicant may be sent to Bharuch for recording his statement, since Bharuch was a sensitive district and it was not advisable for a senior IPS officer posted as SP to leave the headquarters. Letter dated 26.4.2005 was inwarded in the office of the applicant, i.e., CID (Crime) on 27.4.2005. On that very day, the Dy. SP CID (Crime) sent third notice to Shri Malik. It is pleaded that the Dy. SP CID (Crime) who is a junior officer to Shri Malik rejected the request of Shri Malik for recording his statement at Bharuch and required him to remain present before him on 29.4.2005, i.e., within two days. Dy. SP (HQ), Bharuch, it is pleaded, appears to have informed Dy. SP CID (Crime) that Shri Malik would be unable to attend on 29.4.2005, and, therefore, on the next day, i.e., 30.4.2005, another summon/notice under Section 160 Cr.PC was sent by the investigating officer requiring Shri Malik to remain present on 1.5.2005, i.e., within two days. Meanwhile, Shri Malik, in continuation of his earlier letters alleging biased attitude on the part of the applicant, made a representation to the Director General of Police, Gujarat, vide his communication dated 28.4.2005. He also intimated vide letter dated 1.5.2005 to the Dy. SP CID (Crime) that he would appear only after the Director General of Police had examined the contents of his aforesaid communication and responded to the same. On 1.5.2005, Dy. SP CID (Crime) sent another notice/summon under Section 160 Cr.PC to Shri Malik requiring him to remain present before him on 2.5.2005, i.e., on the next day. It is averred that it would appear from the record that Dy. SP CID (Crime) was sending summons/notices to Shri Malik in consultation with the applicant. Non-compliance of summons under Section 160 Cr.PC is a non-cognizable offence u/s 174 of the said Code. It is pleaded that when the applicant assumed charge as Additional DG, CID (Crime), he prepared a procedure book, Crime Investigation Department duties and Working Procedure to be followed by CID (Crime), which did not include entertaining of non-cognizable offences by CID (Crime) since CID (Crime) is a special organisation of the State as per the Police Manual. The applicant, at this stage, under his signature, amended the aforesaid departmental procedure vide circular dated 2.5.2005, including therein a provision having the effect of permitting registration of even non-cognizable offences within the purview of CID (Crime). The said circular provides, by way of amendment, a provision requiring maintaining a register of non-cognizable complaints. However, as it transpired from the record perused by the 1st respondent that it was recorded by the applicant that in view of the amendment, even non-cognizable complaints were to be registered by CID (Crime), and accordingly on 3.5.2005 (next day after the amendment aforesaid), CID (Crime) registered an offence being CR No.1/05 (non-cognizable) against Shri Malik. CID (Crime) under the supervision of the applicant, investigated the said offence and filed chargesheet on 13.5.2005 against Shri Malik, without obtaining prosecution sanction of the competent authority as mandatorily required under Section 197 Cr.PC. On 20.6.2005, the Home Department sought opinion of the Director General of Police as to whether filing of the chargesheet would be in conformity with law, inasmuch as the same had been filed without prior sanction under Section 197 Cr.PC. Meanwhile, Shri Malik made a representation dated 25.5.2005 to the Home Department and to the Director General of Police with copy to the 1st respondent, with respect to filing of the aforesaid non-cognizable case against him by State CID (Crime & Railways). He sent another letter dated 6.6.2005. In view of the representation made by Shri Malik, the Home Department took a decision to transfer the investigation of the aforesaid three cases under the Official Secrets Act as well as non-cognizable offence registered against Shri Malik, to Shri Ashish Bhatia, IPS, the then Additional Commissioner of Police, Ahmedabad. Intimation was sent by the Home Department to the State CID (Crime & Railways) which was received on or before 10.6.2005. However, the investigation appears to have not been transferred to Shri Ashish Bhatia and chargesheet was filed on 13.6.2005 by CID (Crime) in spite of the direction contained in the letter of Home Department dated 7.6.2005. It is the case of the respondent that under what circumstances the aforesaid letter dated 7.6.2005, received on or before 10.6.2005, was not taken into consideration and as to why on 13.6.2005 chargesheet came to be filed by CID (Crime) is a matter to be gone into during the enquiry. It is pleaded that Shri Ashish Bhatia sent a fax message on 18.6.2005 to State CID (Crime & Railways), which was replied to by the Dy. SP CID (Crime & Railways) that a chargesheet had already been filed and the court had already issued summons to Shri Malik. It is further pleaded that the applicant was on leave from 14.5.2005 to 12.6.2005; he resumed duty on 13.6.2005, and on his resuming the office, the said chargesheet was filed hurriedly after the transfer of the investigation to another agency; though no chargesheet is required to be approved by the Addl. DGP (Crime & Railways), the same was approved by the DIG (Crime & Railways). Thereafter, after taking into consideration totality of the facts, the State Government took a decision to withdraw the aforesaid non-cognizable case against Shri Malik, and the learned Metropolitan Magistrate vide order dated6.5.2006 permitted to withdraw the prosecution. It is thereafter that the Additional DG, CID (Crime & Railways) recommended to the State Government to initiate appropriate proceedings against the applicant. The proposal was examined at various levels and ultimately a decision was taken to chargesheet the applicant.
8. The applicant in the rejoinder filed by him has rebutted the pleadings made in the counter reply referred to above. He pleads that one Shri Rajkumar Pandian, Superintendent of Police, presently in judicial custody in connection with fake encounter of Sohrabuddin and killing of his wife Kasurbi, while working as SP, Porbandar, had made allegations against his immediate superior, the then range IGP, Shri H.P. Singh. Shri Singh, likewise reported against Shri Pandian to the DGP and the matter was referred to the State CID (Crime) for enquiry. This was before the applicant was appointed as Additional DGP, CID (Crime & Railways). The enquiry in question was conducted by Shri Pramod Kumar, the then IGP, State CID (Crime), who submitted a report on 19.2.2004. It was established that Shri Rajkumar Pandian had made false allegations against Shri H. P. Singh related to the landing of arms and ammunitions on the coast of Porbandar in January/February, 1993, when Shri Singh himself was the SP, Porbandar. The applicant sent a report to the DGP, Gujarat on 29.2.2004 against Shri Pandian for major penalty. The DGP agreed with the findings of the State CID (Crime) and reported to the State Government to take action against Shri Pandian. This was a confidential report. Amongst the documents, documents contained therein were a transcript of telephonic conversation between Shri Pandian and Mamumiya Pappumiya, who had been absconding for the last nine years. This criminal had so far no connection with any police official in the state. However, when Shri Pandian invited his contact only so that he could persuade him to give some information/evidence against his own IGP Shri H. P. singh, the fugitive tried to convey that he had always helped police. He cited two examples. He first mentioned the name of Shri Sudhir Sinha, the then Commissioner of Police, Rajkot City and stated that he had helped him to solve a murder case. The second example he cited was that he had given information to the applicant also. Insofar as the applicant is concerned, it is pleaded that the so called contact pertains to the period when he was posted as DIG (Operations), Anti Terrorist Squad, between 1993 and 1995, and that the applicant, at no stage, was in contact with Mamumiya Pappumiya. While examining the papers of enquiry against Shri Pandian the applicant, it is averred, was very much aware of the transcript and found nothing untoward in the whole thing.
9. We are not referring to the pleadings that may pertain to mala fides on the part of 2nd and 3rd respondents. The case of the applicant, however, is that the said leakage in the newspapers was the result of support rendered to Shri Rajkumar Pandian by the said respondents, and that in taking cognizance of the crime, no permission of the State Government or the DGP or any directions from the competent court is required. Once, the said three cases were registered and since the subject matter of defamatory publicity was the applicant, and if the offences came to be investigated in State CID (Crime), bias and prejudice could be attributed to the applicant. Therefore, he addressed a letter to the DGP on the very next day, i.e., 28.1.2005 in which it was mentioned that since the newspaper items pertained to the applicant, it would be inappropriate for the State CID (Crime) to investigate these offences. He requested the DGP to have the investigation entrusted to another independent agency like CBI. It is averred that the intention of the applicant was honest and if he had committed any irregularity either in terms of previous contact with criminals or in the contemporary context, he would have not so recommend. It is further pleaded that while the applicant was attending a course at IIM, Khozikode, kerala, he learnt that a newspaper called Sandesh had carried on 20.1.2005 a defamatory story which mentioned that 12 years ago when the applicant was posted as DIG (Operations), Anti Terrorist Squad, he was in touch with a criminal called Mammymiya Pappumiya. The story which was carried by Sandesh was also carried out by the Indian Express and Gujarat Samachar in the following days. The State CID (Crime) did not investigate the offences despite the provision contained in Section 173(1) Cr.PC which mandates that the investigations should be completed without necessary delay. The applicant sent repeated reminders to the DGP to expedite the decision to transfer the cases out of CID (Crime) but no action was taken. Finally the applicant directed the concerned officer in the State CID (Crime) to commence the investigation. The investigation prima facie revealed involvement of Shri Rajkumar Pandian, and analysis of his phone call details brought out the fact that within a period of 82 days, there were 127 calls between Shri Pandian, SP and the 2nd respondent. The applicant wrote a D.O. letter dated 13.5.2005 to Shri A. K. Bhargav, the then DGP, mentioning that considerable headway had been made by the State CID (Crime) in the case. The applicant reiterated that the only agency that could investigate the case was CBI. He also informed taking investigation from the State CID (Crime) and giving it to an individual officer would still be worse. The DGP recommended suspension of Shri Pandian for making false allegations against the applicant. The same was endorsed by the Principal Secretary (Home) and the Chief Secretary in the concerned noting on the file. In addition to criminal cases registered in the State CID (Crime), the applicant had written on 25.1.2005 to the Principal Secretary (Home) requesting that public prosecutor, Ahmedabad Sessions Court, may be directed by the Government to file a defamation complaint under relevant provisions of Cr.PC. The applicant denies having collected mobile phone record of 20 IPS officers. A non-cognizable offence was ordered to be registered against Shri G. S. Malik based on a note put up by the SP, CID (Crime) copy of which the applicant has placed on records as Annexure RR/4. In the noting recorded on 3.5.2005, it was mentioned that whether before reporting for departmental action or with regard to the investigation, it was necessary that Shri Malik should be allowed to state what he had to say in his defence. It is the case of the applicant that this would prove the bona fide of the applicant as head of the State CID (Crime). It is pleaded that the investigation was undertaken only after obtaining the approval of the court. Just as Shri Malik declined to appear before the investigating officer, who was investigating three Official Secrets Act cases, he also declined to co-operate in connection with the non-cognizable complaint registered against him and did not respond to the summons. The decision to chargesheet Shri Malik against the non-cognizable complaint was taken when he repeatedly refused to appear before the investigating officer. In this connection, the investigating officer submitted a final report on 10.6.2005. The applicant was on earned leave from 14.5.2005 to 12.6.2005. Thus the process of examining the final report was done by the officiating Addl. DGP (Crime) and the applicant had no role in approval of the chargesheet against Shri Malik. While the applicant was on earned leave, the SP, CID (Crime) put up a note on 11.6.2005 to the IGP recommending submission of chargesheet to the competent court, which was approved on 13.6.2005 by the IGP. After the applicant was transferred from the State CID (Crime), opinion of the DGP was obtained as to whether action against Shri Malik was correct. The DGP vide letter dated 19.9.2005 informed the Government that he agreed to the action against Shri Malik. As regards non-transferring the case to Shri Ashish Bhatia, the applicant avers that while he was on earned leave, a meeting took place in the chamber of DGP on 4.6.2005, attended amongst others by Shri V. K. gupta, in charge Addl. DG, CID (Crime) and Shri N. D. Solanki, SP (Crime) in which the DGP had decided that the case should not be transferred from CID (Crime). After the applicant joined, the IGP State CID (Crime) put up a note on the same on 24.6.2005. It is the case of the applicant that the note would prove that the letter to transfer the case in question was received on 21.6.2005 and not on or before 10.6.2005, as mentioned on behalf of the 1st respondent; the case had already been chargesheeted on 13.6.2005; and the DGP had taken the decision that the case would continue to be investigated by the State CID (Crime).
10. The background of the case and the conflicting views on the merits of the controversy, we reiterate, have been given simply with a view to understand the controversy enabling us to properly comment upon the issues raised by the parties for and against quashing of the charges. From the controversy as mentioned above and even from the charges that have been framed against the applicant, what clearly emerges is that it is not the case of the respondents that there was no justification in registering crime nos.3/05, 4/05 and 5/05. It is also not the case of the respondents that Shri G. S. Malik was not a material witness and his statement was not required to be recorded at all u/s 160 Cr.PC. The case of the respondents is that there was no justification for registering non-cognizable offences against Shri Malik, then SP, Bharuch, and the same was an act of mala fide on the part of the applicant to harass Shri Malik and to harm his career. What further emerges from the pleadings, and in particular, the charge memo against the applicant is that primarily, the applicant is alleged to have indulged in misconduct by registering a non-cognizable offence against Shri Malik. This event has been split into so many parts. In none of the parts of four charges reproduced above, there is any allegation of corruption or any serious delinquency, except for mala fides of the applicant to harass Shri Malik and to harm his career. As to why the applicant would be inimical towards Shri Malik and as to why the applicant, who is far far senior to Shri Malik, would like to harm his career, is not disclosed.
11. Whereas, the learned counsel representing the applicant would submit that if the charges framed may not disclose any misconduct or irregularity or are contrary to law or are based upon mala fides, factual or legal, and/or are an outcome of arbitrariness, it would always be open for the Tribunal or Court to interfere and quash the charges even at the threshold, the learned Addl. Advocate General representing the respondent State would join serious issues with the contention of the learned counsel for the applicant as noted above. He would urge that it is a settled proposition of law that a petition or application challenging issuance of memorandum of charges would be premature and the Tribunal/Court would not go into the correctness, adequacy or sufficiency of the charges contained therein at a premature stage and permit an officer to pre-empt the departmental proceedings. We must clear the decks before we may come to the core controversy, as surely if there is a blanket bar for the courts and tribunals not to interfere at the initial stage, the exercise to go into the issues raised by the applicant for setting aside the charges on the grounds as pleaded by him would be in futility. In Union of India v Upendra Singh [(1994) 3 SCC 357], the Honble Supreme Court held that in the case of charges framed in a disciplinary enquiry the Tribunal or Court can interfere only if on the charges framed no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At that stage the Tribunal would have no jurisdiction to go into the correctness or truth of the charges, which is a matter for the disciplinary authority to go into. It has also been held that the jurisdiction of the Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution, and, therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal, and that if the Original Application were to be filed in the High Court it would have been termed, properly speaking, as a writ of prohibition. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that the High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs, like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view. If the charges may be vague, where there may be no material particular mentioned, the same can be quashed under the powers exercised by the Tribunal and the High Court. In this connection, reference is made to the judgment of the Honble Supreme Court in Transport Commissioner, Madras v A. Radha Krishna Moorthy [(1995) 1 SCC 332]. In Dy. Inspector General of Police v K. S. Swaminathan [(1996) 11 SCC 498], it has been held that judicial review in quashing the charges is limited. The Tribunal or Court has only to see whether statement of facts and material supplied to the delinquent disclose the misconduct alleged. It was likewise held in State of Punjab v Ajit Singh [(1997) 11 SCC 368] and number of other judicial precedents on which the learned counsel representing the respondents has placed reliance. It would, however, be unnecessary to refer to all the judicial precedents, as it is indeed a settled proposition of law that judicial review at initial stage is limited. In addition to the grounds taken by the applicant in seeking quashing of the charge, there are some other grounds as well, like if the chargesheet has not been issued by the competent authority, or that there is unexplained delay in initiating departmental proceedings, and where delay would prejudice an employee in his defence. Primarily, we accept the contention of the learned counsel representing the respondents that judicial review at this stage is limited. Counsel for the applicant, however, we may reiterate, is not joining any serious issues as regards limited scope for judicial review at this stage by the Tribunal. He urges that he would confine his case only on such grounds on which even at this stage this Tribunal can interfere.
12. Time is now ripe to take into consideration the rival contentions of the learned counsel for parties. Before we may, however, do that, we may mention that the applicant at the fag end of his career is facing difficulties on number of counts. Even though, the applicant has not filed a separate OA, but it may be recalled that one of the reliefs claimed by him in the OA was that he has been taken away from the main stream of his postings in the hierarchy of the police, and has been sent to an ex cadre post of Managing Director, Gujarat Sheep and Wool Development Corporation Ltd., Gandhinagar, where his services may be of no meaning and consequences. It is his case that he has been sidetracked to be put on an insignificant out of cadre posting. He also complains about the refusal of the State Government to clear him from vigilance angle to join on a Joint Secretary level post on Central deputation. It is his case that under the instructions, vigilance clearance has been withheld for far more than the limited period under which it had to be given, and further that the charges did not involve any vigilance angle, and, therefore, mere pendency of the chargesheet could not be a ground to withhold his Central deputation. For this relief as well, the applicant, however, has not filed a separate OA, nor pressed this relief in the OA in hand as well. The applicant also has a grievance that his ACRs which were outstanding for four years recorded both by the reporting and reviewing authorities have been downgraded by the accepting authority on one single day. These were or are the grievances of the applicant on the basis of which it is urged that he is facing a rough weather on almost every front of his service career.
13. We may deal with illegality of the charges in the context of the contentions raised by the learned counsel representing the parties, by taking the charges separately, but before we may do so, we may mention some salient features of the case, which would clearly point to arbitrariness in proceeding against the applicant alone, and patent procedural flaws. As may emanate from charge number 1, all four notices were issued to Shri Malik by the investigating officer. Shri Malik in his reply dated 2.5.2005 had informed the investigating officer the reasons for his non-appearance. He had also drawn attention of the investigating officer to para 171 of Police Manual Part III. He also informed that if there was urgency then the investigating officer may come to Bharuch and record his statement. It is then alleged that the request of Shri Malik was mala fidely interpreted by CID (Crime) to be a non-cognizable offence. The investigating officer who sent various notices to Shri Malik and required his presence, and thereafter registered a non-cognizable offence has not been touched. The charge may be that the applicant as Additional Director General, CID (Crime), vide his order dated 2.5.2005 issued a circular to initiate to register non-cognizable offence in the CID (Crime), but it is not even the case of the respondents that four summons to Shri Malik to appear before the investigating officer were at the instance of the applicant. If it would be true that there was no justification in issuing summons to Shri Malik, then surely, the investigating officer could not escape, as it is he who was issuing summons to Shri Malik repeatedly, and not finding any justification in the request made by him for recording his statement at Bharuch. We may mention at this stage that as per the case of the applicant the allegations subject matter of charge number 1 are absolutely false, as the investigating officer had actually gone to Bharuch to record the statement of Shri Malik, who refused to make the statement. However, as this aspect may have to be gone into by the enquiry officer, we will not give a finding on the same. The fact, however, remains that if the applicant is to be blamed, by no circumstances, the investigating officer could escape the liability. Further, as may emanate from the facts of the case, when the applicant was on earned leave, SP, CID (Crime) put up a note on 11.6.2005 to IGP recommending submission of chargesheet to the competent court, which was approved on 13.6.2005 by IGP. If putting up challan in the court u/s 197 Cr.PC without sanction was illegal, SP CID (Crime) who put up a note on 11.6.2005 to IGP should also be blameworthy. IGP who approved submission of chargesheet to the competent court could also not escape the liability. None of them has been even touched. It is rather strange to note that in charge number 3 it has been mentioned the applicant allowed ultra vires action of approving chargesheet against Shri Malik by DIG level officer, and did not ask for any explanation from his subordinate officer, i.e., DIG (Crime) for contravening the standing orders. The applicant is being blamed for ineffective supervision. Whereas, those who committed illegality would escape, the applicant for ineffective supervision would be in the net. Present is a case of invidious discrimination. Unless others who may be equally or even more responsible are also departmentally tried, in our view, no action can be taken against the applicant. The aspect as regards discrimination shall also be dealt by us while taking the case charge-wise wherever it may be relevant.
14. The chargesheet issued to the applicant also appears to be suffering from a major procedural flaw. On 16.6.2008 a show cause notice was issued to the applicant. Mention therein is to the allegations which are subject matter of charges 1 to 4. The applicant filed a detailed reply on 3.9.2008. We need not refer to the contents of the reply as the same are by and large what we have already mentioned or may mention hereinafter. The applicant has placed on records the noting portion of the file as to how the case was dealt with preceding issuance of chargesheet to him. It would appear from noting dated 22.9.2008 that the Home Secretary had asked for calling the remarks of DGP on the reply of the applicant. The note reads as follows:
There are adm. & law points in defence. Pl. call for remarks of DGP on defence items. It is the case of the applicant that in view of rule 31 of the Gujarat Police Manual Volume-I, the advisory role of the DGP on all questions of police administration is necessary, and despite the order of the Home Secretary to call for comments of DGP and rule 31 of the said Manual, the draft chargesheet had already been prepared. In that regard, the applicant has brought on record note dated 8.12.2009 of ACS (Home), which reads as follows:
Respectfully submitted In the chapter in question, the explanation asked for by the Department Memorandum dated 16.6.2008 was sent by Shri Kuldip Sharma (IPS) by a letter dated 3.9.2008. The DGP was communicated vide letter dated 26.9.2008 to send remarks of the DGP regarding clarification of Shri Sharma.
Thereafter, the DGP was communicated vide letters dated 10.11.2008, 3.1.2009, 26.2.2009 and 1.12.2009 to send this opinion alongwith remarks, but no reply has been sent by the DGP in this behalf so far.
In the said circumstances, submitted for orders as to whether we should wait for reply from the DGP or to undertake disciplinary action against him, on the basis of explanation given by Shri Sharma.
If the disciplinary action has to be taken against Shri Sharma, as regards this, the draft chargesheet prepared on the basis of show cause notice is submitted on P.745 to 767 CS. The ACS (Home) required discussion, whereafter the following order came to be passed on 9.12.2009:
Discussed The said chapter against Shri Kuldip Sharma (IPS) is pending since long. Looking to the inquiry papers and evidence, the explanation given by Shri Kuldip Sharma, is not acceptable.
Among the charges against Shri Kuldip Sharma (IPS) with the object to harass one senior IPS level officer with malice intention unnecessarily, registered crime against him and without obtaining government sanction under section 197 of the Cr.PC charge sheet was filed in the honble court.
Since the case was filed by Shri Sharma against Shri Malik, was filed without complying with the provisions of section 197 of Cr.PC, decision was taken by the Government to withdraw and the decision of the government was held as proper by the honble court and gave such finding that legal procedure is not followed before filing chargesheet against Shri Malik and accorded sanction to withdraw the case.
Besides this, though Shri Sharma was transferred to the Police Academy, Karai from CID (Crime), he had shown more interest in respect of this case, which shows that Shri Sharma had taken action with malice intention against Shri Malik.
Thus, the charges against Shri Sharma appear to be serious and seem worthy to undertake major penalty action. Therefore, we may get the orders of the government as to whether the action for major penalty should be initiated against Shri Sharma or not under Rules 8 and 9 of the AIS (Discipline and Appeal) Rules, 1969.
If decision is taken for major penalty against Shri Sharma, the draft regarding this is submitted on page Nos.745 to 767.
15. The Government of Gujarat issued circular No.CEF/102002/1775/TA/Part-2 dated 8.9.2004. It deals with the procedure to be adopted at the initial stage, i.e., stage preceding charge-sheeting a government officer/employee. It is clearly mentioned in the introductory part of the circular aforesaid that in many cases departmental enquiries are initiated without obtaining preliminary explanation from the respective officer/employee, as a result whereof, many times it so happens that on submission of statement of defence showing facts that the responsible officer/employee was not performing duty on that post at the relevant time or it was not his responsibility etc., it becomes obligatory to drop the proceedings of the departmental enquiry or to declare the respective officer guiltless at the stage of statement of defence on the basis of the defence submitted by the accused officer and evidence adduced in support thereof, and that time, money and labour are thus wasted without reason and the officer/employee concerned has to experience mental torture without his fault. It is then mentioned that it is necessary to serve show cause notice and to obtain preliminary explanation of the officer/employee found responsible in preliminary enquiry in respect of points of misconduct or default against him, and, therefore, at the preliminary state of enquiry, before submitting the chapter to the vigilance commission in context with the misconduct, fault on the part of the government officer/employee and the case in which it is not necessary to consult the vigilance commission before taking decision to institute departmental enquiry against him, as far as it is possible, his preliminary explanation has to be necessarily obtained and action has to be taken. The procedure where it is not necessary to consult the vigilance commission, contained in clause 3 of the said circular, reads as follows:
3) Case in which it is not necessary to consult the Vigilance Commission, the disciplinary officer concerned shall, before taking decision to institute departmental inquiry, in pursuance of the preliminary inquiry report, obtain preliminary explanation of the government officer/employee concerned for default or misconduct for which he is found responsible and after careful consideration thereon, shall take decision as to whether departmental action should be undertaken or not. It is the case of the applicant that rules contained in Gujarat Police Manual would require approval of the DGP of the State for initiating action against a police officer. In the present case, the DGP vide letter dated 19.9.2005 had informed the Government that he had agreed to the action against Shri Malik.
16. Whereas, it may be true that the DGP had not sent his comments despite various communications sent to him on that behalf, but that appears to be for the reason that he had already expressed his opinion as regards validity of action taken against Shri Malik. Assuming the respondents were not aware of this fact, they ought to have insisted upon the DGP to give his comments. No action, in our view, was warranted against the applicant without approval of the DGP. The State Governments are not powerless to obtain the view of the DGP. Further, the very fact that before receipt of DGPs comments draft charges had since already been framed, would prove conclusively that no one had at all applied his mind on the reply given by the applicant to the show cause notice. The instructions referred to above clearly required the respondents to apply their mind carefully to the defence projected by the applicant. DGPs comments were asked for, and without receipt of the same, the chargesheet came to be issued to the applicant. In the order dated 14.12.2009 reproduced above, it has indeed been mentioned that the explanation given by the applicant was not acceptable, but it appears to us that the same has only been formally mentioned without actually applying mind to the explanation furnished by him. As mentioned above, mind had already been made to chargesheet the applicant without considering his explanation, as a draft chargesheet had already been framed.
17. Even though, on the points as mentioned above, the chargesheet against the applicant needs to be quashed, but inasmuch as, the learned counsel representing the parties have addressed lengthy arguments as regards validity and illegality or otherwise of the individual charges framed against the applicant, it would be unfair to the parties if we do not deal with the same.
18. We may first deal with charge no.2 with the allegations that in view of provisions contained in Section 197 Cr.PC it was necessary to get sanction of the disciplinary authority before filing a charge-sheet in the court against Shri Malik, he being a class-I IPS officer, and that inasmuch as, no sanction was sought from the Government by CID (Crime) before filing charge-sheet in the court of Metropolitan Magistrate, Ahmedabad, the action of CID (Crime) would be illegal and without following the legal procedure. The Government, it is stated, decided to withdraw the charge, and the court also supported the view of the Government and held that before filing charge sheet, legal procedure was not followed, and gave permission to withdraw the case vide order dated 6.5.2006. The applicant is alleged to have allowed this illegal procedure under his supervision as the head of CID (Crime) and did not raise any objection against the illegal procedure, and thus failed to do effective supervision. We have already mentioned that what is known as challan in this part of the country is known as charge in the State of Gujarat. As a matter of fact, there is nothing known as challan or charge under Cr.PC. Whether it be called challan or charge, it is actually a final report under Section 173 Cr.PC. This report is forwarded to the Magistrate empowered to take cognizance of the offence as soon as the investigation is complete. It contains the names of parties; the nature of the information, the names of persons who appear to be acquainted with the circumstances of the case; whether any offence appears to have been committed and, if so, by whom; whether the accused has been arrested; whether he has been released on his bond and, if so, whether with or without sureties; and whether he has been forwarded in custody under Section 170. On the basis of material contained in the final report under Section 173, the concerned Magistrate, after applying his mind, takes cognizance of the offence. The word cognizance has not been defined in the Cr.PC, but it has always been understood to mean when the court applies its mind to the material before it and issues process. We may also mention at this stage that in view of provisions contained in Section 160 Cr.PC, any police officer making an investigation can by order in writing require the attendance before himself of any person being within the limits of his own or any adjoining police station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required. Non-obedience of the orders passed by the investigating officer is punishable under Section 174 IPC. Section 174 IPC provides that whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, may intentionally omit to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extent to five hundred rupees, or with both, or, if the summons, notice, order of proclamation is to attend in person or by agent in a court of justice, with simple imprisonment for a term which may extend to six months, or with find which may extend to one thousand rupees, or with both. Offence under Section 174 IPC is non-cognizable and bailable and is triable by any Magistrate, as may appear from the First Schedule appended to Cr.PC. Section 197 Cr.PC, insofar as the same is relevant, reads as follows:
197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Learned counsel representing the applicant would contend that there is no bar against registration of a case or investigation by police agency or submission of a report by the police on completion of investigation as contemplated under Section 173 Cr.PC without previous sanction of the Government, and that assuming that the provisions of Section 197 Cr.PC are applicable, there was no illegality in presenting the final report before the Magistrate without obtaining previous or prior approval, or sanction of the Government. For the contention as noted above, the learned counsel places reliance upon the judgment of the Honble Supreme Court in State of Karnataka & another v Pastor P. Raju [(2006) 6 SCC 728]. The facts of the case aforesaid reveal that one R. N. Lokesha, lodged an FIR alleging that he along with some other persons was celebrating Sankranti festival when the respondent, Pastor P. Raju, who was a member of Christian community, came there and made an appeal to them to get converted to Christian religion where they would get many benefits and facilities which would not be available to them in the Hindu religion to which they belonged. On the basis of an FIR, a case came to be registered against the pastor u/s 153-B IPC. The accused was arrested and produced before a Magistrate who remanded him to judicial custody. His application for bail was rejected as he had committed a non-bailable offence. The pastor filed a petition u/s 482 Cr.PC for quashing of the proceedings initiated against him u/s 153-B IPC, which was allowed by the High Court. Thus, the appeal before the Supreme Court. The principal submission that prevailed with the High Court was that before initiating any proceedings u/s 153-B IPC, the police ought to have obtained previous sanction of the Central Government or of the State Government or of the District Magistrate, as required by Section 196 (1A) Cr.PC, and in the absence of such a sanction having been obtained, the proceedings initiated against the respondent pastor were illegal and without jurisdiction. Section 196 (1A) Cr.PC, insofar as the same is relevant, reads as follows:
(1A) No Court shall take cognizance of
(a) any offence punishable under section 153B or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860), or
(b) a criminal conspiracy co commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate. The language employed in Section 196 (1A) and Section 197 Cr.PC is similar, inasmuch as, no court is to take cognizance of an offence unless previous sanction is obtained. Whereas, Section 197 is general in nature, and is applicable when a person accused of a crime is a Government servant, Section 196 (1A) deals with particular offences. Section 197 would be applicable with regard to all kinds of offences committed, whereas Section 196 (1A) would be applicable when the offence said to have been committed by the accused is under Section 153B or 505 IPC, or it is a case of criminal conspiracy to commit such offence. Be it Section 196 (1A) or Section 197 Cr.PC, before a court may take cognizance, previous sanction of the Government in the case of Section 197, and of Central Government or State Government or District Magistrate in the case of Section 196 (1A) is essential. The word cognizance, as mentioned above, has not been defined, even though the same has been mentioned in several provisions of Cr.PC. The dictionary meaning of the word cognizance is judicial hearing of a matter. Meaning of the said word has been explained by judicial precedents, and as mentioned by the Honble Supreme Court in Pastor P. Rajus case (supra), which has acquired a definite connotation. While quoting from its judgment in Narayandas Bhagwandas Madhavdas v State of West Bengal [(1960) 1 SCR 93 : AIR 1959 SC 1118], the Apex Court observed that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) Cr.PC, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions. It was held that taking cognizance of an offence is not the same thing as issuance of process; cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed; and the issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out. In the facts of the case, it was held that when only an order of remanding an accused to judicial custody is passed, it would not amount to taking cognizance of the offence, and in such circumstances Section 196 (1A) Cr.PC can have no application at all. In addition to its finding that a stage for cognizance had not reached, and, therefore, the proceedings could not be quashed for want of prior sanction of the Government, it was further observed that the power under Section 482 Cr.PC can be exercised to quash criminal proceedings pending in any court, but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. The Honble Supreme Court placed reliance for the observations as mentioned above on number of its earlier judgments. It has also been held that there is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173 Cr.PC. In short, the bar is for a court to take cognizance and not for the police to register and investigate a crime and present report u/s 173 Cr.PC before the concerned court. The respondents would interpret Section 197 Cr.PC as if before presenting a challan or submitting a final report in the concerned court u/s 173, prior sanction of the Government is required. What has been clearly mentioned in charge No.2 is that no sanction was sought from the Government by CID (Crime) before filing a charge-sheet before the Metropolitan Magistrate, and, therefore, the action of CID (Crime) would be illegal and without following the legal procedure, and the chargesheet would not be in accordance with provisions contained in Sections 195 and 197 Cr.PC. Why Section 195 has also been mentioned is not understandable at all. During the course of arguments, no stress was laid by the counsel representing the respondents as to applicability of Section 195, and rightly so, as the same would not be even remotely applicable to the facts of the present case.
19. In Romesh Lal Jain v Naginder Singh Rana & others [(2006) 1 SCC 294], it has been held that the plea relating to want of sanction although desirably should be considered at an early stage, but the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a later stage, and that each case has to be considered on its own facts. There may be cases where the question as to whether sanction was required to be obtained or not, would not be possible to be determined unless some evidence is taken, and in such an event, the question may have to be considered even after the witnesses are examined. We may make a mention as to in what context the observations as mentioned above came to be made by the Honble Supreme Court. It is too well settled a proposition of law by now that Section 197 Cr.PC would be applicable if the crime alleged against a public servant has been committed by him in discharge of his official duties. If the offence is wholly unconnected with the discharge of his official duties, Section 197 would not be applicable. As to whether the crime alleged against a public servant has been committed in discharge of official duties or not, would depend upon facts of each case, as it is in that context that it has been observed that even though, there may be desirability of taking into consideration the plea as regards non sanction at initial stage, but it will depend upon the facts of each case, as some times such a decision may have to be taken after recording evidence of some witnesses to find out whether the alleged crime may be such which may have been committed by a public servant in discharge of his official duties. It is pertinent to mention here that the investigating officer of the case, Shri R. A. Munshi, Detective Police Inspector, Crime Investigation, Gandhinagar, filed a written statement by way of an affidavit in the court of Chief Judicial magistrate, Ahmedabad. The said written statement was in response to an application filed in the court seeking dropping of proceedings u/s 258 Cr.PC against Shri G. S. Malik. In the affidavit aforesaid, he inter alia stated that the accused, i.e., Shri Malik had a tendency to disobey law, to infringe the lawful order of the investigating officer, and non-cooperation in investigation, and that sanction of the court u/s 155(2) Cr.PC had been obtained to investigate the non-cognizable complaint. The conduct of the accused, it is stated, could not be considered to be any departmental irregularity or act during his duty, as he had intentionally violated the provisions of law, instructions of his superior officer and even the orders of the court. It is further stated that violation is not an act in discharge of his duty, and it would be seen that he had intentionally committed criminal act and, therefore, the act committed by him could not be included in the act committed during duty, as per Section 197 Cr.PC; it was an omission, which would be a criminal act. There was a serious dispute as to whether the crime alleged against Shri Malik would be in discharge of his official duties and, therefore, Section 197 Cr.PC would be applicable, or it was an act outside his official duties and the provisions of Section 197 would not be applicable. Prima facie, it appears to us that disobeying lawful orders which constitutes a crime would not be done in discharge of official duties by a public servant. If there is a definite provision, violation whereof would constitute a crime, it cannot be said to be done in discharge of ones official duties. Duties means lawful duties and not unlawful or illegal. If the investigating officer, or for that matter, even the applicant was of the view that no sanction u/s 197 Cr.PC would be required, it could not be straightway said that the report u/s 173 could not be put up before the court without obtaining prior sanction. The Government had not applied its mind on this aspect of the case at all and had pre-supposed that in every eventuality when a public servant is to be tried for a crime, sanction of the Government is necessarily required. This is absolutely incorrect and against law.
20. The matter does not end there. Vide noting dated 21.6.2005 of the Home Secretary, DGPs opinion was sought whether a case be charge-sheeted without taking permission under Section 197 Cr.PC. The applicants successor as ADGP CID (Crime), in view of the aforesaid opinion sought for, made a point-wise clarification and gave opinion that sanction u/s 197 was not required, vide letter dated 1.9.2005. DGP wrote to the Home Secretary vide letter dated 19.9.2005 that sanction u/s 197 was not required. The noting dated 21.6.2005 reads as follows:
Can a case be charge-sheeted without taking permission under section 197 Cr.PC for an AIS officer? We should ask DGP to look into this matter and send a report. (p.351 of paperbook).
Additional Director General of Police, CID (Crime & Railways) on 1.9.2005, on the subject observed as follows:
Subject: Case regarding Shri G. S. Malik, Superintendent of Police, Bharuch.
Reference: Your letter No.PSF-15-2005-3526-Z dated 29/08/05 I have to state with subject and reference mentioned above that the pointwise clarification sought for as per Home Department letter dated 2/8/05 is as below.
1. The reason for not obtaining previous sanction as per section 197 of C.R.P.C. before filing charge-sheet should be shown.
Clarification:
When charge-sheet was filed at the end of investigation in the case of Gandhinagar zone PO.STA.N.C. No.1/05 against Shri Malik on making interpretation of section 197 of Cr.PC in detail, necessity of obtaining such previous sanction was not felt, hence previous sanction was not obtained.
2. In which circumstances, N.C. was filed without obtaining adequate clarification of Shri Malik.
Clarification:
Shri Malik was called four times for giving clarification and he did not come all four times.
3. This point pertains to the Additional Police Commissioner, sector 2, Ahmedabad city.
4. Certified copies of the working of this case should be sent.
Clarification:
In this case copies of case-papers as sought for are enclosed herewith. This fact may please be known to you sir. (p.544 of paperbook).
Director General of Police addressed a letter dated 19.9.2005 to the Principal Secretary (Home), which reads as follows:
Sub.: Case registered against Shri G.S. Malik, Superintendent of Police, Bharuch Ref.: 1) Your letter No.K/PSF/15/2005/3526/Z dated 29.8.2005.
2) letter No. Te-2 B/INVE/328/2005 dated 1.9.2005 from the Additional Dir. General of Police, CID (Crime and Railways).
With reference to the subject mentioned above, I have to state that as regards the NC No.1/05 registered against Shri G. S. Malik, Superintendent of Police, Bharuch, point-wise clarification is sought for by your letter under above said reference 1. In continuation thereof the clarification is sent here by a letter under above said reference 2, from the Additional Director General of Police, CID (Crime and Railways). That copy and the enclosure with that are enclosed herewith. I agree with the point-wise replies sent by him on the said matter. The concerned officer has to interpret as to whether the sanction of the govt. was required as per section 197 of the CrPC; the then Additional Director General of Police CID (Crime and Railways), Gujarat State had as per his interpretation, filed chargesheet without sanction. This may please be known to you. (p.543 of paperbook).
We may not go by the opinions of the Addl. DGP CID (Crime & Railways) and the DGP, as these are only opinions. We go strictly by the law on the subject, which, as enumerated above is that there is no illegality in presenting a report in the court u/s 173 Cr.PC, which may be against a public servant, without necessarily obtaining prior sanction of the Government, and the very presentation of the final report sans such sanction cannot be termed as illegal. However, we are constrained to observe that before resorting to charge-sheeting the applicant on charge No.2, the opinion of highest officers of the State Government ought to have been taken into consideration. The same has not even been mentioned to opine that the same would be incorrect, and that is where the arbitrariness comes in. Nothing much can be read into the order passed by the concerned Magistrate allowing the Government to withdraw prosecution against Shri Malik. That once again is an opinion and cannot be binding upon the applicant, who was not a party to the case. The respondents have quoted a part of the order in the charge, which reads, before filing charge-sheet, legal procedure was not followed. If this opinion is flawed and not in consonance with the decisions of the highest court of the land, the same can be of no meaning and consequence. If the applicant may succeed on pure and simple question of law, as mentioned above, there would be no need to prolong the discussion on charge No.2. We may, however, simply mention that it is the case of the applicant that the procedure adopted for withdrawing the prosecution against Shri Malik would be illegal, as it was in violation of the Gujarat Government Rules of Business, 1990. The said Rules provide that any proposal for withdrawal of prosecution by Government would be as per the advice tendered by the legal department, and if the prosecution is to be withdrawn against the advice of the legal department, it has to be put before the Council of Ministers. We may only note the argument and leave it at that. There is hardly any answer to the question posed by the applicant. Before we may part with charge No.2, it requires to be mentioned that the applicant alone has been charge-sheeted. The allegation against him is of lack of supervision in presenting the final report u/s 197 Cr.PC without prior sanction of the government. Those who had actually done it are not touched. It is strange that the applicant who only supervised the procedure is to be singled out and those who went through the procedure, and as per the stand of the Government, presented the final report without sanction of the Government, would not be even warned, least proceeded against. For this reason as well, the action taken against the applicant is arbitrary.
21. Charge No.3 states that the applicant after taking over as Addl. DG, CID (Crime) issued a compilation on administrative instructions and procedures, and in chapter-III thereof, he mentioned that approval of a chargesheet against Class I officers of State/Central Government has to be sanctioned only by Addl. DG, CID (Crime), and that Shri Malik is a Class I IPS officer, but the applicant allowed ultra vires action of approving the chargesheet against Shri Malik by a DIG level officer, which would be in contravention of the standing order issued by the applicant himself. It is alleged that the applicant did not ask for any explanation from his subordinate officer, i.e., DIG (Crime) for contravening the standing orders, and, therefore, failed to do effective supervision thereby not maintaining absolute devotion to duty. Learned counsel representing the applicant would contend that this charge is unfair and arbitrary. The applicant is alleged to have failed in effective supervision, inasmuch as, DIG level officer approved the charge which was to be approved by the Addl. DG, CID (Crime), and the applicant allowed this to happen and failed to do effective supervision. It is urged that those who violated the procedure as set by the applicant are not touched, and the applicant who is supposed to have supervised them and which supervision had to be effective, is the only person in the net. The DIG who approved the chargesheet has been given vigilance clearance to proceed on Central deputation. The applicant has been singled out. We find considerable merit in the contention of the learned counsel as noted above. As regards charge No.2, we have held that if a person who has actually indulged in misconduct is not touched, no action against the one who may have had ineffective supervision over the principal offender, and against whom the allegation is only of ineffective supervision, can be taken. It would be discrimination writ large on the face of it and cannot be permitted. The findings as regards arbitrariness would apply to this charge as well.
22. The fourth charge against the applicant is that he continued to take interest in the case filed against Shri Malik even after his transfer from Addl. DG, CID (Crime) to Addl. DG of Police (Training), inasmuch as while he was on his transferred post, his subordinate officer Shri V. K. Valekar, Police Inspector asked to know the progress of the case against Shri Malik vide letter dated 5.1.2006 at the behest of the applicant. Valekar was in no way concerned or connected with the progress of cases registered by CID (Crime), and no reason was mentioned in the letter aforesaid as to why the information was being sought. From the facts as mentioned above, it is the case of the respondents that the applicant took interest in the case against Shri Malik even after his transfer, which would show the attitude of vengeance and mala fide intention on his behalf against Shri Malik. Learned counsel for the applicant would contend that if the respondents before issuing the chargesheet to the applicant might have even cursorily examined the reply to the show cause notice, there was no question for them to have framed this charge against the applicant. We would make a reference to the defence projected by the applicant in reply to the show cause notice along with the additional affidavit and accompanying documents that came to be filed during the course of hearing of this case. We may, however, mention at the very outset that dealing with the controversy on merits as based upon the defence of the applicant may not be permissible at this initial stage, but the contention of the learned counsel for the applicant that there has been a major procedural lapse in the proceedings culminating into issuance of the chargesheet, would need mention of the defence projected by the applicant. It is the case of the applicant that after his transfer from the post of Addl. DG, CID (Crime) to ADGP (Training), he received a request for sending officers for two training programs, i.e., Joint Civil Military Training workshop on National Security from 6.2.2006 to 10.2.2006 at Pune; and Vertical Interaction Course on Disaster Management from 30.1.2006 to 4.2.2006 at Hyderabad. Shri G. S. Malik vide his letter dated 2.1.2006 addressed to the applicant, had shown his willingness to proceed for the training program at Pune. In reference to the said willingness, the office of the ADGP (Training) wrote a letter dated 2.1.2006 to CID (Crime), which is a requirement as per various rules which provide that the Government should know the status of any departmental/vigilance enquiry/case pending/contemplated against an officer before sending to him on training, whether within the country or for some foreign course. We may mention at this stage that during the course of arguments, there was a dispute as regards the plea of the applicant that he had sought to know the status of the case pending against Malik in his official duties when he was holding the post of ADGP (Training), it was required to know if any departmental action or case was pending against those who were to be sent on training. The applicant on the adjourned date filed an additional affidavit dated 3.3.2011 to bring on records some documents in that regard. With the affidavit aforesaid, the applicant has annexed a TP message dated 2.12.2005 from Addl. DGP Police Training Department, G.S. Gandhinagar addressed to Director, ACB, Ahmedabad and others, regarding intimation of willingness of officers for the two courses mentioned above. Participation in the courses aforesaid was to be by SP/Commandant/DIG and senior IPS officers respectively. On 17.12.2005, a fax message on behalf of Addl. DGP Police Training Department, Gandhinagar written by one V. K. Walekar, Police Inspector Training, was issued to Director, National Security Council, New Delhi, with intimation to DIG, Range, Ahmedabad, and Suptd. of Police, Anand. The same reads as follows:
Please refer to your D.O. letter No.3/1/2002-NSCS(CS)-370 dated 16.11.2005 regarding Joint Civil Military Training Workshop on National Security to be conducted at Yashada (the Administrative Training Institute), Pune from 6-10 February, 2005.
Shri B. S. Jebaliya, S.P. Anand is nominated for the above Training Programme.
It is requested to accept the nomination of Shri B. S. Jebaliya, S.P. Anand and send joining instructions directly to him under intimation to this office.
Nominated officer is requested to proceed for the above training under intimation to this office. G. S. Malik, S.P., Bharuch, addressed a letter dated 2.1.2006 to Addl. DGP, Police Training Department, Gandhinagar, text of which reads as follows:
Kindly reference your T.P. Message No.TRG/IPS-WILL/204/2005, dated 30.12.2005 regarding sending of willingness for training programmes shown in the message. Self is willing to go Joint Civil Military Workshop on National Security to be held from 6.2.2006 to 10.2.2006 at Yashada, the Administrative Training Institute, Pune and oblige. A fax message dated 2.1.2006 from the office of SP, Kheda-Nadiad was sent to Addl. DGP, Police Training Department, Gandhinagar, which reads as follows:
Please refer to your T.P. Message No.TRG/IPS-WILL-2049/2005 dt 30/12/2005 regarding two Training Programmes for IPS Officers. Shri S. S. Trivedi, Supdt. of Police, Kheda-Nadiad is willing to attend the following courses:
Joint Civil Military Workshop on National Security dt. 6.2.2006 to dt. 10.2.2006.
Vertical Interaction Course on National Security, challenges and the police response dt.13.2.2006 to dt. 18.2.2006. On 5.1.2006, V. K. Valekar, Police Inspector (Training) addressed a letter to Addl. DG of Police, CID (Crime & Railways) with the caption, Regarding furnishing information. The same reads as follows:
In view of the captioned subject, it is informed that an offence has been registered under section 174 of the IPC against Shri G. S. Malik, SP, Bharuch, in the CID (Crime). It is requested to furnish details of this case along with name of the court in which charge-sheet is filed and its criminal case number with present status. Keshav Kumar, Dy.IGP (Crime-2), CID (Crime & Railways) addressed a letter dated 25.1.2006 to Addl. Director General of Police, Police Training Department with the subject Regarding furnishing information. It was informed to the Addl. DGP, Police Training that an offence had been registered vide Gandhinagar zone Station non-cognizable CR No.1 of 05 u/s 174 IPC on 15.5.2005, and that Shri M.D. Jani, Dy.SP had registered the said complainant on behalf of the Gujarat State. Brief facts of the case have been given. It appears that the case was pending at that time, as it has been mentioned that after completion of the investigation, permission for filing charge-sheet was conveyed to the investigating officer on 1.6.2005 and as such a charge-sheet was filed in the case in the court of Chief Metropolitan Magistrate, Ahmedabad, and that Shri Malik had presented himself before the Chief Metropolitan Magistrate after the court issued notice to him. The applicant has also brought on record the noting portion of the file. Note dated 24.12.2005 reads as follows:
Shri B. S. Jabeliya S.P. Anands letter may kindly be perused on C-141-B.
As per letter, S.P. Anand have shown (the note is hand written and the word appears to be shown) inability to attend the workshop on National Security at Yashada Pune from 6 to 10 February, 2006, in view of Moharram festival bandobast on 9.2.06 at Anand. DGP had made remarks send someone else or cancel C-143.
Details of officers is on C-129-A.
For favour of necessary orders please. Available on records is also note dated 4.1.2006, which reads as follows:
For a course on Joint Civil Military Workshop on National Security at Pune from 6.2.06 to 10.2.06 nominations were called from IPS officers of Gujarat State.
2. Shri S. S. Trivedi S.P. Kheda & shri G. Malik, S.P. Bharuch have shown willingness to go for this course.
3. Shri S. S. Trivedi, S.P. Kheda has been already nominated for a course on Stress, healthy Coping and Constructive Empowerment for Criminal Justice Functionaries from 13.2.06 to 17.2.06 at New Delhi.
4. In view of above, if approved, we may send nomination of Shri G. Malik S.P. Bharuch for this course. Permission of Govt. is required to be obtained for this course.
For favour of necessary orders please. The next note available on file as produced by the applicant is also dated 4.1.2006 written by ADGP (Trg.), which reads as follows:
Shri G. S. Malik has been charge-sheeted by CID Crime for an offence u/s 174 IPC.
What is the practice/rules in this regard.
Also write to CID Crime and get details such as CC No. and name of the Court in which charge-sheet is filed. The next note dated 9.1.2006 recorded by PI(T) reads as follows:
As shown on flag B C-159 Shri D. G. Vanjara, D/8 ATS & Shri R. V. Jotangia, SP have also shown willingness to go for a Joint Civil Military Workshop on National Security at Pune from February 6 to 10, 2006.
For favour of necessary orders please. The next note dated 10.1.2006 recorded by ADGP (Trg.), which appears to have been approved by DGP on the same day, reads as follows:
We may nominate Shri R. V. Jotangia for the course. The next note dated 30.1.2006 reads as follows:
As per telephonic talk with Shri S. K. Naik, IAS, Nodal Officer for this workshop at Yashada Pune from February 6 to 10, 2006, this workshop on National Security has been postpones and new dates have been not finalized. Therefore we may inform to nominated officer Shri R. V. Jotangia, S.P. Amrali not to proceed for this workshop.
F.F. approval sir, Next note dated 31.1.2006 reads as follows:
Kindly refer to letter received from C.I.D. Crime, G.S. Gandhinagar dated 25-1-6 on C-189-A, regarding details of Shri G. S. Malik S.P. Bharuch. For perusal please. The next note dated 4.2.2006 recorded in ADGP (Trg.), as produced, reads as follows:
1. This should be kept on record. He should not be nominated for any foreign
2. Write to DGP and ask whether officers who have D.E. pending against them or who have ACB/CID cases against them, should be nominated for courses in India. V. K. Valekar, Police Inspector (Training) addressed letter dated 8.2.2006 to Director General and IG of Police informing that the Additional Director General of Police (Training) deputes police officers for different trainings out of State, and sought to know whether officers against whom cases in ACB and CID (Crime) are pending may be sent for training as such or not.
23. Learned counsel representing the applicant would contend that charge No.4, if examined in the context of the reply to the show cause notice given by the applicant, the same would crumble under its weight, as there was no question for the applicant to have shown any further interest in the matter, and that it is proved on record by overwhelming documentary evidence that the enquiry as regards pendency of the case against Shri Malik was in discharge of his official duties which had to be carried out by him. The applicant was in personal knowledge of the case pending against Shri Malik and when the rules required to know about this position and when the applicant was at that time ADGP (Training), through whom only various courses were being conducted, there would be no delinquency on the part of the applicant. We have already mentioned that we may not go into baselessness or frivolity of the charge in view of the defence projected by the applicant, as that, in the first instance, would be in the domain of the enquiry officer. We are bound by the law laid down by the Honble Supreme Court. In view of Article 141 of the Constitution, the law laid down by the Supreme Court is binding upon all courts and tribunals, and, therefore, we will not give a finding as regards frivolity or baselessness of the charge. We have already mentioned above that there was a basic flaw in the proceedings, inasmuch as, before issuing the charge-sheet, the views of DGP were not obtained and the reply of the applicant to the show cause notice was also not considered. Had the reply of the applicant even been read, the defence projected by him would not have gone unnoticed.
24. Before we may part with this aspect of the case, we may mention that during the course of arguments, the only discordant view expressed by the learned Addl. Advocate General was that requirement to know pendency of cases etc. would be only when an officer has to go abroad, be it for training or otherwise. This does not appear to be correct. Resolution dated 16.8.2005 came to be passed by General Administration Department, Gujarat State, regarding nomination of State Government officers/employees in India and abroad for training, scholarship, seminar, workshop etc. The said resolution is accompanied by Annexure-B, as it may appear, under sub-rule (14) of rule 1 of police rules. The same reads as follows:
Check list for officers/employers to be filled before sending training programme in India/Foreign countries/Seminar etc. Sr. No. Details
1. Name of Officer/Employee
2. Designation
3. Name of Department
4. Date of Birth
5. Date of appointment
6. Completed years in service
7. SC/ST/Physical handicap/SEBC
8. Details of departmental inquiry action etc., if any (emphasis supplied)
9. Complete details about any such training taken previously
10. For the present designation, if there is any in-service training taken or not? If so, please give complete details.
11. Whether the Training Institute is recognized by Central/State Government.
12. Taking into consideration of the present duty, please give description about the training
13. Details about training expenses The above information is true and correct, looking to the records available in this Department. After completion of training the concerned officer/employee should use the knowledge. Accordingly it is recommended. [
25. Charge number 1 has since already been reproduced hereinbefore. Before we may take into consideration the contentions raised by the learned counsel representing the parties on the said charge, we may mention some patent facts and the relevant law on the subject. Non-justification of registering crimes 3, 4 and 5/05 by CID (Crime) is not the issue. It is not the case of the respondents that there was no justification for registering these crimes. That Shri Malik was not a relevant witness in investigation of crimes 3, 4 and 5/05 is also not the case of the respondents. The request of Shri Malik in view of para 171 of the Police Manual Part III for the investigating officer to come to Bharuch and record his statement, it is stated, has been interpreted mala fide to be a non-cognizable offence, even though his request was well within the discharge of official duties looking at the provisions of para 171 of the Police Manual. Section 160 Cr.PC deals with the power of a police officer to require attendance of witnesses. The same, insofar as is relevant, reads as follows:
160. Police Officers power to require attendance of witnesses. (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station, who from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:
Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides. The exception as regards power of a police officer to call any witness for recording statement is only as regards male or female under the age of fifteen years. In that case the police officer would have to go to his/her residence to record the statement. There is no embargo on the power of the police officer to call any police officer or other government servant for recording his/her statement. Insofar as, para 171 of the Police Manual is concerned, the same reads as follows:
171. Summoning as witnesses police officers of other districts. When an investigating officer requires the attendance of a police officer of another district to give evidence either before him or before a court in a case belonging to his own district, he should be careful in calling for his attendance to cause the least inconvenience to the other district. The best course in such a case is to leave the nomination of the witness to the officer in charge of the police station from which he is to be summoned, intimating to him at the same time the point or points on which his evidence is required. The officer in charge of the police station will then determine who is the person best fitted to give evidence on those points and send him to the police officer requiring his attendance. Section 2(s) Cr.PC defines police station as follows:
(s) police station means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf; In exercise of powers conferred by clause (s) of Section 2 Cr.PC, the Government issued notification dated 10.2.1980. It declared the places specified in column 2 of the schedule appended thereto to be applied station and directed that each of such police station shall include the areas specified against them in column 3 of the said schedule. The Schedule reads as follows:
Serial Number Name of the Place Areas
1. Office of the Deputy Superintendent of Police CID Crime Gandhinagar Unit, Ahmedabad Ahmedabad City, Ahmedabad Rural & Gandhinagar, Mehsana, Banaskantha, Sabarkantha & Kheda District and Jurisdiction of Western Railways in Gujarat State.
2. Office of the Deputy Superintendent of Police, CID Crime Baroda Unit, Baroda Baroda City, Baroda Rural, surat City, surat Rural, Bharuch, Valsad, Dangs and Panchmahals District.
3. Office of the Deputy superintendent of Police, CID Crime Rajkot Unit, Rajkot Rajkot city, Rajkot Rural, Bhavnagar, Surendernagar, Amreli, Junagarh, Jamnagar & Kutch-Bhuj District.
Extract of Gujarat State CID (Crime) Manual Part II, reads as follows:
Who will investigate offences?
As per details below, the CID (Crime) will investigate the following cases:
Those registered in CID (Crime) Police Stations Those cases which are transferred to CID (Crime) for investigation by DGP Those cases which are transferred to CID (Crime) by the State Government Those cases in which the Gujarat High Court directs the CID (Crime) to take up investigation [ Police station, in view of definition of the same as given in Section 2(s) Cr.PC, means any post or place declared generally or specially by the State Government to be a police station. In exercise of powers conferred by clause (2) of Section 2 Cr.PC, the Government had indeed issued a notification. Places specified in column 2 of the schedule reproduced above have been declared to be applied stations. Each police station is to include the areas specified in the schedule itself. What clearly emerges from the facts as mentioned above is that CID (Crime) has three units, which would be Gandhinagar unit (Ahmedabad), Baroda unit and Rajkot unit. In view of Gujarat State CID (Crime) Manual Part II, the CID (Crime) will investigate such cases as well which have been registered in CID (Crime) police stations. The CID (Crime), it is quite apparent, is a police station to investigate any case that may be registered with it. It may be recalled that even the respondents in the first charge have clearly mentioned that the cases were registered with CID Crime Zone Police Station, without specifying as to the concerned unit, as CID (Crime) is one department of the police, which may have three units.
26. Learned counsel representing the applicant would vehemently contend that para 171 of the Police Manual would be wholly inapplicable to the facts of the present case. In the present case, crime was registered by CID (Crime) which would have jurisdiction to register and investigate cases, and its jurisdiction would spread all over the State of Gujarat. Once, Police CID (Crime) in itself is a police station and covers the entire area of Gujarat, para 171 of the Police Manual would not be even remotely attracted. The investigating officer of CID (Crime) had independent jurisdiction in the matter and it was not a case of calling a police officer from another district for recording his evidence. It is further urged that para 171 would be applicable when a police officer requires attendance of a police officer of another district to give his evidence before him or before a court. If it be a case of a police officer who may not belong to his district, he should be careful in calling for his attendance to cause the least inconvenience to the other district, and the best course in such a case is to leave the nomination of the witness to the officer in charge of the police station from which he is to be summoned. Shri Malik, it is urged, was not posted in a police station. He was SP of Bharuch, and for that reason as well, para 171 was not applicable. Further, there was no incharge of Shri Malik who could nominate him or anyone else to be sent for recording his statement. Shri Malik was not working in a police station and he did not have any incharge officer over him. There is hardly any rebuttal to the impressive arguments of the learned counsel representing the applicant that para 171 of the Police Manual was wholly inapplicable to the facts of the present case.
27. The applicant has a grievance that he has been treated in a rough manner. The chargesheet framed against him, it is urged, is an outcome of legal mala fides. From totality of the facts and circumstances of the case, and in particular, that the applicant is adversely affected in his service career on all counts, be it his posting against a ex cadre post, downgrading of his ACRs, or not giving him vigilance clearance for Central deputation, the undeniable impression that can be gathered is that he has fallen out of favour by the State Government, but that, in our view, may not be enough to return a finding of legal mala fides, but at the same time, a positive finding that needs to be returned is that the applicant has been a victim of arbitrariness and has been meted with a totally differential treatment frowned upon by the mandate of Article 14 of the Constitution of India.
28. In view of the discussion made above, we quash and set aside the memorandum dated 14.12.2009 proposing to hold departmental enquiry against the applicant. The direct and natural consequence of setting aside the memorandum aforesaid would be that the applicant has to be given vigilance clearance, as it is only because of the pending departmental proceedings initiated against him vide the said memorandum that the same has been withheld. We have mentioned hereinabove that even if the applicant may not succeed on independent grounds available to him seeking vigilance clearance, if the memo is to be set aside he shall have to be given consequential relief as mentioned above. We reiterate that admittedly, the vigilance clearance has been withheld only because of the departmental enquiry pending against the applicant.
29. Before we may part with this order, we may mention that the learned counsel representing the parties have given a plethora of judicial precedents in their respective compilations. We have, however, referred only to such judgments which we thought would need mention for the purpose of giving our judgment.
30. In the peculiar facts and circumstances of the case, the costs of the litigation are made easy.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/