Central Administrative Tribunal - Delhi
Jitender Singh S/O Basant Singh vs Commissioner Of Police on 9 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application Nos.3114 of 2011 This the 9th day of January, 2012 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Jitender Singh S/o Basant Singh, R/o F-5, Police Colony, Mehram Nagar, New Delhi-110037. Applicant ( By Shri H. S. Dahiya with Ms. Anita Sharma, Advocates ) Versus Commissioner of Police, Delhi Police Headquarters, ITO, New Delhi. Respondent ( By Ms. Sumedha Sharma, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Jitender Singh, the applicant herein, joined Delhi Police as Sub Inspector in 1986 and is working on the same post till date, primarily because of his involvement in FIR No.13/88 us 304B/498A IPC and sections 3 and 4 of Dowry Act dated 29.01.1988. We may mention at the very outset that the applicant is brother of the husband of the deceased, whose death resulted into registration of the FIR as mentioned above. The applicant has since been acquitted, but his promotion is still not coming about for the reason that at the relevant time when DPC was held, he was facing the criminal trial, and his case was put in sealed cover. It is not being opened even after his acquittal for the reason that for the same allegations, as were subject matter of the criminal case against him, now a departmental enquiry is pending. In the context of the facts and circumstances of the case to be mentioned hereafter, the applicant has approached this Tribunal through present Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking variety of reliefs, like setting aside of order of not opening the sealed cover till finalization of the departmental enquiry, setting aside of the order of continuing the departmental proceedings against him, as also the order whereby which his name has been brought on secret list of doubtful integrity vide order dated 30.05.2011. In consequence of setting aside the order of not opening the sealed cover for his promotion, the applicant also seeks a direction to the respondents to open the sealed cover and give effect to the recommendations of the DPC, and if recommended to be promoted, to give promotion to him to the rank of Inspector from due date with all consequential benefits.
2. The facts as may need necessary mention, culled out from the pleadings of parties and the accompanying documents, reveal that whereas, batch-mates and juniors of the applicant were admitted to the promotion list F (Executive) vide order dated 05.06.2006, name of the applicant was kept in sealed cover. The applicant has placed on record copy of the order dated 05.06.2006 as Annexure A-4. The reason why the name of the applicant was kept in sealed cover was that a criminal case pertaining to FIR No.13/88 u/s 304B/498 PC and sections 3 and 4 of Dowry Act came to be registered against him, his brother and parents at PS Gulaothi, Buland Shahar, UP on account of death of Smt. Ramesh Devi wife of Bahadur Singh, elder brother of the applicant. On completion of the investigation, police did not present challan against the applicant. The same was presented only against his parents and brother. However, brother of Ramesh Devi filed application under section 319 Cr.PC for summoning the applicant as an accused, but the same was rejected by the Addl. Sessions Judge on 26.09.1991. Against the order aforesaid, the criminal revision came to be rejected by the High Court of Allahabad on 07.04.1992. Thereafter, three similar applications were rejected by the Addl. Sessions Judge on 11.06.1993, 06.06.1993 and 15.12.1994. However, the High Court on 07.04.2000 issued orders of summoning the applicant in the trial after 12 years of the incident. Meanwhile, it appears that the relations of the applicant, as mentioned above, were tried and acquitted in the main charges. They appear to have been convicted only for demand of dowry, and as regards the main offence against them, i.e., section 304B IPC, they have been acquitted. The applicant faced a separate trial, in which he has been acquitted on 14.04.2011. We have gone through the judgment recorded by the Addl. District and Sessions Judge, Bulandshahar, English translation whereof has been placed on records as Annexure A-10, and find that a clear finding came to be recorded that the applicant was a victim of frame-up. We may refer to the concluding part of the judgment of the learned Addl. District & Sessions Judge, where main reasons for acquittal have been given. The same reads, thus:
25. From the facts and circumstances in this case it appears that accused Jitender Singh, by reason of his being the brother in law of the deceased, was implicated with malicious intent on wrong legal advise at a later stage (based on the accounts of the witness given before the court) while the prosecution failed to produce any reliable evidence to prove its charges against him. Even though, the finding of the learned Addl. District & Sessions Judge is that it is a case of implication with malicious intent on wrong legal advise at a later stage, it has, however, been mentioned that the prosecution had failed to produce any reliable evidence to prove the charges against the applicant. Para 26 of the judgment reads as follows:
26. On consideration of the above mentioned evidence I find that the prosecution has failed to prove the allegations leveled against the accused Jitender Singh, beyond doubt. Hence the accused Jitender Singh deserves to be declared innocent of the allegations leveled against him.
3. After acquittal, the applicant has been making requests to the respondents to open the sealed cover in the matter of his promotion. It, however, appears that even before acquittal of the applicant, the respondents ordered regular departmental enquiry against him on 07.02.2011 (Annexure A-8). It is not in dispute that the allegations, on which the applicant is to be departmentally tried, are exactly the same, as were subject matter of the criminal trial. It is in wake of the facts and circumstances, as fully detailed above, that the applicant has asked for the reliefs as already indicated hereinabove.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed their counter reply contesting the cause of the applicant. On broad facts of the case as mentioned in the OA, there is hardly any dispute.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. We may mention at the very outset that the representation of the applicant, particularly as regards his request for opening the sealed cover, has been rejected vide order dated 26.07.2011 (Annexure A-1) by observing that the case of the applicant for promotion was kept in sealed cover due to pendency of the criminal case, and even though he might have been acquitted by the concerned court of law, yet the parallel departmental enquiry initiated due to his involvement in the said criminal case is still pending against him, and, therefore, the sealed cover in respect of the applicant cannot be acted upon till finalization of the departmental enquiry.
6. Even though, the applicant has number of judicial precedents to cite to say that there should not be any departmental enquiry, if on the same allegations, the concerned court might have passed order of acquittal, but insofar as the Delhi Police (Punishment and Appeal) Rules, 1980 (hereinafter to be referred as the Rules of 1980), are concerned, there is no absolute bar for holding simultaneous departmental proceedings, or even ordering departmental proceedings after acquittal, but the same has to be as per provisions of rule 12 of the Rules aforesaid. Rule 12 reads as follows:
12. Action following judicial acquittal. When a police officer has been tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not unless:-
(a) the criminal charge has failed on technical grounds; or
(b) in the opinion of the court, or the Deputy Commissioner of Police the prosecution witnesses have been won over; or
(c) the court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or
(d) the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or
(e) additional evidence for departmental proceedings is available. Perusal of rule 12 would clearly manifest that a police officer shall not be punished departmentally on the same charge, or on a different charge, upon the evidence cited in the criminal case, whether actually led or not, unless, the criminal charge has failed on technical grounds; or in the opinion of the court, or the Deputy Commissioner of Police, the prosecution witnesses have been won over; or the court has held in its judgment that an offence was actually committed and that suspicion would rest upon the police officer concerned; or the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or additional evidence for departmental proceedings is available. It appears that the respondents have neither cared to have a look at rule 12, nor at the judgment passed by the concerned court acquitting the applicant. As mentioned earlier, it is a case of clean acquittal. Not only that, a firm finding of fact has been recorded that the applicant was a victim of frame-up. Even though, in para 26 of the judgment, benefit of doubt has been given to the applicant, it has been clearly held that the prosecution had failed to produce any reliable evidence to prove its charges against the applicant. A finding of falsity of the prosecution case has already been returned by the criminal court, and that would be binding upon the respondents. No exception, as envisaged in rule 12 of the Rules of 1980, exists. It could not be disputed during the course of arguments that none of the exceptions as envisaged in rule 12 would be applicable in the facts and circumstances of the present case. Normally, we would have directed the respondents to pass an order in the light of rule 12, but we find that the applicant has suffered a great deal already. His case for promotion, as mentioned above, was kept in sealed cover way back in 2006, and thereafter orders of promotions have been issued in respect of nine batch-mates junior to the applicant. They have been promoted to the rank of Inspector. Insofar as, the last para of the judgment giving benefit of doubt to the applicant is concerned, we have in Const. Rajinder Kumar v GNCTD & others, decided on 09.10.2009, based upon, judicial precedents where in earlier part of the judgment the findings of acquittal may be on merits, observed as follows:
4. Present is not a case where the prosecution witnesses may have turned hostile having been won over by the applicant. It is rather a case where prosecution version was doubted and the defence projected by the applicant was accepted. We are not here to comment upon as to in the facts and circumstances as mentioned above, the order should have been of clean acquittal or acquittal on benefit of doubt. However, it is settled proposition of law by now that when in the main judgment the findings may be such that the prosecution version is rejected or the plea raised by the defence is accepted, the order of acquittal on benefit of doubt would be superfluous. To illustrate, if in a charge of murder the accused may take the plea of right of self-defence of person or property and may prove it to the hilt, and the court may also hold that the accused had a right of self-defence of person or property and yet may acquit him by giving him benefit of doubt, can it be a case of clean acquittal? If yet the acquittal is still by giving him benefit of doubt, the same would, as mentioned above, be superfluous. We had an occasion to deal with this precise question in OA No.33/2008 decided on 2.6.2008 in the matter of Ram Phool Meena v Commissioner of Police & Others, and returned a finding in tune with what has been stated above, based upon number of judicial precedents. We may also mention that in a recent decision of a Division Bench of the Delhi High Court in WP (C) Nos.11739/2009 and 11741/2009 decided on 23.9.2009 in the matter of Government of NCT of Delhi & Others v ASI Karan Singh & Another, confirming the decision of this Tribunal, the High Court took a view that when there is no finding of witness having been won over, the mere fact that the witness has turned hostile would not make any difference and the case would be still covered by rule 12 of the Rules of 1980. A similar view has also been taken by the Honble Supreme Court in State of Punjab & Others v Prem Sarup [(2008) 12 SCC 522], even though under provisions of rule 16.3 of the Punjab Police Rules, which is pari materia to rule 12 of the Rules of 1980. Same view was taken by the Tribunal in OA No.1053/2004 decided on 13.8.2004 in the matter of Satya Dev Singh v Government of NCT of Delhi & Others, which decision has been affirmed up to the Honble Supreme Court. We may reiterate, even for the sake of repetition, that in the criminal case, none of the witnesses turned hostile, nor the criminal charge failed on technical grounds, nor there is any finding whatsoever that the offence was actually committed and the suspicion would rest upon the applicant, or that the evidence cited in the criminal case disclosed facts unconnected with the charge before the court which would justify departmental proceedings on a different charge, or additional evidence for departmental proceedings was available. In the very nature of the case that was planted against the applicant, there cannot be any additional evidence for departmental proceedings. The witnesses could only be the relations of the deceased, and there would be no documents available with the respondents, except which were relied upon by the prosecution in securing conviction against the applicant. All impugned orders are directly linked to the allegations subject matter of the criminal case and the departmental enquiry, and they all need to be set aside.
7. Finding merit in the Original Application, we allow the same. The respondents will forthwith open the sealed cover of the applicant as regards his promotion to the post of Inspector, and give effect to the recommendations of the DPC. Order dated 07.02.2011 ordering initiation of departmental enquiry against the applicant, and all further proceedings that may have been conducted in that regard would stand set aside. The order dated 30.05.2011 vide which now the name of the applicant has been brought on the secret list of doubtful integrity is also set aside. It appears to us that the applicant has been unnecessarily harassed. The respondents have dealt with his case with utter carelessness, if not more. They have not chosen even to refer to the judgment of the criminal court, wherein, as we have already mentioned, the acquittal is clean, and rather the applicant has been held to be a victim of frame-up, nor have cared to even have a look at rule 12 of the Rules of 1980. We are of the view that this Application deserves to be allowed with costs, which we quantify at Rupees ten thousand.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/