Central Administrative Tribunal - Delhi
Raj Singh vs Comm. Of Police on 4 May, 2016
1 OA No.3235/2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.3235/2013
New Delhi this the 4th day of May, 2016
HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE MR. K.N. SHRIVASTAVA, MEMBER (A)
Inspector Raj Singh
Inspector No.D-2489 (PIS No.16870004)
S/o Late Shri Man Singh
R/o Quarter No.21, Type-III,
Police Colony,
Shalimar Bagh,
Delhi-110088
Group 'B', Aged 51 years. ...Applicant
(Argued by: Mr. Surabh Ahuja)
Versus
1. Govt. of NCTD through
The its Chief Secretary,
Delhi Sachivalaya, IP Estate,
New Delhi.
2. The Joint Commissioner of Police,
Northern Range,
Through Commissioner of Police,
PHQ, I.P. Estate,
MSO Building,
Delhi.
3. Deputy Commissioner of Police,
Outer District,
Through Commissioner of Police,
PHQ, I.P. Estate,
MSO Building, New Delhi. ....Respondents
(By Advocate : Mr. Vijay Pandita)
ORDER (ORAL)
Justice M. S. Sullar, Member (J) Applicant, Inspector Raj Singh, has directed this Original Application (OA) for quashing and setting aside the impugned Show Cause Notice (SCN) dated 27.07.2011 2 OA No.3235/2013 (Annexure-1), impugned punishment order dated 20.10.2011 (Annexure-2) and order of Appellate Authority dated 26.11.2012 (Anneuxre-3), invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985.
2. The crux of the facts and material, relevant for deciding the instant OA, is that the applicant was posted, from 31.05.2010 to 02.12.2011, as SHO of Police Station, Bawana. A complaint was submitted by complainant Ashwani Jain S/o Shri M.K. Jain Proprietor Kamdhenu Enterprises regarding cheating and fraud committed by his employee accused Amit Jain S/o Shri S.K. Jain to the tune of Rs.5 lac. He had also mentioned in the said complaint that Amit Jain also cheated other persons and fraudulently grabbed money from the people of market, on his behalf, without his knowledge. The complaint was duly received vide DD No.38-B dated 21.11.2010 in the Police Station. The complaint remained pending in the Police Station, for a period of more than 7 months, despite the fact it clearly discloses the commission of cognizable offence. Thus, according to the department, it amounts to grave misconduct, negligence, carelessness and irresponsible attitude in discharge of his official duties by the applicant.
3. As a consequence thereof, applicant was served with impugned SCN (Annexure-1) for imposing minor penalty of 'Censure'. The applicant filed his reply (Annexure-4) to the SCN, which was found to be unsatisfactory.
3 OA No.3235/2013
4. Thereafter, taking into consideration the serious misconduct and lapses on the part of the applicant, his conduct was Censured vide the impugned order dated 20.10.2011 (Anenxure-2) passed by the Disciplinary Authority (DA) which reads as under:-
"ORDER A Show Cause Notice for censure was issued to Inspr. Raj Singh, No.D-2489 (PIS No.16870004) SHO/Bawana vide this office No.10933-34/HAP/ Outer District dated 27.7.11 on the allegation that a complaint from Ashwani Jain s/o Shri M.K. Jain, Proprietor Kamdhenu Enterprises, Plot No.898, Main Bawana road, Puth Khurd, Delhi was submitted in PS Bawana which was duly received vide DD No.38 B dated 21.11.2010 regarding cheating/ fraud committed by his employee Amit Jain s/o S.K. Jain to the tune of Rs.5 Lac. He has also mentioned in the complaint that said Amit Jain also grabbed money from the market people without his knowledge.
The said complaint was lying pending in the police station for a period of more than 07 months despite the fact that it clearly discloses commission of cognizable offence. It also appears that no enquiry has also been made in this regard. The case involved cheating and fraud of huge amount for which a proper case should have been registered and investigated. The unnecessarily delay for more than 07 months simply indicates the insensitiveness, inaction and carelessness on the part of SHO. The SHO did not bother to initiate legal action on the complaint. This shows deliberate inaction on the part of Inspr. Raj Singh, SHO/Bawana. He has been advised by the undersigned many times to perform his official duty in proper manner but he took the directions of the undersigned in a very casual way and it appears that he is not ready to mend his ways. Criminals are getting emboldened by such delayed action in sensitive cases.
The Inspector has submitted his reply of SCN. In his reply he has contended that two complaints were received on
21.11.10 one by Narneder s/o Ram Karan r/o Village Bandh PS Ishrana Distt. Panipat, Haryana and the second from Ashawani Jain s/o Sh. M.K. Jain, Prop. Kamdhenu Enterprises. Both the complaints were against one Amit Jain s/o Sh. S.K. Jain and the allegations in both the complaints are of similar nature i.e. pertaining to offences of misappropriation of cheating and breach of trust. Place of occurrence in both the complaints was also the same i.e. the shop cum office of Sh. Ashwani Jain at Plot No.898, Main Bawana Road, Pooth Khurd, Delhi. The complainants i.e. Narender and Ashwani Jain and the alleged Amit Jain were connected/related to each other. Ashwani Jain and Amit Jain are cousin brother and Narender was having business links with the other two. The contents of the complaints needed preliminary enquiry into the allegations. Keeping 4 OA No.3235/2013 these facts in mind inquiry in both the complaints were conducted and a case FIR No.316/10 u/s 408 IPC PS Bawana was registered against the alleged Amit Jain on the complaint of Narender and allegations levelled by Ashwani Jain were covered by recording his statement u/s 161 Cr.PC in the case. This was with the consent of the senior officers. There was no intention to disobey the senior officers or to spare the alleged Amit Jain from the offences committed by him. However, as per fresh order of senior officers a separate case FIR No.218/11 u/s 408 IPC has been registered against Amit Jain and the investigation is being done on priority basis.
I have carefully gone through the written as well as oral submission put forth by the Inspector which is not found to be satisfactory as he is failed to take prompt legal action on the complaint. His mere plea that contents of the complaints needed preliminary enquiry has no force because the case involved cheating and fraud of huge amount for which a proper case should have been registered promptly but Inspr. Raj Singh, No.D-2489, SHO/Bawana being head of the police station has miserly failed to take legal action on the complaints and same were kept pending without any cogent reason. Therefore, dissatisfied with reply submitted by the Inspector and overall facts and circumstances of the case, the proposed Show Cause Notice issued to Inspr. Raj Singh, No.D-2489, SHO/Bawana is confirmed and his conduct is hereby censured for the above said lapse.
Let a copy of this order be given to him free of cost. He can file an appeal against the order to the Joint C.P./Northern Range, Delhi within 30 days from the date of its receipt non-judicial stamp paper valued 00.75 Paise by enclosing a copy of this order, if he desires."
5. Sequelly, the appeal filed by him was dismissed as well vide impugned order dated 23/26.11.2012 (Anneuxre-3) by the Appellate Authority (AA).
6. Aggrieved thereby, the applicant has preferred the present OA, challenging the impugned SCN and orders passed by DA & AA. He has claimed that the respondents did not appreciate the fact that this case is not a case of misconduct as the FIR was not registered for not abiding by the orders of senior officers (i.e., the then DCP, Outer District). The Disciplinary Authority was pre-determined to inflict the punishment of Censure and calling for his reply 5 OA No.3235/2013 was only an empty formality. The subsequent FIR No.316/2010 under Section 408 IPC was registered on the complaint of Narinder in which statement of Ashwani Jain was recorded by the IO under Section 161 of the Criminal Procedure Code, 1973 (for short "Cr.PC"), during the investigation of the above said case. The Appellate Authority has also rejected the appeal (Annexure-5) of the applicant in a very casual manner.
7. The impugned orders were termed to be cryptic, non- speaking, illegal and against the principles of natural justice. On the basis of the aforesaid grounds, the applicant has sought quashing of the impugned SCN and orders of DA & AA in the manner indicated hereinabove.
8. The contesting respondents refuted the claim of the applicant and filed the reply, acknowledging the factual matrix. However, on merits, it was pleaded that the complaint filed by complainant Ashwani Jain S/o Shri M.K. Jain remained pending in the Police Station for a long period of more than 7 months pertaining to commission of a cognizable offence. In this matter of cheating and fraud of huge amount, a proper FIR should have been promptly registered and investigated by the applicant.
9. According to the respondents, thus there is a deliberate inaction on his part. He had been advised by DCP (OD) many times to perform his official duty in a proper manner but he did not pay heed to the advice and took the 6 OA No.3235/2013 directions of the superior officers, in a very casual manner and did not mend his ways. The criminals were getting emboldened by delayed action in such sensitive cases. The respondents claimed that it was duty of the applicant to immediately register FIR and to investigate the case of cognizable offences of cheating and fraud.
10. Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that virtually reiterating the validity of the SCN and impugned orders, the respondents have stoutly denied all the allegations contained in the OA and prayed for its dismissal.
11. Controverting the pleading in the reply filed by the respondents and reiterating the grounds contained in the OA, the applicant filed his rejoinder. That is how we are seized of the matter.
12. Having heard the learned counsel for the parties and after going through the record with their valuable help, we are of the firm view that there is no merit in the instant OA and the same deserves to be dismissed for the reasons mentioned herein below.
13. As indicated hereinabove, the facts of the case are neither intricate nor much disputed. The core controversy that arises for determination at this stage is, as to whether the action of the applicant in not registering an FIR for a 7 OA No.3235/2013 period of 7 months in a criminal case of cognizable offence was justified, and amounts to misconduct or not.
14. Having regards to the rival contentions of the learned counsel for the parties, we are of the considered opinion that the answer must obviously be in the negative.
15. Ex-facie, the argument of the learned counsel for the applicant that since another criminal case, on the complaint of Narinder, was registered in which the statement of Ashwani Jain was recorded under Section 161 Cr.PC, and hence applicant was not required to register another case on the complaint of complainant Ashwani Jain, is not only devoid of merit but misplaced as well.
16. As is evident from the records that complainant Ashwani Jain S/o Shri M.K. Jain, Proprietor Kamdhenu Enterprises had submitted a complaint containing specific allegation with regard to cheating and misappropriation of amount to the tune of Rs. 5 lac by accused Amit Jain S/o Shri S.K. Jain. The complaint was duly received vide DD No.38-B dated 21.11.2010 in the Police Station. It is not a matter of dispute that the allegations contained in the indicated complaint, indeed constitute offences of cheating, fraud, theft and misappropriation of amount of Rs.5 lac which are cognizable and non-bailable offences, as per Schedule-I of Cr.PC, committed within the jurisdiction of Police Station, Bawana, under the direct supervision and 8 OA No.3235/2013 control of applicant, who was posted as SHO there at the relevant time.
17. In that eventuality, it was his statutory duty to promptly register and investigate the criminal case against the accused. In such cognizable and non-bailable offences, the police has been given the power to arrest the accused without any warrant as envisaged under Section 41 of Cr.PC.
18. Not only that, Section 154 of Cr.PC posits that every information relating to the commission of a cognizable offence, to an officer in charge of a Police Station, shall be reduced to writing by him or under his direction. Then the SHO is required to promptly register an FIR and to investigate the case. According to Section 156, any officer incharge of the Police Station may, without the order of the Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of his Police Station would have power to enquire into or try under the provisions of Chapter XIII. Sub-section (2) provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer shall not empowered to investigate under this section.
19. Meaning thereby, it was obligatory and mandatory on the part of the applicant to, immediately register an FIR and 9 OA No.3235/2013 then to investigate the cognizable case of cheating, theft and misappropriation of huge amount of Rs.5 lac.
20. The mere fact that another case has been registered against the accused on a complaint of some other complainant Narinder, ipso facto, is not a ground, much less a cogent ground to exonerate the applicant, for not registering a criminal case in a cognizable offence, for a period of 7 months in this case, on the complaint of complainant Ashwani Jain, as urged on his behalf. As soon as independent complaint of complainant Ashwani Jain constituting the independent cognizable and non-bailable offence of cheating, fraud and misappropriation of an amount of Rs. 5 lac was received, the applicant being the SHO, was required to promptly register and investigate the case in terms of Section 154 and 156 of Cr.PC. He has miserably failed to do so.
21. The next argument of the learned counsel for the applicant that the indicated inaction of the applicant, will not constitute any misconduct on his part, warranting disciplinary proceeding, is again neither tenable nor the observations of this Tribunal in the case of Inspector Videndra Pal Vs. Govt. of NCT of Delhi and Others in OA No.4125/2013 decided on 23.02.2015, are at all applicable to the facts of the present case, wherein while inflicting the penalty, the Disciplinary Authority was obsessed with the feeling that the applicant was guilty of not curbing the crime, 10 OA No.3235/2013 not formulated the strategy to control the crime and deliberately avoided the registration of MV theft case on the peculiar facts and in the special circumstances of the case. It was observed that when these were not the allegations levelled against (therein) in the show cause notice, then he could not have been punished for such action which was not part of the show cause notice.
22. There can hardly be any dispute with regard to the aforesaid observations but the same would not come to the aid of the applicant because at the same time it was also held (therein) that "As far as the plea of no misconduct raised on behalf of applicant is concerned, we are of the considered view that the delay in registration of FIR cannot be considered as an innocent mistake constituting no misconduct". Thus this argument of the learned counsel for the applicant has no merit.
23. The last feeble argument of the learned counsel, that applicant did not register the case on the complaint of complainant Ahwani Jain on the advice of his superior, has no force and deserves to be rejected on more than one ground. At the first instance, no cogent material is forthcoming on record, even to suggest remotely as to how, when, by whom and in what manner he was ever prevented to register the indicated case. Secondly, the undated certificate (Annexure A-6) purported to have been issued by ACP (Special Branch) [authenticity of which is very doubtful] 11 OA No.3235/2013 will not advance the cause of the applicant. Assuming for the sake of argument that Annexure A-6 is genuine, even then it will not help the applicant in any manner because it is only described therein that the SHO, Bawana, got conducted a preliminary enquiry into the complaint, with the prior approval of the then DCP, Outer District, and a case under FIR 316/10 under Section 408 IPC was registered on the complaint of another complainant Narinder. It is neither here nor there.
24. Be that as it may, it is nowhere mentioned that the applicant was prevented by any superior officer to register independent criminal case, in the wake of independent complaint of complainant Ashwanit Jain. Hence, the contrary argument of learned counsel for applicant "stricto- sensu" deserve to be and are hereby repelled given the facts and circumstances of the case.
25. Therefore, the Disciplinary Authority has rightly Censured the conduct of the applicant and the Appellate Authority has recorded valid reasons to dismiss his appeal. The Disciplinary as well as Appellate authorities have recorded cogent reasons and examined the matter in the right perspective. We do not find any illegality, irregularity or any perversity in the impugned orders. Hence, no interference is warranted by this Tribunal.
26. No other point, worth consideration, has been urged or pressed by learned counsel for the parties. 12 OA No.3235/2013
27. In the light of the aforesaid reasons and thus seen from any angle, there is no merit and hence the OA deserves to be and is hereby dismissed in the obtaining circumstances of the case. No costs.
(K.N. SHRIVASTAVA) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
Rakesh