Central Administrative Tribunal - Delhi
Ct. Suresh Kumar vs Gnct Of Delhi on 21 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1938/2014 Order Reserved on: 30.05.2014 Order Pronounced on: 21.07.2014 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Ct. Suresh Kumar s/o Shri Virender Singh r/o Village Dhakla, PS, Jhajjar, District Jhajjar, Haryana. -Applicant (By Advocate: Shri Sourabh Ahuja) Versus 1. GNCT of Delhi Through Commissioner of Police Police Head Quarters, I.P. Estate, MSO Building, New Delhi. 2. Additional Commissioner of Police Traffic, Delhi Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. 3. Deputy Commissioner of Police Traffic (VIP), Delhi Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. -Respondents O R D E R Mr. Sudhir Kumar, Member (A):
This case was argued by the learned counsel for the applicant for about an hour at the admission stage itself on 30.05.2014, i.e. the last working day before the vacation, and thereafter very detailed written arguments and submissions were handed over by the learned counsel to the Court Clerk on 03.06.2014 after mentioning regarding the same before the Vacation Bench, which have now been placed in the records. As a result, it is not possible to write a short order, as is the usual practice in the cases of orders reserved at admission stage of a case.
2. The applicant was a Constable (Exe.) in Delhi Police, and was undergoing a Drill Instructor Course at Police Training College (PTC), Jharoda Kalan, Delhi, in the year 2011. As per the impugned Annexure A-1 (page-27 of the OA), when ASI Rajesh was on patrolling duty in village Kasni on 06.07.2011, one Smt. Anita Devi, wife of Shri Pradeep Kumar, R/o Village Dhakla, Distt. Jhajjar, Haryana, had handed over to him a complaint that when her husband, a Driver by profession, was away on 01.07.2011, and she was at her home in the night along with her mother-in-law and two children, and there was no light in their house, the applicant had entered her house, and overpowered her by pressing her mouth by hand, and, thereafter, raped her on knife point. When she could raise an alarm, her mother-in-law came downstairs from the terrace where she was sleeping, and tried to catch the applicant, but he ran away after pushing her aside, and threatening both of them of dire consequences. After her husband returned, the lady narrated the story to him, and it culminated into the complaint being handed over to the ASI who came on patrolling duty to their village, resulting in a case in FIR No.385 dated 06.07.2011 being registered at Police Station, Jhajjar u/s 376/451/506 of IPC. The applicant was arrested on 07.07.2011, and was remanded to judicial custody on 08.07.2011, and, much later, the Departmental Enquiry (DE) against him was instituted through impugned Annexure-1 dated 16.06.2012, on the ground that the applicants act of forcefully raping a woman was tantamount to grave misconduct, and conduct unbecoming of a police officer, which had rendered him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 [DP (PA) Rules, in short].
3. The Enquiry Officer served upon the applicant a Summary of Allegations vide Annexure-5 (colly), giving the list of witnesses, and the list of documents through which the charges were sought to be proved. After completing the DE, he submitted his findings of the enquiry through a detailed report (pages 29 to 42 of the OA), which was forwarded for being served upon the applicant against proper receipt through the forwarding Memorandum dated 27.02.2013 (Annexure A-2). The applicant represented against the report of enquiry before the Disciplinary Authority on 15.03.2013, whereupon the Disciplinary Authority passed the second impugned order dated 16.04.2013 at Annexure A-3. The applicant submitted an appeal Memorandum against the order dated 16.04.2013, but the order of the Appellate Authority dated 27.12.2013 also went against him, and has been filed at Annexure-4.
4. In the criminal case instituted against the applicant, the Charge-Sheet was filed on 16.09.2011, and the judgment dated 02.11.2012 was rendered by the Court of the Learned Additional Session Judge, Jhajjar, vide Annexure-6, by holding as follows, acquitting the applicant before us, since the complainant/prosecutrix herself had in the meanwhile expired on 28.08.2011, and the deceased complainants mother-in-law, i.e., PW-1, and husband, PW-2, turned hostile in their deposition before the Court, and failed to support the case of the prosecution as per their original statements made during the investigation of the case :-
9. Complainant/prosecutrix could not be examined by the prosecution due to her death on 28.08.2011. Entire prosecution story is revolving over the statement of Nirmala (PW1), who was the eye-witness of the prosecution case, but she failed to support the prosecution on entering the witness-box. She has gone deposing that on 01.07.2011 she alongwith her two grand-sons was sleeping on the roof of her house. On that day notning (sic. nothing) had happened in her presence. Accused Suresh present in the court never committed rape with her daughter-in-law and he had not committed any crime against her daughter-in-law. The witness was declared hostile at the request of learned Public Prosecutor. In cross-examination conducted by learned Public Prosecutor, PW1 denied making statement Exh.PW1/A and whispered not even a single word against accused person.
9. PW2 Pardeep, husband of the prosecutrix, was cited as the prosecution witness to support Nirmala, PW1, but like Nirmala he also turned hostile and failed to support the prosecution. PW3 to PW13 are the official witnesses to prove formal steps of the investigation.
10. The hostile attitude of both the material prosecution witnesses is the testimonial of glaring fact that there is not even a solitary word implicating the accused person. Therefore, the inevitable conclusion is that not even a shred of evidence is available on the file to bring home guilt against the accused person and he desarve (sic. deserves) exoneration.
11. For the foregoing reasons and in the light of the cumulative effect of the circumstances, it is abundantly clear that the prosecution has woefully failed to bring home the guilt under Sections 452/376 and 506 of Indian Penal Code against the accused person beyond the pale of reasonable doubt. Resultantly, the accused person stands acquitted of the charges leveled against him. Bail-bonds & surety-bond executed by him stand discharged. File be consigned to record room, after due compliance.
sd/-
Announced. (Jasbir Singh Kundu)
02.11.2012 Additional Sessions Judge,
Jhajjar.
5. The applicant has filed a copy of the Charge in the DE dated 24.11.2012 at Annexure-8. Thereafter, an undated copy of the written defence statement filed by the applicant before the Enquiry Officer has been produced at Annexure-9, which was filed by him in response to the Charge dated 24.11.2012. Copies of the statements of Defence Witnesses have been filed at Annexure-10 (colly), and their rough English Translation filed at pages 74 to 80 of the OA.
6. During his detailed arguments on the point of admission, learned counsel for the applicant had heavily relied upon the earlier judgment of this Tribunal in OA No.2827/2003 ASI Sher Singh vs. Govt. of NCT of Delhi & Ors., relying specifically upon Para-8 of that judgment, in which the Bench had held that the Enquiry Officer had, instead of seeking clarifications, perhaps cross-examined the witnesses, and had thereafter not permitted the delinquent a further right to cross-examine the witnesses. To our mind, that judgment and order dated 07.07.2004 of the Tribunal is not relevant for the present case, because in the case before us there are two sets of evidences, one set that was led before the Criminal Trial through the 13 Prosecution Witnesses, and the second set being the statements of the two Defence Witnesses produced by the applicant himself in the DE, whose statements have been reproduced at pages 70 to 73 of the OA, and the questions asked by the Enquiry Officer from them are prima facie not in the nature of cross-examination, and they also do not disclose any denial of a right to the applicant to lead his own defence evidence, since he did not require to cross-examination his own Defence Witnesses. Therefore, the judgment in OA No.2827/2003 ASI Sher Singh (supra) is not applicable to the facts of this case.
7. Learned counsel for the applicant had also in his arguments relied heavily upon the judgment of the Honble Delhi High Court in WP (C) 3466/2010 Commissioner of Police and Ors. vs. Bikram Singh, in which also it is seen that in Para-7 the Honble Delhi High Court had found that while recording the examination of PW-1 and PW-2, the Enquiry Officer has asked a number of questions regarding issuance of threat and demand of money by the delinquent, which were held by the Honble Delhi High Court to come within the realm of cross-examination, and the Honble High Court had then gone on to hold, like the Tribunal had held in the above cited case of ASI Sher Singh (supra), that while the Enquiry Officer in the DP (PA) Rules does have a right to ask clarificatory questions, but he cannot cross-examine the witnesses, and that also without permitting the charged official a further right to cross-examine the witnesses. The Honble High Court had held that the conduct of the Enquiry Officer had caused a serious prejudice to the case of the delinquent/respondent, and had upheld the Tribunals conclusion that the enquiry report cannot be sustained, because it suffers from basic procedural flaws, and is violative of not only the principles of natural justice, but also of the prescribed DP(PA) Rules and the law.
8. The applicants own submissions in his defence are available on record in the form of Annexure-9, being the written defence statement submitted by him before the Enquiry Officer, Annexure-12 being the representation filed before the Disciplinary Authority against the findings of the Enquiry Officer conveyed to him, from pages 91 to 109 of the OA, both of which have been considered and commented upon by the Enquiry Officer and the Disciplinary Authority respectively in their orders already. Appeal against the impugned order of dismissal from service filed by the applicant is at Annexure-14.
9. The applicant has also filed at Annexure-13, a copy of the Delhi High Courts judgment in WP (C) No.22584/2005 Commissioner of Police, Delhi vs. H.C. Laxmi Chand, and the learned counsel for the applicant had, during his detailed arguments, particularly relied upon the portions of Para-36 of this judgment, which states as follows:-
36. The next plea raised on behalf of the petitioner for reopening the departmental proceedings against the respondent was on the ground that the two witnesses who had turned hostile were won over by the respondent. There is no presumption in law that if a witness has turned hostile, he/she has been won over by the accused. In W.P.C.623/2009, titled as Govt. of NCT of Delhi and Others v. Jag Saran? decided on 25th May, 2005, it was held that the accused cannot be saddled with the WP(C) 22584 of 2005 Page 33 of 36 liability of the prosecution witness turning hostile, nor it can be assumed that the accused won over the said witness unless there are cogent facts and circumstances on the basis of which such inferences can be drawn. In Manu/DE/2455/2009, Govt. of NCT of Delhi v. ASI Karan Singh, the accused was acquitted on account of lack of evidence in support of charges of rape against him as all the witnesses including the prosecutrix had not supported the prosecution case. The Disciplinary Authority, however, invoking the Rule 12 (b) of the Delhi Police (P&A) Rules, 1980 initiated the departmental proceeding on the premise that the witnesses had been won over by the accused. The High Court had held that there was no finding recorded by the criminal Court that the witnesses who had turned hostile had been won over by the accused nor was there any material before the Disciplinary Authority to come to the conclusion that the witnesses had been won over by the accused so as to invoke Rule 12 (b) of the Delhi Police (P&A) Rules, 1980 and in the circumstances, the disciplinary proceedings against the accused were quashed. In Khurshid Ahmad (Supra) the prosecutrix had turned hostile and refused to identify the charged officer and the other persons, who had allegedly sexually assaulted her. The prosecutrix who had turned hostile was cross examined by public prosecutor. The Court had held that normally the witnesses which are won over are given up by the prosecution and not produced in the Court; and a witness who is produced in the Court but does not support the case of the prosecution, is termed as a hostile witness?. The law permits such witness to be asked questions by the party producing him which are generally put by the opposing party. The evidence of a witness who has turned hostile cannot be discarded in its entirety merely on the ground that the witness turned hostile. The evidence of a hostile witness can still be relied upon, if otherwise found trustworthy. Therefore, a witness who turns hostile cannot be termed as a witness who has been won over. It was further held that such a witness is a witness who suppresses the truth and to elicit the truth, an opportunity is given to the opposing party to address questions in the nature of cross examination. Therefore, merely because a witness has turned hostile it does not lead to an inference that he had been won over by the opposing party unless there is finding to that effect by the competent Court or some other material to establish that fact. The order of the petitioners in the circumstances that the witnesses who had turned hostile had been won over cannot be sustained.
(Emphasis supplied).
10. The grounds taken by the applicant in the OA are as follows:-
a) That the allegation/complaint made against him is false, incorrect and misconceived.
b) That the DE was initiated against him by an authority not having jurisdiction/disciplinary control over him, as at the concerned time he was under the disciplinary control of Principal, Police Training College, Jharoda Kalan, Delhi, and as per Rule-14 (4) of DP(PA) Rules, 1980, only the Principal of the PTC could have initiated a departmental proceedings against the applicant.
c) That the applicant has already been acquitted in the criminal case on merits after a full fledged trial, and, therefore, his case does not fall in either of the 5 exceptions mentioned/referred to in Rule-12 of DP(PA) Rules, 1980.
d) That the said Rule prohibits punishment by the department on the same charge, or on a different charge, upon the evidence cited in the criminal case, whether actually led or not.
e) That the Disciplinary Authority had not applied his mind, and had not indicated that his case falls under any of the five exceptions, as laid down under Rule-12 of the DP(PA) Rules, 1980.
f) That the respondents have not appreciated that after his acquittal from the criminal case, it is incumbent upon them to apply their mind under Rule-12 (supra) before initiating/re-opening any DE proceedings to ensure that the said Rule-12 (supra) is not eclipsed.
g) That the respondents had failed to appreciate the evidence of PW-2, and the Enquiry Officer has given his report on the basis of surmises and conjectures, and has inferred without any evidence, which conclusions of the Enquiry Officer are illegal, in violation of principles of natural justice, perverse, and without application of mind.
h) That the respondents were from the very beginning pre-determined to inflict the punishment on the applicant, and the conduct of an enquiry against him was a mere eye-wash.
i) That even during the DE, the relatives of the complainant/prosecutrix, who appeared as PW-4 & 5, did not support the case of the prosecution, and even the Enquiry Officer did not ask any clarifications from them, thereby admitting their submissions to be true and correct.
j) That despite there being no evidence against him, the charge was framed against the applicant, which was in violation of Rule-16 (iv) of the said DP(PA) Rules, 1980.
k) That the applicant was not afforded an opportunity to re-examine his defence witnesses, which is in violation of the law as laid down by this Tribunal in Sher Singhs case (supra) and by the Honble Delhi High Court in Bikram Singhs case (supra).
l) That the Enquiry officer has in a manner sat as an Appellate Court over the judgment passed by the criminal Court, through which the applicant has been acquitted and discharged, and only on the basis of suspicion, the Enquiry Officer has recorded that the relatives of the prosecutrix had either been won over by the delinquent applicant, or they have been coerced/pressurized, or there was a likelihood that the applicant has exerted social, community influence on relatives of prosecutrix to force them to make hostile statements, and that the Enquiry Officer failed to appreciate that it is settled law that if the applicant had actually won over the witnesses, then it ought to have been subject matter of the second enquiry against him.
m) That the respondents have failed to appreciate that a statement made u/s 164 of the Cr. PC can be used only either to impeach the credit of a witness, or to corroborate his subsequent statement, and can never be used as substantive evidence of the facts stated, or to support or challenge the evidence given by the same person, who made that statement, while giving his evidence before the Court.
n) That the respondents have failed to appreciate that there can be no corroboration by means of presumption, and a statement recorded u/s 164 of CrPC cannot be substituted as evidence of a witness, and the respondents have wrongly brought on record the statement of the prosecutrix recorded u/s 164 of CrPC and have relied upon the same without adhering to mandatory provisions of Rule-16 (iii).
o) That the respondents and the Enquiry officer have shifted the burden of proof on the applicant, which is in violation of law as laid down by the Honble Apex Court in the case of M.V. Bijlani vs. Union of India & Ors. 2006 (3) SLR 105.
p) That the respondents have failed to appreciate that it is the prosecution, which have to prove the charges against the delinquent official in the criminal case, on the basis of evidence brought on record, and that the applicant cannot be indicted on account of registration of an FIR against him, and on the basis of gravity of the sections of the charge leveled against him, and that the respondents have ignored the defence of the applicant, and the evidence which points out towards his innocence has been ignored.
q) That the respondents had proceeded on the basis of surmises and conjectures inflicted the major penalty upon the applicant and have even treated the period of suspension as period not spent on duty; and in doing so, the respondents have also violated Rule-8 & Rule-10 of DP(PA) Rules, 1980.
r) That the respondents have failed to appreciate that the Honble Apex Court had in Union of India vs. Sardar Bahadur 1972 (4) SCC 618 held that standard of proof can be applied only after the basic facts are proved, and when the basic facts were not proved, there is no question of weighing the preponderance of probabilities, and, therefore, the case against him will fall in the category of No evidence.
s) That the Appellate Authority had neither considered nor applied its mind to the facts and legal points raised in the appeal, and had mechanically endorse the perverse and untenable reasoning given by the Disciplinary Authority, by passing a non-speaking and cryptic order, and the order passed by the Appellate Authority is also based on surmises and conjectures, and is bad in law, and he had taken extraneous material into consideration while rejecting the appeal of the applicant, and on this ground alone the impugned orders are liable to be quashed and set aside.
t) That the respondents did not appreciate that the present case is of no misconduct and no evidence, and that their orders are even otherwise illegal and liable to be set at naught at its threshold.
11. Most of these grounds were laboriously covered by the learned counsel for the applicant while making his detailed submissions regarding admission of the case, because of which they have been recounted in detail above. Even in his written submissions also filed during vacation, the learned counsel for the applicant had again reiterated these grounds, and had further mentioned supportive case law also.
12. In respect of the Point-1 of the written submissions, that there has been violation of Rule-14 (4) of the DP(PA) Rules, 1980, and only the Principal, PTC, Jharoda Kalan could have initiated a Departmental Enquiry against the applicant, he has cited the case of Ex. Ct. Nagraj vs. Union of India & Ors. in OA-125/2004 decided on 19.01.2011. We have gone through the details of that case. That case related to a case of transfer and the transferee, instead of assuming his duty at the new place of his posting, absenting himself unauthorizedly and willfully, and absentee notice having been issued at his home address. The matter had been referred by the Division Bench of the Tribunal to a Full Bench for deciding the issue as to in such circumstances which authority would be competent under the DP(PA) Rules, 1980, to initiate disciplinary action against a police officer who has been transferred and relieved from a post/station, but has not joined on the new post/station, and disciplinary action has to be initiated during this interregnum period. In that context, the Full Bench had decided that the Transferee Departmental, Authority alone can act as the Disciplinary Authority. That Full Bench decision was thereafter followed while deciding the OA No.125/2005 on 19.01.2011. Here, in the instant case, it is not the case of a transfer. The applicant was on training, but he was charged with an offence, arrested and sent to judicial custody. When he was in judicial custody, it was not a case of unauthorized absence after transfer, and, therefore, the case of the present applicant is not on all fours with the case of Ex. Const. Nagraj (supra), and there has been no violation of Rule-14 (4) of DP(PA) Rules, 1980.
13. The Point No.2 in the written submissions is that the respondents have failed to mention as to which of the five exceptional circumstances provided for in Rule-12 of the DP(PA) Rules, 1980, has been invoked for initiating the disciplinary proceedings against the applicant, who has been acquitted by the criminal trial for the same charge. In support of his contention the learned counsel for the applicant has cited the judgments in the cases of Commissioner of Police vs. HC Laxmi Chand (supra), and Ombeeri vs. Union of India in OA No.3168/2012 decided on 02.04.2014 by this very Bench. We are not convinced with the submission of the learned counsel for the applicant in this regard.
14. The 3rd point in the written submissions made by the learned counsel is that the Enquiry Officer had not cross-examined PW-2. This submission is sought to be made by the counsel on the strength of the Honble Delhi High Courts judgment in GNCT of Delhi vs. ASI Rambir Singh in WP (C) No.7680/2010 dated 18.12.2012. However, the departmental proceedings being in respect of the Summary of Allegations, and the Charge relating only to the grave misconduct, misusing of official position, and conduct unbecoming of a police officer, which had rendered the applicant liable for punishment under the provisions of DP(PA) Rules, 1980, we have to abide by the law laid down by the Honble Apex Court that the departmental authorities alone are the best judges of facts, and that the Courts and Tribunals cannot enter into the realm of re-appreciation of facts, as has been held in the case of GNCT of Delhi vs. ASI Rambir Singh (supra).
15. The 4th point submitted in the written submissions is that the Enquiry officer has neither cross-examined PW-2, nor sought any clarifications from him with regard to the inferences drawn by him, and, therefore, it can be safely deduced that the statement of PW-2 was admitted to be correct, and the respondents were pre-determined from the very beginning to inflict the punishment upon the applicant citing the case of M.V. Bijlani (supra). However, when a Prosecution Witness is questioned in general by the Enquiry Officer, the delinquent ought to be later on given the full opportunity of cross-examination, after the questions have been put to the Prosecution Witness by the Enquiry officer. It is further reiterated that such questions put by the Enquiry Officer cannot be in the nature of cross-examination, as has been held in the cases cited above already. In this context it has to be best left to the wisdom of the Enquiry Officer, as to what questions arise in his mind at the time of the enquiry, after the Examination-in-Chief, and then if he so desires he can ask those questions in general, which are not in the nature of cross-examination, and then leave it for the delinquent to cross-examine the Prosecution Witness concerned. The delinquent need not cross-examine his Defence Witnesses whose Examination-in-Chief itself is in his favour. As already mentioned above, in the present DE, the Defence Witnesses alone have been asked questions by the Enquiry Officer, that too not in the nature of cross-examination, and there is no question of the delinquent official having been denied any opportunity to cross-examine his own Defence Witnesses, as his need to cross-examine would have accrued only if the witnesses were Prosecution Witnesses, and, therefore, the Honble Delhi High Courts judgment in the case of Commissioner of Police and Ors. vs. Bikram Singh (supra) is also not applicable to the facts of the present case. Therefore, we do not find that the ratio as laid down by the Honble Apex Court in M.V. Bijlani (supra) is also in any manner attracted to the present case.
16. In Point No.5 of the written submissions it has been submitted that the Enquiry Officer has shifted the burden of proof upon the applicant, which is against the law as laid down in the case of M.V. Bijlani (supra). However, from a careful reading of the evidence led before the Enquiry Officer, and of the appreciation of evidence by him in his findings, we do not find that the Enquiry Officer has in any manner shifted the burden of proof upon the applicant, and this contention is, therefore, rejected.
17. Point No.6 of the written submissions relates to the two Defence Witnesses, whose main Examination-in-Chief itself was in favour of the applicant, and who were thereafter only generally questioned by the Enquiry officer. There is no question of denying the applicant an opportunity of cross-examination of the Defence Witnesses, or to re-examine them, since their main Examination-in-Chief itself was in support of the applicant, as has been mentioned above already, and laid down in ASI Sher Singhs case (supra) and in Bikram Singhs case (supra).
18. Point No.7 of the written submissions states that during the Departmental Enquiry, the relatives of the prosecutrix (PW-4 & 5) had not supported the case of the prosecution and in spite of their being no evidence, the charge was framed against the applicant. It may be mentioned here that in taking his grounds and making his submissions, the applicant has no where conceded the point that the complainant/prosecutrix was no more and could not have been brought as a prosecution witness. Both in the OA, as well as in the written submissions, the applicant has failed to mention the point that the complainant/prosecutrix herself had expired soon after the incident. Thereafter, if during the criminal trial, and during the DE, the relatives of the deceased complainant/prosecutrix had not come out fully in support of the case of the prosecution, that itself cannot absolve the applicant in respect of the charges regarding his misconduct, and misusing of his official position, and conduct unbecoming of a police officer, in respect of which the DE had been established. Therefore, the judgment of the Honble Delhi High Court in GNCT of Delhi Vs. ASI Rambir Singh (supra) is not applicable in the instant case. The statement of prosecutrix u/s 164 of CrPC was sufficient to substantiate the charge.
19. Point No.8 mentioned in the written submissions was that the respondents have gone ahead on the basis of the suspicion recorded that the relatives of the deceased complainant/ prosecutrix had either been won over, or they had been coerced/pressurized etc. It appears that the official respondents cannot be faulted for having taken such a view, specifically in view of the judgment of learned Additional Sessions Judge, Jhajjar, already reproduced above, in which it is seen that even the mother-in-law of the deceased complainant/prosecutrix (who had died on 28.08.2011 within two months of the reported incident) had turned hostile, and was declared as a hostile witness, and even her husband PW-2 had also turned hostile, and had failed to support the case of the prosecution. In view of this, the learned Additional Sessions Judge had come to an inevitable conclusion that evidence was not available on file to bring home the guilt against the accused person because of which he deserves exoneration and was acquitted of the charges leveled against him. But the Honble Apex Court has held in the case of Commissioner of Police, New Delhi and Anr. Vs. Mehar Singh (2013) 7 SCC 685, and in the case of State of West Bengal & Ors. vs. Sankar Ghosh (2014) 3 SCC 610, that police force needs to be kept free of undesirable elements. In view of the observations of the Honble Apex Court, that even after acquittal from the Criminal Case of a delinquent police official, in the interests of society, the Police Authorities would be within their rights to deny appointment to or to dismiss appointees. Therefore, the conclusion arrived at by the respondents in the instant case that the witnesses had turned hostile, flowed from the very judgment of the Learned Additional Sessions Judge, Jhajjar, dated 02.11.2012, and they cannot be faulted for having taken such a stand.
20. The 9th and 10th points mentioned in his written submissions by the learned counsel for the applicant was reiteration of the ground that a statement recorded u/s 164 of Cr. PC can be used only either to impeach the credit of a witness, or to corroborate the subsequent statement made in the Court, and it can never be used as substantive evidence of the facts stated, but it can only be used to support or challenge the evidence given in the Trial Court by the person who had made the statement. However, the applicants counsel had failed to mention that the statement u/s 164 of Cr. PC concerned here was that of the deceased complainant/prosecutrix, who had been raped, and who had thereafter expired on 28.08.2011, within two months of the incident of rape reported by her. She was not available to give evidence both during the course of the criminal trial, as well as during the disciplinary proceedings and therefore, as has been held by the Honble Apex Court in numerous cases arising from criminal jurisprudence, after the death of the person who has recorded a statement u/s 164 of Cr.P.C., that statement can certainly be used as a substantive statement before the Magistrate concerned, as it acquires the colour and hues in the nature of a dying declaration. We need not cite the numerous case law on this point. However, in Pacha Devendra Rao vs. State of Andhra Pradesh: 1986(3) Crimes 536, it was held by the Honble Andhra Pradesh High Court that the statement made u/s 164 Cr.P.C. is a judicial proceeding, as the procedure of recording statement under this section has all the trappings of recording evidence in the Court. In the instant case before us, it was unfortunate that the Learned Additional Sessions Judge, Jhajjar, did not accord due weightage to the statement of the deceased prosecutrix u/s 164 of Cr.P.C. in the Criminal Trial.
21. Because the statement of deceased complainant/ prosecutrix recorded u/s 164 of Cr. P.C could not have been reiterated by her during the inquiry, the respondents were fully within their rights to consider its contents, and to bring it on record during the departmental proceedings, and they cannot be held to have violated Rule 8 read with Rule 10 of DP(PA) Rules, 1980, though in support of his contentions, the learned counsel had cited the judgment of Honble Allahabad High Court in Abdul Hakum Vs. The State (1957) Cr. LJ 117 and of the Honble Apex Court in Sukhbir Singh Vs. DCP New Delhi, 1984 (2) SLR 149. It is seen that the Enquiry Officer had specifically recorded in his report in this regard as follows:-
Main PW Smt. Anita could not be examined due to her death on 28.08.2011. But her statements u/s 164 CrPC recorded by Honble Court of Ms. Rachna Gupta, JMIC, Jhajjar is on record which corroborated her earlier statement/complaint made to PW7 ASI Rajesh Kumar on which the case was registered. It is also pertinent to mention that statement u/s 164 CrPC is made voluntarily by the victim out of her own sweet will and without any coercion of pressure. Therefore, the statement of main PW Smt. Anita made u/s 164 CrpC before her death, is very important in this enquiry and holds the sanctity of a dying declaration. In the statement of deceased victim Smt. Anita made u/s 164 CrPC, she has very specifically pointed out that Suresh @ Bittoo (Constable Suresh Kumar No. 2902/T) has raped her forcefully on the point of knife against her will and under threat to her life.
22. Points 12 and 13 of the written submissions were that when the basic facts itself are not proved, preponderance of probabilities cannot be weighed, and the case will fall in the category of No Evidence, and that the Appellate Authority has neither considered nor applied its mind to the facts of the legal points raised in the appeal, and that the Appellate Authority has taken extraneous material into consideration while rejecting his appeal. In that context, the learned counsel has cited the case of Roop Singh Negi Vs. UOI (2009) 2 SCC 570 . However, it is seen that in the instant case, the Appellate Authority has considered the evidence available before him in sufficient detail, and the cited judgment does not get attracted to the instant case.
23. In point No. 14 of the written submissions, the learned counsel for the applicant has submitted that it is settled law that it is not safe to convict the accused person merely on evidence furnished by a dying declaration, and in support of his contentions, he has cited the case of Ram Nath Madhoprasad Vs. State of Madhya Pradesh AIR 1953 SC 420 . Here it is not the case that the applicant has been convicted, but actually the applicant has been acquitted against the criminal charge by the Learned Sessions Judge, Jhajjar, in spite of the availability of the statement u/s 164 of CrPC of the deceased complainant/prosecutrix in the nature of a dying declaration. Therefore, while it is true that it is not safe to convict the accused person in a criminal case merely on evidence furnished by dying declaration, which the learned Trial Court has not done, however, this dictum of law applicable to a criminal trial does not apply to disciplinary proceedings, and the ratio in the case of Ram Nath Madhoprasad (supra) cannot be made applicable to the DE, in which, for seeing the misconduct of, and misusing of the official position, and for arriving at a conclusion regarding a misconduct, and conduct unbecoming of a police officer, a statement recorded u/s 164 of Cr. PC available in the form similar to a dying declaration of the deceased complainant/prosecutrix can certainly be relied upon by the departmental authorities, in order to keep the streams of administration unsullied.
24. Point No.15 of the written submissions is that it is settled law that OA cannot be dismissed summarily, unless this Tribunal comes to a firm conclusion that the claim made by the applicant is frivolous or vexatious.
25. In this particular case, after having heard oral arguments of the learned counsel for the applicant for nearly one hour, and after having perused and recorded the pleadings as made out in the OA, as well as in the written submissions, and having gone through the supporting case-laws, as mentioned in the written submissions, we are of the firm conclusion that the claim as made out by the applicant in the OA is really frivolous and vexatious. The applicants acquittal by the Criminal Court cannot preclude his Disciplinary Authorities in proceeding against him even on the same charge, when both the criminal case and the Disciplinary Enquiry had been initiated simultaneously. In arriving at this conclusion, we are supported by the Honble Apex Courts judgment in State of West Bengal & Ors. vs. Sankar Ghosh (supra), in which it has been held as follows:-
13. We, therefore, notice that both the Disciplinary Authority as well as the Sessions Court were of the view that there are vital evidence on record regarding recovery of money, fire arms and recovery of unused writing pad of Dr. R.P. Mitra, PW3, the SI deposed further that the money was recovered from the house of the respondent so also the motor bike as well as the car. The Sessions Court, however, had to acquit the respondent since Dr. R.P. Mitra could not identify him during the TI Parade. On going through the judgment of the Sessions Court, it cannot be said that the respondent was honourably acquitted.
14. In Deputy Inspector General v. S. Samuthiram [(2013) 1 SCC 598], this Court in paragraph 24, 25 and 26 of the judgment has elaborately examined the meaning and scope of the honourable acquittal and held as follows :-
26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.
15. The judgment of S. Samuthiram (supra) was later followed by another Bench of this Court in Commissioner of Police, New Delhi & Anr. V. Mehar Singh [(2013) 7 SCC 685].
16. We indicate that the respondent could not lay his hand to any rule or regulation applicable to the Police Force stating that once an employee has been acquitted by a Criminal Court, as a matter of right, he should be reinstated in service, despite all the disciplinary proceedings. In otherwise there is no rule of automatic reinstatement on acquittal by a Criminal Court even though the charges levelled against the delinquent before the Enquiry Officer as well as the Criminal Court are the same. On this aspect, reference may be made to para 27 of the judgment in S. Samuthiram (supra), which reads as under:-
27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.
17. Regulation 4 of Chapter 19 of the Police Regulations of Calcutta, 1968, which is applicable to the case in hand, specifically provides that acquittal or discharge in a criminal proceeding shall not be a bar to award punishment in a departmental proceeding in respect of the same cause or matter. The said Regulation is extracted below for easy reference :
4. Discharge or acquittal not a bar to departmental punishment. An order of discharge or acquittal of a Police Officer shall not be a bar to the award of departmental punishment to that officer in respect of the same cause or matter.
18. Above rule indicates that even if there is identity of charges levelled against the respondent before the Criminal Court as well as before the Enquiry Officer, an order of discharge or acquittal of a police officer by a Criminal Court shall not be a bar to the award of the departmental punishment. The Tribunal as well as the High Court have not considered the above-mentioned provision and have committed a mistake in holding that since the respondent was acquitted by a Criminal Court of the same charges, reinstatement was automatic. We find it difficult to support the finding recorded by the Tribunal which was confirmed by the High Court. We, therefore, allow the appeal and set aside the order of the Tribunal, which was affirmed by the High Court. However, there will be no order as to costs.
(Emphasis supplied)
26. Therefore, we hold that it is not a case of no misconduct or no evidence for the applicant, as far as DE is concerned, even though in the criminal case the prosecution witnesses may have turned hostile. Therefore, the OA is dismissed in limine at the admission stage itself.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.