Central Administrative Tribunal - Delhi
Sub-Inspector Kishan Kumar S/O Harsha ... vs Government Of Nct Of Delhi Through on 14 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application NO.1435/2008 This the 14th day of May, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Sub-Inspector Kishan Kumar S/O Harsha Singh, R/O House No.42-A Pocket-H, Dilshad Garden, Delhi. Applicant (By Shri Sachin Chauhan, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 2. Joint Commissioner of Police, Southern Range, through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 3. Deputy Commissioner of Police, South District, through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. Respondents (By Shri R. N. Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Challenge in the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 by Kishan Kumar, Sub-Inspector in Delhi Police, is to the show cause notice dated 21.6.2007, the order passed by the disciplinary authority dated 17.10.2007 vide which the applicant was inflicted the punishment of censure, as also order dated 4.3.2008 whereby the appeal carried against the order aforesaid has been rejected by the appellate authority. Inasmuch as, the contentions raised by the learned counsel representing the applicant emanate from the contents of the show cause notice and the orders passed by the disciplinary and appellate authorities, we may reproduce the same insofar as the same are relevant, thus:
Shri Nanak Chand has made a complaint stating therein that his daughter named Sangeeta aged 17 years was kidnapped on 3.2.2007 and lodged a missing report of his daughter in P.S. Sangam Vihar on 4.2.2007 vide D D No.9B. The D.D. entry was entrusted to S.K. Krishan Kumar, Division Officer for necessary action. Later on 22.2.2007 complainant deposed before the I.O. that he believed that his neighbour amit @ Rinku s/O Satish R/O B-102, J.J. Camp Tigri, Kidnapped his daughter Sangita. Simultaneously a case FIR No.159/07 u/s 363 IPC was registered.
Inquiry conducted by ACP/G.K. revealed that the mother of the accused Smt. Maharani w/o Satish was examined along with other relatives and it was suspected that the accused must have left for his native place in West Bengal. On 10.3.2007 a team led by Head Constable Hari Ram No.4/SD raided the native house in Manik Chowk Nadia District West Bengal. From the clues obtained a further raid was conducted by the same team in Jharkhand and victim was recovered on 24.3.2007 and accused had already fled. The prosecutrix was medically examined on 24.3.2007 and thereafter produced before Sh. Jagdish Kumar MM Patiala House on 29.3.2007. A statement u/s 164 Cr.PC was recorded before Shri Satish Kumar Link M.M. Patiala House on 29.3.2007 wherein the prosecutrix supported the prosecution and the victim was handed over to complainant on the same day. The accused is still at large and not yet arrested. Ms Sangita is a minor girl and within 24 hours of missing DD entry, a case under appropriate section of law should have been registered. S.I. Kirhan Kumar I.O. had delayed the registration of the case without any cogent reason. The above act on the part of the applicant was stated to be amounting to gross misconduct, negligence, carelessness and dereliction in performance of his official duties. The applicant responded to the show cause notice aforesaid vide his reply dated 29.9.2007 and contested the same on variety of grounds. The same was, however, not found to be satisfactory, and the Deputy Commissioner of Police, South District, disciplinary authority, vide order dated 17.10.2007, while confirming the show cause notice, inflicted the applicant with the punishment of censure. Relevant part of the order passed by the disciplinary authority reads, thus:
A copy of show Cause Notice for Censure was served upon the sub-Inspector. Accordingly he submitted his reply in response to the Show Cause Notice. He pleaded that on receipt of the D.D. regarding missing of girl, he flashed the W.T. Message and completed all formalities about missing. He claimed that the efforts were made to trace the girl after raiding several places. On 11.2.07, the complainant had doubt about the boy of his neighbour namely Amits hand in the missing. The mother of the boy and relatives were called in the P.S. for enquiry. The father of the girl was also asked to get the case registered and both parties produce before the SHO. But the complainant do not wants to register the case. The facts were also brought to the knowledge of the SHO. He further claimed that on 22.2.07, he obtained the statement of the complainant and registered the case FIR 159/07 u/s 363 IPC. He has also recovered the girl from West Bengal and after medical examination the girl was produced before Honble Court and recorded the statement u/s 161 Cr.PC. The girl has disclosed the name of Rekha r/o J.J. camp Tigri, who was on anticipatory bail and was also formally arrested. The accused is being declared as P.O. and the case will be disposed off shortly. The plea taken by the Sub-Inspector has been considered but the same is not found to be convincing. Why did the police party go to West Bengal without the registration of the case. The victim is a minor girl and within 24 hours of missing DD. Entry a case under appropriate section should have been registered. The Sub-Inspector has delayed the case, and has shown casual attitude in his performance. Such sort of lapse cannot be tolerated. Hence, the Show Cause Notice for Censure is confirmed and the conduct of Sub-Inspector Kishan Kumar, No.D-872 is hereby censured. Constrained, as mentioned above, the applicant filed an appeal against the order aforesaid, which came to be rejected vide order dated 4.3.2008 passed by the appellate authority, relevant part whereof reads as follows:
I have gone through the appeal and other relevant records. I have also heard the appellant in person on 26.2.08. In his appeal he has stated that on receipt of the DD entry regarding missing of girl, he flashed the WT message and completed all formalities about the missing of girl. On 11.2.07, the Complaint had doubt about the hand of his neighbour namely Amit in the missing. He also talked about the parents of the accused and they assured him that they would bring the girl Sangeeta within 7 or 8 days. The father of the girl was also asked to get the case registered and both parties were produced before the SHO. But the complaint did not want to register the case. The facts were also brought to the knowledge of the SHO. During the personal hearing the appellant stated that the complainant had given in writing that he does not want to register the case as the parent of the accused had assured him that the firl will be brought within 7 or 8 days. When the girl was not produced by the parents of accused within the given time then a case was registered vide FIR No.159/07 under section 363 IPC PS Sangam Vihar. The appellant also recovered the girl from West Bengal and after medical examination the girl was produced before Honble Court and recorded the statement under section 164 Cr.PC.
It is a fact that the appellant has made sincere efforts to trace the girl from West Bengal, but it is not a part of the charge. The punishment was awarded to him on the fact that he registered the case after a considerable delay. The victim was a minor girl and he should have registered the case immediately when her father lodged DD entry on 04.02.2007 but he had delayed the registration of the case and shown casual attitude in his performance. His plea during the personal hearing that the complainant had given in writing that he did not want to register the case is not tenable. As contents have been verified from the complaint, who stated that he did not give any thing in writing. He further stated that the Inquiry Officer had obtained his signatures on blank paper. It may be possible that the Inquiry Officer had written his statement on that paper on his own
2. Basic facts as may emanate from the relevant parts of the orders reproduced above, on the basis of which contentions have been raised by Shri Sachin Chauhan, learned counsel representing the applicant, reveal that the incident of kidnapping had taken place on 3.2.2007. DD No.9-B for missing of the minor girl was recorded on the same day. The complainant, i.e., parents of the girl, by that time had no clue as to whether it was a case of some one kidnapping their daughter. They only made a report of missing of their daughter. In the circumstances as mentioned above, it is not in dispute that only a DD entry could be recorded. It is only on 11.2.2007 that the complainant had a doubt or suspicion that the boy of his neighbour, namely, Amit, might have hand in the missing of his daughter. It is admitted position that on such suspicion shown by the complainant, the mother and other relatives of the boy were called to the police station for enquiry. It is the case of the applicant that the parents of the girl were not interested in getting an FIR registered at that stage, and these facts were brought to the notice of the SHO. It is also the case of the applicant that the parents of the boy had promised that the girl would be brought within 7-8 days, and when it did not happen, the complainant became interested at that stage in getting the case registered against the boy. That happened on 22.2.2007 when FIR No.159/07 u/s 363 IPC was indeed registered. It is then the case of the applicant that he made frantic efforts in recovering the girl, got her recovered and produced her before the Magistrate, where her statement under Section 164 Cr.PC was also recorded. On that count, the appellate authority has appreciated his efforts. It has been clearly mentioned by the appellate authority that the applicant made sincere efforts to trace the girl. The applicant had been found lacking only in not registering the FIR immediately on the occurrence when the minor girl was reported missing. The applicant would not deny non-registration of the FIR, as the parents of the girl were assured by the parents of the accused boy that the girl would be brought to her parental house within 7-8 days. This fact, according to the applicant, was brought to the notice of SHO. There could be a reason for the parents of the girl in not getting the FIR registered immediately, as surely, when such matters become public, lot of problems may arise both for the girl and her parents. The explanation of the applicant has been rejected by the disciplinary authority on the only ground that how could the police party have gone to West Bengal without registration of the case, and further that the victim was a minor girl and within 24 hours of the missing DD entry, a case under appropriate sections ought to have been registered. Insofar as the first ground rejecting the explanation of the applicant is concerned, the same is factually incorrect. It may be recalled that it is on 11.2.2007 that the complainant for the first time had entertained the doubt about involvement of his neighbour Amit. At that stage, the explanation of the applicant was that the SHO also told him not to register the case and the complainant also requested likewise, and that the complainant had also gave a written statement that he would not get the case registered at that time, and requested for eight days time. On 22.2.2007, the FIR was indeed registered. It is thereafter that the search of the girl was made and a team was sent to native place of the accused boy in West Bengal. The girl was recovered on 22.3.2007. The police party had not gone to West Bengal without registration of the case. The submission made by the learned counsel for the applicant in that regard during the course of arguments has not been controverted. That the FIR ought to have been registered within 24 hours of missing DD entry, may be correct, but then the explanation for non-registration of the FIR within 24 hours as furnished by the applicant also ought to have been taken into consideration. This has not been considered by the disciplinary authority at all. However, the appellate authority considered this explanation by stating that the same was not acceptable inasmuch as, the facts were verified from the complainant who stated that he did not give anything in writing, and further that the inquiry officer had obtained his signatures on blank paper. The writing in question has been placed on records. It was before the concerned authorities as well. Surely, no enquiry was held. The appellate authority appears to have called the complainant and made enquiries from him with regard to the plea raised by the applicant that he had required the applicant and the SHO not to register the FIR immediately. This oral statement of the complainant said to have been made by him before the appellate authority at the back of the applicant, could not become the basis for rejecting his explanation. If the appellate authority had chosen to record the statement of the complainant, the applicant ought to have been given a chance to cross examine him. The finding by the appellate authority that the applicant may have written the statement of the complainant on his own, without giving the applicant a chance to cross examine the complainant, is not justified.
3. Shri R. N. Singh, learned counsel representing the respondents, would, however, contend that assuming the explanation of the applicant was correct, but once he was enjoined under law, as would be made out from Section 154 Cr.PC as also various pronouncements by higher judicial fora that on information which may disclose commission of a cognizable offence, FIR has to be registered, he could not be absolved of his delinquency on the simple request made by the complainant not to register the FIR immediately. We would not comment at this stage on the plea raised by the learned counsel, as it is not on that ground that the show cause notice issued to the applicant has been confirmed. Insofar as the disciplinary authority is concerned, it would not even take into consideration the explanation of the applicant. One of the reasons for rejecting the explanation of the applicant, as mentioned above, is factually incorrect. Of course, the disciplinary authority mentioned that the victim was a minor girl and within 24 hours of the missing DD entry, a case under appropriate sections should have been registered. Even though so, there is no specific finding that the non-registration of the FIR, despite the entreaties made on that behalf by the parents of the girl, would be unjustified. Insofar as the appellate authority is concerned, it rejected the explanation of the applicant by taking into consideration the oral statement of the complainant, which too was wholly unjustified. If that process was to be adopted, as mentioned above, the applicant ought to have been given a chance to rebut the same. Further, if the appellate authority had chosen to orally examine the complainant, why the SHO was also not examined, to whom, it is the case of the applicant, full facts including that the parents of the girl did not want to register the case immediately, were put by the applicant.
4. Despite the fact that censure may appear to be a minor punishment prescribed under rules, it is often seen that the same turns out as stumbling block in a big way in the matter of promotion of an officer in Delhi Police. Even though, there are instructions to state that unless the censures may be on the allegations of corruption and moral turpitude, the same may not be taken into consideration in case of promotion, but the law that has evolved is that overall service record of an officer is relevant for the purpose of his promotion. That being so, while proposing to visit a police officer with the penalty of censure, the concerned authority is to give serious thought.
5. In the facts and circumstances of this case, the impugned orders cannot sustain. The same are thus set aside and quashed. The matter, however, cannot be given a quietus at this stage, and in the interest of justice, needs to be remitted to the disciplinary authority to apply its mind to the explanation furnished by the applicant, afresh. If the explanation of the applicant has to be rejected simply for the reason that despite the entreaties made by the parents of the girl not to register the FIR immediately, under law the applicant had to register the FIR, it may be so stated, and the explanation of the applicant, if found to be correct, cannot be rejected by simply orally examining the complainant. In that case, the applicant has to be given a chance to cross examine him and also examine the SHO. The fact cannot he lost sight of that the applicant made frantic efforts in recovering the girl, which yielded results. The girl was indeed recovered and produced before the concerned Magistrate where her statement under Section 164 Cr.PC was also recorded. The appellate authority, in particular, had appreciated the efforts made by the applicant on that behalf. In the scenario as mentioned above, if the explanation of the applicant is found to be true, it would be for the authorities then to consider whether in view of the efforts made by the applicant in tracing the girl and simply not registering the FIR on the asking of her parents, he needs to be censured, or only a warning may be given to him.
6. The Application is disposed of in the manner fully indicated above. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/