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Avinash Gautam vs State Of U.P. . on 5 December, 2014

Bench: Sudhansu Jyoti Mukhopadhaya, Adarsh Kumar Goel

  ITEM NO.46                                COURT NO.3               SECTION II

                                S U P R E M E C O U R T O F      I N D I A
                                        RECORD OF PROCEEDINGS

  Petition(s) for Special Leave to Appeal (Crl.)                   No(s).    10487/2013

  (Arising out of impugned final judgment and order dated 27/11/2013
  in CRLA No. 2788/2011 passed by the High Court of Judicature at
  Allahabad)

  AVINASH GAUTAM                                                        Petitioner(s)

                                                   VERSUS

  STATE OF U.P. & ORS.                                                  Respondent(s)

  (with appln. (s) for exemption from filing c/c of the impugned
  order and exemption from filing O.T. and stay and office report)

  Date : 05/12/2014 This petition was called on for hearing today.

  CORAM :
                          HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA
                          HON'BLE MR. JUSTICE ADARSH KUMAR GOEL

  For Petitioner(s)                   Mr. Yadav Narender Singh, Adv.

  For Respondent(s)                   Mr. P.N. Misra, Sr. Adv.
                                      Mr. Raman Yadav, Adv.
                                      Mr. Abhisth Kumar, Adv.

                                      Mr.   Abhishek Yadav, Adv.
                                      Mr.   Braj K. Mishra, Adv.
                                      Mr.   Faraz M., Adv.
                                      Ms.   Aparna Jha, Adv.
                                      Mr.   Braj Kishore Mishra, Adv.

                           UPON hearing the counsel the Court made the following
                                              O R D E R

Leave granted.

The appeal stands disposed of in terms of the Signed Order.

(Rajni Mukhi) (Suman Jain) Sr. P.A. Court Master (Signed Order is placed on the file)  IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.2533 OF 2014 (Arising out of SLP (Crl.) No. 10487 of 2013) AVINASH GAUTAM ....APPELLANT VERSUS STATE OF U.P. & ORS. ....RESPONDENTS O R D E R Leave granted.

This appeal has been preferred by the appellant against the order dated 27th November, 2013 passed by the High Court of Judicature at Allahabad in Criminal Appeal U/S 372 Cr. P.C. No.2788 of 2011. By the impugned order, the High Court made certain observations against the appellant, gave its finding with regard to alleged act on the part of the appellant and passed the following order:

“.... In our opinion, the Officer, namely, Avinash Gautam, Sub Inspector, In-charge, Regional Out-post, P.S. Sihani Gate, Ghaziabad has committed offences under Sections 219 and 221 of the I.P.C. and we, as such, direct the court below to file a complaint before the concerned Chief Judicial Magistrate so as to prosecuting the officer.

We also direct immediate suspension of Avinash Gautam Sub-Inspector, In-charge, Regional out-post, P.S. Sihani Gate, Ghaziabad and direct the Senior Superintendent of Police, Ghaziabad to initiate disciplinary proceedings against him for the aforesaid breach of duties and for deliberate and wilful disobedience of the orders of this court. Ordered accordingly.” Having heard the learned counsel for the parties, we are of the view that while forming opinion to refer the matter to Chief Judicial Magistrate for alleged offence under Sections 219 and 221 of the I.P.C., the High Court was not justified in giving a finding that the appellant has committed offence under Sections 219 and 221 of the I.P.C. The High Court ought to have expressed

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prima facie opinion and not final decision in regard to the alleged offence committed by the appellant. Further, we are of the view that the question of initiation of departmental proceedings and suspension of the appellant ought to have been left open to the Disciplinary Authority and the High Court was not correct in directing the immediate suspension of the appellant who was Sub Inspector, In-charge, Regional Out-post, P.S. Sihani Gate, Ghaziabad.

For the reasons aforesaid, we set aside that part of the impugned order dated 27th November, 2013 passed by the High Court by which the Court below was directed to file a complaint before the Chief Judicial Magistrate and the Competent Authority was directed to immediately suspend the appellant. The said order stands modified with a direction to the Court below to file a complaint before the concerned Judicial Magistrate to find out whether the appellant committed the offence under Sections 219 and 221 of the I.P.C. Further, we left the matter to the Disciplinary Authority to decide whether in the facts and circumstances it is desirable to initiate departmental proceedings or suspend the appellant for alleged breach of duties and alleged deliberate or willful disobedience of the order of the High Court The appeal stands disposed of with the aforesaid observation.

...........................J. [SUDHANSU JYOTI MUKHOPADHAYA] ..........................J. [ADARSH KUMAR GOEL] NEW DELHI;

DECEMBEER 05, 2014