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4. It has been argued that the applicant has been held responsible for not identifying the accused as per his earlier statement under Section 161 Cr.P.C. during the trial in the learned court of Metropolitan Magistrate, New Delhi even though the court in its judgment dated 15.3.2003 did not make any adverse comment against him. Therefore, such departmental action against him cannot be supported in terms of either Section 344 or 340 Cr.P.C. Even rule 13 of the Delhi Police (Punishment & Appeal) Rules, 1980 is not attracted since no strictures were passed by the court against the applicant. The enquiry officer has exceeded his brief by acting as a prosecutor with a biased attitude to elicit answers to leading questions by cross examining the witnesses without giving opportunity to the applicant to re-cross examine them thereafter. The findings of the enquiry officer are based on no evidence and the disciplinary authority has not considered the representation/defence of the applicant. Even the appellate authority has not applied it s mind and mechanically endorsed the reasoning given by the disciplinary authority in a non-speaking and cryptic order. The allegations against the applicant do not attribute any motive to him because of which it was incorrect for the disciplinary authority to hold that if he failed to identify the accused in the court, it means that he did it intentionally.
5. The deconstruction of the above paragraph would disclose the following contentions/grounds raised by the Applicant in his support which we would deal in seriatum.
1. The Applicant has been held responsible for not identifying the accursed as per his earlier statement under Section 161 Cr.P.C. during the trail in the learned Court of Metropolitan Magistrate, New Delhi, even though the Court in its judgment dated 15.3.2003 did not make any adverse comment against him. Therefore, such departmental action against him cannot be supported in terms of either Section 344 or 340 Cr.P.C.

7.1 Contention-1 :- The Applicant has been held responsible for not identifying the accused as per his earlier statement under Section 161 Cr.P.C. during the trial in the learned court of Metropolitan Magistrate, New Delhi even though the court in its judgment dated 15.3.2003 did not make any adverse comment against him. Therefore, such departmental action against him cannot be supported in terms of either Section 344 or 340 Cr.P.C.

7.2 In support of his above contention, Shri Singal highlighted the background of the case to say that on 10.05.1998 the Applicant saw a road accident and Section 161 CrPC Statement of the Applicant was recorded by Police but the Applicant did not identify the accused in the Learned Metropolitan Magistrate (MM) Court and the accused was acquitted vide judgment dated 15.03.2003. On the basis of the said acquittal, a DE was initiated against the Applicant on the allegation that he did not support his earlier Statement recorded under Section 161 CrPC during trial and did not identify the accused. His submission is that as there is no adverse remark by the learned MM, the departmental action against him cannot be sustained in terms of Sec 340/344 CrPC. Thus, he terms the DE ab initio as illegal.

Next, we may advert to the Item (ii) of the contention. It is correct stand of the Applicants Counsel that the present departmental proceeding is not sustainable under the Provisions of Section 340 and 344 of CrPC. Section 340 and 344 have not been invoked by the Respondents. It is noted that the DE was not initiated after getting the orders of the learned Metropolitan Magistrate under Section 340 CrPC and there was no application for that purpose from the Respondents. Moreover, Section 344 of CrPC prescribes summary procedure to be adopted for trial for giving false evidence. The learned MM has not expressed any opinion to the effect that the Applicant appearing as a witness in the criminal trial had knowingly or willfully given false evidence. The Respondents point is that Applicant did not adhere to the Section 161 CrPC statement recorded earlier and did not identify the accused in the trial as a result the accused was acquitted. But there is no mention in the order of the learned MM about the Applicant giving false evidence willfully and intentionally. Thus, we are of the opinion that though the Applicants Counsel has advanced such a contention that DE is not sustainable under Section 340 & 344 of CrPC, it is a fact that DE has not been initiated under Section 340 & 344 CrPC.