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Judgment
Hon''ble Surendra Vikram Singh Rathore, J.—By means of this petition, the petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India for issuing a writ of certiorari to quash the order dated 31.8.2006 passed by DIG, Devi Patan respondent No. 3 and also the order dated 28.6.2006 passed by Superintendant of Police Bahraich, opposite party No. 2.
In brief, the facts giving rise to this petition may be summed up as under: A case under sections 219,223,224,225 Kha,419,420,468,422 and 120B IPC was registered against the petitioner at case Crime No. 1266 of 2003 P.S. Kotwali Bahraich as two accused persons succeeded in fleeing away from the judicial custody while they were being taken from the Lockup to the court concerned. This incident is alleged to have taken place on 13.10.2003. The petitioner was, in-charge of the lock-up at the relevant time. A departmental inquiry was also initiated against him. In the trial for the criminal offence, the petitioner was discharged from the court of additional chief judicial Magistrate, Bahraich vide order dated 31.8.2004 passed in case No. 167 of 2004 State Vs. Ram Dev and others. Feeling aggrieved by the said order, criminal revision was filed by the State Government of U.P. before the Sessions Judge.The Sessions Judge vide judgment dated 28.6.2005 passed in criminal revision No. 510 of 2005, State of U.P. Vs. Sharda Prasad Verma dismissed the revision filed on behalf of the State. Admittedly the said order passed by the Sessions Judge was not challenged in any court.
In the departmental inquiry, which was conducted by the C.O Sisvan he was held responsible for the negligence. Therefore, on the quantum of punishment a notice was issued to the petitioner. The petitioner inter-alia defended himself on the ground that he has been discharged of the criminal offence, therefore, in view of the Para 493 (c) of the U.P. Police Regulations(hereinafter referred to as Regulation), no further action can be taken against him. By the impugned order, dated 28.6.2006, the explanation submitted by the petitioner was rejected and he was punished by reversion to the lowest scale of the constable for a period of three years. A departmental appeal was preferred by the petitioner before the DIG, Devi Patan and the defence of the petitioner was again on the same ground but the appellate authority also dismissed his appeal and confirmed the punishment.
Feeling aggrieved by the two orders, passed by respondents No. 2 and 3,the present writ petition was filed on the ground that the orders passed by the respondents are in violation of the provision of Para 493 (c) of the Regulations.
In this case by an interim order dated 7.7.2008, the operation of the impugned order was stayed.
In the counter affidavit it is pleaded that the petitioner was acquitted for the criminal offence while in the departmental inquiry he was held guilty for the negligence and accordingly he was punished.
Before further entering into the discussion of the arguments, it is necessary to quote provision of Para 493 (c) of the Regulations which reads as follows:-
It will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a police officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial, and the finding of the Court on these facts must be taken as final.
(c) If the accused has been judicially acquitted or discharged, and the period for filing an appeal has elapsed and or no appeal has been filed the Superintendent of Police must at once reinstate him if he has been suspended; but should the findings of the Court not be inconsistent with the view that the accused has been guilty of negligence in, or in fitness for, the discharge, of his duty within the meaning of Section 7 of the Police Act, the Superintendent of Police may refer the matter to the Deputy Inspector General and ask for permission to try the accused departmentally for such negligence or unfitness.
It has been held by a Division Bench of this Court in the case of Kedar Nath Vs. State of U.P., reported in [2005 (3)ESC 1955 (HC) 1955(DB) that even after enforcement of 1991 Rules, these two regulations 492 and 493 continued to hold field. Para 50 of the pronouncement is relevant which reads as under:
The inescapable conclusion, therefore, is that the authorities were bound to follow Regulations 492 and 493, the 1991 Rules notwithstanding. They did not do so and they proceeded to decide differently on the charge of embezzlement of four magazines although the writ petitioner-appellant had been acquitted on the same charge in the Criminal Courts. The authorities have thus brought on record an error of law by acting contrary to existing Regulations; such an error on the face of the record can and should be corrected by the writ Court. An acquittal is an acquittal, whether on the benefit of doubt or not. One cannot go behind the acquittal, but must ordinarily accept it on its face value.
Learned counsel for petitioner has placed reliance on the pronouncement of Division Bench of this court in the case of Dhani Ram Vs. S.P. Hardoi reported in 1989 (1) UPLBEC 624. In this case, provision of Para 493 (c) of the Regulations were considered and it was held that in a departmental proceedings against a police officer, the Superintendent of Police cannot re-examine the truth of any fact in issue at the judicial trial and the finding of the criminal court on that point must be taken as a final. It further shows that in case the accused is judicially acquitted or discharged and judgment of the criminal court has become final, the Superintendent of Police must reinstate the delinquent police officer if he had been suspended. If the finding of the criminal court is not in consistent with the view that the accused has been guilty of negligence in or unfitness in the discharge of his duty, depart mental proceedings can be initiated against that police officer with the permission of the Deputy Inspector General of Police.
In the case of Constable Zillurrhman and Anr. vs. State of Uttar Pradesh and Ors passed in W.P. No. 26559 of 2010(Civil Misc) this court has held,
The purpose of departmental inquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated question of fact and law. Offense generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short " the Evidence Act"). Converse is the case of departmental inquiry. The inquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental inquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always question of fact to be considered in each case depending on its own facts and circumstances. Each case has to be considered in the perspective of the facts and the rules and regulations governing the service.
In the facts of the present case it is admitted fact situation that the prior permission of the DIG was not obtained before passing of the punishment order. The ground taken by the S.P. Bahraich in the impugned order dated 28.6.2006 is really very strange. He was of the view that since the petitioner was discharged, therefore, he is not entailed to the benefit of para 493 (c) because the benefit of the said regulation is available only to the persons who were tried by the court and were acquitted. Since the petitioner was not tried and was only discharged, therefore, he is not entitled to the benefit of the said provision. This finding itself is contrary to the provisions of the Regulation 493. In Para 493 (c) of the Regulations, the word acquitted or discharged has been used. An accused is discharged u/s 239 Cr.P.C when the court is of the opinion that the charge against the accused is groundless. Therefore, the ground for rejecting the explanation submitted by the petitioner was altogether wrong. It is really strange that the same fact was also not considered by the DIG, Devi Patan in the impugned order dated 31.8.2006. The petitioner was discharged for the offence u/s 222 of the IPC also which deals with the offence where any person being a public servant, legally bound as such public servant to apprehend or to keep in confinement any person under sentence of a Court of Justice for any offence [or lawfully committed to custody], intentionally omits to apprehend such person, or intentionally suffers such person to escape, or intentionally aids such person in escaping or attempting to escape from such confinement, shall be punished as follows.......
Therefore, the point which was in question in the departmental inquiry was the same which was involved in the criminal trial. Admittedly the petitioner in the criminal trial was discharged and the order of discharge was con firmed by the learned Sessions Judge in the order passed in criminal revision and thereafter the said order was not challenged before any court.
It has been held in the case of State of U.P. vs. Babu Ram, reported in AIR 1961 SC that the regulation contained in XXXII of the Police Regulations are the rules which have been framed by the State Government u/s 7 of the Police Act have got statutory force and if any order is passed in contravention of these regulations, it is illegal.
In State of M.P. Vs. Syed Qamarali, reported in 1967 SLR 288 (SC), the order of dismissal passed against a Police Sub Inspector contrary to Para 241 of Madhya Prdesh Police Regulations, was held illegal. Paragraph 241 of the Madhya Pradesh Police Regulations which is some what similar to Para 493 of the Regulations relates to departmental inquiry against a police officer when he has been acquitted by a criminal court on the same charge.
From the above discussion it is clear that the petitioner was judicially discharged in the criminal trial. The truth of the charge was examined by the criminal court and the allegations made against him were found to be groundless accordingly he was discharged. The departmental proceedings were initiated in connection with the same charge. Para 493 of the Regulations equally covers the discharge and also the acquittal of the petitioner by a criminal court but the ground of refusal to extend the benefit of Para 493 (c) to the petitioner, was wholly incorrect and clearly against the provision of the aforesaid Regulations. Therefore, it can easily be inferred that the impugned orders are violative of the Regulations and deserve interference by this court in exercise of its jurisdiction under Article 226 of the Constitution.
Accordingly this writ petition deserves to be allowed and is allowed.
The impugned orders dated 31.8.2006 passed by DIG, Devi Patan and 28.6.2006 passed by S.P. Bahraich opposite party No. 2 are here by quashed.