State of Jammu and Kashmir vs Ghulam Nabi

While hearing SWP No. 114/95, appoint of law, as follows, was raised:

Whether or not in exercise of powers under Subrule (2) of Rule 31 of the Classification, Control and Appeal Rules, the pendency of an acquittal

appeal will amount to pendency of a trial?

2.The respondentaccused were place under suspension for the reason that the trial of a case was pending before the court. In the above mentioned

service writ petition they challenged the suspension order on the ground that they had been acquitted. The state after acquittal of the respondents

filed this appeal.

3.An argument in the service writ petition was raised that pendency of an acquittal appeal would not amount to pendency of a trial. Learned

counsel for the respondents here relied upon a judgment titled Abdul Rashid Khan Vs. Director Libraries and another, reported in 1977

JKLR225. I went through that judgment but could not find myself in a position to follow the same. I would have, while exercising my powers in

terms of Rule 18 of the High Court Rules, referred the matter to a larger Bench but the circumstances of the case did not permit me because while

doing that a considerable time would be consumed and the petitioners who are under suspension for long would have to continue to remain under

such rigour for an indefinite period. I thought it proper to get this appeal also listed before me to hear the same and after disposal proceed to

decide the service writ petition on its merits.

4.Accordingly vide court order dated 15.12.1997passed in SWPNo.1 14/95 I ordered that this appeal should also be listed. It is in that

background that both the matters were listed simultaneously.

I have heard the learned counsel for the parties in this appeal in extenso.

The appeal calls in question an order/ judgment passed by the Judicial Magistrate 1st Class (SubJudge) Kishtwar on 27.08.1994. BRIEFFACTS:

Eleven of the accusedrespondents were working in police station Atholi (Paddar), a farflung area of Tehsil Kishtwar. Respondent No. 1 worked

as a SubInspector and respondent No.2 as a Head Constalbe. Rest of the respondents were working as constables. On 2.3.1993 police station

Atholi received a letter from S.D.P.O. Lakhbir Singh, alleging therein that on the intervening night of 24th/25th of December, 1992 police station

Atholi was attacked by militants and arms and ammunition, alongwith wireless sets, were taken away by them. This report was sent to the higher

authorities. Superintendent of Police Doda on February 1,1993 held the accusedrespondents guilty of negligence and dereliction of duty under the

police Act. A case under sec.3/4 TADAi read with sec.30 of the Police Act was registered and investigation was conducted. After completing of

investigation a challan under sec.30 of Police Act was filed before the Judicial Magistrate 1st Class Kishtwar. Offences under sections 3/4 TADA

were dropped. The accused were chargesheeted. They pleaded not guilty. Evidence was led. The Trial Court, after conducting the trial dismissed

the case and acquitted the accused.

5.The Trial Court has dismissed the prosecution case on the following three grounds:

1 That Rule 30 of Police Rules is not cognisable, therefore, police could not have conducted the investigation;

2 That necessary sanction in terms of Rule 349 of the police Rules has not been accorded by the District Magistrate;

3 That there is no case on merits. The State has challenged the order of acquittal on the ground that both the technical pleas are not tenable. The

prosecution case is duly established, barring minor discrepancies here and there. Prosecution version has been proved to the hilt etc. etc.

6.As for the first point is concerned, inceptionally the case was registered in terms of not only under sec.30 of the Police Act but also under

sections 3/4 TADA. It was at a latter stage that offences under TADA were found not proved and the challan in terms of 30 Police Act was

produced before the court. Therefore, the investigation by the police does hot vitiate the trial nor does the same prejudice the accusedrespondents.

Accordingly the first premise with this point does not find favour with me.

7.As for the plea of violation of Rule 349 of the Police Rules is concerned, this rule relates to those acts/omissions only which come within the

mischief of an offence under the Ranbir Penal Code. Under this Rule a Superintendent of Police, on receiving a complaint against a police officer,

has immediately to report the substance of such a complaint to the District Magistrate, only where the former finds that the police officer has

committed an offence under Ranbir Penal Code and such offence has been committed under the colour of his duty. These are the two

preconditions for reporting of the matter by the Superintendent of Police to the District Magistrate. Supposing that the complaint received by the

Superintendent of police does not make out an offence under the Ranbir Penal Code, it may on the other hand, make our a case of misconduct, or

an offence, beyond the preview of the Ranbir Penal Code. In such a matter reporting of the complaint by the Superintendent of police to the

District Magistrate is not mandatory, the object of Rule 349 is to arm the District Magistrate with a discretion as to whether the investigation of the

complaint should be conducted by a police officer or by a Magistrate. In case the District Magistrate chooses that a trial or an inquiry under the

Code of Criminal Procedure, should be held by a Magistrate, he has to proceed according to the instructions laiddown under die Rules and orders

(Criminal) For Guidance of the Courts Subordinate to the High Court. However, when the District Magistrate decides that the matter should be

disposed of departmentally, departmental inquiry shall have to be conducted in accordance with the procedure prescribed under these rules.

8 .Admittedly, in die instant case, Superintendent of Police Doda was conscious that the offences committed did not fall within the mischief of

Ranbir Penal Code, therefore, he did not seek the permission/sanction for such prosecution. He was right in doing so because he was justified in

adopting that course, as Rule 349 of die Police Rules empowered him to do so. I want to place on record that in die present case challan was

produced on 29.9.1993 and on that date die District Magistrate seems to have sanctioned the prosecution of die respondents. I hasten to add that

even if this sanction were not there, there would be no error in die trial. Therefore, die finding of die trial court on this issue is not correct and as

such set aside.

9.Averting to die merits of die case, I find that die prosecution witnesses themselves have while tendering their statements, provided sufficient

loopholes to the case which serve as planks for the defence. These planks are as under:

1 A suggestion that the militants were about forty in number;

2 That may were armed with highly sophisticated arms;

3 As against this die nufri of only eight persons was deployed in die police station;

4 The police station was unsafe and unfenced;

5 There was no light in die police station;

6 The information with respect to die police station being unsafe and manned by insufficient nufri had been given to die higher audiorities, but

without any result.

7 Most of guns provided to die nufri were unserviceable.

10.Besides this, die following features are writ large upon die prosecution case:

A) Two officers, Man Singh and Lakhbir Singh seized the Roznamcha and Arms Issue Register. These registers were neither produced before die

court nor did they form a part of die record. Prosecution has also not produced any duty roster to indicate as to who was on guard duty on die

fateful night. This could have been done by producing the Roznamcha and Arms Issue Register. In absence of such proof die court below has not

been able to fasten criminal liability with die accused;

B) PW Lakhbir Singh and Man Singh, DY.S.P. both have investigated the case. Man Singh was never produced nor examined. Lakhbir Singh

when came to tender his statement in die court, deposed that die occurrence took place on 2.3.1993 (although occurrence took place, as per die

prosecution story on 24/ 25.12.1992). Investigating officer, Lakhbir Singh also shown his inability to depose as to on what date die accused were

arrested. He has shown such inability even after case diaries were shown to him.

C) There are some police constables, Mansa Ram, Abdul Hamid and Shah Mohd who despite being posted in die police station, have been

dropped from prosecution. No plausible explanation for dropping diem and adopting a pick and choose method has been given by die

prosecution.

11 .The above features of die case make die prosecution story weak. I am conscious that letting off die police personnel, who omit to show

resistance to such ""attacks"" and who part with their arms and ammunition, without let or hindrance, sounds repugnant. After all if the salt loses its

savour, wherefrom can it be salted. I am convinced that die respondent have acted in a shameful manner by abdicating their power. Conscious

policemen would 'do or die'. Their lackadaisical modus operandi speaks volume of die 'efficiency' of these police officials. Even after being that

conscious, courts cannot help die prosecution in criminal cases when die cases suffer from so many infirmities. Under criminal law conviction can

follow only when single and unimpeachable result can be drawn from the evidence that the crime was committed. There should absolutely be no

iota of doubt in the cases. Once there is a doubt and another version which favours the accused is possible, then courts are bound to give benefit

of doubt to the accused and accept the alternate version. In my opinion, probably that only can be done in the present case.

12.Mr. Kapoor, AAG, was vehement enough to argue that in the factum of broadday robbery, no attempt of resistance is established by the facts.

Omission to putforth resistance, according to Mr. Kapoor, amounts to criminal negligence, hence the offence. I wish I would fall in line with Mr.

Kapoor's argument. Rule 30 prescribes the penalty for negligence of duty, for violation of duty or willful breach or neglect of any order made by

the competent authority. Here in the present case the very duty roster has not seen the light of the day. No order from any competent authority

calling upon a definite accused to do a particular job on the fateful night has been passed.

13 .Therefore, in the light of the evidence led in the case, the Trial court would not be justified in convincing the accused. At the cost of repetition I

do want to place on record that acts and omissions, although could have fallen short of requirements of the substantive offence under any penal

law, could be dealt with by a departmental inquiry. If the Government were serious, investigation of such an important case should have been

entrusted to an efficient and dutiful police officer. I can do nothing in this case except to frown upon wayward and faulty investigation conducted.

14.Coming back to the merits, I find that the prosecution has not proved its case to the specified standards of criminal jurisprudence. Therefore,

the acquittal order is quite in conformity with law. I find no error in the same and accordingly dismiss this appeal.