Subodh Kumar Patel vs Union of India and ors

This matter is listed today for final hearing. The findings of the court were prima facie recorded when matter was moved on 20th August, 2018.

Mr. Banerjee, learned advocate appearing for the petitioner submits that the appellate authority found that the writ petitioner need not have been

punished for any intentional act and that the circumstances under which the act complained of took place, were accidental.

The appellate authority, thus, came to the conclusion that the petitioner could at the most have been charged with a rash and negligence act and not be

punished as done by the first authority. The punishment was reduced to four years and three months R.I to include detention already undertaken at the

pre-trial detention.

Counsel for the petitioner also submits that by reason of the mens rea and/or mental element not having been found against the writ petitioner, the

facts proved against him could at the most be a civil offence.

He further submits that the offence under Section 304A presupposes death of a victim and hence not attracted Section 307 is also not attracted by

reason of any intention not have been found with the writ petitioner.

Mr. Banerjee also submits that the concept of rash and negligence act under the Indian Penal Code and the Randhir Penal Code are available under

Sections 286 and 287 and the like. The facts available against the writ petitioner do not attract any such offences. Hence, a punishment of R. I. of

four years three months, therefore, also could not have been imposed on the writ petitioner.

The arguments of the petitioner may be attractive but are rendered academic in the facts of the case as the imprisonment imposed has already been

undergone. In any event, the main prayer of the petitioner is for reinstatement. The question of reinstatement will crop up on a finding of wrongful

dismissal or a disproportionate punishment imposed upon the petitioner. Such finding cannot be arrived at by this Court in the facts of the case.

One must bear in mind that the writ petitioner was a member of a disciplined force. Any act inconsistent with the requirements of a disciplined soldier

either with or without intention that has caused harm or was likely to cause harm cannot be condoned.

This court, therefore, does not find reason to interfere with the order of dismissal.

W. P. 10454(W) of 2005 is dismissed.

This Court records appreciation for the devoted effort and argument of the learned counsel for the petitioner in conducting his case.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.