Vipin Tiwari @APPELLANT@Hash State of Chhattisgarh

Ajay Kumar Tripathi, CJ

Heard counsel for the Appellant and learned Government Advocate for the State.

We have perused the order dated 10.05.2017 passed by the learned Single Judge which is in appeal.

The facts of the case are so glaring that we are inclined to interfere with the order of the learned Single Judge where he refused to pass any

direction where the appeal of the Appellant for taking him back in service was rejected by the Respondents.

Uncontroverted facts are that the Appellant, who was appointed on the post of Police Constable was convicted on 21.08.2001 for offences

punishable under Sections 294, 323 read with Section 34 of the IPC and sentenced to undergo six months imprisonment with fine. This conviction led

to his termination from service by disciplinary authority on 21.11.2001.

The Appellant preferred an appeal before the learned Sessions Judge, who maintained the order of conviction, but reduced the sentence of

imprisonment of six months to rising of the Court. A revision was preferred thereafter before the High Court and the High Court, vide its order dated

29.03.2003 extended the benefit of Probation of Offenders Act, 1958 and released the Appellant on probation.

It is thereafter that the appellant filed a representation before the Superintendent of Police, Raigarh and thereafter appeal before the Inspector

General of Police, Bilaspur, but the same was not considered. But, by a cryptic order dated 20.10.2003, the prayer for reinstatement was rejected on

the ground that since the Court had not ordered his reinstatement, the same is fit to be rejected.

Before the learned Single Judge, counsel for the Appellant drew the attention of the Court to Regulation 238 of the Police Regulation. Regulation

238 is being reproduced since this appeal is going to be decided on the touch stone of the said Regulation.

**238- QkStnkjh vijk/kksa esa naM & tc iqfyl vf/kdkjh nkafMd vijk/k dh nks""kflf) ij lJe dkjkokl ds naM ls nafMr fd;k x;k gks vkSj vihy esa naM ;Fkkor

j[kk x;k gks ;k dksbZ vihy u dh xbZ gks rc og cy ls cj[kkLr dj fn;k tk,xk A ijUrq 'krZ ;g gS fd ;fn mldk vijk/k xaHkhj ;k viekutud izd`fr dk ugha Fkk

vkSj dkjkokl bruk yEck ugha jgk gS fd og [kqn viekutud gks] rc ;g egkfujh{kd ds foosd ij gksxk fd cy esa mldks j[ks jgus dh vuqefr nh tk; A**

From reading of Regulation 238, power has been given upon the police authorities to dismiss a person from force on conviction when same was

maintained. However, proviso to such Regulation itself lays down certain circumstances under which the Director General (Police) can permit such an

employee to be continued in force.

This aspect of the matter was not seriously taken note of by either of the respondent authorities. Even learned Single Judge did not appreciate the

merit of such a proviso. There cannot have been a better case where the discretion provided in proviso to Regulation 238 could be exercised because

looking at the nature of the offences so charged, the sentence of six months was finally converted into release of the Appellant on probation.

Therefore, even the High Court in revision was also of the view that it was not a fit case where incarceration was required.

That being so, we set aside the order of the learned Single Judge dated 10.05.2017 and direct the Director General (Police), State of Chhattisgarh

that on a fresh application being filed by the Appellant with a copy of this order, he will consider the case of the Appellant keeping in mind the object

and purpose behind the proviso to Regulation 238.

Even on fact, there may not be a better case where such discretion needs to be exercised.

The application of the Appellant must be decided by the Director General (Police) within a period of eight weeks from the date of such filing.

Accordingly, the writ appeal is allowed.