JUDGMENT : ( 1. ) IN this petition under Articles 226 and 227 of the Constitution of India, the petitioner, an employee of the Police Department, challenges the order of the Superintendent of Police, dated 23-4-1969 (petitioners Annexure-F), the appellate order of the Deputy Inspector General of Police, dated 28-2-1970 (petitioners Annexure-H) and the order of the Inspector General of Police (date not mentioned; petitioners Annexure-I) on the ground that the petitioner having been acquitted in a criminal case for an alleged offence under section 302, indian Penal Code in connection with the alleged murder of his wife, could not have been proceeded against depart mentally in respect of the same charge. ( 2. ) THIS case had come up for hearing before a Division Bench of this court, which, by order, dated 9-12-1971, referred the case to a Full Bench on the ground that it was necessary to consider the Division Bench case of the Nagpur high Court, namely, Ramdayalsingh v. Harnamsingh and others (1951 N L J 593.), wherein, relying on Regulation No. 241 of the Central Provinces and Berar Police Regulations, which are still in force in the State, the said Division Bench laid down that a departmental enquiry would be barred on the same charge of which a Police officer or a police employee may have been acquitted by a Criminal Court. The division Bench thought it necessary that the question how far the Police Regulation No. 241 bars a departmental enquiry would be a matter, which would need reconsideration. Therefore, the entire case was referred by the Division Bench to a Full Bench for disposal. ( 3. ) THE facts leading to the filing of the present writ petition are as follows: the petitioner was appointed as a lower division clerk in the office of the superintendent of Police, Khandwa, in the year 1964. Thereafter, the clerical cadre was designated as Assistant Sub-Inspector (Ministerial) by a general order of the Inspector General of Police, in 1967. The petitioner was married to one, kiranbai in the year 1965. Kiranbai was killed on the night intervening the 13th and 14th of November, 1967. On that fateful night, as usual, the petitioner and his wife were sleeping in the same room. The petitioner was married to one, kiranbai in the year 1965. Kiranbai was killed on the night intervening the 13th and 14th of November, 1967. On that fateful night, as usual, the petitioner and his wife were sleeping in the same room. The petitioner was suspected of the murder of his wife and, therefore, he was prosecuted for an alleged offence under section 302, Indian Penal Code in Sessions Trial No. 9 of 1968, in the Court of the Additional Sessions Judge, East Nimar, Khandwa. During the Sessions Trial, smt. Shantibai, mother of the petitioner, Ramratan, father of the petitioner, rameshprasad, brother of the petitioner and Smt. Kamlabai, sister-in-law of the petitioner were examined as prosecution witnesses, amongst other witnesses. One, Smt. Savitribai, grand mother of the deceased Kiranbai, Diwakar, Compounder, Dr. Kaskhediker and Constable Janardan were also examined as witnesses on behalf of the prosecution. The learned Additional Sessions Judge, by judgment, dated 22-7-1968 (petitioners Annexure -A) acquitted him of the offence charged with. The petitioner was, therefore, charged with the murder of his wife on the said night. A little later we shall examine the reasoning of the learned Judge acquitting the petitioner of the charge of murder. ( 4. ) THE Superintendent of Police, by order, dated 26-7-1968 (petitioners annexure-B) suspended the petitioner on the ground that the petitioner had been acquitted by the Additional Sessions Judge by giving him the benefit of doubt. In that view, a charge for the deparmental enquiry was framed against the petitioner on 19-10-1968 (petitioners Annexure-C ). We may reproduce the said charge as follows: ( 5. ) IN answer to the charge at the departmental enquiry the petitioner submitted his reply, dated 3-10-1968 (petitioners Annexure -D ). However, the departmental authorities, by the orders impugned, rejected the petitioners contention and dismissed him from service holding that he was not a fit person to be retained in the Police Department. The Enquiry Officer purported to examine all the evidence, which was tendered at the departmental enquiry and all those persons, who had been examined on behalf of the prosecution in the criminal case were examined during the departmental enquiry. The authorities came to the conclusion that the disciplinary authority is not bound by the observations of a general nature in the judgment of the criminal case. The authorities came to the conclusion that the disciplinary authority is not bound by the observations of a general nature in the judgment of the criminal case. According to them, there would be different standards of appreciation of evidence in a criminal case and a departmental enquiry. As such, the findings arrived at by the disciplinary authority could not be challenged merely because a Judge in a criminal case might have appreciated facts in a different manner. Therefore, on the same charge of murdering his own wife, the petitioner was dismissed from service in the departmental enquiry. Therefore, the question arises as to what is the scope of Police Regulation No. 241. ( 6. ) POLICE Regulation No. 241, is as follows:- "241. When a police officer has been tried and acquitted by a Criminal Court, he must as a rule be reinstated. He not may be punished depart mentally when the offence for which he was tried constitutes the sole ground of punishment. If, however, the acquittal, whether in the Court of original jurisdiction or of appeal, was based on technical grounds, or if the facts established at the trial show that his retention in Government service is undesirable, the District Superintendent may take departmental cognizance of his conduct, after obtaining the sanction of the Inspector General. " ( 7. ) THIS question first came up for consideration in Ramdayalsingh v. Hamamsingh and others, wherein the Division Bench, relying on Regulation no. 241 of the Police Regulation, made the following observations : "the contention of the applicant is that his dismissal from service is contrary to Police regulation 241. That regulation reads as follows: when a police officer has been tried and acquitted by a criminal Court, he must as a rule be reinstated. He may not be punished depart mentally when the offence for which he was tried constitutes the sole ground of punishment. If, however, the acquittal, whether in the Court of original jurisdiction or of appeal, was based on technical grounds, or if the facts established at the trial show that his retention in Government service is undesirable, the District Superintendent of Police may take departmental cognizance of his conduct, after obtaining the sanction of the Inspector General. " "there is no doubt that the sole ground on which the applicant has been dismissed from service is that he committed an offence of rape on 14-1-1949. " "there is no doubt that the sole ground on which the applicant has been dismissed from service is that he committed an offence of rape on 14-1-1949. The applicant was acquitted of that charge by the Court of Session and he ought to have been reinstated as the acquittal had not been on any technical ground but upon the view of the facts taken by the jury. It seems to us that under the Regulation the reinstatement of a police officer who has been tried and acquitted by a Criminal Court is obligatory if the offence for which he was tried constitutes the sole ground of punishment unless (a) the acquittal is based upon technical grounds, or (b) the facts established at the trial show that his retention in Government service is undesirable. " ( 8. ) SUBSEQUENTLY, the question came up for consideration before a Single bench of this Court in Qamar Ali Wahid Ali v. State of M. P. ( 1958 MPLJ 681 =air 1959 M P 46.), wherein although no reference was made to Regulation No. 241 of the Police Regulations, the single Bench laid down as follows :- "it was argued by the learned Government counsel that the appellant was not entitled to any relief, as Article 311 (2) of the Constitution had not been contravened. As regards the interpretation of Article 311 (2) of the Constitution, their Lordships of the Supreme court have laid down the law in the case of Joseph John v. State of Travancore-Cochin ( AIR 1955 SC 160 .), wherein it has been observed that a Government servant should get two opportunities, namely, the one to defend himself during the enquiry according to the departmental rules and the other after the conclusion of guilt is tentatively arrived at when the Government servant is called upon to show cause against the action proposed to be taken. The former opportunity is justifiable on the ground of principle of natural justice, while the latter is specifically provided for by the Constitution. It would be reducing the constitutional guarantee to a nullity, if a Government servant without any tentative conclusion of guilt were called upon to show cause against the action proposed to be taken. The former opportunity is justifiable on the ground of principle of natural justice, while the latter is specifically provided for by the Constitution. It would be reducing the constitutional guarantee to a nullity, if a Government servant without any tentative conclusion of guilt were called upon to show cause against the action proposed to be taken. In such an event, he could not be called upon to show any cause whatsoever, as was held by a Division Bench of this Court consisting of Sinha C. J. , (as he then was) and Bhutt J. in the case of M. A. Waheed v. The State of M. P (1954 N L J 305=air 1954 Nag. 229-1 L R (1954) Nag. 371. ). The same would be the position if the conclusion of guilt could not be arrived at all. In the present case, the conclusion could not be arrived at, as the appellant was honourably acquitted of all charges by the Criminal Court. The assumption of guilt in the criminal offence was the very basis of the charge in departmental enquiry. No authority could be permitted to hold a departmental enquiry on that basis. There would be no question of sitting in judgment as an appellate Court over the departmental authority. As such, this case is clearly distinguishable from the ease of Bhagwundas Verma v. State of M. P. (M. P. No. 15 of 1955, decided on 27th August 1956 (Nag.) decided by Naik, J. In the present case, the very elementary principle of natural justice had been violated, namely, that as per verdict of a Court of law, the appellant had been held innocent of the crime, while the departmental authority purported to sit in judgment over the law Court, as if it were an appellate authority. If this were permitted, the very foundation of the administration of justice would tumble down. It is true that this Court cannot sit in judgment over the departmental authority as an appellate Court. But it is equally true that a departmental authority cannot be permitted to sit in judgment over a law Court, as if it were an appellate authority. Therefore, the charge framed in the departmental enquiry could not at all be framed. The further proceedings in the departmental enquiry were just a nullity, They can as well be ignored by this Court. Therefore, the charge framed in the departmental enquiry could not at all be framed. The further proceedings in the departmental enquiry were just a nullity, They can as well be ignored by this Court. The conclusion of guilt could not be arrived at in the departmental enquiry, as no such enquiry could be held. If no conclusion of guilt could be arrived at, the appellant could not be called upon to show cause against the action proposed to be taken on the basis of the conclusion arrived at in the departmental enquiry. It is thus that the operation of Article 311 (2) is affected. The said Article cannot be interpreted in a manner so as to reduce it to a technical provision to be nominally observed by the mere issuance of a show cause notice. In my opinion, their Lordships of the Privy Council, as also their Lordships of the supreme Court have clearly laid down that the constitutional guarantee is a substantial one, which ought to be fully complied with, before the extreme penalty of dismissal or removal or the drastic penalty of reduction in rank is visited upon a Government servant. The present case would be governed by the principles indicated in the case of M. A. Waheed v. The State of M. P. (supra), which I respectfully follow. " ( 9. ) IT is true that some High Courts have expressed dissent from the view as expressed in the said Single Bench case. We shall presently refer to those cases. But the said Single Bench case was taken up in Supreme Court and unfortunately, the Supreme Court judgment has not been published in the regular law journals, but that judgment has been published in the Service Law reports as 1967 Service Law Reports 228. In that case their Lordships of the supreme Court have clearly laid down the scope of Regulation 241 of the C. P. and Berar Police Regulations in the following observations:- "the first question that arises for consideration therefore is whether the departmental enquiry and the order of dismissal were contrary to Para 241 of the Police Regulations. Para 241 of the Police Regulations is in these words:-when a Police Officer has been tried and acquitted by a Criminal Court, he must as a rule be reinstated. Para 241 of the Police Regulations is in these words:-when a Police Officer has been tried and acquitted by a Criminal Court, he must as a rule be reinstated. He may not be punished depart mentally when the offence for which he was tried constitutes the sole ground for punishment. If, however, the acquittal, whether in the Court of original jurisdiction or of appeal, was based on technical grounds, or if the facts established at the trial show that his retention in Government service is undesirable, the District Superintendent may take departmental cognizance of his conduct, after obtaining the sanction of the Inspector General. The regulation thus prohibits departmental punishment for the offence of which an officer has been acquitted by a competent Court. It however makes an exception in the case where acquittal was based on technical grounds. But the exception itself is made subject to a condition precedent that no depart metal enquiry should be held without obtaining the sanction of the Inspector General of Police Another provision in the para is that when an officer has been acquitted but the facts established at the trial show that his retention in Government service is undesirable, departmental action can be taken; but there also-subject to the condition precedent that the sanction of the Inspector General of Police must be obtained in the first instance. In the present case Qamarahs acquittal was not based on technical grounds and so any departmental action against him for the offence of which he had been acquitted would be clearly in breach of the prohibition in Para 241 of the Police Regulations. On behalf of the appellant it was strenuously contended before us that the charge of which the respondent has been found guilty and punished in the departmental enquiry is entirely different from the charge of which he had been acquitted. It is true that in form the charge in departmental enquiry, which has been set out above, does not accuse qamarali of having caused Mouji Kalars death or beaten him up of having caused disappearance of the evidence of culpable homicide. On closer examination, however, it becomes clear that the concealment of facts as to the cause of death of which the respondent was being charged was being alleged on (he basis that the true fact was that the sub-Inspector himself had been responsible for Mouji Kalars death. On closer examination, however, it becomes clear that the concealment of facts as to the cause of death of which the respondent was being charged was being alleged on (he basis that the true fact was that the sub-Inspector himself had been responsible for Mouji Kalars death. When we read the order of the Inspector Genera! of Police it becomes clear that that is bow he understood the charge and he tried to find out for himself whether the Trial Court had been right in acquitting the respondent. His conclusion was that the Trial Court had made an error, and this is how he expressed himself with all due deference to the trying Court, there is in my opinion, not the least doubt that Mouji met his death at the hands of the Police and in no other possible way. By avoiding any decision as to whether the deceaseds death was homicidal or suicidal, the Court was also able to avoid all considerations as to how the deceased managed to get his ribs fractured and his spleen ruptured, or as to who tied his hands together and threw him in the well. For the purpose of departmental enquiries which are held to regulate the conduct of the police common sense and equity must always be our guide. If in such cases as the present very strong action is not taken, there will not be a sufficient deterrent to officers and men who may think of indulging in the brutal and cowardly practice of torturing prisoners in order to extract confessions. there can be little doubt that in holding that the charge as made in the departmental enquiry had been established, the Inspector General of Police proceeded on the basis that the charge was that though Qamarali had himself taken part in the torture of Mouji Kalar causing to him injuries which resulted in his death, he had concealed those facts. The High Court was therefore right in holding that the respondent has been punished in respect of the very offence of which he had been acquitted. This is in clear contravention of the provisions in para 241 of the Police Regulations that when a Police officer has been tried and acquitted by a Criminal Court, he must as a rule be reinstated. This is in clear contravention of the provisions in para 241 of the Police Regulations that when a Police officer has been tried and acquitted by a Criminal Court, he must as a rule be reinstated. He may not be punished depart mentally when the offence for which he was tried constitutes the sole ground of punishment. " ( 10. ) THE Single Bench case was decided on the general principle on the ground that if the High Court does not sit as an appellate authority over departmental actions, the departmental authorities also would have, no jurisdiction to sit as an appellate authority over the decisions of law Courts. However, as per the pronouncement of their Lordships of the Supreme Court in state of M. P. v. Syed Qamarali (supra) the matter would now stand concluded. Therefore, as per Regulation 241 of the Police Regulations if the acquittal by the Criminal Court be on a technical ground or if the facts established at the trial show that his retention in Government service is undesirable, the departmental action can be taken against an employee of the Police Department even though he may have been acquitted by a Criminal Court. Otherwise, Regulation 241 of the C. P. and Berar Police Regulations would be a bar to the holding of a departmental enquiry against a police officer in respect of a charge, which has been the subject matter of a criminal offence. Of course, it is open to the departmental authorities to proceed depart mentally in respect of a different charge, although it may arise out of the same set of facts. But the bar is against holding a departmental enquiry on the sole charge, which was the subject-matter of a criminal case. In this connection, we might advert to the observations of a Division Bench of the Punjab High Court in Union of india v. Pritam Singh (AIR 1956 Punj. But the bar is against holding a departmental enquiry on the sole charge, which was the subject-matter of a criminal case. In this connection, we might advert to the observations of a Division Bench of the Punjab High Court in Union of india v. Pritam Singh (AIR 1956 Punj. 106.), wherein the Division Bench laid down that although the charge against the employee in criminal proceeding was that he had accepted bribe from certain persons and that this amount was recovered from his trousers pocket and although the accused had pleaded that those persons whose relations he had been ordered to arrest had without his knowledge and surreptitiously put the currency notes in his trousers pocket, the employee was ultimately acquitted by the criminal Court, but he was subsequently proceeded against depart mentally on the charge of negligence. The Division Bench held that the departmental proceeding for the charge of negligence was maintainable as the said charge had no connection with the charge of bribery and it was based on facts brought to light and discovered in evidence cited in the criminal case. Therefore, the bar provided by the Punjab Police Rules, vide rule 16. 3 (i) (d), framed under section 7 of the Police Act, 1861, which is analogous to Regulation 241 of the C. P. and Berar Police Regulations, would not bar a departmental enquiry absolutely. But the departmental enquiry could certainly be held on a different charge, although it may arise out of the same facts. ( 11. ) IN Radhakanta Patnaik v. State of Orissa (AIR 1962 Orissa 125.), the Division Bench of that court held as follows:- "merely because the Criminal Court did not convict the plaintiff of the charges of criminal breach of trust, cheating and forgery against him, that is no reason why the department which has to maintain the purity of its administration should be precluded from making further probe into the matter, particularly when, as in the present case, the plaintiff was given the benefit of doubt in the criminal case. Under rule 176 (c), if the department is satisfied that the retention of the plaintiff in the public service is prima facie no longer desirable, then even though he has not been convicted by criminal Court, it will still be open to the department to punish him by dismissal or otherwise after proper enquiry and after giving the plaintiff opportunity of submitting his defence, in compliance with the procedure laid down in the rules, all according to law. In our opinion, in the present case, there was proper enquiry and the plaintiff was given every opportunity of submitting his defence. " ( 12. ) THEREFORE, a departmental enquiry can be held against a member of the Police service if the acquittal is on the ground of giving the benefit of doubt to the accused. Applying the same analogy, it would be seen that as per Regulation 2 41 of the C. P. and Berar Police Regulations, if the judgment in a criminal case itself indicates that the Police Officer is unfit to be retained in police service, a departmental enquiry can certainly be held and his services can be dispensed with. ( 13. ) THIS question also came up for consideration before a Single Bench of the Madras High Court in Shaik Kasim v. The Superintendent of Post Offices ( AIR 1965 Mad. 502 .)wherein the learned officiating Chief Justice held that an administrative authority, in initiating disciplinary proceedings against a Government servant, would not be bound to wait for the verdict of a criminal Court, but, where the Criminal Court has tried the concerned person and acquitted him, it would be improper and such a proceeding is liable to be quashed as not in consonance with the principles of natural justice, if the administrative authority later initiates disciplinary proceedings on the identical facts and identical charge and records a contrary conclusion. There" could be no right or inflexible rule that the finding of a Criminal Court is conclusive in every sense, upon administrative authorities. If the finding be that the acquittal is on a technical ground, the administrative authority may conceivably punish the employee on the same facts. It can certainly punish where the acquittal is solely based on lack of sanction, or some technical defect in procedure. If the finding be that the acquittal is on a technical ground, the administrative authority may conceivably punish the employee on the same facts. It can certainly punish where the acquittal is solely based on lack of sanction, or some technical defect in procedure. It could punish, on the same facts, for some lesser charge, which may not amount to a criminal offence, but may well amount to grave dereliction of duty, entitling disciplinary action. But, however, where the acquittal is substantially on merits, on identical facts and charges, it will not be proper for a disciplinary Tribunal to record a finding of guilt, and to punish the employee thereon. This would be a basic principle of jurisprudence and it would make no difference that the departmental authority acts before the criminal proceedings or after it and the Court in exercise of the jurisdiction under Article 226 of the Constitution, would be justified in striking down the action based on such finding, as not in consonance with the principles of natural justice. Otherwise, grave anomalies might follow. ( 14. ) THE same sort of view was expressed by a Division Bench of the madras High Court in S. Krishnamurthy v. Chief Engineer, Southern Railway ( AIR 1967 Mad. 315 . ). Therefore, acquittal in a criminal Court will not be a bar to the holding of a departmental enquiry. But, there will be limitations to the departmental enquiry as mentioned in the cases referred to above. One salient1 principle will have to be followed in the departmental enquiry. Although the departmental enquiry may proceed on the same facts, but it cannot proceed on the same charge, which was the subject-matter of a criminal offence. Similarly, a departmental authority cannot be permitted to sit in judgment over the decision the criminal Court as an appellate authority and to pronounce a contrary view. If the acquittal be on a technical ground; in that event the departmental authority can certainly punish the employee by coming to its own conclusions. If, however, the acquittal be by giving the benefit of doubt, or the criminal Court judgment itself gives an indication that the retention of an employee is undesirable; in that event also the departmental authority would be free to take disciplinary action and to come to its own conclusions. If, however, the acquittal be by giving the benefit of doubt, or the criminal Court judgment itself gives an indication that the retention of an employee is undesirable; in that event also the departmental authority would be free to take disciplinary action and to come to its own conclusions. This, in our opinion, would be the limitations within which the departmental authority would have to act. ( 15. ) A Division Bench of the Mysore High Court in Rama P. C. No. 468 v. Superintendent of Police, Kolar (AIR 1967 Mysore 220.) laid down that even if a criminal prosecution has commenced and is continuing against an officer, a disciplinary proceeding in respect of the accusation which forms the subject-matter of the charge in the criminal Court is not forbidden and it can be commenced and concluded so long as the prosecution has not ended in an acquittal. What would constitute an impediment to disciplinary proceeding would be an acquittal in respect of the same charge. Therefore, the postulate that, as the evidence proposed to be given in the disciplinary proceeding is identical with the evidence which could prove the offence in the Criminal Court, there cannot be a parallel disciplinary proceeding is clearly untenable. ( 16. ) IN fact the scope of the departmental enquiry and the criminal prosecution would be different and as already indicated by us earlier, there would be no absolute bar against holding of a departmental enquiry inspite of an acquittal, but the limitations would be as mentioned by us above. ( 17. ) A Division Bench of the Gujarat High Court in Motisingh Chhagasingh Vaghela v. S. D. Mehta ( AIR 1966 Guj. 233 .) had to consider such a question with reference to a contempt of Court. The learned Judges constituting the Division Bench held that there would be no legal basis for the view that a departmental enquiry would be barred on the same facts on which an order of acquittal has been recorded by a criminal Court. There would be no constitutional bar to the departmental enquiry being held on the termination of a criminal proceeding in favour of a delinquent. A departmental proceeding would not be a prosecution within the meaning of section 403, Criminal Procedure Code and, therefore, there would be no such legal bar. There would be no constitutional bar to the departmental enquiry being held on the termination of a criminal proceeding in favour of a delinquent. A departmental proceeding would not be a prosecution within the meaning of section 403, Criminal Procedure Code and, therefore, there would be no such legal bar. The learned Judges purported to dissent from the view of a Single Bench of this Court in Qamarali Wahid AH v. State of M. P. (supra ). As the Supreme Court judgment in State of M. P. v. Qamarali (supra) has not been published anywhere, the same could not be brought to the notice of the Division Bench of the Gujarat High Court. However, as already observed by us earlier, the Supreme Court decision in Qamaralis case (supra) would conclude the matter on such a question and for this reason, we are unable to agree with the view of the Division Bench of the Gujarat High Court. ( 18. ) A Division Bench of the Kerala High Court in Varkey Joseph v. The mechanical Superintendent, Cochin Port Trust and others (1971 Labour and Industrial cases Vol. 4-2 p. 1466.), held that an acquittal in a criminal trial on a charge arising out of the same facts as in the departmental enquiry would not be an absolute bar against holding of a departmental enquiry or it would not be in violation of section 403 of the Code of Criminal procedure, 1898. The Division Bench purported to dissent from the view of a single Bench of this Court in Qamar Ali Wahid Ali v. State of M. P. (supra) as also the other cases of other High Courts. The fact that Qamar Ali Wahid Alls case had been decided ultimately by their Lordships of the Supreme Court could not have been brought to the notice of the learned Judges of the Kerala High court. However, as already observed by us earlier, the Supreme Court decision in Qamar Ali Wahid AH v. State of M. P. (supra) with reference to Regulation 241 of the C. P. and Berar Police Regulations would conclude the matter on this question. ( 19. ) LASTLY, we would advert to a Division Bench case of this Court, namely, Factory Manager, Central India Machinery and Manufacturing Co. ( 19. ) LASTLY, we would advert to a Division Bench case of this Court, namely, Factory Manager, Central India Machinery and Manufacturing Co. Ltd. , gwalior v. Abdul Rehman and others ( 1971 MPLJ 629 - 1971 JLJ 337 .), wherein the facts were that an employee was charged with misconduct of theft and he was acquitted by the Criminal court by giving him the benefit of doubt. It was held by the Division Pench that the employer could adduce evidence before the Labour Court relating to the misconduct of the employee despite his acquittal by the Criminal Court. However, in our opinion, the limitations on the departmental authorities would be there, if any, provided by the Service Rules or any Rules relating to departmental enquiries in respect of Police Officers, as per Regulation No. 241 of the c. P. and Berar Police Regulations. Subject to those limitations, the depart mental authority can certainly hold a departmental enquiry on the same set of facts and come to its own conclusions subject to the further limitation that a departmental authority cannot be permitted to sit as an appellate Court of a criminal Court. Therefore, we are of opinion that the Division Bench view of this Court, as expressed in Ramdayalsingh v. Harnamsingh (supra) correctly states the position subject to the limitations indicated by us above. Therefore we have to examine the present case in the light of the principles mentioned above. ( 20. ) NEXT, we may examine the question whether the acquittal of the petitioner was based on technical grounds or whether the facts established at the trial showed that the petitioners retention in Government service was undesirable. In these two eventualities only the departmental authority will have jurisdiction to hold a departmental enquiry on the same set of facts as per Regulation 241 of the C. P. and Berar Police Regulations. Examining the judgment of acquittal (Petitioners Annexure -A), passed by the Additional Sessions Judge, in a Sessions trial, the learned Additional Sessions Judge observed that it could not be said on the basis of the evidence on record that relations between the deceased Kiranbai and the present petitioner were not good or that the petitioner wanted to get rid of Kiranbai. The alleged letter said to have been written by Smt. Savitribai to the father of Kiranbai was not produced or proved. The alleged letter said to have been written by Smt. Savitribai to the father of Kiranbai was not produced or proved. The father of the deceased, Kiranbai, was also not examined. Even the other person, to whom Smt. Savitribai was said to have narrated the story had not been examined by the prosecution. Therefore, it was held that the bare statement of Smt. Savitribai that Kiranbai told her that it was desired that she (Kiranbai) should die, could not be taken as sufficient to prove the motive for the accused to commit the murder of Kiranbai. The learned Judge observed that the prosecution witnesses had not supported the prosecution case. Another circumstance was considered by the learned Judge to the effect that the accused and the deceased were the only two persons present in the room when the incident took place and that the accused did not try to make any report after the incident. Even Dr. P. S. Kaskhedikar (P. W. 11) did not question the deceased on her admission in the hospital as to the cause of the injury and that he did not inform the police that when he questioned the deceased, Kiranbai, she had told him that she had been stabbed by her husband. Dr. P. S. Kaskhedikar even denied the alleged statement said to have been made to the Station House Officer, Motisingh. Therefore, the oral dying declaration was disbelieved by the trial Judge. The learned trial Judge further observed that the prosecution had failed to prove as to how the injury was caused to the deceased. However, the learned Judge eliminated the possibility of an attack on the deceased in the course of a theft. That defence suggestion was negatived. The learned Judge also considered the other circumstantial evidence, including the written dying declaration said to have been made by the deceased, wherein she had stated that she did not know who had stabbed her. According to the learned trial Judge, the accused was not called upon to furnish any explanation as the prosecution had not proved even a plausible and prima facie case against him. As regards the blood-stains on the trousers, the learned trial Judge observed that there was absolutely no evidence to show that it belonged to the accused. On the other hand, the evidence indicated that the trousers belonged to the father of the accused. As regards the blood-stains on the trousers, the learned trial Judge observed that there was absolutely no evidence to show that it belonged to the accused. On the other hand, the evidence indicated that the trousers belonged to the father of the accused. The learned Judge examining the facts established on record from the evidence and also the circumstances, ultimately came to the conclusion that, no doubt, it was an unfortunate case where a helpless lady had been killed and the circumstances in the case did give rise to the suspicion that more probably than not, the accused may have committed the crime. But, suspicion alone could not be a substitute for proof. Thus, there is no doubt that the present petitioner was acquitted for want of sufficient material and prosecution evidence to incriminate the accused with the offence and there were not even circumstances, which may be considered to be implicating the accused. The only thing was that a few factors would raise a suspicion against the petitioner and suspicion, however strong, could be no substitute for proof. ( 21. ) THUS, the sum and substance of the judgment of the Additional sessions Judge was that the prosecution had failed to furnish proper evidence or even circumstantial evidence so as to lead to the conclusion that the accused was the murderer of his wife. A few facts, such as he was the only person occupying the same room at the time of the incident might raise a suspicion against him. Thus, it cannot be asserted against the petitioner that he was given the benefit of doubt. For entitling an accused to the benefit of doubt, the prosecution must establish some incriminating circumstances on the basis of which it might be said that the accused, in all probability, may be the author of the crime. It is the establishment of some incriminating circumstances that is material. The disciplinary authority was thus not right in holding that this was a case where the accused had been acquitted by giving him the benefit of doubt. But this was a case where the prosecution had failed to establish, either by direct evidence or even by circumstantial evidence, any incriminating factors against the present petitioner, which, if inconclusive, could give the accused the benefit of doubt. ( 22. But this was a case where the prosecution had failed to establish, either by direct evidence or even by circumstantial evidence, any incriminating factors against the present petitioner, which, if inconclusive, could give the accused the benefit of doubt. ( 22. ) EXAMINING the findings of the Enquiry Officer we find that he had examined the very persons, who were examined in the criminal case and on the same material and the circumstances, the Enquiry Officer came to a contrary conclusion. He purported to examine the evidence adduced before him as if he was deciding a sessions case. Evidently, the Enquiry Officer would have no power to sit as an Appellate Court of the Additional Sessions Judge. It is, therefore, clear that the petitioners acquittal was not on any technical ground, nor was it on the basis that he was given the benefit of doubt. In fact, the prosecution had miserably failed to prove its case, either by direct or by circumstantial evidence. As such, the acquittal was on account of the prosecution failure to bring home guilt to the accused without establishing any incriminating circumstances, although inconclusive. ( 23. ) THE next question will be whether the judgment of acquittal itself itself indicates that the petitioners retention in Police service would be undesirable. In our opinion, the judgment does not give any indication of such type. In the criminal Court, the prosecution had not only failed to establish any incriminating circumstance, either by direct evidence or by circumstantial evidence, but also had failed to establish any motive, whatsoever. In view of these facts, the Enquiry Officer could not purport to function as a Court of law and re-examine the very material, which had been put up before the Sessions court and which had been rejected by the learned Additional Sessions Judge. The attempt of the Enquiry Officer was to function as an appellate Court of the additional Sessions Judge and to come to a contrary conclusion upon the same material, which had been adduced in the Sessions Court. This evidently, the enquiry Officer could not have done on the principles laid down by their Lord-ships of the Supreme Court in State of M. P. v. Qamarali Wahidali (supra ). Moreover, the judgment of the Sessions Court also does not give indication that the petitioners retention in Government service was undesirable on account of any suspicious circumstances established against him. Moreover, the judgment of the Sessions Court also does not give indication that the petitioners retention in Government service was undesirable on account of any suspicious circumstances established against him. ( 24. ) IN this view of the matter, we are clearly of the opinion that on the principles laid down by their Lordships of the Supreme Court in the case mentioned above, the departmental authorities had no power or jurisdiction to punish the petitioner for an identical charge in respect of which the Sessions court had acquitted him due to the prosecution failure to prove its case. Regulation No. 241 of the C. P. and Berar Police Regulations will squarely govern the instant case. ( 25. ) CONSEQUENTLY, we allow the present petition and quash the impugned orders, namely, the order of the Superintendent of Police, dated 23-4-1969 (Petitioners Annexure-F), the appellate order of the Dy. Inspector General of police, dated 28-2-1970, and the order of the Inspector General of Police (Peti-tioners Annexure-I ). We further hold that the petitioners dismissal was wrongful and unconstitutional and that he shall be deemed to be in service and on duty. All questions shall be decided by the departmental authorities on this basis. Accordingly we quash the said impugned orders and issue a writ of mandamus as indicated. However, under the circumstances, we direct that there shall be no order as to costs of this writ petition. The outstanding amount of the security deposit shall be refunded to the petitioner. Petition allowed.