Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 1072 (PAT)

Jaleshwar Sahani v. State Of Bihar

2003-09-29

S.N.JHA

body2003
Judgment 1. The petitioner is an Ex-Police Constable. He has been dismissed from service by the Superintendent of Police, Sitamarhi in Sitamarhi District Disciplinary Proceeding No. 67/92 vide District Order no. 478/ 96 dated 27.3.1996. The appeal and the memorial preferred by him having been rejected by the DIG of Police, Tirhut Range, Muzaffarpur and DGP Bihar by orders dated 23.5.96 and 27.11.98 he has approached this Court for quashing the impugned orders and grant of consequential benefits. 2. The charge against the petitioner was that during his deputation with Sri Ram Jiwan Prasad, an MLA, as his Bodyguard, on 2.4.92 at 8 PM without any reason and order of the MLA, he entered into altercation with one Pappu Thakur of Village Naranga, PS Bela, District Sitamarhi and in course of altercation fired shots at him from his service revolver which caused his death. It may be mentioned here itself that the occurrence led to Bela PS Case No. 10/92 under Sections 302, 201/34 of the Penal Code and Section 27 of the Arms Act against the petitioner. In course of time chargesheet was submitted against him and he was put on trial. 3. The aforesaid departmental proceeding was also initiated against the petitioner in the meantime. Charge memo was issued on 20.5.92 pursuant to which he submitted his written statement. According to him, the victim had assaulted him and also tried to snatch his service revolver which he resisted. In the process, trigger of the revolver got accidentally pushed which hit the victim. 4. It is unnecessary to refer to the other parts of the written statement. However without intending to prejudice the petitioners defence in the criminal case it may be stated that from the record of the enquiry proceeding, which was produced by the State Counsel for perusal, it appears that the deceased had sustained three gun shot injuries besides one abrasion which prima facie would appear to be inconsistent with his defence in the written statement. 5. Be that as it may, it is well settled that while making judicial review High Court is not supposed to go into correctness or otherwise of merit of the charges and/or decision, the Court has merely to see as to whether the decision making process was in accordance with law or not. 6. 5. Be that as it may, it is well settled that while making judicial review High Court is not supposed to go into correctness or otherwise of merit of the charges and/or decision, the Court has merely to see as to whether the decision making process was in accordance with law or not. 6. Counsel for the petitioner submitted that the petitioner has been prejudiced in his defence by non-examination of Sri Ram Jiwan Prasad, the doctor who has held postmortem, or the SP/Dy. SP whose supervision notes were taken into consideration besides the mother of the deceased who had lodged the criminal case namely Deoki Devi was examined behind his back without informing him the date of her examination. In the circumstances there is no legal evidence on record to sustain the finding of guilt recorded in the enquiry. It was also submitted that copy of the enquiry report was not given. Further as the criminal case was pending with respect to the occurrence constituting the same charge the departmental proceeding should have been stayed till disposal of the criminal case. 7. The respondents have filed counter affidavit affirmed by the SDPO Belsand, Satya Narayan Sharma, who has stated that on service of charge memo the petitioner filed his written statement on 30.5.92 in which he mentioned names of ten defence witnesses. However at the stage of enquiry he never made any request for examining the witnesses. As a matter of fact the petitioner did not appear in the proceeding but once (on 16.8.93) and allowed the enquiry of the proceeding to be conducted ex-parte. This stand of the respondent is in accord with the record of enquiry proceeding. In my opinion where the delinquent chooses to remain absent in the enquiry and allows the same to proceed ex-parte he cannot be allowed to make a grievance that witnesses were examined behind his back and/or he was denied opportunity to adduce evidence in his defence. It is relevant to mention that at the end of enquiry the petitioner was given a second show cause notice against dismissal from service, pursuant to which he duly filed his show cause on 29.2.96. He did not make any grievance about the nonsupply of copy of the finding, exhibits, statement of the witnesses etc. therein. The simple plea was that during pendency of criminal case the proceeding should not be continued. 8. He did not make any grievance about the nonsupply of copy of the finding, exhibits, statement of the witnesses etc. therein. The simple plea was that during pendency of criminal case the proceeding should not be continued. 8. In this regard it may be observed that there is no bar to holding departmental proceeding during pendency of the criminal case involving similar charges. However if the delinquent thinks that he is likely to suffer any prejudice by simultaneously prosecuting criminal case as well as departmental proceeding it is open to him to move the higher forum for appropriate order which in the instant case the petitioner never did. Having filed his show cause and appeared in the proceeding at one stage it has to be presumed that when he was aware of the pendency of the proceeding, he should have kept track of the dates and appeared on those dates to prove his defence. As a matter of fact, from the ordersheet of the proceeding it appears that notice was issued to the petitioner on various dates but without any result. In the facts of the case it cannot be said that the proceeding was conducted in violation of the rules of natural justice or rules of the Police Manual and in that view of the matter I find no ground to interfere with the impugned order. 9. In the, result, the writ petition is dismissed.