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Madhya Pradesh High Court · body

2005 DIGILAW 35 (MP)

Sahab Singh Sengar v. State of M. P.

2005-01-06

A.K.SHRIVASTAVA

body2005
ORDER A.K. Shrivastava, J. 1. By this petition, the petitioner is challenging the validity of the order Annexure-A/11 dated 25-9-1994 passed by the Superintendent of Police whereby the petitioner has been punished with a punishment of reduction to the minimum pay. The order of disciplinary authority was affirmed in departmental appeal and the DIG, Police vide its order dated 5-11-1995 (Annexure-A/13) dismissed the appeal. Hence this petition. 2. The charge against the petitioner is that the petitioner did not register a criminal case on a report which was lodged by one Scheduled Tribe lady namely Kosu bai in regard to commitment of gang rape over her. In the statement of imputation of misconduct, it is revealed that on 12-9-1993 at the out post police chowki Prabhat Pattan a report was lodged by the said lady and she was sent for medical examination. However, all 5 accused persons were not arrested since they gave bribe. On receiving of complaint vide letter dated 24-9-1993 the Station Officer-in-charge, Multai handed over the said letter to Head Constable Sanjay and when upto 13-10-1993 Head Constable did not submit any report, on enquiry it was found by the Station Officer-in-charge of police station Multai that the petitioner anyhow took the said complaint letter and thereafter the petitioner who was serving as Assistant Sub Inspector was summoned by Station Officer Incharge, Multai and it was found by him that on 14-10-1993 petitioner recorded the statement of Kosu Bai and, according to that statement, she was not subjected to gang rape. Later on, the Station Officer Incharge, Multai directed the petitioner to produce said Kosu Bai but he avoided, as a result of which Station Officer Incharge directed Head Constable Sanjay to summon Kosu Bai and on making enquiry from her it was found that indeed she was subjected to gang rape. On these facts the petitioner was charged that he did not register the case against accused persons on the report of gang rape lodged by said Kosu Bai. 3. The petitioner refuted the charge and eventually enquiry was conducted and after recording the evidence the Enquiry Officer did not find the charge to be proved. On these facts the petitioner was charged that he did not register the case against accused persons on the report of gang rape lodged by said Kosu Bai. 3. The petitioner refuted the charge and eventually enquiry was conducted and after recording the evidence the Enquiry Officer did not find the charge to be proved. The matter was referred to disciplinary authority who did not agree with the report of Enquiry Officer, on the contrary the disciplinary authority found the charge to be proved and eventually passed the order of punishment which I have mentioned hereinabove. Departmental appeal also met the same fate and it was dismissed. 4. It has been contended by Shri Girish Kekre, Learned Counsel for the petitioner that the present case is of no evidence and if that is the position the disciplinary authority and the appellate authority by recording perverse finding found the petitioner to be guilty and punished him and, therefore, this petition be allowed and the punishment orders be quashed. 5. Combating the aforesaid submission, it has been vehemently submitted by Shri V.P. Nema, learned Government Advocate, that if the evidence of Kosu Bai recorded in the departmental enquiry is considered in proper perspective, it would be as clear like a noon day that the petitioner by adopting the practice of unfair means by extending and unfair and uncalled advantage to the accused persons did not register the case against the accused persons. According to learned Government Advocate, charge is quite serious which is proved in the departmental enquiry and no judicial review is permissible since the findings are based on appreciation of evidence. On these premised ground it has been submitted by learned Government Advocate that this petition sans substance and the same be dismissed. 6. After having heard Learned Counsel for the parties, I am of the view that this petition deserves to be allowed. 7. Shri Kekre, Learned Counsel for the petitioner, by inviting my attention to statement of imputation of misconduct which is mentioned in the charge sheet Annexure-A/1, has contended that it is the respondents' own case that the petitioner was not posted at out post Chouki Prabhat Pattan of police station Multai. In the said statement of imputation, nowhere it has been mentioned that the said lady lodged the report to the delinquent petitioner at Prabhat Pattan police chowki on 12-9-1993. In the said statement of imputation, nowhere it has been mentioned that the said lady lodged the report to the delinquent petitioner at Prabhat Pattan police chowki on 12-9-1993. Learned Counsel has also invited my attention to Annexure-A/6 dated 28-9-1993 which is a copy of Roznamcha of police station Multai and submitted that according to this document, the petitioner was directed to take the charge of police chowki Prabhat Pattan on 28-9-1993. Another important document is. Annexure-A/7 which is also a copy of Roznamcha dated 8-10-1993 and, according to this document, the petitioner submitted his joining at police chowki, Prabhat Pattan on 8-10-1993. Thus, it is luminously clear that on 12-9-1993 the petitioner was not posted at Prabhat Pattan Chowki and, if that is the position, according to me, the petitioner cannot be responsible for not registering the case. The authenticity of Annexures-A/6 and A/7 has not been disputed in the return. However, it has been vehemently contended by Shri V.P. Nema, learned Govt. Advocate, by inviting my attention to para-3 of the return that there was no specific allotment of constable or other employees as stated by the petitioner who were deputed the charge of the Prabhat Pattan police chowki. According to return, on 12-9-1993 said Kosubai lodged the report. However, in the return there is no averment that on the relevant day i.e. 12-9-1993 the petitioner was present and was holding over the charge of the Chowki of Prabhat Pattan and it was the petitioner who did not register the case. Shri Nema, Govt. Advocate, has also invited my attention to the deposition sheets of said lady Kosu Bai (Annexure-A/4) recorded during the departmental enquiry and argued that the entire picture can be visualized from her statement. On going through the statement, a clear picture is formed but not roping the petitioner, but, exonerating him in toto. Nowhere in the statement the said lady has stated that she submitted her report to the petitioner on 12-9-1993 and, therefore, it cannot be said that the petitioner is responsible for not registering the case. I am unable to accept the argument of learned Government Advocate that the inference is to be drawn that it was only the petitioner who did not register the case. I am unable to accept the argument of learned Government Advocate that the inference is to be drawn that it was only the petitioner who did not register the case. According to me, if in the departmental enquiry, the said lady who was examined by the department, has not at all stated that the petitioner did not register the case and the report was submitted to him, it is very difficult to hold that it was the petitioner who was present in the police chowki of Prabhat Pattan on that day and he did not register the case. It be seen that if the petitioner would have been posted at Prabhat Pattan police chowki on that day, there would have been necessary entry in the Roznamcha, but, no such Roznamcha was produced in the departmental enquiry and, therefore, this would be an additional ground in order to hold that the petitioner is innocent. Indeed, on the basis of the evidence came on record, the enquiry officer rightly found that the charge is not proved against the petitioner. The disciplinary authority as well as the appellate authority in their order held that on the basis of evidence the charge is proved. The evidence of lady is totally otherwise. Thus, this is a clear case of no evidence and the orders passed by the disciplinary authority as well as by appellate authority are perverse and I have no option except to quash them. 8. Resultantly, this petition is allowed and the orders Annexure-A/11 dated 25-9-1995 and Annexure-A/13 dated 5-1-1995 passed by respondents No. 4 and 3 respectively are hereby quashed. Needless to emphasis, petitioner shall be entitled for all consequential benefits. Cost of this petition shall be borne by respondents. Counsel fee Rs. 1,500/- , if pre-certified.