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2012 DIGILAW 279 (JK)

Abdul Hamid Wani v. State of J&K & ors

2012-05-25

MOHAMMAD YAQOOB MIR

body2012
1. In terms of order No.2095 of 2005 dated 22.09.2005, petitioner has been removed from service. Aggrieved thereof, instant petition has been filed. Vide order dated 15.01.2005, order impugned has been directed to remain in abeyance. 2. Petitioner has been appointed as Constable in District Baramulla on 19.9.2000 under belt No.1733/B and transferred to DPL, Srinagar on 4.8.2003 with belt No.2502. While remaining posted at Srinagar was discharging duties in Sector No.3 of P/S Shaheed Gunj. He had hired a room in the house of one Mohammad Shafi Shegan S/O Habibullah R/O Bazar Batamaloo. On 06.09.2004, he had brought a lady to his rented room allegedly with the intention to commit sexual intercourse. The house owner Mohammad Shafi Shegan noticing presence of the lady in the rented room informed the police and a case was registered as FIR No.97/2004 for commission of offence punishable under Section 376/511 RPC P/S Batamaloo. 3. Petitioner was placed under suspension by SDPO, Shaheed Gunj vide order dated 04.09.2004. The departmental enquiry was entrusted to SDPO, Sadder. The enquiry report was prepared on 28th of April, 2005 where-under it was recommended: The official shall be awarded punishment as a corrective measure i.e. stoppage of annual increment for a period of two years and was recommended to be reinstated into service with immediate effect and the period of suspension with effect from 11.9.2004 till the date of completion of enquiry was recommended to be treated as on duty in view of he having remained present for the said period. 4. The said recommendation was not accepted by the competent authority, therefore, a show cause notice was issued on 09.08.2005 where-under petitioner was directed to show cause within seven days as to why he should not be removed from service. 5. Petitioner in his reply had made it clear that in fact house owner had asked him to vacate the premises earlier, so with the ill motive the house owner Mohammad Shafi Shegan lodged the report with the object of evicting him from the rented room. The girl in fact was sister of his close friend and was equivalent to his sister. One of the brother of the said girl was insane so was missing for quite long time. The girl in fact was sister of his close friend and was equivalent to his sister. One of the brother of the said girl was insane so was missing for quite long time. The said girl had information that her brother is in the mental hospital, so she had come to meet him, she could not get the transport facility to go back to her village, opted to stay for the particular night with the petitioner. He(petitioner) claimed to have treated her as his own sister and gave her brotherly treatment. In addition had divulged that the regular trial is pending regarding the occurrence before the Court of 3rd Additional Sessions Judge, Srinagar where both complainant and his wife have been examined. They have not deposed anything adverse against him and have also stated that the girl had stayed with the petitioner as a guest and nothing wrong had happened. Still the competent authority was not convinced, as a result thereof, order of removal of petitioner from service dated 22.09.2005 has been issued which is impugned. 6. The first contention of the learned counsel for the petitioner is that when a criminal case is registered, until result is known at the trial, departmental enquiry could not be held on the charges for which criminal case was registered. In support whereof, placed reliance on the judgment rendered by this Court in case Ghulam Mohi-ud-din Vs. State of J&K & ors, reported in JKLR 1984 546, wherein similar question arose for consideration. While referring to Rule 338(4) of J&K Police Manual, it has been opined that the departmental enquiry can be initiated against a police officer when a criminal charge fails against him solely on technical reasons or when the police officer has been given benefit of doubt or when the prosecution witnesses have resiled against the prosecution at the trial through the exercise of influence upon them or when an acquittal is ordered on the main charge or facts are brought to light in the course of trial which justify a separate enquiry. In that case acquittal shall not operate as a bar to the departmental action. In that case acquittal shall not operate as a bar to the departmental action. It has been concluded that when a criminal case is registered against a police officer unless its result is known at the trial and unless the conditions contained in the Section are satisfied, departmental enquiry cannot be held on the charges for which a criminal case was registered. In the reported case result of the trial was not known nor could be anticipated as to whether it would succeed or would fail, therefore, simultaneous departmental enquiry was not permissible under Rule 338(4) of the J&K Police Manual. 7. Admitted position is that as against the petitioner case was registered as FIR No.97/2004 for commission of offence punishable under Section 376/511 RPC, trial of the case has culminated in clear acquittal of the accused vide judgment dated 29.06.2006 rendered by the Court of 3rd Additional Sessions Judge, Srinagar. When the departmental enquiry had been initiated and the order of removal dated 22.09.2005 was passed, the trial of the case was in progress. When the trial was going on, the simultaneous departmental enquiry was impermissible in view of the position of Rule 338(4) of the J&K Police Manual. At least departmental enquiry has to await the results of the trial and dependent on the result of the trial it could be decided by the competent authority whether departmental enquiry can be initiated. 8. Rule 338(3) of the J&K Police Rules reads as under:- When a police officer has been tried judicially and acquitted on a criminal charge he shall not be punished departmentally on the same charge or on a charge based on evidence which has been rejected by the criminal court. Plain meaning would suggest that when a police officer is acquitted on a criminal charge, he shall not be punished departmentally on the same charge but the same position is controlled by Rule 338(4) which provides that the acquittal shall not in itself be a bar to departmental action under circumstances as envisaged by clause (4) itself and specifically made clear in the judgment as referred. 9. What emerges is that admittedly on the same occurrence case was registered, investigation of the case culminated in presenting the charge sheet and trial had commenced, therefore, departmental enquiry could not be initiated. 9. What emerges is that admittedly on the same occurrence case was registered, investigation of the case culminated in presenting the charge sheet and trial had commenced, therefore, departmental enquiry could not be initiated. All that the respondents were required to do were to wait for the result of the trail. It would serve two purposes, (1) in case accused (petitioner) would have been convicted, then may be departmental enquiry would not be required, and (2) in case of acquittal subject to the conditions as incorporated in Rule 338(4), the departmental enquiry could be initiated. The competent authority, in anticipation, has initiated the enquiry which has resulted in passing of removal order. Therefore, whole exercise undertaken i.e. conduct of enquiry followed by order of removal is totally illegal being contrary to Rule 338(4) of the J&K Police Manual. 10. Now admittedly petitioner has been acquitted after trial by the trial court i.e. Court of 3rd Additional Sessions Judge, Srinagar vide judgment dated 29.06.2006, it is only thereafter the departmental enquiry in accordance with Rule 338(4), if found desirable in accordance with the conditions incorporated therein, could be initiated, which option too is not now available because in terms of the judgment petitioner has earned clean acquittal. In view of the conditions as envisaged under Rule 338(4) of the J&K Police Manual, separate departmental enquiry is not permissible because criminal charge has not failed on technical reasons nor Court has recorded or noted that the accused is awarded benefit of doubt or that the witnesses have resiled against the prosecution through exercise of influence upon them nor any new fact has been brought to light during the course of trial. Therefore, in any case, in terms of Rule 338(4) of the Police Manual departmental enquiry could not be initiated. 11. Contention of the learned counsel for the respondents that in accordance with Rule 336 and 337 of the Police Manual, the punishment awarded to the petitioner i.e. removal from service is suitable, same will work as a deterrent, furthermore, the act of the petitioner is such which involves moral disgrace and proving incorrigible rendering the police officer unfit for police service. 12. It is true that the police officer has to be a symbol of discipline, he has to respect public trust, he belongs to a disciplined force which has to enforce law. 12. It is true that the police officer has to be a symbol of discipline, he has to respect public trust, he belongs to a disciplined force which has to enforce law. When a police officer who enforces the law himself violates the law, he has to be punished in a manner which would work as deterrent for others and will flash a signal to the society so as to ensure that public trust in police functioning is not breached and the confidence of the public in the police is not shacked. When a police officer has an allegation of being involved in immoral activities, then he has to be dealt with iron hand but in the instant case circumstances are altogether different. Firstly petitioner, as a matter of fact, being a police officer should not have allowed the lady to stay at his rented accommodation which would give rise to suspicion but it is forthcoming that no wrong has been done to the lady who had stayed at his rented accommodation and in addition he has qualified that the lady belonged to his village, she was late, she could not get transport facility to go back home and he treated her like his sister. This position is also vindicated because the trial court i.e. Court of 3rd Additional Sessions Judge, Srinagar, after examining the star witnesses has acquitted the petitioner, which means he earned a clean acquittal, therefore, law has to be followed in its real spirit. Protection under law is guaranteed, sentiments, however, great it may be cannot prevail. The process of trial into criminal charge and also the departmental enquiry have the object of separating the grain from the chef. In case a person is found involved, law does not provide him any shelter i.e. he gets punished which is mandate of law and in case nothing is proved, then law provides him protection as he gets acquitted. When he earns a clean acquittal, then there is no requirement of departmental enquiry because Rule 338(3) clearly provides that when a police officer has been tried judicially and acquitted of criminal charge, he shall not be punished departmentally on the same charge or on a charge based on evidence which has been rejected by the criminal court. When he earns a clean acquittal, then there is no requirement of departmental enquiry because Rule 338(3) clearly provides that when a police officer has been tried judicially and acquitted of criminal charge, he shall not be punished departmentally on the same charge or on a charge based on evidence which has been rejected by the criminal court. The departmental enquiry initiated and concluded, followed by the order of removal from service when the trial on the same charges against the petitioner was in progress is de horse the position of Rule 338, more particularly, Rule 338(4) and Rule 338(3) of J&K Police Manual. 13. Cumulative effect of the aforesaid discussion leads to only conclusion i.e. departmental enquiry initiated and then removal of petitioner from service is not in a consonance with law, so the entire exercise so undertaken including order of removal, being contrary to law, is quashed. 14. Petition accordingly succeeds.