Research › Search › Judgment

Uttarakhand High Court · body

2015 DIGILAW 541 (UTT)

MS Dasauni v. State of Uttarakhand

2015-11-23

SUDHANSHU DHULIA

body2015
JUDGMENT : Sudhanshu Dhulia, J. 1. Mr. Lalit Kumar, Advocate present for the petitioner. 2. Mr. N.P.Shah, Standing Counsel, present for the State/respondent nos.1 to 3. 3. The petitioner before this Court is Sub-Inspector in Uttarakhand Civil Police. He has challenged before this Court two orders, the first order is dated 22.06.2009 and the second order is dated 04.01.2010. By first order dated (22.06.2009 annexure-1 to the writ petition) the Chairman of State Police Complaints Authority has given a finding that the petitioner has committed an act of serious misconduct, which stands proved against him and hence he should be placed at the lowest pay scale of Sub-Inspector for a period of five years. This Court has been informed that on these recommendations nothing further has been done but another order dated 04.01.2010 (annexure-2 to the writ petition) passed by the Police Complaint Authority, a charge sheet has been given to the petitioner by the inquiry officer. The main ground for challenge of the said proceeding by the petitioner before this Court was on jurisdiction of the State Police Complaints Authority. In the State of Uttarakhand, the main act relating to Police and its establishment is the Uttarakhand Police Act 2007. Chapter VIII of the said Act is regarding “Police Accountability”, which defined from Section 62 to 76 of the Uttarakhand Police Act. 4. Section 64 of the Uttarakhand Police Act 2007 speaks about a State Police Complaints Authority, which read as under:- “ The State Government shall, within six months of the coming into effect of this Act, establish a State Police Complaints Authority, (hereinafter referred to as the “Authority”) consisting of a Chairperson and maximum four other Members to inquire into public complaints against the police personnel for serious misconduct and to perform such other functions, as stipulated in this Chapter.” 5. Thereafter Section 65 is regarding the structure of the State Police Complaints Authority, which reads as under:- “(1) The Authority shall consist of maximum five member, to be appointed by the State Government, with a credible record of integrity and commitment to human rights. The Authority shall consist of the following:- (a) four persons of eminence with experience in public dealing and having credible record of integrity and commitment to human rights as independent members. The Authority shall consist of the following:- (a) four persons of eminence with experience in public dealing and having credible record of integrity and commitment to human rights as independent members. (b) a Police officer superannuated in the rank not below the rank of Inspector General of Police; (2) At least one member of the Authority shall be a woman and no more than one member shall be a police officer. (3) Out of the four independent members, at least one member of the Authority shall be from amongst persons, having a good knowledge of law. (4) The State Government shall appoint one of the independent members, as Chairman of the Authority.” 6. Section 71 & 72, which are regarding the powers and functions of the State Police Complaints Authority, which reads as under:- “Section 71. (1) The Authority shall forward the complaints of misconduct, received directly by it, to the Director General of Police for further action, however, no cognizance shall be taken of anonymous complaints. (2) The Authority may inquire into allegations of “Serious misconduct” against police personnel, on a complaint received by it. Explanations: “Serious misconduct” for the purpose of this Chapter, means any act of a police officer, due to which charges may be framed for the following:- (a) death in police custody; (b) grievous hurt, as defined under section 320 of the Indian Penal Code, 1860. (c) rape or attempt to commit rape; (d) arrest or detention without due process of law; (e) violation of human rights; or (f) Corruption. (g) (3) The Authority may also inquire into any other case, referred to it by the State Government or the Director General of Police if, in the opinion of the Authority, the nature of the case is fit for independent inquiry. (4) The Authority may monitor the status of departmental inquiries or departmental action on the complaints of ‘misconduct’ against gazetted officers, through a quarterly reports, obtained periodically from the Director General of Police, and may give appropriate advice to the State Government for completion of action in such cases. (4) The Authority may monitor the status of departmental inquiries or departmental action on the complaints of ‘misconduct’ against gazetted officers, through a quarterly reports, obtained periodically from the Director General of Police, and may give appropriate advice to the State Government for completion of action in such cases. (5) The Authority may also call for a report from the Director General of Police and may issue appropriate advice for further action or a direction for a fresh inquiry by another officer, when a complainant, on being dissatisfied by the outcome of, or inordinate delay in the process of departmental inquiry into his complaint of “misconduct” as defined above, by any police officer, brings such matter to the notice of the Authority. (6) The Authority may suggest general guidelines for the State Police to prevent misconduct on the part of police personnel.” Section 72 read as under:- “72. (1) The Authority shall have the power to require any person, subject to legal privilege, to furnish information on such points or matters as, in the opinion of the Authority, may be useful for, or relevant to, the subject matter of the inquiry and any person so required, shall be deemed to be legally bound to furnish such information within the meaning of Section 176 and 177 of the Indian Penal Code, 1860. (2) The Authority, for discharging its duties under this Chapter, shall have the power of a Civil Court. (3) In the cases enquired directly by it, the Authority may, upon the completion of the enquiry, communicate its finding to the State Government and recommend suitable action.” 7. Under Section 74 any person may lodge a complaint regarding misconduct or serious misconduct on the part of a police personnel and the procedure is given under Section 74, which reads as under:- “74. (1) Any person may lodge his complaint, relating to any “misconduct” or “serious misconduct” on the part of police personnel, with the Authority; Provided that no complaint shall be entertained by the Authority, if the subject matter of the complaint is being examined by any other Authority or any court established by law. (2) In cases, where a person has lodged a complaint with the police authorities, he may inform the Authority, at any stage of the departmental inquiry, about any undue delay in the processing of the inquiry. (2) In cases, where a person has lodged a complaint with the police authorities, he may inform the Authority, at any stage of the departmental inquiry, about any undue delay in the processing of the inquiry. (3) The complainant shall have a right to be informed of the progress of the inquiry, from time to time to time, by the Inquiring Authority (the concerned police Authority or the Authority). Upon completion of inquiry or departmental proceeding, the complainant shall, as soon as may be, informed of the conclusions of the same.” 8. At this juncture it must be stated that the complaint was not filed by the victim – Siya Ram but by his brother – Bhawan Singh, but for the sake of convenience, we will refer to Siya Ram who in fact is the actual victim in the present case. 9. The case against the present petitioner is that while he was posted as an Officer-in-Charge of Police Station at Kalsi in District Dehradun, on 26.06.2008 one person, namely, Siya Ram, who was the Driver of a Utility/Vehicle (Bolero Jeep No. UA07F/3298) was stopped outside the Police gate, and later the petitioner abused him and pointed his service revolver on his head and dragged him inside the Police Station, where he was put under lock-up without, framing any formal charges against him. He was kept the entire night in the lock-up. During the night the petitioner called other policemen and Siya Ram was then mercilessly beaten. He sustained many injuries on his body, some of them may have grievous in nature, as revealed by the medical examination report forwarded by the complainant to the State Police Complaint Authority. Although the victim was arrested without any charge at about noon (12:00 PM) on 26.06.2008 and on the next day produced before the learned Magistrate only after 24 hours of the said incident on 27.06.2008. The learned Magistrate granted bail to Siya Ram on 27.06.2008. Thereafter he did his medical examination, which he has filed before the State Police Complaints Authority. 10. It appears that the Chairman of the State Complaint Authority thereafter had given a notice to both i.e. complainant – Siya Ram, who was the victim and the present petitioner – M.S. Dasauni. The learned Magistrate granted bail to Siya Ram on 27.06.2008. Thereafter he did his medical examination, which he has filed before the State Police Complaints Authority. 10. It appears that the Chairman of the State Complaint Authority thereafter had given a notice to both i.e. complainant – Siya Ram, who was the victim and the present petitioner – M.S. Dasauni. Thereafter hearing the arguments of both the parties the Chairman the State Complaint Authority came to the conclusion that the allegations of the complainant Siya Ram are correct. 11. According to the complainant – Siya Ram, he was beaten by the police in lock-up about 3 to 4 times by various policemen, as a result he lost hearing from his left ear. He has also named one of the policemen, apart from the petitioner who had caused injuries to him and his name is given as “Nitin Kumar”. Regarding injury no. 1, which is a serious in nature as per the opinion of the Doctor who examined at Government Hospital at Vikas Nagar, Dehradun. The General Diary further shows that he was taken in custody at about 12:00 noon on 26.06.2008 where no injury on his body have been shown. Immediately after his release from the police custody, he got himself medically examined at 08:00 p.m. on 27.06.2008 in Government Hospital where as many as five injuries have been detected by the Doctor on his body (Siya Ram). Since these injuries were caused to the complainant, while he was in police custody, after his release from lock-up on 27.06.2008, Siya Ram was medically examined by Doctors at Government Hospital, Vikas Nagar, Dehradun. The medical report shows that injury No. 1 was caused about 12 to 18 hours earlier and remaining injuries i.e. injury nos. 2 to 5 was caused about 24 to 48 hours earlier. Most of these injuries could have caused, more particularly injury No. 1 which is grievous in nature, when the victim was in police custody, 12. The Chairman of the State Police Complaint Authority came to the conclusion that the charges under Section 71(2) (b) & (e) of the Uttarakhand Police Regulation Act, 2007 of serious misconduct of rule against the petitioner and therefore he was recommended to the appointing authority that the petitioner be put at the lowest pay scale of five years as punishment. The Chairman of the State Police Complaint Authority came to the conclusion that the charges under Section 71(2) (b) & (e) of the Uttarakhand Police Regulation Act, 2007 of serious misconduct of rule against the petitioner and therefore he was recommended to the appointing authority that the petitioner be put at the lowest pay scale of five years as punishment. The main ground of challenge of the petitioner here is that the “Police Complaint Authority” is a multi member body and the Chairman on his own cannot take action against the petitioner as the order can be only of the “authority”. Admittedly the order dated 22.06.2009 is an order of the Chairman alone. 13. Learned counsel for the respondents/State in his counter affidavit has stated that action has been taken against the petitioner by the appointing authority not on the direction of the “Chairman” of the State Police Complaint Authority but on direction of the Police Complaint Authority. In Uttarakhand, at the relevant time, in the State Complaint Authority there were five members including the Chairman. The remaining four members (apart from the Chairman) have subsequently passed an order dated 14.07.2009 on the complaint of Bhuwan Singh (brother of the victim – Siya Ram). On the same complaint on which the earlier order was passed by the Chairman that too after giving a notice to the complainant, to the doctor as well as to the delinquent officer i.e. present petitioner and have arrived at the same conclusion that the petitioner being a Police Officer has committed serious misconduct. But unlike the Chairman, they have not proposed the punishment. The Committee has simply given a finding that the action on the part of the petitioner is an act of serious misconduct, and therefore, proceedings should be drawn against him under Rules 4(1)(a) and 14(1) of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991. Under the provision of sub rule (1) (a) of Rule 4 and Rule 14(1) of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 proceedings have drawn against Police Officer, which entails major penalty and this has to be read with appendix I of the said Rules. Rule 4(1)(a) of Uttar Pradesh Police Officers of The Subordinate Ranks (Punishment and Appeal) Rules, 1991 reads as under:- “4. Rule 4(1)(a) of Uttar Pradesh Police Officers of The Subordinate Ranks (Punishment and Appeal) Rules, 1991 reads as under:- “4. Punishment (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer, namely- (a) Major Penalties - (i) Dismissal from service. (ii) Removal from service. (iii) Reduction in rank including reduction to a lower-scale or to a lower stage in a time scale.” 14. Rule 14(1) of Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 reads as under:- “14. Procedure for conducting departmental proceedings (1) Subject to the provisions contained in these Rules, the departmental proceedings in the cases referred to in sub-rule (1) of Rule 5 against the Police Officers may be conducted in accordance with the procedure laid down in Appendix I.” 15. Appendix-I of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 reads as under:- “Procedure relating to the conduct of departmental proceedings against Police officer: Upon Institution of a formal enquiry such Police Officer against whom the inquiry has been instituted shall be informed in writing of the grounds on which was proposed to take action and shall be afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be used in the form of a definite charge or charges as in Form 1 appended to these Rules which shall be communicated to the charged Police Officer and which shall be so clear and precise as to give sufficient indication to the charged Police Officer of the facts and circumstances against him. He shall be required, within a reasonable time, to put in, in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the Inquiry Officer so directs an oral enquiry shall be held in respect of such of the allegation as are not admitted. At that enquiry such oral evidence will be recorded as the Inquiry Officer considers necessary. The charged Police Officer shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish: provided that the Inquiry Officer may, for sufficient reasons to be recorded in writing, refuse to call a witness. At that enquiry such oral evidence will be recorded as the Inquiry Officer considers necessary. The charged Police Officer shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish: provided that the Inquiry Officer may, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the finding and the ground thereof. The Inquiry Officer may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Police Officer.” 16. Subsequent to the order passed by the Committee a charge-sheet has also been given to the petitioner by the department/respondent. However, since it has been challenged by the petitioner before this Court and the learned Single Judge of this Court has already stayed the proceedings, nothing more is to be said in this matter. The main challenge of the petitioner before this Court is that the two orders (dated 22.06.2009 and 04.01.2010) are not orders in the eyes of law, as regarding first order dated 22.06.2009 it can only be passed by the State Police Complaint Authority and it does not mean only the Chairman but it means the entire authority. 17. The second order dated 04.01.2010 on which action actually has been taken by the appointing authority is an order which has not been referred by the petitioner in the writ petition. This order has been placed before this Court by the State in its counter affidavit. Order dated 14.07.2009 bears the signature of all the four members of the authority. On the basis of this order a charge-sheet has been given by the appointing authority to the petitioner. This Court finds nothing wrong with the second order i.e. order dated 14.07.2009, as the said order bear the signature of the majority of Members of the Committee of the Authority. However, the earlier order is non est in the eyes of law. Moreover, no action has been taken by the Police authority on the basis of this order. From the perusal of annexure No. 2 which is impugned order dated 04.01.2010, it seems to be passed by the enquiry officer. This is the charge sheet and an enquiry officer is not supposed to prepare a charge-sheet, as this is the job of the appointing authority. From the perusal of annexure No. 2 which is impugned order dated 04.01.2010, it seems to be passed by the enquiry officer. This is the charge sheet and an enquiry officer is not supposed to prepare a charge-sheet, as this is the job of the appointing authority. Enquiry officer has to conduct an enquiry in an impartial manner and therefore, framing of the charge-sheet is not one of the duties of the enquiry officer. Therefore, as far as the order dated 04.01.2010 is concerned that seem to be without jurisdiction. 19. The subsequent order which is the then second order dated 04.01.2010 which is annexed as annexure No. 2 to the writ petition, given by the investigating officer is hereby quashed. Let the appointing authority give a charge sheet to the petitioner in accordance with law as the charge against the petitioner is of a very serious nature and a departmental proceeding is in order. 20. With the aforesaid observations, the writ petition stands disposed finally. 21. The Registrar General of this Court is hereby directed to apprise the Director General of Police, Uttarakhand of this order for onwards compliance, as expeditiously as possible, in accordance with law.