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Himachal Pradesh High Court · body

2022 DIGILAW 724 (HP)

Ram Singh v. State of H. P.

2022-11-18

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, the petitioner has prayed for following substantive relief: “(i) That a writ in the nature of certiorari may kindly be issued and the inquiry report Annexure P-6, Annexure P-7 dated 28.08.2007, P-9, P-11 dated 2.4.2008 and P- 12, passed by Director General of Police may kindly be quashed and set aside in the interest of justice.” 2. Brief facts necessary for adjudication of instant petition are that in the month of June 1999, the petition was posted as Head Constable in Himachal Pradesh Police, 1st Battalion Junga. He was deputed to serve in District Kinnaur as there was law and order problem created by dispute between the management and workers of a Hydro Electric company. On 25.06.199, FIR No. 99 of 1999 was registered at Police Station Bhawanagar under Sections 147, 148, 149, 353, 332, 333, 427, 1145, 302, 307, 120-B of the IPC. During investigation of aforesaid FIR, petitioner was also cited as one of the eye witnesses to the occurrence. 3. On completion of investigation, the challan was presented and the accused named therein were tried by the learned Sessions Judge, Kinnaur at Rampur. Petitioner was also summoned as prosecution witness. Petitioner did not support the prosecution version in entirety. Respondent No.3 vide office order dated 30.09.2006 ordered a regular departmental inquiry against petitioner. Additional Superintendent of Police, Sirmaur at Nahan was appointed as inquiry officer and was ordered to conduct the inquiry under Rule 16.24 of Himachal Pradesh Police Rules. Petitioner was served with a charge sheet dated 18.10.2006. It was alleged that the petitioner had refused to identify the accused in the Court while making deposition during trial, whereas the Investigating Officer of the case while recorded the statement of petitioner under Section 161 of the Cr.P.C., had noted that petitioner had seen the assailants committing the crime and had named them. Such conduct of petitioner was charged as misconduct and dereliction of duty. Petitioner contested the charge. The inquiry Officer indicted the petitioner and held the charge proved against him. The disciplinary authority imposed penalty of forfeiture of five years' approved service of petitioner permanently. Such conduct of petitioner was charged as misconduct and dereliction of duty. Petitioner contested the charge. The inquiry Officer indicted the petitioner and held the charge proved against him. The disciplinary authority imposed penalty of forfeiture of five years' approved service of petitioner permanently. In appeal, preferred by the petitioner to the Appellate Authority, the findings returned by the Inquiry Officer as also the Disciplinary Authority were affirmed, however, the order passed by the Disciplinary Authority was modified to the extent that punishment of forfeiture of approved service of petitioner only for the purpose of increments was imposed. The second appeal filed by petitioner before respondent No.2 was treated as revision but there also petitioner remained unsuccessful. Hence this petition. 4. The grievance of the petitioner is that the entire proceedings from initiation of inquiry and framing of charge to imposition of punishment on him are wrong and illegal. It is contended on behalf of the petitioner that he was supposed to narrate the facts truthfully before the Court, which he had done and there was no proof that the version recorded in his statement under Section 161 of the Cr.P.C. was correct or truthful version. 5. In reply, the respondents have contested the prayer of petitioner. It has been submitted that the petitioner had turned hostile while deposing before the learned Sessions Judge, Kinnaur at Rampur and had resiled from the version recorded in his statement under Section 161 Cr.P.C. The findings of Inquiry Officer and punishment imposed upon the petitioner have been justified on the ground that the conduct of petitioner was unbecoming of a police official and was a clear misconduct on his part. 6. I have heard learned counsel for the parties and have also gone through the record carefully. 7. There is no dispute on facts that the petitioner was charged for misconduct only on account of his deposition before learned Sessions Judge being not in accordance with his version recorded by the Investigating Officer of the case, under Section 161 of the Cr.P.C. The exception had been taken to aforesaid conduct of petitioner on the ground that the petitioner being a Police official was supposed to know the contents of his version recorded under Section 161 Cr.P.C., and in case such version was not correct, the matter should have been reported. Thus, an inference has been drawn that the version of petitioner recorded under Section 161 of the Cr.P.C., by the Investigating Officer was correct and the conduct of petitioner in resiling from said version was a misconduct and dereliction of duty. 8. Any police officer making investigation under Chapter-XII of Cr.P.C., is authorised under section 161 to reduce into writing any statement made to him by any person supposed to be acquainted with the facts and circumstances of the case and if he does so, he is obliged to make separate and true record of the statement of such person whose statement he records. Under Section 162 of the Code of Criminal Procedure, the statements recorded by the Police Officer under section 161 can be used either by the accused or by the prosecution to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act. The aforesaid provision prescribes a specific bar that no such statement shall be got signed from the witness as recorded by Police Officer. 9. Thus, the statement recorded by the Police Officer under Section 161 of the Cr.P.C. is not a substantive piece of evidence by itself. No presumption is attached to the contents of the statement so recorded. 10. When there is no presumption as to the contents of statement recorded under Section 161 of the Cr.P.C., it cannot be said that the version recorded therein is correct and the version given by the witness, in case if contrary to the version recorded in statement under Section 161 of the Cr.P.C. is incorrect. It is for the Court to decide whether the petitioner has given a wrong version before the Court or not and this can be done only by appreciating the statement of such witness in accordance with law. 11. Admittedly, there was no charge against the petitioner that the Court had indicted him of having given a wrong version before the Court or that the version recorded by the Investigating Officer under Section 161 Cr.P.C. was correct. In this view of the matter, the petitioner could not have been charged for any misconduct merely by assuming that the version recorded by the Investigating Officer under Section 161 of the Cr.P.C. was correct. Viewed from another angle, if the assumption drawn by the respondents is sustained, it will be against the cardinal principles of criminal jurisprudence. In this view of the matter, the petitioner could not have been charged for any misconduct merely by assuming that the version recorded by the Investigating Officer under Section 161 of the Cr.P.C. was correct. Viewed from another angle, if the assumption drawn by the respondents is sustained, it will be against the cardinal principles of criminal jurisprudence. The witness, in such a situation, will be bound to state whatever has been recorded in his statement under Section 161 Cr.P.C., be it incorrect and against the true facts. In other words, it will amount to rewriting Section 162 of the Cr.P.C. by attaching presumption of truth to statements recorded under Section 161 of the Cr.P.C. 12. The aspect discussed above has been completely overlooked by the respondents. In the light of the above discussion, the impugned orders passed by the respondents holding the petitioner guilty of misconduct and punishing him for the same cannot be sustained. 13. In result, there is merit in the instant petition and accordingly the same is allowed. Consequently, inquiry reports, Annexure P-6, Annexure P-7 dated 17.07.2007, Annexure P-9 dated 28.08.2007, Annexure P- 11 dated 2.4.2008 and Annexure P-12 are quashed and set aside. 14. The petition is accordingly disposed of so also the pending application(s), if any.