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2022 DIGILAW 835 (AP)

Director General of Police, A. P. v. D. Ravi Babu, S/o (Late) Someswara Rao

2022-09-06

D.V.S.S.SOMAYAJULU, PRASHANT KUMAR MISHRA

body2022
ORDER : D.V.S.S.Somayajulu, J This Writ Appeal No.526 of 2022 is filed against the order, dated 01.04.2021, passed by the learned single Judge in W.P.No.23315 of 2020. 2. Writ Appeal No.527 is filed against the dismissal of the Review I.A.No.1 of 2021 in W.P.No.23315 of 2020. 3. Since the main issues were raised and argued in W.A.No.526 of 2022 the same was taken up for hearing. 4. This Court has heard Sri Kasa Jaganmohan Reddy, learned Special Government Pleader, appearing for the learned Government Pleader of Services-I for the appellant, and Sri G. Seena Kumar, learned counsel for the respondent. 5. The respondent-Writ Petitioner is a Deputy Superintendent of Police, who was placed under suspension because he is accused in two heinous crimes. 6. Learned Special Government Pleader argues that as a person of the disciplined Uniform Force the respondent-Writ Petitioner was involved in two heinous crimes viz., Crime No.123 of 2017 of New Port Police Station, Visakhapatnam and Crime No.668 of 2017 of Gajuwaka Police Station, Visakhapatnam. It is pointed out that the offences for which the respondent-Writ Petitioner is charged are under Sections 302, 120b, 201, 417, 497, 506 and 500 IPC along with the provisions of SC & ST (POA) Act. Learned Special Government Pleader submits that the respondent-writ petitioner, who was responsible police officer entered into an extra marital relationship with a lady; taking the assistance a known rowdy sheeter trouble maker the lady was killed. Thereafter another conspiracy was hatched to kill the “known rowdy sheeter” with the assistance of another person. He is also accused of paying money to the hired killers. Basing on these offences, learned Special Government Pleader submits that two crimes were registered against the respondent-writ petitioner. It is submitted that apart from the registration of the crimes, Departmental proceedings were also initiated after following due process and the enquiry is completed and show cause notice was issued to the respondent-writ petitioner to submit his explanation to the proposed punishment. At that stage, learned Special Government Pleader submits that W.P.No.23315 of 2020 was filed. He points out that since the enquiry is almost completed, the pendency of the criminal cases need not be stayed. According to him, the criminal cases were delayed due to some technical reasons but the departmental enquiry proceeded. At that stage, learned Special Government Pleader submits that W.P.No.23315 of 2020 was filed. He points out that since the enquiry is almost completed, the pendency of the criminal cases need not be stayed. According to him, the criminal cases were delayed due to some technical reasons but the departmental enquiry proceeded. Learned Special Government Pleader points out that the respondent-Writ petitioner did not raise any issue of procedural irregularities etc., but has only argued on the merits of the matter. It is his contention that as substantial part of the enquiry is already completed, the final punishment is to be imposed, no prejudice will be caused to the respondent-writ petitioner if enquiry is allowed to be finalised. He questions the manner in which learned single Judge granted stay of the enquiry. According to him, the learned single Judge took diametrically opposite stands on the enforceability of the Police Standing Orders in the Writ order and in the review order. In the leading case of M. Paul Anthony v Bharat Gold Mines Ltd., (1999) 3 SCC 679 the following points were laid down and these were emphasised by the learned Special Government Pleader. “The conclusions which are deducible from various decisions of this Court referred to above are: (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case. will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest." 7. Relying on paragraph 5, learned Special Government Pleader argues that the departmental proceedings can be continued if there is a delay in disposal of the criminal proceedings. Learned Special Government Pleader, therefore, argues that the learned Single Judge committed a gross error in staying the departmental proceedings. According to him, there is no prejudice will be caused to the respondent-writ petitioner. He points out that the relevant case law is already been relied upon and is referred to by the learned single Judge. Therefore, he submits that the Writ Appeal should be allowed and the order of the learned single Judge should be set aside by granting permission to the writ appellant to complete the enquiry. 8. In reply to this, Sri G. Seena Kumar, learned counsel for the respondent-writ petitioner argued that the important case law on the subject has already been cited and quoted in the hearings. He points out that learned single Judge correctly came to the conclusion that if the criminal case and the enquiry are based upon the same set of facts the stay must be granted considering the gravity of the offence and the complicated questions of law and fact. He points out that learned single Judge correctly came to the conclusion that if the criminal case and the enquiry are based upon the same set of facts the stay must be granted considering the gravity of the offence and the complicated questions of law and fact. Pointing out to the findings in page No.11 and 12 of the order learned counsel argues that after appreciating the leading case law on the subject including M. Paul Anthony case (1 supra) learned single Judge came to the conclusion that the respondent-Writ Petitioner would be prejudiced in case he is forced to disclose his final stand in the matter. He submits that after the evidence is recorded, the respondent-Writ Petitioner will have to point out his conclusions and the strength he draws from various parts of the evidence and, therefore, he will definitely suffer prejudice in the criminal case since the facts are same in both the matters. Learned counsel, therefore, points out that the cases against the respondent-writ petitioner are motivated, that a delayed FIR was entertained and the respondent-writ petitioner is also denied all his promotions on the ground that the cases are pending. Learned counsel, therefore, submits that no error has been committed by the learned single Judge. 9. This Court after considering the submissions of both the learned counsel, the documents filed and the law on the subject, notices that as early as in 1960 itself in the case of Delhi Cloth and General Mills Ltd., v Kushal Bhan, AIR 1960 SC 806 Hon’ble Supreme Court of India clearly held that “if the case is of grave nature and involves question of facts or law, which are not simple, it would be advisable for the employer to wait the decision of the trial Court, so that the defence of the employee in the criminal Court may not be prejudiced”. Even in the leading case of M. Paul Anthony case (1 supra) five conclusions were reduced by the Apex Court. In Point No.2, Hon’ble the Supreme Court of India clearly stated that if the charges are identical in the departmental proceedings and in the criminal cases and there are similar set of facts etc., it would be desirable to stay the departmental proceedings. This is the law on the subject and it does not admit on any doubt. In Point No.2, Hon’ble the Supreme Court of India clearly stated that if the charges are identical in the departmental proceedings and in the criminal cases and there are similar set of facts etc., it would be desirable to stay the departmental proceedings. This is the law on the subject and it does not admit on any doubt. In this case also, admittedly, the charges are involving offences under Section 302 IPC, 120B IPC and other serious sections. The departmental proceedings and the criminal cases are based upon similar facts. In para 10 of the Writ Affidavit, the respondent-writ petitioner has clearly said that if he discloses his further defence it will cause prejudice to his case. This is an aspect which also cannot be lost sight by the Court. It is a known fact after evidence is recorded the parties and other respondents draw the conclusions from the said facts and bring them to the notice of the Judge or Enquiry Officer either to allow their case or to dismiss the same. Finally, the submissions would be the link between the charge, the evidence and the conclusions. Therefore, even if evidence is recorded in the departmental proceedings like in this case, if the petitioner is asked to submit his final written submissions in the form of reply the likelihood of prejudice cannot be totally ruled out. 10. The reason for the delay of the trial, as can be seen from the record filed, is because of want of certain expert’s opinion on documentary evidence etc., secured during the investigation. This is stated in the counter affidavit filed in December, 2020 in the Writ Petition. Till date no progress seems to have been achieved in this. Even if any progress is achieved, it is not brought to the Court’s notice. It is also noticed that the State is not denying that the charges in the departmental proceedings and the charges in the criminal cases are absolutely different and that no prejudice would be caused. 11. In these circumstances and based on the material available, this Court has to agree with what is stated by the respondent in the writ appeal that the likelihood of prejudice is clear. 12. Apart from this, lot of argument was also concentred on Police Standing Order No.150. 11. In these circumstances and based on the material available, this Court has to agree with what is stated by the respondent in the writ appeal that the likelihood of prejudice is clear. 12. Apart from this, lot of argument was also concentred on Police Standing Order No.150. The said order is as follows: “Where there is a Grave Criminal Misconduct on the part of a Police Officer, action should be taken in terms of APCS CC & A Rules. If Prosecution is also launched against such Police Officer in a Criminal Court and if the Departmental Inquiry is completed before the Judgment in the Criminal Court is pronounced, the decision in the Departmental Proceedings shall ordinarily be postponed till the criminal case is disposed of.” 13. Learned Special Government Pleader points out that the learned single Judge gave diametrically opposite conclusions with regard to this PSO 150 in the Writ Order and in the review petition order. According to him learned Judge called this Police Standing Order both as a “rule” and as “an administrative guideline”. 14. Learned counsel for the respondent, however, points out that the Police Standing Orders do not have force of law. This Court notices that the A.P. Police Standing Orders are mere administrative guidelines. G.O.Ms.No.19, dated 14.02.2017 and G.O.Ms.No.201, dated 08.09.2001 by which these orders were approved and modified clearly state that these standing orders are only “guidelines and procedures”. It is stated very clearly that they do not supersede any statutory rule, service rule, regulation or other order. If there is a contradiction or conflict the later will prevail. In more than one judgment, this Court has held that the Police Standing Orders do not have any statutory force. They are not framed under any Article 309 of the Constitution of India or any other law. This aspect is very well settled and need not be repeated. Even the appellant-department took the plea in its counter in Writ Petition that the Police Standing Orders are administrative instructions and not a statutory Rule. This Court cannot enforce them in the strict sense of the word. However, the respondents themselves state that these are administrative guidelines for their functioning and guidance. The Police Standing Order itself states if the prosecution is delayed, the decision in the departmental proceedings should ordinarily be postponed. This Court cannot enforce them in the strict sense of the word. However, the respondents themselves state that these are administrative guidelines for their functioning and guidance. The Police Standing Order itself states if the prosecution is delayed, the decision in the departmental proceedings should ordinarily be postponed. While it may not have a binding “statutory force” and is an administrative guideline meant for the respondent to follow, if the respondents do not follow the same, this Court opines that it can look into the gravity of the offence and other issues to decide whether or not the departmental proceedings should be stayed. The law is also clear and M. Paul Anthony Case (1 supra) and Delhi Cloth and General Mills Ltd., case (2 supra) are already referred to. The other arguments that are advanced regarding the delay in launching the FIRs etc. are not considered in view of the conclusion this Court has reached. In view of the similarity in facts between the departmental enquiry and the criminal cases and as there is a likelihood of the prejudice being caused, this Court is of the firm view that it should not interfere in the order passed by the learned single Judge. The Writ Appeal is, therefore, dismissed, leaving it open to the appellant to take steps to expedite the trial of the criminal case if they so desire. As W.A.No.526 of 2022 is dismissed, the W.A.No.527 of 2022, which is also filed against the review of the said order, is also dismissed. No order as to costs. 15. Consequently, the Miscellaneous Applications pending, if any, shall also dismissed.