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2023 DIGILAW 102 (GUJ)

Ramdevsinh Hanubha Zala v. State Of Gujarat

2023-01-11

A.Y.KOGJE

body2023
ORDER : 1. This petition under Article 226 of the Constitution of India is filed challenging the order dated 12.10.2022 passed by the State i.e. the Secretary, Home Department in Appeal preferred by the petitioner against the order dated 03.11.2020 passed by the Director General of Police and Chief Police Officer. By the aforesaid order, the Director General of Police had imposed penalty of stoppage of one increment for a period of two years. 2. At the outset, learned advocate for the petitioner submitted that the punishment of stoppage of one increment for the period of two years would be causing impediment in his future prospect and has therefore, challenged the order including inquiry report by which misconduct alleged against the petitioner was held to be proved. Learned advocate for the petitioner submitted that the misconduct alleged against the petitioner was to the extent of helping one accused Shivarjsinh Madansinh Shekhavat by not keeping him inside the Lockup while in police custody and had permitted the various facilities including allowing him to meet relatives and friends and providing for private vehicle while taking the accused for production before the concerned Court. 2.1 Learned advocate for the petitioner has tried to explain that the factual error is committed inasmuch as the date during which the accused was given facilities at the police station, he was in fact in the jail and not in the police custody and therefore, the very basis of allegation against the petitioner is erroneous on facts. Learned advocate has contended that alongwith the petitioner, other police personnel was also involved in the very act however, qua him the punishment is only to the extent of penalty of one month salary and therefore, by relying upon the decision of this Court in case of Anopsinh Harisinh Bhagora v/s. State of Gujarat and others in Special Civil Application No.17422 of 2016 has claimed that by inflicting the punishment the parity has to be observed. This contention is raised on the basis of proposed draft amendment placed by the petitioner today, wherein the instance in case of PSI, Janaksihh Juwansinh Jadeja was drawn for the purpose of parity. 3. The Court has heard learned advocate for the parties and perused the document placed on record. This contention is raised on the basis of proposed draft amendment placed by the petitioner today, wherein the instance in case of PSI, Janaksihh Juwansinh Jadeja was drawn for the purpose of parity. 3. The Court has heard learned advocate for the parties and perused the document placed on record. It is a case where the petitioner was charge-sheeted with allegation that during his duty at Anjar police station, as Investigating Officer, the petitioner had detained the accused Shivrajsinh Madansinh Shekhavat from 25/07/2018 to 03/08/2018, in connection to the offence registered vide Prohi. C.R. no.5293/18, under section-65(A)(E), 116(B) and 98(2) of the Prohibition Act, registered with Anjar police station. In spite of being aware of the fact that he was an inter state criminal, from 25/07/2018 to 03/08/2018, he did not keep the accused in lock-up even once and he did not keep police bandobast to keep necessary watch on him; he made arrangement for him to sleep in the D-staff room at the upper floor of police station and behind the P.S.O. and he let him meet his relatives and the people close to him, frequently; transported him in private vehicle for investigation, provided him more facilities than the facilities provided to other accused and thus committed negligence towards his duty. Thus, he has violated sub rule-(2)(3) of the Rule-3(1) of the Gujarat Civil Service (Conduct) Rules-1971. 4. In this connection, the petitioner was issued show-cause notice dated 26.04.2019 calling upon him to furnish proper explanation. In this connection, the petitioner had made his explanation however, the same was not being accepted and departmental inquiry was initiated, wherein the inquiry had commenced before the Deputy Superintendent of Police, Head Quarter, Gandhidham, who finds that the evidence that made during the course of inquiry was that the petitioner U.H.C. Buckle no.1160, Airport east Kachchh Gandhidham was issued statement of imputation vide No.KhTP/2/Z/23-4-19/19/1382 of the office of the Director General of Police and Chief Police Officer, Gujarat State, Gandhinagar, dated 26.04.2019. The said statement of imputation was received by the petitioner on 15.05.2019 and he had signed in its copy for receiving the same. The petitioner is provided with the copy of documentary evidence and copy of statements of the government witnesses corroborating to the statement of imputation. Enough time is provided to the petitioner to submit the reply to the statement of imputation. The petitioner is provided with the copy of documentary evidence and copy of statements of the government witnesses corroborating to the statement of imputation. Enough time is provided to the petitioner to submit the reply to the statement of imputation. However, it appeared necessary to conduct the departmental inquiry, inquiry officer was appointed to conduct inquiry against the petitioner vide No.KhTP/2/Z/23-19/19/2233, dated 15/07/2019 of the office of the Director General of Police and Chief Police Officer, Gujarat State, Gandhinagar. Upon receiving file 'A and B' of the papers of the departmental inquiry at this officer on 19.07.2019, the process of departmental inquiry was initiated. 4.1 Primary statement of the petitioner was recorded on 24.07.2019 and he has stated that the statement of imputation is not accepted to him. He has accepted that he has received the copy of the evidences related to the statement of imputation. Moreover, he agreed to conduct the departmental inquiry and wanted to avail the service of friend/ assistant to defend him in the departmental inquiry and requested to grant time to hire friend/ assistant of the defence. His request was accepted and upon receiving consent letter of Mr. B.V.Jani, retired Deputy Superintendent of Police, at present residing at Rajkot, he was appointed as friend/ assistant of the petitioner. Office order was passed in that regard. In the departmental inquiry, examination of witnesses was taken up. The Government witness (1) Mr. J.N.Panchal, Dy.S.P., Bhuj Division, Bhuj, was cross-examined by the delinquent and his friend/ assistant. Copy of the statement of the witnesses was provided to the petitioner. After completion of examination of the Government witnesses and since the petitioner did not want to present defence witnesses, final statement of the petitioner was recorded on 23.11.2019. In the departmental inquiry, the petitioner was given opportunity to submit statement of defence. Final statement of defence was submitted by the delinquent on 15.12.2019. Therefore, it was carefully read and taken on government record. Thus, in the departmental inquiry, the petitioner was given complete opportunities and time for defence. 5. On the basis of the aforesaid evidence, it was found that the petitioner, while performing his duty as an A.H.Co. at Anjar Police Station, as the Investigating Officer of the offence as per Anjar Police Station, Prohibition C.R. No. 5293/18 under section 65(A)(E), 116(B),98(2) of Prohibition Act arrested Shivrajsinh Madansinh Shekhavat the accused in this offence. 5. On the basis of the aforesaid evidence, it was found that the petitioner, while performing his duty as an A.H.Co. at Anjar Police Station, as the Investigating Officer of the offence as per Anjar Police Station, Prohibition C.R. No. 5293/18 under section 65(A)(E), 116(B),98(2) of Prohibition Act arrested Shivrajsinh Madansinh Shekhavat the accused in this offence. He was under arrest from 25.07.2018 to 03.08.2018 for the aforesaid offence. Despite knowing that, the accused was an inter-state criminal, not once the accused was kept in the lockup, arrangement was made for him to sleep in the D-Staff room on the second floor of the Police Station and on the back side of the Police Station and his relatives and persons close to him were frequently allowed to meet him and he was transported through a private vehicle for his investigation and provided special facilities compared to other accused and by doing so, shown negligence in the duty. The Presiding Officer was appointed to conduct a formal departmental inquiry against him. In the said inquiry, fact was revealed that, while the petitioner was performing his duty as an A.H.Co. at Anjar Police Station, the offence as per Anjar Police Station Prohibition C.R. No.5293/18 under Sections 65(A)(E),16(B),98(2) was declared on 15/06/2018 at 22/45 hours. The petitioner took over the investigation of the same. As the accused in this offence, Shivrajsinh Madansinh Shekhavat was absconding, the petitioner continued the investigation of this offence. The accused, Shivrajsinh Madansing Shekhavat, residing at Village Galpadar, Taluka Gandhidham was absconding in the offence as per (1) Anjar Police Station Prohibition C.R. No.5419/17 under Sections 65(A)(E),116(B),81,98(2) of Prohibition Act (2) Anjar Police Station Prohibition C.R. No.5290/18 under Sections 65(A) (E),116(B),81 of Prohibition Act. (3) Anjar Police Station Prohibition C.R. No.5293/18 under Sections 65(A)(E),116(B),98(2) of Prohibition Act. Shivrajsinh Madansing Shekhavat, the absconding accused in the aforesaid three offences was admitted on 03/04/2018 for the matter regarding Shamlaji Police Station Prohibition C.R. No.5137/18 and the accused was arrested on 06/07/2018 at 17/00 hours. (3) Anjar Police Station Prohibition C.R. No.5293/18 under Sections 65(A)(E),116(B),98(2) of Prohibition Act. Shivrajsinh Madansing Shekhavat, the absconding accused in the aforesaid three offences was admitted on 03/04/2018 for the matter regarding Shamlaji Police Station Prohibition C.R. No.5137/18 and the accused was arrested on 06/07/2018 at 17/00 hours. Therefore, as the accused was absconding in the aforesaid offence, Police Head Constable Jayubha Ramubha Jadeja B.No.794 of Anjar Police Station, brought the accused at Anjar Police Station on the basis of the transfer warrant and as he was absconding in the offence as per Anjar Police Station Prohibition C.R. No.5419/17 under Sections 65(A)(E),116(B),81,98(2) of Prohibition Act, P.S.I. Shri J.J. Jadeja of Anjar Police Station arrested him on 24/07/2018 and police remand of the accused Shivrajsinh Madansing Shekhavat for all three aforesaid offences was obtained from 25/07/2018 to 03/08/2018. He was interrogated during the remand period by the petitioner. Being an Investigating Officer, the accused under remand is to be handed over to the P.S.O. and kept in the lockup after investigation is over. But, as an Investigating Officer, the petitioner has not once kept this accused in lockup nor he cared to hand over to the P.S.O. Thus, being an Investigating Officer, instead of keeping the accused Shivrajsinh Madansing Shekhavat in the lockup, kept him in the D-Staff room and made arrangement for sleeping in the back side of the Police Station. Moreover, instead of using government vehicle in the investigation, private vehicle was used. Thus, the accused was given more facilities compared to other accused persons. Thus, as an Investigating Officer, the petitioner did not keep the accused in lockup, did not set sufficient police watch on him, made arrangement for him to sleep and allowed him to meet his relatives and close persons, provided more facilities compared to other accused persons and by doing so, has shown negligence in his duty. 6. The petitioner was provided with the show-cause notice and the inquiry report to which the petitioner had also made detailed representation by communication dated 26.07.2020, wherein the petitioner had given detailed. After considering the same the petitioner was inflicted with punishment under order dated 03.11.2020. Under the order, the punishment prescribed under the show-cause notice of dismissal was reduced to withholding of one increment for the period of two years without future effect. After considering the same the petitioner was inflicted with punishment under order dated 03.11.2020. Under the order, the punishment prescribed under the show-cause notice of dismissal was reduced to withholding of one increment for the period of two years without future effect. The said order carried in appeal before the State Government by the petitioner and by the order dated 12.10.2022, the punishment was maintained and the appeal came to be rejected. In the aforesaid proceedings, the Court does not find any illegality or procedural lapse or violation of principles of natural justice and therefore, no case is made out for interfering with the decision on the procedural aspect. 7. Insofar as the prayer for setting aside the charge-sheet is concerned, the Court has taken into consideration the evidence led during the course of inquiry and the appreciation of the evidence on record. The Court does not find that the allegations/charges made against the petitioner in the charge-sheet are unsubstantiated, baseless or in any manner suffers from malafides all such charges are based on documentary evidence as well as oral evidence and hence, the Court is not inclined to quash and set aside the chargesheet. 8. Insofar as the submission of learned advocate for the petitioner regarding the period during which the allegation against the petitioner to have given facilities to the accused person. The said period is between 25.07.2018 to 03.08.2018, whereas contention of the petitioner based on communication dated 06.12.2022 by the Jail Superintendent to the petitioner indicates that the petitioner was in jail from 27.07.2018 to 30.07.2018. However, the said communication indicates that after 30.07.2018 till 03.08.2018, the said accused was once again taken for investigation from the Sub-Jail and was retuned to sub-jail thereafter. If the dates for which allegation against the petitioner is made are taken into consideration, then also, it cannot be said that the between period 25.07.2018 to 27.07.2018, the said accused was in Gadpadar District Jail. Hence, the argument of the petitioner that the said accused was never in custody cannot be accepted and that too on the face of the other evidence, which is sufficient to conclude the fact that the said accused was in custody of the petitioner during the period for which the allegation is made. 9. Hence, the argument of the petitioner that the said accused was never in custody cannot be accepted and that too on the face of the other evidence, which is sufficient to conclude the fact that the said accused was in custody of the petitioner during the period for which the allegation is made. 9. The argument advanced by the petitioner on the basis of a document dated 14.07.2022 issued by the Superintend of Police, East Kutch, Gandhidham was in response to the details called for by the office of the DGP and it is merely an opinion advanced by superior officer and the petitioner at the relevant time. Such opinion cannot be substituted with in place of the nascent evidence which appeared on record during the course of departmental inquiry and circumstance under which such opinion was forwarded by the superior officer can only be a matter of imagination with which the Court would not like to probe any further as it does not touch upon the merits of the inquiry, the evidence available on record and the conclusion drawn on the basis of such evidence is completely justifiable. 10. Insofar as the reliance placed by the petitioner on the decision of this Court in Special Civil Application No.17422 of 2016, the aforesaid decision was on the basis of merits first and thereafter, as a starting point, the issue of parity in inflicting the punishment to the others, who had participated in the misconduct was taken into consideration. The facts in the aforesaid case was being completely different, wherein in that petition, the petitioner was charge-sheeted only on the basis of he being the superior officer there and from the custody to the other four constables, subordinate to the petitioner, who were given escort duty and the accused had escaped and therefore, the issue of comparing the punishment arose as the role of the petitioner therein was only to the extent of being superior officer to those four persons during whose duty, only the accused have escaped the punishment inflicted to the four subordinate person was far lesser then inflicted to the petitioner. 11. 11. Learned advocate for the petitioner has tried to argue on the basis of drawing attention of this Court to the Gujarat Police Manual Rule 211 to submit that the petitioner alone cannot be held responsible as aforesaid rule provides for affixing the responsibility on all the persons attached to the concerned police station in view of the allegation of facilities provided at the police station to the accused persons. It would be pertinent to observe that the reliance placed on the aforesaid provision is completely unfounded as the aforesaid provision clearly deals with accident of escape from the custody, wherein collective responsibility is provided for whereas present is not a case of escape from custody and therefore, for providing facilities to known accused for which the petitioner is charge-sheeted. 12. In view of the aforesaid observation, no case is made out for interference and hence, the petition deserves to be and the same is hereby dismissed.