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2023 DIGILAW 312 (JHR)

State of Jharkhand v. Bhim Singh

2023-03-14

ANANDA SEN, S.K.MISHRA

body2023
ORDER : (S.K. Mishra, J.) 1. By filing this intra court appeal, the State of Jharkhand and others have challenged the order dated 13.07.2021, passed by the learned Single Judge in W.P.(S) No. 4529 of 2015. The writ petition was filed by the petitioner challenging his dismissal from service vide Memo No. 1353 dated 22.05.2021 and also quashing the order passed by the appellate authority-respondent no.4 to the writ application vide Memo No.1311 dated 27.11.2001, whereby the appeal preferred by the private respondent was dismissed. 2. The petitioner was appointed as a Constable and joined the services on 18.01.1984 and he was given first time bound promotion in the year 1994. On 14.11.1995, he joined the post of Constable in district headquarter, Garhwa. He also held the post of Office bearer of the District Police Men’s Association. On 30.12.1995 an F.I.R. was lodged by the Officer-in-charge of Garhwa Police Station against the petitioner alleging that on the same day at Bazar Samittee, Garhwa, in course of election of Office bearers of Bihar Police Men’s Association, sound of firing was heard from the northern barrack of the office due to which Election Officer started dispersing and upon interrogation it could be known that the petitioner had fired from his licensee rifle with a view to disturb the election process. In contemplation of the activity, a departmental proceeding being D.P. No. 44/96 was also initiated against the petitioner and charge sheet was served upon the petitioner on 14.12.1996. The petitioner filed reply and participated in the departmental proceeding and the Inquiry Officer found charges against the petitioner to be proved and finally an order of termination from service has been passed by the Disciplinary Authority. The petitioner had earlier moved this Court by filing W.P. (S) No. 4 of 2002, which was disposed of with a liberty to the petitioner to prefer a memorial before the Director General-cum-Inspector General of Police, Jharkhand to decide the claim. He again moved before this Court by filing W.P.(S) No.661 of 2006, which was disposed of vide order dated 23.01.2015 directing the Director General-cum-Inspector General of Police, Jharkhand to decide the memorial and pass a speaking order in accordance with law. Thereafter, the memorial was also dismissed. He again moved before this Court by filing W.P.(S) No.661 of 2006, which was disposed of vide order dated 23.01.2015 directing the Director General-cum-Inspector General of Police, Jharkhand to decide the memorial and pass a speaking order in accordance with law. Thereafter, the memorial was also dismissed. In the meantime, the criminal case was concluded and as per the judgment dated 29.06.2005 in Sessions Trial No. 64 of 2003, the Court of the learned 1st Additional Sessions Judge, Garhwa acquitted the petitioner-respondent. We have taken note of the exact observations made by the learned 1st Additional Sessions Judge, Garhwa, which is quoted as under:- “10. On the other hand defence has examined one witness Udai Kumar Rai who has deposed that he was also a candidate for Treasurer in the Police Mense Association election for year 1994-95. No incident of firing ever happened in the course of that election. Prior to occurrence Bhim Singh was Chairman of Police Mense Association and this witness was Secretary. In course of his evidence he has proved Ext.2 which shows that in accordance with application of Bhim Singh dated 31.12.95 his rifle was deposited in Shastragar. It bears the signature of Bhim Singh and endorsement receipt under signature of the then Sergeant major Awadh Bihari Singh. He has also proved letter dated 12.2.98 Ext.A/1 written by Bhim Singh addressed to Provisional Chairman Bihar Police Mense Association and letter dated 27.7.98 (Exts. A/2) written by Bhim Singh to Provincial Chairman, letter dated 30.7.98 (Ext. A/3) addressed to I.G. Police (Administration) Patna, Bihar in respect of transfer of certain constables who are alleged to be in collusion of local extremist group. Ext.A/4 letter dated 23.3.98 written by Provincial Chairman, Bihar Police Mense Association to I.G. Bihar, Ext. B Order dated 31.3.98 of A.I.G.(W), Bihar, Patna, in respect of relieving those police men who have already been transferred in reference to letter no. 376 dt. 23.3.98 by Bihar Police Mense Association. Thus evidence led by defence Exts. A to A/4 and Ext. B clearly shows that at the relevant time of occurrence licencee rifle of present accused was deposited in Shastragar and being active member of Bihar Police Mense Association present accused reported about collusion of local constables with the extremists organization and relieving order of certain constables was not complied with by the then S.P. The matter was again reported to Chairman Provincial Police Mense Association. Thereafter even after earlier submission of Final Form against present accused, further investigation was sought for and charge-sheet was submitted on 28.2.99 wherein suspected constables are made witnesses of occurrence. In view of aforesaid documentary evidence led by defence the possibility of false implication of the accused cannot be over ruled. In my view in the instant case accused has been made escape goat of circumstances by high level police officers in order to save their own skin as well as erring constables which is against the prestige of police department and condemned. 10. In view of aforesaid discussions and appreciation of evidence available on record adduced from both sides, I am of the conclusion that prosecution worsely failed to establish the charges levelled against accused Bhim Singh. In absence of cogent and reliable evidence, I am constrained to acquit the accused from the charges levelled against him. Accordingly, accused Bhim Singh is acquitted from the aforesaid charges, he appears on bail, he is discharged from the liability of his bail bonds and set at liberty forth-with.” Thus, it is clear from the aforesaid observations that not only the 1st Additional Sessions Judge, Garhwa has come to the conclusion that the prosecution has failed to prove its case beyond all reasonable doubts against the present respondent. He has made a categorical finding that Exhibits-A to A/4 and B clearly shows that at the relevant time of occurrence the licencee rifle of the petitioner-accused was deposited with the Shastragar and being an active member of the Bihar Police Men’s Association, present accused reported about collusion of local constables with the extremists organization and relieving order of certain constables was not complied with by the then Superintendent of Police, Garhwa. It has been further observed that in the instant case, the accused has been made scapegoat of circumstances by high level police officials in order to save their own skin as well as erring constables which is against the prestige of Police Department. 3. In that view of the matter, this Court is of the opinion that the respondent has been honourably acquitted of the offences. 3. In that view of the matter, this Court is of the opinion that the respondent has been honourably acquitted of the offences. In fact, certain observations have been made against the senior police officers by the learned Additional Sessions Judge and it is not in dispute that no appeal was preferred by the State of Jharkhand to this Court against the judgment passed by the learned Additional Sessions Judge. 4. Learned counsel for the Respondent would rely upon the judgment in the case of G.M. Tank Vs. State of Gujarat and others, (2006) 5 SCC 446 , wherein the facts of the case are almost similar. The employee was proceeded departmentally as well as criminal case was initiated and the Hon’ble Supreme Court took into consideration that departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. The Hon’ble Supreme Court further held that such facts and evidence in the departmental as well as criminal proceeding were the same without there being any iota of difference, the appellant should succeed. The distinction, which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings, challenging the dismissal, the same requires to be taken note of and the decision rendered in the case of Capt. M. Paul Anthony Vs Bharat Cold Mines Ltd. and Another reported in (1999) 3 SCC 679 shall apply. 5. In that view of the matter, we are of the opinion that since charge in a departmental proceeding against the delinquent employee and the charge before the criminal court are one and the same and the evidences are also same, the order passed by the learned Single Judge does not suffer from any illegality or irregularity. 6. In that view of the matter, we find no merit in this Letters Patent Appeal, which is, accordingly, dismissed. 7. There shall be no order as to costs. 8. Pending application, if any, stands disposed of. 9. 6. In that view of the matter, we find no merit in this Letters Patent Appeal, which is, accordingly, dismissed. 7. There shall be no order as to costs. 8. Pending application, if any, stands disposed of. 9. Grant urgent certified copy of this order as per the Rules.