Allahabad High Court
Pawan Kumar Kanaujia vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 29 May, 2024
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:40824
Court No. - 6
Case :- WRIT - A No. - 3913 of 2024
Petitioner :- Pawan Kumar Kanaujia
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko. And 2 Others
Counsel for Petitioner :- S.P. Singh Somvanshi,Sanjay Kumar
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
1. Heard Shri Upendra Nath Mishra, learned Senior Advocate assisted by Shri S.P. Singh Somvanshi, learned counsel for the petitioner and Shri Sandeep Sharma, learned Standing counsel appearing for the respondents.
2. There is a consensus at Bar that the facts of the case have already been set forth in detail in the order dated 23.05.2024.
3. For the sake of convenience, the order dated 23.05.2024 is reproduced below:
"1. Supplementary affidavit filed today in Court is taken on record.
2. Heard Sri Upendra Nath Mishra, learned Senior Advocate, assisted by Sri S.P. Singh Somvanshi, learned counsel for the petitioner, and learned Standing Counsel for the respondents.
3. Under challenge is the order dated 30.04.2024 passed by respondent no.2 in Misc. Case No.8 of 2024 so far as it directs for (a) lodging of a first information report against the petitioner, (b) setting aside the punishment order dated 08.04.2024 passed against the petitioner of censure, (c) awarding special adverse entry, and (d) initiation of separate inquiry and departmental proceedings for major penalty against the petitioner.
4. Learned counsel for the petitioner states that the copy of the order impugned dated 30.04.2024 has been sent to the Senior Treasury Officer, Balrampur, consequently, the respondents have already stopped the salary of the petitioner as would be apparent from a perusal of the endorsement made on the salary bill of the petitioner, a copy of which has been filed as annexure SA-7 to the supplementary affidavit, as such, the respondents may also be directed to release the salary of the petitioner.
5. The contention of learned counsel for the petitioner is that while the petitioner was working as Sub Inspector/Incharge, Police Station Gaidas Bujurg, Tehsil Utraula, District Balrampur, after issue of a show cause notice to him under the provisions of the U.P. Police Officers of Subordinate Ranks (Discipline and Appeal) Rules, 1991 (hereinafter referred to as the 'Rules, 1991'), the petitioner has been imposed with a penalty of censure by the Superintendent of Police vide order dated 08.04.2024, a copy of which is Annexure-14 to the petition.
6. The Superintendent of Police has thereafter vide his letter dated 12.04.2024, a copy of which is Annexure SA-5 to the supplementary affidavit, informed the District Magistrate, Balrampur about the said punishment order.
7. The petitioner being aggrieved against the said order approached before the Deputy Inspector General of Police i.e. the appellate authority through his appeal dated 15.04.2024, a copy of which is Annexure SA-6 to the supplementary affidavit. The appeal has been filed under Rule 20 of the Rules, 1991.
8. Subsequent thereto, the impugned order dated 30.04.2024 has been passed by the District Magistrate in Misc. case No.8 of 2024 under Sections 23 & 29 of the Police Act, 1861 read with Paras 6, 7A, 12, 484 and 486(i) of the U.P. Police Regulations read with Criminal Procedure Code and the Rules, 1991 and the General Clauses Act which apart from the other directions has directed for (a) lodging of a first information report against the petitioner, (b) setting aside the punishment order dated 08.04.2024 passed against the petitioner of censure, (c) awarding special adverse entry, and (d) initiation of separate inquiry and departmental proceedings for major penalty against the petitioner.
9. The argument of learned counsel for the petitioner is that when the petitioner had filed an appeal against the order of penalty of censure passed by the competent authority before the appellate authority on 15.04.2024 as such considering the provisions of Rules, 1991, it is only the appellate authority who could have either set aside that punishment order or enhanced the punishment but by no stretch of imagination could the District Magistrate who has no locus in the matter, pass the order impugned setting aside the order of penalty and directing for imposition of special adverse entry against the petitioner and the other orders, as indicated above.
10. The further argument is that the District Magistrate lacks inherent jurisdiction to direct for lodging of a first information report against the petitioner and others considering the judgment of the Apex Court in the case of Naman Singh vs. State of U.P. 2019 (2) SCC 344 wherein the Apex Court has held that under the scheme of the Code of Criminal Procedure, 1973, an Executive Magistrate would have no role to play in directing the police to register an FIR on the basis of a private complaint. Thus, it is prayed that the order impugned so far as the District Magistrate has issued the aforesaid direction namely (a) lodging of a first information report against the petitioner, (b) setting aside the punishment order dated 08.04.2024 passed against the petitioner of censure, (c) awarding special adverse entry, and (d) initiation of separate inquiry and departmental proceedings for major penalty against the petitioner, be quashed.
11. On the other hand, learned Standing Counsel has raised a preliminary objection that the entire proceedings are being monitored by the Division Bench of this Court in Criminal Misc. Writ Petition No.1239 of 2024 in re: Ram Pratap Verma vs. State of U.P. and others, wherein the Division Bench has passed an interim order dated 22.02.2024 whereby the Superintendent of Police, Balrampur, was directed to get an inquiry conducted and submit his report in a sealed cover before the writ Court and further vide order dated 22.03.2024 the Division Bench has observed that in the Magisterial inquiry placed before the writ Court the police personnel have been found to be guilty of the allegations and that an inquiry has been proposed against them apart from criminal action. It is further contended that against the order dated 22.03.2024, an SLP No.5476 of 2024 had been filed but the Hon'ble Supreme Court vide order dated 26.04.2024 has dismissed the SLP by indicating that it finds no reason to interfere with the impugned judgment and order passed by the High Court.
12. It is thus contended that once the Division Bench of this Court is seized with the matter this Court may not interfere.
13. Responding to the aforesaid preliminary objection, Sri Upendra Nath Mishra, learned Senior Advocate, argues that the said order has been passed by the Division Bench of this Court in the case of Ram Pratap Verma and that too, as stands recorded in the interim order dated 22.02.2024, the matter pertain to the police officials of the Police Station Kotwali Utraula, District Balrampur and the writ Court had directed for an inquiry to be conducted against those officials and the petitioner having never been posted at Police Station Kotwali Utraula, District Balrampur, the said order would have no relevance with the facts of the case of the petitioner as well as the orders which have been passed in this case.
14. Considering the aforesaid more particularly when as per order of the writ Court dated 22.02.2024 the same pertains to the police officials of Police Station Kotwali Utraula District Balrampur while the petitioner has been posted at Police Station Gaindas Bujurg, Tehsil Utraula, District Balrampur consequently prima facie it emerges that the aforesaid orders would have no connection with the inquiry against the petitioner and thus preliminary objection at this stage is rejected.
15. So far as the merits of the case are concerned pertaining to the punishment of censure dated 08.04.2024 having been set aside by the District Magistrate, special adverse entry having been directed to be awarded to the petitioner, a regular departmental inquiry pertaining to major penalty being directed to be conducted against the petitioner and lodging of an FIR against the petitioner, learned Standing Counsel prays for and is granted three days time to seek specific instructions as to how the order which has been passed by the District Magistrate more particularly (a) lodging of a first information report against the petitioner, (b) setting aside the punishment order dated 08.04.2024 passed against the petitioner of censure, (c) awarding special adverse entry, and (d) initiation of separate inquiry and departmental proceedings for major penalty against the petitioner, be justified in the eyes of law.
16. Shri S.K. Singh, learned Chief Standing Counsel is present in the Court, who on the basis of oral instructions of the District Magistrate, Balrampur, states that no coercive action shall be taken against the petitioner with respect to the order impugned dated 30.04.2024. Shri Singh further states that so far as the stoppage of salary of the petitioner, as has been stated by the petitioner, is concerned, as per his instructions, the salary of the petitioner has not been stopped.
17. The aforesaid statement is recorded.
18. Learned Chief Standing Counsel prays that the matter may come up on 29.05.2024 as fresh.
19. As such, list this case on 29.05.2024 as fresh."
4. Today, Shri Sandeep Sharma, learned Standing counsel, on the basis of instructions sent by District Magistrate, Balrampur dated 23.05.2024, states that with regard to the queries raised by this Court, as find place in paragraph 15 of the order dated 23.05.2024, his instructions are as under:
(i). With regard to query (a) of lodging of an F.I.R. against the petitioner, reliance has been placed on Regulations 484 & 486 of the Police Regulations to state that the District Magistrate is empowered to have the F.I.R. lodged.
Prima facie, the said instructions would be contrary to the law laid down by the Hon'ble Supreme Court in the case of Naman Singh vs. State of U.P. 2019 (2) SCC 344 as discussed in paragraph 10 of the aforesaid order.
(ii). With regard to query (b), it is contended that the District Magistrate has not set aside the order of censure rather has set it at naught.
The aforesaid instructions are found to be a clever use of words but the net effect is setting aside the punishment order of censure which is the penalty that has been awarded to the petitioner and consequently, the said instructions are not found to be satisfactory, more particularly, when the effect of setting at naught and setting aside of an order of punishment is one and the same.
(iii). So far as query (c) with regard to awarding a special adverse entry is concerned, again the District Magistrate is not acting as an Appellate Authority in terms of the Rules, 1991 which govern the police personnel and consequently, awarding a special adverse entry is not found to be valid in the eyes of law.
(iv) So far as query (d) is concerned, again the instructions do not have any satisfactory explanation to the same.
5. Considering the aforesaid discussion, the Court thus requires the respondents to file a detailed counter affidavit.
6. Let such a counter affidavit be filed within four weeks to which a reply, if any, be filed within next two weeks.
7. List thereafter.
8. Until further orders, the operation of the impugned order dated 30.04.2024, a copy of which is annexure No.1 to the petition, shall remain stayed. It is also provided that in case there is no legal impediment, regular salary shall also be paid to the petitioner.
Order Date :- 29.5.2024
S. Shivhare
