Shri Daya Nand And Another vs Commissioner Of Police And Ors.
2001 Latest Caselaw 1231 Del

ORDER

Khan, (J)

1. Petitioners, Constable in Delhi Police, were dismissed from service on a charge of gang raping a woman by order dated 19.7.1993 after dispensing with the enquiry under Article 311(2)(b) of the Constitution. FIR No. 289/93 was also registered against them under Sections 366/376/506. One of the petitioners (petitioner No.2) challenged his dismissal under Article 311(2)(b) in OA No.1729/94 but failed on 15.3.1995. Meanwhile, both petitioners were discharged by Trial Magistrate vide order dated 4.10.1996 as no prima facie incriminating evidence was found against them. Encouraged by this, they filed OA No.568/97 and sought quashment of their dismissal order dated 19.7.1993 and their reinstatement in service on the strength of their order of discharge in the criminal case, invoking Rule 12 of Delhi Police (P & A) Rules, 1980 in the process.

2. Tribunal dismissed their OA by impugned order dated 21.9.2000, holding that Rule 12 had no application in the matter. They have now filed this petition insisting that R-12 was attracted to their case. Their case in nut shell in that once charge against them in criminal case had failed and they had stood discharged, they could not be punishment in a department action in terms of R-12. Their counsel Mr.Shyam Babu even went to the extent of wanting us to equate "discharge" with "acquittal" to bring their case within this Rule. He also relied upon two judgments of the Supreme Court in Captain M.Paul Anthony Vs. Bharat Gold Mines Ltd. & Another and State of Madhya Pradesh Vs. Syed Qama Ali (1976 SLR 228) to suggest that a delinquent employee could not be punished on the same charge on which he was discharged in a criminal case.

3. Therefore, all that remained to be examined was whether order of discharge earned by petitioners in a criminal prosecution was covered by provisions of Rule 12 and whether it could nullify and upset a prior dismissal order passed under Article 311(2)(b). The answer would wholly coverage on interpretation o terms of Rule 12 which is reproduced hereunder:-

"When a police officer has been tried and acquired by a criminal court, he shall not be punishment departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not unless:-

(a) the criminal charge has failed on technical grounds; or

(b) in the opinion of the court, or on the Dy.Commissioner of Police the prosecution witnesses have been won over; or

(c) the court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or

(d) the evidence cited in the criminal case disclose facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or

(e) additional evidence for departmental proceedings is available."

4. Read from any angle, this Rule does not contemplate an, order of discharge in a criminal case at all. All that it provides is t hat when a police officer was tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge on or a different charge upon the evidence cited in the criminal case subject to certain requirements laid down therein. The sine qua non is that a police officer must have been first tried and then acquitted by the criminal court to become eligible for not being punished departmentally and for this also he would have to satisfy other requirements prescribed in the rule. For instance, if prosecution against him had failed on technical grounds, there would be no bar to punish him departmentally and so on.

5. Moreover, an "order of discharge" could by no definition be equated with an "order of acquittal" in a criminal case and treated synonymous. The two have different connotations and stand poles apart involving two different stages in a criminal prosecution. The order of discharge covers a pre-trial stage wherein criminal court considers record and documents submitted by prosecution to find out whether there was any sufficient aground of proceeding against the accused and putting hi on trial. "Acquittal" on the contrary covers the post trial stage and is ordered on the conclusion of a trial upon prosecution failure to prove the charge relieving the accused in the process of that charge. This distinction is brought out in Sections 227 and 232 of Cr.P.C. itself. The two provisions are reproduced hereunder for facility of appreciation of their distinguishing features:-

227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused and record his reasons for so doing.

232. Acquittal.- If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and defense on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.

6. A plain reading of the two Sections shows that the first confers a pre-trial protection on the accused enabling him to obtain a discharge to save him from undergoing a full fledged trial. Such order of discharge is passed upon consideration of record and documents by prosecution and after hearing it and the accused to find out whether a sufficient ground exists to put him on trial. No evidence is recorded or considered nor any standard of proof demanded for the purpose. "Acquittal" on the other hand takes place after taking prosecution evidence and after examining accused and hearing prosecution and when court finds no evidence to substantiate the charge. It may as well be that both terminate the prosecution and absolve the accused of the charge but each has its own purpose/object/scope and features and, therefore, one can't be treated synonymous with the other. Rule 12 envisages both trial and acquittal as an aftermath of order of discharge and provides that if a delinquent police official was tried and acquitted, he shall not be punished departmentally on the same charge subject to certain conditions. It surely does not cover an order of discharge and it would be doing violence to its definition to equate it with an order of acquittal or to treat it so within the parameters of this Rule. The Tribunal had, therefore, rightly held it inapplicable to the case and we see no scope to take any contrary view in the matter.

7. Mr. Shyam Babu's reliance on the two Supreme Court judgments (supra) is equally misplaced. In the first judgment, the Supreme Court was dealing with a case where prosecution case against the delinquent was thrown out for no evidence leading to his acquittal and where he was dismissed from service in an ex-parte departmental enquiry. It was in this context that the court held that it would be unfair and unjust to allow the ex-parte departmental enquiry to sustain in the face of rejection of same evidence by the criminal court. In the other case, Hon'ble Apex Court was seized of para 241 of Madhya Pradesh Police Regulations which incidentally is not para materia with Rule 12 of Delhi Police (P & A) Rules and it was while interpreting that provision that court quashed the employees dismissal which was found to have been ordered in breach of its provision. Therefore, nothing in these two judgments advances petitioner's case, nor was nay law or precedent shown to suggest that order of discharge amounted to that of "acquittal".

8. We accordingly hold that order of discharge in a criminal case does not amount to an order of acquittal and that provisions of Rule 12 which could have the consequence of barring a punishment to the delinquent employees on the same charge subject to satisfying the requirements of this Rule.

9. The Tribunal had rightly dismissed petitioners' case and this petition meets the same fate and is dismissed.