Dhujender Pal Singh vs Govt. Of Nct Of Delhi And Ors.
2002 Latest Caselaw 1035 Del

JUDGMENT

S.N. Sinha, C.J.

1. The original application before the learned Tribunal is the writ petitioner herein. He at all material times was working as a Constable in Delhi Police Force. A complaint was made against him by one Hitesh Jain that he together with Constable Manoj Kumar demanded illegal gratification from him while he was traveling on his scooter and ultimately his driving license was taken out together with a sum of Rs. 1050/- from his pocket. A raid was conducted by the Assistant Commissioner of Police Along with Inspector Special Staff/NE and a sum of Rs. 500/- was recovered from him, viz. a part of the amount he had taken from the complainant. A departmental proceeding was initiated. He was found guilty of the charges levelled against him by the Enquiry Officer, whereupon punishment of dismissal from service was awarded. However, so far as Constable Manoj Kumar is concerned he was exonerated from the charges.

2. Petitioner preferred an appeal against the said order but the Appellate Authority rejected the same.

3. Before the learned Tribunal a contention was raised that as having regard to the complaint made against him he also has committed a cognizable offence, thus, institution of the departmental proceeding without any order having been passed in terms of Rule 5 of the Delhi Police (Punishment & Appeal) Rules (hereinafter referred to as 'the Rules') was bad in law. As prior to institution of the departmental proceeding, the petitioner had urged, no permission therefore had been accorded by the Additional Commissioner of Police the entire proceeding is vitiated in law. In any event, in his purported permission granted by the Joint Commissioner no reason had been assigned in support thereof and on that ground too the proceeding was vitiated in law.

4. Before the learned Tribunal a further contention was raised that the report of the Enquiry Officer was perverse. The learned Tribunal in its impugned judgment held:

"Rule is of preponderance of probability and the Tribunal has to see whether there is some evidence to support the charge. From the perusal of the evidence of the official witnesses, we find that he recovery of the currency notes which were given to the complainant to be handed over to the applicant we found to be the same identical currency notes and were recovered from the pocket of the applicant.

Safeguards have been taken to prepare a recovery memo as well as handing memo of the currency notes which bears signatures of the complainant as well as the police staff."

5. Relying or on the basis of the decision of the Apex Court in Kuldeep Singh v. Commissioner of Police and Ors. reported in JT 1998(8) SC 603, the learned Tribunal held that it had no power of judicial review for the purpose of reappraisal of the evidence and, thus, interference with the order of punishment is not warranted as there is some evidence in support of the finding of the Enquiry Officer. The learned Tribunal also rejected the other contentions raised on behalf of the writ petitioner.

6. Drawing our attention to the evidence on record, Mr. Shyam Babu learned counsel appearing on behalf of the petitioner, would contend that, it has not been stated by any of the witnesses that there had been any demand of money by the petitioner which was a sine qua non for proving the charge of corruption and in that view of the matter the report of the Enquiry Officer must be held to be perverse. Learned counsel appears to be correct.

7. A bare perusal of the order passed by the learned Tribunal would show that it proceeded on the basis that having regard to the fact that recovery of a part of the amount had allegedly been made from the petitioner, enough evidence had been brought on record but thereby the foundational fact i.e. asking for bribe, had not been established.

8. The report of the Enquiry Officer, wherein the evidence of P-1 has been discussed, is as under:-

"P-1 - .....ACP Sahib also asked him as to whether Ct.

Dhujender Pal was demanding bribe from him. At this he showed his ignorance. ACP gave him some money from his pocket and asked him to give the same to Ct.

Dhujender Pal Singh. 3/4 persons followed him to Kanti Nagar Chowk. After some time Ct. Dhujender Pal was seen coming towards him. He engaged him in talks. He had no courage to give that money to him which was given by ACP. During talking he put his hand in the pocket of constable and left that money in the pocket. Meanwhile Dabas Sahib caught Ct. Dhujender Pal Singh and ACP Sahib recovered the money from the pocket and went P.S. Welcome. After 10/15 mts. He left for his home and he was also directed by ACP Sahib to report after 2/3 days for further action. After 2/3 days Sh. Dabas informed him on phone that there was some mistake in his complaint and directed him to report for amendment in his complaint.

Accordingly he reported to Sh.

Dabas and he rewrote his complaint on his direction. Some other papers were also signed by him on that day. He further told that on first day another constable in uniform having the name plate "Manoj Kumar" came to the spot and left after some talking with Ct. Dhujender Pal Singh.

The PW was cross examined by Sh.

B.S. Arya D A to both the defaulters. During the cross examination the PW stated that no money was demanded by Ct. Dhujender Pal Singh and Ct. Dhujender Pal Singh was not aware of about/putting the money in his pocket. He also denied the presence of Ct. Manoj Kumar on raiding day. The PW also denied about the taking of driving license and any type of misbehave by the Ct. Dhujender Pal Singh.

The PW was cross examined by me.

During the cross the PW stated that the complaint was written by him.

He also accepted that he had disclosed before worthy DCP/NE that those constables had taken Rs. 1000/- from his pocket and also demanded Rs. 4000/-. He further stated that he was intention at that time and no money was recovered in his presence."

9. PW-2 Sh. Bhupender Singh was an independent witness. He in his evidence as recorded by the Enquiry Officer stated:

"PW-2 - Sh. Bhupender Singh S/o Sh. Inder Jeet Singh R/o 4/2326, Bihari Colony, deposed that he is running a printing press. Once at about 8.30 A.M. he was returning to his home from Chawri Bazar. He saw a crowd near petrol pump Shyam Lal College and noticed Sh. Hitesh Jain in that crowd. Sh. Hitesh Jain told him that there was a quarrel and he should join him. He also accompanied them to Police Station. He remain standing outside the Police Station and he did not know who were with Hitesh Jain. he was told that he was not required at that time. If required, will be informed later on. After 1/2 days Hitesh Jain asked him for accompany to Police Station where he was asked to put his signature on two papers.

During the cross examination the PW stated that no money was given to Hitesh Jain in his presence and also denied that no money was given to Dhujender Pal Singh and no money was recovered from Dhujender Pal in his presence. He further stated that Ct. Manoj Kumar was not present at that time. No date was put up by him on the direction of the offices.

The PW was cross examined by me. During the cross examination the PW stated that the written paper which was signed by him was not read by him. He told that he had visited there for the evidence in favor of Hitesh Jain. He had signed the papers only to help Sh. Hitesh Jain. he has deposed the statement without any fear and pressure."

10. PW-3 Sh. B.K. Mishra ACP/PG/Cell/NE was a witness to search. his evidence was as follows:

"PW-3 - Sh. B.K. Mishra ACP/PG/Cell/NE deposed that on the complaint of Sh. Hitesh Jain S/o Sh. M.L. Jain R/o 4/2641, Gali No. 7, Bihari Colony, Shahdra a trap was conducted on the direction of worthy Addl. DCP/NE. The currency notes were signed by him and a memo was also prepared to this effect. He had taken the personal search of the defaulter and recovered the money. A report about the trap was lodged by him in P.S. Welcome vide DD No. 18A dated 24.9.1997. A detailed report to this effect was sent by him and he confirm the same. The seal of envelope has been opened in his presence. The currency notes 5 x 100 having his signature.

During the cross examination the PW replied that the part of smiling is not in his finding. However he stated that the complainant had alleged that the ladies had left smiling. The PW has denied about the use of Chemical during the process of raid. The PW stated that a public witness was detailed to watch the conversation between the complainant and defaulter. The PW had denied about recording of any statement. He had only conducted the raid. He further told that the facts about the detail of the witnesses has not been mentioned by him in his report. The PW has refused about the presence of Ct. Manoj Kumar. The exact time of conducting the raid and end was not disclosed by the PW."

11. PW-4 is Sh. Suresh Dabas. He was Inspector Special Staff North East Distt. Delhi. He was also a witness to search. His evidence was as under:

"PW-4 - Sh. Suresh Dabas Inspr. Spl. Staff North East Distt. Delhi deposed that on 24.9.97 worthy Addl. DCP-1/NE Sh. Virender Singh called him and ACP/PG/Cell/NE in his office and gave a complaint of Sh. Hitesh Jain and also directed for conducting a trap on Ct. Dhujender Pal Singh and Ct. Manoj Kumar of P.S. Welcome. On this a raiding party consisting Sh. Bhupender Singh and Sh. Hitesh Jain complainant and other staff was organized by Sh. B.K. Mishra ACP/PG/Cell/NE. Five hundred rupees notes (100 x 5) duly initial signed by ACP P.G. Cell were given to Sh. Hitesh Jain after preparations of handing over memo which was prepared and signed by him. The trap was organized and Ct. Dhujender Pal Singh was caught red handed with Rs. 500/- at a tea stall near Kanti Nagar Chowk. Another constable whose name was later on identified as Ct. Sunil Kumar was also standing with Ct. Dhujender Pal Singh. The personal search of Ct. Dhujender Pal Singh was taken in his presence and Rs. 500.00 were recovered from him. The recovered currency notes were sealed and taken into possession for evidence. He made his signature on recovery memo. The recovered currency notes were deposited in the Malkhana of P.S. Welcome. The further report was prepared by Sh. B.K. Mishra ACP/PG/Cell/NE.

During the cross examination the PW deposed that the defaulter Ct. Manoj Kumar was not present at the time of raid. However, Ct. Dhujender Pal Singh called const. Manoj Kumar. he also deposed that due to some mistake it has not been mentioned in the handing over memo that the currency notes are having the initials of ACP Sahib. He has also denied about the signature of Ct. Dhujender Pal Singh on the recovery memo. The recovered property was deposited in Malkhana on 29.10.199. He further stated that he had not written any statement of any witness."

12. Having considered the matter, we are of the opinion that the learned Tribunal posed to itself a wrong question and thus arrived at a wrong conclusion that there was some evidence to prove the charge of corruption against the petitioner.

13. From the evidence on record, it appears that not only no money was demanded by the petitioner but the same had been put in his pocket. Even the co-accused had been held to be not present at the relevant point of time. PW-1 Hitesh Jain stated that no money was recovered from the person of the petitioner. From the evidence of PW-2 Sh. Bhupender Singh, who is an independent witness, it appears that he denied the entire story. The Enquiry Officer did not analyze the evidences adduced in the departmental enquiry at all. He merely recorded the statements of the witnesses. He arrived at the following conclusion:

"I have carefully gone through the statements of PWs. DWs defense statements of both the defaulters and material available on file. Sh. Hitesh Jain the complainant and Sh.

Bhupender Singh the public witnesses have not supported the prosecution. It seems that they have been won over by the defaulters. There is no evidence against Ct. Manoj Kumar No. 1383/NE except his presence on the spot on the first day of the incident. Hence the charge against Ct. Manoj Kumar No. 1383/NE is not proved substantially. Although PW-a & 2 have turned hostile but keeping in view the statements of PW 3 and 4 (i.e. Sh.

B.K. Mishra ACP/PG/Cell/NE and Sh. Suresh Dabas. Inspr./Spl.Staff/NE) and other evidence available on file the charge against defaulter Ct. Dhujender Pal Singh No. 450/NE is proved."

14. Despite the fact that PWs 1 and 2 had not been declared hostile nor any prayer was made to cross examine them the Enquiry Officer proceeded on the basis that they were declared hostile. No permission was obtained from the Enquiry Officer to cross examine the said witnesses by the Presiding Officer. We cannot subscribe to the view that they were hostile witnesses. As indicated hereinbefore, the Enquiry Officer has also not arrived at a finding as to whether the charge had been proved from the evidences of the said PWs or the material on record. The learned Tribunal, therefore, in our opinion was not correct in arriving at its finding that the charges of corruption have been proved only because there had been alleged recovery of the amount. The findings of the disciplinary authority was, therefore, irrational. Furthermore demand is an essential ingredient for proving the charges of corruption. In this case no amount was demanded by the petitioner by way of illegal gratification and in that matter he cannot be said to have committed the alleged misconduct. In a slightly different situation, the Apex Court in Subhash Parbat Sonvane v. State of Gujarat reported in 2002 (IV) A.D. (S.C.) 580 held:-

"5. In our view, mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1)(d)(i). Section 13(1)(d) is as under:-

"13. Criminal misconduct by a public servant -

(1) A public servant is said to commit the offence of criminal misconduct,

(d) if he -

(i) by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest."

15. In that case, it was noticed:-

Before the trial court, it was submitted by the learned APP that complainant has not supported the prosecution case on main ingredients of demand and acceptance and was treated hostile. In cross-examination also, he has not supported the prosecution version on demand or acceptance of the amount. The trial court has also observed that the complainant deliberately does not support on the points of demand and acceptance. However, the Court relied upon the evidence of Panch Shailesh Devshankar Pandya (PW2). We were taken through the evidence of PW2 Pandya and from his evidence, it is difficult to find out any statement made by him that accused demanded any amount from the complainant. The relevant part of the evidence of this witness suggests that when the prosecution party went at the police chowki, accused asked the complainant as why he had come there at that time? To that, complainant replied that he was waiting since one O'clock and that he has brought one witness to be examined. Accused informed him to come in the evening as his writer was not present. When the accused started to go towards toilet, the complainant followed him and he gave something from his pocket to the accused who took the same and put that in his pocket. From this evidence, it cannot be inferred that accused demanded any amount from the complainant or that he had obtained the same. It is apparent that the trial court and the High Court misread the evidence of PW2 and held that there was demand by the accused and the amount was paid to him by the complainant. It was unreasonable to hold that accused demanded money from the complainant. Complainant denied the said story and PW2 had not stated so."

16. We therefore are of the opinion that the impugned judgment cannot be sustained, which is set aside accordingly.

Writ petition is allowed but in the facts and circumstances of the case, there shall be no order as to costs.