Govt. Of Nct Of Delhi vs Asi Karan Singh
2009 Latest Caselaw 3907 Del

               HIGH COURT OF DELHI: NEW DELHI

+      Writ Petition (Civil) No. 11739/2009

              Judgment reserved on: 17th September, 2009
%             Judgment delivered on: 23rd September, 2009


       GOVT. OF NCT OF DELHI            ..... Petitioner
                    Through: Ms. Ansuya Salwan, Adv.
               Versus

       ASI KARAN SINGH                       ..... Respondent
                    Through: None.

                              WITH

       Writ Petition (Civil) No. 11741/2009

       GOVT. OF NCT OF DELHI            ..... Petitioner
                    Through: Ms. Ansuya Salwan, Adv.
               Versus

       CONST. SUBHASH CHAND                  ..... Respondent
                   Through: None.

       Coram:
       HON'BLE MR. JUSTICE MADAN B. LOKUR
       HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers may
          be allowed to see the judgment? Not Necessary

       2. To be referred to Reporter or not? Not Necessary

       2. Whether the judgment should be reported
          in the Digest?             Not Necessary

A.K. PATHAK, J.

1. Both these writ petitions are disposed of by this

judgment, as the same germinate from the common order

dated 17th January 2009, passed by the Central

Administrative Tribunal, Principal Bench, New Delhi

(hereinafter referred to as „Tribunal‟), in O.A. Nos. 80/2008

titled as Subhash Chand vs. Govt. of NCT of Delhi & Ors.

and 146/2008 titled as Karan Singh vs. Govt. of NCT of Delhi

& Ors.

2. At the relevant time, Karan Singh was working as

Assistant Sub Inspector (ASI); whereas Subhash Chand was

working as Constable in the Delhi Police. FIR No. 448/2003

was registered against them by the Police Station Seelampur,

under Section 376/34 IPC, on the allegation that they

committed rape upon Ms. Asma, maid servant of Ms. Seema

Bhattacharya, on 4th December, 2003 at about 1:45 pm at

house No. A-124, Dilshad Garden, Delhi.

3. Both, ASI Karan Singh and Constable Subhash

(Respondents), were placed under suspension on 8th

December, 2003. They were subsequently reinstated in

service only on 11th June, 2005.

4. A departmental proceeding for major penalty was

initiated against them on the same allegation of rape, which

constituted misconduct on their part. However, disciplinary

enquiry was kept in abeyance vide order dated 8 th July, 2004

as both the delinquents were in judicial custody. Enquiry

was reopened on 27th November, 2004 after they were

released on bail but again the same was kept in abeyance

pending criminal case in respect of same incident.

5. Additional Sessions Judge, Karkardooma, Delhi

acquitted ASI Karan Singh and Constable Subhash

(Respondents) vide judgment dated 28th January, 2005.

Learned Additional Sessions Judge concluded that there was

not even an iota of evidence against Constable Subhash

Chand; So far as ASI Karan Singh is concerned, he was

acquitted for lack of evidence by giving benefit of doubt. In

fact, during the criminal trial, all the witnesses did not

support the prosecution case. Prosecutrix made a

categorical statement that she was not raped by ASI Karan

Singh and Constable Subhash Chand. Mother of the

prosecutrix, namely, Ms. Fatima, and Ms. Seema

Bhattacharya, employer of the prosecutrix, also did not

support the prosecution in the criminal trial. As per

prosecution ASI Karan Singh (Respondent) had confessed his

guilt before Ms. Seema Bhattacharya and Mr.Mehtab (Press

Reporter). However, during trial they stated that no

apology/confession was made by ASI Karan Singh.

6. In view of the above, learned Additional Sessions Judge

acquitted ASI Karan Singh and Constable Subhash Chand

(Respondents). However, while acquitting them learned

Additional Sessions Judge directed the DCP to hold a

departmental enquiry.

7. Departmental enquiry was again reopened on 11 th June,

2005. During the enquiry proceedings as many as seven

witnesses including prosecutrix and her mother stepped in

the witness box. Enquiry Officer gave his report to the

Disciplinary Authority. In his report, Enquiry Officer

concluded that there was no evidence on record to prove the

guilt of both the delinquents and that no charge was made

out against them.

8. Disciplinary Authority did not agree with the findings of

the Enquiry Officer and recorded disagreement note. As per

the Disciplinary Authority prosecutrix and her family

members had been won over by the ASI Karan Singh and

Constable Subhash Chand (Respondents). Disciplinary

Authority observed that the prosecutrix had alleged rape at

the time of registration of FIR and later on while making a

statement under Section 164 Cr.P.C. before the Magistrate.

Prosecutrix had been married and in order to save her

married life she might have decided not to proceed further in

the case and, therefore, she had resiled from her earlier

statement. Disciplinary Authority held that the clause (b) of

Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980

was attracted in this case. Disciplinary Authority was also

of the view that in a criminal trial charges were to be proved

beyond reasonable doubt; whereas in a departmental

proceedings, even strong probability would be sufficient to

prove the guilt of a person.

9. Disagreement note was served on the Respondents

along with findings of Enquiry Officer and they were called

upon to submit the reply within fifteen days. ASI Karan

Singh and Constable Subhash Chand submitted their written

representations. Thereafter, Disciplinary Authority passed a

punishment order whereby forfeited the approved two years

service permanently of ASI Karan Singh and Constable

Subhash Chand (Respondents). Suspension period from 8th

December, 2003 and 10th June, 2005 was also ordered to be

treated as period not spent on duty for all intents and

purposes.

10. ASI Karan Singh and Constable Subhash Chand filed

appeal before the Appellate Authority which was also

dismissed vide order dated 16th October, 2007.

11. Aggrieved by the order passed by the Disciplinary

Authority and Appellate Authority, ASI Karan Singh and

Constable Subhash Chand, preferred original applications

being O.A. Nos. 146/2008 and 80/2008 respectively, which

have been allowed vide impugned order dated 17 th January,

2009. Tribunal quashed the order passed by the Disciplinary

Authority as well Appellate Authority and directed that

Petitioner shall restore all the consequential benefits treating

suspension period as spent on duty, within a period of two

months.

12. Aggrieved by the impugned order of the Tribunal

Petitioner has preferred the present writ petitions. We have

heard the learned counsel for the Petitioner and have

perused the material placed on record.

13. Tribunal held that the prosecutrix and other witnesses

had not supported the prosecution, therefore, ASI Karan

Singh and Constable Subhash Chand were acquitted by the

learned Additional Sessions Judge. Learned Additional

Sessions Judge had not returned any findings that the

witnesses were won over by ASI Karan Singh and Constable

Subhash Chand. No material was there before the

Disciplinary Authority to take a view that prosecutrix and her

family members had been won over. Accordingly, case did

not fall within the ambit and scope of Rule 12 (a) to (e) of

Delhi Police (Punishment & Appeal) Rules, 1980. Tribunal

concluded that ASI Karan Singh and Constable Subhash

Chand could not have been punished departmentally in view

of Rule 12 of the Delhi Police (Punishment & Appeal) Rules,

1980.

14. We do not find any error in the findings returned by the

Tribunal. Record shows that the prosecutrix did not support

the prosecution during the criminal trial. She categorically

stated that ASI Karan Singh and Constable Subhash Chand

did not rape her. Mother of the prosecutrix had also not

supported the prosecution. Even Ms. Seema Bhattacharya

and Mr. Mehtab had stated in the criminal court that the

accused (ASI Karan Singh) had not made any confession

before them regarding the incident. So far as the alleged

apology/confession letter is concerned, the same was

available on the record of the criminal case as exhibit PW1/D

but same was not taken into account since no hand writing

expert was produced to show that the same was written by

ASI Karan Singh. For the lack of evidence both ASI Karan

Singh and Constable Subhash Chand were acquitted.

Learned Additional Sessions Judge did not record any finding

that the witnesses were won over. Even otherwise, ASI Karan

Singh and Constable Subhash Chand could not have won

over the witnesses as it appears that they were in judicial

custody for a considerable period during the trial.

15. Prosecutrix and her mother also stepped in the witness

box during the enquiry proceedings. However, they did not

support the incident. Prosecutrix categorically stated that

ASI Karan Singh and Constable Subhash Chand had not

raped her. Mother of the prosecutrix stated that she along

with prosecutrix was taken to Police Station with regard to a

theft case from where prosecutrix was taken to G.T.B.

Hospital in a car. From G.T.B. Hospital she and prosecutrix

returned home. This shows that no evidence was available

even before the Enquiry Officer to conclude that ASI Karan

Singh and Constable Subhash Chand had raped the

prosecutrix. Ms.Seema Bhattacharya and Mr.Mehtab were

not even present in the house at the time of incident and

they had allegedly come to know about the incident from the

prosecutrix and their statements are hearsay. Enquiry

Officer returned a categorical finding on the basis of evidence

adduced before him that the charges remained unproved. In

our view there was no cogent material available before the

Disciplinary Authority to take a different view than what was

taken by the Enquiry Officer; more so when prosecutrix had

categorically stated that she was not raped by ASI Karan

Singh and Constable Subhash Chand. She was the best

person to prove the allegation of rape. In absence of her

statement affirming rape, the incident remained unproved.

Disagreement note is based on no evidence.

16. Findings recorded by the Disciplinary Authority that

prosecutrix and her family member were won over was also

without any basis. No such finding was recorded by the

learned Additional Sessions Judge. Accordingly, the view

expressed by the Disciplinary Authority in this regard is of no

consequence in as much as it is not based on any material to

indicate this fact.

17. Rule 12 of the Delhi Police (Punishment and Appeal)

Rules, 1980 reads as follows :-

"When a police officer has been tried and acquitted by a criminal court, he shall not be punished 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 Deputy 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 citied in the criminal case discloses 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".

18. Perusal of the above provision makes it clear that if a

police officer has been tried and acquitted by a criminal court

he cannot be punished departmentally on the same charge or

for different charge, based upon the same evidence, which is

cited in the criminal case unless acquittal has resulted on

the grounds, as mentioned in clauses (a) to (e). In this case

no such finding was returned by the learned Additional

Sessions Judge, that accused were entitled to the acquittal

on technical grounds, therefore, this case does not fall under

clause (a). So far as clause (b) is concerned, no such opinion

was expressed by the learned Additional Sessions Judge that

the prosecution witnesses had been won over. So far as

Disciplinary Authority is concerned, as already stated above,

his view in this regard is based on no material. Accordingly,

in our view, this case also does not fall within the clause (b)

as well. Clause (c) to (e) are not attracted in this case as the

court had not expressed any opinion that the suspicion rests

upon the ASI Karan Singh and Constable Subhash Chand in

respect to the incident of rape. It is also not a case where

additional evidence was available to proceed against ASI

Karan Singh and Constable Subhash Chand departmentally.

In fact same witnesses were examined in the departmental

proceedings. In our view this case does not fall within the

ambit and scope of exceptions carved out by way of clauses

(a) to (e) of Rule 12 of Delhi Police (Punishment & Appeal)

Rules, 1980.

19. In view of above, we are of the opinion that the

Tribunal has rightly concluded that the exceptions carved

out in the Rule 12 of Delhi Police (Punishment & Appeal)

Rules, 1980 were not attracted in this case and since ASI

Karan Singh and Constable Subhash Chand were acquitted

in criminal case, therefore, they could not have been

punished departmentally.

20. We do not find any jurisdictional error in the impugned

order.

21. Dismissed.

A.K. PATHAK, J

MADAN B. LOKUR, J

SEPTEMBER 23, 2009 ga