Commissioner Of Police vs Sh.Farman Singh
2010 Latest Caselaw 2692 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) No.0305/2009
%
                           Date of Decision: 20.05.2010

Commissioner of Police                                      .... Petitioner
                  Through Mr.V.K.Tandon           &   Ms.Parul Sharma,
                          Advocates.

                                    Versus

Sh.Farman Singh                                            .... Respondent
                        Through   Mr.G.S.Rana, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be              YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                NO
3.    Whether the judgment should be reported               NO
      in the Digest?



ANIL KUMAR, J.

*

The petitioner, Commissioner of Police has challenged the order

dated 9th September, 2008 passed by the Central Administrative

Tribunal, Principal Bench, New Delhi in O.A.No.470 of 2008, titled as

'HC Farman Singh v. Government of NCTD & others', allowing the

application of the respondent and setting aside his punishment of

withholding one future increment without cumulative effect by order

dated 27th November, 2007 and the order of dismissal of his appeal.

A departmental enquiry was initiated against the respondent on

the allegation that a complaint of theft on behalf of Smt.Shobha

Sharma was marked to him and he had brought a person namely

Prince s/o Sh.Samsang Leshey to the police post and had illegally

detained him for 12 hours and during this period he had beaten the

accused mercilessly and he was released after taking an illegal

gratification of Rs.3,000/- which amount was later on returned when

the mother of the said person Smt. Nishi Leshey had complaint to the

Commissioner of Police. During the enquiry seven witnesses were

examined, namely ASI Sunder Singh, SI Jaswant Singh, Smt.Rita @

Jasphin, SI Narender Kumar, Smt.Nisha Leshey, Sh.Samsang Leshey

and Prince Leshey. On behalf of the respondent, the witnesses

examined were Sh.Deepak & Sh.Praveen Kumar. The enquiry officer on

the basis of the statements made by the witnesses during the enquiry

proceedings held that there was sufficient evidence to establish the

culpability of the respondent. The disciplinary authority agreed with

the findings of the enquiry officer and passed an order dated 26th June,

2007 imposing the punishment of withholding one future increment

without cumulative effect and the appeal filed by the respondent was

also dismissed by order dated 27th November, 2007.

The respondent had challenged the punishment order dated 26th

June, 2007 and the appellate order dated 27th November, 2007 on the

ground that Rule 15(2) of Delhi Police (Punishment & Appeal) Rules,

1980 had been violated as no prior approval was sought from Additional

Commissioner of Police. The respondent also alleged violation of Rule 16

of the said Rules on account of taking the preliminary enquiry on

record. The respondent also challenged the punishment on the ground

that there was no evidence against him as even the accused and his

mother and father did not implicate him in the allegation of beating and

detaining the accused illegally.

The petitioner had opposed the pleas and contentions of the

respondent before the Tribunal contending that in the enquiry though

the charge of accepting Rs.3,000/- as illegal gratification was not

proved, however, the charge of bringing accused of theft namely Prince

to the police post Raghubir Nagar on 4th September, 2005 at 10:00 am

and releasing him at 10:30 pm after illegally detaining him for 12 hours

and beating him mercilessly was made out. The petitioner had relied on

the statement of SI Narender Kumar, I/C PP Raghubir Nagar to contend

that the complaint of Smt.Shobha Sharma was marked to ASI Dharam

Singh on 1st September, 2005 and later the same was entrusted to the

respondent, but he failed to take proper action and kept the complaint

with him unnecessarily and also detained prince illegally and had

beaten him mercilessly.

The Tribunal after considering the pleas and contentions held

that since no preliminary enquiry was held and it was only vigilance

enquiry and as investigations or vigilance enquiries are not covered

under the expression preliminary enquiry used in Rule 15(2) and Rule

5(3) of Delhi Police (Punishment & Appeal) Rules, 1980, therefore, the

plea of violation of Rule 15(2) of the rules on behalf of the respondent

was not made out.

Regarding the pleas of the respondent that there was no evidence

against him in respect of bringing Prince Leshey to the police post and

detaining him for 12 hours, the Tribunal considered the statements of

witnesses and held that considering the testimonies of all the witnesses,

it is apparent that no one had implicated and took the name of

respondent for either detaining the accused illegally or beating him or

demanding illegal gratification from him. Reliance was especially placed

on the statement of Sh.Samsang Leshey, Prince Leshey, accused and

Smt.Nishi Leshey and it was inferred that none of the witnesses

implicated the respondent in any manner. Consequently, it was held

that orders dated 26th June, 2007 and 27th November, 2007 are based

on no evidence against the respondent and therefore, quashed and set

aside the same.

Learned counsel for the petitioner has contended that there is

evidence against the respondent and it is not a case of no evidence

against the respondent. He referred to the statement of PW4, SI

Narender Singh. Perusal of the statement of SI Narender Singh reveals

about the complaint dated 30th August, 2005 from Smt.Shobha

Sharma. The said witnesses have only deposed about the photocopy of

the complaint. Rather he has also deposed that Prince Leshy was not

brought to the police post and he was not beaten. The said witness has

been cross-examined on behalf of the petitioner, however, from his

cross examination the inferences that the person accused of theft was

brought to the police post and beaten cannot be drawn at all as there is

nothing in the statement of the said SI Narender Kumar to implicate the

respondent. Smt.Nishi Leshey PW 5 in reply to a specific question that

when with her husband she went to police post twice whether the

respondent was present or not, she answered that the respondent was

not present at the police post and she and her husband had no talk

with him. She did not depose that the respondent had illegally confined

the person accused of theft, namely Prince, her son or had beaten him

mercilessly, nor any such deposition has been made by PW6

Sh.Samsang Leshey and Prince Leshey. The allegation against the

respondent is that he had illegally detained the person accused of theft

namely Prince and had mercilessly beaten him. However, the said

person accused of theft deposed as PW7 and categorically denied that

the head constable Sh.Farman Singh/respondent had beaten him. If

the person who was allegedly detained and was beaten up, before the

enquiry officer denied that he was beaten by the respondent, the

inferences which have been drawn by the enquiry officer and

disciplinary authority that there is sufficient evidence against the

respondent is inconceivable. This Court has perused the statements of

these witnesses and do not find any evidence against the respondent

and in the circumstances, the learned counsel for the petitioner is

unable to show any ground on which the findings of the Tribunal can

be faulted setting aside the punishment order of the Disciplinary

authority and Appellate authority's order dismissing the appeal of the

respondents in the facts and circumstances of the case.

In totality of the facts and circumstances, there is no such

illegality, irregularity or perversity in the order of the Tribunal, which

would require any interference by this Court in exercise of its

jurisdiction under Article 226 of the Constitution of India.

The writ petition in the facts and circumstances of the case,

is without any merit, and it is therefore, dismissed.

ANIL KUMAR, J.

MAY 20, 2010                                    MOOL CHAND GARG, J.
'VK'