Rash Bihari Pandey vs Uoi & Ors
2012 Latest Caselaw 4744 Del

$~R-13.
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision: August 13, 2012

+                      W.P.(C) 3498/2000

       RASH BIHARI PANDEY                 ..... Petitioner
                Represented by: Mr.G.C.Tyagi, Adv.

                       versus

       UOI & ORS                                  ..... Respondents
                       Represented by: Mr.Rajinder Nischal, Adv.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

1. The petitioner was inducted as a Constable in ITBP on September 15, 1987. Pertaining to an incident dated May 28, 1982, i.e., about five years and four months before he was inducted into service, the petitioner and eighteen other persons were named as accused for having formed an unlawful assembly and commit murder. Taking cognizance of the challan filed, the learned Court of the Magistrate concerned sent the petitioner and the eighteen other persons for trial before the Court of Sessions. This was in the year 1984.

2. In Sessions Trial No.385/1984, all 19 persons, which included the petitioner, were convicted, when the learned Additional Sessions Judge pronounced a verdict of guilt on June 20, 1992 and thereafter sentenced the petitioner and 18 other

co-accused to undergo imprisonment for life.

3. Needless to state, being admitted to bail during trial, the petitioner had to surrender to suffer the sentence of imprisonment to life imposed upon him and by the said date, i.e. June 20, 1992, was already in service.

4. This fact of petitioner being convicted then came to the knowledge of the department, which proceeded to take disciplinary action against the petitioner by alleging against the petitioner that he had suppressed truth when he filled up the enrollment form when he was selected for appointment as a Constable in ITBP. It was alleged against the petitioner that required to furnish information on whether he was an accused for having committed an offence, he had responded in the negative when employment was offered to him in September, 1987. It was alleged by the department that as on said date, the petitioner was an accused; facing a charge for having committed offences punishable under Section 302/149 IPC.

5. The petitioner did not dispute the fact that while filling up the enrollment form, he had wrongly stated that he was not an accused for having committed an offence. But, he pleaded innocence. The petitioner highlighted that he was aged 14 years when the alleged incident took place. He stated that he had no idea that he was ever an accused.

6. The cry of innocence of the petitioner went unheeded, inasmuch as the disciplinary authority passed an order on September 30, 1993, dismissing the petitioner from service. The petitioner thereafter filed a writ petition before the High Court of

Judicature at Patna which was dismissed for want of territorial jurisdiction. The petitioner realized that he had an appellate remedy under the statute and thus he filed an appeal against the order dated September 30, 1993 which was rejected vide order dated January 7, 1999.

7. Thereafter, instant writ petition was filed.

8. The petitioner who appears in person along with his counsel has produced for our perusal the original certificate issued by the Bihar School Examination Board, Patna, as per which certificate the petitioner was born on February 1, 1968.

9. Learned counsel for the respondent does not dispute the fact that this is the date of birth of the petitioner recorded in the records of the respondents.

10. If the petitioner was born on February 1, 1968, he would be aged 14 years 3 months and 27 days as of May 28, 1982 when rioting took place in the village and 19 persons, one of whom was the petitioner were named as accused.

11. Highlighting the fact that against his being convicted, the petitioner preferred an appeal along with 18 co-accused, registered as Criminal Appeal No.202/1992, vide judgment and order dated December 13, 1995 the petitioner was acquitted by a Division Bench of the Patna High Court we proceed to analyze further.

12. The petitioner was admittedly 14 years 3 months and 27 days when rioting took place in his village. He along with the 18 other persons were named as accused. The petitioner tells us that he does remember going along with his father, brothers and

uncles to a Court, but at that time he did not know that he was an accused. He just knew that he was accompanying his family elders to the Court.

13. We can well understand what may have happened. The case would be called in the Court by the peshgar. 19 people would walk up. The petitioner being the youngest, aged 14 years and 3 months, would obviously be hidden at the back. Nobody noticed that a young lad aged 14 years; and a juvenile, was facing trial before a Court of Sessions; which was not recognized by law. The instant case simply highlights the plight of the poor, illiterate and innocent villagers. It highlights the manner in which the criminal trials are being conducted. We are confident of the fact that had the learned Additional Sessions Judge bothered to call up, one by one, all 19 accused when the charge was read out and the plea of not guilty was recorded, he would have seen that a young lad aged 14 years was standing before him. It is unfortunate that at trials, charges are framed without active participation by the Judge, and in particular when the number of accused are multiple. A Judge thinks: Why waste my time to call the accused one by one and perform the ritual of reading the charge. He retires to the chamber. The typist types 19 identically worded charges and the 19 accused simply sign beneath the words 'Not Guilty'.

14. There is every possibility that there is truth in what the petitioner is stating. He never knew the purpose for which he was taken to the Court. He simply accompanied his father and his uncles to the Court. He stood as part of the group. He stood

at the rear. Nobody noticed him.

15. That during the inquiry the petitioner made a statement before the inquiry officer to the effect that he was 14 years old as on May 28, 1982 and does not remember that he was an accused is not disputed by the respondents. In fact, the plea to this effect in para 2(i) of the writ petition has not been denied in the corresponding paragraph of the counter affidavit.

16. Under the circumstances we hold that the petitioner is not guilty of deliberately concealing any relevant fact pertaining to his being an accused. Highlighting that the petitioner was a juvenile when he was subjected to a Sessions trial; a trial which has to be ignored against the petition in law, further holding that on being convicted (wrongly) by the Court of Sessions, the petitioner was honorably acquitted by the High Court, we dispose of the writ petition quashing the order dated September 30, 1993 and the order dated January 7, 1999. The petitioner is directed to be re-instated in service with all consequential benefits except no back-wages to be paid.

17. No costs.

PRADEEP NANDRAJOG, J.

MANMOHAN SINGH, J.

AUGUST 13, 2012 'anb'