Dalbir Singh vs Uoi & Ors.
2012 Latest Caselaw 6656 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision: November 21, 2012

+                            W.P.(C) 6354/2012

        DALBIR SINGH                                    ..... Petitioner
                 Represented by:        Mr.Kaushal Yadav, Advocate.

                    versus

        UOI & ORS.                                   ..... Respondents
                  Represented by: Mr.Ravinder Aggarwal, Advocate
                  with Mr.Vijaya Kumar Rout, Pairvi Officer, CRPF.

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

PRADEEP NANDRAJOG, J. (Oral)

CM No.16963/2012 Allowed subject to just exceptions.

WP(C) 6354/2012 & CM No.6962/2012

1. On April 11, 1993 an incident took place at around 11.30 A.M. in the office of the Deputy Commandant of 36 CRPF Battalion at Fatehabad at which it was alleged against the appellant that using the Self Loading Rifle issued to him he fired at the Deputy Commandant during which firing the Deputy Commandant was hit and Battalion Havaldar Major Harish Chander died.

2. The writ petitioner was sent to trial for offences punishable under Section 302 IPC and 307 IPC as also Section 25 of the Arms Act and was

convicted by the Court of Sessions but acquitted by the High Court Punjab and Haryana in Crl. Appeal No.250-D.B./1996.

3. The decision of the High Court of Punjab and Haryana would reveal that the acquittal was principally on the ground that whereas some eye witnesses state that the appellant was disarmed by them and apprehended at the site, some spoke of the appellant absconding with the weapon of offence and some spoke of the weapon of offence being picked up from the scene of the offence after the same was used by the appellant and thereafter the appellant was apprehended.

4. To put it pithily there was conflicting evidence from where the weapon of offence was picked up and place from where the petitioner was apprehended.

5. It appears that no evidence was led by the prosecution to establish that the SLR in question was issued from the Armoury to the petitioner and no link evidence was led with reference to the ballistic report linking the cartridges picked up from the scene of crime with the SLR issued to the petitioner.

6. After he was acquitted the petitioner sought reinstatement in service for the reason as a result of his being convicted at the trial the petitioner was dismissed from service.

7. The petitioner filed WP(C)3065/2012 in this Court praying that on account of he being acquitted order dismissing him from service be set aside.

8. Vide order dated May 28, 2012 passed in WP(C)3065/2012, a Division Bench of this Court directed the respondents to decide the representation of the petitioner within four weeks and observed that in case the petitioner was entitled to be reinstated, he should be reinstated in service

with consequential benefits including arrears of pay and promotion etc.

9. So directing the writ petition was directed to be listed on July, 25, 2012.

10. In respect of the direction issued by the Division Bench we would only note that language appears to be mandatory i.e. as if the direction has been issued to reinstate the petitioner in service with back wages, but meaningfully read it would simply mean that the respondents have to consider the issue pertaining to the period interregnum petitioner being dismissed from service till he was reinstated in light of FR 54 & 54A.

11. We would expect the respondents to do so as per law.

12. The respondents have now issued a charge-sheet to the petitioner which has been challenged in the instant writ petition on the plea that the charge-sheet lists the same charge for which the writ petitioner was tried by the Court of Sessions.

13. When the writ petition came up for hearing we had deferred consideration requiring learned counsel for the respondents to obtain instructions whether the respondents would like to withdraw the charge- sheet or continue with the same.

14. Learned counsel for the respondents informs that a decision has been taken to withdraw the charge-sheet for the reason it would not be permissible for the respondents to charge the petitioner and hold a departmental inquiry with reference to the death of Battalion Havaldar Major Harish Chander as also injuries caused to the Deputy Commandant.

15. However, learned counsel for the respondents submits that the issue pertaining to the departmental instructions with reference to safe custody of arms and ammunition issued to force personnel while on duty, which was not the subject matter of a criminal trial can always be gone into at a

departmental inquiry. Learned Counsel submits that an official arm and ammunitions issued to a force personnel if found to be used in an incident resulting in the death of force personnel would certainly require an accountability to be given by the officer concerned who was issued the arm and ammunitions.

16. The offending charge-sheet which has been challenged in the writ petition has been withdrawn by the respondents and therefore the writ petition is disposed of as infructuous observing that it would be permissible for the respondents to issue a charge-sheet but not in relation to the death of Battalion Havaldar Major Harish Chander and the injuries caused to Dy.Comdt.Hari Singh. The respondents would be entitled to hold an inquiry with respect to the arm and ammunitions issued to the writ petitioner on day of incident and seek petitioner's accountability in relation thereto.

17. Needless to state all defences available to the petitioner could be raised at the proposed inquiry.

18. No costs.

19. Dasti.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE NOVEMBER 21, 2012 skb