Additional Commissioner Of ... vs Sushil Kumar & Anr.
2013 Latest Caselaw 56 Del

$~8
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Decision: January 04, 2013

+                       WP(C) 930/2011

      ADDITIONAL COMMISSIONER OF POLICE                      ..... Petitioner
          Represented by: Mr.Aditya Madan, Advocate.

               versus
      SUSHIL KUMAR & ANR.                             ..... Respondents
          Represented by: Mr.C.Hariharan, and Mr.Sunil, Advocates for
          R-1.
          Mr.Sachin Datta, and Ms.Niti Arora, Advocates for R-2.

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE VEENA BIRBAL

PRADEEP NANDRAJOG, J. (Oral)

1. In the year 2005 Maj.Gen.(Retd.) R.K.Kaushal became an accused in FIR No.671/04 for offences punishable under Section 420/120-B IPC read with Section 24 of the Emigration Act. It was alleged against him that he cheated several persons by offering them jobs abroad and after taking huge sums of money did not honour his word.

2. The investigation was entrusted to the respondent, SI Sushil Kumar i.e. the respondent who after obtaining orders from the Court took on remand the accused for purposes of investigation and recoveries and in the course of investigation took him to Dehradun. After investigations were over and the charge-sheet was filed the accused Maj.Gen.(Retd.) R.K.Kaushal obtained bail pending trial and started making allegations against the police officers who were associated in the investigation, including the respondent. Taking cognizance of the allegations made by Maj.Gen.(Retd.) R.K.Kaushal as contained in his exhaustive complaint

dated February 22, 2006 a departmental inquiry was conducted by a senior officer who submitted a report that save and except one the allegations alleged against the respondent by Maj.Gen.(Retd.) R.K.Kaushal were not only baseless but were motivated to demoralize the police officers who had investigated FIR No.671/04.

3. Of the various allegations made against the respondent by Maj.Gen.(Retd.) R.K.Kaushal one allegation was that the respondent had made him pay rent for Rooms No.207 and 208, Hotel Doon Regency, Dehradun where the respondent and two constables had stayed from July 17, 2005 till July 18, 2005.

4. In respect of said factual allegation in the complaint the report of the inquiry was that the entry in the hotel register was in the handwriting of the respondent and as per the statement made by Sanjeev Pundir, the Manager of the hotel, the payment for the stay was made by the respondent. Only one allegation made by Maj.Gen.(Retd.) R.K.Kaushal was found to be with substance i.e. of availing a transport facility provided by him i.e. Maj.Gen.(Retd.) R.K.Kaushal to transport him i.e. Maj.Gen.(Retd.) R.K.Kaushal from Jaipur to Delhi, in respect of which allegation found to be correct during the preliminary fact finding inquiry a charge-memo was issued to the respondent resulting in penalty of censure being imposed. We are not concerned with the said penalty inasmuch as the respondent has questioned the same in a separate proceeding.

5. Concluding the fact finding inquiry with a charge-memo issued and levying the penalty of censure, the writ petitioner issued a memorandum dated July 15, 2009 to the respondent, who by then rose to the rank of Inspector and under the memorandum furnished to him a summary of allegations i.e. the charge, as under:-

"It is alleged against Inspr. Sushil Kumar No.D-3073 that while posted in Anti-Forgery Section of Economic Offences Wing of Delhi Police as Sub-Inspector, he

arrested Major General (Retd.) Sh.R.K.Kaushal from Judicial custody on 16.7.05 after obtaining 3 days police custody remand from the court of ACMM, Delhi during the investigation of case FIR No.671/04 u/s 420/120B IPC and 24 Emigration Act, PS Karol Bagh, Delhi and he had taken the said accused along with 2 Constables to Dehradun for investigation where all of them stayed in Room No.207 & 208 of Hotel Doon Regency, 1-B, Haridwar Road, Dehradun from 17.7.05 at 8:45 p.m. to 18.7.05 at 11.40 a.m., whereas the expenses of `1,400/- on account of rooms rent of the Hotel were paid by the accused Major General (Retd.) Sh.R.K.Kaushal and that the accused was not lodged in the lock-up of any police station at Dehradun as a measure of precaution from security point of view and to prevent any mishappening during their stay at night and thus the proper procedure of investigation was not followed.

The above act on the part of Inspr. Sushil Kumar No.D- 3073 amounts to gross misconduct, negligence and dereliction in the discharge of his official duty which renders him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980."

6. Accompanying the summary of allegations is a list of witnesses, being eight in number, listed by the department through whom the summary of allegations is proposed to be established.

7. A perusal of the summary of allegations would reveal that it consists of two distinct wrongs alleged against the respondent which are made the subject matter of the inquiry. The first is of the respondent making accused Maj.Gen.(Retd.) R.K.Kaushal pay the hotel rent at Dehradun and the second of not lodging the accused in the lock-up of the PS at Dehradun as a measure of precaution from security point of view, in respect whereof it is alleged that the proper procedure was not followed.

8. It would be relevant to note that after the first inquiry was completed resulting in a penalty being imposed upon the respondent of censure,

complaints continued to pour in from the accused Maj.Gen.(Retd.) R.K.Kaushal which were investigated by Ms.Suman Goel, ACP who submitted a report that the allegations were false and motivated to pressurize the investigating officer i.e. the respondent and yet in spite thereof the charge-memo afore-noted was issued.

9. Vide impugned order dated July 22, 2010 the Central Administrative Tribunal, Principal Bench has allowed OA No.3482/2009 filed by the respondent holding the action to be an act of harassment and probably the result of some kind of pressure brought about by Maj.Gen.(Retd.) R.K.Kaushal.

10. As regards the first wrong alleged against the respondent i.e. of making the accused Maj.Gen.(Retd.) R.K.Kaushal pay the hotel bill for staying in Room No.207 and 208 at Hotel Doon Regency, learned counsel for the petitioner concedes that the only witness with the department to establish so is Maj.Gen.(Retd.) R.K.Kaushal and would further concede that the worth of his evidence would be minimal as he would be a highly tainted witness. Learned counsel for the petitioner would further concede that said aspect of the charge was investigated when the first fact finding inquiry was ordered and the evidence gathered was that the entry in the hotel register was in the handwriting of the respondent and that the Manager of the hotel had made a statement that the respondent had cleared the bill. Similar is the report of the second fact finding inquiry.

11. However, learned counsel for the petitioner urges that the second limb of the charge-memo i.e. not lodging the accused Maj.Gen.(Retd.) R.K.Kaushal in the police lock-up being an act of not following the proper procedures of investigation was not investigated when the first fact finding inquiry was ordered and thus would urge that at least said part of the charge- sheet ought not to have been quashed.

12. But when confronted with the question whether any rule, guideline or

office instruction has been issued that in all cases the accused, if on remand for purposes of investigation and required to be taken to a town outside Delhi and cannot be brought back the same day, the accused must be lodged in the lock-up of the nearest police station have been issued, and if yes whether the same have been listed in the list of documents along with the charge memorandum; on perusing the record learned counsel states that the answer is : „NO'. Indeed, the list of documents accompanying the charge memo list only two documents : (i) A copy of bill No.698 dated July 18, 2005 of Hotel Doon Regency, Dehradun; and (ii) A copy of visitor‟s register dated July 17, 2005 and July 18, 2005 of Hotel Doon Regency, Dehradun bearing entry at Serial No.984.

13. Thus, learned counsel for the petitioner is compelled to concede that no procedure exists for investigation relating to the place where an accused, while on remand and taken to a different town needs to be lodged when night falls.

14. To summarize, two fact finding inquiries have exonerated the respondent and there is just no evidence available with the department through which the department could prove that the accused Maj.Gen.(Retd.) R.K.Kaushal paid `1,400/- as alleged in the charge, except the possible statement to said effect which could be made by Maj.Gen.(Retd.) R.K.Kaushal; a highly tainted evidence. And as against that, the department already has the evidence that the entry in the hotel register is in the hand writing of the respondent and the statement of the Manager to the effect that it was the respondent who had paid the hotel bill. With respect to the charge of not following the proper procedure of investigation in the context of not lodging the accused in the police lock-up, concededly no procedure has been laid down. Thus, we concur with the view taken by the Tribunal that it is a case where some hidden hands are manipulating to the detriment of the respondent, who had investigated an FIR pertaining to offences committed

by an influential man Maj.Gen.(Retd.) R.K.Kaushal.

15. We are being brief for the reason we are agreeing with the view taken by the Tribunal and would simply highlight that in a well-reasoned opinion spanning 21 pages the Tribunal has exhaustively dealt with the issue and the case law on the subject as to when a vexatious departmental proceeding can be nipped in the bud.

16. The writ petition is accordingly dismissed but without any order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(VEENA BIRBAL) JUDGE JANUARY 04, 2013 dkb