Himachal Pradesh High Court
Between vs "21. It Is An Undisputed Fact That ... on 13 August, 2021
Bench: Sandeep Sharma
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 13th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 7404 of 2019
Between:
NARENDER SINGH SON OF SH.
MOHINDER SINGH,R/O VILLAGE
AND P.O. CHAMUKHA, TEHSIL RAKKAR,
DISTRICT KANGRA, HIMACHAL PRADESH
....PETITIONER
(BY MS. SUNITA SHARMA, SENIOR ADVOCATE
WITH SH. DHANANJAY SHARMA AND SH.
RANVIR SINGH, ADVOCATES )
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY
(HOME) TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA-2.
2. DIRECTOR GENERAL OF POLICE,
HIMACHAL PRADESH SHIMLA-2
3. SUPERINTENDENT OF POLICE,
KANGRA, DISTRICT KANGRA, H.P.
....RESPONDENTS
(BY SH. SUDHIR BHATNAGAR, ADDITIONAL
ADVOCATE GENERAL WITH SH. R.P. SINGH,
AND SH NARENDER THAKUR, DEPUTY
ADVOCATE GENERALS.)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the
following:
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ORDER
Being aggrieved and dissatisfied with the order dated
.
12.4.2016, passed by Director General of Police, Himachal Pradesh,
whereby representation (Annexure A-2), dated 23.11.2015, having
been filed by the petitioner to reinstate him in service on account of
his acquittal in criminal case No.119 of 2014 vide judgment dated
24.7.2015 passed by Hon'ble High Court of Himachal Pradesh in Cr.
Appeal No.120 of 2014, came to be rejected.
2. For having bird's eye view, certain undisputed facts as
emerge from the record are that the petitioner, who was constable in
Police Department, came to be named in the FIR No.78/2013, dated
11.7.2013 under Sections 20 of the Narcotic Drugs & Substances
Act,(for short 'Act'), registered at police Station, Bangana, District Una,
Himachal Pradesh, on the allegation that he was unauthorizedly
carrying narcotic substance. On the basis of information supplied by
Sub Divisional Police Officer, Dehra, petitioner was placed under
suspension w.e.f.11.7.2013. Vide judgment dated 24.3.2014, learned
Special Judge, Una, District Una, H.P., convicted and sentenced the
petitioner alongwith other co-accused under Sections 20 of the Act, as
a consequence of which, he remained in judicial custody for 256 days
with effect from 11th July, 2013 to 23rd March, 2014. On account of
petitioner's being convicted and sentenced under Section 20 of the
Act, Superintendent of Police, Kangra vide order dated 9.6.2014
dismissed him from service with effect from 11th July, 2013 as per the
provisions laid down in Rule 16.19 of HPPR (Annexure A-1).
.
3. Petitioner herein, being aggrieved and dissatisfied with
the aforesaid judgment of conviction and order of sentence recorded
by learned court below, filed an appeal before the Division Bench of
this Court, which came to be registered as Cr. Appeal No.120 of 2014.
Division Bench of this Court vide judgment dated 24th July, 2015,
acquitted the petitioner of the offences punishable under Sections
20(b)(ii)( C) read with Section 29 of the Act and as such, petitioner by
way of representation(Annexure P-2), dated 23.11.2015, requested
the Superintendent of Police, Kangra at Dharamshala, Himachal
Pradesh to reinstate him in service. However, such prayer of him
came to be rejected vide order dated 12.4.2016, passed by Director
General of Police, Himachal Pradesh, Annexure R-1, annexed with the
reply filed by the respondents. In the aforesaid background, petitioner
has approached the erstwhile H.P. Administrative Tribunal by way of
Original Application No.1783 of 2019, however on account of
abolishment of erstwhile H.P. Administrative Tribunal, case came to be
transferred to this Court and stands registered as CWPOA No.7404 of
2019, praying therein following reliefs:-
1. That Annexure A-1 may be quashed and set aside
and respondent may be directed to reinstate the
applicant with all consequential benefits.
2. That the applicant is entitled for the full salary
from the date it fell due.
3. That the suspension period is required to be
counting for qualifying service.
4. That the respondents may be directed to reinstate
the petitioner with seniority.
.
5. That the respondent No.2 may be directed to
decide the representation Annexure A-6 in time
bound manner.
4. Having heard learned counsel representing the parties
and perused the material available on record, this court finds that
there is no dispute interse parties that vide judgment dated 24th July,
2015, petitioner herein stands acquitted of the charges framed
against him under Sections 20(b)(ii)( C) read with Section 29 of the
Act. It is also not in dispute that as of today, no disciplinary
proceedings are pending against the petitioner herein. Prayer made
on behalf of the petitioner after his having acquitted in criminal case
for reinstatement came to be rejected on the ground that acquittal of
petitioner in appeal by Division Bench of this Court is not hounourable
and he does not qualify for consideration of reinstatement in service.
It would be profitable to take note of order dated 12.4.2016, passed
by Director General of Police, Himachal Pradesh, rejecting therein the
prayer made on behalf of the petitioner for reinstatement herein
below:-
" An acquittal has to be " hounourable" to qualify for
consideration of reinstatement. There is no provision for
automatic reinstatement in service. Another case has
also been registered for which charge sheet is ready".
5. Having carefully perused the order passed by the
competent authority, this Court has no hesitation to conclude that
representation having been filed by the petitioner has been
considered and rejected by the competent authority in slip shod
.
manner without assigning any reason. Though, in the aforesaid order,
it has been mentioned that acquittal has to hounourable to qualify for
consideration of reinstatement, but there is nothing mentioned in the
order that how petitioner cannot be said to have been acquitted
hounourable vide judgment dated 24.3.2014, passed by Division
Bench of this Court in Cr. Appeal No.120 of 2014.
6. Having carefully perused the judgment dated 24.3.2014,
this Court finds that Division Bench of this Court acquitted the
petitioner of the offences punishable under Sections 20(b)(ii)( C) read
with Section 29 of the Act, after having discussed entire evidence
available on record. If judgment passed by Division Bench of this
Court, is read in its entirety, it clearly reveals that independent
witnesses associated by the police while effecting recovery also not
supported the case of the prosecution. PW-1 in his cross-examination
by prosecution denied the suggestion that charas weighed 1.5 kg was
recovered in his presence.
7. Though, learned Deputy Advocate General while referring
to the judgment of acquittal passed by Division Bench of this Court
argued that since appeal having been filed by the petitioner came to
be allowed on technical grounds, his acquittal cannot be said to be
hounourable, but this Court after having scanned the material
available on record, finds no force in the aforesaid submission made
by learned Deputy Advocate General. As has been observed
hereinabove, Division Bench of this Court has discussed the entire
.
evidence led on record by the prosecution, appeal of the petitioner
has been not only allowed on the ground of non-adherence of
statutory provisions contained under the Act, rather Division Bench
taking into consideration entire evidence, proceeded to acquit the
accused. Division Bench of this Court while acquitting may not have
specifically mentioned that prosecution witnesses have not supported
the case of the prosecution, but while acquitting the accused of
offences Sections 20(b)(ii)( C) read with Section 29 of the Act, Division
Bench of this Court has discussed the entire evidence and has not
extended the benefit of doubt to the petitioner, rather has acquitted
him honourably.
8. Expression 'hounourable' acquittal has been not defined
anywhere, but such expression came to be discussed and reported in
the judgment passed by Hon'ble Apex Court in S.Bhaskar Reddy and
another versus Superintendent of Police, and another (2015)2 Supreme
Court Cases 365, wherein it has been held that if Court below has
recorded the finding of fact on proper appreciation and evaluation of
evidence on record and has held that the charges framed in the
criminal case are not proved against the accused, it shall be deemed
to be hounourable acquittal. In the aforesaid judgment Hon'ble Apex
Court has held that it is difficult to define precisely what is meant by
the expression "honorably acquitted". When the accused is acquitted
after full consideration of prosecution evidence and that the
prosecution had miserably failed to prove the charges levelled against
.
the accused, it can possibly be said that the accused was honourably
acquitted. It would be profitable to take note of paras No.21 to 23 and
26 herein- below:-
"21. It is an undisputed fact that the charges in the criminal
case and the Disciplinary proceedings conducted against the
appellants by the first respondent are similar. The appellants
have faced the criminal trial before the Sessions Judge,
Chittoor on the charge of murder and other offences
of IPC and SC/ST (POA) Act. Our attention was drawn to the
said judgment which is produced at Exh. P-7, to evidence the
fact that the charges in both the proceedings of the criminal
case and the Disciplinary proceeding are similar. From
perusal of the charge sheet issued in the disciplinary
proceedings and the enquiry report submitted by the Enquiry
Officer and the judgment in the criminal case, it is clear that
they are almost similar and one and the same. In the criminal
trial, the appellants have been acquitted honourably for want
of evidence on record. The trial judge has categorically
recorded the finding of fact on proper appreciation and
evaluation of evidence on record and held that the charges
framed in the criminal case are not proved against the
appellants and therefore they have been honourably
acquitted for the offences punishable under 3 (1) (x) of SC/ST
(POA) Act and under Sections 307 and 302 read with Section
34 of the IPC. The law declared by this Court with regard to
honourable acquittal of an accused for criminal offences
means that they are acquitted for want of evidence to prove
the charges.
22. The meaning of the expression "honourable acquittal"
was discussed by this Court in detail in the case of Deputy
Inspector General of Police & Anr. v. S. Samuthiram[3], the
relevant para from the said case reads as under :-
"24. The meaning of the expression "honourable acquittal"
came up for consideration before this Court in RBI v.
Bhopal Singh Panchal. In that case, this Court has
considered the impact of Regulation 46(4) dealing with
honourable acquittal by a criminal court on the disciplinary
proceedings. In that context, this Court held that the mere
acquittal does not entitle an employee to reinstatement in
service, the acquittal, it was held, has to be honourable.
The expressions "honourable acquittal", "acquitted of
blame", "fully exonerated" are unknown to the Code of
Criminal Procedure or the Penal Code, which are coined by
judicial pronouncements. It is difficult to define precisely
what is meant by the expression "honourably acquitted".
When the accused is acquitted after full consideration of
.
prosecution evidence and that the prosecution had
miserably failed to prove the charges levelled against the
accused, it can possibly be said that the accused was
honourably acquitted."
(Emphasis laid by this Court)
After examining the principles laid down in the above said case,
the same was reiterated by this Court in a recent decision in
the case of Joginder Singh v. Union Territory of Chandigarh &
Ors. in Civil Appeal No. 2325 Of 2009 (decided on November
11, 2014.
23.Further, in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. &
Anr. (supra) this Court has held as under:-
"34. There is yet another reason for discarding the whole of the
case of the respondents. As pointed out earlier, the criminal
case as also the departmental proceedings were based on
identical set of facts, namely, "the raid conducted at the
appellant's residence and recovery of incriminating articles
there from". The findings recorded by the enquiry officer, a
copy of which has been placed before us, indicate that the
charges framed against the appellant were sought to be proved
by police officers and panch witnesses, who had raided the
house of the appellant and had effected recovery. They were
the only witnesses examined by the enquiry officer and the
enquiry officer, relying upon their statements, came to the
conclusion that the charges were established against the
appellant. The same witnesses were examined in the criminal
case but the Court, on a consideration of the entire evidence,
came to the conclusion that no search was conducted nor was
any recovery made from the residence of the appellant. The
whole case of the prosecution was thrown out and the appellant
was acquitted. In this situation, therefore, where the appellant
is acquitted by a judicial pronouncement with the finding that
the "raid and recovery" at the residence of the appellant were
not proved, it would be unjust, unfair and rather oppressive to
allow the findings recorded at the ex parte departmental
proceedings to stand.
35. Since the facts and the evidence in both the proceedings,
namely, the departmental proceedings and the criminal case
were the same without there being any iota of difference, the
distinction, which is usually drawn as between the
departmental proceedings and the criminal case on the basis of
approach and burden of proof, would not be applicable to the
instant case."
24. (emphasis laid by this Court) Further, in the case of G.M.
Tank v. State of Gujarat and Ors.(supra) this Court held as
.
under:-
26. We have answered the alternative legal contention
urged on behalf of the appellants by accepting the judgment
and order of the Sessions Judge, in which case they have been
acquitted honourably from the charges which are more or less
similar to the charges levelled against the appellants in the
Disciplinary proceedings by applying the decisions of this Court
referred to supra. Therefore, we have to set aside the orders of
dismissal passed against the appellants by accepting the
alternative legal plea as urged above having regard to the facts
and circumstances of the case."
9. Consequently, in view of the detailed discussion made
hereinabove as well as law taken into consideration, this Court is
unable to accept the reasoning assigned by the competent authority
while rejecting the representation having been filed by the petitioner
pursuant to his acquittal in criminal case. Since, Division Bench of this
Court after having discussed the entire evidence, proceeded to acquit
the accused that too without extending benefit of doubt, it cannot be
said that he was not honourably acquitted and as such, order dated
12.4.2016, passed by Director General of Police, Himachal Pradesh, is
quashed and set-aside and respondents are directed to reinstate the
petitioner in service forthwith. Consequential benefits, if any, be also
released in favour of the petitioner. Pending applications, if any, also
stand disposed of.
13th August, 2021 (Sandeep Sharma),
(shankar) Judge
