Madras High Court
N.Rajkumar vs The Superintendent Of Police on 1 August, 2023
WP.No.14926/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 01.08.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.14926/2017
N.Rajkumar ... Petitioner
Versus
1.The Superintendent of Police
District Police Office,
Kanchipuram District @
Kanchipuram.
2.The Deputy Inspector General of Police
Kanchipuram Range, Kanchipuram.
3.The Director General of Police
Tamil Nadu, Chennai 600004. ... Respondents
Prayer : - Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorarified mandamus calling for the
records pertaining to the orders of the 1 st respondent herein in his
H1/PR.05/2006 dated 13.11.2006 and C.No.J1/PR.05/06, D.O.2001/06
dated 18.12.2006 imposing a punishment of reduction in time scale of pay
by one stage for two years and postponement of future increments and the
consequential order passed by the 2nd respondent herein in his
1
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Rc.No.B2/AP.03/2007 dated 31.01.2007 rejecting the petitioner's appeal
petition and the consequential order of the 3 rd respondent herein passed in
his RC.No.108386/AP.1[2]/2013 dated 11.11.2016 rejecting the petitioner's
mercy petition and quash the same and consequently direct the respondents
herein to treat the period of suspension of 163 days as duty for all purposes
with all consequential service and monetary benefits.
For Petitioner : Mr.Ravi Shanmugam
Senior Counsel
For Respondents : Mr. V.Nanmaran, AGP
ORDER
(1) The writ petition has been filed in the nature of a certiorarified
mandamus seeking records of the 1st respondent dated 13.11.2006
and also 18.12.2006 by which, the punishment of reduction in time
scale of pay by one stage for a period of two years and postponement
of future increments had been passed and which was confirmed by the
2nd respondent by an order dated 31.01.2007 and also the order of the
3rd respondent dated 11.11.2016 whereby the Mercy Petition given by
the petitioner herein had been rejected by the 3rd respondent and to
quash all the above orders. The petitioner also seeks direction to the
respondents herein to treat the period of suspension of 163 days as
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WP.No.14926/2017
duty for all purposes with all consequential service and monetary
benefits.
(2) The petitioner had joined the Police services as Grade – II Police
Constable on 12.12.1988. He was promoted as Grade-I Police
Constable on 27.09.1999. He was further promoted as Head
Constable on 12.12.2003 and as Special Sub Inspector of Police on
01.10.2014. The petitioner had a very interesting life. He came to be
involved in an FIR which was registered against him in Crime
No.42/2005 for the offences under Sections 498-A, 306 and 511 of
IPC and also read with Section 4 of the Dowry Prohibition Act. This
was registered on 11.09.2005 by the Deputy Superintendent of Police
at Arakonam Sub Division/Arakonam All Women Police Station. The
petitioner was arrayed as the 2nd accused. His wife was arrayed as the
3rd accused. The defacto complainant was the wife of the 1 st
accused/brother of the 3rd accused. During the pendency of the
criminal case, the 1st accused died and the charges abated. Evidence
that was recorded during the course of trial, had to be examined only
with respect to the allegations or incriminating evidence adduced as
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against the petitioner/2nd accused and his wife/3rd accused.
Consequent to the fact that the FIR had been registered against the
petitioner, departmental proceedings were parallely initiated against
him and the charges framed against the petitioner herein were held to
be established. That particular aspect was quite straight forward since
at that particular time, the FIR had been registered which was a fact
and the Final Report had been taken cognizance and committed to the
Court of Sessions for further trial. Consequent to the establishment of
the charges, respondents 1 and 2 passed orders which are impugned
whereby, the aforementioned punishment was imposed on the
petitioner herein.
(3) The petitioner then concentrated on the further progress of the
criminal case. That criminal case, after committal, was taken on file
by the learned II Additional District and Sessions Judge, Vellore at
Ranipet in SC.No.176/2010. The entire arguments before this Court
revolved round the findings given by the learned II Additional
Sessions Judge in that particular case. It is contended by the learned
Senior counsel appearing for the petitioner that there was no evidence
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at all adduced pointing out to the role of the petitioner herein in any
one of the charges. The charges had been framed by the Court were
charges under Sections 498-A, 304[B] and 306 of IPC and also under
Section 4 of the Dowry Prohibition Act.
(4) The learned Senior counsel appearing on behalf of the petitioner took
the Court through the findings of the learned Sessions Judge. The
relevant paragraphs No.10 and 11 are extracted below:-
''10.PW1 and the victim have spoken about the
cruelty suffered by the victim in the hands of her
husband Ravi and her sister in law namely A3
Nirmala. This evidence cannot be ignored. Pws.1 and
2 are silent about the nature of cruelty committed by
A2 and A3. However, the confession statement given
by the deceased before the Judicial Magistrate shows
that the victim's husband Ravi and his sister A3
Nirmala have abused the deceased and harassed her.
Ex.P9 is the complaint given by the deceased Lalitha
explaining the cruelty suffered in the hands of A1 Ravi
and A3 Nirmala. Ex.P3 is the dying declaration of the
victim to corroborate cruelty in the hands of A1 Ravi
and A3 Nirmala. Ex.P5 is a supporting document to
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prove the cruelty. P.Ws.1 and 2 have also spoken
about the demand of Rs.5,000/-. For the above
reasons, this Court goes to conclude that prosecution
side evidence and documents go to show that A3
Nirmala has subjected the deceased Latha to cruelty.
Defence side argument about the delay in registering
FIR to make up a prosecution case is not acceptable.
The harassment and the cruelty are continuous in
nature and therefore, the delay will not prejudice the
accused. Statement before doctor about the stove
burst is not an admissible evidence and cannot be
relied on. Therefore, this Court gives the finding that
the prosecution is able to prove the offence u/s.498-A
IPC against A3 beyond all the reasonable doubts and
therefore, the accused A3 Nirmala is found guilty for
the offence u/s.498-A IPC. Prosecution has failed to
prove the offences u/s.304-B, 306 IPC and u/s.4 of
Dowry Prohibition Act against A3 Nirmala beyond all
the reasonable doubts. Similarly, prosecution has
failed to prove the offences u/s.498-A, 304-B and 3-6
IPC and u/s.4 of the Dowry Prohibition Act against A2
beyond all the reasonable doubts.
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11.Prosecution is able to prove the offence
u/s.498-A IPC against A3 Nirmala beyond all the
reasonable doubts and A3 is found guilty for the
charges u/s.498-A IPC and before punishing the
accused, the accused was aksed about the sentence
and she has replied that she may be pardoned and she
is ailing from heart disease. Keeping the reply in
mind and hearing the learned advocate for the
defence, this Court considers leniently and having
found A3 guilty for the charge u/s.498-A IPC, this
Court passes the following punishment.
In the result, charges against A1 stands abate
and A2 is found not guilty u/s.498-A, 304-B and 306
IPC and u/s.4 of Dowry Prohibition Act and acquitted
u/s.235[1] of Cr.P.C. A3 is found not guilty u/s. 304-
B and 306 IPC and u/s.4 of Dowry Prohibition Act and
acquitted u/s.235[1] of Cr.P.C., for the said charges.
A3 is found guilty u/s.498-A IPC and convicted and
sentenced to undergo R.I.for one month and to pay a
fine of Rs.5000/- in default, to undergo R.I. for further
period of one week for the offence u/s.498-A IPC. Set
off allowed for the period from 13.09.2005 to
19.10.2005 u/s.428 of Cr.P.C.
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M.O.1 to 3 are ordered to be destroyed on
expiry of the appeal time.''
(5) It is contended on behalf of the petitioner that this was a case of no
evidence at all and therefore, the prosecution could never establish the
charges against the petitioner herein. It was not a case of evidence
being let in which was found unsatisfactory and therefore, on analysis
of such evidence, benefit of doubt was given to the petitioner and
therefore he was acquitted. It is contended that since the petitioner
had been acquitted as there was no evidence, taking advantage of Rule
15A[1][ii] of the Tamil Nadu Police Subordinate Services [Discipline
and Appeal] Rules, 1955, he had forwarded a Mercy Petition to the 3 rd
respondent/Director General of Police, State of Tamil Nadu.
(6) The order passed by the 3rd respondent is also impugned in the writ
petition. The 3rd respondent came to reject the Mercy Petition holding
as follows:-
''6.I have gone through his petition along with
PR file and other connected records carefully. The
petitioner was dealt with on a charge for having
involved in a criminal case in Arakonam AWPS,
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Cr.No.42/2005, u/s.498-A, 305, 511 IPC r/w. 4 of DP
Act on 11.09.2005. On a proved minute he was
awarded the punishment of reduction in pay by one
stage for two years which shall operate to postpone
his future increments by the Discipline Authority and
it was confirmed on appeal by the Appellate Authority.
He has chosen to prefer the petition after the lapse of
7 years and in his petition among other things, he has
contended that the criminal case against him ended in
acquittal. But, it is seen that a criminal case against
him ended in acquittal only on the ground that the
prosecution have failed to prove the charges against
him beyond reasonable doubt. However, in the
departmental proceedings the Enquiry Officer have
held the charges proved through depositions of Pws.1
to 4 and Exhibits P1 to 8. His contention to drop
action in the PR is not acceptable, as there is no need
to drop action in the Departmental Proceedings even
when the criminal case ended in acquittal. Because, a
criminal court requires high standard of proof for
conviction while such proof is not necessary for
finding a person guilty in a Disciplinary Enquiry. In a
Disciplinary Proceedings, it is preponderance of
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probabilities which matters to fix the delinquent's
guilt. I therefore, find no merit in his claim. I do not
want to interfere with the punishment and reject his
petition.''
(7) There are two reasons which had been taken into consideration by the
3rd respondent. The first one is the issue of delay and the other is the
nature of acquittal and that the acquittal would not override the
findings in the disciplinary proceedings. With respect to the delay,
though there is a statement made that the petitioner had given the
application after a lapse of seven years, it would only understandable
that such time would be taken since the Mercy Petition had been
given after the judgment was delivered by the Sessions Court
acquitting the petitioner of all charges. The second aspect is on the
issue of nature of proof as against the petitioner herein and it was the
contention of the 3rd respondent that the petitioner had been acquitted
only because the prosecution had failed to prove the charges. The
prosecution can prove the charge only on the basis of the evidence,
both oral and documentary adduced during the course of trial.
(8) In the aforementioned extract of the learned Sessions Judge's
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judgment, it is seen that the witnesses have not spoken about the
involvement of the petitioner in the charges which had been framed
against him. It was not a issue of witnesses turning hostile or though
there was evidence and such evidence did not cross the stages of
admissibility or of proof. There was no evidence at all. Since there
was no evidence, there was no possibility of the learned Sessions
Judge convicting the petitioner of any of the offences. If some
evidence had been let in and it was found to be not satisfactory or not
proved or not admissible, then a benefit of doubt could have been
given to the accused. If that be the case, to a little extent the 3 rd
respondent could have been justified in holding that the petitioner
could still be proceeded against as was done in the departmental
proceedings and the punishment imposed to be sustainable. But here
is a case where there was no evidence at all.
(9) On the side of the respondents, it had been very vehemently argued
that the petitioner had given the representation nearly after seven
years. It is contended that the respondents 1 and 2 had earlier
considered the findings in the disciplinary proceedings and had
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imposed a punishment as was reasonable in those cases. Judicial
review will never lie against the nature of punishment imposed but
would lie against the procedure adopted during departmental
proceedings.
(10) No ground has been raised by the petitioner that there was denial of
opportunity during the disciplinary proceedings. He had suffered a
punishment and he had abided by it. Thereafter, he had taken the
issue regarding punishment imposed only after the judgment of the
Sessions Court. Therefore, though it has been contended very
strongly on behalf of the respondents that the petitioner had
approached the 3rd respondent after a considerable delay, as is seen
from the dates, it is only understandable that the petitioner had
approached the 3rd respondent after the date of acquittal. One aspect
which could be held against the petitioner was that the judgment of
the Trial Court was on 09.04.2013 whereas he had given the Mercy
Petition only on 08.08.2014, about a year and four months later. But,
taking into consideration the fact that the petitioner had been
acquitted of all charges since there was no evidence adduced, that
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could not be considered a significant factor.
(11) It is also contended very vehemently on behalf of the respondents that
the disciplinary proceedings are independent of the conclusion
reached in the criminal trial. That statement is correct. But the Mercy
Petition had been rejected not on the ground that the punishment
imposed was proper and just, but only because the prosecution had
failed to prove the charges during criminal trial. There was no
balancing done by the 3rd respondent, vis-a-viz., the punishment
imposed during disciplinary proceedings and the findings of the
learned Sessions Judge. What went in the mind of the 3 rd respondent
was that the prosecution had failed to prove the charges. As
repeatedly pointed out, though the prosecution had marshalled of
several witnesses, unfortunately, none of them had spoken against the
petitioner or on his involvement necessitating the charges should be
examined with more scrutiny by the Sessions Court. Therefore, that
particular stand will also have to be taken to the advantage of the
petitioner alone. In view of all these reasons, though the matter has
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been quite strongly contested on behalf of the respondents, I must
hold that the judgment of the Trial Court in SC.No.176/2010 would
prevail and some credence should be given to the findings of the
learned Sessions Judge.
(12) In view of that particular fact, I hold that the 3rd respondent had not
examined the issue properly and therefore, that particular finding of
the 3rd respondent is set aside. The matter is now remitted back to th
2nd respondent to once again re-examine the issue in the light of the
judgment of the Sessions Court and examine whether still the
punishment imposed is sustainable or requires interference. The 2nd
respondent may also examine the entire aspect in the light of the
observations of this Court with respect to the said judgment of the
Sessions Court and pass necessary orders. The orders can be passed
within a period of sixteen weeks from the date of receipt of a copy of
this order. The petitioner may give a fresh representation to the 2 nd
respondent enclosing a copy of this order.
(13) The writ petition stands partly allowed. No costs.
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01.08.2023
AP
Internet : Yes
To
1.The Superintendent of Police
District Police Office,
Kanchipuram District @
Kanchipuram.
2.The Deputy Inspector General of Police
Kanchipuram Range, Kanchipuram.
3.The Director General of Police
Tamil Nadu, Chennai 600004.
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WP.No.14926/2017
C.V.KARTHIKEYAN, J.,
AP
WP.No.14926/2017
01.08.2023
https://www.mhc.tn.gov.in/judis
