Madras High Court
P.Paramasivam vs The Deputy Inspector General Of ... on 1 March, 2023
W.A(MD)No.1257 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.03.2023
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR JUSTICE K.K.RAMAKRISHNAN
W.A(MD)No.1257 of 2018
and
C.M.P(MD)No.8786 of 2018
P.Paramasivam ... Appellant
.Vs.
The Deputy Inspector General of Police,
Tirunelveli Region,
Tirunelveli. ... Respondent
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent Act, to set
aside the order, dated 11.01.2018 in W.P(MD)No.5816 of 2010.
For appellant : Mr.G.Prabhu Rajadurai
For Respondent : Mr.D.Sasikumar
Additional Government Pleader
1/10
https://www.mhc.tn.gov.in/judis
W.A(MD)No.1257 of 2018
JUDGMENT
DR.G.JAYACHANDRAN,J.
AND
K.K.RAMAKRISHNAN,J.
The appellant herein while working as Head Constable at Aralvoimozhi
police station, a case was registered in Cr.No.391/2006 under Section 174 Cr.P.C.,
for man missing based on the complaint given by M.Asanammal, W/o.Mohamad
Masood. According to the complaint, the said Mohamed Masood was taken to
the police station for interrogation in connection with the decoity case on
28.11.2005, thereafter, he was found missing.
2. To be noted that the man missing case later altered into offences under
Sections 120(b) IPC r/w 343, 344, 348, 323, 355, 302, 201, 218 r/w 109 IPC.
Final report has been filed and committed to Court of Sessions in S.C.No.195 of
2011, on the file of the Additional Sessions Court, Tenkasi. The trial is still
pending. In the said case, the appellant Mr.P.Paramasivam is a listed witness.
Simultaneously it appears that an enquiry was conducted by the Revenue
Divisional Officer and based on the statement of one Maria Arul, the petitioner
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W.A(MD)No.1257 of 2018
was also implicated as a party to the torture and beaten to the crime. The
Revenue Divisional Officer has given a report implicating the appellant
Paramasivam also. In the said circumstances, a private complaint has been filed
before the learned Judicial Magistrate arraying the said Paramasivam as one of
the accused. The learned Judicial Magistrate has taken cognizance of the private
complaint filed under Section 200 Cr.P.C., and assigned in C.C.No.77 of 2012 on
the file of the learned Judicial Magistrate, Boothapandi.
3. The said Paramasivam has filed Crl.O.P(MD)No.6937 of 2018 for
transferring the private complaint pending on the file of the learned District
Munsif-cum-Judicial Magistrate, Bhoothapandi to the Additional District Judge,
Tenkasi to be tried jointly along with S.C.No.195 of 2011. This petition came to
be disposed of by this Court on 19.02.2020 with the following observations:-
“9.1. If the Sessions Court treats Paramasivan as an
accused, then C.C.No.77/2012 should necessarily stand
terminated. And, if the Sessions Court decides that he is not an
accused, still C.C.77/2012 shall have to be terminated.
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W.A(MD)No.1257 of 2018
9.2. But it may be appropriate to have C.C.77/2012 on the
file till the conclusion of trial of S.C.195/2011 to avoid any
possible technical difficulties that might arise. (For instance, if
C.C.77/2012 is quashed now, and if the Sessions Judge intends to
make use of any of the material in C.C.77/2012 for the purposes
indicated, then there could be an objection as to permissibility of
using the materials available in a case quashed by this Court.
After all in this country, road blocks to justice are more than the
ways available for achieving justice, and this has to be
anticipated). A case of prospective quashing of a criminal case
may appear novel, but given the circumstances, the present course
is inevitable.”
4. In the said background, the department has initiated the proceedings
against the appellant Paramasivam and issued a memo of charge under Rule 3(b)
of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955
alleging that his conduct been highly reprehensible liable to be punished for
following the Rule 22 of the Tamilnadu Subordinate Police Officers Conduct
Rules 1964. The said charge which is annexed to the charge memo reads as
below:-
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W.A(MD)No.1257 of 2018
“Charge: Highly reprehensible conduct in having beaten and
tortured one secured suspected accused namely Mohamed Masood,
S/o.Abdul Jabar, a resident of Chanthai Nadupettai, Kadayanallur,
Thenkasi Taluk in Tirunelveli District while he was detained at
Keeriparai P.S from 28.11.2005 to 30.11.2005 midnight under the
guise of interrogation in the decoity case in Aralvoimozhy P.S.
Cr.No.482/2005 u/s.395, 397 & 427 IPC registered on 28.11.2005 at
01.30 hours.”
5. Being aggrieved by the said charge memo, the appellant Paramasivan
has filed W.P(MD)No.5816 of 2010 for issuance of writ of certiorari and quash
the charge memo, dated 12.03.2009. The learned Single Judge has considered the
plea of the writ petitioner in the light of the service rules governing the matter as
well as the dictum laid down by the Hon'ble Supreme Court in the case of Union
of India and others Vs. Upendra Singh, reported in (1994) 3 SCC 357 where,
other judgments held that the writ petition challenging the charge memo normally
need not be allowed and only in rare and exceptional cases, if it is found to be
wholly without jurisdiction or for some other reason if it is wholly illegal. With
this observation, the learned Single Judge has directed the department to proceed
with the domestic enquiry by appointing an independent enquiry officer and
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W.A(MD)No.1257 of 2018
conclude the enquiry proceedings as early as possible without causing much
delay.
6. Being aggrieved by the above said order, intra court appeal is filed by
the writ petitioner on the presumption that his conduct is reprehensible and in
violation of Rule 22 of the Tamilnadu Subordinate Police Officers Conduct Rules
1964 is per se baseless and the learned Single Judge has failed to take note of the
fact that in the case investigated for missing of Mohamed Masood, the appellant
is a listed witness and in a private complaint, based on the statement of one Maria
Arul to the Revenue Divisional Officer, he has been implicated and the veracity
of the statement of the Maria Arul which is contrary to the statement recorded
under Section 164 Cr.P.C., before the learned Judicial Magistrate cannot be given
any weightage. More so, in a departmental proceedings, when the facts collected
during the course of investigation by two different agencies, are quite contrary
and yet to be tested by the Court in the trial.
7. The learned counsel appearing for the appellant also states that the
criminal trial is still pending. The Revenue Divisional Officer not yet examined.
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W.A(MD)No.1257 of 2018
Maria Arul whose statement is now been taken adverse and incriminating the
petitioner/appellant Paramasivan is no more. Therefore, in the absence of any
material evidence to presume reprehensible conduct, the charge as framed in the
departmental proceedings cannot sustain.
8. This Court find force in the submission made by the learned counsel
appearing for the appellant. No doubt, a criminal prosecution and the
departmental enquiry are two independent actions under different statute. One
cannot have an undue bearing on the other, unless and until they proceed on same
set of facts and there is no other adding material to distinguish each other.
9. As far as the facts of the present case is concerned, a person, who is
arrayed as witness, in the case investigated by the police and shown as an accused
in a private complaint and pending disposal of the both case before the District
Sessions Court, the department ought not to have venture to proceed against the
appellant by initiating the departmental proceedings since the ingredient to infer
or to prove the reprehensible conduct and violation of Rule 22 of the Tamilnadu
Subordinate Police Officers Conduct Rules 1964, as on date, is not available to
the departments to proceed with.
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W.A(MD)No.1257 of 2018
10. The admissible evidence of a person which is recorded under Section
164 Cr.P.C., by the learned Judicial Magistrate vis-a-vis a statement before the
Executive Officer in an enquiry proceedings, undoubtedly, the evidentiary value
of statement under Section 164 Cr.P.C., will prevail, more so, when the maker of
the statement has reached his maker it became a previous statement of a person,
who cannot be cross-examined. In such circumstances, till the disposal of the
case, where, as rightly pointed out by the brother Judge in Crl.O.P(MD)No.6937
of 2018, dated 19.02.2020, if the Sessions Court treats Paramasivan as an
accused, then C.C.No.77/2012 should necessarily stand terminated. And, if the
Sessions Court decides that he is not an accused, still C.C.No.77/2012 shall have
to be terminated.
11. In other words, unless and until the appellant Paramasivam is found
guilty in C.C.No.77/2012, there is no foundation for the department to proceed
against him under Rule 22 of the Tamilnadu Subordinate Police Officers Conduct
Rules 1964. As far as the present case is concerned, the general principles laid by
the Court cannot apply to this case due to the peculiar facts and circumstances
which is narrated above.
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W.A(MD)No.1257 of 2018
12. Hence, the writ appeal is allowed and the departmental proceeding
initiated against the appellant is quashed. However, this cannot stand in the way
of the department if the criminal Court finds Paramasivam is guilty in C.C.No.
77/2012. No costs. Consequently, connected miscellaneous petition is closed.
[G.J.,J.] [K.K.R.K.,J.]
01.03.2023
Index : Yes / No
Internet : Yes / No
am
To
The Deputy Inspector General of Police,
Tirunelveli Region,
Tirunelveli.
https://www.mhc.tn.gov.in/judis
W.A(MD)No.1257 of 2018
DR.G.JAYACHANDRAN, J.
and
K.K.RAMAKRISHNAN,J.
am
JUDGMENT MADE IN
W.A(MD)No.1257 of 2018
01.03.2023
https://www.mhc.tn.gov.in/judis
