Punjab-Haryana High Court
Brish Bhan vs State Of Haryana And Others on 1 September, 2023
Neutral Citation No:=2023:PHHC:115452
RSA-129 of 2020 -1- 2023:PHHC:115452
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
137 RSA-129 of 2020
Date of Decision:01.09.2023
ASI Brish Bhan
....Appellant
Versus
State of Haryana and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Naveen Daryal, Advocate, for the appellant.
Ms. Vibha Tewari, AAG, Haryana
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ANIL KSHETARPAL, J. (Oral)
1. The correctness of concurrent finding of fact arrived at by the Courts
below is challenged in this second appeal by the plaintiff (appellant herein). In
order to comprehend the controversy involved in this litigation, the relevant facts,
are required to be noticed. The appellant was a police official. He without
complying with the provisions of sending a notice under Section 160 of the Code
of Criminal Procedure called three accused in Police Station, Butana. Thereafter,
he took all the three suspects under the pretext to take them to CIA, Karnal for
interrogation. However, he never took the accused to CIA staff and badly thrashed
Tikka due to which Tikka became unconscious. Thereafter, the appellant got Tikka
admitted in Ajmani Hospital and left the place and subsequently Tikka was
referred to the hospital run by Dr. Rajiv Gupta where he remained admitted for
quite some time. On receipt of the complaint, Superintendent of Police started
disciplinary proceedings. Charge sheet was served on the appellant and thereafter
Enquiry Officer was appointed who reported that the charges against the appellant
are proved. Superintendent of Police vide order dated 30.10.2008 awarded
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punishment of five annual increments with permanent effect. However, in appeal
the punishment was reduced to two annual increments with cumulative effect. The
civil suit filed before the trial Court to challenge the order of punishment has been
dismissed. The first appellate Court on re-appreciation of evidence has upheld the
same.
2. Learned counsel representing the appellant contend that before
starting disciplinary proceedings, the concurrence of the District Magistrate as
required under Rule 16.38 of Punjab Police Rules, 1934 (as applicable to the State
of Haryana) was never obtained and therefore the initiation of disciplinary
proceedings is illegal.
3. On the other hand, learned State counsel while drawing the attention
of the Court to the judgment passed in Balbir Singh versus State of Haryana and
others 2013 (1) RSJ 49 to contend that that Superintendent of Police was not
required to seek concurrence of the District Magistrate particularly when the
appellant was not acting in discharge of his official duty while badly thrashing
Tikka. She submits that a co-ordinate Bench has explained the applicability of
Rule 16.38 of the Punjab Police Rules, 1934 in the following manner:-
"8. I have considered the submissions made by the counsel for the
parties and have gone through the records of the case. Rule 16.38 of
the 1934 Rules reads as follows:-
"Rule 16.38 Criminal offences by police officers and strictures
by courts-procedure regarding:
(1) Where a preliminary enquiry or investigation into a
complaint alleging the commission by an enrolled police officer
of a criminal offence in connection with his official relation with
the public, establishes a prima facie case, a judicial prosecution
shall normally follow. Where, however, the Superintendent of
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Police proposes to proceed in the case departmently, the
concurrence of the District Magistrate shall be obtained."
9. A perusal of the above Rule would show that where the
Superintendent of Police on the basis of the preliminary enquiry or
investigation conducted into a complaint prima-facie establishes
allegations of commission of a criminal offence in connection with an
enrolled police official in relations with the public and if the
Superintendent of Police instead of initiating judicial prosecution,
which should normally follow, takes a decision and proposes to
proceed in the case departmentally, he has to seek the concurrence of
the District Magistrate prior to initiating the departmental enquiry.
It, therefore, indicates that in case the Superintendent of Police
decides not to proceed with the judicial prosecution and instead
proceed against the enrolled police officer departmentally, prima
facie commission of a criminal offence in connection with the official
relations with the public should be established. If this is not there, the
Superintendent of Police, on its own, can proceed against the
enrolled police officer and concurrence of the District Magistrate is
not required. Therefore, the applicability of Rule 16.38 of the 1934
Rules would depend from case to case and the facts involved therein,
which has to be primarily determined by the Superintendent of Police.
10. The facts in the present case, which have been depicted above,
would, therefore, determine whether Rule 16.38 would be applicable
or not. A perusal of the same would not support the claim of the
petitioner that the allegations made against the petitioner prima-facie
establish commission of any criminal offence by the petitioner in
connection with his official relations with the public. The primary
allegations against the petitioner are that he has used the official
motorcycle by following Indica car of Dharminder on the asking of
Joginder only for another person and thereafter, misbehaved with the
women and driver seated in the car by misusing his official position
and thereafter, to hide his mistake, he made false entry in the log
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book and further in connivance with the owner of Balaji Automobiles,
Gohana Road, Panipat, from where he got the official motorcycle i.e.
HR-06-K/8098 serviced, obtained a false repair bill of the motorcycle
and thus, committed a misconduct, which act has tarnished the image
of the police in the eyes of the general public.
11. A perusal of the above leads to a conclusion that this action of
the petitioner was not in his official capacity or in connection with his
official relations with the public. If that be so, Rule 16.38 (1) would
not be applicable to the facts of the present case and, therefore, the
concurrence of the District Magistrate was not mandated to be
obtained by the Superintendent of Police to proceed against the
petitioner departmentally. The judgments relied upon by the counsel
for the petitioner would thus, not apply to the facts of the present
case."
4. This judgment was also upheld by a Division Bench in Letters Patent
Appeal.
5. This Court has considered the submission.
6. It was not the part of the official duty of the appellant to badly thrash
Tikka by using third degree. It has also come on record that Tikka accused was
never taken to CIA Staff which was required as per the procedure laid down. In
such circumstances, Rule 16.38 is not applicable. Moreover, this issue has never
been pressed before the Courts below.
7. Keeping in view the aforesaid facts, finding no merit, the present
Regular Second Appeal is dismissed.
(ANIL KSHETARPAL)
JUDGE
September 01, 2023
dinesh/
Whether speaking : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:115452
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