Full Judgment Text
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CASE NO.:
Appeal (civil) 7488 of 2004
PETITIONER:
Commissioner of Police, New Delhi
RESPONDENT:
Narender Singh
DATE OF JUDGMENT: 05/04/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
S.B. Sinha, J :
The respondent was enrolled as a Constable in the Delhi Police on or
about 01.08.1994. A First Information Report was lodged against him on
30.10.1995 for commission of an offence under Section 308/34 of the
Indian Penal Code. He was arrested in connection therewith on 30.10.1995.
He remained in judicial custody for a period of 15 days. A departmental
proceeding was initiated against him in relation to the same incident.
He filed an original application before the Central Administrative
Tribunal (for short, ’the Tribunal’) for stay of the said proceeding till
disposal of the criminal case. By an order dated 23.07.1996, the said
original application was disposed of by the Tribunal upon issuing some
directions.
In the meantime, two revolvers and one pistol were found from the
Vijay Ghat Armoury. Two persons who were accused therein, inter alia,
made confessions stating that the respondent had committed theft of the said
two revolvers and pistol. The respondent on the basis of said confessional
statements was arrested on 05.09.1997. While in police custody he also
made a confession as regards his involvement in the said offence. He also
led the investigating team to the room of the Vijay Ghat Armoury and
pointed out the place wherefrom, he while working as a Sentry on the night
of 22/23.06.1997, committed theft of two revolvers and one pistol with some
of his colleagues. An identification memo. was prepared therefor wherein
one Inspector Bhalle Ram was a witness. In view of the fact that apart from
confession of the accused, there was no other material on records, the
respondent was discharged from the criminal case by an order dated
01.08.2001. He was in the meantime dismissed from service without
holding any enquiry in terms of the proviso appended to clause (2) of Article
311 of the Constitution of India, by an order dated 09.09.1997. A
departmental appeal preferred thereagainst by him was dismissed by an
order dated 09.02.1998. The validity of the said order was questioned by the
respondent by filing an application before the Tribunal. The Tribunal
allowed the said application by an order dated 08.08.2001 holding that the
Appellant failed to establish sufficient grounds for dismissing the respondent
from service without holding any disciplinary proceeding. A review petition
filed thereagainst was also dismissed by the Tribunal on 31.12.2001. A writ
petition filed by the Appellant was also dismissed by the High Court on
03.04.2002.
The Tribunal as also the High Court in their respective judgments
opined that the appellant could not have taken recourse to clause (b) of the
proviso appended to clause (2) of Article 311 of the Constitution of India.
Pursuant to or in furtherance of the said judgments and orders, a regular
disciplinary proceeding was instituted. On 01.05.2002, a charge-sheet was
drawn up against the Respondent which reads as under :
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"I, Insp. Ajit Singh charge you Const. Narender
Singh No.730/DA that on 04.9.97, Harvinder Singh S/o
Shri Surat Singh R/o Praladpur Gharoli, P.s. Kharkhoda,
Sonepat and Deepak S/o Shri reghbir Singh R/o Ghoge,
P.S. Narela, Delhi were arrested in case FIR No.371/97
u/s 186, 307, 353 IPC Sec. 27 Arms Act. P.S. Narela,
Delhi. Both the accused made confessions regarding the
supply of arms by Const. Narender Singh No.612/DAP,
730/DAP posted at CP Vijay Ghat on this you Const.
Narender Singh were arrested by special staff North
Distt. On 5.9.97 u/s 41.1 Cr. P.C. and were produced
before Court on 6.9.97. Two days PC remand was also
obtained by Crime Branch in case FIR No.717/97 u/s
409, 380, 457 IPC P.S. Kotwali in which two revolvers
and one pistol were stolen from Kot of CPR Vijayghat/1st
Bn.
On interrogation you Const. Narender Singh
730/DAP confessed that while you were at CPR Vijay
Ghat you had committed theft of two revolvers and pistol
from the kot on intervening night 22/23.6.97 along with
Raju, Jasvinder Jassu and Dhannu after stealing keys of
Kot from the pillow of Const. Narender Singh (Kot
munshi).
The above act on your part amounts to grave
misconduct and unbecoming of a police officer which
renders you liable to be dealt under the provisions of
Delhi Police (Punishment and Appeal) Rules, 1987."
On or about 16.05.2002, in the said departmental proceeding, the
respondent was found guilty and by an order dated 22.07.2002, he was
dismissed from service by the Disciplinary Authority, stating :
"I have gone through the record and facts of the
file, enquiry report submitted by the E.O., defence taken
by the delinquent Const. Minutely and meticulously. The
charges in a disciplinary action are based on
preponderance of evidence that does not exclude
confession made to the police and such confessions need
not be necessarily supported by recovery of material fact
as enumerated in the Indian Evidence Act. In agreement
of conclusion by the E.O. I find that charges are proved
against the delinquent officer, if is allowed to continue in
the department like Police, he not only will damage the
department by his criminal activities he will also tarnish
image of the police department. Therefore, I Manoj
Kumar Lal, Deputy Commissioner of Police Ist Bn. DAP
on being satisfied that charges on the basis of proof
available on the record are proved against the def. Const.
and are of such nature that calls for major departmental
punishment, I award Const. Narender Singh, NO.
730/DAP punishment of dismissal from the service with
immediate effect. His suspension period from
30.10.2001 to date of issue of this order shall be treated
as not spent on duty for all intents and purposes."
An appeal filed thereagainst by the respondent was dismissed by the
appellate authority by an order dated 29.05.2003.
An original application was filed by the respondent before the
Tribunal. The Tribunal in terms of an order dated 24.02.2004 set aside the
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said order of dismissal, holding :
"14. Inspector Bhalle Ram had stated that he was
posted as Inspector CPR/Vijay Ghat. The applicant had
made a Nisandehi in Kot and disclosed that on the
intervening night of 22/23.6.1997 had stolen the fire
arms.
15. Inspector Tej Pal Singh, PW-12 had further
appeared and testified that he had investigated the matter.
During the investigation, the applicant had taken him to
Vijay Ghat where Nisandehi was prepared on his
instance which is exhibit PW-8/A. It is on the strength of
the Nisandehi that the respondents have concluded that
this is an admission made by the applicant about the said
theft.
16. We deem it necessary to mention that even
if such a confession is made during the course of
investigation. It may not be relevant before a Court of
law but there is no such embargo to read the same to
departmental enquiry. Since the said statement made did
not relate to any recovery, the learned Additional
Sessions Judge has discharged the applicant."
The Tribunal allowed the original application. The writ petition filed
thereagainst was dismissed by the High Court in limine.
Mr. Vikas Singh, the learned Additional Solicitor General appearing
on behalf of the appellant, would submit that the Tribunal and consequently
the High Court committed a manifest error in arriving at the aforementioned
findings inasmuch the embargo contained in Section 25 of the Evidence Act
and Section 162 of the Code of Criminal Procedure are not applicable in the
departmental proceedings. It was submitted that the Tribunal further
committed an error in opining that the confession of the respondent herein
being Ex.8/A had not been proved.
Our attention was furthermore drawn to the order of the disciplinary
authority as also the appellate authority with a view to show that the
confession of the respondent had received due application of mind.
Mr. M.N. Krishnamani, the learned Senior Counsel appearing on
behalf of the respondent, on the other hand, would submit that even in a
disciplinary proceeding the provisions contained in Section 26 of the
Evidence Act would be attracted as such confessions in police custody are
ordinarily extracted by force. Even if the provisions of Section 26 of the
Evidence Act, the learned counsel would submit, per se are not applicable,
the principles analogous thereto would be applicable even in departmental
proceedings. It was furthermore submitted that in view of the fact that the
respondent was discharged from the criminal case, having regard to the
provisions contained in Rule 12 of the Delhi Police (Punishment and
Appeal) Rules, 1987 (hereinafter referred to as ’the 1987 Rules’) , the order
of punishment was not sustainable.
It is not in dispute that the standard of proof required in recording a
finding of conviction in a criminal case and in a departmental proceeding are
distinct and different. Whereas in a criminal case, it is essential to prove a
charge beyond all reasonable doubt, in a departmental proceeding
preponderance of probability would serve the purpose. [See Kamaladevi
Agarwal v. State of W.B. and Others, (2002) 1 SCC 555]
It is now well-settled by reason of a catena of decisions of this Court
that if an employee has been acquitted of a criminal charge, the same by
itself would not be a ground not to initiate a departmental proceeding against
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him or to drop the same in the event an order of acquittal is passed.
In Manager, Reserve Bank of India, Bangalore v. S. Mani and Others
[(2005) 5 SCC 100], this Court held :
"It is trite that a judgment of acquittal passed in
favour of the employees by giving benefit of doubt per se
would not be binding upon the employer\005"
[See Bank of India and Another v. Degala Suryanarayana (1999) 5 SCC 762;
Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd.,
Haldia and Others (2005) 7 SCC 764]
The Tribunal had proceeded to record its findings only on two counts,
namely, (i) confession made by the respondent was not admissible in
evidence; and (ii) the said confession has not been proved.
The confession admittedly was made by the respondent while in
police custody. In the identification memo, it was recorded :
"Farad identification Memo place of occurrence in
the presence of witnesses accused Narender Singh alias
Nanda S/o Joginder Singh R/o D-8, Type-IInd New
Police Line, Kingsway Camp, New Delhi under police
custody by himself voluntarily by walking ahead in the
vicinity of CDR/Vijay Ghat Armoury 1st by DAP entered
in the place covered by boundary walls surrounding
through Iron gate entered in the place of Armoury Room
shown the place and told that on 22/23.6.97 (identified)
at about 2 am to 05 am he was on sentry duty and during
his duty alongwith other colleagues named Jaswinder,
Jaswant alias Jassu, Dhanraj @ Dhannu and Raja Singh
@ Raju committed theft of two revolvers and one pistol.
This identification memo was prepared then and there."
A copy of the original confession was placed before us wherefrom it
appears that a date was put below the signature of the officer who prepared
the identification memo containing the confession of the Respondent. It is
not in dispute that Inspector Bhalle Ram was one of the witnesses to the said
document. He examined himself before the Enquiry Officer, wherein he
categorically stated :
"He stated that in Dec. 1997, he was posted as
Inspr. CPR/Vijay Ghat. He cannot recollect the date at
this time because the date on the Nisandehi is not visible
but Inspr. Tej Pal Singh along with his staff of AATS.
Crime Branch along with accused Narender who is
present today here came at Vijay Ghat. Accused had
made a Nisandehi inKot and disclosed that on the night
between 22/23.6.97 at about 2 to 5 am he along with
other accused had stolen 2 revolvers and 1 pistol. The
memo was prepared and signed by him as well as others
including Const. Narender. The Memo is exhibit PW-
8/A."
In the cross-examination, he was asked only four questions which
together with answers rendered thereto, as recorded by the Enquiry Officer
are reproduced hereinbelow :
"Q. No. 1 : Has the exhibit PW-8A any date written by
Inspr. Tej Pal Singh ?
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Ans. The signature of Inspr. Tej Pal Singh is
there.
Q. No.2 Is there any date on his exhibit below the
signature of Narender Singh ?
Ans. No.
Q. No.3 Has Inspr. Tej Pal Singh recovered any
weapon from Const. Narender on that day ?
Ans. The weapon was not recovered in his
presence but IO told that the weapons have
already been recovered.
Q. No.4 Do you know that court decided the case on
merits ?
Ans. Yes."
The fact that the respondent as an accused in the aforementioned case
made a confession and had pointed out the place wherefrom he allegedly had
stolen two revolvers and one pistol, has, thus, not been disputed.
It may be noticed that no question was, furthermore, put to the said
witness to show that the question put to the said witness was as regard the
purported missing of the date below the signature of the Inspector Tej Pal
Singh but it was not suggested that the said document is a forged or
fabricated one. The order of discharge was passed by the Chief Judicial
Magistrate after four years from the date of institution of the case. The
respondent had not retracted from the said confession. He did not make any
complaint to the higher authorities that the same was extracted from him by
force or undue influence.
The correctness or otherwise of the statement contained in Ex. PW-
8/A has also not been disputed. The Tribunal, therefore, was not correct in
its view that the confession made by the respondent herein had not been
proved in accordance with law. So far as the evidentiary value of the said
confession is concerned, we may notice that Section 25 of the Evidence Act
and Section 162 of the Code of Criminal Procedure provides for an embargo
as regard admissibility of a confession in a criminal trial. The said
provisions have per se no application in a departmental proceeding. Section
25 of the Indian Evidence Act and Section 162 (c) of the Code of Criminal
read thus :
"25. Confession to police officer not to be proved.- No
confession made to a police officer, shall be proved as
against a person accused of any offence."
162. Statements to police not to be signed : Use of
statements in evidence.-(1) No statement made by any
person to a police officer in the course of an investigation
under this Chapter, shall, if reduced to writing, be signed
by the person making it; nor shall any such statement or
any record thereof, whether in a police diary or
otherwise, or any part of such statement or record, be
used for any purpose, save as hereinafter provided, at any
inquiry or trial in respect of any offence under
investigation at the time when such statement was
made\005"
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"Offence" has been defined in Section 2(n) of the Code to mean :
"(n). "offence" means any act or omission made
punishable by any law for the time being in force and
includes any act in respect of which a complaint may be
made under Section 20 of the Cattle-trespass Act, 1871
(1 of 1871)."
The said definition would apply, thus, both to Section 25 of the
Evidence Act and Section 162 of the Code of Criminal Procedure.
The Tribunal as also the High Court were, therefore, not correct in
arriving at the finding that the said confession was not admissible even in a
departmental proceeding.
In Kuldip Singh v. State of Punjab and Others [(1996) 10 SCC 659],
this Court held :
"10. Now coming to the main contention of the
learned counsel for the appellant, it is true that a
confession or admission of guilt made by a person
accused of an offence before, or while in the custody of,
a police officer is not admissible in a court of law
according to Sections 25 and 26 of the Evidence Act,
1872 but it is equally well settled that these rules of
evidence do not apply to departmental enquiries\005"
It is now well-settled that the provisions of the Evidence Act are not
applicable in a departmental proceeding. [See Depot Manager, A.P. State
Road Transport Corporation v. Mohd. Yousuf Miya and Others (1997) 2
SCC 699; Lalit Popli v. Canara Bank and Others \026 (2003) 3 SCC 583; and
N. Rajarathinam v. State of T.N. and Another \026 (1996) 10 SCC 371].
In State of Andhra Pradesh and Others v. Chitra Venkata Rao [(1975)
2 SCC 557], this Court held :
"The High Court was not correct in holding that the
domestic enquiry before the Tribunal was the same as
prosecution in a criminal case."
It was further held :
"The scope of Article 226 in dealing with
departmental inquiries has come up before this Court.
Two propositions were laid down by this Court in State
of A.P. v. S. Sree Rama Rao. First, there is no warrant for
the view that in considering whether a public officer is
guilty of misconduct charged against him, the rule
followed in criminal trials that an offence is not
established unless proved by evidence beyond reasonable
doubt to the satisfaction of the Court must be applied. If
that rule be not applied by a domestic tribunal of inquiry
the High Court in a petition under Article 226 of the
Constitution is not competent to declare the order of the
authorities holding a departmental enquiry invalid. The
High Court is not a court of appeal under Article 226
over the decision of the authorities holding a
departmental enquiry against a public servant. The Court
is concerned to determine whether the enquiry is held by
an authority competent in that behalf and according to the
procedure prescribed in that behalf, and whether the rules
of natural justice are not violated. Second, where there is
some evidence which the authority entrusted with the
duty to hold the enquiry has accepted and which evidence
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may reasonably support the conclusion that the
delinquent officer is guilty of the charge, it is not the
function of the High Court to review the evidence and to
arrive at an independent finding on the evidence. The
High Court may interfere where the departmental
authorities have held the proceedings against the
delinquent in a manner inconsistent with the rules of
natural justice or in violation of the statutory rules
prescribing the mode of enquiry or where the authorities
have disabled themselves from reaching a fair decision
by some considerations extraneous to the evidence and
the merits of the case or by allowing themselves to be
influenced by irrelevant considerations or where the
conclusion on the very face of it is so wholly arbitrary
and capricious that no reasonable person could ever have
arrived at that conclusion. The departmental authorities
are, if the enquiry is otherwise properly held, the sole
judges of facts and if there is some legal evidence on
which their findings can be based, the adequacy or
reliability of that evidence is not a matter which can be
permitted to be canvassed before the High Court in a
proceeding for a writ under Article 226."
[See also State of Haryana and Another v. Rattan Singh (1977) 2 SCC 491]
The submission of Mr. Krishnamani that there lies a distinction
between the provisions of Section 25 and Section 26 of the Evidence Act, in
this behalf, may although be correct but the same is not of much significance
for the purpose of this case.
Section 26 also speaks about confession by an accused while in
custody of police. Sections 25 and 26 of the Evidence Act although seek to
achieve the same purpose but they operate in somewhat two different fields.
Section 25 raises an embargo as regard proof of confession before a police
officer. The same need not be in police custody; whereas Section 26 raises a
bar as regard admissibility of such confession, if made by an accused in the
custody of a police officer although such a confession might have been made
before a person who is not a police officer.
The policy underlying behind Sections 25 and 26 is to make it a
substantive rule of law that confessions whenever and wherever made to the
police, or while in the custody of the police to any person whomsoever
unless made in the immediate presence of a magistrate, shall be presumed to
have been obtained under the circumstances mentioned in Section 24 and,
therefore, inadmissible, except so far as is provided by Section 27 of the Act.
A confession would mean incriminating statement made to the police
suggesting inference of the commission of the crime and it, therefore, is
confined to the evidences to be adduced in a court of law. If the provisions
of the Evidence Act are not attracted in a departmental proceeding, a fortiori
Sections 25 and 26 shall not apply.
Reliance placed by Mr. Krishnamani to Rule 12 of the 1987 Rules is
misplaced. The said Rule applies in a case where a person was tried and
discharged. The respondent herein was not tried and acquitted by a criminal
court and, thus the said provision would not apply.
For the reasons aforementioned, the impugned judgments of the
Tribunal and the High Court cannot be sustained, which are set aside
accordingly. The appeal is, thus, allowed. No costs.