Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3094 of 2012 ====================================================== 1. Suman Shekhar Rajhans S/O Mahadeo Rajhans R/O Village- Dharamray, P.S.- Tarapur, Distt.- Munger .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Director General Of Police, Old Secretariat, Patna 3. The Inspector General Of Police, Muzaffarpur 4. The Deputy Inspector General Of Police, Saran Region, Chapra 5. Superintendent Of Police, Saran .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Y. B. Giri, Sr. Advocate with Mr. Rajive Ranjan Singh For the Respondent/s : Mr. Nivedita Nirvikar GP 3 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER 2 20-03-2012 Heard learned Counsel for the petitioner and the State. The petitioner, an Assistant Sub Inspector of Police, is aggrieved by the order dated 11.3.2002 passed by the Superintendent of Police, Siwan, dismissing him from service, as affirmed on 14.5.205 in appeal by the Deputy Inspector General of Police and on 22.9.2011 in Memorial by the Director General of Police. Two memo of charges were framed against the petitioner on 11.3.2002. The first alleged that while posted at Darauli Police Station, he killed his wife on 4.1.2000 and the body was made traceless leading to institution of Darauli PS Case No. 52 of 2000 on 14.11.2000 under [STATUTE] . It was an act unbecoming of a person in the service affecting the image of the entire police force. The second charge was that he proceeded on 12 days Casual Leave on 5.11.2000 but remained absent without information till 6.2.2001. In pursuance of the criminal prosecution the petitioner was taken into custody on 7.2.2001 Patna High Court CWJC No.3094 of 2012 (2) dt.20-03-2012 2 and was enlarged on bail on 9.3.2006. The charges in the departmental proceedings were framed on 11.3.2002. He submitted a reply from custody on 18.3.2002. The criminal trial led to his conviction by the Sessions Court but in appeal he has been given benefit of doubt by this Court. Learned Counsel for the petitioner submits that the departmental proceedings were held while the petitioner was in custody. The prosecution witnesses were examined exparte with no opportunity for cross examination. The petitioner has been granted acquittal by the appellate court. He had taken a defence in his first reply of illness. In his Memorial he had taken a defence of suffering from Jaundice and that he had sent information by registered post on 15.11.2000 which may be confirmed from the receipt register of the Superintendent of Police, Siwan. The prejudice caused by denial of proper opportunity for defence by cross examination, examining witnesses, producing and leading evidence in support of the illness, has caused him serious prejudice. Counsel for the State submitted that the petitioner was given a second show cause notice on 19.2.2005 after conclusion of the enquiry but did not file any reply. There is a difference between a criminal trial and a departmental proceeding and the purposes of the two are different. The conviction of the petitioner on the first charge by the Sessions Court was on merits and the acquittal was on benefit of doubt. No benefit can flow to the petitioner from the same. With regard to charge no. 2 it was submitted that only generalized submissions have been made. The writ application does not contain an iota of evidence or pleadings with regard to the nature of the illness and/or the treatments. The power of judicial review under Article 226 of the Constitution of India while scrutinizing an order of punishment passed in a Patna High Court CWJC No.3094 of 2012 (2) dt.20-03-2012 3 departmental proceeding is primarily first confined to the decision making process. If there is any procedural infirmity the Court may interfere as it may affect the final decision. If the charges were vague, evidence in support of the charge was not informed, evidence collected behind the back of the delinquent, denial of the opportunity for cross examination, reliance on materials outside the enquiry are some grounds of procedural infirmity. But mere procedural infirmity cannot be sufficient by itself to call for interference unless prejudice is demonstrated by the delinquent to have been caused. Yet again there are certain defects so inherent in a departmental proceeding that prejudice may be writ large without it necessarily having to be demonstrated. Thereafter the grounds for interference may be on perversity or confined beyond the charge, taking into consideration extraneous materials etc. If the petitioner was in custody and evidence was collected behind his back, prima facie prejudice is writ large. The question is not if another conclusion could have been arrived at if the opportunity for defence was given. The primary question would be if he was given an adequate opportunity to defend himself. What the conclusion could have been is not very relevant at this stage. But again it can depend on the facts of a case. In so far as charge no. 1 is concerned, there has to be a difference between a departmental proceeding and a criminal trial. The purposes of the two are entirely different. Finding in one are based on beyond reasonable doubt and in the other upon preponderance of probability. The Court purposefully refrains from any further discussion and/or observation on the aspect in view of the order to be passed lest it may prejudice the case of either party. In (2004) 13 SCC 50 (Swaraj Tractors Division v. Raghbir Singh) the delinquent was also in custody when departmental Patna High Court CWJC No.3094 of 2012 (2) dt.20-03-2012 4 proceedings were initiated. Despite valid service of notice he did not take steps to defend himself by submission of a formal reply even. His pleadings before the Court also did not contain any explanation for the ab

Applicable IPC Section: 304B

Statute Text:
Section 304B of the Indian Penal Code. Dowry death. Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.