Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2660 of 2006 ====================================================== Nebu Lal Prasad son of late Ramraj Prasad of village Medipatti, Sub-P.O. – Pathardewa, P.O. Mahabarhangpur, P.S. Baghanchaghat, District Dwarya(U.P.) .... .... Petitioner Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2. the D.G.-cum- I.G. of Police, Bihar, Patna 3. The D.I.G., Champaran Range, Bettiah 4. The S.P. East Champaran Motihari .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Ram Hriday Prasad, Advocate For the Respondents : M/s Anjani Kumar, AAG-10 & Sunil Kumar, AC to AAG-10 ====================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA ORAL ORDER 3 13-03-2012 Heard learned counsel for the petitioner and the State. 2. At the relevant time petitioner served as Constable with the Static Force posted to guard the Nazarat in the circle office, Mehsi. He has filed this writ petition against the order bearing Memo No. 2841 dated 14.12.2002, Annexure-2 whereunder after conclusion of the Departmental Proceeding No. 5/99, he has been dismissed from service on the ground that he along with other members of the Static Force went to Sonam Lata Cinema House and resorted to firing in which two persons were killed and one was injured for which a criminal case under [STATUTE] and Section 27 of Patna High Court CWJC No.2660 of 2006 (3) dt.13-03-2012 2 / 5 2 the Arms Act was registered in which charge sheet was submitted under [STATUTE] and Section 27 of the Arms Act. 3. It is submitted on behalf of the petitioner that he along with other members of the Static Force had gone to Cinema House on the verbal instruction of the Circle Officer to control the unruly mob in the Cinema House where altercation took place between the petitioner, other members of the Force and the miscreants. During altercation one shot got accidentally fired from the rifle causing death of two and injury to one of the miscreants. Aforesaid written defence of the petitioner was considered by the Enquiry Officer who held the petitioner guilty of having gone to the Cinema premises without any written orders of the Circle Officer as also for indulging in firing. It is submitted on behalf of the petitioner that copy of the enquiry report was not served on the petitioner along with the second show cause notice proposing punishment. It is also submitted on behalf of the petitioner that as he along with other members of the Static Force had gone to the Cinema House on verbal instruction of the Circle Officer, the Enquiry Officer was required to have confirmed from the Circle Officer whether he had given verbal instruction to the petitioner and other members of the Static Force to go to Cinema House for Patna High Court CWJC No.2660 of 2006 (3) dt.13-03-2012 3 / 5 3 controlling the unruly mob/miscreants. 4. According to the petitioner, Appellate Authority did not consider the aforesaid submission and dismissed the appeal under orders, bearing Memo No. 438 dated 13.5.2003, Annexure- 5, against which petitioner filed memorial before the Director General-cum-Inspector General of Police, Bihar, Patna who also rejected the same under order, bearing Memo No. 2659/P-2 dated 18.6.2004, Annexure-6. 5. Learned counsel for the petitioner submitted that as the copy of the enquiry report was not served on the petitioner, dismissal, appellate orders dated 14.12.2002, 13.5.2003, Annexures-2, 5 as also the order passed on memorial dated 18.6.2004, Annexure-6 are vitiated for not granting the petitioner adequate opportunity to rebut the findings recorded against him by the Enquiry Officer. 6. In the light of the aforesaid submission, this Court asked the counsel for the State to peruse the records and to satisfy the Court whether the copy of the enquiry report was served on the petitioner along with the second show cause notice. Counsel for the State having perused the file could not lay his hands to any of the receipt in the file showing service of enquiry report on the petitioner. He could only place before this Court notice, bearing Patna High Court CWJC No.2660 of 2006 (3) dt.13-03-2012 4 / 5 4 No. 2799 dated 9.10.2001 issued from the office of the Superintendent of Police, East Champaran at Motihari requesting the Superintendent of Police, Begusarai to serve on the petitioner copy of the findings of the Enquiry Officer submitted in connection with Departmental Proceeding No. 5/99. Perusal of the said notice does not indicate that the findings of the Enquiry Officer was ever served on the petitioner. Issue of notice requesting service of the findings of the Enquiry Officer on the delinquent is one thing but service thereof is another. In the circumstances, I am not inclined to accept the submission of the learned counsel for the petitioner that having issued notice requesting service of the findings of the Enquiry Officer on the petitioner, is service of the findings on him. 7. Counsel for the State then submitted that another notice dated 26.5.1999 was issued by the Enquiry Officer, perusal whereof, however, indicates that thereunder memo of charge was served on the petitioner with direction to the petitioner to submit his written defence by 5.6.1999. 8. It is thus quite evident that petitioner was not served with the findings of the Enquiry Officer. In the circumstances, I have no option, but to set aside the dismissal, appellate orders dated 14.12.2002, 13.5.2003, Annexures-2,5 and Patna High Court CWJC No.2660 of 2006 (3) dt.13-03-2012 5 / 5 5 the order passed on memorial dated 18.6.2004, Annexure-6, which is, accordingly, set aside with direction to the petitioner to appear before the Superintendent of Police, East Champaran at Motihari, who should serve on the petitioner the second show cause

Applicable IPC Section: 308

Statute Text:
Section 308 of the Indian Penal Code. Attempt to commit culpable homicide. Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.