CIVIL WRIT PETITION NO.11254 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 26, 2011 ASI Rohtash Singh .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Surender Lamba, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. Mr. J. S. Yadav, Advocate, for respondent No.4. **** RANJIT SINGH, J. This order will dispose of Civil Writ Petition Nos.11254 and 7743 of 2009 (ASI Rohtash Singh Vs. State of Haryana and others). The petitioner has impugned the punishment of stoppage of two increments with permanent effect imposed on him and also CIVIL WRIT PETITION NO.11254 OF 2009 :{ 2 }: prays for quashing of the enquiry report on the ground that the same is illegal and in violation of the provisions. While serving as a Head Constable, the petitioner alongwith other police personnels intercepted one vehicle Tata 407 and one Kalu on 10.10.2007. Five cows were found loaded in the said vehicle. Finding this to be a case under Cow Slaughter, a ruqa was sent and a case under Section 4-A, 8/2/80 of Cows Slaughter Act and 307 IPC was registered by SI Shish Ram. SI Shish Ram had reached the scene and had taken over the investigation of the case. The petitioner had only arrested Kalu and taken the vehicle in his control. The petitioner still was accused of arresting a wrong person and was served a show cause notice on 23.4.2008, to which he submitted his detailed reply. Enquiry Officer was appointed, who held the petitioner as well as SI Shish Ram guilty of the charge. Superintendent of Police, Mewat, without considering the pleas raised by the petitioner imposed a punishment of stoppage of two future increments with cumulative effect upon the petitioner as well as SI Shish Ram on 15.5.2008. The petitioner alongwith others was deputed for Intermediate School Course, which was to commence with effect from 1.8.2008. The appeal filed by the petitioner against the impugned order of punishment was rejected on 11.11.2008, against which the petitioner filed a revision. In the meantime, the petitioner on being detailed had successfully completed the course and his name was brought on promotion list D. The petitioner was promoted as Assistant Sub Inspector on 10.3.2009. Without issuing any show CIVIL WRIT PETITION NO.11254 OF 2009 :{ 3 }: cause notice or affording any opportunity of hearing, the promotion order of the petitioner was withdrawn on 14.5.2009. The petitioner accordingly filed Civil Writ Petition No.7743 of 2009, challenging this order. While issuing notice of motion, the operation of the impugned order was stayed. The revision petition filed by the petitioner was also rejected. The petitioner has accordingly challenged the punishment imposed on him through the present writ petition. In the reply filed, the respondents have justified the punishment imposed on the petitioner of stoppage of two annual increments. It is otherwise conceded that the petitioner was brought on promotion list `D' with effect from 10.2.2009 and was promoted to the rank of ASI on 10.3.2009. It is stated that the promotion was wrongly made as the petitioner was under currency of punishment of stoppage of two annual increments with permanent effect and, thus, would be eligible for promotion only after the currency of punishment was over. In response to the factual position, it is alleged that the petitioner, as a Head Constable, had sent a ruqa for registration of a case and rounded off Shri Kalu wrongly and that SI Shish Pal, did not investigate the matter fairly. It is alleged that if they had done proper investigation, Kalu could have been spared from arrest and real culprit arrested. On this basis, the petitioner was found guilty and as per the respondents, rightly punished. The stand of the respondents in connected Civil Writ Petition No.7743 of 2009 is that the petitioner was not entitled for CIVIL WRIT PETITION NO.11254 OF 2009 :{ 4 }: promotion till the concurrency of punishment. While the petitioner was sent for course, the punishment was not shown against his name and so his name was brought on list D and approved for promotion. This order was withdrawn by the Inspector General of Police, which is said to be legally permissible. It is pointed out that Inspector General of Police, Faridabad, has withdrawn the admission as well as approval for promotion as officiating ASI granted to the petitioner and accordingly the Superintendent of Police has withdrawn the promotion order. The allegation against the petitioner and SI Shish Pal is that they both were appointed as Enquiry Officers in Police Station Tauru in case No.243 dated 12.10.2007. This case was registered against Kalu and two others on a report made by the petitioner. Kalu was caught at the spot, when the vehicle was intercepted with five cows. The petitioner, while sending the complaint, had written that he was not competent for conducting investigating of this complaint and so the non-gazetted officer may be deputed. SI Shish Ram had accordingly conducted the further investigation after reaching the spot. The petitioner, however, had arrested the accused. As per the secret information received by SHO, Kalu was arrested wrongly, which led to the allegation against the petitioner that if both had conducted the investigation thoroughly, the actual accused could have been found. The petitioner and SI Shish Ram were accordingly accused of not arresting the actual accused, which was termed as grave negligence and indiscipline. In the background of allegations as noted above, the first question which immediately attracted attention was whether the CIVIL WRIT PETITION NO.11254 OF 2009 :{ 5 }: petitioner was competent to investigate and whether the charge for not conducting the investigation properly could be alleged against him? The petitioner had, at the very first instance, written to the Police Station that he was not authorized to investigate the offence as alleged in the FIR. Noticing the facts and the details, the State counsel, on 30.8.2010, was required to explain as to how and for which misconduct the petitioner could be held guilty. The order is as under:- “The petitioner was Head Constable posted at Police Station Tauru. On secret information received, the petitioner had set up a Nakka to nab a vehicle which was stated taking some cows for slaughter. When Tata 407 vehicle came to the scene, the driver made an attempt to run over the police personnel at Nakka. The vehicle was chased and one Kalu was apprehended. Since the petitioner was a non-gazetted officer and could not have conducted the investigation, the report was given to the police station and an FIR containing offence under Section 307 IPC was registered. SI Shish Ram, who was the Incharge of Police Station reached the spot and conducted an investigation. During investigation, said Kalu who was earlier apprehended by the petitioner was taken in custody. Ultimately, it was found that he was only a Driver of Tata 407, which was of Ranbir alias Chau, who was infact responsible for the issue of cows slaughter. The petitioner as well as SI Shish Ram were CIVIL WRIT PETITION NO.11254 OF 2009 :{ 6 }: proceeded against in not carrying out the proper investigation of the case leading to real culprits escaping the rigors of law. The investigation was not conducted by the petitioner. He was not the one, who was responsible for even conducting the investigation. Merely because after investigation, Kalu was found innocent would not be the reason enough to hold the petitioner guilty of any misconduct or misdemeanor in not conducting the investigation properly. Still the petitioner alongwith SI Shish Ram have been found responsible and awarded the penalty of stoppage of two increments with permanent effect. This has further affected the promotion of the petitioner to the post of ASI. Mr.Rathee would explain as to how and for which misconduct the petitioner could be held guilty. Let Mr.Rathee have instructions as to how on the basis of facts as noticed in the inquiry proceedings, the petitioner would be responsible for any misconduct, which primarily would be related to the manner of investigation which was done by SI. Adjourned to 06.10.2010.” On the basis of the stand then taken before the Court, it was noticed that Head Constable was not entitled to investigate a criminal case. The Court then passed the following order on 8.11.2010:- “It is conceded before me that the Head Constable is not entitled to conduct investigation in a criminal case. Still, CIVIL WRIT PETITION NO.11254 OF 2009 :{ 7 }: the petitioner has been punished for not conducting investigation properly, whereas the SI, who had conducted the investigation and was proceeded against, is let off. Mr.Rathee is unable to explain this anomaly. The person, who had not conducted investigation, has not been held responsible, whereas the person, who was responsible for conducting the investigation, subsequently exonerated. This position is untenable in law. Let then Superintendent of Police file an affidavit in this regard as to how they would justify the unfair action. This matter be placed before DGP for consideration as otherwise consequences may follow for the officer, who may be asked to account for this unfair approach. Adjourned to 10.12.2010.” Superintendent of Police was then required to file an affidavit as to how the respondents would justify the unfair action. An affidavit of Superintendent of Police was ultimately filed, when he made an attempt to justify the illegal action in proceeding against the petitioner with the allegation as made. However, the Superintendent of Police had to concede in this affidavit that the constable was not authorized to conduct investigation in an offence like 307 IPC. Otherwise the stand of the Superintendent of Police was that the Head Constable was competent person for conducting investigation of cognizable offences and in this regard made reference to Rule 25.1 of Punjab Police Rules, 1934. Rule 25.1 (ii) provides that an officer incharge of Police Station is empowered under Section 157 CIVIL WRIT PETITION NO.11254 OF 2009 :{ 8 }: (1) Cr.P.C. to depute a subordinate to proceed to the spot to investigate the facts and if necessary to take measures for discovery and arrest of the offenders. This Rule further provides that any police officer may be so deputed under this Section but where the police officer under the rank of Assistant Sub Inspector is deputed, the investigation shall invariably be taken up and completed by the officer incharge of Police Station or an Assistant Sub Inspector at the first opportunity. Relying on this Rule, it is urged that the petitioner was not debarred from carrying out investigation. Since the person other than Assistant Sub Inspector could be deputed by the Incharge, Police Station, the then SHO was required to file an affidavit if the petitioner had been so deputed to investigate this case. SI Shish Ram has filed an affidavit stating that present petitioner with the help of other fellow police officials had apprehended one Kalu whereas two other persons succeeded in absconding by taking benefit of darkness. The petitioner had also recorded the disclosure statement of Kalu. Thereupon, SI Shish Ram had registered the FIR and rushed to the occurrence and made a formal arrest of Kalu and started further investigation. In the affidavit, he has also stated that the petitioner was not competent to investigate the matter relating to heinous offences like 307 IPC. In this light, it will have now to be seen if the petitioner could be blamed with the allegation of having not investigated this case properly. The facts that would emerge from the record clearly show that the petitioner could not have competently carried out investigation in this FIR, which was registered under Section 307 IPC. The pleadings also reveal that SI Shish Ram had taken over the CIVIL WRIT PETITION NO.11254 OF 2009 :{ 9 }: investigation and had reached the scene. The gravamen of the allegation against the petitioner is that he had arrested Kalu, who concededly was the Driver of the vehicle. It is the disclosure made by Kalu that the FIR was registered. The other persons had succeeded in running away from the spot, as has been disclosed in the reply. Under these circumstances, it would be difficult to hold that the petitioner had done anything wrong to arrest Kalu or had conducted the investigation in a manner not warranted. This aspect of the case appears to have escaped notice of the respondents. Having passed the impugned order, Superintendent of Police has made laborious efforts to justify his order in order to support it. In the bargain, he appears to have lost the balanced approach. Whatever may be the situation, the fact remains that the petitioner was not competent to investigate an offence under Section 307 IPC, as has been conceded in reply. May be, initially the petitioner was detailed to intercept the vehicle, which he did. The petitioner was not alone when the other persons were able to escape. Immediately thereafter the investigation was taken over by SI Shish Ram. Thereafter, if there was any defect in the investigation, the basic responsibility would be that of SI Shish Ram. In view of this and the position that the petitioner was not competent to investigate the case, it would not be fair to blame the petitioner and to impose punishment on him. The prayer is accordingly allowed. The punishment of stoppage of two increments with cumulative effect imposed on the petitioner is set-aside. Since this punishment was the main reason for which the name of the petitioner was withdrawn from the course CIVIL WRIT PETITION NO.11254 OF 2009 :{ 10 }: and he was ordered to be reverted, the said orders can also not be sustained and are set-aside. Both the writ petitions are allowed in the above terms. September 26, 2011 ( RANJIT SINGH ) khurmi JUDGE