CWP No.13602 of 1991 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13602 of 1991 Date of decision: December 23, 2008. Sher Gir ...Petitioner(s) v. State of Punjab & Anr. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: None for the petitioner. Shri G.S. Attariwala, Additional Advocate General, Punjab for the respondents. ORDER Surya Kant, J. - (Oral): In this civil writ petition, the petitioner seeks quashing of the order dated 26.8.1991 (Annexure P-2) whereby he has been dismissed from service on the basis of the conduct which led to his conviction in a case under Section 307, 324, 34 IPC by the Additional Sessions Judge, Patiala vide judgment dated 26.11.1988. The case had arisen out of FIR No.303 dated 20.11.1986, under Section 307, 324/34 IPC, registered at Police Station Rajpura, District Patiala. The allegations against the petitioner, who was employed as a CWP No.13602 of 1991 -: 2 :- Head Constable in the Punjab Police, were that he made a murderous assault on Karnail Puri and caused injuries to Mohinder Puri also. The learned Additional Sessions Judge, Patiala held the petitioner guilty of an offence under Section 307 IPC and sentenced him to undergo rigorous imprisonment for 3 years along with fine of Rs.500/-, in default whereof he was required to undergo rigorous imprisonment for a period of two months. The petitioner was also convicted under section 324 IPC read with Section 34 IPC and sentenced to undergo rigorous imprisonment for one year. Based upon the aforesaid judgment of conviction and by invoking powers under rule 16.2(2) of the Punjab Police Rules, as amended in the year 1981, the Senior Superintendent of Police, Patiala passed the impugned order of dismissal of the petitioner from service, the operative part of which reads as under:- “3. And whereas conduct of Head Constable Sher Gir which has led to his conviction u/s 307/324/34 IPC in the aforesaid case is reprehensible in as much as being a custodian of law and order as a police officer, his act in making a murderous assault on Karnail Puri and also causing injuries to Mohinder Puri, can in no case be justified. Taking into consideration the conduct of HC Sher Gir which had led to his conviction, I do not consider him fit to be retained in police service. Therefore, I, Satish Kumar Sharma, IPS, Senior Superintendent of Police, Patiala, in the exercise of the powers conferred upon me vide Punjab Police Rules 16.2(2) as amended vide Punjab CWP No.13602 of 1991 -: 3 :- Police (Second Amendment) Rules, 1981, hereby dismiss Head Constable Sher Gir No.1421/PTL from service with effect from 26.8.1981.” Aggrieved, the petitioner has approached this Court. When this writ petition came up for hearing on 5th September, 1991, the motion bench directed to maintain status quo with regard to the petitioner's services. The said interim order was made absolute while admitting the writ petition on 31st October, 1991 and further direction was issued to list the Criminal Appeal No.531-SB of 1988 for actual hearing in the month of January, 1992. The said appeal was preferred by the petitioner against the judgment of the learned Additional Sessions Judge, Patiala dated 26.11.1988 whereby he was convicted and sentenced under section 307 IPC. It is not in dispute that Crl. Appeal No.531-SB of 1988 was accepted by this Court vide judgment dated 12th May, 1993 and the petitioner (appellant no.1 in the criminal appeal) was acquitted of the charge after observing as follows:- “Though the story of the prosecution has been supported by PW7 Karnail Puri and PW8 Kishan Puri, yet their evidence requires scrutiny in as much as the important pleas taken up by learned counsel for the appellants are that the occurrence did not take place at the premises of the complainants; it was a case of free fight and accused Sher Gir is in fact a police employee and was on duty and not present at the time of occurrence and he has been falsely implicated. Besides this another important plea is that Kashmiri Bharti and Bishan Bharti, though acquitted, yet CWP No.13602 of 1991 -: 4 :- grievous injuries on their persons have not been explained by the prosecution. A perusal of statement of PW8 Kishan Puri indicates as if the occurrence had taken place in the street. The version of this independent witness that they were not having any arm at the time of occurrence, is falsified by the fact that two of the accused, Kashmiri Bharti and Nand Bharti, had received grievous injuries. The statement of this independent witness that he did not see any injury on the persons of Kashmiri Bharti and Nand Bharti is not believable and the learned counsel for the appellants has rightly laid stress on the plea that genesis of the occurrence was not disclosed and in this regard reference has been made to Harbans Singh v. State of Punjab & aother, 1987(2) Recent Criminal Reports, 408. DW4 Kalyan Singh, Head constable has deposed that Sher Gir, accused in this case, was posted in the CIA Staff, Rajpura on 1.11.1986 as Head Constable and Sher Gir along with Labh Singh and Raj Kishan, constables, was sent for patrol duty by Karnail Singh, ASI vide DDR No.5 under the instructions of Deputy Superintendent of Police, Rajpura. DW5 Raj Kishan, constable has also deposed that Sher Gir was on patrol duty along with him on 1.11.1986. In this case injury No.1 has been attributed to Sher Gir, accused and a perusal of defence evidence creates a doubt about his presence. The probability that the CWP No.13602 of 1991 -: 5 :- complainants were aggressors or that it was a case of free fight in an open street, was overlooked by the learned trial court, though it had acquitted two of the accused, namely, Kashmiri Bharti and Bishan Bharti, who had injuries on their persons. The presence of brick bats in the street is also an admitted fact.” This Court further observed as follows:- “The conclusion is that the case against the accused- appellants as put forward by the prosecution is not free from doubt. The appeal is hereby accepted, conviction is set aside and accused are acquitted.” In view of the fact that the appellant's conviction and sentence, which led to passing of the impugned dismissal order, has already been set aside by this Court and he has been acquitted of the criminal charge, the impugned dismissal order cannot sustain and the same has to be set aside. Consequently, this writ petition is allowed and the impugned order dated 26.8.1991 (Annexure P-2) is quashed. The petitioner shall be entitled to the consequential benefits, if any, flowing from the setting aside of the dismissal order. December 23, 2008. [ Surya Kant ] kadyan Judge