IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.10.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.38031 OF 2006 (O.A.NO.7230 OF 1998) S.Prataban .. Petitioner Vs. 1.The Superintendent of Police, Madurai. 2.DIG of Police, Madurai Range .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent in D.O.No.262/98, F1/PR No.57/97, dated 5.3.98 and confirmed by the second respondent in his C.No.A6/AP24/98, dated 30.7.98 and to quash the same and to direct the respondents to reinstate the applicant into service with all consequential service monetary benefits and to grant him such other further reliefs. For Petitioner : Mr.K.Venkatramani, SC for Mr.M.Muthappan For Respondents : Mr.R.Neelakandan, GA - - - - ORDER Heard both sides. 2.The petitioner was employed as Grade II Police Constable and was attached to the Chekkurani Police Station, Madurai District. He filed OA No.7230 of 1998, seeking to challenge the order, dated 5.3.1998 passed by the first respondent, the Superintendent of Police, Madurai, which was confirmed by the order of the second respondent, dated 30.7.1998. 3.The petitioner was given a notice, dated 30.1.1998 asking him to show cause as to why he should not be compulsorily retired from service. The reason for the show cause notice was that the petitioner was involved in Crime No.201/96 filed under Sections 147, 148, 323, 324 r/w 506(2) IPC. He was placed under suspension in involving in a criminal offence. He was convicted by the Judicial Magistrate, Thirumangalam for offences under Sections 148 and 324 IPC to undergo three months simple imprisonment in C.C.No.136/97. 4.The petitioner gave his explanation, dated 2.3.1998, stating that he had filed an appeal before the Principal Sessions Judge, Madurai in Criminal Appeal No.120/97 against the conviction https://hcservices.ecourts.gov.in/hcservices/ and the learned District Judge in Crl.M.P.No.6787 of 1997 suspended the sentence, after executing the bond. Since the conviction was suspended, he requested for dropping further action. His explanation was rejected by the first respondent, stating that only when there is final acquittal, his stand can be accepted and therefore, he was compulsorily retired from service by an order, dated 5.3.1998. 5.The petitioner filed an appeal before the appellate authority. The appellate authority, i.e. the second respondent rejected the appeal, by an order, dated 30.7.1998. The petitioner challenged the said order in O.A.No.7230 of 1998 before the Tribunal. The Tribunal, by an interim order, dated 07.09.1998, granted stay of punishment. This was on the ground that in the show cause notice, there was no discussion regarding the facts leading to the conviction in the criminal case and that was in violation of Rule 3(c)(i)(1) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules. The said interim order came to be continued until further orders by the Tribunal. 6.On notice from the Tribunal, the respondents have filed a reply affidavit, dated 5.12.1998. In the reply affidavit, it was stated that the show cause notice issued was in accordance with the rules and that the appellate authority had also considered all relevant facts while rejecting his appeal. In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.38031 of 2006. 7.The learned Senior Counsel for the petitioner stated that subsequent to the filing of the OA, the criminal appeal in C.A.No.120 of 1997 was finally allowed in favour of the petitioner by the Additional District and Sessions Judge, Fast Track Court-3, Madurai, by his judgment, dated 31.1.2002. In the criminal case, the petitioner was arrayed as accused No.1 and he was also the first appellant before the Sessions Court. The Sessions Court, while allowing the appeal, in paragraph 7 had held as follows: "7.For the foregoing reasons, the Appeal is partly allowed. The offences compoundable with which A1, A3, A6, A7 and A8 are compoundable and they are acquitted and they are set at liberty and ordered to be released forthwith. As far as A2 and A4 are concerned, the conviction for offence u/s.326 I.P.C. is confirmed. But the sentences are modified, that both of them are sentenced for Imprisonment till rising of the Court and to pay a fine of Rs.10,000/- (Rupees Ten thousand only) each, in default to undergo Simple Imprisonment of One Year each for the offence u/s.326 I.P.C. The fine amount to be paid by A2 is ordered to be given to P.W.4 as compensation. The fine amount to be paid by A4 is ordered to be given to P.W.3 as compensation u/s.357 Cr.P.C. (A2, Rs.10,000/- A4-Rs.10,000/- Total Rs.20,000)." (Emphasis added) https://hcservices.ecourts.gov.in/hcservices/ 8.It must be noted that Section 320 of the Code of Criminal Procedure, 1973 provides for compounding of offences. Though the petitioner was initially convicted under Section 326 IPC, the appellate court had altered the offence as one under Section 325 IPC. Therefore, in terms of section 320(2) Cr.P.C., the charge under Section 325 IPC can be compounded by a person to whom the hurt was caused and with the permission of the Court. When once compoundable offence is committed, then Section 320(8) shall come into operation and it reads as follows: "320(8):The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded." 9.Therefore, the learned Senior Counsel stated that since the petitioner is no longer an offender, the respondents must be directed to re-consider their stand in the light of the subsequent acquittal. 10.While there is no legal infirmity in the impugned order passed by the respondents, in the light of the subsequent events, the respondents are to be directed to consider the case of the petitioner afresh. Initially, the respondents have taken advantage of the conviction by the trial court and even after noting the pendency of the appeal, the punishment was imposed. Such decision was in accordance with the decision of the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras Vs. S.Nagoor Meera reported in 1995 (3) SCC 377. But the petitioner notwithstanding the legal action taken by the respondents, had obtained an interim order and had continued in service. 11.Therefore, in the light of the subsequent acquittal, the respondents will have to consider the case of the petitioner in accordance with law. In the present case, the petitioner was suspended initially in connection with PR No.57/97. In view of the subsequent conviction, the disciplinary action contemplated was not proceeded with. Therefore, it is for the respondents, to take an appropriate action. But the respondents cannot hold the conviction by the trial court any more against the petitioner in view of the Sessions' Court judgment, which acquitted the petitioner in terms of Section 320(8) of Cr.P.C. The respondents are directed to take an appropriate decision in accordance with law within a period of two months from the date of receipt of the copy of this order and communicate the result to the petitioner. The writ petition is disposed of accordingly. However, there will be no order as to costs. vvk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Superintendent of Police, Madurai. 2.DIG of Police, Madurai Range. 1CC to Mr.Ayngaraprabhu, Advocate (SR.55388) 1CC to Government Pleader, High Court, Madras (SR.54242) PRE DELIVERY ORDER IN W.P.NO.38031 OF 2006 KS (CO) SS (27.10.2009) https://hcservices.ecourts.gov.in/hcservices/