IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14537 of 2003 JAGESHWAR YADAV Versus THE STATE OF BIHAR & ORS ----------- 5. 09.02.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner is aggrieved by the order dated 29.11.1998 reverting him from the post of Assistant Sub Inspector of Police to Constable and forfeiture of two increments equivalent to three black marks as a punishment affirmed in appeal by order dated 15.4.2003. The petitioner is a Constable in the Police. He was made accused in a Police Case under Sections 376/511 of the Penal Code, the victim being a minor aged about 16-17 years. Charge- sheet was submitted against him when he was subjected to a criminal prosecution and also departmental proceedings. Strong reliance has been placed on the judgment of the sessions trial dated 14.6.2000 acquitting him. The Sessions Judge has barely in two pages by a short and cryptic judgment, when all the witnesses went hostile, and the prosecution even failed to produce the victim for deposition, facts which speak eloquently for themselves, acquitted the petitioner on technicality and not on merit, does not persuade this Court to read it in favour of the petitioner. In the departmental proceeding, it was urged that the victim under Section 164 Cr.P.C. had named another person but again in the departmental proceeding also, though the victim 2 was cited as a witness, she was never produced. Injuries/redness was found near the genitalia of the victim. The enquiry report in this manner came to be submitted of exoneration. Differing with the same the disciplinary authority issued a second show cause notice as to why the petitioner be not dismissed from service considering the nature of the allegation against him as a person unfit to be retained in service. The petitioner replied to the same when the impugned order came to be passed. The submission that in view of exoneration by the criminal court and in the departmental proceeding there was no justification for the punishment especially when the victim girl in her statement under Section 164 Cr.P.C. had named another, does not appeal to the Court at all. A statement under Section 164 Cr.P.C. is not substantive evidence. The accused was a Police Constable, the victim was to be produced by the officials of the Department whether it be in the criminal trial or in the departmental proceeding. She was not produced at both places. The petitioner had been charge-sheeted after investigation in the criminal case. The aim and purpose of a criminal trial and a departmental proceeding are fundamentally different. Acquittal in the criminal trial shall not per se vitiate the departmental proceeding or the punishment more so when the acquittal in the criminal trial was on technicality of witnesses going hostile and the prime witness not produced. In a departmental proceeding the question of desirability of the delinquent continuing in government service and the need for discipline in service is 3 concerned. The standards of proof for the two are entirely different. While in a criminal trial the proof has to be beyond reasonable doubt, in the departmental proceeding it is founded on probability of preponderance. If the Superintendent of Police in the entirety of the facts and circumstances came to the conclusion that the petitioner in view of the nature of the allegation against him was an undesirable person to be retained on the rolls of the disciplined force, this Court finds no infirmity with the same. The disciplinary authority has been more than fair. The petitioner appears to have got away lightly. The law on this aspect has been succinctly explained in AIR 1997 SC 13 (State of Rajasthan V. B.K.Meena) at Paragraph 17 as under:- “17. There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different.” There is no merit in this writ application. It is accordingly dismissed. Snkumar/- (Navin Sinha,J.)