Crl. Misc. No. M- 4455 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M- 4455 of 2010 (O&M) Date of decision: July 23, 2010 ASI Girdhari Lal ...Petitioner Versus The State of Haryana and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. HPS Aulakh, Advocate, for the petitioner. Mr. Sidharth Sarup, DAG, Haryana. GURDEV SINGH, J. Petitioner-Girdhari Lal ASI has filed this petition under Section 482 of the Criminal Procedure Code (hereinafter referred to as 'the Code'), invoking the inherent jurisdiction of this Court, for quashing FIR No. 43 dated 12.3.2009 registered at Police Station Sector 14, District Panchkula, under Section 409/34 IPC (Annexure P/1), being in violation and contravention of provisions of Rule 6.22 of the Punjab Police Rules 1934 (as applicable to the State of Haryana) (hereinafter referred to as 'the Rules') and Section 154 of the Code. The petitioner has averred in this petition that he was appointed as a Constable in the Haryana Police on 28.4.1975 and has already put in 39 years of service with unblemished record, having no adverse entry. He was allocated one pistol No. EVG 403- 9MM and 15 live cartridges by Kot ASI Police Lines, Panchkula. On 1.3.2009, he was directed by the Superintendent of Police, Panchkula, for Crl. Misc. No. M- 4455 of 2010 2 proceeding to New Delhi for recovery of stolen vehicle in FIR No. 19 dated 14.1.2009 registered under Section 379 IPC, in Police Station Sector 5, Panchkula. He came back to Panchkula on 4.3.2009 at 10.15 p.m., alongwith stolen vehicle, and made a report in the DDR at serial No. 24, under intimation to the SP, Panchkula. Thereafter, he went to his original location at Police Post, Sector 16, Panchkula at 10.30 p.m. He went to PCR 1 Room to hand over the charge to ASI Roshan Lal. As usual he deposited the said service pistol and 11 cartridges with Jasmail Singh, Incharge-cum- Moharar Clerk of the Malkhana, as per the rules, for safe custody and that Munshi Clerk acknowledged the deposit thereof. On 7.3.2009, he came to the Police Post for resuming his duties and went to Jasmail Singh Constable for collecting his service revolver, who searched for the same in the Malkhana but the same was not found at that place. The matter was reported to the Incharge of Police Post, who lodged the report in the DDR at serial No. 13. An inquiry was conducted by the DSP, City, Panchkula, who submitted his report to the SP, Panchkula, holding him negligent. The SP, while acting arbitrarily, illegally and against the provisions of the law, ordered the officer In-charge of the Police Station to register the above said FIR. The Officer incharge of the Police Station verbatim re-produced the report of the DSP in the FIR. Though Jasmail Singh Constable was equally held negligent but no action has been taken against him. He was arrested during the investigation of the FIR and was produced before the JMIC, Panchkula and was enlarged on bail. No investigation has been carried out nor any report has been submitted against him under Section 173 (2) of the Code. There is violation of the provisions of the above said Rule and Section 154 of the Code and no such offence under Section 409/34 IPC is Crl. Misc. No. M- 4455 of 2010 3 made out from the contents of the FIR. On notice of motion having been issued, reply was filed by the learned State counsel. It has been admitted in that reply that after the petitioner came back to Panchkula from Delhi on 4.3.2009 he came to the Police Post, Sector 16, Panchkula for getting himself relieved and that he deposited the service pistol and cartridges with Jasmail Singh Constable, incharge of the Malkhana. It has been pleaded therein that as per the practice, Jasmail Singh kept the service pistol and cartridges in the Malkhana without making the entries in the record and that when the employees rejoin duties, they used to take their weapon without any entry in the roznamcha. A polygraph test was conducted upon the petitioner in which 8 questions were put to him and his reply to 6 question was found to be deceptive. In the departmental inquiry, the petitioner was held guilty and his 10 annual increments with cumulative effect have been stopped. The service pistol and cartridges were valuable property and were entrusted to the petitioner, who is guilty for the loss thereof and, as such, he is liable to be prosecuted under Section 409 IPC. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioner that the petitioner cannot be said to have committed any such offence as admittedly he had deposited his service pistol and cartridges with Jasmail Singh Constable, who was the incharge of Malkhana at the relevant time and thereafter those were never handed over to the petitioner. Therefore, only Jasmail Singh Constable can be held responsible for the loss thereof. The facts so stated by the petitioner against the said Constable were admitted by him when his statement was recorded during the inquiry. For Crl. Misc. No. M- 4455 of 2010 4 the loss of this service pistol and cartridges, only inquiry was to be held under Section 6.22 of the Rules and no FIR could have been registered. Therefore, the FIR is liable to be quashed. On the other hand, it has been submitted by learned State counsel that the service pistol and cartridges were collected by the petitioner from Jasmail Singh Constable on the next day and he has criminally misappropriated the same. During the inquiry conducted by the DSP, he was found guilty. A valid FIR was recorded under Section 409 read with Section 34 IPC and there is no ground for quashing the same. He also submitted that Rule 6.20 of the Rules only lays down the procedure for initiating departmental proceedings and not the procedure for taking criminal proceedings. This court, while deciding this petition, is not to go into the disputed questions of fact. It is to be seen if any offence is made out from the bare reading of the FIR as those contents are to be taken on their face value. According to the petitioner, it is a case of loss of service pistol and cartridges. Rule 6.22 of the Rules prescribes the procedure when the arms are lost or seriously damaged. According to that rule, when any weapon forming part of police armament is lost or seriously damaged or when ammunition or fired cases, exceeding five in any one case, are lost, a committee of three officers, of whom at least one shall be a gazetted officer, shall be appointed by the Superintendent to inquire into the circumstances under which the weapon was lost or damaged and to decide whether the cost of replacement shall be borne by the Government or otherwise. The inquiry, as envisaged by this rule, was held and it was only after thorough inquiry that the FIR was registered. The petitioner was found to be negligent for the Crl. Misc. No. M- 4455 of 2010 5 loss of service pistol and cartridges. It is pertinent to note that for two days after the said loss, the matter was not reported by the petitioner to his authorities and performed his duties without that pistol and cartridges for two days. Though during the inquiry the petitioner was found negligent in respect of these arms and ammunitions, yet from the facts, the offence under Section 409 read with Section 34 IPC clearly is made out. It is the case of the petitioner himself that the pistol and cartridges were entrusted to him. As per Rule 6.10 (3), every police officer is personally responsible for the safe custody and care of every weapon or accessory thereto which is issued to him, until it is returned to the custody of the incharge responsible for issuing it. Thus, the petitioner was not supposed to deposit the pistol and cartridges in the Malkhana and even if he was doing so, he was doing it at his own risk and cost. He was personally responsible for safe custody and care thereof until he returned the same to the officer who issued the same to him. In view of all these circumstances, it cannot be held that no offence is made out from the contents of the FIR. Therefore, there is no ground for quashing the same. The petition is dismissed accordingly. July 23, 2010 (GURDEV SINGH ) prem JUDGE