1 S.B.C.W. NO. 2637/2007 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.CIVIL WRIT PETITION NO. 2637/07 Jabbar Singh Vs. State of Rajasthan and Others. Date of Order : : 02.03.2009 HON'BLE MR. JUSTICE H.R. PANWAR Dr. S.S.Jodha for the petitioner. Mr. Sudhir Tak, Dy. Govt. Counsel for respondents. BY THE COURT By the instant writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order Annex.6 dated 2.5.2006 and order Annex.8 dated 30.12.2006. The facts and circumstances giving rise to the instant writ petition are that the respondents initiated inquiry against the petitioner under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short 'the CCA Rules' hereinafter) by serving memorandum of charges stating therein that the petitioner arrested accused Jitendra Singh in FIR No.26 dated 29.1.2006, P.S. Chopasani 2 S.B.C.W. NO. 2637/2007 Housing Board, Jodhpur City, for the offences under Sections 447, 427, 379 IPC on 7.2.2006 at 2.10 P.M., however, it was alleged that the petitioner was negligent in not making his proper search at the time of arrest and while he was away from police station in relation to investigation in different crime report, in his absence, the said accused was facilitated by some police constable to consume liquor in the upper story of the police station. Similar inquiry was also initiated against the police constable who alleged to have facilitated the accused in consuming liquor at police station namely Pabudan Singh, Puraram, Ranaram and Girdhari Singh. The inquiry officer held that the petitioner was negligent in discharging the duty to the extent that in his absence from police station, the constables named above facilitated the accused Jitendra Singh to consume liquor in the police station. On an inquiry against the constables aforementioned under Rule 16/ 18 of the CCA Rules, the disciplinary authority i.e. respondent Superintendent of Police, Jodhpur held that the consuming of liquor by accused Jitendra Singh at Police Station in the presence of constable Puraram, Pabudan Singh, Ranaram and Girdhari Singh, has not been established as there had not been any direct evidence that the accused consumed liquor at police station and those four constables have been exonerated as consuming of liquor by the accused in the police station was 3 S.B.C.W. NO. 2637/2007 not established by any direct evidence as per the report of the disciplinary authority i.e. Superintendent of Police, Jodhpur City vide Annex.P-11 dated 28.4.2007. The disciplinary authority inflicted the punishment of withholding of one annual grade increment without cumulative effect. On an appeal, the Appellate Authority Inspector General of Police, Jodhpur Range, Jodhpur did not interfere with the order passed by the disciplinary authority. Hence this writ petition. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the petitioner was a second officer, holding the post of Sub-Inspector, at Police Station, Chopasani Housing Board, Jodhpur. A first information report came to be lodged by Shri Satish Chandra Vedi against accused Jitendra Singh and others being FIR No. 26 dated 29.1.2006 for the offences of criminal trespass, mischief and theft. The concerned SHO of the Police station, handed over the investigation of the said case to the petitioner vide Annex.1. The petitioner ensued the investigation and since the offence of theft was non-bailable and cognizable, the petitioner while discharging his official duties as Investigating Officer, arrested the accused of the case namely Jitendra Singh and recorded the arrest of the accused in the Rojnamcha. The accused was handed over to the Santari of the Police Station by lodging him in custody. 4 S.B.C.W. NO. 2637/2007 The petitioner has filed a detailed reply to the inquiry narrating the facts that the accused Jitendra Singh was arrested and it was recorded in the Rojnamcha Report No.290 at 2.10 PM dated 7.2.2006. The accused was searched and after search, he was locked in the accused custody room and thereafter the SHO assigned the petitioner an inquiry in respect of some different case and therefore, he went with the SHO directing the police constable on Santari duty to guard the accused in custody. Thereafter the petitioner interrogated the accused and on interrogation the accused furnished information under Section 27 of the Evidence Act voluntarily to the effect that he is prepared to get the stolen articles recovered as also to verify the place from where he has stolen the alleged articles and the report to that effect was made in the case diary as also in the Rojnamcha and in pursuance thereof and at the instance of the accused, recovery of stolen articles was effected. So far as the allegation against the petitioner that in his absence from police station, certain constables facilitated accused Jitendra Singh to consume liquor in police station, the petitioner categorically came with a case that at any rate the petitioner is not responsible for that as at the relevant time he was neither the Station House Officer of the said police station nor in any manner connected with such consumption of liquor by accused. It is contended by learned counsel for the 5 S.B.C.W. NO. 2637/2007 petitioner that if at all any liquor was consumed by accused, it was responsibility of the police constable on duty at the police station and who alleged to have joined in consuming the liquor at police station namely Pabudan Singh, Puraram, Ranaram and Girdhari Singh against whom there is allegation of facilitating the accused to consume liquor in the police station and on such allegation, an inquiry under Rule 16/18 of the CCA Rules was initiated and in that inquiry the Superintendent of Police, disciplinary authority, by elaborate order Annex.11 concluded that it has not been established that the accused Jitendra Singh consumed the liquor in the police station. If that be so, then the very basis of holding the petitioner guilty of the charge that in his absence from the police station, the accused was facilitated to consume liquor falls flat. I have carefully gone through the order Annex.11. The District Superintendent of Police, Jodhpur in an inquiry against four constables named above under Rule 16/18 of the CCA Rules specifically held that it has not been established by direct evidence that the accused consumed the liquor at police station and exonerated them from the charge. When the allegation of facilitating accused Jitendra to consume liquor at the police station after having been arrested is against four police constable aforesaid and very disciplinary authority concluded that it has not been established by any evidence 6 S.B.C.W. NO. 2637/2007 that the accused consumed liquor at police station in presence of those four constable, then for very allegation how the petitioner could be held guilty of the charge. Learned counsel appearing for the respondent State does not dispute the findings arrived at by the disciplinary authority i.e. Superintendent of Police, Jodhpur City vide Annex.11 dated 28.4.2007 holding therein that it has not been established by direct evidence that the accused consumed liquor at police station in presence of four constables Puraram, Pabudan Singh, Ranaram and Girdhari Singh. If that be the position, then in my view, the findings recorded against the petitioner is not only contrary to the evidence available on record but contrary to the findings recorded by the disciplinary authority itself vide Annex.11 dated 28.4.07. The disciplinary authority cannot have two different standards for arriving at conclusion on same set of evidence. So far as the petitioner is concerned, there being no evidence better than the evidence against aforesaid four police constable. At any rate, it is not the case of the respondent State that while accused Jitendra Singh had occasion to consume the liquor at police station, the petitioner was either incharge of the police station i.e. Station House Officer or was present at the police station. Even it is the case of the respondents that at the relevant time of alleged consuming of 7 S.B.C.W. NO. 2637/2007 liquor by accused, the petitioner was not at police station. So far as arrest of accused Jitendra Singh is concerned, the petitioner was assigned the investigation of the case. The offence was non-bailable i.e. offence of theft and therefore, the question of recovery was involved, in my view, the petitioner in exercise of the power conferred under Cr. P.C., has rightly arrested the accused and lodged him in police custody which has been recorded in the Rojnamcha Report No.290 at 2.10 PM on 7.2.2006 and subsequently the investigation carried out by him also reveals that the accused furnished information voluntarily under Section 27 of the Evidence Act to the petitioner which was reduced to writing and on such furnishing of the information by the accused, the accused was taken to the place where the stolen articles were concealed and at the instance and in pursuance of the information furnished by the accused, the recovery of the stolen articles was effected and for which relevant Fards were prepared. Taking of accused from the custody to the place of recovery and effecting the recovery has also been recorded in the Rojnamcha Report of the police station. Thus from the material available on record, there appears to be no evidence worth accepting to hold that the petitioner was negligent at any stage of the investigation in the crime report. So far as sending the information to the higher authorities is concerned, 8 S.B.C.W. NO. 2637/2007 the Rajnamcha clearly reveals that the information of the lodging of the crime report was sent and arrest of the accused on 7.2.2006 at 2.10 PM was reported to the Control Room of the police by E.mail. An affidavit to that effect has been filed by some Narsingh Ram, Constable who was at the relevant time posted as Computer Operator at P.S. Chopasani Housing Baord, Annex.9 and that document remained uncontroverted. Even the respondents failed to show as to how on the same set of evidence four constable named above against whom specific allegation that they facilitated the accused Jitendra Singh to consume liquor and they themselves consumed liquor with him, which has not been proved and they have been exonerated by the very disciplinary authority, then how without there being any evidence of consuming liquor by accused at police station though in the absence of the petitioner as per respondents, the petitioner can be held responsible for that. In the circumstances, therefore, the conclusion arrived at by the disciplinary authority is wholly based on surmises and conjectures and has no support of evidence and therefore, cannot be sustained. So is the case of appellate authority. The appellate authority did not advert to the material evidence and without application of mind concurred with the findings arrived at by the disciplinary authority which perse appears to be illegal for want of 9 S.B.C.W. NO. 2637/2007 requisite evidence. In the circumstances, therefore, in my view, the order dated 2.5.2006 (Annex.6) passed by the disciplinary authority as well as the order dated 30.12.2006 (Annex.8) passed by appellate authority cannot sustained and are liable to be quashed. Consequently, the writ petition is allowed. The order impugned dated 2.5.2006 (Annex.6) passed by the disciplinary authority as well as the order impugned dated 30.12.2006 (Annex.8) passed by appellate authority are hereby quashed. There shall be no order as to costs. (H.R. PANWAR), J. Rp