DALABHAI BHIMABHAI PATEL Vs. DEPUTY COMMISSIONER OF POLICE

JUDGEMENT

(1.) In this petition under Art. 226 of the Constitution, the petitioner has brought in challenge the departmental inquiry initiated against him pursuant to the charge-sheet at Annexure 'C' dated 15-5-1980. The charge-sheet is issued on the ground that on the night of 14-2-1976, the petitioner had misbehaved in a manner which was not becoming of a Police Officer. The petitioner's case is that he was appointed as Armed Police Constable in 1964 and he was carrying on his duties honestly and diligently. That on the night of 14-2-1976, he was alleged to have indulged in committing offences punishable under Secs. 376 and 452 of the I. P. Code on the allegation that he had forcibly entered the house of Police Constable Mohansinh in his absence and had committed rape on the wife of Mohansinh Survisinh. For this alleged offence, he was tried before the City Sessions Court No. 3 in Sessions Case no, 80 of 1976. The learned Sessions Judge convicted the petitioner of the offence and sentenced him to suffer R. I. for a period of one year and to pay fine of Rs. 100.00; in default, to undergo further R. I. for a period of one month for the offence under Sec. 452, I. P. Code. He was further sentenced to suffer R. I. for three years and to pay fine of Rs. 300.00 in default, to undergo further R. I. for three months for the offence under Sec. 376, I. P. ode. The petitioner carried the matter in appeal in this Court being Criminal Appeal No. 901 of 1976. The appeal was allowed by the Court (Coram : R. C. Mankad, J.), by his judgment and order dated 4/5/-7-1978 whereby the petitioner was acquitted of the charges levelled against him.

(2.) During the pendency of the criminal proceedings, the petitioner was suspended from service. However, in view of the acquittal rendered by this Court, he was reinstated in service by an order dated 24-8-1979 and thereafter, he has continuously remained in police force. The petitioner's further case is that despite acquittal rendered by this Court, for the very same incident, a charge-sheet was issued to him on 15-5-1980 informing him that a departmental inquiry will be held against him for his alleged misconduct. That charge-sheet at Annexure 'C' is impugned in the present proceedings. This Court (P. D. Desai, J., as he then was) admitted this petition to final hearing and continued the ad interim relief against holding of departmental proceedings pursuant to the impugned chargesheet as earlier granted at notice stage. This petition has now reached final hearing before me. It has been resisted by the respondents by filing affidavit-in-reply of Mr. R. C. Dimri, Deputy Commissioner of Police, Ahmedabad City.

(3.) The contention of the petitioner is that for the very same incident, this Court acquitted him the charges levelled against him emanating from the incident, which is said to have taken place on the night of 14-2-1976 in the house of Mohansinh and, therefore, for the same incident, departmental proceedings cannot be initiated against him. Miss Doshit for the respondents has resisted this contention and submitted that the petitioner was acquitted of the charges under Secs. 376 and 452 of the I. P. Code and, therefore, departmental proceedings could not have been initiated on the allegation that he was guilty of having committed the act of criminal trespass or rape on the wife of the said Mohansinh. But even apart from these allegations, the present departmental inquiry is based on the ground that on that fateful night, the petitioner being a member of police force had behaved in a manner which was unbecoming of a Police Officer and such inquiry cannot be said to be barred only because the petitioner was acquitted of the charges of criminal trespass and rape. Reliance in this connection is placed by Miss Doshit on my decision in the case of Thakore Chandrasinh Taktsinh v. State of Gujarat, [1985 (2)] XXVI (2) GLR 701 wherein a view has been taken that even if there is acquittal by a Criminal Court of a charge under Sec. 366, I. P. Code, departmental proceedings on the ground that the delinquent's conduct was unbecoming of a Police Officer can be validly instituted and proceeded further. Consequently, it cannot be said that because of acquittal of the petitioner of the charges under Sec. 376 and 452 of the I. P. Code, no department inquiry could be held against him on the ground of his alleged independent misconduct emanating from the action which showed that his conduct was unbecoming of a Police Officer. Miss Doshit is right so far as this submission goes. However, the difficulty which lies in the way of the respondents is projected by the very charge-sheet issued to him At Annexure 'C'. It would be useful to exactly know what is alleged against him in the impugned charge-sheet. The main allegations in the impugned charge-sheet when translated into English read as under : "While the delinquent-Armed Police Constable Dalalbhai Bhikhabhai No. 1033 was serving in the Police head-quarters at Shahibag, Ahmedabad, he was found between 11-30 p.m. and 11-45 p.m. on the night of 14-2-1976 in the house of Police Constable Mohansinh Survisinh in his absence, having put on Lungi and white Bush-shirt. Thus, the delinquent had behaved in the manner which was unbecoming of a Police Officer and consequently, it was decided to hold a departmental inquiry against him." Even assuming that is alleged in this charge-sheet to be gospel truth, it becomes at once clear that what is alleged against him in no case would amount to any misconduct or his involvement in the conduct not becoming of a Police Officer. If he was found in the house of another Police Constable at night time in the absence of owner of the house and had put on Lungi and White Bush-shirt, even so, these are circumstances which by themselves and without anything more, would not amount to any conduct unbecoming of a Police Officer. No rule or any statutory provision was brought to my notice to indicate that it was a misconduct on the part of a Police Officer to put on a Lungi and White Bush-shirt and to visit the house of some other Police Constable at night time. Consequently, even on the allegations mentioned in the charge-sheet, it cannot be said that the petitioner had indulged in a conduct which was unbecoming of a Police Officer. Miss Doshit for the respondents submitted that this charge-sheet is issued to the petitioner getting a due from the decision of this Court acquitting the petitioner of the charges under Secs. 376 and 452 of the I. P. Code as the High Court found that the prosecutrix cannot be believed when she stated that she was subjected to rape by the petitioner and that the petitioner had made forcible entry in her house in the absence of her husband and that it has been observed by this Court that there was no doubt that the petitioner had visited Mohanbhai's house at about 11-30 p.m. There is also no doubt that something had happened while the petitioner was in the house which made the prosecutrix to close the door of the kitchen when the petitioner was inside it and to come out of the house and raise shouts. It is difficult to speculate about the reasons which promoted the prosecutrix to behave in the above manner. Miss Doshit submitted that the authorities were justified in taking the view in the light of the aforesaid finding of this Court that even though the petitioner may not be guilty of offence of rape or criminal trespass, still, if he had sexual intercourse with Mohansinh's wife with her consent, it would certainly be a conduct not befitting a Police Officer and for that purpose, a departmental inquiry can validly be held against him. To that extent, she is right. However, unfortunately for the respondents, the charge-sheet issued to the petitioner does not reflect this type of charge or allegations which can be treated to be reflecting any conduct which is not befitting a Police officer. Whatever might have passed in the mind of the authorities while issuing the charge-sheet, when the stage came to serving the charge-sheet by putting main allegations in black and white, the main misconduct if any was given a go-bye and a very peculiar charge-sheet was served on the petitioner which does not reflect even an iota of allegations about the conduct which was befitting a Police Officer. Therefore, as the charge-sheet stands, it does not even allege any conduct which can be treated to be a misconduct on the part of the petitioner. Consequently, it must be held that the charge-sheet itself is ex-facie contrary to the relevant discipline and appeal rules. Hence, it is patently illegal, inoperative, void and otiose. Only on this short ground, this petition is required to be allowed. The impugned charge-sheet at Annexure 'C' is quashed and set aside and the respondents are permanently restrained from holding any departmental inquiry against the petitioner pursuant to the impugned charge-sheet. Rule is made absolute with no order as to costs.