BHAURAO DAGADU THAKUR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS second appeal referred to this Division Bench raises a short question about the effect of the order of acquittal recorded in favour of a public servant on the departmental proceedings instituted against him on the basis of the same facts. The appellant was recruited to the armed constabulary of the then State of Bombay on or about June 20, 1940. On August 1, 1941 he was transferred, to the unarmed police force and, in due course came to be posted at Nawapur Police Station on or about May 1, 1957 as constable. In the year 1958 he was assigned the duty of detecting gambling cases. It appears that two or three cases detected by him ultimately resulted in the conviction and in one such case one Magan Bhika was tried and convicted on March 27, 1958.

(2.) HOWEVER , on April 14, 1958 on the complaint of one Limji, P.S.I. Anti -corruption Police laid a trap and the accused was caught red handed, while accepting bribe of Rs. 5 from the said Limji. After investigation he was tried before the Special Judge at Dhulia in Special Case No. 4 of 1958 for offence under Section 161, Indian Penal Code and acquitted on November 8, 1958. No appeal was preferred by the State against this order of acquittal. However, departmental proceedings were instituted against him by framing a charge on February 11, 1959 calling upon him to show cause why he should not be dismissed on account of his having accepted bribe of Rs. 5 on April 14, 1958 from the said Limji. S.D.P.O., Nandurbar held the inquiry as Inquiry Officer against the appellant and on his report dated April 26, 1959 the District Superintendent of Police, Dhulia, passed an order of dismissal, after giving second opportunity to him to show cause against the proposed action. His appeal to the Deputy Inspector General of Police was dismissed on August 8, 1959 and his revision to the State also was rejected, by the State Government on May 21, 1960. He, therefore, instituted the present suit on October 16, 1961, for a declaration that the order of dismissal passed against him was void and unenforceable and for a further declaration that be continued to be in service. He also asked for a decree for arrears of his salary. The Civil Judge, Senior Division, Dhulia, decreed his suit on March 26, 1962. However, on appeal by the State, the Extra Assistant Judge, Dhulia, allowed the same and the decree passed in his favour was set aside on October 4, 1963. The legality and validity of this judgment and decree is challenged in this second appeal.

(3.) MR . Khare then contends that finding of the Special Judge negativing the story of the appellant having taken bribe is binding on the dismissing authority and it was not open to him to record a contrary finding and accept the evidence of those whose evidence was discarded by the Special Judge. This contention, to our mind, also is equally misconceived. The Rides in this behalf themselves speak to the contrary. Rule 445 of Chapter XIII of the Bombay Police Manual, Volume I, on page 392 itself requires such authority to consider whether such acquitted public servant should be retained in service. It is not suggested that this rule is invalid or is violative of any constitutional or legal provision. Under this rule, the competent dismissing authority is entitled to hold inquiry and consider the evidence taken afresh for deciding as to whether such servant should be retained, in service or not. The order of acquittal or the finding recorded by the criminal Court in such cases cannot be conclusive of the allegations made against such person. The acquittal order may be based on any technical point, such as the defect in the charge or any defect in the procedure. The acquittal may some times result as a result of some doubt in the mind, of the Court, which may not feel it safe to convict the person and send him to jail and may feel it safe to give benefit of doubt to such an accused. The order of acquittal may also be the result of the witnesses at the trial turning hostile and deposing in the Court contrary to what they had stated before the investigating agency at the earliest available opportunity, when the facts were fresh in their minds and when any thought of twisting them or manoeuvring them could not have even arisen. The Prosecutor sometimes chooses to produce only some pieces of evidence and the opinion recorded by the trial Court in such cases cannot be conclusive of other pieces of evidence, not produced before such Court.