CHANDRAKANT DAMODAR SOPARKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution is by a Police Inspector taking exception to a finding of guilt recorded against him in a Departmental Enquiry and the punishment imposed therefore.

(2.) THE petitioner while working as a Sub-Inspector of Police at the Bandra Police Station arrested one Sachhidanand Shetty and his associate Vijay Maladkar on 1-5-1981. Shetty was released on bail in the evening and that was not to the liking of the petitioner. Petitioner expressed his dislike in language said to be unbecoming and improper and that gave rise to the initiation of disciplinary proceedings against him. Pending the commencement of a Departmental Enquiry petitioner on 17-10-1981 was placed under suspension. A charge-sheet was served upon him on 2-5-1982. Fourteen days later, the suspension was revoked. The Departmental Enquiry was conducted by an Assistant Commissioner of Police and in the course thereof witnesses were examined on either side. Only in respect of a part of one of the charges was the petitioner found guilty by the Enquiry Officer. To put it in the words of the said Officer:---

(3.) PETITIONER questions the modified finding and punishment. It is first contended that there was no evidence to show that the scribe of the application was the petitioner himself. Shetty who was supposed to have been instigated to append his signature to the application levelling allegations against the colleagues of the petitioner, went back on what was expected from him by the prosecution. He denied that the application containing allegations against petitioners colleagues had been made over to him by the petitioner. Faced with this position, the prosecution was compelled to rely upon the evidence of a Handwriting Expert. It appears that either some sample or admitted writings of the petitioner were used by the said Expert to appraise the disputed handwriting. Exception was taken by the petitioner to the opinion of the Handwriting Expert. What the Enquiry Officer felt about the objections raised by the petitioner and the opinion given by the Handwriting Expert, is not clear from his order at Ex. D. The Enquiry Officer filled up the lacuna by taking into consideration an admission contained in the preliminary statement of the petitioner. Mr. Apte, submits that the said preliminary statement could not have been used by the Enquiry Officer as there was no substantive evidence at the enquiry to show the making of such a statement by his client. It is not clear from the order of the Enquiry Officer as to whether or not such substantive evidence was or was not received. It is also not clear as to whether at the enquiry the petitioner was asked any question in regard to the preliminary statement. However nothing much turns upon this point, for the said preliminary statement was a part of the departmental proceedings and that being the position the Enquiry Officer was entitled to take it into consideration on the assumption that the same represented the statement given by the petitioner. Mr. Apte, however submits that even if the authorship of the application be established, what the prosecution had to further establish was its use by the petitioner and that could only be upon evidence that the application scribed by the petitioner had been made over by him to a member of the public with the object of getting that member to append his signature and forward it to the higher authorities so as to get his colleagues into trouble. Here, the Enquiry Officer himself held that there was no evidence of the application having been made over by the petitioner to any member of the public. Therefore, what could be said against the petitioner was that he had scribed an application levelling accusations against his colleagues for use by a member of the public. Until the application was handed over to a member of the public it was an act in the realm of preparation and not an attempt or commission of the offence. Counsel for the respondents submits that the applications being with Shetty was itself proof that he had come by it from the petitioner. In other words unless Shetty had received the application from the petitioner, he could not have been in possession thereof. Petitioner could not have handed over the application to Shetty except for the purpose that Shetty use it to get petitioners Colleagues into trouble. Shetty denied everything which went against the petitioner. His stand was that the application was not with him, that he had not received it and that petitioner had not made over the application to him. This being the position recourse could not be had to inferences and speculation as to how Shetty came to be in possession of the application. Going the farthest the conclusion would be that petitioner had scribed an application but eventually refrained from making it available to a member of the public so that the said person could use it to vilify petitioners colleagues. When an act is in the realm of preparation, the person so acting has time to retrace his steps. If the act is not furthered but remains in the realm of preparation it does not constitute an offence or an attempt to commit an offence. Petitioner was not therefore, guilty of breach of discipline or misconduct or an act rendering him unfit for the discharge of his duty. The finding of delinquency vis-a-vis charge No. 4 together with the punishment imposed cannot be sustained. Having regard to this exoneration coupled with petitioner having been absolved on the other charges, it is clear that there was no justification for the suspension imposed on the petitioner. Having been exonerated on all the counts petitioner would be entitled to the balance of the salary and allowances if any payable to him for the period spend under suspension. Petition allowed and the rule made absolute in the above terms with parties being left to bear their own costs. Petition allowed.