U.V. Bakre, J.
Rule. Rule is made returnable forthwith.
Counsel for the respondents waive notice. By consent, heard finally forthwith.
2. By this Writ Petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 12/3/2012, passed by the State Police Complaints Authority, Altinho, Panaji-Goa, as against the petitioner and also the Charge Memorandum bearing No. DE-16/2012/6747/2012 dated 31/7/2012 issued by the Office of Director General of Police, Goa, pursuant to the impugned order dated 12/3/2012 passed by the State Police Complaints Authority.
3. The Respondent no. 3 had filed a complaint dated 06/08/2007 to State Police Complaints Authority (S.P.C.A.). alleging that on 8/7/2005 when he had questioned one Ramanand Chodankar about the cutting of bhendi tree by him from the property of respondent no. 3, said Ramanand came and assaulted him with a koita on his left forearm as result of which he suffered injuries. It was further alleged in the said complaint that thereafter he was referred by Old Goa Police to Goa Medical College, Bambolim and thereafter when he came back to Old Goa Police Station to lodge complaint against said Ramanand, the Police Inspector Shri G. N. Gawade refused to entertain his complaint and instead of registering the complaint against said Ramanand Chodankar, he directed ASI S. L. Hunashikatti to arrest him under section 151 of the Code of Criminal Procedure. He further alleged that accordingly he was arrested on 8/7/2005 and was released on bail on 9/7/2005. The respondent no. 3 stated that the Old Goa Police were encouraging said Ramanand in all his illegal activities, at the instance of P. I. Gawade. He further stated about the complaint filed by him to the Superintendent of Police, North Goa, dated 16/7/05, regarding the said incidence, after which the S. P., North had conducted inquiry and directed the Old Goa Police to register his complaint and accordingly F.I.R. dated 08/08/05 bearing no. 62/2005 under Section 324 of IPC came to be registered against the said Ramanand Chodankar.
4. The S.P.C.A had issued notices to the petitioner who was the Police Inspector of Old Goa Police Station, at the relevant time and Shri S. L. Hunashikatti, the then Assistant Sub-Inspector of the said Police Station. They filed their replies. Points for determination were framed and evidence was recorded. Respondent no. 3 examined himself, one Tukaram Gurav and one Suresh Shet. The petitioner and said S. L. Hunashikatti examined themselves. Shri Hunashikatti also examined one Police Constable, namely Datta Verlekar.
5. Upon assessment of the entire evidence, the S.P.C.A held that the petitioner and Shri S. L. Hunashikatti had both consciously displayed absolute lack of professionalism in dealing with the case and had incurred civil and criminal liability, besides gross disciplinary breach of their statutory obligations, on charges of serious misconduct and abuse/misuse of authority. The petitioner and the said S. L. Hunashikatti were held responsible for illegal detention of respondent no. 3. The S.P.C.A by report dated 12/3/2012 directed the State Government to take all the required steps to institute competent criminal and disciplinary proceedings against Police Inspector G. N. Gawade and the then Assistant Sub-Inspector S. L. Hunashikatti, both of Old Goa Police Station, within a period of six months from the date of receipt of the order and to report positive compliance accordingly.
6. During the pendency of the petition, on 1/8/2012, the petitioner was served with a copy of the Charge Memorandum pursuant to the directions dated 12/3/2012 issued by the S.P.C.A. Hence, by way of amendment, the petitioner has also challenged the said Charge Memorandum.
7. Case of the petitioner, in short, is as follows:
On 8/7/2005 at 12.15 hours, the petitioner along with P.S.I. T. Lotleikar had gone for Assembly Bandobast duty at Panaji, as per the directions of Superintendent of Police, North Goa. On the same day at 12.00 hours, one Ramanand Chodankar had filed complaint against respondent no. 3 for having assaulted him with fist blows and also destroyed his property by entering into Kinara Bar and Restaurant which came to be registered as N.C. Case No. 333/2005. On 9/5/2005 at 15.45 hours, respondent no. 3 was arrested by A.S.I. Shri S. L. Hunashikatti under section 151 of Cr. P.C. and a Chapter Case was filed before the Sub Divisional Magistrate, Panaji bearing Chapter Case No. 48/2005 against respondent no. 3. On 16/7/2005, respondent no. 3 filed complaint before the Superintendent of Police, North Goa regarding non-registration of his complaint by Old Goa Police Station. On 8/8/2004, F.I.R was registered against said Ramanand Chodankar bearing No. 62/2004 under section 324 of Indian Penal Code by Old Goa Police Station. No complaint was lodged by respondent no. 3 on 8/7/2005 and even, thereafter, before the Old Goa Police Station, only the complaint dated 16/7/2004 was filed before the Superintendent of Police, North Goa. Since the same was forwarded to the petitioner, offence was registered against Ramanand Chodankar, under F.I.R. no. 62/2005 for offence punishable under section 324 of IPC. Charge-sheet has been filed before the Chief Judicial Magistrate against said Ramanand Chodankar by A.S.I S.L. Hunashikatti and the same is pending.
8. The petitioner alleged that on the date of the incident i.e. on 8/7/2005, he was not at the police station. According to him, the impugned order dated 12/3/2012 is illegal, perverse and without jurisdiction. The petitioner says that the evidence has not been appreciated properly and that the station diary entry made on 8/7/2005 clearly establishes that the petitioner had proceeded for bandobast duty on 8/7/2004 at 12.15 hours. He further stated that merely because he held the post of Police Inspector of Old Goa Police Station, he cannot be jointly held responsible for any act committed by the Station House Officer namely Shri S. L. Hunashikatti. The petitioner further stated that a Memorandum was issued to said A.S.I. under Rule 5 of Goa Police Subordinate Service (Discipline and Appeal) Rules, 1975 by the District Superintendent of Police North for the incident that had occurred on 8/7/2004 and after conducting inquiry, Shri S. L. Hunashikatti was found guilty and was awarded censure for his misconduct.
9. The petitioner further stated that the S.P.C.A has been given powers either to initiate departmental or criminal proceedings against the delinquent police officer and thus could have recommended either of the two and in no case could have issued recommendation both for departmental and criminal proceedings. The petitioner, therefore alleged that the order of S.P.C.A and the Charge Memorandum are both liable to be quashed and set aside.
10. The Respondent no. 4 filed Affidavit-in-Reply on behalf of the respondents no.1, 2 and 4. In his affidavit, he has, inter alia, stated as follows:
The Government of Goa through the Department of Home vide Order bearing No. 2/51/2006-HD(G) dated 03/04/2007, published in the Official Gazette dated 19/4/2007, Series II, No.3, constituted the State Level Police Complaints Authority. This order dated 3/04/2007 was issued pursuant to the judgment dated 22/9/2006 of the Hon'ble Supreme Court of India in Writ Petition (Civil) No. 310 of 1996 in the case of âPrakashSingh and Ors. Vs. Union of India and Ors.â reported in [(2006) 8 SCC 1]. The order dated 3/04/2007 constituting the Commission has to be read in consonance with the said judgment of the Hon'ble Supreme Court. The said judgment, in clear terms, states that recommendations of the Complaints Authority, both at the District as well as the State level, for any action, Departmental or Criminal, against a delinquent police officer shall be binding on the authority concerned. Therefore, once the recommendation is made by the S.P.C.A., by order dated 12/03/2012, to take all the required steps to institute competent criminal and disciplinary proceedings against the petitioner, the respondent no. 4 was duty bound to do so. Though the petition was filed on 3/5/2005, no interim relief has been granted in favour of the petitioner and, therefore, the respondent no. 4 was duty bound to issue the Charge Memorandum. Therefore, the challenge to the charge memorandum is completely unfounded. The contention of the petitioner that the S.P.C.A. has been given powers to initiate departmental or criminal action against the delinquent police officer is a complete misreading and misinterpretation of the order.
11. The respondent no. 3 did not file any reply.
12. Heard the learned counsel for the parties.
13. Mr. G. F. Teles, the learned counsel for the petitioner, invited our attention to the station diary dated 8/7/2004 and more particularly to the entry at serial no. 23 which states that P.I., P.S.I Tushar, H.C â 3025, 2874, 1664 and P.Cs whose buckle numbers are mentioned in the said entry had left on 8/7/2005 at 12.15 hours for assembly bandobast duty. He then took us to the station diary entry at serial no. 33 of the same date, i.e. 08/7/2005 which reveals that the said police officers returned to the police station from assembly bandobast duty at 17.30 hours. Mr. Teles then submitted that, in his evidence, the respondent no. 3 has stated that he was brought back to the police station after being treated by the doctor at about 3.00 to 3.30 p.m. and that he did not meet any P.I. by name G. N. Gawade and that he met the respondent no. 2, Shri S. L. Hunashikatti, Assistant Sub-Inspector, before whom he was taken as soon as he reached the police station. The learned counsel for the petitioner contended that even the S.P.C.A. was not sure whether the petitioner had committed any wrong. He invited our attention to paragraphs 18 and 19 of the impugned order, in this regard. Mr. Teles argued that the alleged incident of assault on respondent no. 3 had taken placed at 13.00 hours and that after the petitioner had returned to the police station at 15.45 hours, A.S.I, Shri S. L. Hunashikatti had told him as to what had happened and had asked asked him as to what he should do and the petitioner, naturally, had advised him to take preventive action. Mr. Teles contended that such a defence was taken by the petitioner in his reply as well as in his evidence, before the S.P.C.A. He argued that the situation at the relevant time was as told by A.S.I. Shri S. L. Hunashikatti, and, therefore, the guidance given by the petitioner was in terms of the said situation explained to him. He further submitted that the petitioner was arrested in order to prevent him from committing cognizable offence and not because non-cognizable complaint was lodged against him. He further argued that by order dated 18/11/2005, the District Superintendent of Police North Goa had held A.S.I, Shri S. L. Hunashikatti responsible and had confirmed the penalty of censure proposed vide Memorandum dated 12/9/2005. He contended that no such inquiry was held against the petitioner and this shows that the higher authorities had found only A.S.I, Shri S. L. Hunashikatti, guilty and not the petitioner. He, therefore, submitted that the order dated 12/3/2012 passed by the S.P.C.A is illegal, perverse and contrary to the evidence on record, and, therefore, is liable to be quashed and set aside. He further contended that since the charge memorandum is pursuant to the said order dated 12/3/2012, the same is also liable to be quashed and set aside.
14. Mr. G. Teles further submitted that as per the Notification dated 3/04/2007 issued by the Department of Home, the S.P.C.A. could have recommended either departmental proceedings or criminal proceedings, but not both and, therefore, on this ground also, the impugned order dated 12/3/2012 is liable to be quashed and set aside.
15. Mr. A. N. S. Nadkarni, the learned Advocate General, appearing on behalf of the respondents no. 1, 2 and 4, argued that the said Notification dated 3/04/2007 issued by the Department of Home is pursuant to the directions issued by the Apex Court in the judgment dated 22/9/2006 in the matter of âPraskashSingh Vs. Union of India and othersâ. He produced a copy of the said judgment reported in (2006) 8 SCC 1 and pointed out that the Apex Court, under Article 32 read with Article 142 of the Constitution, has issued the directions to the Central Government, State Government and Union Territories for compliance till framing of appropriate legislations. One such direction is to constitute the Police Complaints Authority at the District level and at the State level to look into the complaints against the police officers. He pointed out that as per the direction of the Hon'ble Supreme Court, vide the said judgment, the recommendations of the Complaints Authority both at the District and State Government level, for any action, departmental or criminal against a delinquent police officer shall be binding on the authority concerned. He further argued that the State Government has issued the said Notification dated 3/04/2007 under Article 144 of the Constitution of India. According to learned Advocate General, the directions of the Apex Court are very clear and in terms of the same, the recommendation of the S.P.C.A. for departmental as well as criminal action is binding on the authority. He submitted that composite action is not barred.
16. Mr. Shivan Dessai, the learned counsel appearing on behalf of the respondent no. 3, submitted that the petitioner is not justifying the arrest of the respondent no. 3, but is passing the blame on A.S.I., Shri S. L. Hunashikatti, who is not a party to this writ petition. He pointed out from the evidence of the petitioner that according to him, he took steps to take preventive action under section 151 of Cr. P.C. against respondent no. 3, in order to avoid further commission of cognizable offence, since complaint of Ramanand N. Chodankar was registered as Non-Cognizable Case no. 33/2005 under sections 323 and 504 of I.P.C. He argued that the respondent no. 3 was assaulted with a koita and had actually sustained lacerated wound by means of a sharp weapon whereas, Mr. Ramanand Chodankar had not sustained any injury inspite of which the respondent no. 3 was arrested and the accused Ramanand who did not even want to go to the hospital was not arrested. He argued that the conduct of the petitioner is sufficient to prove abuse of powers under section 151 of Cr. P.C. He argued that the S.P.C.A has considered all the facts which came on record through the evidence, minutely and has concluded that the petitioner is responsible for the illegal arrest of respondent no. 3 and, therefore, has recommended institution of competent criminal and disciplinary proceedings against the petitioner as well as the A.S.I., Shri S. L. Hunashikatti. Mr. Dessai relied upon the following Judgments:
(i) âAntonio Sebastiao Mervyn Vs. State of Goa and Orsâ [2009 (1) BCR (Cri) 391]
(ii) âAnupSingh Vs. State of Himachal Pradeshâ (AIR 1995 SC 1941).
17. We have perused the impugned Order dated 12/3/20012 passed by S.P.C.A., the averments made in the petition, affidavit-in-reply filed by the respondent no. 4, the documents on record and the judgments cited by the learned counsel for the parties.
18. Insofar as the contention of learned counsel for the petitioner that S.P.C.A. could not have recommended both departmental as well as criminal proceedings against the petitioner and that under the Notification dated 3/04/2007, the S.P.C.A. could have recommended either departmental or criminal proceedings, is concerned, the same, in our view, is misconceived and not tenable. The said Notification No. 12/51/2006-HD(G) dated 3/04/2007 has been issued in pursuance of the directions issued by the Hon'ble Supreme Court of India in the judgment dated 22/9/1996 in Writ Petition (Civil) No. 310/1996, between âPrakash Singh and others Vs. Union of India and othersâ, reported in [(2006) 8 SCC 1]. It is consequent upon the said judgment that the State Government has constituted the State Level Police Complaints Authority. In the case of âPrakash Singh and othersâ (supra), the Apex Court has issued a direction that the recommendations of the Complaints Authority both at the District and State levels for any action, departmental or criminal, against a delinquent police office, shall be binding on the authority concerned. The same words have been used by the State Government in the said Notification dated 3/04/2007. The expression âfor any action, departmental or criminalâ would mean action by way of departmental proceedings as well as criminal proceedings or by way of either departmental proceedings or criminal proceedings. The said expression cannot be interpreted to mean âfor any action, either departmental or criminalâ. As rightly contended by the learned Advocate General, composite action is not barred. In our considered opinion, there is no force in the above contention of the learned counsel for the petitioner that the impugned order is liable to be set aside, since S.P.C.A has recommended both departmental and criminal action against the petitioners.
19. It is seen from the reply and Affidavit-in-Evidence of the petitioner, filed before the S.P.C.A, that according to him, he advised S. L. Hunashikatti to take appropriate action against the respondent no. 3 and that after respondent no. 3 was brought back to Old Goa Police Station, in order to avoid further commission of cognizable offence and due to imminent danger, respondent no. 3 was placed under arrest by Shri S. L. Hunashikatti under section 151 of Cr.P.C. after observing all the Supreme Court guidelines regarding arrest. In fact, a non-cognizable complaint bearing no. 333/2005 under sections 323, 504 and 427 of I.P.C. was registered against respondent no. 3. No cognizable offence was registered against him. Inspite of that, the petitioner has alleged that in order to avoid further commission of cognizable offence, the respondent no. 3 was placed under arrest under section 151 of Cr.P.C. However, in his cross-examination, the petitioner has stated that he told A.S.I. S. L. Hunashikatti, to take appropriate steps to avoid commission of cognizable offence. When he was asked as to what are those appropriate steps, the petitioner answered as follows:
âAs complaint of Ramanand Narayan Chodankar was registered as non-cognizable complaint no. 33/2005, under section 323 and 504 I.P.C against the present petitioner (i.e. respondent no. 3), before the authority and in order to avoid further commission of cognizable offence and to take preventive action under section 151 of Cr. P.C.â
20. Thus, in the reply and in the Affidavit-in-Evidence, the petitioner alleged that he had told Shri Hunashikatti only to take âappropriate actionâ, but in his cross-examination, he says that he had told Shri Hunashikatti to take âsteps to avoid commission of cognizable offenceâ. The petitioner, in his cross-examination, further explains that he told Shri Hunashkatti to take âpreventive action under section 151 of Cr.P.Câ. In order that Section 151 of Cr.P.C. may apply, the following conditions must be satisfied:
(i) There must be a design to commit a particular offence, which is cognizable;
(ii) The police officer must have knowledge of that design;
(iii) The person to be arrested must be party to that design; and
(iv) It must appear to the police officer that the commission of the offence cannot be prevented otherwise than by such arrest.
21. An arrest made without the emergency contemplated by Section 151 of Cr.P.C. is illegal. It is very difficult to understand as to why though only non-cognizable case was registered against respondent no. 3, it was felt that the respondent no. 3 should be arrested by way of preventive action under section 151 of Cr.P.C., after he returned from the hospital, without even recording his statement to know as to how he sustained an injury by means of sharp object. The arrest of the respondent no. 3 under section 151 of Cr.P.C. appears to be very casual.
22. In the case of âAntonio Sebastiao Mervynâ (supra), the Division Bench of this Court has referred to the judgment of the Hon'ble Supreme Court in the case of âJogindarKumar Vs. State of U.Pâ reported in A.I.R. 1994 SC 1349, wherein, inter alia, it is observed as under:
âNo arrest can be made merely because it is lawful for the police officer to do so. It is well settled that the existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. â¦...................................
A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.â
23. In the case of âAnup Singh and othersâ(supra), the appellant Anup Singh was Assistant Sub-Inspector, in-charge of the Police Post Kasumpti, close to Simla. He and the other two appellants, who were constables attached to the same Police Post and under the control of Anup Singh, were tried for offences punishable under sections 217, 330 and 348 read with section 34 of I.P.C. on the allegations that one Bhagwan Singh was confined by them in their police post from 30/8/1975 to 12/9/1975 and during this period, he was caused various hurts in order to detect a crime of theft reported at the police station by one Prem Singh, having taken place in his village Shilla, of which the detenue was a suspect. Insofar as Anup Singh was concerned, it was contended by the learned Senior Counsel appearing for him that he does not figure anywhere physically in the prosecution case and his conviction has been recorded barely on inferences. The Hon'ble Supreme Court observed that the argument prima facie appears to be attractive, but on a close scrutiny does not stand the test of reasonableness. The Apex Court further observed that it is not denied that Anup Singh was the In-charge of the Police Outpost and whilst so, the In-charge of the Lock-up. The Hon'ble Supreme Court further observed that being the In-charge, Anup Singh was supposed to come to the police station at one time or the other during 24 hours of the day. The Apex Court held that leaving apart his civil or departmental liability to be accountable for all what happens in the police outpost, Anup cannot escape to say that the criminal deeds committed by his constable are confined to the constable alone, when those deeds are committed with his tacit consent and connivance.
24. It may be that the petitioner was out for Assembly bandobast duty between 12.15 hours and 17.30 hours on 8/7/2005, but admittedly on the same day at 17.30 hours, he had returned to the police station. In paragraph 5 of the reply filed by ASI S.L. Hunashikatti, before S.P.C.A., he has stated that after medical examination of Namdeo Chodankar (respondent no.3), he informed the facts to P.I. G. N. Gawade (petitioner), on his mobile phone who was deployed for Assembly law and order bandobast duty, and P.I. Gawade directed him to arrest Namdeo under section 151 of Cr.P.C.to prevent him from committing further serious crime in the locality and that as per the instructions of Shri G. N. Gawade, Shri Namdeo Chodankar was placed under arrest under section 151 of Cr.P.C. in order to avoid commission of serious cognizable offence. The deposition of Shri Hunashikatti is on same lines. The petitioner had admitted before S.P.C.A., in his cross-examination, that the action taken by ASI Hunashikatti, consequent upon Ramanand's complaint, in putting the respondent no. 3 in the police lock up after arrest as a preventive measure was taken with his knowledge and consent. It was the duty of the petitioner to have inquired about respondent no. 3, after coming back to the police station and to have found out whether his statement was recorded to know as to how he had sustained lacerated injury and considered whether his detention was necessary or not. Admittedly, the respondent no. 3 who was arrested on 8/7/2005 remained in police custody till 09/7/2004.
25. Section 151 of Cr.P.C. provides for arrest without orders from a Magistrate and without a warrant of a person in order to prevent commission of cognizable offences. Though, the petitioner admitted in the evidence that he had told A.S.I., S. L. Hunashikatti to take preventive measures under section 151 of Cr.P.C. against respondent no. 3, however, he did not say that the said action of arrest of respondent no. 3 was justified. The conduct of the petitioner does not appear to be clean. Such action of the petitioner cannot be held to be simply a vicarious liability not liable for criminal action.
26. It is further to be noted that though the complaint dated 16/7/2005 lodged by the respondent no. 3 to the Superintendent of police, was received at the Police Station on 23/7/2005, however, till 8/8/2005 no action was taken on the same. The said complaint was registered on 8/8/2005 under crime no. 62/2005 and Shri Ramanand Chodankar was arrested thereafter on 10/8/2005.
27. In the facts and circumstances of the case, the recommendations of the S.P.C.A to take steps to institute criminal as well as disciplinary proceedings against the petitioner do not appear to be perverse or contrary to the evidence on record. It is in view of the said order dated 12/3/2012 that the petitioner was served with a copy of the charge memorandum dated 31/7/2012, which is impugned by way of amendment by the petitioner. In our considered view there is no scope for interference with the impugned order and the impugned charge memorandum.
28. Hence, the Writ Petition is dismissed. Rule is discharged, with no order as to costs.