1. Pursuant to a departmental enquiry, Satish Kumar, a constable in Delhi Police, the applicant herein, has been inflicted punishment of forfeiture of one year's approved service temporarily for a period of one year entailing reduction in his pay from Rs. 4560/- p.m. to Rs. 4475/- p.m. The enquiry officer after recording the statements of HC Suraj Singh (PW-1), W/HC Adesh Kumari (PW-2), ASI Harpal singh (PW-3), SI Jasvinder Singh (PW-4), Krishan Singh (PW-5), Const. Syambir Singh (PW-6) and Inspr. Ishwar Singh (PW-7), framed the following charge against the applicant: You Const. Satish Kumar No. 2149/SD is hereby charged that while you were posted in P.S. Hauz Khas, on 16/07/99 at about 2.35 A.M. you const. Satish Kumar illegally trespassed in the flat No. F-4 Police Colony, P.S. Hauz Khas of Inspector Ishwar Singh while you were under the influence of liquor and was wearing only underwear. Shri Krishan Singh brother of Inspector Ishwar Singh was sleeping in the room who awakened and made a noise of thief thief. You Const. Satish Kumar threatened Sh. Krishan Singh to face dire consequences if he reported the matter to police. You Const. Satish Kumar was apprehended by Inspector Ishwar Singh and his brother Krishan Singh and handed over to HC Harpal Singh, emergency officer of P.S. Hauz Khas, who reached after receiving a call. In the meantime you went outside from police station on the pretext of going urinal and did not come back. A case FIR No. 483/99 dated 16/07/99 Under Section 456/506 IPC, P.S. Hauz Khas was registered on the complaint of Inspector Ishwar Singh you got anticipatory bail from the court and was formally arrested in the above case on 13/10/99.
The above act on the part of you Const. Satish Kumar No. 2149/SD amounts to gross misconduct and unbecoming of a police officer which renders you liable to be punished Under Section 21 of Delhi Police Act, 1978.
The applicant was given opportunity to lead evidence in defence.
Availing the said opportunity, the applicant examined Const. Rajesh Kumar as DW-1. While evaluating the evidence led by the department and the defence projected by the applicant, the enquiry officer vide his report dated 12.7.2000 concluded, thus: From the above discussion of evidence the charge framed and served upon the defaulter Const. Satish Kumar No. 2149/SD is partly substantiated.
Agreeing with the report of the enquiry officer, the disciplinary authority vide order dated 20.12.2005 inflicted the punishment upon the applicant, as mentioned above. The order aforesaid has since been confirmed by the appellate authority vide order dated 12.5.2006. The applicant in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985 has challenged the report of the enquiry officer and the two orders passed by the disciplinary and appellate authorities, respectively.
2. Shri Sachin Chauhan, Learned Counsel representing the applicant, without challenging the findings recorded by the enquiry officer, or for that matter, touching the controversy on merits, has raised only one point in support of the present Application. The counsel has urged that with regard to the same allegations as subject matter of the charge, the applicant, prior in point of time, was prosecuted for offences under Sections 456/506 IPC and by orders passed by Shri Deepak Garg, Metropolitan Magistrate, New Delhi, dated 6.1.2005 was acquitted of the charge framed against him by observing that the prosecution had failed to prove its case against the accused beyond reasonable doubt, and that being so, the applicant could not be punished departmentally on the same charge, as would be clearly made out from Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980 (hereinafter to be referred as the Rules of 1980). The authorities, it is urged, wrongly applied exception (b) to Rule 12 and, therefore, the impugned orders are liable to be set aside. For his aforesaid contention, the Learned Counsel relied upon a decision of this Tribunal in OA No. 1296/2003 decided on 14.1.2004 in the matter of HC Jag Saran v. Government of NCT of Delhi and Ors.
3. With a view to appreciate the only submission of the Learned Counsel, as noted above, it would be useful to take note of the relevant facts in that connection. It appears that for the allegations made against the applicant subject matter of the charge, both criminal and departmental proceedings were initiated against him. The enquiry officer recorded statements of PWs mentioned above on 18.4.2000 and submitted his report. It is at this stage, on the representation made by the applicant, that the departmental proceedings were kept in abeyance awaiting the verdict of the criminal case FIR No. 483/99 Under Section 456/506 IPC, PS Hauz Khas, New Delhi. Shri Deepak Garg, Metropolitan Magistrate, New Delhi, acquitted the applicant vide order dated 6.1.2005, and it is thereafter that the departmental proceedings were revived and the applicant was asked to make a representation, when the disciplinary authority agreed with the findings of the enquiry officer. A copy of the enquiry report was accordingly served upon the applicant.
4. During the course of hearing of this case, on an earlier occasion, we required the respondents to produce on record the statement of witnesses recorded in the criminal case. The same have been produced and are ordered to be placed on records. Perusal of record produced would reveal that the statements of material witnesses were recorded on 6.1.2005. Krishan Singh examined as PW-5 while deposing in support of the incident, however, stated that he had not seen the accused (the applicant) properly due to night, and thus could not identify him. The learned APP sought permission of the court to cross examine the witness as he was resiling on the point of identification of accused.
Permission was granted and Krishan Singh was cross examined by the APP.He was confronted with portion A to B of his previous statement recorded under Section 161 CrPC, which pertained to identification of the accused, but he stated that he had never given such statement to the police. He denied the suggestion that he was won over by the applicant and was, therefore, deposing falsely with a view to save him because his brother was also posted as Inspector in Delhi Police, and was deliberately not identifying the accused who was present in the court on that day. ASI Harpal Singh was examined as PW-3. He too supported the prosecution case but for the identity of the applicant.
He too was cross examined after the court granted permission for the said purpose. He also denied the suggestion that he had been won over by the applicant and was deposing falsely.
5. Shri Sachin Chauhan, Learned Counsel, as mentioned above, has raised only one point in support of the present Application. It is urged by him that the allegations made against the applicant subject matter of criminal charge and the charge framed in the departmental enquiry were the same, and that as the applicant was tried and acquitted by the criminal court, he could not be punished departmentally on the same charge or even on a different charge based upon the evidence cited in the criminal case, whether actually led or not, and, therefore, the applicant could not be held guilty, as surely by the time the disciplinary authority passed the impugned order inflicting punishment upon him, the applicant had already been acquitted. He further contends that Clause (b) of Rule 12 of the Rules of 1980 providing an exception to Rule 12 would not be applicable, as for the applicability of the same, the prosecution witnesses should have been won over either in the opinion of the court acquitting the applicant or in the opinion that may be expressed by the Deputy Commissioner of Police, and in the present case, exception (b) to Rule 12 was applied by simply observing that the witnesses had turned hostile, and that there would be marked difference between a witness who may turn hostile and the one who might have been won over. Once, it was specifically observed by the disciplinary authority that the witnesses had turned hostile, exception (b) to Rule 12 would not apply at all, thus contends the Learned Counsel.
6. Per contra, Ms. Renu George, the Learned Counsel representing the respondents, would contend that whether a witness has been won over or not, would depend upon the facts and circumstances of the case, and the facts of the present case would manifest that the material witnesses were indeed won over by the applicant, and that the mere use of word 'hostile' by the disciplinary authority would not make the least difference in the applicability of exception (b) to Rule 12.
7. We have heard the Learned Counsel representing the parties and with their assistance, examined the records of the case. Before we may deal with the only controversy as reflected above, it would be useful to take into consideration the relevant provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872, insofar as the same are relevant. Chapter XII of the Code of Criminal Procedure deals with information to the police and their power to investigate. After registration of first information report pertaining to a cognizable offence, the police has power to investigate and to examine witnesses, as would be made out from Section 161 of the said Code. The witnesses who are acquainted with the facts and circumstances of the case are examined orally. The police officer conducting investigation has, however, power to reduce the statement of the witnesses into writing.
The statements recorded under Section 161, as would be clearly made out from the provisions contained in Section 162 of the Code, are not to be signed. The statement so recorded cannot be used for any purpose, save as provided under Section 162. Such statements can be used by the accused, and with the permission of the court, by the prosecution, to contradict such witnesses in the manner provided under Section 145 of the Indian Evidence Act. Sections 161 and 162 CrPC read, thus: 161. Examination of witnesses by police. - (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general of special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
162. Statements to police not to be signed: Use of statements in evidence. - (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation. - An omission to state a fact or circumstance in the statement referred to in Sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
Section 145 of the Indian Evidence Act, 1872 which is under Chapter X, dealing with cross-examination as to previous statements in writing, states that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. What clearly emerges from reading of Sections 161 and 162 CrPC is that the statements that may be reduced into writing are not per se admissible in evidence. The same can, however, be used for contradicting a witness by the prosecution. Section 145 of the Indian Evidence Act reiterates the same position and further provides the procedure for contradicting the said witness. Once, statements made by witnesses reduced into writing under Section 161 are not admissible in evidence and can be used only for the purpose of contradicting them by the prosecution, it can well be said that merely because a witness has been declared hostile, it cannot be said that he has been won over. Such statements are not signed by the concerned witness. There is no authenticity that the contents of such statements are true, and for that precise reason, the same are not admissible in evidence. In the first blush, the contention raised by the Learned Counsel representing the applicant appears to be attractive, and if perhaps, it was a case where the departmental proceedings might have commenced after acquittal of the applicant and there were no intervening circumstances, it could well be said that the criminal court merely declaring the witnesses to be hostile would not automatically mean that they had been won over. In the facts and circumstances of the present case, however, we find that the statements of material witnesses, and in particular, Krishan Singh (PW-5) and ASI Harpal Singh (PW-3), were recorded by the enquiry officer on 18.4.2000. Concededly, these witnesses deposed in tune with the case of the department and clearly identified the applicant. These statements have been signed by them. The applicant was given opportunity to cross examine and he availed the said opportunity. These statements were recorded by an officer in discharge of his duties, the existence of which can be presumed under provisions contained in Section 114(e) of the Evidence Act. What thus transpires from the facts of the present case is that Krishan Singh and Harpal Singh clearly blamed the applicant and proved the allegations contained in the charge framed against him far before their statements were recorded by the criminal court, wherein, of course, they did not identify the applicant. Their statements made before the criminal court were thus not in tune with the statements made by them before the enquiry officer. In our considered view, whereas, it may not be possible to say with definite precision that they had been won over simply because they resiled from their earlier statements under Section 161 CrPC, which are unsigned and inadmissible evidence, but the same would not be true if they may resile from their statements recorded by an officer in discharge of his official duties, and which are signed by them. In such an event, it can well be said that they have been won over. It will be well nigh impossible, or at least, very difficult, to prove that the applicant has indeed either because of pressure exerted by him or inducement, had won over the witnesses. Such finding has to be returned on the basis of facts and circumstances of each case. In our considered view, if a witness has resiled from his earlier statement, which is proved to have been made by him, it can well be said that he has been won over.
8. Shri Chauhan, Learned Counsel representing the applicant, however, as mentioned above, in support of his contention, has relied upon HC Jag Saran (supra). Before we may examine the facts of the said case, it would be useful to reproduce the relevant provision of Rule 12 of the Rules of 1980, which reads, thus: 12. Action following judicial acquittal. - When a police officer has been tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not unless: (b) In the opinion of the court, or of the Deputy Commissioner of Police the prosecution witnesses have been won over; or The facts of the said case reveal that the applicant who was a Head Constable was departmentally tried for robbing one Subodh Khandelwal of Rs. 2450/- and further demanding an amount of Rs. 1,00,000/- from him.
The enquiry officer returned the finding that the charges framed against him had been proved. The disciplinary authority imposed a penalty of forfeiture of five years' approved service permanently upon him. His appeal was also dismissed. With regard to the same incident, a criminal case FIR No. 1082/97 under Sections 392/365/34 had been registered. The applicant therein, however, was acquitted by the courts of Metropolitan Magistrate and Additional Sessions Judge. During the pendency of the above criminal case, disciplinary proceedings had been kept in abeyance. No evidence was recorded in the said case by the enquiry officer. After the decision by the criminal court, the departmental proceedings commenced against the applicant and he was punished, as mentioned above. It was urged that the disciplinary proceedings could not be so initiated against him in view of provisions contained in Rule 12 of the Rules of 1980. The Tribunal after examining the provisions of Rule 12 and taking into consideration all relevant factors, observed thus: The expression that the witnesses 'turning hostile' as used in common parlance, is where they resile from their earlier recorded statements whether under Section 161 of the Code of Criminal Procedure or whatever statements that are so recorded. In every case, where the witness resiles from his earlier recorded statements, it cannot be termed that he has been won over by the accused person in that controversy. Facts of each case have to be examined to come to such a conclusion The Tribunal then examined the judgment acquitting the applicant and held that there was no finding recorded therein that the witnesses had been won over by the accused, and merely because they did not support the prosecution case, it could not be termed that in criminal case witnesses turning hostile would be a ground for the Tribunal to uphold the order of the Deputy Commissioner of Police that the witnesses had been won over. It is pertinent to mention that the Tribunal observed that in every case where the witness resiles from his earlier recorded statement, it cannot be termed that he has been won over by the accused person in that controversy, and the facts of each case have to be examined to come to such a conclusion. In our considered view, the decision of this Tribunal in HC Jag Saran (supra) is on the peculiar facts of that case. We have already mentioned that the departmental proceedings had commenced after the criminal trial was over. The witnesses in the criminal court were confronted with their statements earlier recorded under Section 161 CrPC. The proposition of law laid down by this Tribunal pertains to resiling of witnesses from their earlier statements under Section 161 CrPC. Even though, it is mentioned that a witness would be hostile when he resiles from his earlier recorded statement under Section 161 CrPC or whatever statement that was so recorded, but the judgment is only with regard to resiling from statement under Section 161 and not other recorded statements. Under Clause (b) of Rule 12 to hold that a witness has been won over in the context of his resiling from his earlier statement, would depend as to upon which statement he has resiled. We are of the firm view that when a witness may resile from his earlier statement which is signed by him and is recorded by a competent person and in particular, by an officer in discharge of his official duties, it can well be said that he has been won over. Shri Chauhan would, however, contend that this Court may not go into this issue as the disciplinary authority has not made this distinction and has simply mentioned that the witnesses had turned hostile and not that they had been won over. The position in the counter affidavit has also not been clarified, wherein it has again been mentioned that the witnesses had turned hostile in the criminal court. We do not find any merit in the contention of the Learned Counsel as noted above. There is no dispute that the disciplinary authority did examine the question in the light of provisions contained in Rule 12(b) and the mere fact that instead of mentioning that the witnesses had been won over, mention of the word 'hostile' would not make any difference. The question is of substance. If in the facts of the case it may be demonstrated that the witnesses had indeed been won over, mere mention of the word 'hostile' would not make any difference.
A judicial notice of the fact may be taken that the authorities functioning under the Rules of 1980 may not be well versed with the legal niceties, and in common parlance a witness turning hostile is taken as if he has been won over by the accused. Indeed, that was the suggestion also when the witnesses appeared before the criminal court.
The court cannot close its eyes to the patent facts available on records of the case. If by sheer inadvertence and lack of legal niceties, the disciplinary authority instead of mentioning that the witnesses had been won over, has mentioned that the witnesses had turned hostile, the same, as mentioned above, would not alter the merits of the case. Once, it is proved that the witnesses were won over, the mere use of word 'hostile' should not benefit the applicant against whom the charge stood proved beyond any shadow of doubt and which finding could not be challenged on any ground whatsoever.
9. Finding no merit in the Application, we dismiss the same, leaving, however, the parties to bear their own costs.