Chandrakant Damodar Soparkar Vs. State of Maharashtra and ors. - Court Judgment

Excerpt:
service - departmental enquiry - article 226 of constitution of india - punishment imposed on police officer for expressing his dislike in an improper language in matter pertaining to grant of bail to accused - punishment challenged - allegation that police officer had made over said statements to accused not proved - nothing to show that police officer is scribe of said statement - officer may have written statement and not disclose it to member of public - said act does not warrant disciplinary action - disciplinary action taken against police officer set aside. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - petitioner expressed his dislike in language said to be unbecoming and improper and that gave rise to the initiation of disciplinary proceedings against him.s.m. daud, j.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:---'though it is not proved that the application under reference was given to sachhidanand shetty by the delinquent, the fact remains that it is in his own handwriting. the delinquent himself has admitted this fact in his preliminary statement. the said preliminary statement is a part of the departmental proceedings and can certainly be relied upon in coming to the conclusion. i therefore, discard the defence of the delinquent and hold him guilty to the effect that the application was in his handwriting. the other part of the count that he handed it over to the members of the public is not proved. this count is thus partly proved against the delinquent and he is held guilty accordingly on count no. 4.' the enquiry officer held that the petitioner deserved the punishment of being reduced in pay by a sum of rs. 10/- per month, the punishment to last for a period of six months. the period of suspension was to be treated as suspension - presumably meaning that he would not get the unpaid part of the salary and allowances for the period when he was under suspension. the verdict of the enquiry officer together with the papers were placed before the additional commissioner of police who felt that petitioner was guilty not only on count no. 4 but also on count no. 5. in relation to the punishment also, the learned additional commissioner of police differed from the enquiry officer. the requisite show- cause notice was given to the petitioner and the additional commissioner of police imposed upon him the punishment of reduction in rank from the post of police inspector to police sub-inspector at minimum pay-scale which was to last for a period of two years. the order of the additional commissioner was assailed in appeal by the petitioner and the government in the home department on 21-6-1985 held petitioner guilty only on one count i.e., charge no. 4 and substituted the punishment awarded by stoppage of three yearly increments without any adverse effect on the future increments.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 petitioner's 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 petitioner's 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 petitioner's 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.