2006 Supreme(SC) 328

2006(3) Supreme 405
SUPREME COURT OF INDIA
(From Delhi High Court)
S.B. Sinha and P.P. Naolekar, JJ.
Commr. of Police, New Delhi—Appellant
versus
Narender Singh—Respondent
Civil Appeal No. 7488 of 2004
Decided on 5-4-2006
Counsel for the Parties :
For the Appellant : Vikas Singh, ASG., Mrs. Anil Katiyar, Ashiesh Kumar, Advocates.
For the Respondent : M.N. Krishnamani, Sr. Advocate, Arun Bhardwaj, S.S. Shamshery, Dr. Kailash Chand, Advocates.

IMPORTANT POINT
Standard of proof required in recording a finding of conviction in criminal case and in a departmental proceedings are distinct and different as in a departmental proceeding preponderance of probability would serve the purpose.

Headnote:Constitution of India—Article 311(2)(b)—Service Law—Order of dismissal from service—Respondent, a Constable in Police was arrested on basis of confession of another accused that respondent had supplied fire arm to that other accused—Respondent while in police custody made confession and pointed out the place that while on duty as guard at Armoury he stole two revolvers and one pistol—Respondent was discharged in criminal case as case was based only on confession not admissible in evidence—In departmental proceedings respondent was found guilty and order of dismissal from service was passed—Administrative Tribunal allowed original application and writ against order was dismissed in limine by High Court—Appeal—Standard of proof in recording a finding of conviction in criminal case and in a departmental proceedings was distinct and different—In departmental proceedings preponderance of probabilities would serve purpose—An employee acquitted of criminal charge by itself would not be a ground not to initiate departmental proceedings against him or to drop the same in the event of acquittal in criminal case—Respondent had never retracted from confession and had not made any complaint to higher authorities that same was extracted by force—Tribunal was not correct in its view that confession made by respondent had not been proved as witness in whose presence it was made was examined—Provisions of Evidence Act were not applicable in a departmental proceedings—Impugned judgment of Tribunal and High Court was not sustainable.

       Held : It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose. [See Kamaladevi Agarwal v. State of W.B. and Others, (2002) 1 SCC 555]. It is now well-settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.(Paras 12 & 13)

       The fact that the respondent as an accused in the aforementioned case made a confession and had pointed out the place wherefrom he allegedly had stolen two revolvers and one pistol, has, thus, not been disputed. It may be noticed that no question was, furthermore, put to the said witness to show that the question put to the said witness was as regard the purported missing of the date below the signature of the Inspector Tej Pal Singh but it was not suggested that the said document is a forged or fabricated one. The order of discharge was passed by the Chief Judicial Magistrate after four years from the date of institution of the case. The respondent had not retracted from the said confession. He did not make any complaint to the higher authorities that the same was extracted from him by force or undue influence. The correctness or otherwise of the statement contained in Ex. PW-8/A has also not been disputed. The Tribunal, therefore, was not correct in its view that the confession made by the respondent herein had not been proved in accordance with law. So far as the evidentiary value of the said confession is concerned, we may notice that Section 25 of the Evidence Act and Section 162 of the Code of Criminal Procedure provides for an embargo as regard admissibility of a confession in a criminal trial. The said provisions have per se no application in a departmental proceeding.(Paras 19 to 21)

       The Tribunal as also the High Court were, therefore, not correct in arriving at the finding that the said confession was not admissible even in a departmental proceeding. In Kuldip Singh v. State of Punjab and Others [(1996) 10 SCC 659], this Court held:

       “10. Now coming to the main contention of the learned counsel for the appellant, it is true that a confession or admission of guilt made by a person accused of an offence before, or while in the custody of, a police officer is not admissible in a court of law according to Sections 25 and 26 of the Evidence Act, 1872 but it is equally well settled that these rules of evidence do not apply to departmental enquiries...”

       It is now well-settled that the provisions of the Evidence Act are not applicable in a departmental proceeding. [See Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and Others (1997) 2 SCC 699; Lalit Popli v. Canara Bank and Others — (2003) 3 SCC 583; and N. Rajarathinam v. State of T.N. and Another— (1996) 10 SCC 371].(Paras 23 to 25)

       The policy underlying behind Sections 25 and 26 is to make it a substantive rule of law that confessions whenever and wherever made to the police, or while in the custody of the police to any person whomsoever unless made in the immediate presence of a magistrate, shall be presumed to have been obtained under the circumstances mentioned in Section 24 and, therefore, inadmissible, except so far as is provided by Section 27 of the Act. A confession would mean incriminating statement made to the police suggesting inference of the commission of the crime and it, therefore, is confined to the evidences to be adduced in a court of law. If the provisions of the Evidence Act are not attracted in a departmental proceeding, a fortiori Sections 25 and 26 shall not apply.(Paras 29 & 30)