1. This Letters Patent Appeal has been filed against the decision of 2 July, 2003 on the writ petition C.W.J.C. No. 45 of 1999 : Satyendra Kumar Sharma V/s. The State of Bihar & Ors.

2. Petitioner Satyendra Kumar Sharma was a constable with the General Railway Protection Force. He was posted for night duty at Laukaha Railway Station, district the then Darbhanga. He was posted for such duty on the night of 15/16 September, 1997 also.

3. An incident occurred at about 1 Oclock in the night of 15/16 September, 1997. The incident became a charge against Satyendra Kumar Sharma. They were five charges, one under the Railway Act, 1989 and the other four under the Indian Penal Code. These are :

"Railways Act. 1989 Section 145 : Drunkenness or nuisance by any person in any railway carriage or upon any part of railway.

Indian Penal Code Section 354 : Assault or use of Criminal force to a woman with intent to outrage her modesty.

Section 341 : Wrongfully restraining any person.

Section 323 : Voluntarily causing hurt.

Section 325 : Voluntarily causing grievous hurt."

4. The petitioner Satyendra Kumar Sharma faced two actions, one in pursuance of the First Information Report which ultimately led to filing of a chargesheet before the Judicial Magistrate and the other a departmental inquiry. By the time the matter was taken up before the Judicial Magistrate, the allegations against the petitioner appeared to see a compromise and the trial failed. The Court will revert to this aspect later.

5. Now the incident on the basis of which charges were filed before the Magistrate and also led to the departmental inquiry.

6. It was alleged that on the night of 15/16 September, 1997 the petitioner was in a drunken state and at a lonely part of the platform at the raiiway station, Laukaha in the then district of Darbhanga, caught hold of a lady. It was dead of the night. The Court is not mentioning her name as the petitioner has not made her a party in the writ petition in any case. The charge read was that the petitioner caught hold of the lady in a drunken state and attempted to outrage her modesty. She resisted. The petitioner reacted by giving her two blows from his constables lathi. She received two fractures on her both legs. This incident also took place in the presence of the ladys ten years old son, who was also assaulted. Other charges were of causing grievous hurt and wrongful restraint.

7. By the time the matter was coming up for trial after one year, the contention of the petitioner is that the lady retracted her statement that nothing of the sort had happened. On the other hand, in the departmental inquiry when the petitioner was asked to face the proceedings and the lady was present, he declined to cross-examine the lady and instead submitted that he would cross-examine her the next day. The person who had been the victim was right jn front of the petitioner in the departmental inquiry. The petitioner took a posture to retract the matter and virtually ran away from the scene on the ground that he would cross-examine this witness the next day.

8. This leaves the record, thus : An allegation against the petitioner which was a good allegation when it was made retracted after one year before the Magistrate but continued in the departmental inquiry. Now the petitioner will like to take recourse by the mechanics of the Police manual that charge having failed before the Magistrate, the departmental inquiry should also fail. The other technicality relied upon is that the departmental inquiry should have awaited the result of the trial before the Magistrate. This is playing with the situation as it may come advantageous to the petitioner knowing fully well that before the Magistrate there had been a retraction on the logic of which the petitioner desires that the departmental inquiry must also be frustrated and consigned to the record.

9. The petitioner has not been able to explain in the departmental inquiry why he would not cross-examine