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2021 Supreme(J&K) 319
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
TASHI RABSTAN, J.
Jeet Kumar – Appellant
Versus
Union of India & others - Respondents
SWP No.2903 of 2013
Decided on : 17-12-2021
Advocate Appeared:
For the Appellant :Mr. Abhinav Sharma, Sr. Adv., with Mr. C.S. Azad, Advocate and Ms Saba Atiq, Advocate
For the Respondent: Mr. Vishal Sharma, ASGI with Mr. Eishaan Dadhichi, CGSC
Point of Law: In a criminal case, to fix the liability of the accused, the evidence adduced should lead beyond all shadows of doubt towards the guilt of the accused and onus of proof of the case lies on the prosecution not on accused.
Headnote:
Ranbir Penal Code - Sections 279, 337, 304-A, 338 - Central Reserve Police Force Rules, 1955 - Rule 27(6)(ccc) - Departmental proceedings - Removed from service - Central Reserve Police Force – Causing death by negligence - When petitioner was posted in 44 Bn. in MT Platoon, he in the early morning, was detailed for carrying some CRPF officials from the headquarters of 44 Bn. CRPF to Convoy Ground Srinagar in vehicle - It is averred that he was driving vehicle at an average speed of about 13 to 14 kms per hour and when vehicle reached Bemina Chowk suddenly one alto car which was running in front of petitioner’s vehicle suddenly applied brakes and, in order to avoid collision with alto car, petitioner too suddenly applied brake, as a result of which vehicle hit the road divider and overturned hitting the alto car as well - CRPF personnel, who were sitting in vehicle and the civilians in alto car suffered injuries - One of occupants of CRPF vehicle succumbed to his injuries in the hospital.
Finding of the Court :
If onus is not discharged properly by prosecution, guilt of accused cannot be fixed. In instant case evidence led by prosecution witnesses is not only mutually inconsistent but also against the record, so cannot be considered at all, especially when it raises a doubt towards the inquiry officer himself - Although departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately, but since the petitioner has now been acquitted, as such in terms of Rule 27(6)(ccc) of CRPF Rules, sanction of Inspector General was required to be taken. As regards the contention of learned counsel for respondents that the petitioner came to be acquitted by criminal court only because prosecution had failed to lead evidence and to produce the witnesses, fault squarely lies with prosecution as prosecution had failed to lead evidence and produce witnesses despite granting of numerous opportunities. Otherwise too, stand of respondents in their objections is that alto car, which was going ahead of vehicle-in-question, was at abnormal speed and the driver of the said alto car suddenly stopped the said car, as a result of which the accident occurred.
Result : Writ petition is allowed
JUDGMENT :
1. Through the medium of this petition, the petitioner is seeking to quash :
i. Order No.PVIII-02/2012-Estt-2/44 dated 26.04.2012 issued by respondent No.5, whereby the petitioner has been removed from service;
ii. Inquiry report dated 26.04.2012 submitted by respondent No.6, whereby findings given were that the offending vehicle was being driven by the petitioner with high speed;
iii. Order No.RXIII.44/2012-Estt.-1(13) dated 29.08.2012 issued by respondent No.4, whereby the appeal filed by the petitioner came to be dismissed.
The petitioner is also seeking a direction to the respondents to reinstate him in the service as Constable Driver.
2. The facts-in-brief, as projected in the writ petition, are that the petitioner came to be appointed as a Constable GD on 01.07.2004 in Central Reserve Police Force. On 05.08.2011 when the petitioner was posted in 44 Bn. in MT Platoon, Srinagar, he, in the early morning, was detailed for carrying some CRPF officials from the headquarters of 44 Bn. CRPF to Convoy Ground Srinagar in vehicle No.HR55H-3607 (TATA 407) medium vehicle. It is averred that he was driving the vehicle at an average speed of about 13 to 14 kms per hour and when the vehicle reached Bemina Chowk, Srinagar, suddenly one alto car which was running in front of the petitioner’s vehicle suddenly applied brakes and, in order to avoid collision with the alto car, the petitioner too suddenly applied brake, as a result of which the vehicle hit the road divider and overturned hitting the alto car as well. CRPF personnel, who were sitting in the vehicle and the civilians in alto car suffered injuries. One of the occupants of the CRPF vehicle succumbed to his injuries in the hospital. Accordingly, FIR No.191/2011 came to be registered with Police Station Parimpora, Srinagar for offences under Sections 279, 337, 304-A, 338 RPC and challan produced in the Court of Judge Small Causes, Srinagar. However, the petitioner came to be acquitted on 08.08.2013. The respondents had also initiated a departmental inquiry against the petitioner. After conclusion of the inquiry, the Inquiry Officer, i.e., respondent No.6 submitted the inquiry report on 26.04.2012, whereby findings given were that the offending vehicle was being driven by the petitioner with high speed. Acting on the report of inquiry officer, respondent No.5 vide Order No.PVIII-02/2012-Estt-2/44 dated 26.04.2012 removed the petitioner from service with effect from the date of issuance of said order. Appeal filed against the said order too came to be dismissed by respondent No.4 vide Order No.RXIII.44/2012-Estt.-1(13) dated 29.08.2012.
3. Learned senior counsel appearing for petitioner argued that there was no negligence on the part of petitioner nor the petitioner had been driving the vehicle with over speed. Because the driver of alto car had suddenly applied brakes and if the petitioner too would not have suddenly applied brake, there would have been chances of more damage to human lives. He further argued that witnesses M.R. Murgam and Constable D. Ramlu had specifically stated during inquiry that the vehicle was being driven in normal speed. However, the inquiry officer had failed to appreciate the evidence of material witnesses. He further argued that no independent witness was examined during the inquiry nor the petitioner was allowed to produce any defence in his favour nor the inquiry officer called the civilian witnesses and two other CRPF witnesses.
4. Learned senior counsel further argued that since the petitioner had already been acquitted in the criminal case, as such it was mandatory on the part of the respondent No.4 to seek prior sanction of Inspector General before inflicting the punishment of removal from service in terms of Rule 27 (6)(ccc) of the Central Reserve Police Force Rules, 1955.
5. Objections have been filed on behalf of respondents contending therein that as per statements of PWs 1 & 2 the vehicle was moving at a high speed, as a result of which th
