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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R. SUDHAKAR
A. Subramanian
Versus
The Director-General of Police, Tamil Nadu, O/o Director General of Police & Others
W.P.No.41133 of 2005
Decided on: 22-06-2009
CRIMINAL LAW - EVIDENCE - DEPARTMENTAL PROCEEDINGS - MAINTAINABILITY - ACQUITTAL IN CRIMINAL CASE - WHETHER BARS DEPARTMENTAL PROCEEDINGS - STANDARD OF PROOF - PREPONDERANCE OF PROBABILITY - PHENOLPHTHALEIN TEST - POSITIVE RESULT IN HAND WASH - NEGATIVE RESULT IN SHIRT - EVIDENCE OF INDEPENDENT MAHAZAR WITNESS - WRIT PETITION - DISMISSED.
Fact of the Case:
The petitioner, a Sub Inspector of Police, was caught taking bribe of Rs.5,000/-. Proceedings were initiated in accordance with law. The money which was coated with chemical phenopthalene for identification were seized under a mahazar, a sketch was drawn and the articles were sent for chemical examination tests. The petitioner was suspended on 26. 1995. The Vigilance and Anti Corruption Department filed a charge sheet before the III Additional Sessions Judge, City Civil Court, Chennai. After full fledged trial, the Additional Sessions Court came to the conclusion that prosecution has not established the guilt of the accused beyond reasonable doubt and further held that the petitioner/accused is entitled to the benefit of doubt and consequently, he was acquitted of offences under Sections 7 and 13(2) r/w Section 13 (1)(d) of Prevention of Corruption Act and Section 343 IPC. The judgment of the Criminal Court in C.C.No.20 of 1996 was delivered on 9. 2003.
Finding of the Court:
The court held that the acquittal by the criminal court by holding that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and by giving the accused the benefit of doubt, would not bar the department to proceed against the delinquent officer under the provisions of the service rules. The court further held that the standard of proof in a criminal case is different from the standard of proof required in a departmental enquiry. In a criminal trial, the prosecution has to prove the guilt of the accused beyond reasonable doubt, whereas in a departmental enquiry, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". The court also held that the positive result of the phenolphthalein test in respect of the hand wash, supported by the evidence of independent mahazar witness, clearly established the case of the department with regard to the charge framed against the delinquent officer.
Issues: 1. Whether the acquittal by the criminal court bars the departmental proceedings against the delinquent officer? 2. Whether the standard of proof in a criminal case is the same as the standard of proof required in a departmental enquiry? 3. Whether the positive result of the phenolphthalein test in respect of the hand wash, supported by the evidence of independent mahazar witness, is sufficient to establish the case of the department against the delinquent officer?
Ratio Decidendi: 1. The acquittal by the criminal court does not bar the departmental proceedings against the delinquent officer. 2. The standard of proof in a criminal case is different from the standard of proof required in a departmental enquiry. In a criminal trial, the prosecution has to prove the guilt of the accused beyond reasonable doubt, whereas in a departmental enquiry, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". 3. The positive result of the phenolphthalein test in respect of the hand wash, supported by the evidence of independent mahazar witness, is sufficient to establish the case of the department against the delinquent officer.
Final Decision: The writ petition was dismissed.
1. The petitioner has filed this writ petition challenging the impugned orders in PR No.159/PRI(2)/CPO/2001, dated 6. 2004 of the 3rd respondent; in Appeal/11-PR(1)/04 PR 159/PRI(2)/CPO/2001 dated 17. 2004 of the 2nd respondent and in D.Dis.No.AP 3 (3)/204408/2004 dated 25. 2005 of the first respondent.
2. The petitioner joined the services as a constable on 1. 1969 in the Madras State Police Subordinate Service and promoted as Head Constable in the year 1980 and again promoted as Sub Inspector of Police in the year 1986. On 6. 1995, the petitioner was transferred to E-2 Royapettah Police Station as Sub Inspector of Police (Crime). On 5. 1995 one Govindasami travelling in Bajaj Sunny scooter was intercepted by three persons travelling on a motor cycle and he was grievously attacked with knife and a sum of Rs.1,800/- was snatched away from the said Govindasami. A case was registered in Cr.No.493/95 under section 379 on the file of the E-2 Royapettah Police Station. Investigation with regard to this case was conducted by the petitioner. It appears that one Ganesh, S/o Parameswaran was enquired by the petitioner with regard to the above said crime from 26. 1995 to 26. 1995. According to the petitioner, he called the said Ganesh for enquiry as he was a known criminal involved in petty offences. He has brought to the knowledge of the higher authorities about the said enquiry.
3. In the meanwhile, a complaint was given by the mother of the said Ganesh, to the Vigilance and Anti Corruption Wing of the police department alleging that the petitioner had demanded bribe of Rs.10,000/-to release her son from custody or from implicating him in the alleged offence. On the basis of the complaint given by the mother of the Ganesh, a case was registered by the Vigilance and Anti Corruption Department. On 26. 2005 from 4.35 p.m. onwards, the trap proceedings were conducted and a sum of Rs.5,000/- was given to Omanammal, the mother of Ganesh so as to hand it over to the petitioner as part payment of bribe. In this proceedings, there are two mahazar witnesses. Consequent to the proceedings initiated by the Vigilance and Anti Corruption department, the petitioner was caught taking the bribe of Rs.5,000/-. Proceedings were initiated in accordance with law. The money which was coated with chemical phenopthalene for identification were seized under a mahazar, a sketch was drawn and the articles were sent for chemical examination tests. The petitioner for the above stated offence was suspended on 26. 1995. The Vigilance and Anti Corruption Department filed a charge sheet before the III Additional Sessions Judge, City Civil Court, Chennai. After full fledged trial, the Additional Sessions Court came to the conclusion that prosecution has not established the guilt of the accused beyond reasonable doubt and further held that the petitioner/accused is entitled to the benefit of doubt and consequently, he was acquitted of offences under Sections 7 and 13(2) r/w Section 13 (1)(d) of Prevention of Corruption Act and Section 343 IPC. The judgment of the Criminal Court in C.C.No.20 of 1996 was delivered on 9. 2003.
4. A charge memo dated 35. 2001 was issued by the Commissioner of Police framing the following three charges:-
"ANNEXURE-I
Statement of the substance of allegations, namely imputation of misconduct or misbehaviour in support of the charge(s) , framed against Thiru A. Subramanian, S.I. Of Police, E2 Royapettah Crime Police Station, Chennai.14 now under suspension.
CHARGE-I
Highly reprehensible conduct in having brought one Thiru S.P.Ganesh, S/o Tmt. Omni Ammal, residing at No.29, 2nd street, Srinivasa Perumal Sannathi Street, Royapettah, Chennai.14, to the Royapettah Police Station, and detained him in illegal custody for a period of four days between 26. 95 and 26. 95 on the grounds that he has involved in a snatching case.
CHARGE-II
Highly reprehensible conduct in having demanded and accepted Rs.5,000/- (Rupees five thousand only) as
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