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CASE NO.: Appeal (civil)  7488 of 2004

PETITIONER: Commissioner of Police, New Delhi

RESPONDENT: Narender Singh

DATE OF JUDGMENT: 05/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. Sinha, J :                  The respondent was enrolled as a Constable in the Delhi Police on or  about 01.08.1994.  A First Information Report was lodged against him on  30.10.1995 for commission of an offence  under Section 308/34 of the  Indian Penal Code. He was arrested in connection therewith on 30.10.1995.   He remained in judicial custody for a period of 15 days.  A departmental  proceeding was initiated against him in relation to the same incident.  

He filed an original application before the Central Administrative  Tribunal (for short, ’the Tribunal’) for stay of the said proceeding till  disposal of the criminal case.  By an order dated 23.07.1996, the said  original application was disposed of by the Tribunal upon issuing some  directions.  

       In the meantime, two revolvers and one pistol were found from the  Vijay Ghat Armoury.  Two persons who were accused therein, inter alia,  made confessions stating that the respondent had committed theft of the said  two revolvers and pistol.  The respondent on the basis of said confessional  statements was arrested on 05.09.1997.  While in police custody he also  made a confession as regards his involvement in the said offence.  He also  led the investigating team to the room of the Vijay Ghat Armoury and  pointed out the place wherefrom, he while working as a Sentry on the  night  of 22/23.06.1997, committed theft of two revolvers and one pistol with some  of his colleagues.  An identification memo. was prepared therefor wherein  one Inspector Bhalle Ram was a witness.  In view of the fact that apart from  confession of the accused, there was no other material on records, the  respondent was discharged from the criminal case by an order dated  01.08.2001.  He was in the meantime dismissed from service without  holding any enquiry in terms of the proviso appended to clause (2) of Article  311 of the Constitution of India, by an order dated 09.09.1997.  A  departmental appeal preferred thereagainst by him was dismissed by an  order dated 09.02.1998.  The validity of the said order was questioned by the  respondent by filing an application before the Tribunal.  The Tribunal  allowed the said application by an order dated 08.08.2001 holding that the  Appellant failed to establish sufficient grounds for dismissing the respondent  from service without holding any disciplinary proceeding.  A review petition  filed thereagainst was also dismissed  by the Tribunal on 31.12.2001.  A writ  petition filed by the Appellant was also dismissed by the High  Court  on  03.04.2002.

       The Tribunal as also the High Court in their respective judgments  opined that the appellant could not have taken recourse to clause (b) of the  proviso appended to clause (2) of Article 311 of the Constitution of India.   Pursuant to or in furtherance of the said judgments and orders, a regular  disciplinary proceeding was instituted.   On 01.05.2002, a charge-sheet was  drawn up against the Respondent which reads as under :

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       "I, Insp. Ajit Singh charge you Const. Narender  Singh No.730/DA that on 04.9.97, Harvinder Singh S/o  Shri Surat Singh R/o Praladpur Gharoli, P.s. Kharkhoda,  Sonepat and Deepak S/o Shri reghbir Singh R/o Ghoge,  P.S. Narela, Delhi were arrested in case FIR No.371/97  u/s 186, 307, 353 IPC Sec. 27 Arms Act.  P.S. Narela,  Delhi.  Both the accused made confessions regarding the  supply of arms by Const. Narender Singh No.612/DAP,  730/DAP posted at CP Vijay Ghat on this you Const.  Narender Singh were arrested by special staff North  Distt. On 5.9.97 u/s 41.1 Cr. P.C. and were produced  before Court on 6.9.97.  Two days PC remand was also  obtained by Crime Branch in case FIR No.717/97 u/s  409, 380, 457 IPC P.S. Kotwali in which two revolvers  and one pistol were stolen from Kot of CPR Vijayghat/1st  Bn.

       On interrogation you Const. Narender Singh  730/DAP confessed that while you were at CPR Vijay  Ghat you had committed theft of two revolvers and pistol  from the kot on intervening night 22/23.6.97 along with  Raju, Jasvinder Jassu and Dhannu after stealing keys of  Kot from the pillow of Const. Narender Singh (Kot  munshi).

       The above act on your part amounts to grave  misconduct and unbecoming of a police officer which  renders you liable to be dealt under the provisions of  Delhi Police (Punishment and Appeal) Rules, 1987."

       On or about 16.05.2002,  in the said departmental proceeding, the  respondent was found guilty and by an order dated 22.07.2002, he was  dismissed from service by the Disciplinary Authority, stating :

       "I have gone through the record and facts of the  file, enquiry report submitted by the E.O., defence taken  by the delinquent Const. Minutely and meticulously.  The  charges in a disciplinary action are based on  preponderance of evidence that does not exclude  confession made to the police and such confessions need  not be necessarily supported by recovery of material fact  as enumerated in the Indian Evidence Act.  In agreement  of conclusion by the E.O. I find that charges are proved  against the delinquent officer, if is allowed to continue in  the department like Police, he not only will damage the  department by his criminal activities he will also tarnish  image of the police department.  Therefore, I Manoj  Kumar Lal, Deputy Commissioner of Police Ist Bn. DAP  on being satisfied that charges on the basis of proof  available on the record are proved against the def. Const.  and are of such nature that calls for major departmental  punishment, I award Const. Narender Singh, NO.  730/DAP punishment of dismissal from the service with  immediate effect.  His suspension   period from  30.10.2001 to date of issue of this order shall be treated  as not spent on duty for all intents and purposes."

       An appeal filed thereagainst by the respondent  was dismissed by the  appellate authority by an order dated 29.05.2003.  

       An original application was filed by the respondent before the  Tribunal.  The Tribunal  in terms of  an order dated 24.02.2004 set aside the

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said order of dismissal, holding :

       "14.    Inspector Bhalle Ram had stated that he was  posted as Inspector CPR/Vijay Ghat.  The applicant had  made a Nisandehi in Kot and disclosed that on the  intervening night of 22/23.6.1997 had stolen the fire  arms.

       15.     Inspector Tej Pal Singh, PW-12 had further  appeared and testified that he had investigated the matter.   During the investigation, the applicant had taken him to  Vijay Ghat where Nisandehi was prepared on his  instance which is exhibit PW-8/A.  It is on the strength of  the Nisandehi that the respondents have concluded that  this is an admission made by the applicant about the said  theft.

       16.     We deem it necessary to mention that even  if such a confession is made during the course of  investigation.  It may not be relevant before a Court of  law but there is no such embargo to read the same to  departmental enquiry.  Since the said statement made did  not relate to any recovery, the learned Additional  Sessions Judge has discharged the applicant."             

                The Tribunal allowed the original application.  The  writ petition filed  thereagainst was dismissed by the High Court in limine.

       Mr. Vikas Singh, the learned Additional Solicitor General appearing  on behalf of the  appellant, would submit that the Tribunal and consequently  the High Court committed a manifest error in arriving at the aforementioned  findings inasmuch the embargo contained in Section 25 of the Evidence Act  and Section 162 of the Code of Criminal Procedure are not applicable in the  departmental proceedings.  It was submitted that the Tribunal further  committed an error in opining that the confession of the respondent herein  being Ex.8/A had not been proved.

       Our attention was furthermore drawn to the order of the disciplinary  authority as also the appellate authority with a view to show that the  confession of the respondent had received due application of mind.

       Mr. M.N. Krishnamani, the learned Senior Counsel appearing on  behalf of the respondent, on the other hand, would submit that even in a  disciplinary proceeding the provisions contained in Section 26 of the  Evidence Act would be attracted as such confessions in police custody are  ordinarily extracted by force.  Even if the provisions of  Section 26 of the  Evidence Act, the learned counsel would submit, per se are not applicable,  the principles analogous thereto would be applicable even in departmental  proceedings.  It was furthermore submitted that in view of the fact that the  respondent was discharged from the criminal case, having regard to the  provisions contained in Rule 12 of the Delhi Police (Punishment and  Appeal) Rules, 1987 (hereinafter referred to as ’the 1987 Rules’) , the order  of punishment was not sustainable.

       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

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him or to drop the same in the event an order of acquittal is passed.  

In Manager, Reserve Bank of India, Bangalore v. S. Mani and Others  [(2005) 5 SCC 100], this Court held :   

"It is trite that a judgment of acquittal passed in  favour of the employees by giving benefit of doubt per se  would not be binding upon the employer\005"  

[See Bank of India and Another v. Degala Suryanarayana (1999) 5 SCC 762;  Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd.,  Haldia and Others (2005) 7 SCC 764]

       The Tribunal had proceeded to record its findings only on two counts,  namely, (i) confession made by the respondent was not admissible in  evidence; and (ii) the said confession has not been proved.   

       The confession admittedly was made by the respondent while in  police custody.  In the identification memo, it was recorded :

       "Farad identification Memo place of occurrence in  the presence of witnesses accused Narender Singh alias  Nanda S/o Joginder Singh R/o D-8, Type-IInd New  Police Line, Kingsway Camp, New Delhi under police  custody by himself voluntarily by walking ahead in the  vicinity of CDR/Vijay Ghat Armoury 1st by DAP entered  in the place covered by boundary walls surrounding  through Iron gate entered in the place of Armoury Room  shown the place and told that on 22/23.6.97 (identified)  at about 2 am to 05 am he was on sentry duty and during  his duty alongwith other colleagues named Jaswinder,  Jaswant alias Jassu, Dhanraj @ Dhannu and Raja Singh  @ Raju committed theft of two revolvers and one pistol.   This identification memo was prepared then and there."

       A copy of the original confession was placed before us wherefrom it  appears that a date was put below the signature of the officer who prepared  the identification memo containing the confession of the Respondent.  It is  not in dispute that Inspector Bhalle Ram was one of the witnesses to the said  document.  He examined himself before the Enquiry Officer, wherein he  categorically stated :

       "He stated that in Dec. 1997, he was posted as  Inspr. CPR/Vijay Ghat.  He  cannot recollect the date at  this time because the date on the Nisandehi is not visible  but Inspr. Tej Pal Singh along with his staff of AATS.   Crime Branch along with accused Narender who is  present today here came at Vijay Ghat.  Accused had  made a Nisandehi inKot and disclosed that on the night  between 22/23.6.97 at about 2 to 5 am he along with  other accused had stolen 2 revolvers and 1 pistol.  The  memo was prepared and signed by him as well as others  including Const. Narender.  The Memo is exhibit PW- 8/A."

In the cross-examination, he was asked only four questions which  together with answers rendered thereto, as recorded by the Enquiry Officer  are reproduced hereinbelow :  

"Q. No. 1 :     Has the exhibit PW-8A any date written by  Inspr. Tej Pal Singh ?

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Ans.    The signature of Inspr. Tej Pal Singh is  there.

Q. No.2 Is there any date on his exhibit below the  signature of Narender Singh ?

Ans.            No.

Q. No.3 Has Inspr. Tej Pal Singh recovered any  weapon from Const. Narender on that day ?

Ans.    The weapon was not recovered in his  presence but IO told that the weapons have  already been recovered.

Q. No.4 Do you know that court decided the case on  merits ?

Ans.            Yes."

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.  Section  25 of the Indian Evidence Act and Section 162 (c) of the Code of Criminal  read thus :

"25. Confession to police officer not to be proved.-  No  confession made to a police officer, shall be proved as  against a person accused of any offence."

162. Statements to police not to be signed : Use of  statements in evidence.-(1) No statement made by any  person to a police officer in the course of an investigation  under this Chapter, shall, if reduced to writing, be signed  by the person making it; nor shall any such statement or  any record thereof, whether in a police diary or  otherwise, or any part of such statement or record, be  used for any purpose, save as hereinafter provided, at any  inquiry or trial in respect of any offence under  investigation at the time when such statement was  made\005"

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"Offence" has been defined in Section 2(n) of the Code to mean :

"(n). "offence" means any act or omission made  punishable by any law for the time being in force and  includes any act in respect of which a complaint may be  made under Section 20 of the Cattle-trespass Act, 1871  (1 of 1871)."

The said definition would apply, thus, both to Section 25 of the  Evidence Act and Section 162 of the Code of Criminal Procedure.   

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\005"

       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 \026 (2003) 3 SCC 583; and  N. Rajarathinam v. State of T.N. and Another \026 (1996) 10 SCC 371].

In State of Andhra Pradesh and Others v. Chitra Venkata Rao [(1975)  2 SCC 557], this Court held :            "The High Court was not correct in holding that the  domestic enquiry before the Tribunal was the same as  prosecution in a criminal case."

It was further held :  

"The scope of Article 226 in dealing with  departmental inquiries has come up before this Court.  Two propositions were laid down by this Court in State  of A.P. v. S. Sree Rama Rao. First, there is no warrant for  the view that in considering whether a public officer is  guilty of misconduct charged against him, the rule  followed in criminal trials that an offence is not  established unless proved by evidence beyond reasonable  doubt to the satisfaction of the Court must be applied. If  that rule be not applied by a domestic tribunal of inquiry  the High Court in a petition under Article 226 of the  Constitution is not competent to declare the order of the  authorities holding a departmental enquiry invalid. The  High Court is not a court of appeal under Article 226  over the decision of the authorities holding a  departmental enquiry against a public servant. The Court  is concerned to determine whether the enquiry is held by  an authority competent in that behalf and according to the  procedure prescribed in that behalf, and whether the rules  of natural justice are not violated. Second, where there is  some evidence which the authority entrusted with the  duty to hold the enquiry has accepted and which evidence

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may reasonably support the conclusion that the  delinquent officer is guilty of the charge, it is not the  function of the High Court to review the evidence and to  arrive at an independent finding on the evidence. The  High Court may interfere where the departmental  authorities have held the proceedings against the  delinquent in a manner inconsistent with the rules of  natural justice or in violation of the statutory rules  prescribing the mode of enquiry or where the authorities  have disabled themselves from reaching a fair decision  by some considerations extraneous to the evidence and  the merits of the case or by allowing themselves to be  influenced by irrelevant considerations or where the  conclusion on the very face of it is so wholly arbitrary  and capricious that no reasonable person could ever have  arrived at that conclusion. The departmental authorities  are, if the enquiry is otherwise properly held, the sole  judges of facts and if there is some legal evidence on  which their findings can be based, the adequacy or  reliability of that evidence is not a matter which can be  permitted to be canvassed before the High Court in a  proceeding for a writ under Article 226."

[See also State of Haryana and Another v. Rattan Singh  (1977) 2 SCC 491]

       The submission of Mr. Krishnamani that there lies a distinction  between the provisions of Section 25 and Section 26 of the Evidence Act, in  this behalf, may although be correct but the same is not of much significance  for the purpose of this case.                    Section 26 also speaks about confession by an accused while in  custody of police.  Sections 25 and 26 of the Evidence Act although seek to  achieve the same purpose but they operate in somewhat two different fields.   Section 25 raises an embargo as regard proof of confession before a police  officer.  The same need not be in police custody; whereas Section 26 raises a  bar as regard admissibility of such confession, if made by an accused in the  custody of a police officer although such a confession might have been made  before a  person who is not a police officer.

       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.   

Reliance placed by Mr. Krishnamani to Rule 12 of the 1987 Rules is  misplaced.  The said Rule applies in a case where a person was tried and  discharged.  The respondent herein was not tried and acquitted by a criminal  court and, thus the said provision would not apply.

       For the reasons aforementioned, the impugned judgments of the  Tribunal and the High Court cannot be sustained, which are set aside  accordingly.  The appeal is, thus, allowed.  No costs.