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Bal Kishan vs Commissioner Of Police And Ors. on 15 April, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision :- 15.04.2019

+ W.P.(C) 3901/2019
BAL KISHAN ….. Petitioner
Through: Mr.Ajesh Luthra, Adv.

versus

COMMISSIONER OF POLICE AND ORS. …. Respondents

Through: Ms.Avnish Ahlawat, Standing
Counsel with Mr.N.K. Singh
Ms.Ankita Ahuja Singh, Advs.

CORAM:

HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MS. JUSTICE REKHA PALLI

VIPIN SANGHI, J (ORAL)
C.M. No.17688/2019
Exemption allowed, subject to all just exceptions.
W.P.(C) 3901/2019

1. The petitioner assails the order dated 03.01.2019 passed by the
Central Administrative Tribunal, New Delhi in OA No.1936/2013.
The Tribunal has dismissed the said original application by the
impugned order. The petitioner had preferred the said original
application to assail the disciplinary action taken against him by the
respondents on the premise that on the same charge, he had been
proceeded in a criminal case wherein he had been acquitted. The
acquittal of the petitioner had taken place on account of the

WP (C) No.3901/2019 Page 1 of 7
complainant not appearing as a prosecution witness to support his
complaint, though he had been named as a witness in the charge-
sheet. The complainant, however, appeared as a witness in the
departmental inquiry held against the petitioner and supported his
complaint. The petitioner relied upon Rule 12 of the Delhi Police
(Punishment and Appeal) Rules, 1980 which reads as follows:-

“12. Action following judicial acquittal. – When a police
officer has been tried and acquitted by a criminal court,
he shall not be punished departmentally on the same
charge or on a different charge upon the evidence cited
in the criminal case, whether actually led or not
unless:-

(a) the criminal charge has failed on technical grounds,
or

(b) in the opinion of the court, or on the Deputy
Commissioner of Police the prosecution witnesses have
been won over; or

(c) the court has held in its judgment that an offence was
actually committed and that suspicion rests upon the
police officer concerned; or

(d) the evidence cited in the criminal case discloses facts
unconnected with the charge before the court which
justify departmental proceedings on a different charge;
or

(e) additional evidence for departmental proceedings is
available.” (emphasis supplied)

2. The submission of learned counsel for the petitioner is that
since the complainant had been cited as a witness in the criminal case,
as he was named as a witness in the list of witnesses in the charge-
sheet, the fact that the complainant was not examined during the trial

WP (C) No.3901/2019 Page 2 of 7
is neither here nor there, and would not make a difference to the
application of Rule 12 since it uses the word ‘whether actually led or
not’.

3. We do not find any merit in this submission of learned counsel
for the petitioner. It is a well settled principle of law that the standard
of proof required to establish a criminal charge is far higher than the
standard of proof required to establish a charge in a departmental
proceeding. In criminal proceedings, the charge has to be proved
beyond all reasonable doubts, whereas, in departmental proceedings,
the charge has to be proved by evaluating the evidence on the
principle of preponderance of probabilities.

4. The purpose of Rule 12 is to bar departmental proceedings
where the Police Officer has been charged and tried on a criminal
charge arising from the same allegation of misconduct. Thus, for
invocation of Rule 12, it would be necessary that the Court dealing
with the criminal case has had the occasion to record and deal with all
the evidence of the prosecution, as well as the defence of the accused,
and its decision reflects upon the reasons for rejection of the charges
against the accused. Pertinently, the exceptions carved out in clauses

(a) to (e) of Rule 12 show that unless the acquittal of the police officer
is clean and on merits, the same cannot be a bar to initiation or
continuation of the departmental proceedings on the same
charge/alleged misconduct. In our view, to read Rule 12 in a literal
manner – as is sought to be contended by learned counsel for the
petitioner, would render it completely absurd and also expose it to
challenge on the ground of arbitrariness and illegality. In this regard,

WP (C) No.3901/2019 Page 3 of 7
we may also take note of the decision of the Division Bench of this
Court in Ajayvir Gulia (Ex. Const.) vs. UOI Ors. [201 (2013) DLT
25 (DB)], where a Division Bench of this Court had already examined
the purport and scope of Rule 12. The relevant extract from the said
decision reads as follows:-

“30. We recap the basic legal issue which arises for
consideration in the three captioned appeals. It relates to
an interpretation of Rule 12 of the Delhi Police
(Punishment Appeal) Rules, 1980‟, which we have
reproduced in paragraph 12 above. Whereas Ajayvir Gulia
urges that notwithstanding Amita, Nisha, Rajvir Singh and
Usha Sharma not being examined at the criminal trial when
he was charged for having committed an offence punishable
under Section 376 IPC, said four persons were cited as
witnesses and thus whether the evidence was actually led or
not, no departmental action could be taken against him
because the criminal charge did not fail on technical
grounds, neither the Court nor the Deputy Commissioner of
Police has opined that the prosecutrix Ms. „S‟ had been
won over, nor was any additional evidence sought to be
proved. Mahesh Kumar, Satender Kumar and Dharmender
Kumar also argue on the same line by urging that the view
taken by the Full Bench of the Tribunal requires application
of Rule 12. The plea of Ravinder Singh is that pertaining to
FIR No.152/2000 wherein he was acquitted, Rule 12 would
be attracted and as regards FIR No.495/2000 he urges that
the trial is still on.

31. Rule 12 of the „Delhi Police (Punishment Appeal)
Rules, 1980‟ prohibits a departmental inquiry on the same
charge or on a different charge upon the evidence cited in
the criminal case, whether actually led or not unless either
one or more of clauses (a) to (e) is attracted.

32. The argument of learned counsel for the petitioners
was premised on the assumption that evidence proposed to
be led at the criminal trial would be „evidence cited‟ within

WP (C) No.3901/2019 Page 4 of 7
the meaning of Rule 12 and the expression „whether
actually led or not‟ would make it irrelevant for the
purposes of the departmental inquiry that at the criminal
trial said evidence was not led.

33. The argument overlooks the fact that the meaning of
evidence as propounded by Phipson (Phipson on evidence
17th Edition) is:-

“Evidence, as used in judicial proceedings, has
several meanings. the two main senses of the word
are: first, the means, apart from argument and
inference, whereby the court is informed as to the
issues of fact as ascertained by the pleadings;
secondly, the subject matter of such means. The word
is also used to denote the fact that some fact may be
admitted as proof and also in some cases that some
fact has relevance to the issues of fact. In a real sense
evidence is that which may be placed before the court
in order that it may decide the issues of
fact………..Evidence, in the first sense means the
testimony, whether oral, documentary or real, which
may be legally received in order to prove or disprove
some fact in dispute. In the second sense it means the
content of that testimony.”

34. Wigmore on evidence defines evidence as:-
“Any knowable fact or group of facts, not a legal or
logical principle, considered with a view to its being
offered before a legal tribunal for the purpose of
producing a persuasion, positive or negative, on the
part of the tribunal, as to the truth of a proposition, not
of law or of logic, on which the determination of the
tribunal is to be asked.”

35. The Indian Evidence Act 1872 defines evidence to mean:
“Evidence” – “Evidence” means and includes –
(1) all statements which the Court permits or requires
to be made before it by witnesses, in relation to
matters of fact under inquiry, such statements are

WP (C) No.3901/2019 Page 5 of 7
called oral evidence;

(2) all documents including electronic record
produced for the inspection of the Court, such
documents are called documentary evidence.”

36. Thus, the word evidence, by its very definition means
statements/documents which have been produced for the
inspection of the Court and on basis whereof a Court
decides a lis. Merely because a person is named as a
witness and the statement under Section 161 Cr.P.C.
recorded during investigation is filed along with the charge
sheet and copy supplied to the accused would not mean that
the person concerned i.e. the witness becomes evidence
cited or the person‟s statement under Section 161 Cr.P.C.
become evidence cited. It is trite that statements recorded
under Section 161 Cr.P.C. cannot be used other than to
confront a witness.

37. It is apparent that the word „cited‟ in Rule 12; being
a part of the composite words „evidence cited‟ is
accordingly used as a verb and not to describe evidence.
Thus, the next words „whether led or not‟ have to be read
down so as to not render meaningless or absurd the words
„evidence cited‟. To put it pithily, „evidence cited‟ cannot
include what has not been led at the trial i.e. it means oral
testimony of witnesses and/or documentary evidence
proved.

38. It is no doubt true that every attempt has to be made
to interpret a statute, which would include even a Rule, in a
manner that no part thereof becomes redundant i.e. Rule
against redundancy has to be followed; ordinarily one
should not lead oneself to hold that a word or a group of
words in a statute are surplus. But situations may arise
when, to give effect to the intention of the legislature, the
un-skillfulness of the draftsman in introducing certain
words in the statute may have to be taken into account and
those words have to be ignored to give effect to the
intention of the legislature.”

5. In view of the aforesaid, we find no merit in the present petition

WP (C) No.3901/2019 Page 6 of 7
and the same is accordingly dismissed.

(VIPIN SANGHI)
JUDGE

(REKHA PALLI)
JUDGE
APRIL 15, 2019
gm

WP (C) No.3901/2019 Page 7 of 7

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