High Court Kerala High Court

Somasundaram Kartha vs State Of Kerala on 9 January, 2007

Kerala High Court
Somasundaram Kartha vs State Of Kerala on 9 January, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP No. 2678 of 1999(R)



1. SOMASUNDARAM KARTHA
                      ...  Petitioner

                        Vs

1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.S.P.ARAVINDAKSHAN PILLAY

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :09/01/2007

 O R D E R
                                      S. SIRI JAGAN, J.


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                                 O.P. No. 2678 OF 1999 R

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                       Dated this the 9th day of January, 2007


                                        J U D G M E N T

The petitioner, while working as a police constable attached to the

Perumbavur police station, was proceeded against for disciplinary action on

the ground that the accused in crime No.212/93, under sections 457, 380 and

461 of the Indian Penal Code, of Perumbavur police station, escaped from

police custody while the petitioner was on turn duty due to his carelessness

and negligence. An oral enquiry was conducted into the allegations of the

misconduct, which resulted in Ext.P4(a) punishment roll in which the petitioner

was found guilty of the charges levelled against him for which the punishment

of barring of two increments with cumulative effect was imposed on the

petitioner. Petitioner’s appeal, review, etc having become unsuccessful, he is

challenging Exts.P4, P6, P7 and P9 orders, which are the original order,

appellate order and order in review in the disciplinary proceedings,

respectively.

2. The contention raised by the petitioner is that on the fateful day,

one Kareem was on sentry duty and the petitioner along with one George was

on turn duty. The petitioner contends that the duty of the policeman on turn

duty is only to take over from the person on sentry duty if he is unable to

continue on sentry duty. Otherwise he is only to be present in the police

station and he is not expected to be actually on duty. The further contention

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of the petitioner is that the evidence in the enquiry shows that at the time

when the accused in the crime escaped from the police custody Sri.Kareem

was actually on sentry duty and the petitioner was taking rest in an ante room,

from where the spot where the accused was kept was not visible. That being

so, the petitioner could not have been made liable for any carelessness or

negligence since he could not have been expected to be on sentry duty at the

relevant time. He would further submit that if he were to be made liable, then

the other turn duty policeman namely, Sri.George should also have been

made liable because the petitioner and Sri.George stand on the same footing

as turn duty policemen. However, the said George was made a witness in

the enquiry against the petitioner and the petitioner a delinquent which is

patently discriminatory and unsustainable. The petitioner also points out that

the depositions of the various witnesses recorded in Ext.P4(a) punishment roll

itself is to the effect that the petitioner was not at all responsible for the

escape of the accused.

3. On the other hand, the learned Government Pleader would

stoutly deny all the contentions of the petitioner. He would submit that as turn

duty policeman, it was the duty of the petitioner to help the sentry duty

policeman and, therefore, he was also responsible for the escape of the

accused, who was kept under detention in the police station.

4. I have considered the rival contentions in detail.

5. I am of opinion that even going by Ext.P4(a) punishment roll

itself, the petitioner is entitled to succeed. First of all, I find considerable force

in the contention of the petitioner that when he as well as the other turn duty

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policeman namely, George, were similarly situated, the petitioner alone could

not have been proceeded against. Instead the said George has been made a

witness in the enquiry against the petitioner. I do not find any logic in this

approach made by the respondents. I also find substance in the contentions

of the petitioner that since the turn duty policeman is expected to be on duty

only when the sentry duty cannot discharge his duties the turn duty policeman

cannot be held responsible for what happened when the sentry duty

policeman was actually on duty. Ext.P4(a) makes it abundantly clear that at

the relevant time, Sri.Kareem was on sentry duty and, therefore, the full

responsibility for seeing that accused kept at the police station does not

escape was squarely on the said Sri.Kareem. In Ext.P4(a), the evidence of

the PW1 namely, Sri.George is summarised. In that, it is stated that the said

George had categorically deposed that the accused escaped at the time of

the duty time of PCE 6436. PCE 6436 is Sri.Kareem. Again, PW3, who was

the Circle Inspector of the police station, also categorically stated that the

accused escaped at 9.35 at night and at that time, PCE 6436 Sri.Kareem was

on sentry duty. Again, the Sub Inspector of the police station categorically

stated that it is as per his direction that the accused was kept outside without

putting him in the lockup and it cannot be said that it was because of the

negligence of the turn duty policeman that the accused has escaped. On the

face of this evidence, I do not think that any reasonable person could have

come to the conclusion that the petitioner was responsible for the escape of

the accused which is the subject matter of the disciplinary proceedings

against the petitioner. It, coupled with the fact that the other turn duty

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policeman was let off, would prove beyond any reasonable doubt that the

petitioner could not have been proceeded against the incident in question. As

such, no punishment could have been imposed on the petitioner and the

finding in Ext.P4(a) based on that evidence is clearly perverse and

unsustainable. In the above circumstances, I quash Exts.P4, P6, P7 and P9

and hold that the petitioner is not guilty of the misconduct alleged against him.

The increment withheld as punishment would be released to the petitioner

with all arrears within two months from the date of receipt of a copy of this

judgment and his pay and pension also shall be re-fixed and arrears paid

accordingly within the above said period.

The original petition is allowed as above.

(S. SIRI JAGAN, JUDGE)

aks

S. SIRI JAGAN , J.

OP No.2678/99 R

J U D G M E N T

9th January, 2007