IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.836 of 2010
KULBANS TIWARY
Versus
THE STATE OF BIHAR & ORS
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4. 28.6.2010 We have heard counsel for the appellant.
Since a copy of the application has not been served on
the State, we requested Shree A. Amanulla, Standing
Counsel No. 17 who was present in Court to assist us in
the matter on behalf of the State.
The appellant constable was part of a train
escort party. The allegations related to a firing made by
him when after the vacuum of the train was cut by a
passenger who was apprehended, a mob of
approximately 400-500 persons surrounded the escort
party and indulged in vigorous brick batting. Fire arms
were allegedly attempted to be snatched also. In the
melee the appellant is alleged to have fired killing one
person on the spot.
In a departmental proceeding he was
punished with dismissal.
Learned counsel for the appellant has
confined his submission to the issue of quantum of
punishment only to urge that it was not a case of
wanton reckless firing. Being possessed of a weapon
attacked by a large mob, it is possible that he may have
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been of a weaker constitution than his compatriots. His
conduct cannot be termed wholly unreasonable or
excessive only because he was unable to exercise the
necessary restraint in fear.
Shree A. Amanulla appearing for the State
opposed the application to submit that the authorities
have passed the punishment after a departmental
proceeding which has not been found to be procedurally
infirm by the Single Judge, the appeal merits no
interference.
While, we agree with the counsel for the State,
we are satisfied that what has been urged on behalf of
the appellant is a matter which may merit consideration
by the authorities in so far as the quantum of
punishment only is concerned.
Without interfering with the impugned order,
the appeal is disposed with the observation that any
representation of the petitioner on the quantum of
punishment only, if preferred within four weeks, shall
be considered on its own merits by a reasoned order.
The respondents may not feel inhibited on that question
by reason of our refusal to interfere with punishment
(distinct from the quantum).
It is made clear that this aspect of quantum of
punishment in the departmental proceeding shall have
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no co-relation with the criminal case against the
petitioner which shall proceed on its own steam.
The appeal stands disposed.
( Navin Sinha, J.)
P. Kumar (Dinesh Kumar Singh, J.)