JUDGMENT
P.B. Majmudar, J.
1. By filing this petition, the petitioner has challenged his suspension order dated 18-5-2005 which is annexed at annexure-A to this petition. At the time of his suspension the petitioner was discharging his duties as a Police Inspector at Katar Gam Police Station of Surat city. While the petitioner was discharging his duties at the said police station, a complaint was lodged by one Babubhai Dhanajibhai Vithani on 13th April, 2005. The aforesaid complainant gave the said complaint stating that he had purchased a plot of land of revenue Survey No.173/03 from one Ghanshyam Anaparwala and initially he had paid Rs. 6,50,000/- to the broker and at the same time, the file of plot No.16 was handed over to the complainant. At the relevant time, name of the society was Kalapi Nagar Housing Society which is now re-named as Kalakunj. As per the complaint, in the said Survey No.173/03 there are 29 plots and organizer of the said society is one Savajibhai Haribhai and since the purchase of the said plot, the complainant was managing the affairs of the said land as a plot holder. The aforesaid land was purchased by aforesaid Savajibhai Haribhai in the year 1989-1990 from one Budhiyabhai Nathubhai Rathod and his wife Sukhiben and as it was a new tenure land, it could not be transferred in the name of the purchaser, i.e., Savajibhai Haribhai. As per the complainant on 3-2-2004, one Kanabhai Ahir and son of Rajabhai Ahir, one Shri Dilip along with one Shri R.D.Patel of village-Amreli went to the land owner Sukhiben and told her that she has sold away her land at a throw away price, which is worth Crores of rupees and that they can file a suit against the purchaser if she gives signature on some documents. Accordingly, aforesaid three persons fraudulently got thumb impression of said Sukhiben on some papers but in return they did not pay anything to the original owner Sukhiben. It is the say of the complainant in the complaint that, the aforesaid three persons, thereafter, demanded Rs. 37 lacs from the complainant for handing over the possession of the said land. Thereafter, the petitioner requested one Arvindbhai who is one of the plot holders to intervene in the matter and at the request of the complainant said Arvindbhai agreed to recommend the case to one Shri Meraman Gheewala. At the request of said Arvindbhai, said Meraman Gheewala had agreed to be the intervener and, thereafter some joint meetings were held between them and during such meetings even the aforesaid three persons were also present. But the aforesaid three persons refused to hand over the plot in question to the complainant and they ultimately agreed to accept Rs. 22,50,000/- instead of persisting their original demand of Rs. 37 lacs and the complainant accordingly parted with the said amount by paying the said amount in cash. According to the complainant, inspite of the aforesaid payment, the aforesaid three persons have not acted as per the promise given and, therefore, the complainant has filed the said complaint on the ground that by force the complainant was compelled to part with Rs. 22,50,000/- in favour of the aforesaid three persons.
2. The petitioner who was discharging his duties as a police inspector of the aforesaid police station at the relevant time started investigating the said case. It seems that subsequently the original complainant has settled the dispute and the petitioner has also placed on record copy of such settlement, which is at page 125 of the compilation. In this matter, this Court is not concerned about the legality, validity or otherwise of such settlement as it is for the investigating agency to investigate the said aspect on the basis of the complaint which is at Annexure-C.
3. Mr. Desai, learned AGP, has submitted that the said complaint is investigated and irrespective of the so called settlement even charge sheet is filed against aforesaid three persons, whose names are disclosed in the complaint.
4. On the basis of the said complaint, the petitioner started investigation which includes recording of statements of original complainant Shri Babubhai Dhanajibhai Vithani and Ratansinh Valsinh Bose. As per the statements of aforesaid two persons and other such persons, whose statements are alleged to have been recorded by the petitioner, all the accused persons, whose names have been disclosed in the original complaint went to the house of original owner Sukhiben Rathod along with one Meraman Gheewala and all of them tried to obtain signature/thumb impression of said Sukhiben on some blank papers and they also tried to obtain Rs. 22,50,000/- from various plot holders. As per the statements of the aforesaid persons, which are allegedly recorded by the petitioner, the original three accused along with one Mr.Meraman Gheewala went to the house of Sukhiben on 3-2-2004 and obtained her thumb impression by giving false promise that they would give her additional amount of Rs. 1 Crore 50 Lacs to Rs. 2 Crores as she had sold away her land at a throw away price. It is the say of the department that on the basis of these further statements of the aforesaid two persons recorded by the investigating officer, i.e., the petitioner herein, name of Mr.Meraman Gheewala came into light. As per the say of the department, on disclosure of name of said Gheewala, he was treated as an accused in the said case as accused No.4. It is also pointed out to this Court that in view of the aforesaid so-called statements recorded by the petitioner, said Gheewala also filed anticipatory bail application as he was apprehending his arrest but, as per the record, said application was withdrawn by him. It seems that said Gheewala thereafter approached the Police Commissioner, Surat informing him that the petitioner was demanding money from him and was giving threat to part with money in his favour otherwise the petitioner would see to it that he (Mr.Gheewala) is booked as an accused in the said case.
5. Thereafter, Police Commissioner, Surat handed over the inquiry to one Mr.Khurshid Ahmed, Deputy Commissioner of Police, Surat, to find out the correctness of the allegations made by Mr.Gheewala. During inquiry, said Mr.Khurshid Ahmed called the complainant and other such persons who had given statements to the petitioner. Before the said officer, witnesses have said that they have not given any such statements which are recorded by the petitioner. During further inquiry said officer found that the original complainant Mr.Babubhai Dhanajibhai Vithani, whose so called statement was recorded by the petitioner on 20-4-2005 as well as Mr.Ratansinh, whose statement was also recorded on the same day, both were not even in Surat city on the relevant date, yet the petitioner has recorded their statements, which were never given by them. The said D.C.P., further found that only with a view to see to it that the petitioner may book Gheewala as an accused in the present case, the petitioner has falsely recorded such statements of aforesaid two persons. Mr.Khurshid Ahmed, Deputy Commissioner of Police has submitted a detailed report in this connection to the Police Commissioner, Surat on 18-5-2005.
6. Considering the said report, the Police Commissioner has passed the aforesaid suspension order dated 18-5-2005, which is at Annexure-A, as according to the Police Commissioner, the petitioner has recorded some statements though such statements have never been given by those witnesses and accordingly the petitioner has acted in a dishonest manner. According to the department, the petitioner has committed a serious misconduct and, therefore, by resorting to the provisions of Rule 3 of the Bombay Police (Punishment & Appeal) Rules, 1956, the Commissioner of Police has passed the suspension order suspending the petitioner from service, pending departmental inquiry.
7. Learned advocate Mr. Y.N. Oza appearing for the petitioner has vehemently submitted that the said suspension order is passed by the Commissioner of Police, Surat with a mala fide intention as the petitioner belongs to a minority community. He submitted that the Commissioner of Police is keeping a grudge against the said community and therefore, impugned order is passed suspending the petitioner. Mr. Oza also submitted that on the basis of original complaint the petitioner had started investigation and he recorded the statements of original complainant and other witnesses on 14, 18 and 20th April, 2005. He submitted that since no signature is required to be taken on such statements and since the original complainant has settled the dispute with the accused, now the original complainant and other witnesses have turned hostile. Mr. Oza submitted that the settlement entered into by the original complainant with the accused on the face of it is contrary to law and against the public policy and when the complainant has settled the matter in such a manner, no weightage should be given to the say of the complainant that he had never given such statement before the petitioner. Mr. Oza further submitted that at the time when the suspension order was passed, the petitioner was to get promotion as Dy. S.P., within a very short period and in order to deprive him of such benefit, the suspension order is passed by the Commissioner of Police, Surat, who wants to harass the petitioner only because the petitioner belongs to muslim community. It is submitted by Mr. Oza that even though in the original complaint names of three accused are disclosed, on further inquiry the petitioner found out that one well-known land grabber of the area, Mr. Meraman Gheewala is also involved in the said case and, said Meraman Gheewala tried to impress upon the Commissioner to suspend the present petitioner from service and accordingly, the petitioner is suspended at the instance of said Mr.Gheewala. He submitted that at the instance of the aforesaid land grabber, the Commissioner of Police should not have suspended the present petitioner as it will demoralize honest officers like the present petitioner. Mr. Oza further submitted that subsequently three persons who are the original accused in the said complaint are also detained under the Prevention of Anti-Social Activities Act as land grabbers and, therefore, it prima facie suggests that the petitioner had carried out a proper investigation. Mr. Oza submitted that the suspension order is mala fide and, it is only at the behest of said Meraman Gheewala that the petitioner is placed under suspension by the Police Commissioner, Surat. Mr. Oza further submitted that after passing the suspension order, subsequently, department has collected evidence against the petitioner by which the department has tried to justify the suspension order on the ground that the statements recorded by the petitioner are not correct as on the relevant date, two persons whose statements are recorded by the petitioner were not even in the town, as one of them, i.e., the original complainant Babubhai Vithani had gone to Kashmir and other places and another person Ratansinh had gone to his native place. Mr.Oza further submitted that as per the additional material placed on record, it may be true that subsequently the aforesaid persons might have gone to the places mentioned above but the department has not produced any evidence to show that on the date on which the petitioner has recorded the statements, they were not in Surat town. It is submitted by Mr.Oza that in any case, even if it is presumed that the petitioner has recorded false statements of witnesses, then also it is not a very serious misconduct on his part which may result into major penalty at the conclusion of the departmental inquiry. According to Mr.Oza suspension order should be passed very sparingly and only when major penalty is likely to be imposed upon the delinquent on conclusion of the departmental inquiry. It is alternatively submitted by Mr.Oza that appropriate orders may be passed for expediting the departmental inquiry.
8. At the fag end of his arguments, Mr.Oza has placed on record some written submissions. In the said written submissions, it is averred that the conduct of aforesaid Meraman Gheewala is unnatural and highly suspicious, as the said person has not given complaint in writing to the higher officers of the petitioner and that his anticipatory bail application was ultimately withdrawn from the Court. In the written submissions, he has also highlighted detention order passed against three accused persons.
9. Mr. Dipen Desai, learned AGP, submitted that even though his signature is taken showing that he has received copy of aforesaid written submissions actually such copy is not given to him. Said submission of Mr. Desai is recorded.
10. Learned AGP, Mr. Dipen Desai, appearing on behalf of the respondent submitted that there is ample evidence on record to suggest that the petitioner has committed serious misconduct by recording the statement of original complainant and other witnesses even though they have not given such statements. He has relied upon material to suggest that on the relevant date, the original complainant Babubhai Vithani as well as Ratansinh Valsinh were out of station. Mr. Desai, learned AGP has submitted that there is absolutely no substance in the allegations made by Mr.Oza that since the petitioner belongs to a minority community he has been subjected to this treatment by Police Commissioner, Surat. He submitted that the Commissioner in fact had taken abundant caution before taking the aforesaid step of suspending the petitioner, as he handed over the inquiry to one Mr. Khurshid Ahmed, Deputy Commissioner of Police, Surat. He submitted that the said D.C.P., has considered entire aspect of the matter and after recording statements of witnesses has given his report that the petitioner has falsely recorded the statements of the aforesaid witnesses, even though they were not even in the town on the relevant date. It is submitted by Mr. Desai that the petitioner, who is required to maintain the case diary and, though he is maintaining such diary nothing is stated in such diary about recording of statement of the complainant. It is submitted by Mr. Desai that on the basis of the proposal sent by the petitioner as a sponsoring authority recommending detention of three persons, whose names are disclosed in the original complaint, detention order is passed against the aforesaid three accused persons by which they have been detained under PASA. Mr. Desai, learned AGP, further submitted that the petitioner has not even recommended name of Mr. Meraman Gheewala for detaining him under PASA. Mr.Desai has further submitted that, on the contrary, at the time of sending such proposal for detention, the petitioner has stated that said Meraman Gheewala has acted only as a mediator or arbitrator so far as present dispute is concerned. Subsequently, the petitioner with an oblique motive wanted to implicate said Meraman Gheewala in the aforesaid offence. Mr.Desai also further submitted that so far as allegations about victimizing the petitioner on the ground of being a member of minority community is concerned, there is no averment in the petition with regard to such allegation nor there is any averment that the suspension order is passed with an oblique motive so that the petitioner may not get promotion. He submitted that assuming that aforesaid Meraman Gheewala might have indulged into land grabbing in the past or even if he is subjected to criminal cases that itself is no ground for implicating him falsely in the present case. It is submitted by him that the petitioner has committed a serious misconduct by recording false statements of the witnesses and under such circumstances, the department is justified in suspending the petitioner pending departmental inquiry.
11. At this stage, learned AGP Mr.Desai has relied upon the decision of the Division Bench of this Court in case of R.G. Jadeja v. P.K. Bansal reported in 1993 (2) GLR 1077 wherein in paragraphs 2 and 4, this Court has observed as under :
2. Here, we are asked to examine the legal propriety of orders of suspension. Hence, we are bound to recapitulate the principles, which should guide Courts while examining the question of the present nature. Courts are not concerned with the sufficiency of the satisfaction arrived at by the authority making the order. This is left to the subjective satisfaction of the authority. Such matters are not automatically and as a matter of course justiciable by Courts. While there could be an examination by Courts as to whether an opinion was formed at all, but sufficiency of the grounds cannot be inquired into. The Court cannot substitute its own satisfaction for that of the authority. There may be interference if extraneous or irrelevant matters are taken note of or there has been a total non-application of mind, or the action is patently perverse, unfair or unjust or tented with mala fides. Though the materials placed may not satisfy the Court, the task of the Court is only limited to an investigation as to whether there was any foundation of fact at all or whether irrelevant and extraneous circumstances have weighed with the authority while passing the impugned order. The fact that different formation of opinion or satisfaction is possible for the Court is no ground to quash the order.
4. It is not possible to say that there was a non-application of mind. Equally so, it is not possible for us to say that, extraneous or irrelevant circumstances have been taken note of. If, in exercise of its highly prerogative writ jurisdiction, this Court is called upon to review an order of suspension, and it finds, as in the present case, the authority purported to act on the basis of materials available to it and such materials cannot be eschewed as irrelevant to the issue, there will be no scope for this Court to form a different opinion on the necessity for making the order of suspension. The state, desiring to keep its administration well-pruned and free from personnel of doubtful integrity, cannot be told by this Court as to what type of officers it should entertain and what type of conduct it should tolerate and ignore. After all, the administration of the State has to set its own house in order and should not allow it to sag down.
12. Mr.Desai, learned AGP, has also relied upon the decision in the case of Atulkumar T. Jadwani V. Deputy Inspector General of Police, Junagadh, reported in 1989 (1) GLR 494, wherein this Court has observed as under in paragraph 4, 5 and 6 :
4. As far as the averment that another Police Constable, to whom the very same chargesheet has been given has not been suspended and that the present appellant also should not be suspended, has no substance. The averment in the chargesheet as regards the appellant is concerned is grave enough to take action by the authorities concerned. Simply because some other person who has committed the very same offence is not suspended cannot give right to the appellant to contend that he must also be treated in the same fashion.
5. As regards the delay in suspending the appellant, learned Counsel cited the decision in Special Civil Application No. 1568 of 1986 dated 25-3-1986 rendered by a Division Bench of this Court. In this case, the petitioner, who was found drunk two years prior to his suspension, was suspended after two years. The Bench of our High Court, after observing that the nature of the misconduct alleged to have been committed by the petitioner is also not such as to give rise to the inference that he would tamper with evidence, held that the circumstances does not warrant, on the facts of the said case, to suspend him. In that case, one unarmed Police Constable was chargesheeted for being found under the influence of alcohol on 30-4-1984 near his room No.28 in Block 4 of Madhupura Police Lines while he was attached to Shahibaug Police Station. Only on 4-3-1986 the constable in that case came to be suspended. Considering the nature of the offence and also the circumstances that attached to that case, the Bench thought that the suspension order cannot be continued. There is absolutely no general proposition in that decision that when there is a delay in passing the order of suspension, such an order cannot stand. As far as the present case is concerned, we are able to see the nature of the offence alleged to have been committed by the appellant herein. If proved, it will definitely involve moral turpitude and such a person cannot be allowed to be in service for a moment. After investigation, the chargesheet came to be filed after four years. There is no gainsaying in mentioning that all these four years the appellant has not committed any offence. The suspension order clearly states that the appellant has shown behaviour of corrupt practice, not befitting to a Police Officer. Drawing an inference from the same, the learned Judge has also observed that if the appellant is continued in service he will have definitely an opportunity to repeat the same type of misconduct.
6. The argument that he has been transferred to Junagadh also cannot be appreciated for the purpose of striking down the suspension order. When a chargesheet has been filed, prima facie, alleging that corrupt practices have been committed by the appellant herein, the mere transfer cannot give him the right to continue in service. Wherever the appellant is posted, if the authorities is of the opinion that there will be a tendency on his part to be corrupt, there is no difficulty in upholding the order of suspension, even though he has been transferred. No doubt, such satisfaction has to be based upon relevant materials, which will not shock the conscience of the Court to come to the conclusion otherwise. In this case, there is a definite allegation regarding the corrupt practices perpetrated by the appellant herein.
13. Mr. Desai, learned AGP, has also relied upon the decision of the Supreme Court in the case of State of Orissa, through its Principal Secretary, Home Department v. Bimal kumar Mohanty , wherein it has been observed by the Supreme Court in paragraphs 13 and 14 as under :
13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave changes of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words, it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent’s continuance in office while facing departmental inquiry or trial of a criminal charge.
14. On the facts in this case, we are of the considered view that since serious allegations of misconduct have been alleged against the respondent, the tribunal was quite unjustified in interfering with the orders of suspension of the respondent pending inquiry. The tribunal appears to have proceeded in haste in passing the impugned orders even before the ink is dried on the orders passed by the appointing authority. The contention of the respondent, therefore, that the discretion exercised by the Tribunal should not be interfered with and this Court would be loath to interfere with the exercise of such discretionary power cannot be given acceptance.
14. I have heard both the learned counsels in detail. I have gone through the entire bunch of record as well as the detention order which is placed on record at the instance of Mr. Oza. I have also considered the judgments of the Apex Court as well as of this Court, which are referred herein above. It is required to be noted that one Babubhai Vithani lodged a complaint before Katar Gam Police Station, Surat. In the said complaint there is no allegation against Meraman Gheewala. As stated earlier the complaint is filed on 13th April, 2005 and, thereafter the petitioner recorded so-called statements on 14, 18 and 20th April, 2005. By recording statements of witnesses, one of which is of Madhubhai Chovatia recorded on 14-4-2005, the petitioner has tried to implicate said Meraman Gheewala. Similarly, so called statements of other witnesses have also been recorded on 20th April, 2005. The petitioner has also recorded so called statement of original complainant Babubhai Vithani which is dated 20th April, 2005 and as per the said statement Meraman Gheewala obtained signature of original owner Sukhiben on a blank paper and had taken away Rs. 22,50,000/- from the plot holders. It is pointed out that the role of aforesaid Meraman Gheewala has been brought into picture by the petitioner during recording statements of aforesaid so called witnesses between 14th April and 20th April, 2005. When D.C.P., Mr. Khurshid Ahmed investigated the said aspect of the case, all these witnesses have clearly stated before him that they have never given such statements and all these statements have been recorded by the petitioner on his own. In this connection even the original complainant has stated that on the relevant date, he was out of Surat city. On further investigation, the department has also placed on record further evidence along with further affidavit of the Police Commissioner, which is at page 161 along with some documents. However, it is not necessary to refer to all these documents as this Court is not trying criminal case nor is dealing with departmental inquiry. However, in order to find out whether there is any prima face case to suspend the petitioner, it is relevant to refer to page 224, which is a fax message dated 1st July, 2005 sent by Superintendent of Police, Hardwar to the Deputy Commissioner of Police, Surat city. As per the said message, the complainant Babubhai Vithani with others visited Madhavanand Ashram of Hardwar city between 27th April to 28th April, 2005 and there is an entry in the register of the said Ashram, showing that the aforesaid people have stayed there. Entry of the register is also produced on page 227 of the compilation. Similarly, there is also a letter from Shri Mata Vaishno Devi Shrine Board, Katra to D.C.P., Surat which is at page 228, wherein it is stated that one Mr. Pankaj, who had accompanied the complainant and other touring party, had visited that place between 23rd and 24th April, 2005. The aforesaid officer has also recorded statement of said Pankajbhai Patel, who is residing at Bombay. As per his statement dated 30th June, 2005, Pankajbhai has stated that he is residing at Bombay and it was decided by him and his relatives to visit Kashmir and other such places during summer period and as per his statement, four families whose names are disclosed in his statement had decided to go to Kashmir and other places and he got the reservation confirmed from Mumbai to Jammu. He has stated in his statement that as per the reservation they were required to leave on 15th April, 2005. As per his statement, one Rameshbhai was to accompany the touring party but in view of a sudden death in his family, he could not accompany them and five days before the date of journey Nareshbhai informed Pankajbhai about the aforesaid aspect and therefore, there were four excess tickets, two full tickets and two half tickets. One Nareshbhai, who is a friend of the complainant and who was also to accompany the touring party, had informed said Pankajbhai that his friend Babubhai Vithani is willing to join them and therefore, it is not necessary to cancel the tickets and accordingly, the complainant Babubhai Vithani along with his family members travelled along with other members of the touring party and they boarded the train on 15th April, 2005 and accordingly the complainant has travelled in the name of Rameshbhai and his family members. Statements of other persons, who accompanied the complainant have also been recorded. Statement of original complainant Babubhai Vithani is also recorded by D.C.P., Surat, wherein he has stated that he was not in Surat city on the relevant date. Said Babubhai Vithani has also produced some photographs showing that he was at Kashmir on the relevant date. All these photographs are also annexed along with additional affidavit. There is also a photograph at page 245, the said photograph is of complainant, his wife and two children. Mr. Oza for the petitioner has also fairly submitted that these photographs are of original complainant Babubhai. However, he submitted that it may be true that on the relevant date, original complainant might have visited Kashmir or other places but there is nothing to show that he has boarded the train on 15th April, 2005. Similarly, Mr.Khurshid Ahmed, D.C.P., Surat has also recorded the statement of another witness Ratansinh Valsinh, whose so called statement was also recorded on 20th April, 2005 by the petitioner. Said Ratansinh Valsinh has stated in his statement that he was at his native place on the relevant date and he has also produced certificate of the Gram Panchayat, which is at page 255, and as per the said certificate Ratansinh Valsinh was out of Surat city from 13th April, 2005 and had taken part in SRamayan Festival¬ in village-Raniyana between 15th April to 24th April, 2005. Over and above the said certificate, there are statements of other residents of the said village including statement of Sarpanch, stating that said Ratansinh Valsinh was in that village during the aforesaid period.
15. In my view, there is prima facie evidence on record to suggest that neither of the aforesaid persons were in Surat city on the relevant date when the so-called statements were recorded by the petitioner as an investigating officer. Considering the aforesaid aspect of the matter as well as considering the report of the Deputy Commissioner of Police, Mr. Khurshid Ahmed, it is clear that the petitioner had recorded the statement of complainant and other witnesses even though they have not given such statements. Even D.C.P., has found that with an oblique motive the petitioner has recorded the statements against Meraman Gheewala, even though his name was not disclosed in the original complaint and even though none of the witnesses have tried to implicate Meraman Gheewala in the aforesaid case.
16. Considering the aforesaid aspect of the matter as well as considering the fact that even the petitioner had not suggested to the authority to detain said Meraman Gheewala under PASA, at the time of sending proposal to detain other three accused persons whose names have been disclosed in the original F.I.R., and especially when the petitioner has stated in his proposal that said Gheewala has acted as an arbitrator or mediator, in my view, it cannot be said that the respondent-Police Commissioner has committed any error in passing the suspension order against the petitioner as aforesaid material prima facie shows that the petitioner has recorded the statements of certain witnesses, who were in fact not in the city and that he has tried to book a person even though the complainant has never tried to implicate that person as an accused. So far as argument of Mr. Oza that, since the original complainant has settled the dispute naturally he would not try to support the petitioner, is concerned, in my view, there is no substance in the same because there is prima facie material available on record that the complainant and one another person were not there in the city yet their statements are recorded by the petitioner. Even as per the say of Mr. Desai, learned AGP even in the case diary the petitioner has not mentioned that he has recorded the statement of said complainant on the relevant date. Simply because the complainant has settled the dispute which may or may not be in accordance with law is no ground for coming to the conclusion that the say of the complainant that he had never given such statement to the petitioner is not correct, especially when there is prima facie material on record to suggest that on the relevant date the complainant and other witnesses were not even in the city.
17. It is required to be noted that so far as order of suspension is concerned, this Court is required to find out whether there is any prima facie case for such suspension or whether order of suspension is passed with some ulterior motive. As per the prima facie evidence available on record, it cannot be said that the suspension order suffers from any illegality or it is passed with mala fide or arbitrary intention. Mr. Desai has rightly pointed out that even in the petition the petitioner has not stated that, with an ulterior motive and in order to see that the petitioner may not get the benefit of promotion, such order is passed. It is equally not possible to accept the argument of Mr. Oza that since the Police Commissioner wants to protect said Meraman Gheewala, aforesaid order of suspension is passed. As a matter of fact, the Commissioner has entrusted the inquiry to D.C.P., which was undertaken only to find out whether there is any prima facie case to suspend the petitioner and on the basis of the report of the said officer, the Commissioner has passed the order suspending the petitioner. Even assuming that said Mr. Gheewala was involved in some other cases is no ground for coming to the conclusion that the Police Commissioner has suspended the petitioner only to protect said Mr. Gheewala. Even if the aforesaid person is involved in some other cases, is no ground for wrongly implicating him in the present case by the petitioner on the basis of so called statements of witnesses who have stated that they have never given such statements to the petitioner. As stated earlier, the petitioner has not even suggested for detention of Meraman Gheewala under PASA and the Commissioner has passed the order of detention against three accused persons on the basis of the report of the petitioner. In my view, before passing suspension order it is not necessary to hold any detailed inquiry, however, in the instant case, Deputy Commissioner of Police, one Mr.Khurshid Ahmed has conducted the inquiry by recording statement of witnesses and has submitted his report, on the basis of which ultimately the suspension order is passed against the petitioner by the Commissioner. Such investigation was carried out independently by Deputy Commissioner of Police, Mr.Khurshid Ahmed, who was also present before this Court during the course of hearing of this petition and he has stated that he has carried out the investigation in an impartial manner. He has also stated that the witnesses have deposed before him that they have never stated anything about Meraman Gheewala yet the petitioner has tried to make out a case as if Meraman Gheewala was an accused in the aforesaid case by recording false statements.
18. As regards the argument of Mr. Oza that the petitioner is subjected to suspension order by way of victimizing him as he belongs to minority community is concerned, it is required to be noted that no such averment is made in the petition and such argument is advanced only at the time of hearing of this petition. An independent officer has investigated the case and on the basis of report of such officer the petitioner is suspended, therefore, I do not find any substance in the aforesaid argument of Mr. Oza to the effect that it is a case of victimization.
19. Considering the material on record, it cannot be said that the order of suspension is illegal or arbitrary. In my view, the petitioner is required to be kept away from active service considering the fact that he is in police department and his presence may affect the pending departmental inquiry.
20. So far as the argument of Mr. Oza that there is nothing to show that the complainant and other persons have boarded the train on 15th April, 2005 is concerned, it is stated by Mr. Pankajbhai in his statement that he along with complainant and other family members boarded the train on the aforesaid date and there is corresponding documentary evidence on record that on subsequent days the complainant and other family members were at Hardwar and other such places and photographs in this regard are also produced on record. Therefore, this Court cannot come to the conclusion that the entire case is fabricated against the petitioner and prima facie there is nothing to show that with an oblique motive such suspension order is passed. On the contrary, there is enough material available on record to justify the suspension of the petitioner from active service.
21. Mr. Oza, however, submitted that on the date on which the suspension order was passed adequate material was not there and it is subsequently produced on record during the pendency of this petition. It is required to be noted that the suspension order of the petitioner is passed on the basis of the report of the D.C.P., which is based on the statement of the complainant and other such persons and during the pendency of this petition, further material is produced before this Court. Mr. Oza has fairly submitted that he is not in a position to say that the material which is produced on record is not reliable but he mainly argued that all these documents are subsequent to 20th April, 2005, i.e., later than the date on which so called statements were recorded by the petitioner. However, considering the facts and circumstances of the case, as narrated above, I hardly find any substance in the said argument of Mr. Oza.
22. Even if the original complainant has settled the matter illegally, the same is not a ground for coming to the conclusion that whatever he has stated about the factum of his presence in Kashmir or other places is required to be ignored. In my view, the order of suspension cannot be treated as an order of penalty and since the investigation is at large and inquiry is yet to be completed, the department is justified in passing the said order looking to the nature of allegations against the petitioner.
23. So far as the argument of Mr. Oza that the suspension order is required to be passed very sparingly is concerned, it is required to be noted that the petitioner is a responsible police officer, who was in-charge of an important police station of the city of Surat and while on duty he tried to book a person in a criminal case by recording false statements of some witnesses, who were not even in the city on the relevant date. Fair and impartial police investigation is the backbone of criminal trial as the fate of a person depends upon such investigation. Police investigation plays an important role in a criminal trial, therefore, it is expected from a police officer to carry out the investigation in an honest and bona fide manner. If it is found that a dishonest investigation is carried out by a police officer by recording false statements, in my view, it can be treated to be a very serious misconduct and even a major penalty can be inflicted. Accordingly, investigation is most vital and important aspect of the duty entrusted to a police officer. Therefore, it is not possible to agree with the argument of Mr. Oza that in the instant case, even if the charges are proved it may not result into major penalty. However, this observation is tentative in nature and it will have no bearing on the pending departmental inquiry.
24. I have also gone through the written submissions submitted by Mr. Oza. However, it is required to be noted that this Court is not conducting any full fledged departmental inquiry nor is trying a criminal case against the petitioner and so far as order of suspension is concerned, what is required to be seen is whether any prima facie material is available on record for passing such order.
25. It is required to be noted that when a police officer is subjected to departmental inquiry of such a nature and if he is allowed to continue in active service, it may hamper the pending inquiry proceedings and as argued by Mr. Desai, learned AGP, he may even try to influence the witnesses. Considering the aforesaid aspect of the matter, I do not find any substance in any of the arguments raised by Mr. Oza in attacking the suspension order.
26. Considering the aforesaid aspect of the matter, in my view, the order of suspension dated 18-5-2005, which is at Annexure-A, is not required to be interfered with by this Court, as I do not find any substance in any of the arguments advanced by Mr. Oza. The petition therefore deserves to be dismissed at an admission stage and is accordingly dismissed. However, it is clarified that the observations made in this order should be treated to be tentative in nature and since learned advocate Mr. Oza has requested that all points which are argued by him may be taken into consideration, I have dealt with all these points in detail and the aforesaid observations shall not have any bearing so far as pending inquiry is concerned. At the request of Mr. Oza, pending inquiry is ordered to be expedited and the department is directed to complete the departmental inquiry pending against the petitioner at the earliest and preferably within a period of six months from today. It is needless to say that in case the petitioner is exonerated in departmental inquiry, he should be taken back on duty with all consequential benefits on his original post.
27. Learned AGP submitted that all the attempts will be made to see that the inquiry is completed within the stipulated time without any further delay.
28. The petition is accordingly dismissed. Notice is discharged. No order as to costs.