Patna High Court Directs DGP To Review Letter Stating SHO Will Be ‘Deemed Guilty’ If Illicit Liquor Is Recovered From Police Station Area

The Patna High Court has directed the Bihar Director General of Police (DGP) to review a letter dated 24-11-2020, addressed to all Senior Superintendent of Police (SSP), which contains a clause stating that in case of recovery of illicit liquor in an area, the concerned Station House Officer (SHO) and Chowkidar will be ‘deemed guilty’ for not collecting the information and taking necessary action and they will be proceeded against for their failure and inactiveness.

Justice Rajeev Ranjan Prasad observed that the letter assumes and pre-judges the guilt of the Station House Officer and Chowkidar even before framing of charge and conduct of an independent enquiry.

“...this court directs the Director General of Police, Bihar, Patna to revisit paragraph ‘3’ of the letter no. 63 dated 24.11.2020 which assumes and pre-judges the guilt against the Station House Officer and Chowkidar even before framing of charge and conduct of an independent enquiry. This has no sanction of law,” the court observed.

The court further held that such a clause in the letter raises a presumption of guilt even before framing of charge.

"Such presumption of guilt has no sanction of law and the same is violative of Article 21 of the Constitution of India. It is contrary to the principles of fair play in action," said the court.

Background

The court was hearing a petition filed by the petitioner who was posted as Police Inspector -cum- Station House Officer in Kankarbagh Police Station between the period 17.04.2020 to 30.11.2020. On 25-11-2020, a raid was conducted within the jurisdiction of his police station and 25 liters of country liquor (Mahua) was recovered. The officer was immediately placed under suspension and a direction was issued to initiate a departmental proceeding against him. Vide order dated 30.07.2021, a punishment of stoppage of one increment with non-cumulative effect was imposed upon him by the enquiry officer.

The petitioner preferred an appeal before the ADGP which was rejected. During the pendency of the appeal, the Deputy DGP under the direction of the DGP, while exercising powers under Rule 853A of the Police Manual, set-aside the punishment order dated 30.07.2021 and enhanced the punishment - whereby he was reverted to the post of Sub-Inspector for five years at the basic pay and further it was directed that he would not be entitled to get anything except his subsistence allowance.

The petitioner, thereafter, challenged the order of enhancement of punishment issued by the Deputy DGP,  Bihar and the order of the ADGP rejecting his appeal against the findings of the enquiry officer.

Submissions

While contending that not even a single witness was produced to prove the charge against him, the petitioner prima facie challenged the legality of the letter dated 24-11-2020 and argued that it leaves no room for the disciplinary authority to form any other opinion and in any case of recovery of liquor, the guilt is to be presumed against the concerned Station House Officer and the Chowkidar, which is against the principles of natural justice and it amounts to putting an embargo on free and independent exercise of mind by the disciplinary authority.

The State contended that the punishment order was passed based on the procedure established by law and therefore it deserves no interference by the court.

Analysis

While referring to the enquiry report the court noted that the enquiry officer found himself in a very difficult position because of the direction issued vide letter no. 63 dated 24.11.2020 in paragraph 3 which clearly orders that in case of recovery of illicit liquor from any police station area, the concerned station house officer would be held guilty.

“The enquiry officer has referred the aforesaid paragraph in his enquiry report to conclude the guilt against the petitioner,” the court observed.

While noting that there was an inherent defect in the framing of the charge itself against the petitioner, the court referred to the letter of the DGP and observed,

“This has no statutory sanction. Once the Director General of Police issued this direction to the S.S.P., the S.S.P./S.P. had no opportunity to apply his own independent mind as to whether the petitioner is liable to be proceeded against or if the kind of charges may be framed against him. The direction was coming from the top of the police echelon as if on mere recovery of illicit liquor of 25 liters from the Kankarbagh Police Station area, the Officer-in-Charge of the said police station is liable to be held guilty.”

The court also said that there is not a single witness to say as to how the petitioner may be said to have acted negligently and because of his failure to collect information and implementation of the prohibition laws in Kankarbagh area, illegal operation of Bhatti or factory or illegal sale of liquor has taken place. 

"Not a single example has been cited in course of enquiry to demonstrate that during the period of service of the petitioner, repeated recoveries were made from the same area,” the bench added.

The court concluded that the entire disciplinary proceeding, right from the stage of framing of charge, was vitiated and was therefore liable to be set-aside. It said disciplinary authority has simply gone by the opinion of enquiry officer without giving any opportunity to show cause to the petitioner

"In the opinion of this Court, this action of the disciplinary authority is in complete violation of principles of natural justice and it has seriously prejudiced the case of the petitioner," said the court.

While allowing the petition, the court held, “This Court, accordingly, sets-aside the impugned orders…The petitioner shall be entitled for all the consequential reliefs. The Director General of Police, Bihar, Patna shall issue necessary consequential order within a period of 30 days from the date of receipt/production of a copy of this order.”

Case title: Ajay Kumar vs. State of Bihar & Ors. Civil Writ Jurisdiction Case No. 737 of 2023

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