Johnson Solomon v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932** ## **WP(C).No. 33675 of 2003(H)** **PETITIONER:** **-------------------** **JOHNSON SOLOMON, HC E 3759, KURUPPAMPADY POLICE STATION, ERNAKULAM DISTRICT.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA** **VS** **RESPONDENTS:** **----------------------** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. DEPUTY INSPECTOR GENERAL OF POLICE, ERNAKULAM RANGE, ERNAKULAM.** ## **3. SUPERINTENDENT OF POLICE, ERNAKULAM RURAL, ALUVA.** **R1-R3 BY GOVERNMENT PLEADER, SRI.V.T.K. MOHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 33675 of 2003(H)** **------------------------------------** ## **APPENDIX** **---------------** ## **PETITIONER'S EXHIBITS** **------------------------------------** **EXT.P1. COPY OF THE MEMO NO.7/GCR/SDP/98 DATED 21.1.98 OF THE DEPUTY SUPDT. OF POLICE, PERUMBAVOOR.** **EXT.P2. COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, THADIYITTAPARAMBU DATED 27.1.98.** **EXT.P3. COPY OF THE ORDER NO.H1/30(A)/PR/98/ER(D.O.679/98 ER) DATED 25.11.1998 OF THE 3RD RESPONDENT.** **EXT.P3(A). COPY OF THE APPENDED PUNISHMENT ROLL MINUTESZ OF EXT.P3.** **EXT.P4. COPY OF THE MEMORANDUM OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY INSPECTOR GENERAL OF POLICE, CENTRAL RANGE, ERNAKULAM.** **EXT.P5. COPY OF THE ORDER NO.A2-114/APPEAL /2000/ER DATED19.52001 OF THE DEPUTY INSPECTOR GENERAL OF POLICE, CENTRAL RANGE, ERNAKULAM.** **EXT.P6. COPY OF THE G.O. (RT) NO.1100/2002/HOME DATED 20.5.2002.** **EXT.P7 COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER DATED NIL.** **EXT.P8. COPY OF THE GOVERNMENT LETTER NO.63844/H1/02/HOME DATED 24.12.2002.** **EXT.P9. COPY OF THE LETTER NO.A1-7060/99 ER (4) DATED 30.12.2000 OF THE 2ND RESPONDENT.** **RESPONDENT'S EXHIBITS : NIL** **------------------------------------** **/ TRUE COPY /** ## **P.A. TO JUDGE** **VK** ## **T.R.RAMACHANDRAN NAIR,J. ------------------------------------W.P.(C)No.33675 Of 2003 ----------------------------------------------------DATED THIS THE 21[st] DAY OF JANUARY, 2011** **J U D G M E N T** The petitioner is aggrieved by the orders culminating in Exhibit P6 whereby a minor punishment imposed was confirmed. 2. The petitioner has already retired from service as Head Constable. He was working as Head Constable in the Thadiyittaparambu Police Station in Ernakulam Rural Police District, when the action was initiated against him. He had occasion to register a crime as Crime No.6/98 under Section 376 IPC and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities)Act. When the express report was sent to the higher authorities, Section 3(1) of the Act was omitted to be included. This was noticed by him immediately after sending the express memo to some of the higher authorities. But, before sending the original FIR to the Court and the copy to the Circle Inspector of Police, it came to the notice of the petitioner and the mistake was rectified. But the Deputy Superintendent of Police, Perumbavoor issued Exhibit P1 to the Sub Inspector of Police calling for his explanation in the matter as W.P.(C)No.33675/03 -2- well as that of the petitioner. Even though the petitioner filed Exhibit P2 explanation, he was issued Exhibit P3 charge memo. 3. What is mentioned in Exhibit P3 is that by not mentioning Section 3(1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, he has indulged in serious dereliction of duties, negligence, etc. 4. The first authority in Exhibit P3(a) order after referring to the various aspects found that the action of the petitioner in not including the particular offence at the time of registration of the crime and not sending it to the proper court is dereliction of duty. This was confirmed by the appellate authority mainly for the reason that the appeal was delayed. In the review order Exhibit P6 also that finding has been accepted. 5. The learned counsel for the petitioner submitted that there was no allegation in Exhibit P3 that the FIR was sent to a wrong court. It is pointed out that in the light of the decision of the Apex Court in **Gangula Ashok v. State of A.P. [2000(1) KLT 609(SC)]** , the forwarding of the same to the Magistrate Court is in accordance with law and therefore the said finding in Exhibit P3(a) cannot be sustained. W.P.(C)No.33675/03 -3- 6. This is a case where the petitioner registered a crime under Section 376 IPC and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities )Act. Evidently, the omission was in putting “Section 3(1)” before the words ”(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act. Immediately on finding that a mistake has been committed in the express report, he corrected it in the FIR before sending it to the Court and in the report sent to the Circle Inspector. The same is not a disputed fact. Therefore, the alleged omission has only occurred in the express report sent to the Deputy Superintendent of Police. 7. The petitioner's explanation in this context is important. According to him, while recording it in the photostat copies, the omission was noticed and immediately that was corrected and in the original FIR sent to the court also it was included and thereafter it was despatched to the Court as well as to the Circle Inspector of Police. What is discernible from the same is that he had acted diligently in including the correction, immediately it was found out and no prejudice has been caused to the prosecution also, as the correction is made at the initial W.P.(C)No.33675/03 -4- stage itself. This is not a case where the petitioner did not include a particular Section in the special enactment, namely, the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities)Act, 1989. The offence if correctly described would have been read as “Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities)Act, 1989” and what is recorded initially was “(xi) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities)Act, 1989”. As rightly pointed out by the learned counsel for the petitioner, there was no intentional or wilful act to exclude any of the offences under the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities)Act, 1989. Therefore, evidently, it was only a mistake while preparing the same. But, immediately as a trained and diligent person, he corrected it and despatched the proper copies to the Magistrate Court. 8. All the authorities took the view that there had been dereliction of duty on the part of the petitioner. But if the entire aspects are considered, it can be seen that there has not been any serious lapse on the part of the petitioner. Corrected entry should have been made in the express memo also, but that W.P.(C)No.33675/03 -5- mistake cannot be termed as a misconduct in the true sense, to attract the present punishment. 9. The learned Government Pleader submitted that the petitioner despatched the original copy of the FIR to the wrong court. But the said allegation is not a part of the memo of charges. In the light of the decision of the Apex Court mentioned above, no illegality has been committed by him. It cannot be said that the omission was so wilful or negligent warranting punishment. The view taken that the petitioner is liable to be imposed a penalty even though fine, cannot be supported. In the result, the Writ Petition is allowed. The impugned orders are quashed. Since the petitioner has retired from service, only the notional benefits will have be granted to him including promotion, if any. The actual retirement benefits will be disbursed within a period of three months from the date of receipt of a copy of this judgment. No costs. ## T.R.RAMACHANDRAN NAIR, JUDGE. dsn