TMI Blog2009 (5) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... r Law? (iv) Whether citizen including Government employees or the members of Police Force have right to file affidavit in a court under judicial proceedings and in case filed then whether only because of such action, such person can be permitted to face disciplinary action or may be punished for that action under Law time being in Force? Brief Facts 2. Petitioners , who are Head Constables and Constables of U.P. Police Department were deputed for guard duties in the year 2002 at the residence of one Shri Akhilesh Singh Member of Legislative Assembly. On 3.7.2002 an incident of murder of one Shri Rakesh Pandey in district Raebareli took place. In consequence thereto a case crime no. 311/02 under Section 302/395/120-B I.P.C. was lodged in Police Station Kotwali, District Raebareli. Shri Akhilesh Singh was named as an accused. Shri Akhilesh Singh in the year 2002 had filed a Writ Petition No. 5045 (MB) of 2002 in the Lucknow Bench of High Court for quashing of FIR and staying of arrest. The writ petition was dismissed almost after lapse of five years on 26.8.2007. In the aforesaid writ petition affidavits (Annexure-5,6,7 and 8 to the writ petition) were filed by the petitioners wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petition) on the petitioners. In response to which the petitioners had submitted their reply (Annexure-15). After receipt of reply submitted by the petitioners, the Senior Superintendent of Police Lucknow, while disagreeing with the report of enquiry officer, recorded a finding that affidavit filed by the petitioners in the High Court was for personal gain and it tarnishes the image of police department, hence, deserves major penalty. The Senior Superintendent of Police observed that it was incumbent upon the petitioners to ensure the arrest of the accused who absconded after murder but instead of arresting, affidavit was filed in the High Court for personal gain. The disciplinary authority while passing the impugned order of punishment dated 18.6.2008 had awarded major penalty of dismissal from service. 4. Shri Amit Bose, learned counsel for the petitioners while assailing the impugned order stated that the petitioners are entitled for immunity being a witness in a case which was decided by this High Court under writ jurisdiction. According to learned counsel for the petitioner the filing of affidavit narrating correct fact does not constitute misconduct unless the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating behaviour and conduct which may be in force. For convenience Rule 3 (1) and 3(2) is reproduced as under:- 3. General- (1) Every Government servant shall at all times maintain absolute integrity and devotion to duty. (2) Every Government shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force. 5. Rule 8 of the 1956 RULEs further provides that no government servant except with the previous sanction of the Government give evidence in connection with any enquiry conducted by any person, committee or authority. While giving such evidence government servant shall also not give any statement which amount to criticize the policy of the State Government or the Central Government. For convenience RULE 8 is reproduce as under :- 8. Evidence before committee or any other authority-(1) Ave as provided in sub-rule (3) no Government shall, except with the previous sanction of the Government, the Central Government, or any other State Government. (3) Nothing in the rule shall apply to- (a) evidence given at any inquiry before an authority appointed by the Government, by the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such offence, or (iii) Of any criminal conspiracy to commit, such offence, Except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; 1 (b) (i) Of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, or (ii) Of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or (iii) Of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that court, or of some other court to which that court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communicate information with regard to commission or intention of any person to commit offence to nearest Magistrate or Police Officer. For convenience Section 39 of the Cr.P.C. is reproduced as under:- Section 39 Public to give information of certain offences.(1) Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely:- (i) Sections 121 to 126, both inclusive, and Section 130 (that is to say, offences against the State specified in Chapter VI of the said Code); (ii) Section 143,144,145,147 and 148 (that is to say, offences against the public tranquillity specified in Chapter VIII of the said Code); (iii) Sections 161 to 165-A, both inclusive (that is to say, offences relating to illegal gratification); (iv) Sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.) (v) Sections 302, 303 and 304 (that is to say, offences affecting life); [(v-a) Section 364 (that is to say, offence relating to kidnapping for ransom, etc.);] (vi) Section 382 (that is to say, offence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that answer will criminate A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit 5 or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate or may tend directly or indirectly to criminate such witness or that it will expose or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind; Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. Section 136. Judge to decide as to admissibility of evidence - When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Hira H.Advani etc. Vs. State of Maharashtra held that the Evidence Act is a complete Code in itself repealing all the rules of evidence not to be found therein. There is no scope for introduction of a rule of evidence in criminal cases unless it is within the four corners of Section 132 or some other statutory provision. 9. It is settled law that a thing should be done in the manner provided by the Act or Statute and not otherwise vide Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; Deep Chand Versus State of Rajasthan, AIR 1961 SC 1527, Patna Improvement Trust Vs. Smt. Lakshmi Devi and others, AIR 1963 SC 1077; State of U.P. Vs. Singhara Singh and other, AIR 1964 SC 358; Barium Chemicals Ltd. Vs. Company Law Board AIR 1967 SC 295, (Para 34). 10. It is the statutory duty of citizen to communicate information with regard to commission or intention to commit an offence to the nearest Magistrate or police officer. Corollary to circumstances given in Section 39 of the Cr.P.C. it shall be the duty of every citizen to communicate the nearest Magistrate or 7 Police Officer with regard to false implication of a person in a criminal case. On the one hand, it is necessary to assist th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, it was observed that such a provision, through extraordinary and perhaps an oversight, could not be eliminated. In AIR 2005 SC 1090, Manik Lal Majumdar and others Vs. Gouranga Chandra Dey and others, Hon'ble Supreme Court reiterated that legislative intent must be found by reading the statute as a whole. 12. In 2006 (2) SCC 670, Vemareddy Kumaraswami Reddy and another Vs. State of Andhra Pradesh, their Lordship of Hon'ble Supreme Court affirmed the principle of construction and when the language of the statute is clear and unambiguous court can not make any addition or subtraction of words. In AIR 2007 SC 2742, M.C.D. Vs. Keemat Rai Gupta and AIR 2007 SC 2625, Mohan Vs. State of Maharashtra, their Lordship of Hon'ble Supreme Court ruled that Court should not add or delete the words in statute. Casus Omisus should not be supplied when the language of the statute is clear and unambiguous. In AIR 2008 SC 1797, Karnataka State Financial Corporation Vs. N. Narasimahaiah and others, Hon'ble Supreme Court held that while construing a statute it can not be extended to a situation not contemplated thereby. Entire statue must be first read as a whole then s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against one in a particular manner, it may not only be exercised against him but also against the other in the same manner. It is a trite law that the entire statute must be first read as a whole then section by section, clause by clause, phrase by phrase and word by word. [See Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. And others, (1987) 1 SCC 424, Deewan Singh and Ors. Vs. Rajendra Pd. Ardevi and Ors., 2007 (1) SCALE 32 and Sarabjit Rick Singh Vs. Union of India, 2007 (14) SCALE 263] Para 26 While interpreting the provisions of a statute, the Court employs different principles or canons. To interpret a statute in a reasonable manner, the court must place itself in the charir of a reasonable legislator/author.[See. New India Assurance Company Ltd. Vs. Nusli Neville Wadia and Anr. [JT 2008 (1) SC 31]. Attempt on the part of the court while interpreting the provisions of a statute shoujld, therefore, be to pose a questionas to why one provision has been amended and the other was not? Why one terminology has been used while inserting a statutory provision and a different clause in anotjer? It is well-known that casus omissus cannot be supplied.[See ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Lordships held that burden of proving guilt was on employer. Misconduct is reduced to the breach of rule, from which breach injuries actionable or otherwise could reasonably be anticipated is depend upon each case. In the case of Ranjit Singh vs. State of Pepsu, reported in AIR 1959 SC 843: Hon'ble Supreme court has held that section 4 of the Oaths Act lays down the authority to administer oaths and affirmations and it prescribes the courts and persons authorized to administer by them selves or by their officers empowered in that behalf oaths and affirmations in discharge of the duties or in exercise of the powers imposed upon them and they are, all courts and persons having by law the authority to receive evidence. Section 5 of the Oath Act prescribes the persons by whom oaths or affirmations must be made and they include all witnesses i.e. all persons before may lawfully be required to give evidence by or before any court. These two sections show that the High courts or its officers are authorized to administer the oath. While taking the oath or affirmation a person is bound to state the truth. 32. In the case of Rasik Lal Vaghaji Bhai Patel vs. Ahmedabad Municipal C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 2 38. In the case of State of Punjab vs. Ex-Constable Ram Singh (1992) 4 SCC 54: It was decided by the Apex court that the word misconduct though not capable of precise definition as reflection receives its connotation from the context, the delinquency in its effect on the discipline and the nature of duty. It may involve moral turpitude, it must be improper or wrong behaviour, unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgement, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and context where in the terms occurs; regard being had to the scope of the statute and public purpose it seeks to serve. 39. In the case of G.M. Appellate Authority, Bank of India vs. Mohd. Nizamuddin (2006) 7 SCC 410: Hon'ble Supreme court has held that, it is well settled law that gravity of misconduct has to be measured in terms of the nature of misconduct. (Para 9) 40. In view of above, merely because the petitioner had filed an affidavit narrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice. It is too late to argue that as if it were doubtful. By complete authority including the authority of this House it has been decided that the privilege of a witness, the immunity from the responsibility in an action where evidence has been given by in a court of justice, it is too well established now to be shaken. 46. Sallmon J. observed in Marrinan Vs. Vibart [1963 1 QB 234; 237 that this immunity exists for the benefit of the public since the administration of justice would be greatly impeded if witnesses were to be fair, that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involved them in costly litigation. 47. In Roy Vs. Prior [1971 ]AC, 470, 480, Lord Wilberforce, observed that immunities conferred by the law in respect of legal proceedings needs always to be checked against a broad view of the public interest. 48. In Rees Vs. Sinclair [1974] 1 NZLR 180, 187, Lord Clyde dealt with the matter more extensively. It is temptingly easy to talk of the application of immunities from civil liability in general terms but since the immunity may cut across the rights of others to a legal remedy and so runs coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olicy, is shared by all witnesses in regard to the evidence they gave when they are in the witness box. It extends to anything said or done by them when they are in the court of justice the same immunities is given to the parties, their advocates, jurors and the judge. They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of proceedings were said or done falsely and maliciously and without reasonable and probable cause. 53. In the Earl of Halsbury LC said in Wantson Vs. M' Etvan, Watson Vs. Johns [1905] AC 480, 487, it has been held that the public policy which renders the protection of witnesses necessary for administration of justice must as a necessary consequence extend to the preliminary examination of witnesses to find out what they can prove. In Evans Vs. London Hospital Medical College (1981) 1 WLR 184, it was held that the immunity was available to the potential witness in criminal proceedings at the time when such proceedings were merely in the contemplation but had not yet commence. 54. In Taylor Vs. Director of Serious Fraud Office (1999) 2 AC 177 it was held that the immuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power of judicial body to test the credibility of witness with regard to evidence led during the course of judicial proceeding. Of course, in case, false statement is given or affidavit filed is not correct or person concern stood as witness for extraneous consideration then State Government or its authorities may approach the court by moving appropriate application keeping in view the provision contained in Section 195 of the Cr.P.C. read with Section 132 and 155 of the Evidence Act or other law time being in force and not otherwise. 57. Virtually, the provision contained in Section 195 of the Cr.P.C. read with Section 118,132,136 and 155 of the Evidence Act secures the public interest. It is meant to ensure the public confidence in the administration of justice. Witness appeared in court during the course of judicial process should not be exposed to the risk of having his or her evidence challenged in other process. 58. The immunity provided by Section 195 of Cr.P.C. readwith Section 340 of the Cr.P.C. is complete and cover all the cases where a person appears as a witness or in any other manner during judicial proceeding. Filing of affidavit or appearance of the witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the findings of the disciplinary authority. 18. Under Regulation - 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 62. In a case reported in 1999 (5) SCC 762, Bank of India and another Vs. Degala Suryanaryana, Hon'ble Supreme Court held that the disciplinary authority on receiving the report of the enquiry officer may or may not agree with the finding recorded by the latter. In case of disagreement, the disciplinary authority has to record the reasons for disagreement and then to record its own findings if the evidence available on record is sufficient for such exercise or remit the case to the enquiry officer for further enquiry and report (para 10) 63. In a case reported in 1999 (7) SCC 739, Yoginath D. Bagde Vs. State of Maharastra and others, Hon'ble Supreme Court held that it is open to the disciplinary authority either agree with the findings recorded by the enquiring authority or disagree with these findings. If it does not agree with the findings of the enquiry authority, it may record its own finding. A delinquent employees has the right of hearing not only during the enquiry proceeding conducted by the enquiry officer into the charges leveled against him but also at the stage of which those findings are considered by the disciplinary authority and the latter, namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not contain a provision defining misconduct. Under Service Rule it has not been provided that the government employee shall have no right to appear as witness or file an affidavit in a judicial proceeding. In the absence of any specific provision which may cover the present controversy the petitioner could not have been charged for misconduct because of filing of affidavit in the court. 70. Article 51-A cast upon a duty to be abided by a constitutional mandate and respect its ideals. Constitutional ideals means to do all things necessary to uphold the supremacy of law. Courts are bastion of social justice and meant to uphold the fundamental rights of the citizen. On the one hand, it is duty of courts to punish an offender on the other hand, it is also obligatory for the courts to see that 0 innocent persons are not persecuted or prosecuted by the government machinery or others. While discharging constitutional or statutory obligations the courts may take into account the evidence led by the parties. Thus filing of affidavit or making statement before the courts in dispensation of justice is immune from disciplinary proceeding or criminal prosecution unless under the statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd an action may be taken only in case it is found that statement given is false and improper by the court concerned. 1 For convenience relevant portion (para 7) from the Chennai High Court judgment in P. Loppas Samuel (supra) is reproduced as under:- 7. Though we have rejected the theory of 'absolute privilege' propounded by the learned counsel for the appellants, it does not automatically follow that every statement made by every witness in every proceeding, can form the basis for disciplinary action. From the law laid down by the Apex Court in the above mentioned case, it could be deducted that the evidence tendered by a witness, can form the subject matter of departmental proceedings only if- (a) it was found to be false and improper, by the court before which such evidence was tendered and (b) it was given in a case in which the employer was involved. 75. The Chennai High Court had referred the judgment of Hon'ble Supreme Court but it appears to be inadvertent mistake. Learned Standing counsel also admits that the judgment of Gujarat High Court and not of Supreme Court has been referred by Chennai High Court. 76. Learned Standing counsel had relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he filing of affidavit by the petitioners in this court may be termed as a step taken for wrongful gain. Solitary charge framed against the petitioners was that they have filed affidavit for some extraneous considerations or for personal gain which seems to have not been proved. 79. Whether filing of affidavit had tarnished the image of police department? Courts are the temple of justice. Every person who comes to this court expects that the controversy should be adjudicated justly and fairly. While adjudicating the controversy it is expected that every person who had got knowledge of the facts in issue pending for adjudication before the court shall appear and assist the court in dispensation of justice. Merely filing of affidavit does not seem to make out a case of misconduct. In any manner it shall not tarnish the image of government or the police department. Of course, in case an affidavit is filed narrating incorrect or false fact for extraneous reasons or considerations the court record such finding, then it may be treated as misconduct on the part of government servant and may tarnish the image of department/employer, where the person concerned is appointed as a govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not constitute misconduct. 83. Any statutory provision, Rules and Regulations which may create hurdle in placing the truth before the courts or quasi judicial authorities shall arbitrary, unjust and improper being violative of fundamental rights enshrined under Part III of the Constitution of India. It is for the preservation, protection, exploration and unearthing of the truth, courts have been created and in case, citizens or the government servants are prosecuted because of placing the correct fact before the court then it shall be antithesis of Rule of law. 84. To sum up:- (1) Courts discharge divine duty and to assist the Court is the constitutional as well as pious obligation. Telling the truth or placing of correct fact before the courts or before quasi judicial authorities is the 4 pious obligation of citizens as well as government servant and for such action neither the citizen nor a government employee can be prosecuted or tried for misconduct. (2). Filing of affidavit in the court or making an statement during the course of trial in the court does not constitute misconduct. Whether it is common citizen or a government servant it is their duty to assist th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be tried for misconduct only on the ground enumerated in the Service Rule and not otherwise. 85. In view of above, the impugned order seems to be passed on unfounded ground and is not a misconduct under Service Rule. Writ Petition deserves to be allowed. 86. The present case seems to be of its own kind brought before this Court. The question involved particularly with regard to immunity to the witnesses appears to be not covered by any previous known decision. To place on record, I appreciate the assistance provided by the learned counsel for the petitioner Shri Amit Bose as well as Shri Ashwani Kumar Agnihotri learned Standing counsel in deciding the issue, which is of public importance. 87. Writ petition is allowed. A writ in the nature of certiorari is issued, quashing the impugned orders of dismissal from service dated 18.6.2008 passed by the Senior Superintendent of Police, Lucknow as contained in Annexure-1 to 4 to the writ petition with all consequential benefits. Petitioners shall be restored in service forthwith expeditiously and preferably within a period of one month from the date of receipt of a certified copy of this order with all consequential benef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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