Himant Kumar vs State of U. P. & Ors.

Heard Sri Vijay Gautam, learned counsel for the petitioner and learned Standing Counsel.

The petitioner has sought indulgence of the court and has challenged the impugned order of suspension dated 30th March, 2009 passed by the Superintendent of Police, district Lalitpur. The petitioner has prayed for a writ in the nature of mandamus directing the respondents to reinstate the petitioner in service and allow him to join his duties with all consequential benefits and salary.

The facts of the cast as case out from the records are that petitioner is posted as Sub Inspector at Police Out Post Kailguwan, Police Station Banpur, Lalitpur. He was incharge of police station aforesaid. It is claimed that while petitioner was on special patrolling due to Lok Sabha Election on 29th March, 2009 along with two other constables on their motorcycles, the law and order situation arose when they reached Chiraulan Churaha, crossing of village Kailguwan.

The version of the petitioner is that on reaching the crossing aforesaid he saw two persons in a state of intoxication, holding ''Katta'' in their hands and fighting with each other. The petitioner and their companion constables immediately stopped their motorcycles and intervened. In the meantime some local residents of the village also assembled and started abusing the petitioner and the two constables with him. The villagers also pelted stones threatening them for intervening in the matter. In the situation the petitioner along with his colleagues were somehow able to run away the village crossing as some persons fired from their firearms upon them. A number of persons are said to have received injuries in the said incident.

It is averred that the unruly mob gathered at the Police Station and F.I.R. was lodged at about 12:30 in the night of 29/03/09 as Case Crime No. 414/09 under section 307, I.P.C. against the petitioner and two constables.

The petitioners also lodged F.I.R. against 37 named and 150 unnamed persons under sections 147, 148, 149, 307, 332, 353, 188, 323, 504 & 506, I.P.C. read with 7 Criminal Law and Amendment Act which was registered as Case Crime No. 414A/09 in the Police Station, Banpur.

It is urged by the counsel for the petitioner that the impugned order of suspension has been passed by the Superintendent of Police under Rule 17 (1) of the Uttar Pradesh, Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 which provides that the order of suspension may be passed by the appointing authority or by any other authority not below the rank of Superintendent of Police, authorised by him in this behalf.

Learned counsel for the petitioner submits that in the present case appointing authority of the petitioner is the Deputy Inspector General of Police, hence the order passed by the Superintendent of Police, Lalitpur is prima facie without jurisdiction. It is stated that it is only the appointing authority who can suspend the Police Officer under Rule 17 (1) B of the 1991 Rules aforesaid and that the order of suspension being against the aforesaid Rule 17 (1) B, is bad.

It is alleged that neither any departmental proceedings are pending nor contemplated against petitioner, hence the suspension order in violation of Rules 17(1) of the 1991 rules, is illegal. The power of suspension could be exercised only if the charges are so serious which may entail dismissal or removal from the service or reduction in rank of the petitioner.

At this stage reference to the F.I.R. lodged by the villagers may be made which is as under:

(Vernacular matter omitted... Ed.)

In pursuance of the aforesaid F.I.R. the order of suspension has been passed as under:

(Vernacular matter omitted... Ed.)

Perusal of the F.I.R. shows that the petitioner has misused the power as incharge of the Police Station along with his two constables and later on as a counter blast, lodged an F.I.R. against the villagers in order to protect himself from the F.I.R. lodged by the villagers.

The duty of the Police Officer is to protect the public and not indulge in ''Rahjani'', dacoity or for extracting money or any other act against law. From the above there appears to be no reason for the villagers to have intervened in the matter. The injured from gun shots alleged to be fired by the policemen are villagers, not the petitioner.

These questions of fact require ordinarily findings which can only be recorded if the parties adduced oral and documentary evidence which is not feasible in writ jurisdiction. Neither medical reports nor ballistic reports etc. are available on record, it is not feasible for the Court to take any decision in the matter and record any findings of fact.

In these facts and circumstances of the case, writ petition is dismissed on the ground of alternative and efficacious remedy.