# Yamuna Singh & Ors v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 791
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-31
- **Case number:** Writ-A No. 10854 of 2022
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yamuna-singh-ors-v-state-of-u-p-ors-47848
- **Pages:** 17

## Headnote

A. Service Law - Disciplinary Proceedings
along with Criminal Proceedings - U.P.
Police Officers of Subordinate Ranks
(Punishment and Appeal) Rules, 1991 -
Rule
14(1);
U.P.
Police
Regulations:
Regulation Nos. 486, 492 and 493 - Before
taking a decision whether to proceed or
not with the departmental inquiry, the
concerned authority has to apply mind on
facts of the charge in departmental
proceedings as well as contents of F.I.R.
and the charge if framed in the criminal
proceedings and if the authority arrived at
a
conclusion
that
departmental
proceedings and criminal case are based
on, identical set of facts and continuation
of
departmental
proceedings
would
adversely effect, the case of delinquent or
he would be prejudiced, then only, a
decision could be taken not to proceed
with departmental inquiry till the trial is
over. Even thereafter, if there is an inordinate
delay in conclusion of trial, after a reasonable
time, the concerned authority may review the
decision and would have a liberty to proceed
with the departmental proceedings. (Para 13,
15)

B. U.P. Police Regulations: Regulation Nos.
486 - The Regulation 486(II) would come into
picture when a complaint is made to police
authority against any police personnel about his
involvement in a non-cognizable offence, and
the police authority would be at liberty to lodge
an F.I.R. or initiate departmental proceedings
and for that purpose, preliminary inquiry has to
be conducted. So far as report of cognizable offence is concerned, procedure is prescribed
u/Regulation 486(I) that police investigation be
carried on and in case final report is accepted,
departmental inquiry can be initiated, however,
it is now mandatory to register F.I.R. where the
in-formation discloses commission of cognizable
offence and further there may be a different
situation when criminal investigation is initiated
on an F.I.R. lodged by complainant/victim and
departmental
proceedings
are
initiated
separately on same or similar facts and in these
circumstances, the department has also liberty
to take a decision in terms of Regulation 492
and 493 as well as considering the judgment of
Capt. M. Paul Anthony (infra), which lays down
the
factors
to
be
considered
for
continuation/staying
of
departmental
proceedings in case of simultaneous criminal
proceedings. (Para 16)

C. Standard of proof - The standard of proof
required in a departmental proceedings and in a
criminal case is different, as the proof
required in a departmental proceedings is
one of preponderances of probability
whereas in a criminal case, charge has to
be
proved
by
prosecution
beyond
reasonable doubt and further that the
evidence led in the departmental inquiry could
not be read in a criminal case. A criminal trial is
considered to be commenced only before a
Court of Sessions u/Chapter XVIII of Cr.P.C.
when u/s 226 (opening case of prosecution)
after commitment of the case u/s 209 Cr.P.C.,
therefore, till proceedings are reached upto that
stage, Regulations No. 492 and 493 have no
role. (Para 7, 17)

In the present case, in criminal case,
investigation
is
still
not
concluded,
therefore, as held earlier, stage has still
not come for consideration of Regulations
No. 492 and 493. The contents of charge in
the departmental proceedings are referred in
para 11 of this judgment that are of negligence
and due process was not followed by the
petitioners
when
victim
was
kept
under
detention, so much as no medical facility was
provided as well as he was not produced before
the Magistrate within 24 hours as prescribed
under Criminal Procedure Code whereas in the
first part of F.I.R., there was no allegation
against petitioners, however, in later part of
F.I.R., an allegation against the petitioners was
also made that deceased was kept under
detention illegally and no medical treatment was
given to him. (Para 19)

Therefore,
it
cannot
be
said
that
departmental proceedings and criminal
case are based on absolutely identical set
of facts, though, similar

## Text

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10 All. Yamuna Singh & Ors. Vs. State of U.P. & Ors.
791
hearing the party concerned and likely to be
affected."

15. In this conspectus as above, I find
substance in the submissions advanced by
the learned counsel for the petitioners that
orders under challenge are passed behind
the back of recorded tenure holders who are
adversely affected owing to orders passed
disturbing the revenue entries made in their
favour. There is no indication in the orders
impugned passed by the Consolidation
Officer qua issuance of notice to the
recorded tenure holders and affording them
opportunity of hearing. The impugned
orders are passed in blatant violation of
natural justice and fair play. Long standing
entries in the name of the recorded tenure
holders, who have conferred their right as
bhumidhar-with-transferable
right
by
operation of law under Section 131-A of
UPZA and LR Act, cannot be expunged in
such
a
rough
and
casual
manner.
Considering the long standing entry based
on allotment of land in lease, this Court
cannot remain oblivious to the valuable
rights vested in the recorded tenure holders
and they deserve fair trial to protect their
title over the property in question.

16. With this observation, without
considering the merits of the case as a
averred in the writ petition qua right and
title of the petitioners, the present writ
petition succeeds and is allowed, on the
limited point of opportunity of hearing. The
order impugned dated 19.10.2016 and
23.12.2020 are hereby quashed. The matter
before the Consolidation Officer is restored
to its file. Parties are relegated before the
Consolidation Officer to get the matter
decided de novo.

17. Petitioners are at liberty to file all
the relevant documents and take all
possible pleas available to them to defend
their right and title over the property in
question.
The
petitioners
are
hereby
directed to submit their complete pleading
along with the corroborative evidences in
support
of
their
claim
before
the
Consolidation Officer possibly on or before
30.9.2022. The Consolidation Officer, in
turn, shall make all endeavour to consider
and
decide
the
case
expeditiously
preferably within a period of five months
from September 30, 2022.

18. It is expected that the case of
every individual shall be considered and
decided by a reasoned and speaking order,
in accordance with law, after affording
opportunity of hearing to the parties
concerned
without
granting
them
unnecessary adjournments.

19. Remaining writ petitions in batch
of cases as captioned above are decided/
allowed as well in the terms and conditions
as discussed above and impugned orders
under challenge in said writ petitions are,
accordingly, quashed.
----------

(2022) 10 ILRA 791
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ-A No. 10854 of 2022

Yamuna Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri P.K. Upadhyay, Kalpana Upadhyay
792 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.

A. Service Law - Disciplinary Proceedings
along with Criminal Proceedings - U.P.
Police Officers of Subordinate Ranks
(Punishment and Appeal) Rules, 1991 -
Rule
14(1);
U.P.
Police
Regulations:
Regulation Nos. 486, 492 and 493 - Before
taking a decision whether to proceed or
not with the departmental inquiry, the
concerned authority has to apply mind on
facts of the charge in departmental
proceedings as well as contents of F.I.R.
and the charge if framed in the criminal
proceedings and if the authority arrived at
a
conclusion
that
departmental
proceedings and criminal case are based
on, identical set of facts and continuation
of
departmental
proceedings
would
adversely effect, the case of delinquent or
he would be prejudiced, then only, a
decision could be taken not to proceed
with departmental inquiry till the trial is
over. Even thereafter, if there is an inordinate
delay in conclusion of trial, after a reasonable
time, the concerned authority may review the
decision and would have a liberty to proceed
with the departmental proceedings. (Para 13,
15)

B. U.P. Police Regulations: Regulation Nos.
486 - The Regulation 486(II) would come into
picture when a complaint is made to police
authority against any police personnel about his
involvement in a non-cognizable offence, and
the police authority would be at liberty to lodge
an F.I.R. or initiate departmental proceedings
and for that purpose, preliminary inquiry has to
be conducted. So far as report of cognizable offence is concerned, procedure is prescribed
u/Regulation 486(I) that police investigation be
carried on and in case final report is accepted,
departmental inquiry can be initiated, however,
it is now mandatory to register F.I.R. where the
in-formation discloses commission of cognizable
offence and further there may be a different
situation when criminal investigation is initiated
on an F.I.R. lodged by complainant/victim and
departmental
proceedings
are
initiated
separately on same or similar facts and in these
circumstances, the department has also liberty
to take a decision in terms of Regulation 492
and 493 as well as considering the judgment of
Capt. M. Paul Anthony (infra), which lays down
the
factors
to
be
considered
for
continuation/staying
of
departmental
proceedings in case of simultaneous criminal
proceedings. (Para 16)

C. Standard of proof - The standard of proof
required in a departmental proceedings and in a
criminal case is different, as the proof
required in a departmental proceedings is
one of preponderances of probability
whereas in a criminal case, charge has to
be
proved
by
prosecution
beyond
reasonable doubt and further that the
evidence led in the departmental inquiry could
not be read in a criminal case. A criminal trial is
considered to be commenced only before a
Court of Sessions u/Chapter XVIII of Cr.P.C.
when u/s 226 (opening case of prosecution)
after commitment of the case u/s 209 Cr.P.C.,
therefore, till proceedings are reached upto that
stage, Regulations No. 492 and 493 have no
role. (Para 7, 17)

In the present case, in criminal case,
investigation
is
still
not
concluded,
therefore, as held earlier, stage has still
not come for consideration of Regulations
No. 492 and 493. The contents of charge in
the departmental proceedings are referred in
para 11 of this judgment that are of negligence
and due process was not followed by the
petitioners
when
victim
was
kept
under
detention, so much as no medical facility was
provided as well as he was not produced before
the Magistrate within 24 hours as prescribed
under Criminal Procedure Code whereas in the
first part of F.I.R., there was no allegation
against petitioners, however, in later part of
F.I.R., an allegation against the petitioners was
also made that deceased was kept under
detention illegally and no medical treatment was
given to him. (Para 19)

Therefore,
it
cannot
be
said
that
departmental proceedings and criminal
case are based on absolutely identical set
of facts, though, similar to some extent. In
the memo of charge, proposed witnesses are
mentioned, however, till date investigation is
not concluded. Therefore, outcome of the
10 All. Yamuna Singh & Ors. Vs. State of U.P. & Ors.
793
investigation is not on record and details of
proposed witnesses are unknown at present
stage. (Para 20)

D. At this stage, there is no bar to
continue
with
the
departmental
proceedings. At this stage to take a definite
view that proposed witnesses, if any, be
identical in the criminal case would not be a
correct
approach and
since
trial
is
not
commenced till date and therefore, even the
contents of Regulation No. 492 and 493 does
not bar to continue with the departmental
proceedings. However, during proceedings, the
petitioners are at liberty, in case investigation is
concluded and further in case any charge-sheet
is filed, and the proposed witnesses are same
and the petitioners are able to show that
continuance of departmental proceedings would
cause prejudice to them, the concerned
authority, if such departmental proceedings are
not concluded, would be under obligation to
consider grievance of the petitioners and at that
stage, appropriate decision could be taken to
continue with the departmental inquiry or not.
Till that time, the respondents are directed to
proceed
further
with
the
departmental
proceedings. (Para 21, 22, 23)

Writ petition dismissed. (E-4)

Precedent followed:

1. Capt. M. Paul Anthony Vs Bharat Gold Mines
& anr., 1999 (3) SCC 679 (Para 13)

2. State of U.P. & ors. Vs Babu Ram Upadhyay
(5 Judges), (1961) 2 SCR 679; AIR 1961 SC 751
(Para 14)

3. Lalita Kumari Vs Government of U.P. & ors.,
(2008) 14 SCC 337 (Para 16)

Precedent cited:

1. Sanjay Rai Vs St. of U.P. & ors. & ors.
connected cases, 2016 LawSuit(All.) 3133 (Para
3)

2. Mool Chand Singh Vs St. of U.P. & ors., Writ A
No. 6405 of 2021, decided on 02.08.2021 (Para
4)

3. Rinku Singh Vs St. of U.P. & ors., Writ A No.
6978 of 2021, decided on 08.10.2021 (Para 5)

4. Prakash Ram Arya Vs St. of U.P. & ors., Writ A
No. 5818 of 2019, decided on 16.04.2019 (Para
6)

5. Sudesh Singh Vs St.of U.P. & ors., Writ No.
9672 of 2018, decided on 10.04.2018 (Para 7)

6. Surendra Singh S/o Ram Shanker Singh &
anr. Vs St. of U.P. & anr., Service Single No.
1735 of 2011, decided on 06.01.2012 (Para 8)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. The legal issue which requires
consideration of this Court is that :
''whether
departmental
disciplinary
proceedings initiated under Rule (14) 1 of
U.P. Police Officers of Subordinate Ranks
(Punishment and Appeal) Rules, 1991 (for
short
"Rules,
1991")
can
proceed
simultaneously
along
with
criminal
proceedings initiated in pursuance of a first
information
lodged
against
same
delinquent, arising out of same or similar
facts?'.

2. Sri P.K. Upadhyay, learned counsel
for petitioners and Sri G.N. Srivastava,
learned Standing Counsel for the State
respondents have relied upon different
judgments passed by this Court and
Supreme
Court
in
support
of
their
respective submissions. The submission of
learned counsel for petitioners is that, there
is an absolute bar to proceed with
departmental disciplinary proceedings till
the trial arising out of criminal proceedings
is concluded, whereas stand of the State is
that bar, if any, is not absolute. Both
counsel have placed different interpretation
of Regulations 486, 492, and 493 of Uttar
Pradesh Police Regulations in their favour.
794 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Learned counsel for petitioners has
relied upon judgment passed by the
coordinate Bench at Lucknow in Sanjay
Rai Vs. State of U.P. and others and other
connected cases, 2016 LawSuit(All) 3133
wherein it has been held that :-

"28. From the above discussion,
the protections made available to police
officers
in
departmental
proceedings,
where the offence, apart from being one
under Section 7 of the Act 1861 is also a
cognizable or a non-cognizable offence
under the Criminal Law, becomes clear. In
the event of a cognizable offence, it is
mandatory to lodge an F.I.R. In a case
involving
a
cognizable
offence
the
protections under Regulation 486(I) are
available as mentioned hereinabove, i.e.
police officer cannot be subjected to
disciplinary action unless an FIR is lodged,
investigation is done, there is reason to
believe that the charge is true, but, on
account of insufficiency of evidence or for
any other reason, final report is submitted
and is accepted under Section 173 Cr.P.C.
Unless this happens, the departmental
proceedings cannot go on. Furthermore, if
a chargesheet is filed in the criminal case,
that is the charges are not only believed to
be true but there is evidence to establish
the same then also the disciplinary
proceedings cannot go on, as, the intent of
the regulations is that the police personnel
should have the benefit of a trial by a
competent Court of Criminal Jurisdiction
so as to protect them from mala fide action.
There is nothing in the regulations which
permits the holding of a departmental
inquiry where a chargesheet has been filed
for commission of a cognizable criminal
offence before a Court of competent
Criminal jurisdiction.

29. In this context the judgments
of the Supreme Court in the case of State of
Punjab vs Raj Kumar, (1988) 1 SCC 701;
State of U.P. and others vs Surender Pal,
(1989) 2 SCC 470; and State of U.P and
others vs. Babu Ram Upadhyay, AIR 1961
SC 751, where the Supreme Court had the
occasion to consider the object and purport
of regulation 486 of the UP Police
regulations and a similar provision as was
existing in the State of Punjab, were
considered, may be referred. The Supreme
Court in the case of Babu Ram Upadhyaya
(supra) mentioned the object behind
Regulation 486 of the U P Police
regulations in para 30 which reads as
under :

"30. Now what is the object of
rule I of para. 486 of the Police
Regulations? In our opinion, it is conceived
not only to enable the Superintendent of
Police to gather information but also to
protect the interests of subordinate officers
against whom departmental trial is sought
to be held. After making the necessary
investigation under chapter XIV of the
Criminal
Procedure
Code,
the
Superintendent of Police may as well come
to the conclusion that the officer concerned
is innocent, and on that basis drop the
entire proceedings. He may also hold that
it is a fit case for criminal prosecution,
which, under certain circumstances, an
honest officer against whom false charges
are framed may prefer to face than to
submit himself to a departmental trial.
Therefore, the rules are conceived in the
interest of the department as well as the
officer. From the stand point of the
department as well as the officer against
whom departmental inquiry is sought to be
initiated, the preliminary inquiry is very
important and it serves a real purpose.
Here the setting aside of the order of
dismissal will not affect the public in
general and the only consequence will be
that the officer will have to be proceeded
10 All. Yamuna Singh & Ors. Vs. State of U.P. & Ors.
795
against in the manner prescribed by the
rules. ..."

41. Regulation 490 lays down the
procedure
for
holding
departmental
proceedings. To the extent the procedure
laid down therein is in conflict with the
procedure prescribed in the Rules of 1991,
same stands superseded for the reasons
already mentioned earlier.

42. As far as Regulation 492 is
concerned, though the same is not directly
involved herein, but suffice it to say that it
has been held to be directory, and not
mandatory, by a Division Bench of this
court in the case of Vijay Shanker Tiwari v.
State of U.P. & ors., 1996 (14) LCD 126
which has been followed by the Full Bench
of the Delhi High Court in the case of
Commissioner of Police v. Sukhbeer Singh ,
2014 SCC Online Delhi Delhi 1985.

43. As far as Regulation 493 is
concerned, though the same is not directly
attracted in the present case, nevertheless,
it needs to be mentioned that there being
nothing to the contrary contained in the
Rules of 1991, the same is still binding
upon the departmental officials, therefore,
it is not open for the Superintendent of
Police in the course of departmental
proceedings against a police officer who
has been tried judicially to re-examine the
truth of any fact in issue at his judicial trial
and the finding of the court on this count
must be taken as final. As far as purport of
the Ist part of Regulation 493 is concerned,
it will depend upon the facts of a case, as, if
a police officer is exonerated on the ground
of insufficiency of evidence and the offence
not being proved beyond reasonable doubt,
which is the standard of proof applicable in
criminal trials then it would be a moot
point as to how far the observations or
findings of the court, would be binding
upon a Superintendent of Police in a
departmental action, specially in view of
the recitals contained in Clause (c) of
Regulation 493. As far as Clause (a) and
(b) of Regulation 493 are concerned a
word of caution needs to be sounded as in
view of the ratio in Kedar Nath Yadav's
case (supra), the Superintendent of Police
would not be justified in passing an order
of dismissal straightway on the ground of
conviction
and
sentence
to
rigorous
imprisonment of a police officer regarding
a criminal offence, as, the conduct leading
to such conviction would have to be
considered in view of Article 311(2)(c) of
the Constitution of India to which the
Regulations are subject, as mentioned in
Regulation 477. In fact, they would be
subject to it even otherwise.

44. As far as the entitlement of
the department to proceed departmentally
after judicial trial, is concerned, if it has
resulted in conviction, then in view of
Article 311(2)(c) of the Constitution action
can be taken on the basis of the conduct
leading to his conviction, but not otherwise.
In this regard the Department does not
have to wait for expiry of the period for
filing a criminal appeal nor for a decision
thereon, as this would be contrary to
Article 311(2)(c) of the Constitution as held
in Kedar Nath Yadav's case (supra). In the
event of an acquittal Clause (c) of
Regulation 493 would apply.

45. Thus, on a survey of the
relevant provisions referred hereinabove it
is evident that except in the case of noncognizable offences, if an act constitutes an
offence under Section 7 of the Act 1861 as
also a cognizable offence under Criminal
Law, no departmental action can be
undertaken
unless
the
eventualities
mentioned in Regulation 486(I), specially
Clause (6) thereof, are satisfied. In a case
where
chargesheet
is
filed
such
departmental action cannot be taken till the
conclusion of the judicial trial. After its
796 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusion it can be held in the case of a
conviction on the basis of conduct leading
to such conviction and in the case of
acquittal or discharge, in terms of Clause
(c) of Regulation 493 keeping in mind the
dictum of the Supreme Court in Kedar Nath
Yadav's case (supra).

46. As far as the judgment of a
Single Judge Bench of this Court in Case of
Surendra Singh v. State of U.P., rendered
in Writ Petition No.1735(SS) of 2011 on
6.1.2012, is concerned, in the said
judgment the provisions of Regulation 483
and 486, though referred, its purport,
object and effect have not been considered.
Moreover, in view of the above discussion,
the said judgment does not help the cause
of the respondent, specially as the view
taken herein is supported by a subsequent
Division Bench judgment rendered in the
case of Shiv Lal Sonkar v. the State of U.P.,
2014 (107) ALR 91, as also, a Single Judge
decision reported in AIR 1968 Alld. 20,
U.P. Government v. Ramakant Shukla,
wherein it was also held that departmental
action
means
entire
departmental
proceedings, and not merely punishment."

4. Learned counsel for the petitioners
has further relied upon a judgment of
coordinate Bench in the case of Mool
Chand Singh Vs. State of U.P. and others,
Writ A No. 6405 of 2021, decided on
02.08.2021 and relevant paragraph Nos. 14
and 15 thereof are extracted hereinbelow :-

"14. Bare perusal of Regulations
492 and 493 would go to show that whenever
a police officer has been judicially tried, the
Superintendent must await the decision of the
judicial proceeding, if any, before deciding
whether further departmental action is
necessary. Regulation 493 mentions that it
will not be permissible for the Superintendent
of Police in the course of a departmental
proceeding against a Police Officer who has
been tried judicially to re-examine the truth
of any facts in issue at his judicial trial and
the finding of the Court on these facts must be
taken as final. Division Bench of this Court in
the Case of Kedar Nath Yadav Vs. State of
U.P. 2005(3) E.& C 1955, while considering
these very Regulations, has taken the view,
that even after enforcement of 1991 Rules,
these two Regulations continue to hold the
field.

15. Considering the aforesaid facts
and circumstances of the case, the writ
petition is disposed of with direction to the
competent authority to decide the issue, as to
whether disciplinary enquiry is to continue at
all or not, and whether result of criminal trial
is to be awaited, keeping in view overall fact
and situation as prevailing on the spot, in the
light of judgements rendered in Sanjay Rai's
case (supra) and Somendra Singh's case
(supra) within a period of two months from
the date of receipt of copy of the order."

5. Per contra, learned Standing Counsel
for the State respondents has relied upon a
judgment of coordinate Bench of this Court
in the case of Rinku Singh Vs. State of U.P.
and others, Writ A No. 6978 of 2021 decided
on 08.10.2021 and relevant paragraphs
thereof are quoted below :-

"21. In the light of interpretation
given by this Court in the case of Surendra
Singh (supra) relating to Regulations 492
& 493 of Police Regulation, this Court
finds that submission of learned counsel for
the petitioner based upon Regulations 492
& 493 of Police Regulation is misplaced
and is not sustainable in law, since in the
instant case only charge sheet in the
criminal case has been filed, and trial is yet
to begin.

22. Now, coming to the second
limb of argument that whether disciplinary
10 All. Yamuna Singh & Ors. Vs. State of U.P. & Ors.
797
proceeding and the criminal proceeding
can proceed simultaneously where both
proceedings have been initiated on the
same set of charges and evidence in both
the proceedings are identical and shall
prejudice the criminal proceeding since
petitioner would have to disclose the
defence which he wants to take in the
criminal proceeding. In the opinion of the
Court,
the
said
submission
is
also
misconceived for two reasons; firstly, as
detailed above, the charge against the
petitioner in the criminal proceeding and
disciplinary proceeding are not identical as
there is one additional charge in the
disciplinary proceeding which has been
delineated above. Secondly, to succeed, the
petitioner has to demonstrate that charge
against the petitioner is grave and involves
complicated questions of fact and law, and
further if the disciplinary proceeding is
continued that would prejudice the criminal
trial of the petitioner.

23. In the case in hand, though a
bald averment has been made in the writ
petition in paragraph 31 that continuance
of disciplinary proceeding would prejudice
the criminal trial, there is no pleading in
the writ petition as to how continuance of
disciplinary proceeding would prejudice
the criminal trial of the petitioner.

24. As the petitioner has failed to
demonstrate that charge against the
petitioner
is
grave
and
involves
complicated questions of fact and law, and
further how the continuance of disciplinary
proceeding would prejudice the criminal
trial of the petitioner, this Court is not
inclined to accept the aforesaid submission
of learned counsel for the petitioner. At this
stage, it is pertinent to mention that early
conclusion of the disciplinary proceeding is
good in the interest of the employee as well
as the department for the reason that if the
employee is exonerated from the charges,
he may not be out of service unnecessarily
and may be reinstated, and if the employee
is found guilty, the department will get rid
of such employee who is not worth
continuing in the employment."

6. Learned counsel for State has
further relied upon another judgment of a
coordinate Bench of this Court in the case
of Prakash Ram Arya Vs. State of U.P.
and others, Writ A No. 5818 of 2019,
decided on 16.04.2019 of which relevant
part is extracted hereinbelow :-

"In the facts of the case at hand,
the charge against the petitioner is that the
petitioner had overstayed the leave without
approval and sanction and that he is
charge-sheeted in criminal case under
Section 302 I.P.C. for hatching criminal
conspiracy to eliminate Vishal Williams for
having illicit relationship with his wife. The
department has set up two witnesses for
departmental enquiry; (i) Sub-Inspector
(Clerk) to substantiate that the petitioner
proceeded on leave and overstayed the
leave; (ii) the Investigating Officer of the
criminal case to substantiate that petitioner
is involved in the commission of the said
crime and charge sheet has been filed
against the petitioner. Whereas, in the
criminal case, there are more than twenty
prosecution witnesses in support of the
charge.

On
specific
query,
learned
counsel for the petitioner is unable to point
out as to how the charge in the disciplinary
proceedings is based on the same facts and
evidence which is subject matter of
criminal trial; the witnesses in the
disciplinary proceedings and criminal case
are entirely different and the only witness,
the Investigating Officer who has filed the
charge-sheet in the Court is witness in the
disciplinary
proceedings,
to
only
798 INDIAN LAW REPORTS ALLAHABAD SERIES
substantiate that criminal case has been
instituted against the petitioner for heinous
crime.
The
charge
in
disciplinary
proceedings
is
overstayal
without
information and involvement in heinous
crime. Petitioner is a fairly senior officer
and being a member of the disciplined
force, it is open to the disciplinary
authority to proceed in departmental
proceedings pending criminal trial. The
learned counsel for the petitioner failed to
show from the material placed on record as
to whether the petitioner would be
prejudiced in the criminal trial, in case the
disciplinary proceeding is continued and
proceeded with.

Having due regard the facts and
circumstances of the case, I do not find any
merit in the case."

7. Learned Standing Counsel has also
placed reliance on another judgment of this
Court in the case of Sudesh Singh Vs.
State of U.P. and others, Writ A No. 9672
of 2018, decided on 10.04.2018. Relevant
part is extracted below :-

"In the instant case, however,
noticing the fact that cognizance in
criminal case has been taken on 6.8.2015
and not much has been proceeded in the
criminal case and that the standard of
proof
required
in
the
departmental
proceedings is one of preponderance of
probability whereas in a criminal case, the
charge has to be proved by the prosecution
beyond reasonable doubt, this Court does
not find any merit in the submission of
learned counsel for the petitioner to
postpone the departmental enquiry or to
quash the departmental charge-sheet.

In view of the above, no merit is
found in the present petition. However,
looking to the fact that the charge-sheet has
been served upon the petitioner on
9.2.2016 and the petitioner has submitted
his reply, the Disciplinary Authority is
hereby directed to make an endeavour to
conclude the departmental proceedings
expeditiously, preferably, within a period of
four months from the date of submission of
certified copy of this order, provided the
petitioner co-operates."

8. Learned Standing Counsel for the
State respondents has lastly placed reliance
on another judgment passed by the
coordinate Bench at Lucknow in the
leading case of Surendra Singh S/o Ram
Shanker Singh and another Vs. State of
U.P. and another, Service Single No. 1735
of 2011, decided on 06.01.2012 of which
relevant paragraphs are quoted hereinafter
:-

"27. The above exposition of law
clearly shows that the term "has been" in
simple language means a thing already
happened and here the term "judicially
tried" means that police officer concerned's
trial in the court of law is already complete
but the decision is awaited.

28. Similarly Regulation 493 is
attracted when trial is complete and
judgment of trial court has also come,
resulting in recording a finding in favour of
police officer. It restrain the competent
authority in such matter to create a
situation where a contrary finding can be
recorded in departmental proceedings vis a
vis court's verdict and the Regulation
provides that such a contingency should
not occur hence it prohibits such a course
to be followed by competent authority.

29.
Going
by
the
above
discussion it becomes apparently clear that
situation in the present cases do not attract
either Regulation 492 or 493 in both these
matters since the only stage at which the
criminal cases proceeding presently are
10 All. Yamuna Singh & Ors. Vs. State of U.P. & Ors.
799
that a charge sheet has been filed against
petitioners. The petitioners cannot be said
to have undergone judicial trial so far. The
trial is still awaited. For the purpose of
understanding the meaning of word "Trial"
one may simply refer to the provisions of
Cr.P.C. and that would clearly show that
an accused can be said to have tried when
evidence by prosecution and defence has
already led and matter has been argued
before trial court. This itself leaves
inescapable conclusion that both these writ
petitions at this stage have to fail.

36. From bare perusal of charges
levelled in departmental inquiry and
criminal case it is evident that though the
same emanate from a common incident but
charges
ex
facie
are
different.
In
departmental
proceeding
the
charges
relates to violation of conduct rules and
departmental rules while the charges in
criminal case relates to an offence under
Section 223 and 224 IPC. One of the basic
difference besides others in these two are
that in criminal case the element of mens
rea, i.e., intention to commit offence is a
necessary ingredient which has no place in
respect to charges levelled in departmental
inquiry. It is also true that evidence in two
proceedings may be similar but the
procedure of inquiry/trial, the assessment
of evidence and other legal principle in two
proceedings are totally different.

37. It is now well settled that
departmental proceedings can proceed
simultaneously with criminal proceedings
and there is no bar as such therein as held
by the Apex Court in the case of Capt. M.
Paul Anthony Vs. Bharat Gold Mines Ltd.
& Another 1999 (3) SCC 679 where it has
been clearly held that the departmental as
well as criminal, both the proceedings, can
go on simultaneously as there is no bar in
their being conducted simultaneously. The
question as to whether during the pendency
of criminal proceeding, the departmental
proceeding should be stayed depends upon
the
facts
and
circumstances
of
the
individual case. In Ajit Kumar Nag Vs.
General Manager I.O.C. JT 2005 (8) SC
425, the Apex Court said that the
procedure followed in both the cases as
well
as
the
subject
matter
of
the
departmental
enquiry
and
criminal
proceeding has different scope and it
cannot not be said that when a criminal
proceeding is going on a particular
criminal charge, in that regard, the
departmental
proceeding
cannot
be
allowed to proceed. The same view has
been reiterated subsequently, in Chairman/
Managing Director TNCS Corporation Ltd.
& others Vs. K. Meerabai JT 2006 (1) SC
444, Suresh Pathrella Vs. Oriental Bank of
Commerce AIR 2007 SC 199 and Union of
India
&
others
Vs.
Naman
Singh
Shekhawat 2008 (4) SCC 1.

38. Referring to Capt. M. Paul
Anthony (supra), recently the Apex Court in
Managing
Director,
State
Bank
of
Hyderabad & another Vs. P. Kata Rao JT
2008 (4) SC 577 observed that the legal
principle enunciated to the effect that on
the same set of facts, the delinquent shall
not be proceeded in a departmental
proceeding and in a criminal proceeding
simultaneously has been deviated from. It it
also said that the dicta laid down by the
Apex Court in Capt. M. Paul Anthony
(supra), though has remained unshaken but
its applicability has been found to be
dependent on the facts and situations
obtained in each case.

39. Similarly, in the case of Noida
Entrepreneurs Assn. Vs. NOIDA & others
JT 2007 (2) SC 620, the Court has
reproduced
the
following
conclusion
deducible from various judgments as
noticed in para-22 of the judgment in Capt.
M. Paul Anthony (supra), namely :
800 INDIAN LAW REPORTS ALLAHABAD SERIES

"(i) Departmental proceedings
and proceedings in a criminal case can
proceed simultaneously as there is no bar
in their being conducted simultaneously,
though separately.

(ii)
If
the
departmental
proceedings and the criminal case are
based on identical and similar set of facts
and the charge in the criminal case against
the delinquent employee is of a grave
nature,
which
involved
complicated
questions of law and fact, it would be
desirable
to
stay
the
departmental
proceedings till the conclusion of the
criminal case.

(iii) Whether the nature of a
charge in a criminal case is grave and
whether complicated questions of fact and
law are involved in that case, will depend
upon the nature of offence, the nature of the
case launched against the employee on the
basis of evidence and material collected
against him during investigation or as
reflected in the charge-sheet.

(iv) The factors mentioned at (ii)
and (iii) above cannot be considered in
isolation
to
stay
the
departmental
proceedings but due regard has to be given
to
the
fact
that
the
departmental
proceedings cannot be unduly delayed.

(v) If the criminal case does not
proceed or its disposal is being unduly
delayed, the departmental proceedings,
even if they were stayed on account of the
pendency of the criminal case, can be
resumed and proceeded with so as to
conclude them at an early date, so that if
the employee is found not guilty his honour
may be vindicated and in case he is found
guilty, the administration may get rid of
him at the earliest."

40. A similar view has also been
taken in Indian Overseas Bank Vs. P.
Ganesan & others AIR 2008 SC 553 and
the Court held that where a prayer is made
that so long as criminal proceedings are
going on, departmental proceeding may not
be proceeded, the Court must record a
finding that the non grant of stay on
departmental proceeding would not only
prejudice the delinquent officer, but the
matter also involve a complicated question
of law. Nothing of that sort has been shown
by the learned Counsel for the petitioner in
the case in hand.

41.
Following
the
aforesaid
authorities of the Apex Court, this Court
has taken a similar view in Priti Chauhan
vs. State of U.P. & others 2008 (9) ADJ
388.

42.
I,
therefore,
have
no
hesitation to hold that here is a case where
it cannot be said that charges in
departmental proceedings are same as in
the criminal trial and thus also the
submission
that
departmental
inquiry
cannot proceed simultaneously, cannot be
accepted particularly."

(underline is the emphasis
supplied by the learned counsel for
respective parties)

9. The facts of the case are that a
preliminary inquiry was conducted and
thereafter following charge was framed on
the petitioners under the above referred
Rules, 1991 :-

"मैं आपको चिम्नािु ार आरोपोिं े आरोचपर्
करर्ा हुँ।

"यह चक चपढ़वल में रघुिाथ यादव के टरैक्टर
 े
बैटरी
की
िोरी
की
घटिा
के
 िन्ध
में
चदिािंक07.09.2019 को थािा घो ी पर पिंजीकृर् मु.अ. िं.-
382/2019 धारा 379 िा.द.चव. में वािंचछर् अचियुक्त ओकेश
कुमार यादव की चदिािंक 08/09.09.2019 की राचत्र मय
लगिग 02:45 बजे अिािक र्चबयर् िराब होिे पर उ े
र्त्काल ामुदाचयक स्वास्थ्य केन्द्र घो ी ले जाया गया जहािं
िाक्टरोिं द्वारा उ े मय लगिग 03:15 बजे मृर् घोचिर् कर
चदया गया। मृर्क ओकेश यादव को पुचल अचिरक्षा में
थािा घो ी में चदिािंक 07.09.2019 े चदिािंक 09.09.2019
र्क रिा गया र्था ओकेश यादव के िोटोिं की जािकारी
10 All. Yamuna Singh & Ors. Vs. State of U.P. & Ors.
801
होर्े हुए उपिार िहीिं कराया गया। आप लोगोिं द्वारा यचद
ओकेश यादव का चिचकत्सा कराया गया होर्ा र्था 24 घण्टे
के अन्दर क्षम मचजस्टरेट के मक्ष प्रस्तुर् चकया गया होर्ा
र्ो ओकेश यादव की मृत्यु िहीिं होर्ी। आप लोगोिं द्वारा
पयााप्त ावधािी के ाथ काया िहीिं चकया गया। प्रारखम्भक
जािंि े आप लोग उक्त कृत्य के दोिी पाये गये। आपका
यह कृत्य लापरवाही र्था स्वेच्छािाररर्ा का द्योर्क है।
आपके इ कृत्य े पुचल चविाग की छचव धूचमल हुई
है।""

(emphasis supplied by this Court)

10. Before that, an F.I.R. was lodged
against the petitioners under Section 342
I.P.C. and 304 I.P.C. on 30.04.2022 and the
relevant part of F.I.R. is reproduced
hereinbelow :-

"िकल र्हरीर- ेवा में, श्रीमाि् प्रिारी
चिरीक्षक महोदय, थािा-घो ी जिपद-मऊ महोदय,
चिवेदि है चक मैं प्राथीिी िंगीर्ा यादव पत्नी स्व0 ओकेश
यादव ा0 चर्लई िुदा िेवादा थािा घो ी जिपद मऊ की
रहिे वाली हुँ। मेरे पचर् ओकेश यादव पुत्र स्व0 रामधारी
यादव ा0 चर्लई िुदा थािा घो ी जिपद मऊ को चदिािंक
07.09.2019 मय लगिग 02:00 बजे चदि को टरैक्टर की
बैटरी की िोरी के झूठे मामले में ग्राम हाजीपुर में
चवपक्षीगण द्वारा मेरे पचर् ओकेश यादव को मारा पीटा गया
इ का चवचियो िी चवपक्षीगण द्वारा बिाया गया था। इ
 ूििा पर थािा घो ी की पुचल थािा घो ी पर लेकर
आयी थी आप ी पट्टीदारी होिे के कारण आप में दोिोिं
पक्ष ग्राम लािीपुर के भ्रान्त व्यखक्त मान्धार्ा च िंह व ग्राम
चर्लईिुदा के ुिील कुमार च िंह आचद भ्रान्त व्यखक्तयोिं
द्वारा थािा प्रािंगढ़ में पीपल के पेड के िीिे दोिोिं पक्षोिं के
मध्य ुलह मझौर्े की बार् िल रही थी मैं िी थािा पर
थी, चक रार् में अिािक मेरे पचर् ओकेश यादव की र्चबयर्
चबगडिे लगी चक र्िी मैं र्था ग्राम के भ्रान्त लोगोिं व
पुचल द्वारा उचिर् इलाज हेर्ु ामुदाचयक स्वा0 केन्द्र घो ी
ले जाया जा रहा था चक रास्ते में मेरे पचर् की मृत्यु हो गयी।
र्ब मेरे िचिया ुर द्वारा चदिािंक 09.09.2019 को र्हरीर
देकर मु.अ. िं. 383/2019 धारा 304 िा.द.चव. अच्छेलाल
यादव आचद के चवरुद्ध चलिवाया गया था। अब ज्ञार् हुआ
चक थािा घो ी पुचल द्वारा चदिािंक 07.09.2019 े चदिािंक
09.09.2019 र्क थािा घो ी में िाजायज र्रीके े बैठाया
गया था दवा इलाज िहीिं करवाया गया चज े मेरे पचर्
ओकेश की मृत्यु हो गयी। चज में पूवा में चियुक्त थािा
प्रिारी चिरीक्षक िीरज पाठक, उ0चि0 ओमप्रकाश, कािं.
यमुिा च िंह, कािं. राजमिी की लापरवाही व उपेक्षा के
कारण मेरे पचर् की मृत्यु हुई थी। अर्ः चिवेदि है चक
उपरोक्त पुचल वालोिं के चवरुद्ध कािूिी कायावाही की
जाये।"

(emphasis supplied by this Court)

11. Heard learned counsel for parties
and perused the record.

12. The judgments cited on behalf of
counsel from both side have proceeded on
the basis of a different approach and
interpretation to the relevant Regulations
bearing No. 486, 492 and 493 of U.P.
Police Regulations. For reference, they are
mentioned herein :-

"486. When the offence alleged
against a police officer amounts to an
offence only under Section 7 of the Police
Act, there can be no magisterial inquiry
under the Criminal Procedure Code. In
such cases, and in other cases until and
unless a magisterial inquiry is ordered,
inquiry will be made under the direction of
this Superintendent of Police in accordance
with the following rules :

I.- Every information received by
the police relating the commission of a
cognizable offence by a police officer shall
be dealt with in the first place under
Chapter XII, Criminal Procedure Code,
1973 (2 of 1974) according to law, a case
under
the
appropriate
section
being
registered in the police station concerned
provided that -

(1) if the information is received,
in the first instance, by a Magistrate and
forwarded by the District Magistrate to the
police, no case will be registered by the
police;

(2) if the information is received,
in the first instance by the police, the report
required
by
Section
157,
Criminal
Procedure Code, shall be forwarded to the
District Magistrate, and when forwarding
it the Superintendent of Police shall note on
802 INDIAN LAW REPORTS ALLAHABAD SERIES
it with his own hand what steps are being
taken as regards investigation or the
reasons for refraining from investigation.