- (1.) SUNIL Ambwani, J. Heard Counsel for petitioner and learned Standing Counsel.
(2.) PETITIONER was appointed as constable in Civil Police U. P. in 1977 and was posted at Shahjahanpur. A First Information Report was registered on 25-4-2000 at police station Tirwa, District Kannauj as Case Crime No. 65 of 2000 under Section 498-A/304-B, IPC, alleging that petitioner's daughter-in-law was murdered by her husband in which petitioner, his wife and his son had entered into conspiracy. The petitioner was arrested on 26-4-2000. The case was committed to sessions on 1-2-2001 where he did not plead guilty. After recording prosecution evidence in which the father, brother, mother and sister-in- law of deceased turned hostile, the Sessions Judge rejected petitioner's alibi and actuated the petitioner along with his two sons and wife under Section 498-A/304-B, IPC, but convicted them under Section 302/34, IPC. He rejected the story of suicide and found that the deceased was shot by a country made pistol and that the dead-body was left in the house for 2-3 days. All the accused, including the petitioner, were sentenced for life imprisonment by the Sessions Judge, Kannauj by his judgment and order dated 6-3-2002. After his conviction and life sentence, the Superintendent of Police, Kanpur Dehat by his order, dated 17-4-2002 dismissed petitioner Naresh Pratap Singh from service under Rule 8 (2) (a) of U. P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 read with Regulation 493 (a) of U. P. Police Regulations, after finding that the petitioner had been convicted and sentenced to life imprisonment under Section 302/34, IPC and that it is wholly improper to keep such a person in disciplined force. Petitioner along with other convicted members of his family have filed a Criminal Appeal No. 805 of 2002 in which on 24-5-2002, this Court has passed the following order : "heard learned Counsel for appellants No. 1 and 2 as well as learned AGA on bail prayer. Record of the lower Court has been received which has been perused. It is submitted for the appellants that mother, brother and wife of the brother of deceased turned hostile and did not support the prosecution case. The appellants were on bail during trial. They shall be released on bail. Let the appellants No. 1, 2 and 4, namely, Dhirendra Pratap Sigh, Kunwar Pratap Singh alias Raju and Naresh Pratap Singh respectively, convicted and sentenced in S. T. No. 80 of 2001, P. S. Tiwari, district Kannauj be released on bail during pendency of his appeal on their furnishing a personal bond and two sureties, each in the like amount to the satisfaction of the Chief Judicial Magistrate, Kannauj. After the appellants file bail bonds, photostat copies thereof shall be sent to this Court by the Chief Judicial Magistrate, concerned within a month for the purpose of record. Sd. M. C. Jain. "
(3.) AFTER release on bail, on the strength of the aforesaid order, the petitioner has filed this writ petition for quashing the order dated 17-4-2002 by which he was dismissed from service, on the ground that U. P. Police Regulations do not empower the Superintendent of Police to dismiss petitioner from service without awaiting the result of appeal preferred by the petitioner and the order of dismissal was passed without affording any opportunity and without applying restrictions contained in Regulation 492 and that the order is also violative of Article 311 (2) of the Constitution of India the principles of natural justice. It is further submitted that the Court has given reasons to release the petitioner on bail and that since a criminal appeal in continuation of trial in which petitioner's guilt has not been proved so far, he is entitled to be reinstated in service. Learned Standing Counsel, on the other hand, submits that petitioner was not dismissed only on account of his conviction and sentence. The competent authority considered the effect of the judgment and found that it was not proper for the petitioner to continue in disciplined force. According to him, Section 389 (1), Cr. P. C. provides powers to the appellate Court for stay of execution of sentence and order. It does not provide for stay of conviction. According to him, petitioner's release on bail does not affect his conviction and that the conviction does not loose its efficacy and sting. The sentence is not obliterated but is kept in abeyance. The conviction continues and is not wiped out. To allow a police constable convicted under Section 302/34, IPC and sentenced to lie imprisonment, release on bail will seriously affect public faith in police, and, as a matter of fact on public policy he should not be permitted to serve unless he is acquitted of the offence in appeal. The Police Department was not obliged to wait for the decision in appeal and that the petitioner was rightly dismissed under Rule 8 (2) (a) of U. P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 for which no show cause notice or opportunity of hearing was required to be given to him.;