Orissa High Court Quashes Departmental Action Against Cop Accused Of Sodomy, Notes Parties Compromised

The Orissa High Court has set aside departmental action, including suspension and imposition of black-marks, against a police Assistant Sub-Inspector (ASI) who was accused of committing unnatural anal intercourse with a subordinate Home Guard against his will at the workplace.Giving relief to the cop, Justice V. Narasingh in his order observed –“In view of the pronouncement of the Apex Court in the case of Navtej Singh Johar (Supra) and taking into account the compromise inter se between the parties since the same is voluntary and there is nothing on record to indicate that such consent was impelled on account of by any external factors or was outcome of any duress or coercion, as rules no longer qualifies as an offence in view of the judgment of the Apex court in the Case of Navtej Singh Johar (Supra) this Court is not persuaded to accede to the submission of the learned counsel for the State…”BackgroundOn August 04, 2016, the petitioner directed the victim Home Guard to accompany him for night duty. In the dead hour of the night, the petitioner allegedly asked the Home Guard to come to his rest room and also told to sleep with him on a single bed side by side.The victim alleged that the ASI sodomized him. It is his further allegation that due to such act of unnatural intercourse, the petitioner discharged semen, the stains of which were available on his (the victim's) pant.Accordingly, he filed an FIR against the petitioner for commission of offences under Sections 341 (wrongful restraint), 342 (wrongful confinement), 323 (voluntarily causing hurt), 377 (unnatural offences) and 506 (criminal intimidation) of the IPC. The petitioner was subsequently arrested and forwarded to the Court. The matter was inquired into by the Sub-Divisional Police Officer (SDPO) who found prima facie evidence against the petitioner.Based on the findings of the inquiry, a departmental show-cause was issued to the petitioner. He was found guilty of the charge and resultantly, black-marks were imposed with a further direction to treat his period of suspension from 04.08.2016 to 02.12.2016 (120 days) as such. He challenged such punishments before the Appellate and revisional authorities, but in vain. Hence, this writ petition was filed.FindingsThe Court noted that in the meantime, the matter has been settled between the parties through compromise. The petitioner had earlier moved the High Court seeking to quash the pending criminal proceedings against him relating to the case, which was allowed. He then filed another writ petition praying to drop the departmental proceedings in view of quashment of the criminal case. The Court had asked the respondent authorities to consider the request of the petitioner and pass appropriate order. The departmental authorities, however, merely reduced three black-marks to two and the period of suspension was kept as such.The question which cropped up for consideration before the Court was whether the act of the petitioner constituted 'moral turpitude'. Before delving into the same, the Court mentioned that Section 377 of the IPC has been partially struck down by a Constitution Bench of the Supreme Court (Navtej Singh Johar v. Union of India & Ors.) in 2018.It was the view of the Court that if, for the sake of argument, the judgment in Navtej Singh Johar is considered to be non-existent, the act of the petitioner shall qualify as 'moral turpitude'. That very term is employed in this case considering the position of law as existed before the aforesaid Constitution Bench judgment. In other words, before that judgment, even consensual and voluntary homosexual intercourse would have been a moral turpitude.However, considering the change brought about by Navtej Singh Johar coupled with the fact that there has been a compromise between the parties, the Court was not inclined to accept the State's stance anymore. Furthermore, it said that there is no material to show that the act was not consensual or voluntary.“This aspect has been completely lost sight of by the departmental authorities while dealing with the claim of the Petitioner in the light of the judgment of this Court…it is also worthwhile to refer to Rule 844 of the Criminal Prosecutions under the Odisha Police Rules which casts a duty upon the Superintendent to go through the records of every case brought against the police officers in Court and shall take departmental cognizance of every criminal case in which a police officer is convicted or acquitted or discharged,” it added.The Court was of the view that the charge in the departmental proceeding as well as in the criminal case are the same, which is primarily on account of an alleged offence under Section 377 of IPC.“This Court is not oblivious of the contours of exercise of jurisdiction in interfering with an order passed in a departmental proceeding. But on conspectus of pleadings, this Court is of the considered view that allowing the punishment of “any black mark” as per Rule 834 of...

Orissa High Court Quashes Departmental Action Against Cop Accused Of Sodomy, Notes Parties Compromised

Jyoti Prakash Dutta

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