National Law Institute University,

Bhopal
Xth Trimester

Subject: Criminal Law-IV

Case Analysis of:

Ajay Kumar Choudhary vs Union of India and

Ors
[ (2015) 7 SCC 291 ]

Submitted to:
Prof. Divya Salim

Submitted by:
Aveak Ganguly
2012BALLB80

INDEX
Index.......................................................................................................................... 2
Introduction................................................................................................................ 3
Material Facts:............................................................................................................ 4
Relevant sections:...................................................................................................... 5
Section 167 The Code Of Criminal Procedure, 1973................................................5
Section 309 the code of criminal procedure............................................................6
Arguments Advanced-................................................................................................ 7
Critical Analysis of Judgment ................................................................................... 8

INTRODUCTION
In pursuance of the completion of Project Work in Criminal Law-IV, the following case analysis
has been allotted to me: Ajay Kumar Choudhary vs Union of India and Ors (2015) 7 SCC 291.
The details of the case have been carefully studied and then the material facts and key issues of
fact as well as of law have been laid down to the best of my comprehensive ability. Furthermore,
an overview of relevant sections, cited case law and a critical analysis of the reasoning behind
the decision of the court and its effect on the existing law/practice is provided.
It is humbly submitted that, the case (Civil Appeal No. 1912 of 2015 (Arising out of SLP (C) No.
31761 of 2013)) was filed in the Supreme Court of India and was decided finally on 16/2/2015.
The verdict was delivered by Honble Justice Vikramajit Sen and Justice C Nagappan. The
counsel for the petitioner was Mr. Nidhesh Gupta and Mr. Ravi Prakash, while the Additional
Solicitor General, P. S. Patwalia was the counsel for the respondents.
The appeal arises from the Judgment and Order dated 04.09.2013 of the High Court of Delhi at
New Delhi in WP (Civil) No. 4017 of 2013.

M AT E R I A L FAC T S :
1. In November, 2006, the appellant was posted as the Defence Estate
Officer (DEO) Kashmir Circle, Jammu & Kashmir. During this tenure he issued
NOCs in respect of private lands, which were prepared by his staff.
Thereafter, on 3.4.2010, the Appellant was transferred to Ambala Cantt.
2. Vide letter dated 25.1.2011 the Appellant was asked to give his
explanation for issuing the factually incorrect NOCs. In his reply the Appellant
admitted his mistake, denied any mala fides in issuing the NOCs, and
attributed the issuance of the NOCs to the notes prepared by the subordinate
staff of SDOs/Technical Officer.
3. It was in this background that he received the Suspension Order dated
30.9.2011. On 28.12.2011 the Appellant's suspension was extended for the
first time for a further period of 180 days. This prompted the Appellant to
approach the Central Administrative Tribunal, Chandigarh Bench (CAT), and
during the pendency of the proceedings the second extension was ordered
with effect from 26.6.2012 for another period of 180 days.
4. Thereafter, the third extension of the Appellant's suspension was ordered
on 21.12.2012, but for a period of 90 days. It came to be followed by the
fourth suspension for yet another period of 90 days with effect from
22.3.2013.
5. It appears that the Tribunal gave partial relief to the Appellant in terms of
its Order dated 22.5.2013 opining that no employee can be indefinitely
suspended; that disciplinary proceedings have to be concluded within a
reasonable period. The CAT directed that if no charge memo was issued to
the Appellant before the expiry on 21.6.2013 of the then prevailing period
the Appellant would be reinstated in service.
6. The Respondent, Union of India filed a Writ Petition before the Delhi High
Court contending that the Tribunal had exercised power not possessed by it
inasmuch as it directed that the suspension would not be extended if the
charge memo was served on the Appellant after the expiry of 90 days from

19.3.2013. The Writ Petition was allowed and the Central Government was
directed to pass appropriate orders "as to whether it wishes to continue with
the suspension or not having regard to all the relevant factors, including the
report of the CBI, if any, it might have received by now. This exercise should
be completed as early as possible and within two weeks from today."
4. This has led to the filing of the Appeal before this Court.

R E L E VA N T S E C T I O N S :
SECTION 167 THE CODE OF CRIMINAL PROCEDURE, 1973
167. Procedure when investigation cannot be completed in twenty four hours.
(1) Whenever any person is arrested and detained in custody and it appears that
the investigation cannot be completed within the period of twenty- four hours fixed
by section 57, and there are grounds for believing that the accusation or
information is well- founded, the officer in charge of the police station or the police
officer making the investigation, if he is not below the rank of sub- inspector, shall
forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the
diary hereinafter prescribed relating to the case, and shall at the same time forward
the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may,
whether he has or has not jurisdiction to try the case, from time to time, authorise
the detention of the accused in such custody as such Magistrate thinks fit, for a
term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the
case or commit it for trial, and considers further detention unnecessary, he may
order the accused to be forwarded to a Magistrate having such jurisdiction: Provided
that(a) the Magistrate may authorise the detention of the accused person, otherwise
than in the custody of the police, beyond the period of fifteen days; if he is satisfied
that adequate grounds exist for doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this paragraph for a total period
exceeding,(i) ninety days, where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term of not less than ten
years;
(ii) sixty days, where the investigation relates to any other offence, and, on
the expiry of the said period of ninety days, or sixty days, as the case may

be, the accused person shall be released on bail if he is prepared to and does
furnish bail, and every person released on bail under this sub- section shall be
deemed to be so released under the provisions of Chapter XXXIII for the
purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless
the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the
High Court, shall authorise detention in the custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby declared that,
notwithstanding the expiry of the period specified in paragraph (a), the accused
shall be detained in custody so long as he does not furnish bail;
Explanation II.- If any question arises whether an accused person was produced
before the Magistrate as required under paragraph (b), the production of the
accused person may be proved by his signature on the order authorizing detention.
(2A) Notwithstanding anything contained in sub- section (1) or sub- section (2), the
officer in charge of the police station or the police officer making the investigation,
if he is not below the rank of a sub- inspector, may, where a Judicial Magistrate is
not available, transmit to the nearest Executive Magistrate, on whom the powers of
a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the
entry in the diary hereinafter prescribed relating to the case, and shall, at the same
time, forward the accused to such Executive Magistrate, and thereupon such
Executive Magistrate, may, for reasons to be recorded in writing, authorise the
detention of the accused person in such custody as he may think fit for a term not
exceeding seven days in the aggregate; and, on the expiry of the period of
detention so authorised, the accused person shall be released on bail except where
an order for further detention of the accused person has been made by a Magistrate
competent to make such order; and, where an order for such further detention is
made, the period during which the accused person was detained in custody under
the orders made by an Executive Magistrate under this sub- section,

SECTION 309 THE CODE OF CRIMINAL PROCEDURE

(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in
particular, when the examination of witnesses has once begun, the same shall be continued
from day to day until all the witnesses in attendance have been examined, unless the Court
finds the adjournment of the same beyond the following day to be necessary for reasons to
be recorded.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it
necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it

may, from time to time, for reasons to be recorded, postpone or adjourn the same on such
terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand
the accused if in custody: Provided that no Magistrate shall remand an accused person to
custody under this section for a term exceeding fifteen days at a time: Provided further that
when witnesses are in attendance, no adjournment or postponement shall be granted,
without examining them, except for special reasons to be recorded in writing: Provided also
that no adjournment shall be granted for the purpose only of enabling the accused person to
show cause against the sentence proposed to be imposed on him.
Explanation 1 - If sufficient evidence has been obtained to raise a suspicion that the accused
may have committed an offence, and it appears likely that further evidence may be obtained
by a remand, this is a reasonable cause for a remand.
Explanation 2 - The terms on which an adjournment or postponement may be granted
include, in appropriate cases, the payment of costs by the prosecution or the accused.

A R G U M E N T S A DVA N C E D The learned Additional Solicitor General has submitted that the original suspension was in
contemplation of a departmental inquiry which could not be commenced because of a directive
of the Central Vigilance Commission prohibiting its commencement if the matter was under the
investigation of the CBI. The sanction for prosecution was granted on 1.8.2014. It was also
submitted that the Chargesheet was expected to be served on the Appellant before 12.9.2014,
(viz., before the expiry of the fourth extension). It was also submitted that all the extension
orders were reasoned judgments and granted within the then prevailing period.
The learned counsel for the Appelant however, has rightly relied on a series of Judgments of this
Court, including1, where this Court has enunciated that the suspension of an employee is
injurious to his interests and must not be continued for an unreasonably long period; that,
therefore, an order of suspension should not be lightly passed. The counsel has drawn attention to
K. Sukhendar Reddy v. State of A.P.2, which is topical in that it castigates selective suspension
perpetuated indefinitely in circumstances where other involved persons had not been subjected to
any scrutiny. Reliance on this decision is in the backdrop of the admitted facts that all the persons
who have been privy to the making of the Office-notes have not been proceeded against
departmentally. So far as the question of prejudicial treatment accorded to an employee is
concerned, this Court in State of A.P. v. N. Radhakishan3 has observed that it would be fair to
1 O.P. Gupta v. Union of India MANU/SC/0670/1987 : 1987 (4) SCC 328
2 MANU/SC/0272/1999 : 1999 (6) SCC 257

make this assumption of prejudice if there is an unexplained delay in the conclusion of

proceedings.

C R I T I C A L A N A LY S I S O F J U D G M E N T
It has been noted by the court that protracted periods of suspension, repeated
renewal thereof, have regrettably become the norm and not the exception that they
ought to be. The suspended person suffering the ignominy of insinuations, the scorn
of society and the derision of his Department, has to endure this excruciation even
before he is formally charged with some misdemeanor, indiscretion or offence.
The legal expectation of expedition and diligence being present at every stage of a
criminal trial and a fortiori in departmental inquiries has been emphasized by the
Court on numerous occasions. Keeping in mind that the Constitution Bench in Abdul
Rehman Antulay v. R.S. Nayak4, underscored that this right to speedy trial is implicit
in Article 21 of the Constitution and is also reflected in Section 309 of the Code of
Criminal Procedure, 1973; that it encompasses all stages, viz., investigation, inquiry,
trial, appeal, revision and re-trial; that the burden lies on the prosecution to justify
and explain the delay; that the Court must engage in a balancing test to determine
whether this right had been denied in the particular case before it. According to the
judgment, keeping these factors in mind the CAT had in the case in hand directed
that the Appellant's suspension would not be extended beyond 90 days from
3 MANU/SC/0278/1998 : 1998 (4) SCC 154
4 MANU/SC/0326/1992 : 1992 (1) SCC 225

19.3.2013. The High Court had set aside this direction, viewing it as a substitution of
a judicial determination to the authority possessing that power, i.e., the
Government. Therefore, this conclusion of the High Court cannot be sustained.
Also prior to 1973 an accused could be detained for continuous and consecutive
periods of 15 days, albeit, after judicial scrutiny and supervision. The Code of
Criminal Procedure of 1973 contains a new proviso which has the effect of
circumscribing the power of the Magistrate to authorize detention of an accused
person beyond period of 90 days where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment for a term of not less
than 10 years, and beyond a period of 60 days where the investigation relates to
any other offence. The court in this instance has drawn support from the
observations contained of the Division Bench in Raghubir Singh v. State of Bihar 5,
and more so of the Constitution Bench in Antulay, and has in light of the same
extended the application of the proviso of Section 167(2) of the Code of Criminal
Procedure 1973 to moderate Suspension Orders in cases of
departmental/disciplinary inquiries also.
It was acknowledged that if Parliament considered it necessary that a person be
released from incarceration after the expiry of 90 days even though accused of
commission of the most heinous crimes, a fortiori suspension should not be
continued after the expiry of the similar period especially when a Memorandum of
Charges/Chargesheet has not been served on the suspended person. It is true that
the proviso to Section 167(2) Code of Criminal Procedure postulates personal
freedom, but respect and preservation of human dignity as well as the right to a
speedy trial should also be placed on the same pedestal. The judgment of the court
is laudable as it has rightly recognized the right to speedy trial and justice to be
implicit in the constitution and under section 309 of the CrPC, and also extended the
application of provisio (2) of Section 167 to moderate Suspension Orders.

5 MANU/SC/0199/1986 : 1986 (4) SCC 481