Orissa High Court
Mahendra Kumar Behera vs State Of Orissa on 17 June, 2025
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO.16834 of 2023
(An application under Article 226 of the Constitution of
India).
Mahendra Kumar Behera .... Petitioner
-versus-
1. State of Orissa, .... Opposite Parties
represented through
Secretary to Govt, Dept.
of Home, Orissa
Secretariate, At/Po-
Bhubneswar, Dist-
Khurda
2. State of Orissa,
represented through
Addl. Chief Secretary to
Govt, Dept. of Home,
Orissa Secretariate,
At/Po- Bhubneswar,
Dist- Khurda
3. DG&IG of Police, Police
Head Quarter, Odisha,
At/Po/Dist. Cuttack
4. DIG of Police, Central
Range, Cuttack Police
Head Quarter, Odisha,
At/Po/Dist. Cuttack
5. Superintendent of
Police, Kendrapara,
At/Po/Dist: Kendrapara
For Petitioner : Mr. M.K. Khuntia, Advocate
Mr. B.K. Biswal, Advocate
For Opposite Parties : Mr. S.P. Das, ASC
W.P.(C) No.16834 of 2023
Page 1 of 20
CORAM:
JUSTICE V. NARASINGH
DATE OF HEARING :21.03.2025
DATE OF JUDGEMENT: 17.06.2025
V. Narasingh, J.
1. Heard Mr. Khuntia, learned counsel for the
Petitioner and Mr. Das, learned Additional Standing
Counsel for the State.
2. The Petitioner, who is working as an ASI, has
assailed the order at Annexure-3 by which he was
found guilty of the charge and consequential
imposition of the punishment of black marks for his
gross misconduct of alleged unnatural intercourse
with the sub-ordinate at work place and the further
direction to treat the period of suspension from
04.08.2016 to 02.12.2016 (120 days) as such, as
well as, the rejection order of the appellate authority
at Annexure-5 and revisional order at Annexure-7
reducing the punishment of three black marks to two.
And, the rejection of memorial under Annexure-9
challenging the infliction of punishment of “two black
marks”.
The prayer in the present Writ Petition reads
as under;
“It is therefore humbly prayed that
this Hon’ble Court may graciously beW.P.(C) No.16834 of 2023
Page 2 of 20
pleased to quash the order of
punishment “Three Black Mark” under
Annexure-3 & the rejection of appeal
under Annexure-5 and the order of
revision under Annexure-7 and also the
rejection of memorial under Annexure-
9 as illegal & arbitrary;
And further be pleased to give all
the consequential service benefits to
the petitioner;
xxx xxx xxx”
3. The brief undisputed facts which are germane
for just adjudication read as under;
One home guard (the name is not being
mentioned keeping in view the privacy of the person
concerned) lodged an FIR against the Petitioner which
was registered as G.R. Case No.314 of 2016 on the
file of learned J.M.F.C. Pattamundai, arising out of
Pattamundai P.S. Case No.313 of 2016 U/s. 341/
342/323/377/506 of IPC.
4. As a sequel to the institution of such case, a
memorandum of charge was served on the Petitioner
in Kendrapara District Proceeding No.13 of 2016
which is at Annexure-1. The memorandum of such
charge is culled out hereunder for convenience of
reference;
W.P.(C) No.16834 of 2023
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(Redacted)
5. And in the memo of evidence, it was noted
that the said home guard, who was the informant,
was to be examined as P.W.2.
6. When matter stood thus, as the matter was
settled between the parties, the Petitioner moved this
Court by filing CRLMC No.1408 of 2017 and by order
dated 08.08.2018 at Annexure-2, this Court quashedW.P.(C) No.16834 of 2023
Page 4 of 20
the G.R. Case referred to hereinabove and the same
reads as under;
“Heard learned Counsel for the
parties.
In offence under Section 377 of
I.P.C. both the parties are major and
have come to composition in the
meantime.
Learned counsels for the parties
submit that the filing of case against
the petitioner is actually a mistake of
fact and for that both the parties have
come to composition by intervention of
their superiors. As the parties have
come to composition, allowing the
proceeding to continue shall only be an
abuse of the process of the Court. In
the ends of justice, therefore, the
proceeding in G.R. Case No.314 of 216
pending in the court of J.M.F.C.,
Pattamundai is quashed.
The CRLMC is accordingly disposed
of.
Urgent certified copy of this order be
granted as per Rules.”
6A. Evidently, there is an inadvertent
typographical error in the order of this Court in as
much as in the 2nd paragraph of the order, the word
“compromise” has been inadvertently wrongly
reflected as “composition”. The same error has also
crept in the next sentence.
W.P.(C) No.16834 of 2023
Page 5 of 20
7. In deference to the order passed by this Court,
which attained finality, the learned J.M.F.C. passed
the consequential order of dropping the proceeding
against the Petitioner and thereafter, the Petitioner
filed W.P.(C) No.18896 of 2019 to consider his
representation for dropping the departmental
proceeding in view of the fact that G.R. case has been
quashed by this Court and by order dated 30.10.2019
at Annexure-10, this Court disposed of the Writ
Petition referred to hereinabove directing the
Opposite Party No.1 therein (State of Orissa,
represented through DG and IG of Police) to consider
the request of the Petitioner and pass appropriate
orders.
8. It is the grievance of the Petitioner that
notwithstanding such order passed by this Court,
impugned orders referred to hereinabove, the
punishment of two black marks reducing it from
initially imposed three along with the punishment to
treat the suspension period as such were imposed.
9. Before adverting to the contentions raised by
Mr. Khuntia, learned counsel for the Petitioner, it is
apposite to refer to the relevant provisions of the
Chapter-XXV of the Orissa Police Rules dealing with
punishments and departmental punishments. Rule-
824 describes Prescription of Departmental
W.P.(C) No.16834 of 2023
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Punishments. Rule-824(f) deals with Black mark or
marks. The said rule is extracted hereunder;
"xxx xxx xxx
824. Description of
departmental punishments:- The
following punishments may be inflicted
departmentally on a police officer below
the rank of Deputy Superintendent-
(a) Dismissal,
(b) Removal.
[b-1]- Compulsory retirement;
and]
(c) Reduction in rank
(d) Reduction in time-scale.
(e) Withholding of the next
increment for a specific offence,
with or without corresponding
postponement of subsequent
increments,
(f) Black mark or marks,
(g) Removal from any office of
distinction or specific emolument,
(h) Censure,
(i) Warning,
(j) Confinements to quarters for a
period not exceeding 15 days,
(k) punishment drill, and
(l) Extra guard or other duty;
Provided that the punishments
mentioned in Clauses (i) to (m) shall
not be imposed on any officer of or
above the rank of Sub-Inspector nor
the punishment mentioned in (l) on any
Assistant sub-inspector, Constable of
W.P.(C) No.16834 of 2023
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Ordinary Reserve and Havildar of
Armed Reserve.
Punishments mentioned in Clauses
(a) to (h) are classed as major and the
rest are minor. All major punishments
and censure shall be entered in the
service book other minor punishments
may be so entered if the officer
awarding the punishment so directs.
xxx xxx xxx”
The punishments (a) to (h) are classified as
major and the rest as minor. It is further provided
that all major punishments and censure shall be
entered in the service books other minor punishments
may be so entered if the officer awarding the
punishment so directs.
9A. It is also apposite to take note of Rule-834 as
well as Rules 835, 837 relating to Black Marks to
appreciate the gamut of challenge. It would also be
necessary to extract the Rules 844 and 845 under the
sub-heading Criminal Prosecutions of Chapter-XXV of
the Police Rules, the same is extracted hereunder;
“xxx xxx xxx
834.(a) Imposition of black marks:-
Black marks may be awarded alone or
in addition to other punishments
enumerated in Rule 824 except
dismissal or removal, to all officers of
and below the rank of Inspector.
No more than one black mark
shall be awarded or any one offenceW.P.(C) No.16834 of 2023
Page 8 of 20
except when moral turpitude can
reasonably be inferred.
(b) Three black marks shall
ordinarily entail reduction or forfeiture
or withholding of an increment, the
period of which shall be specified in the
order and, after the period is over the
officer will be restored to his former
position. Such reduction or forfeiture or
withholding of increment shall not carry
any black mark value.
(c) It shall be left to the
discretion of the officer awarding the
third black mark to waive the penalty
noted in Clause (b). In exercising this
option, he shall consider–
(i) the officers for which the
previous black marks were
awarded;
(ii) the length of time that has
elapsed since they were awarded;
(iii)any good service the defaulter
may have to his credit.
835. (i) Effect of black marks:- A
reduction or forfeiture or withholding of
increment for specific offence shall
carry the following black mark value
Black Marks
A reduction etc., up to six months 1
Ditto twelve months 2
Ditto for longer than twelve months 3
xxx xxx xxx
W.P.(C) No.16834 of 2023
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837. (1) General rules as to black
marks – (1) Black marks shall remain
permanently on record and be taken
into consideration in deciding the
nature and extent of subsequent
punishments:
Provided that the due
allowances shall be made for good
service marks and any other
recognition of good work on record in
the delinquent’s favour.
(2) The order awarding black
marks shall specify the number of black
marks outstanding against the
delinquent, and when the imposition of
two more blank marks may result in
reduction in rank or compulsory
retirement or removal or dismissal, or
one more black mark may result in his
reduction in rank or loss of increment
under these rules, the order shall
contain a warning to that effect.
xxx xxx xxx
844. Superintendent to examine,
records of cases against police
officers:- The Superintendent shall go
through the record of every case
brought against a police officer in the
Court, and shall take departmental
cognizance of every criminal case in
which a police officer is convicted or
acquitted or discharged (except when
the case is false) and record an order in
writing (Appendix 39 and Rule 843).
W.P.(C) No.16834 of 2023
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845. Effect of imprisonment:- Every
police officer, imprisoned for an offence
implying moral turpitude, such as theft
and perjury, or for a serious breach of
discipline, such as allowing a prisoner
to escape or sleeping on sentry duty,
shall be proceeded against with a view
to dismissal and shall ordinarily be
dismissed. He shall receive pay up to
the date of ceasing to perform his
duties.
xxx xxx xxx”
10. The first submission of Mr. Khuntia, learned
counsel for the Petitioner is that the second limb of
the punishment treating the suspension period as
such having not been envisaged in the punishment
prescribed under Rule 824 extracted hereinabove
could not have been imposed and it is his further
submission that so far as imposition of two black
marks are concerned, in the factual matrix of the
case at hand since the charge in the departmental
proceeding as well as in the criminal case were one
and the same since the criminal case has been
quashed on compromise by this Court, it was not
open for the Authorities in the factual backdrop of the
case at hand to even impose any black mark and to
fortify his submission, learned counsel for the
Petitioner relies on the following judgments;
i. Sailendra Nath Mohanty vrs. Union of India &
Others, 2014 SCC OnLine Ori 650
W.P.(C) No.16834 of 2023
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ii. Ram lal vrs. State of Rajasthan and others,
(2024) 1 SCC 175
iii. Tapan Kumar Pradhan @ Tapan Pradhan vrs.
State of Odisha and another (W.P.(C)
No.15879 of 2019 disposed of on 30.01.2024)
iv. Bani Bhusan Dash vrs. State of Odisha, 2021
(II) OLR 1022
11. Learned counsel for the State, Mr. Das,
learned ASC reiterating the fundamental distinction of
appreciation of evidence in departmental proceeding
and in a criminal case submits that since the
evaluation of evidence in a departmental proceeding
is based on preponderance of probability and that
since the Petitioner belongs to a disciplined force, the
order of punishment as affirmed by the Revisional
Authority ought not to be interfered with. He also
justifies the rejection of memorial. It is his further
submission that since in the case at hand there has
not been a clean acquittal rather it has been quashed
on compromise the Authorities rightly passed the
impugned punishment and it is his submission that
the allegations that the Authorities did not take note
of the order of this Court is ex-facie incorrect in as
much as while passing the order the Disciplinary
Authority has referred to the same.
12. He also supports the second limb of
punishment and urges with vehemence that
W.P.(C) No.16834 of 2023
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considering that the Petitioner belongs to a
disciplined force, the act complained will squarely
come under the category of moral turpitude and he
submits that taking a lenient view the punishment in
question has been imposed, whereas in his
considered opinion the Petitioner was liable for graver
punishment.
13. On these competing submissions, this Court is
called upon to answer as to whether the act
complained of comes under the category of moral
turpitude and if so, whether the punishment imposed
can stand the scrutiny of this Court and more
particularly in the light of scope of this Court to
exercise such jurisdiction. As rightly pointed out by
the learned counsel for the State Mr. Dash, the
distinction between appreciation of evidence in a
criminal case and in a disciplinary proceeding cannot
be lost sight of and there is no cavil about such
proposition of law. But as it is so often said that the
decision in each case is dependent on the peculiar
factual background of such case.
14. In this context, this Court respectfully refers to
the authoritative pronouncement of the Apex Court in
the case of Haryana Financial Corporation and
another V. Jagdamba Oil Mills and another, (2002)
3 SCC 496 wherein the Apex Court cautioned that
judgments are not be read as “Euclid’s Theorem”
W.P.(C) No.16834 of 2023
Page 13 of 20
15. On perusal of the charges as framed against
the Petitioner in the departmental proceeding and the
sections under which the FIR has been instituted, it is
seen that they are one and the same and one of the
charges is under Section 377 of the IPC. Section 377
of IPC of the penal code which was governing the
field then that at the relevant time reads as under;
“377. Unnatural offences.–
Whoever voluntarily has carnal
intercourse against the order of nature
with any man, woman or animal, shall
be punished with [imprisonment for
life], or with imprisonment of either
description for a term which may
extend to ten years, and shall also be
liable to fine.”
The very heading of the section is “unnatural
offences”.
16. This Court would be failing in its duty if it does
not take note of the intervening circumstances which
changed the face of the particular offence in view of
the constitution bench judgment of the Apex Court in
the case of Navtej Singh Johar and others vrs.
Union of India through Secretary, Ministry of
Law and Justice, (2018) 10 SCC 1 and it is apt to
note that the case was decided on 06.09.2018.
17. In the said case, the Apex Court was
considering the constitutionality of Section 377 IPC so
W.P.(C) No.16834 of 2023
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far as criminalizing consensual sexual act between
adults of any sexual orientation.
The conclusions in the case of Navtej Singh
Johar (Supra) reads as under;
“645. CONCLUSION
645.1. In view of the aforesaid findings, it
is declared that insofar as Section 377
criminalises consensual sexual acts of adults
(i.e. persons above the age of 18 years who
are competent to consent) in private, is
violative of Article 14, 15, 19 and 21 of the
Constitution. It is, however, clarified that such
consent must be free consent, which is
completely voluntary in nature and devoid of
any duress or coercion.
645.2. The declaration of the aforesaid
reading down of Section 377 shall not,
however, lead to the re-opening of any
concluded prosecutions, but can certainly be
relied upon in all pending matters whether
they are at the trial, appellate, or revisional
stages.
645.3. The provisions of Section 377 will
continue to govern non-consensual sexual acts
against adults, all acts of carnal intercourse
against minors, and acts of bestiality.
645.4. The judgment in Suresh Kumar
Koushal v. Naz Foundation² is hereby
overruled for the reasons stated in paras 642
and 643.”
18. The Apex Court has categorically said that in
so far as Section 377 which criminalises consensual
sexual acts of adult persons above the age of 18
W.P.(C) No.16834 of 2023
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years in private is violative of Articles 14, 15 19 and
21 of the Constitution. But sounded a word of caution
that such consent must be free, voluntary and devoid
of duress of coercion. The apex Court has also
clarified that provisions of Section 377 will continue
to govern nonconsensual sexual acts against the
adults.
19. This Court felt it imperative to refer to the
aforementioned judgments of the constitution bench
in view of the fact that one of the charges as framed
is under Section 377 of IPC.
20. It is the submission of the learned counsel for
the Petitioner that Rule 834(A) clearly stipulates that
no more than one black mark shall be awarded for
any offence except when moral turpitude can
reasonably be inferred. The word moral turpitude has
not been defined and in the considered view of this
Court sans the judgment of the Constitution Bench
the act as committed by the Petitioner qualifies as
moral turpitude. Rule 845 dealing with criminal
prosecutions gives clue regarding moral turpitude in
as much as it can be impliedly held that as per the
Police Rules moral turpitude can be such as theft and
forgery or for a serious breach of discipline as such
allowing a prisoner to escape or sleeping on sentry
duty.
W.P.(C) No.16834 of 2023
Page 16 of 20
21. This Court is conscious of the fact that Rule
845 deals with the Effect of imprisonment but to get
an insight into the intent of the executive defining
“moral turpitude” the aforementioned reference has
been made. Even otherwise the moral turpitude has
known in common parlance means thus;
The expression moral turpitude in the present
context implies to the offence as it was in the statute
book under Section 377 of IPC. 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 that the act on the
date the order was passed can be treated as an
offence.
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.
W.P.(C) No.16834 of 2023
Page 17 of 20
22. In this context, 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. According to the learned counsel for
the Petitioner in imposing the punishment the
authorities have signally failed to take note of the
same.
23. Per contra learned counsel for the State
submits that since it deals with the contingencies of
conviction, acquittal or discharge, the case at hand in
which the proceeding has been quashed on account
of compromise won’t come within the category as
stated in Rule 845 and as such, there is no infirmity
in the order.
24. Taking into account the charge in the
departmental proceeding and the quashing of the
criminal case in which the alleged offence, inter alia,
was under Section 377 of IPC, in the light of the
judgment passed by the Apex Court in the case of
Navtej Singh Johar (Supra), this Court has no
hesitation to hold that the charge in the departmental
proceeding as well as in the criminal case are one and
the same primarily on account of an alleged offence
W.P.(C) No.16834 of 2023
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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
Police Rules, in the case at hand, would amount to
abuse of process of law.
Accordingly the punishment for imposition of
the black marks is quashed.
25. So far as the second limb of punishment is
concerned, it is submitted by the learned counsel for
the Petitioner, relying upon the judgment of the
Hon’ble Supreme Court in case of Vijay Singh vs.
State of U.P. and others reported in (2012) 5 SCC
242, that the punishment not envisaged under the
Rules cannot be imposed. Admittedly, treating the
“suspension period as such” which entails financial
depravity cannot otherwise be imposed without giving
an opportunity of hearing to a delinquent.
26. It is trite that no order, which results in civil
consequence, can be passed without giving the
delinquent an opportunity of hearing. Admittedly, in
the case at hand the same has not been done, which
renders the second limb of the punishment,
additionally vulnerable.
W.P.(C) No.16834 of 2023
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27. Hence, on a perspicuous analysis of materials
on record and in the light of the judgments of the
Apex Court in the case of Navtej Singh Johar
(Supra) as well as Vijay Singh (Supra), the order
of punishment at Annexure- 3 and the appellate as
well as revisional orders at Annexure-5 and 7
respectively as well as the rejection of memorial, at
Annexure-9 are hereby quashed.
28. The petitioner shall be entitled to
consequential service and financial benefits.
Accordingly, the Writ Petition stands disposed of. No
costs.
(V. Narasingh )
Judge
Orissa High Court, Cuttack,
Dated the 17th of June, 2025/Santoshi
Signature Not Verified
Digitally Signed
Signed by: SANTOSHI LENKA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 19-Jun-2025 20:30:44
W.P.(C) No.16834 of 2023
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