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PETITIONER: THE STATE OF UTTAR PRADESH & OTHERS

       Vs.

RESPONDENT: AJODHYA PRASAD

DATE OF JUDGMENT: 25/11/1960

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. MUDHOLKAR, J.R.

CITATION:  1961 AIR  751            1961 SCR  (2) 679  CITATOR INFO :  F          1961 SC 773  (5,7)  RF         1964 SC 600  (57,63,18)  F          1965 SC 868  (4)  R          1967 SC 356  (7)  RF         1968 SC 224  (3)  RF         1969 SC 903  (30)  RF         1969 SC1108  (8)  D          1970 SC 122  (12)  D          1970 SC1244  (29)  RF         1971 SC1403  (7)  F          1971 SC2111  (7)  E          1973 SC 883  (19)  RF         1974 SC 794  (13)  O          1974 SC2192  (50,51,53)  R          1975 SC 446  (10)  RF         1976 SC2433  (6)  R          1977 SC 747  (6)  R          1979 SC  52  (13)  R          1979 SC1149  (19)  RF         1980 SC2181  (104)  RF         1981 SC 711  (11)  F          1982 SC1407  (24)  R          1983 SC 494  (8)  RF         1983 SC 558  (20)  O          1985 SC1416  (43,56, TO 58)  RF         1986 SC 555  (6)  RF         1988 SC 805  (10)  D          1989 SC 811  (3,10)  RF         1989 SC1160  (30)  RF         1990 SC 820  (31)  RF         1992 SC1033  (54)

ACT: Public  Servant--Complaint of taking bribes  against  Police officer--Magisterial  enquiry into  complaints--Departmental trial--Validity  of--Police Act, 1861 (V of 1861), s.  7--U. P. Police Regulations, Paras. 486, 489.

HEADNOTE:

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The  respondent was posted as officer incharge of  a  police station when complaints were received by the District Magis- trate  that  the  respondent  was  receiving  bribes.    The District  Magistrate  got  an  enquiry  made  by  the   Sub- Divisional  Magistrate  and forwarded the  report  toghether with  his own endorsement to the Superintendent  of  Police. The  respondent was forced to go on 2 months leave  and  was reverted  to  his substantive post of  Head  Constable,  but later  he  was  promoted to the  rank  of  officiating  Sub- Inspector  and posted at another police station.   Meanwhile on  further complaints an investigation was made and it  was reported that the respondent was a habitual bribe taker.  He was  charged under s. 7 Police Act for 9 charges of  bribery and   after   departmental  trial  was  dismissed   by   the Superintendent  of Police.  He filed a Writ Petition  before the High court challenging the order of dismissal inter alia on  the  ground that the offences charged  being  cognizable offences the Superintendent of Police had no jurisdiction to hold the departmental trial without first complying with the provisions of para. 486(1) of the U. P. Police  Regulations. The  High  Court accepted this contention  and  quashed  the order of dismissal. 673 Held  (per  Sarkar, Subba Rao and Mudholkar, JJ.)  that  the subject matter of the magisterial enquiry and of the depart- mental trial was substantially the same and that the depart- ’I  mental trial was validly held.  The fact that there  was an  interregnum  between  the magisterial  enquiry  and  the departmental  trial did not affect the question.   Paragraph 486 did not apply to a case where a magisterial enquiry  was ordered  and a police officer could be departmentally  tried under s. 7 Police Act after such magisterial enquiry. Per Gajendragadkar and Wanchoo, JJ.-The provisions of  para. 486  were  merely  directory  and even  if  there  was  non- compliance   therewith  the  order  of  dismissal  was   not invalidated.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 270 of 1959. Appeal  by special leave from the judgment and  order  dated December  23,  1957, of the Allahabad  High  Court  (Lucknow Bench)  at  Lucknow in Civil Miscellaneous  Application  (0. J.) No. 86 of 1954. C.   B.  Aggarwala,  G.  C. Mathur and C. P.  Lal,  for  the appellants. Achhru Ram, S.  N. Andley, J. B.  Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondent. 1960.  November, 25.  The Judgment of Sarkar, Subba Rao  and Mudholkar, JJ., was delivered by Subba Rao, J., and that  of Gajendragadkar  and Wanchoo, JJ., was delivered by  Wanchoo, J. SUBBA RAO, J.-This is an appeal by special leave against the judgment  and  order  of the High  Court  of  Judicature  at Allahabad, Lucknow Bench, allowing the petition filed by the respondent under Art. 226 of the Constitution. The facts are in a small compass and may be briefly  stated. In the year 1933 the respondent was appointed a constable in U. P. Police Force; on December 1, 1945, he was promoted  to the rank of head constable and in May, 1952 he was posted as officer  incharge  of Police  Station,  Intiathok,  District Gonda.  Complaints were received by the District Magistrate, Gonda,  to  the  effect that the  respondent  was  receiving bribes  in  the discharge of his duties.  On  September  16,

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1952,  the  District Magistrate, Gonda,  directed  the  Sub- Divisional Magistrate to make an enquiry in respect of the 674 said  complaints.   On November 3,1952,  the  Sub-Divisional Magistrate, after making the necessary enquiries,  submitted a  report  to  the  District  Magistrate  recommending   the transfer  of  the respondent to some    other  station.   On November   17,  1952,  the  District  Magistrate   sent   an endorsement  to the Superintendent of Police to  the  effect that  the  Sub-Divisional Magistrate had  found  substantial complaints against the integrity of the respondent, that  he had  also  received  such complaints and  that  his  general reputation for integrity was not good, but that his transfer should,  however,  come  after  sometime  and  that  in  the meantime his work might be closely watched.  On being called upon   by  the  Superintendent  of  Police  to   submit   an explanation  for his conduct, the respondent  submitted  his explanation on November 29, 1952.  On December 17, 1952, the respondent was forced to go on leave for two months.  Before the expiry of his leave, he was reverted to his  substantive post  of  head  constable and transferred  to  Sitapur.   On February   17,  1953,  he  was  promoted  to  the  rank   of officiating  Sub-Inspector and posted as Station Officer  at Sidholi.  On February 27, 1953, the Superintendent of Police made the following endorsement in his character roll: "A strong officer with plenty of push in him and met with  a strong  opposition  in this new charge.  Crime  control  was very  good but complaints of corruption were received  which could not be substantiated.  Integrity certified." Meanwhile  on  further  complaints, the  C.I.D.  probed  the matter  further and on July 26, 1953, the Superintendent  of Police,  Investigation  Branch, C.I.D.,  reported  that  the respondent was a habitual bribetaker.  On July 28, 1953,  he was  placed under suspension and on August 18, 1953, he  was charged under s. 7 of the Police Act with remissness in  the discharge of his duty and unfitness for the same inasmuch as while   posted  as  a  Station  Officer,   Police   Station, Intiathok, he had been guilty of dishonesty, corruption  and misbehaviour  in that he had on nine occasions,  particulars of  which were given in the charge, accepted bribes. it  may be mentioned that the magisterial inquiry 675 related  to  seven of the nine charges alleged  against  the respondent.  The trial was conducted by the,  Superintendent of  Police and the respondent submitted his  explanation  on September  12,  1953.   The Superintendent  of  Police,  who conducted the trial, examined many witnesses and found  that seven  out  of  the  nine  charges  had  been   established. Thereafter he issued a notice to the respondent calling upon him  to show cause why he should not be dismissed  from  the police  force.   On February 20, 1954, the  respondent  sub- mitted his explanation and the Superintendent of Police,  by his order dated February 22, 1954, dismissed the  respondent from  service  with effect from the said date.   The  appeal preferred by the respondent to the Deputy Inspector  General of  Police  was dismissed by his order dated June  2,  1954. Thereafter  the  respondent  on  August  5,  1954,  filed  a petition under Art. 226 of the Constitution before the  High Court  of  Judicature  at  Allahabad,  Lucknow  Bench,   for quashing the order of dismissal. Before the High Court three points were raised, namely,  (1) as  the  petitioner  was officiating.  as  Sub-Inspector  of Police   at   the  time  of  the  departmental   trial   the Suprintendent  of Police had no power to dismiss him,  since an  order  in  such circumstances could only be  made  by  a

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police  officer senior in rank to a Superintendent; (2)  the trial  was vitiated by a number of  serious  irregularities; and  (3)  the specific acts with which  the  petitioner  was charged   were  cognizable  offences  and,  therefore,   the Superintendent of Police had no jurisdiction to proceed with a  departmental trial without complying with the  provisions of subparagraph (1) of para. 486 of the Police  Regulations. The  learned  Judges  of  the  High  Court  held  that   the respondent  was charged with committing cognizable  offences and  therefore sub-paragraph (1) of para. 486  governed  the situation and that, as no case, as required by the said sub- paragraph,  was  registered against the  respondent  in  the police  station, the order of dismissal was  invalid.   They further  held  that the case was not covered  by  the  first proviso to sub-paragraph (1)  of para. 486, as, in their opinion, the information 676 about  the commission of the offences was not in  the  first instance  received by the Magistrate and forwarded   to  the police  for inquiry.  In view of that finding they found  it unnecessary  for  them  to express any  opinion  upon  other arguments   which  had  been  advanced  on  behalf  of   the respondent.  In the result they issued a writ in the  nature of  certiorari  quashing  the impugned  orders.   Hence  the appeal. Mr.  C.  B.  Agarwala, learned  counsel  appearing  for  the appellants,  raised before us the following points: (1)  The Governor  exercised his pleasure through the  Superintendent of  Police,  and,  as  the  Police  Regulations  were   only administrative  directions,  the  non-compliance   therewith would  not  in any way affect the validity of the  order  of dismissal.  (2) If the order of dismissal was held  to  have been  made  under  the statutory power  conferred  upon  the Superintendent  of  Police, the  regulations  providing  for investigation  in the first place under chapter XIV  of  the Criminal  Procedure Code were only directory in nature,  and inasmuch  as no prejudice was caused to the  respondent  the non-compliance  with the said regulations would  not  affect the   validity   of  the  order  of   dismissal.   (3)   The Superintendent  of  Police  was  authorized  to  follow  the alternative  procedure  prescribed by  subparagraph  (3)  of para. 486 and, therefore, the inquiry held without following the  procedure prescribed by rule I was not bad. (4) As  the magisterial  inquiry was held in regard to  practically  all the  charges, the subject matter of the departmental  trial, the  case is not covered by the provisions of para.  486  of the Police Regulations. In the case of The State of U. P. v. Babu Ram Upadhya (1) in which   we  have  just  delivered  the  judgment,  we   have considered  the  first  three point;  and  for  the  reasons mentioned therein we reject the first three contentions. The appellants must succeed on the fourth contention.   From the  facts already narrated, the conduct of the  respondent, when  he  was  officer  incharge  of  the  Police   Station, Intiathok, was the subject-matter of (1)  Civil Appeal No. 119 of 1950; [1961] 2 S.C.R. 679. 677 magisterial  inquiry.   The Sub-Divisional  Magistrate  made inquiry  in respect of seven of the charges which  were  the subject-matter  of the departmental trial and.  submitted  a report to the District Magistrate.  The District Magistrate, in  his  turn,  made  an  endorsement  on  the  report   and communicated  the  same  to  the  Superintendent  of  Police recommending  the transfer of the respondent and  suggesting that  in the meanwhile the work of the respondent  might  be

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closely  watched.  Though the Superintendent of Police  gave at first a good certificate to the respondent, in respect of the  same  a  further  probe was  made  through  the  C.I.D. Thereafter   the  Superintendent  of  Police   conducted   a departmental trial in respect of the aforesaid seven charges and  two other new charges of the same nature.  The  inquiry ended   in  the  dismissal  of  the  respondent.    In   the circumstances it would be hypertechnical to hold that  there was  no magisterial inquiry in respect of the  matter  which was  the subject-matter of the departmental trial.   On  the said facts we hold that the departmental inquiry was only  a further step in respect of the misconduct of the  respondent in  regard  whereto the magisterial inquiry was held  at  an earlier  stage.   If so, the question is whether  para.  486 would govern the present inquiry or it would fall out- side its scope. The relevant provisions of the Police Regulations read: Paragraph  486: "When the offence alleged against  a  police officer amounts to an offence only under s: 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 the Superintendent of Police  in accordance with the following rules;" Paragraph 489: "A police officer may be departmentally tried under section 7 of the Police Act- (1)  after he has been tried judicially; (2)  after a magisterial inquiry under the Criminal Procedure Code; 86 678 (3)   after  a  police  investigation  under  the   Criminal Procedure  Code or a departmental enquiry  under   paragraph 486 III above." A combined reading of these provisions indicates that  para. 86  does not apply to a case where a magisterial inquiry  is ordered;  and  that a police officer can  be  departmentally tried under s. 7 of the Police Act after such a  magisterial inquiry.   In  this  case the departmental  trial  was  held subsequent to the completion of the magisterial inquiry  and therefore it falls within the express terms of para. 489(2). The fact that in the interregnum the police received further complaints or that the C.I.D. made further enquiries do  not affect the question, if substantially the subject-matter  of the  magisterial inquiry and the departmental trial  is  the same.   In this case we have held that it was  substantially the  same and therefore the departmental trial  was  validly held.   We, therefore, set aside the order made by the  High Court.   As we have pointed out earlier, the High Court,  in the  view  taken by it, did not express its opinion  on  the other  questions  raised  and  argued  before  it.   In  the circumstances,  we remand the matter to the High  Court  for disposal in accordance with law. The costs of this appeal will abide the result. WANCHOO, J.-We have read the judgment just delivered by  our learned  brother  Subba  Rao  J. We  agree  with  the  order proposed by him.  Our reasons for coming to this  conclusion are,  however, the same which we have given in C.A.  119  of 1959, The State of Uttar Pradesh v. Babu Ram Upadhya.               Appeal allowed.  Case remanded. 679