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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: RAM KISHAN

DATE OF JUDGMENT07/05/1971

BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) MITTER, G.K. VAIDYIALINGAM, C.A. REDDY, P. JAGANMOHAN DUA, I.D.

CITATION:  1971 AIR 1402            1971 SCR  753  1971 SCC  (2) 349  CITATOR INFO :  D          1988 SC 805  (10)  D          1989 SC 811  (10)

ACT: Punjab  Police  Rules,  r.  16.38-Police  Officer  in  plain clothes committing offence while raiding a place-Failure  to give   information   to  District   Magistrate-Validity   of departmental inquiry and dismissal of police officer.

HEADNOTE: The  respondent, a police constable, raided a place, and  in the  course of the raid caused a knife injury to one of  the persons  in the place.  He went to the scene  of  occurrence without  his  uniform.   A case under s.  324,  I.P.C.,  was registered  against  him.  A departmental inquiry  was  also ordered  against him and he was dismissed from service.   He filed  a  suit. challenging the order of  dismissal  on  the ground, inter alia, that the procedure prescribed by the  r. 16.38 of the Punjab Police Rules was not followed. The High Court, in appeal, decreed the suit. In appeal to this Court, HELD:The  plaintiff  was  purporting  to  exercise  the authority  of  a  police officer even if  he  was  in  plain clothes.   The  acts  alleged  against  him.  constituted  a criminal  offence in connection with his  official  relation with  the public and their description in the charge in  the departmental  proceedings as negligence was an  attempt  to avoid the, effect of r. 16.38. Under sub-r. (1) of the  rule immediate  information  regarding  the  commission  of.  the offence should have been given to the District Magistrate. In  the  present  case there was no  evidence  of  any  such information being given to the District Magistrate, nor  was there evidence that the District Magistrate decided that the investigation _shall be conducted by the police officers who conducted it.  Since there was a breach of sub-r. (1)  of the rule the order of dismissal was illegal.   U59E- H.  760H]  Delhi  Administration v. Chanan  Shah,  [1969]  3 S.C.R. 653 followed.

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 750 of 1966. Appeal by special leave from judgment and order dated  March 4,  1964 of the Punjab High Court, Circuit Bench,  Delhi  in C.R.S.A. No. 256-D of 1962. Jagadish  Swarup, Solkitor-General, and R. N. Sachthey,  for the appellant. N.   D. Bali and D. D. Sharma, for the respondent. 758 The Judgment of the Court was delivered by Sikri,  C.J.-The  respondent, Ram  Kishan,  Head  Constable, (hereinafter  referred  to as the Plantiff)  failed  a  suit challenging the order of dismissal passed against him on 3rd September,  1957  by Shri D. C.  Sharma,  Superintendent  of Police  (Central).  The main attack was twofold.   First  it was  alleged  that Shri.  D. C. Sharma was  not  a  District Superintendent  of  Police and, therefore  not  entitled  to dismiss the plaintiff., Secondly it was alleged that as  the procedure  prescribed by Rule 16.38 of the,  Punjab Police Rules  was  not  followed,  the  departmental  action  taken against the plaintiff was illegal. The  version  of the plaintiff as to what happened  on  22nd June, 1957 was this.  On 22nd June, 1957 he was on duty  for prevention  of  crime  and while on his  round  he  received information  that  some gamblers were gambling in  a  public place on Rouse Avenue.  Consequently, he organised a raiding party.’  The gamblers, who were Harijans,  out-numbered  the police  party and inflicted some injuries on the members  of the  party.   Fearing  that they would be  hauled  up,  they approached a Harijan member of the Corporation as well as  a Harijan  Member  of the Parliament, who  telephoned  to  the plaintiff’s  officers,  at the police  station,  before  the plaintiff  reached  the  police station from  the  scene  of affray in order to lodge his report. The  version  of the Government was that  the  plantiff  was deputed for the checking of cycle theft duty near Employment Exchange,  Darya  Gunj and he had not been posted  at  Rouse Avenue,  Harding Bridge.  It was denied that  the  plaintiff received  any  information regarding gambling  at  a  public place.  in Rouse Avenue.  On the contrary it was alleged  on behalf  of the Government that the plantiff alongwith  other constables wanted to implicate Mohan Lal, Nathu etc., and  a scuffle..  took, place between the plaintiff and  his  other associates  on the one hand and Mohan Lal and others on  the other hand. The Sub-Judge dismissed the suit. The plaintiff filed an appeal before the Additional District Judge,  who accepted the appeal and granted the plaintiff  a decree,   for  a  declaration  that  the  order  dated   3rd September,  1957 dismissing him from service is illegal  and ultra  vires.  He also passed a decree for Rs. 1926  /10  on account of pay and allowances. The Government filed an appeal in the High Court.  The’ case came  up  before Mahajan J., who observed that there  was  a breach  of Rule 16.38 of the Punjab Police Rules but  as  it was 759 contended  that the Police Rule 16.38 was directory and  not mandatory, he referred the case to a Division Bench. Mehar Singh J. speaking for the Bench held that "in view  of Babu  Ram  Upadhya’s (1) case this rule must be held  to  be mandatory,  though  even otherwise, on the language  of  the rule itself I am of the opinion that it is a rule  mandatory

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in nature".  He further observed that "In this case it is an admitted fact that there was no reference of the information to the District Magistrate and he had no opportunity to take a  decision  first  under subrule (1) and  then  under  sub- rule(2)." He agreed with the first appellate court that  the charge  in the statement of allegations was  an  information indicating  the commission by the respondent of  a  criminal offence  in connection with his official relation  with  the public,  as not only Batto was injured in the  incident  but also some Foot Constables. It  was contended before us that the first part of the  rule 16.38 does not apply because the plaintiff went to the scene of occurrencewithout any uniform and that the question  of commission  of  a criminal offence by a  police  officer  in connection  with his official relations with the public  can only  arise  if  he  commits the offence when  he  is  in  a uniform.  It was further urged that before an offence can be said to have been committed by a, police officer it must  be not  in exercise of purported authority but real  authority. We are unable to see any force in these contentions.  On the facts  of this case it is quite clear that the plantiff  was purporting  to  exercise authority of a police  officer  and even if he was in plain clothes it does not mean that he was not purporting to act as a police officer. In our view, in this case there was a breach of sub-rule (1) of  Rule  16.38. D.W. 2, Raghu Nath, admitted that  on  22nd June 1957 a case under s. 324 I. P. C. was registered at the instance  of Harijans and that investigation was  made  Hori Lal and then S. I. Daulat Ram.  The allegations against  Ram Kishan  and  others  were that they had  inflicted  a  knife injury  on Mst.  Batto, a Harijan woman and  medical  report showed  that the injury was with a blunt weapon  though  the injury  was simple.  He further said that S. P. ordered  him to  start  a  departmental inquiry  against  the  plaintiff. There  is  no evidence that any  immediate  information  was given  to the District Magistrate of the complaint  received against  the plaintiff.  Neither is there any evidence  that the District Magistrate decided that the investigation shall be conducted by the police officers, who conducted it. (1)  A.I.R. 1961 S.C. 751 760 The  learned  counsel for the Government  further  contended that  the  charge against the plantiff in  the  departmental proceedings was a, charge of negligence and not a charge  in connection  with  the commission of a  criminal  offence  in connection  with  his official relations with  public.   The charge reads as under:               "That  you on 22-6-57 at 8.30 a.m.  were  sent               for  checking cycle thieves vide D. D.  No.  9               dated 22-6-57 P. S. Faiz Bazar, but left  your               place of duty and alongwith F. C. Thakur Dayal               No. 6105 went to Asaf Ali Road from where  you               took F. Cs.  Lekh Raj No. 6512 and Bhagat  Ram               No. 1952.               You accompanied by the three F. Cs.  mentioned               above went to the Harijan Basti in the area of               Rouse Avenue in search of some ’Sattabaz’.               That  you  or any of your F. Cs. were  not  in               Police Uniform.               That you raided some Harijans who were sitting               on  the cots under a tree without giving  your               identity under the pretext of gambling.               That  altercation took place between your  two               F.  Cs.  Thakur Dayal No. 6105 and Bhagat  Ram               No. 1952 and the Harijans, where in these  two

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             F.  Cs.  and Mst.  Batto mother of  Mohan  Lal               were injured.               That  no independent witness or informer  were               produced  by  you  before  the   investigation               officer  to show whether or not your raid  was               of bona fide nature.               1, therefore, charge you for gross  negligence               of duty." But according to the final sentence in the summary of  alle- gations this action amounted to gross negligence of duty and misconduct. It seems to us that it was a colourable attempt to avoid the effect of Police Rule 16.38 sub-rule(1).  It is a clear case of  criminal  offence and it was a mere device  to  call  it gross negligence. Following the case Delhi Administration v. Chanan Shah(1) we hold  that  as  in this case there has  been  no  compliance whatsoever   of  Rule  16-38,  sub-rule(1),  the  order   of dismissal is illegal.  In the result the appeal fails and is dismissed with costs. V.P.S.                                  Appeal dismissed. (1)  [1969] 3 S.C.R. 653. 761