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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: RAJ KUMAR

DATE OF JUDGMENT11/02/1988

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) SEN, A.P. (J)

CITATION:  1988 AIR  805            1988 SCR  (2) 936  1988 SCC  (1) 701        JT 1988 (1)   476  1988 SCALE  (1)319  CITATOR INFO :  R          1989 SC 811  (8)

ACT:      Punjab Police  Rules, 1934  framed under the Police Act 1861-Rule  16.38-Interpretation   of-Whether  Mandatory   or directory   in   nature-Scope   of-Whether   applicable   to departmental  inquiries   alone  or  would  govern  criminal proceedings  also   under  I.P.C.   and  other  acts.  Held- Applicable to departmental inquiries only.

HEADNOTE: %      The respondent  was  apprehended  while  taking  bribe. Investigation was  held and the respondent was chargesheeted before the Special Judge. The respondent raised an objection to the framing of charges against him on the ground that the investigation of the case was in contravention of rule 16.38 of the  Punjab Police Rules. The Special Judge overruled the objection and  framed charges and posted the case for trial. The respondent  filed a petition before the High Court under section 561(A)  of the Code of Criminal Procedure, 1898, for quashing the  proceedings against  him  before  the  Special Judge. A  full bench  of the High Court held that rule 16.38 is mandatory  and not  directory in  character and  that the mandate  would   govern  criminal  prosecution  as  well  as departmental inquiries  in equal  measure.  The  full  bench having noticed that the investigation against the respondent had not  been done in accordance with rule 16.38 allowed the petition  and   quashed  the   charges  framed  against  the respondent. Hence this appeal filed by certificate issued by the High Court.      Allowing the  appeal and setting aside the High Court’s judgment this Court, ^      HELD: The procedure prescribed in rule 16.38 has only a limited field  of  operation  that  is  applicable  only  to departmental inquiries  and punishments.  This could be seen from the  fact that  clause 3  of  the  rule  enjoins  every Magistrate to  whom a  complaint against a police officer is referred by  the District Magistrate for judicial enquiry to report the details of the case to the District Magistrate in

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order to  enable the  District  Magistrate  to  forward  the report to  the Superintendent  of Police. The clause further says  that   if  the   District  Magistrate   himself  takes cognizance of  a case  he should  of his  own accord  send a report to 937 the Superintendent  of Police.  Clause IV of rule 16.38 also throws light  on the  matter and brings out the objective in greater clarity.  This clause  sets out  that  in  order  to protect the interest of police officers serving in districts where  petition  mongering  activities  are  notorious,  the District  Magistrate   can   direct   that   all   petitions complaining about  police officers shall be presented to him personally so  that he  can  scrutinize  them  to  find  out whether the petitions are of a frivolous nature or they have been engineered  by factious groups in the districts etc. In fact, the words used in the clause are of a tell-tale nature viz. "complaints  against police officers in those districts where abuses  of law  with the  object of  victimising  such officers or hampering investigation is rife." [945F-H; 946A- B]      The purpose  underlying  the  rule  is  to  enable  the District  Magistrate  and  the  District  Superintendent  of Police to exercise personal control and supervision over the complaints received  against members  of the police force in the performance  of their  duties and  enable  the  District Magistrate to ensure that the complaint is not a baseless or mala  fide   one  and  secondly  to  determine  whether  the complaint requires investigation by a police officer or by a selected Magistrate.  The procedure envisaged by the rule is for effective check being exercised against victimisation of efficient and  honest police  officers on  the one  hand and favouritism being shown to the delinquent police officers on the other.  These rules  were not  intended to  replace  and certainly cannot  over-ride the  provisions of  the Criminal Procedure Code. [946C-E]      In the  instant case  the Full  Bench was  in error  in taking the  view  that  the  Punjab  Police  Rules  read  in conjunction  with  the  Police  Act  prescribe  a  different procedure for  the investigation and prosecution of offences committed by  Police Officer  under the I.P.C. or other Acts in connection  with their relations with the public and that the rules  constitute a  special statute and take precedence over the  provisions of  the Cr.  P.C. The  Full  Bench  has failed  to   note  that   Rule  16.38   only  mandates   the investigation of  cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder.[948B-C]      Raj Kumar,  A. S.  I. v. The State of Punjab, [1976] IV CLR (Pb. & Har.) page 39, overruled.      State of  Punjab v.  Charan Singh,  [1981] 2  SCC  197, referred to/agreed to.      Delhi Administration  v. Chanan  Shah, [1969]  3 S.C.R. 653; 938 Union of  India v. Ram Kishan, [1971] 2 S.C.C. 349; State of Uttar Pradesh  v. Babu  Ram Upadhya,  [1961] 2  S.C.R.  679; Maulud Ahmad  v. State  of U.P., [1963] (Supp.) 2 S.C.R. 38; Ajaib Singh  v. Joginder Singh, [1969] 1 S.C.R. 145 and S.N. Sharma v.  Bipan Kumar  Tiwari &  Ors.,[1970] 1  S.C.C. 653, referred to.

JUDGMENT:

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    CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 580 of 1976.      From the  Judgment and  Order dated  10.10.1975 of  the High Court  of Punjab  and Haryana in Criminal Miscellaneous No. 772-M of 1974.      R.S. Sodhi for the Appellant.      Gopal Subramaniam, Amicus Curiae for the Respondent.      The Judgment of the Court was delivered by      NATARAJAN, J.  This appeal by certificate granted under Article 134(1)(c)  of the  Constitution is  directed against the judgment of a Full Bench of the High Court of Punjab and Haryana in  Raj Kumar, A.S.I. v. The State of Punjab, [1976] IV C.L.R.  (Pb. &  Har.) page  39 allowing  a petition under Section 561(A)  of the Code of Criminal Procedure 1898 filed by the  respondent. The  objective in  filing the appeal, it was conceded  by Mr.  R.S. Sodhi,  learned counsel  for  the State is  the determination  of a  larger issue transcending the  narrow   confines  of  the  quashing  of  the  criminal proceedings against  the respondent viz. the construction of Rule 16.38  of the Punjab Police Rules and its applicability to criminal prosecutions launched against the members of the Punjab Police  Service for  offences under  the Indian Penal Code and other Acts.      The controversy  regarding the  ambit of  Rule 16.38 of the  Punjab   Police  Rules  has  arisen  in  the  following circumstances. One  Jamuna Devi  Mukhtiar Kaur gave a report against the  respondent, who  was an Assistant Sub Inspector in the  Punjab Police  Service, to the Deputy Superintendent of Police, Patiala alleging command of illegal gratification of Rs.200  by him  for releasing  her husband and brother on bail bonds  in a  case pertaining to a land dispute. A first information report  was registered  and a  trap was laid for the respondent  and he was apprehended as soon as the marked currency notes  treated with  phenolophthalene  were  handed over to him and the marked currency 939 notes  were   recovered  from   him.  After   completion  of investigation, the  respondent was  chargesheeted before the Special Judge,  Sangrur. The  respondent appeared before the Special Judge  and raised  an objection  to the  framing  of charges against  him on  the ground the investigation of the case was  in contravention  of Rule 16.38. The Special Judge over-ruled the  objection and  framed charges and posted the case for trial.      The respondent  filed a  petition before the High Court under Section  561(A) of  the Criminal  Procedure Code 1898, for quashing  the proceedings against him before the Special Judge. As there were conflicting decisions of the High Court in the  interpretation of Rule 16.38, a learned Single Judge referred the  matter to  a Division  Bench and  in turn  the Division Bench  referred the  matter to a Full Bench. A Full Bench of  the High  Court reviewed the earlier decisions and held that  Rule 16.38  is mandatory  and  not  directory  in character and  secondly the  mandate would  govern  criminal prosecutions as  well as  departmental  enquiries  in  equal measure and as such any prosecution launched or departmental enquiry held  in violation  of the  terms of  the Rule would vitiate the  proceedings concerned.  Having interpreted Rule 16.38 thus,  the Full  Bench noticed  that the investigation against the  respondent had not been done in accordance with Rule 16.38  and therefore the bench allowed the petition and quashed the  charges framed against the respondent. The High Court,  however,   granted  a   certificate  under   Article 134(1)(c) to  the State  to file an appeal to this Court and that is how the appeal is before us.

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    What, therefore, calls for consideration is whether the procedure prescribed  in Rule  16.38 calls for observance in the case of departmental enquiries alone or whether it would govern criminal  prosecutions also  for offences  under  the Indian Penal  Code and  other Acts, and secondly whether the Rule is  mandatory in  character or only directory. Our task has been  considerably lightened  by a  pronouncement on the first question,  with which  we are  primarily concerned, by another Bench of this Court in the State of Punjab v. Charan Singh, [1981]  2 SCC  197 declaring  that Rule  16.38 cannot govern criminal  prosecutions against  the  members  of  the Police Force  as it  cannot over-ride  the provisions of the Criminal Procedure Code. In spite of the said pronouncement, with which  we are  in  respectful  agreement,  we  feel  it necessary to  deal with the matter at some length because of certain misconceptions contained in the judgment of the High Court under appeal. 940      Before we  advert to  the decisions  pertaining to Rule 16.38, we  may refer to certain provisions of the Police Act 1861 and  the Punjab Police Rules framed thereunder. Section 3 of the Police Act, confers the right of superintendence of the Police  Force throughout  the general police district on the State  Government and vests in such Government the right to exercise such powers in that behalf. Section 7 deals with the appointment,  dismissal, etc.  of inferior officers. The Section lays  down that  the "Subject  to the  provisions of Article 311  of the  Constitution, and  to such Rules as the State Government  may from time to time make under this Act, the Inspector  General,  Deputy  Inspector  General,  Asstt. Inspector General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate  ranks  whom  they  shall  think  remiss  or negligent in  the discharge  of his  duty or  unfit for  the same" or  to award  any of the lesser punishments prescribed under clauses  (a) (b)  (c) (d)  for discharge  of duty in a careless  or   negligent  manner   etc.  Besides  the  power conferred on  the  State  Government  to  make  Rules  under Section 7,  there is also provision under Section 12 for the Inspector General  of Police, subject to the approval of the State Government, to frame such orders and rules as he shall deem expedient  relative to the organisation, classification and distribution  of police  force, the  places at which the members of the police force shall reside, the services to be performed by  them etc.  for ensuring  the efficiency of the police force  in the  discharge of  its  duties.  It  is  in exercise of the powers conferred by Sections 7 and 12 of the Police Act  that the  Punjab Police  Rules  1934  have  been framed. The  Rules have  been categorised  under 28 Chapters for dealing  with various  matters  such  as  organisational setup,  uniforms,   arms  and  ammunition,  leave,  pension, promotions,  rewards,  punishments,  training,  supervision, investigation, prosecution  etc. The  matters covered by the Rules make  it clear  that the  Rules have  been framed  for regulating the  set up  and the  service conditions  of  the police force  as well  as  for  awarding  them  rewards  and departmental  punishments  and  other  matters  of  internal administration for keeping efficient and disciplined one. It is in  that perspective  Rule 38  of Chapter  16 has  to  be viewed.      The very  first Rule  in Chapter  16 sets out the scope and purpose  of the  Rule comprised  in that  chapter. Rules 16.1 reads as follows:           "(1) No  police officer  shall  be  departmentally           punished  otherwise  than  as  provided  in  these

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         rules;           (2) The  departmental punishments mentioned in the           second 941           column of  the subjoined table may be inflicted on           officers of the various ranks shown in the heading           Nos. 3  to 9,  by the  officers named  below  each           heading in  each case, or by any officer of higher           ranks".           (Emphasis supplied) Rule 16.38  with which  we are  concerned, contains  7  sub- clauses. For  our purpose  it is  enough if  we extract sub- clauses. 1  to 4  and refer in general terms to the contents of Clauses 5 to 7.           "16.38(1) Immediate  information shall be given to           the District  Magistrate or any complaint received           by the  Superintendent of  Police, which indicates           the commission  by a  police officer of a criminal           offence in  connection with his official relations           with the  public.  The  District  Magistrate  will           decide whether  the investigation of the complaint           shall be  conducted by  a police  officer, or made           over to  a selected  magistrate having  1st  class           powers.           (2)  When   investigation  of   such  a  complaint           establishes  a   prima  facie   case,  a  judicial           prosecution  shall  normally  follow;  the  matter           shall be  disposed of  departmentally only  if the           District Magistrate  so orders  for reasons  to be           recorded.  When   it   is   decided   to   proceed           departmentally the  procedure prescribed  in  rule           16.38 shall  be followed.  An officer found guilty           on a charge of the nature referred to in this rule           shall ordinarily be dismissed.           (3)  Ordinarily   a  magistrate   before  whom   a           complaint  against   a  police   officer  if  laid           proceeds at  once  to  judicial  enquiry.  He  is,           however, required to report details of the case to           the District  Magistrate, who  will forward a copy           of this  report to  the Superintendent  of Police.           The District  Magistrate  himself  will  similarly           send a  report to  the Superintendent of Police in           cases of which he himself takes cognizance.           (4)  The   Local  Government  has  prescribed  the           following supplimentary procedure to be adopted in           the case  of complaints against police officers in           those districts  where abuses  of the law with the           object of  victimising such  officers or hampering           investigation is  rife.  The  District  Magistrate           will  order  that  all  petitions  against  police           officers shall be 942           presented to  him personally. If he considers that           these petitions  are of  a frivolous  or  factious           nature, it  is within  his discretion  to take  no           action on them. When he considers an enquiry to be           necessary he  will use  his discretion  whether to           send the papers to the Superintendent of Police or           to a magistrate for judicial enquiry.                In the  case of  formal criminal  complaints,           the District Magistrate will arrange for all cases           to be transferred from other courts to his own. Clauses 5 to 7 relate to strictures passed by the High Court and other  courts against  police officers and the manner of communication of  the strictures  to the District Magistrate

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and the Government.      Different  interpretations   were  given  by  different Benches of  the High  Court of  Punjab and Haryana regarding the scope  and force of rule 16.38. In Criminal Revision No. 1100 of 1972 (Amarjit Singh v. State of Punjab) H.R. Sharma, J. held that Rule 16.38 debarred criminal proceedings if the same had  been instituted  without a  prior sanction  of the District Magistrate. In Ram Prakash, Asstt. Sub-Inspector v. The State,  [1974] Chandigarh Law Reporter 205 Gurnam Singh, J. took  a diametrically  opposite view. In Hoshiar Singh v. The State, [1965] PLR 438 a Division Bench of the High Court held  that   Rule  16.38   was  attrected  in  the  case  of departmental enquiries  only and  the  departmental  enquiry would be vitiated if the papers had not been produced before the District  Magistrate for  getting his  sanction  at  the initial stage. In Nand Singh v. The Superintendent of Police and another, Current Law Journal(Pb)146 it was held that the Rule was  mandatory. The  said view  was affirmed  by a Full Bench in  Nand Mandan  Sarup v.  The District Magistrate and others, [1966]  Current Law Journal (Pb) 608. It was in that backdrop of conflicting decisions, the petition filed by the respondent herein  under Section  561(A) for quashing of the proceedings against  him before the Special Judge came to be referred to a Full Bench.      The reasoning  of  the  Full  Bench  for  allowing  the respondent’s petition can be summarised thus:           "The Police Act vests the right of superintendence           of the  police force  in  a  State  on  the  State           Government. Section  7 of  the Police Act empowers           the State  Government  to  frame  rules  regarding           disciplinary matters and Section 12 em- 943           powers the Inspector General of Police, subject to           the approval  of the  State Government,  to  frame           orders and  rules relating  to  the  organisation,           classification  and  distribution  of  the  police           force, the  services to be performed by them etc."           Hence the  rules  framed  in  exercise  of  powers           conferred under section 7 and 12 have the force of           law and  they  constitute  a  special  legislation           which takes  precedence over the provisions of the           Criminal Procedure  Code. Section  4 of the Police           Act inter  alia lays  down that the administration           of  the  police,  within  the  jurisdiction  of  a           District  Magistrate,   shall  under  his  general           control and  direction, be  vested in  a  District           Superintendent     and      Assistant     District           Superintendents as  the  Government  may  appoint.           Consequently,   the    District   Magistrate   has           statutory authority  to exercise  control over the           administration of the police force in his District           including the  launching of  criminal prosecutions           or holding  of Departmental  enquiries  against  a           member of  the police force. Rule 16.38 contains a           mandatory provision  regarding the procedure to be           followed when  any complaint  is received  by  the           Superintendent of  Police against  a member of the           police  force   regarding  the  commission  of  an           offence by  him in  connection with  his  official           relations with  the public.  The  said  rule  will           apply with  equal force to investigations relating           to criminal offences for which a prosecution is to           be launched  as it  would to  enquiries for taking           departmental    action     through    disciplinary           proceedings. On  the basis  of such reasoning, the

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         Full Bench  over-ruled  the  decision  in  Hoshiar           Singh v. State of Punjab (supra).      We will  now refer  to the  decision in  Hoshiar  Singh (supra), since  it has  been approved by this Court in State of Punjab  v. Charan  Singh (supra), and then advert to some decisions of  this Court relevant for consideration. In that case a  Sub-Inspector of  Police was challaned under Section 5(2) of  the Prevention  of Corruption  Act and Section 161, Indian  Penal  Code  and  was  suspended  from  service  and chargesheeted  and   thereafter   a   departmental   enquiry followed. When  a show cause notice was served on him on the conclusion  of  the  enquiry  intimating  him  the  proposed punishment, he  objected to  the legality  of the enquiry on the ground  that no permission of the District Magistrate in accordance with  Rule 16.38  of the  Punjab Police Rules had been  obtained.   The  objection   was  sustained   and  the departmental enquiry  was quashed.  Thereafter, the  challan was put into Court and 944 once again  an objection was raised that in the absence of a reference to  the District Magistrate and his orders thereon directing prosecution,  the Special  Judge  could  not  take cognizance of  the case.  The Special  Judge over-ruled  the objection holding  that his  powers under  the Criminal  Law (Amendment) Act  were not  trammelled by  the Punjab  Police Rules. A  criminal revision  was filed before the High Court against the  order of  the Special  Judge and the High Court dismissed the criminal revision holding thus:           "I do  not think  Rule 16.38 was intended or could           have  the   effect  of  imposing  as  a  condition           precedent to  the trial  of a  police officer in a           Court of  Law, a  sanction  or  an  order  by  the           District Magistrate,  as contemplated therein. The           language appears  to me  to be  confined  only  to           departmental  enquiries.   The  investigation  for           establishing a prima facie case is merely meant to           guide the District Magistrate, uncontrolled by the           opinion of  the Superintendent  of Police, whether           or  not   a  departmental   proceeding  should  be           initiated against  the guilty party, and it is the           procedure  and   the  punishment  controlling  the           departmental proceedings  alone, which  appear  to           have been prescribed by this rule."      In Delhi Administration v. Chanan Shah, [1969] 3 S.C.R. 653 an  Asstt. Sub  Inspector was  censured,  after  summary enquiry for  having received illegal gratification in a case he was investigating. The Deputy Inspector General of Police revoked the  order  of  censure  and  directed  departmental action being  taken. The  departmental enquiry culminated in an order  of dismissal  against Chanan  Shah. An  appeal and revision to  the higher  authorities having  failed,  Chanan Shah filed  a writ  petition which was dismissed by a Single Judge but allowed in writ appeal by a Division Bench and the order of  dismissal was  quashed. The  Delhi  Administration came in  appeal to  this Court  and  this  Court  held  that irrespective  of   whether  Rule   16.38  is   mandatory  or directory,  the  authorities  had  failed  to  substantially comply with  the provisions  of the Rule and, therefore, the laches vitiated  the departmental enquiry. The same view was taken in a later case Union of India v. Ram Kishan, [1971] 2 S.C.C. 349  which related  to the  dismissal of  a constable from service  pursuant to  a disciplinary  enquiry being set aside in  a civil suit filed by the dismissed constable. The decree of  the Trial  Court was  affirmed by  the  Appellate Court and  the High  Court and  in further  appeal  to  this

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Court, it  was held  that as  no immediate  information  was given to the District Magistrate in respect of the complaint received 945 against the  plaintiff (constable)  and secondly  since  the District  Magistrate   has  also  not  decided  whether  the investigating  agency  should  be  a  police  officer  or  a magistrate, as  prescribed by  Rule 16.38,  the departmental enquiry was  vitiated and,  therefore, the  plaintiff’s suit had been  rightly decreed. In State of Uttar Pradesh v. Babu Ram Upadhya,  [1961] 2  S.C.R. 679  the view  taken  by  the majority of  the Bench was that paragraph 486 Rule 1 of U.P. Police Rules  was  mandatory  in  character  and  hence  the departmental action  taken  against  the  respondent  police officer in disregard of the rule was invalid.      It may  be noticed  that the  three decisions  of  this Court  which   have  been   referred  to  above  related  to departmental enquiries  and not  criminal  prosecutions  for offences committed  by the  delinquent police  officers. The pronouncements in  these cases  will therefore  govern  only cases where departmental enquiries are held in contravention of the  procedure prescribed by the Police Rules. The reason for a  special procedure  being prescribed  in the Rules for investigations  before   departmental  enquiries   are  held against delinquent police officers is not far off to see. In the very  nature of  their duties, the members of the police force would  often stand exposed to criticism and complaints by not  only the  members of  the public  but  also  by  the members of  the force themselves and consequently they stand placed more  vulnerable than  members  of  other  Government services,  of  being  implicated  in  false  or  exaggerated charges. In  order to  protect them  from false implications and resultant  proceedings, the  Government had  thought  it necessary to  have an  initial screening  of the  complaints received against members of the police force by the District Magistrate. Such  screening would  however  extend  only  to matters which  fall within  the zone  of departmental action and it  could never  extend  to  cases  where  the  offences alleged to  have been  committed would attract investigation under the  Criminal Procedure  Code in  the same  manner the investigation would  be attracted if the offences complained of had  been committed by any member of the public. That the procedure prescribed  in Rule 16.38 has only a limited field of operation  i.e. applicable only to departmental enquiries and punishments could be seen from the fact that clause 3 of the Rule  enjoins  every  Magistrate  to  whom  a  complaint against  a  police  officer  is  referred  by  the  District Magistrate for judicial enquiry to report the details of the case to  the District  Magistrate in  order  to  enable  the District  Magistrate   to  forward   the   report   to   the Superintendent of  Police. The  clause further  says that if the District Magistrate himself takes congnizance of a case, he  should   of  his   own  accord  send  a  report  to  the Superintendent of  Police. Clause  IV  of  Rule  16.38  also throws light on the matter and brings out the 946 objective in  greater clarity.  This clause sets out that in order to protect the interests of police officers serving in districts where petition mongering activities are notorious, the  District  Magistrate  can  direct  that  all  petitions complaining about  police officers shall be presented to him personally so  that he  can  scrutinize  them  to  find  out whether the petitions are of a frivolous nature or they have been engineered  by factious groups in the districts etc. In fact, the words used in the clause are of a tell-tale nature

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viz. "complaints  against police officers in those districts were abuses  of law  with the  object  of  victimising  such officers or hampering investigation is rife."      All these  features make  it  clear  that  the  purpose underlying the rule is to enable the District Magistrate and the District  Superintendent of  Police to exercise personal control and supervision over the complaints received against members of  the police  force in  the performance  of  their duties and enable the District Magistrate to ensure that the complaint is not a baseless or mala fide one and secondly to determine whether  the complaint requires investigation by a police officer  or by  a selected  magistrate. The procedure envisaged by the Rule is for effective check being exercised against  victimisation   of  efficient   and  honest  police officers on  the one hand and favouritism being shown to the delinquent police  officers on  the other.  These rules were not intended  to replace  and certainly cannot over-ride the provisions of  the Criminal  Procedure Code.  The Full Bench was therefore in error in taking the view that the Rules lay down a  special procedure  for investigation of all offences committed by  the members of the police force and, that they have over-riding  effect over the provisions of the Criminal Procedure Code in terms of Sections 4 and 5 of the Code.      We may  now refer  to some other decisions where it has been laid  down that the provisions of the Police Act cannot prevail over  the provisions  of the  Indian Penal  Code. In Maulud Ahmad  v. State  of U.P.,  [1963] (Supp) 2 S.C.R. 38, the appellant  who was  a head  constable contended that the prosecution launched  against him  was barred  by limitation under Section  42 of  the Police Act because the prosecution had  been   launched  beyond  the  period  of  three  months prescribed by Section 42. The contention was rejected and it was pointed  out that  the period of three months prescribed under Section  42 for  commencing a prosecution would govern only prosecutions  of a police officer for something done or intended to  be done  by him  under the  provisions  of  the Police Act  or under  general police powers given by the Act and Section  42 would  not apply  to prosecutions  against a police officer for anything done under the provisions of any other Act or under 947 Police powers  conferred under  any other  Act. It  was also brought  to   focus  that  Section  36  of  the  Police  Act explicitely provides  that nothing contained in the said Act shall  be   construed  to  prevent  any  person  from  being prosecuted under  any Regulation or Act for any offence made punishable by  the Act  or for  being liable under any other Regulation  or  Act  or  any  other  or  higher  penalty  or punishment that  is provided  for such offence by the Police Act. The above ratio was followed in Ajaid Singh v. Joginder Singh, [1969]  1 S.C.R.  145. In  yet another case viz. S.N. Sharma v.  Bipen Kumar Tiwari & Ors., [1970] 1 S.C.C. 653 it was held  that the  power of  the police  to  investigate  a cognizable offence  is uncontrolled by the Magistrate and it is only in cases where the police decided not to investigate the case that the Magistrate can intervene and either direct an investigation,  or in  the alternative himself proceed or depute a Magistrate subordinate to him to proceed to enquire into  the  case  and  that  the  powers  of  the  police  to investigate have been made independent of any control by the Magistrate.      Lastly, we  come to the decision in the State of Punjab v. Charan  Singh (supra)  where the identical question under consideration had  come up  for determination by this Court. The respondent  therein was  convicted by the Special Judge,

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Ludhiana of  an offence  under  Section  5(1)(d)  read  with Section  5(2)  of  the  Prevention  of  Corruption  Act  and sentence to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 100. On appeal, a Single Judge of the High Court acquitted the respondent on the ground the prosecution was  vitiated by  reason of  non-compliance with the provisions  of Rule  16.38 of  the Punjab  Police Rules, 1934. In  the appeal  preferred by  the  State,  this  Court allowed the appeal and held as follows:           "A perusal  of Chapter  XVI of  the Punjab  Police           Rules shows  that the  provisions of  the  Chapter           deal  with   departmental  punishments   and   the           procedure  to   be  followed   in  imposing   such           punishments. Guidance  is given  as to  how police           officers  guilty   of  misconduct   and   criminal           offences may  be  dealt  with  .............It  is           clear that  Rule 16.38  is not  designed to  be  a           condition  precedent   to  the   launching  of   a           prosecution in  a criminal  court; it  is  in  the           nature of  instructions of  the department  and is           not meant  to be  of the  nature of  a sanction or           permission for  a prosecution nor can it over-ride           the provisions  of the  Cr.P.C. and the Prevention           of Corruption  Act. We agree with the observations           of Dua  and Mahajan,  JJ in Hoshiar Singh v. State           (supra)." 948      Though the  decision of  the Full  Bench of  the Punjab High Court  which is  now under  consideration had  not been brought to  the notice  of  the  Learned  Judges  when  they rendered judgment in State of Punjab v. Charan Singh, we are in full agreement with the pronouncement of the Bench as the conclusion therein  accords with  our own conclusion and the reasons therefore. We therefore hold that the Full Bench was in error  in taking  the view  that the  Punjab Police Rules read  in   conjunction  with  the  Police  Act  prescribe  a different procedure for the investigation and prosecution of offences committed  by Police  officers under  the I.P.C. or other Acts  in connection  with  their  relations  with  the public and  that the  rules constitute a special statute and take precedence  over the provisions of the Cr.P.C. The Full Bench has  failed to  note that Rule 16.38 only mandates the investigation of  cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure  prescribed thereunder. We therefore hold that the decision  of the  Full Bench  under appeal in Raj Kumar, A.S.I. v.  The State  of Punjab (supra) is not in accordance with law  and has  to be set aside. However, as mentioned at the outset,  the State  is not  interested in  reviving  the charges  against  the  respondent  and  pursuing  the  trial because of the long lapse of time. Therefore, while allowing the appeal and setting aside the judgment of the High Court, we leave  undisturbed the  quashing of  the  charges  framed against the respondent.      Since the respondent did not enter appearance or engage a counsel  to contest  the appeal  in spite  of  the  notice served on him, we requested Mr. Gopal Subramaniam, Advocate, to act  as amicus  curiae and render assistance to the Court on behalf  of the  respondent. Mr. Gopal Subramaniam readily complied with our request and placed all the authorities for our consideration  and we  thank him  for his assistance and place on record our appreciation of the services rendered by him. H.S.K.                                       Appeal allowed. 949

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