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PETITIONER: STATE OF UTTAR PRADESH & ORS.

       Vs.

RESPONDENT: SURINDER PAL SINGH

DATE OF JUDGMENT31/01/1989

BENCH: OJHA, N.D. (J) BENCH: OJHA, N.D. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1989 AIR  811            1989 SCR  (1) 347  1989 SCC  (2) 470        JT 1989 (1)   169  1989 SCALE  (1)214

ACT: Police Act, 1861: Section 7.     U.P.   Police  Regulations--Regulation  486(I)(3)  scope of-procedure---Whether confined to Departmental  Proceedings only--Not  applicable  to  investigation  made  in  Criminal Prosecution.     Criminal  Procedure  Code, 1973:  Section  36--Does  not contain  a procedure similar to Regulation 486(1)(3) of  the U.P.   Police Regulations--Does not deal with competence  of police  officer to conduct investigation--Section 5A of  the Prevention  of Corruption Act, 1947 overrides Section 36  of the Code.     Prevention  of Corruption Act, 1947: Sections  5(1)  and (2), 5-A (1). Proviso.     "Criminal Misconduct"-What is--Police Officer  Misappro- priation    of--20    Gold    Bricks    recovered     during investigation--Is  "criminal misconduct" under section  5(1) (c), punishable under section 5(2).     Competency  of authorised police officer to  investigate offence-Section 36 of Criminal Procedure Code and Regulation 486(1)(3)  of the U.P. Police Regulations held not  applica- ble. Indian Penal Code; 1860: Sections 120-B, 203, 218, 342,  392 and 409. Indian Treasure-Trove Act, 1878: Sections 4, 20. Word & Phrases: ’Criminal Misconduct’--Meaning of.

HEADNOTE:     A  First Information Report was lodged against  the  re- spondent,  who was a Deputy Superintendent of Police,  under Section  120-B, 203, 218, 342, 392,402 of the  Indian  Penal Code read with Section 5(2) of the Prevention of  CorruPtion Act, 1947 as also under sections 4/20 of the Treasure  Trove Act, 1878. The case against the respondent was that 348 while investigating a case, as a Station Officer of a Police station,  20 gold bricks which he had recovered were  misap- propriated  by him. An Inspector in the Crime Branch of  the Criminal Investigation Department carried on the  investiga- tion. Before, submission of the charge sheet the  respondent filed  a  Writ Petition in the High  Court  challenging  the

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legality of the investigation on the ground that the  inves- tigation was vitiated in law because it was conducted by  an officer  junior  in rank to him in violation  of  Regulation 486(1)(3) of the U.P. Police Regulations.     The  High Court held that the provisions  of  Regulation 486(1)(3)  were  mandatory and since the  investigation  was conducted by an inspector who was not an officer "higher  in rank than the respondent" the investigation was vitiated  in law. Accordingly, a writ of Mandamus was issued by the  High Court  directing  the appellants not to  submit  any  charge sheet,  but  leaving it open to the appellants  to  get  the investigation conducted by an officer competent to  investi- gate under the said Regulation.     In  this  appeal by Special leave, it was  contended  on behalf of the appellants: (i) that since one of the offences committed  by the respondent was under section 5(2)  of  the Prevention  of Corruption Act, the inspector conducting  the investigation though not higher in rank to the respondent at the relevant time was competent to conduct the investigation as he was authorised in this behalf by the State  Government under  the proviso to sub-section (1) of Section 5A  of  the Prevention of Corruption Act: (ii) Regulation 486(1)(3)  was relevant to departmental proceedings against a police  offi- cer and it was not applicable to investigation of an offence under Section 5(2) of the Prevention of Corruption Act.     On  behalf of the respondent it was contended: (i)  that in  view  of  the provisions of Section 36 of  the  Code  of Criminal Procedure, 1973 and Regulation 486(1)(3), no inter- ference was called for with the judgment of the High  Court: (ii)  the offence punishable under Section 5(2) of the  Pre- vention  of  Corruption Act has not been  committed  by  the respondent, because the rejoinder affidavit filed on  behalf of the appellants refers to demand of illegal  gratification by the other two constables only, and therefore the  proviso to  sub-section (1) of section 5A of the Prevention of  Cor- ruption Act was not applicable.     Setting aside the judgment of the High Court and  allow- ing the appeal. , HELD:  1. The High Court erred in taking the view that  not- with- 349 standing  the provision contained in the proviso to  Section 5A  of the Prevention of Corruption Act and  the  undisputed fact that the Inspector of Crime Branch, Criminal Investiga- tion  Department, who conducted the inquiry in  the  instant case had been duly authorised to do so by the State  Govern- ment as contemplated by the said proviso, the  investigation was  vitiated in law on the ground that the  said  inspector was not higher in rank to the respondent as contemplated  by Regulation 486(1)(3) of the Regulations. [359D-E]     2.  One of the offences said to have been  committed  by the  respondent was, as contemplated by Section 5(2) of  the Prevention of Corruption Act. [360H; 361A]     2.1  For determining what constitutes ’criminal  miscon- duct’ used in sub-section (2) of Section 5 of the Prevention of  Corruption  Act,  one has to refer  to  sub-section  (1) thereof.  This sub-section contains clauses (a) to  (e)  and provides  that a public servant committing any of  the  acts mentioned  in the said clauses (a) to (e) is said to  commit the offence of ’criminal misconduct’. Accepting or obtaining or  attempting  to  obtain illegal  gratification  would  be covered under clause (a). [360F]     2.1.1  The  case against the respondent is that  the  20 gold bricks which he had recovered during investigation were misappropriated  by him. Thus, even though the case  of  the

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respondent  could  not  be covered by clause  (a)  it  would squarely  be  covered by clause (c) of Section 5(1)  of  the Prevention  of  Corruption  Act  and  constitutes  ’criminal misconduct’  within  the meaning of sub-section (2)  of  the said section. [360G-H]     2.2 In view of the proviso to sub-section (1) of Section 5A of the Prevention of Corruption Act, a police officer not below  the rank of an Inspector of police if  authorised  by the  State Government in this behalf by general  or  special order  was  entitled to investigate  the  aforesaid  offence without the order of a Presidency Magistrate or a Magistrate of  the First Class as the case may be, as  contemplated  by the  main provision contained in sub-section (1) of  Section 5A.  The  Inspector  of Police, Crime Branch  who  made  the Investigation  in the instant case, had been  authorised  by the State Government as contemplated by the proviso.  There- fore, no exception can be taken to the investigation by  the Inspector of the Crime Branch of the Criminal  Investigation Department. [354B-D, F]     3.  In  view of the non--obstante  clause  contained  in Section  5A of the Prevention of Corruption Act, the  provi- sions with regard to 350 investigation  of an offence punishable under Section  5  of the Prevention of Corruption Act as contained in Section  5A thereof  will have overriding effect over Section 36 of  the Code of Criminal Procedure, 1973. [354G-H]     3.1  Section 36 of the Code of Criminal Procedure,  1973 does not contain a provision similar to Regulation 486(1)(3) of  the U.P. Police Regulation, that investigation shall  be rode  by  a police officer higher in rank than  the  officer charged.  It  Only  purports to confer  on  police  officers superior in rank to an officer in charge of police  station, the same powers throughout the local area to which they  are appointed  as  may be exercised by such officer  within  the limits of his station. [354H; 355A-B]     4. The procedure prescribed in Regulations 486(I)(3)  of the  U.P. Police Regulations stands on the same  footing  as Rule  16.38 of the Punjab Police Rules and had therefore  to be  confined to departmental proceedings under Section 7  of the Police Act. [359A, B, C]     State  of Punjab v. Raj Kumar, A.I.R. 1988 S.C. 805  and State  of Punjab v. Charan Singh, [1981] 2 S.C.C.  197,  ap- plied.     Delhi  Administration  v. Chanan Shah, [1969]  3  S.C.R. 653;  Union of India v. Ram Kishan, [1971] 2 S.C.C. 349  and State of Uttar Pradesh v. Babu Ram Upadhya, [1961] 2  S.C.R. 679, distinguished. Mahendra Singh v. State, A.I.R. 1956 Allahabad 96, approved.     5. It will be open to the Inspector of the Crime  Branch to  proceed  with investigation and submit  a  charge  sheet against  the respondent if after investigation it  is  found expedient to do so. [361B]

JUDGMENT:     CIVIL  APPELLATE  JURISDICHON: Civil Appeal No.  430  of 1989.     From  the  Judgment  and Order dated  10.3.1987  of  the Allahabad High Court in C.M.W.P. No. 15545 of 1984. Gopal Subramaniam and Mrs. S. Dikshit for the Appellants. O.P. Rana and R. Ramchandran for the Respondent. The Judgment of the Court was delivered by 351

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   OJHA, J. This appeal by special leave preferred  against the  judgment of the Allahabad High Court dated 10th  March, 1987 in Civil Misc. Writ Petition No. 15545 of 1984 raises a question  about the interpretation and scope  of  Regulation 486(I)(3)  of the U.P. Police Regulations,  hereinafter  re- ferred  to as the Regulations. The respondent  Surinder  Pal Singh who was a Station Officer of Police Station Shikohabad was  promoted as a Deputy Superintendent of Police  on  20th June,  1977. A First information Report was  lodged  against him  in the Police Station Shikohabad on 8th June,  1980  by the  Deputy Superintendent of Police, Anti-Corruption,  Agra Circle  under  sections  409/392/203/218/342/120-B  of   the Indian  Penal Code read with Section 5(2) of the  Prevention of Corruption Act as also under sections 4/20 of the  Treas- ure  Trove Act. According to this First  Information  Report while  digging some land on 1st March, 1977, one  Parsu  Ram Jatav  and  Jaipal  Jatav found 20 gold  bricks  which  they failed to deposit with the authorities. However, on  receiv- ing an information in this behalf from one Hiralal and Vinod Kumar, the said gold was recovered by the respondent but was misappropriated. Investigation was carried on by an  Inspec- tor  in the Crime Branch of the Criminal  Investigation  De- partment. Before however any chargesheet could be submitted, the  respondent  filed the aforesaid writ  petition  in  the Allahabad High Court challenging the legality of the  inves- tigation  by  an  officer junior in rank to  him.  The  writ petition was contested by the appellants but was allowed  by the   judgment  appealed  against  relying   on   Regulation 486(I)(3)  of  the Regulations and a writ  of  mandamus  was issued  directing the appellants not to submit  any  charge- sheet  on  the basis of the Crime Branch. It  was,  however, left  open to the appellants to get the  investigation  con- ducted  by  an officer competent to  investigate  under  the aforesaid Regulation who could submit a chargesheet.     In  order to appreciate the respective submissions  made by the learned counsel for the parties, Regulation 486(I)(3) may usefully be reproduced. It reads:                         "486.   When  the  offence   alleged               against a police officer amounts to an offence               only under section 7 of the Police Act,  there               can be no magisterial inquiry under the Crimi-               nal  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:               352                    1.  Every  information  received  by  the               police relating to the commission of a cogniz-               able  offence  by a police  officer  shall  be               dealt  with in the first place  under  chapter               XIV,  Criminal  Procedure Code,  according  to               law,  a  case under  the  appropriate  section               being  registered in the police  station  con-               cerned provided that                (1)..............                (2)..............               (3)  unless  investigation is refused  by  the               Superintendent   of   Police   under   section               157(1)(b),  Criminal Procedure Code,  and  not               ordered  by  the  District  Magistrate   under               section 159, or unless the District Magistrate               orders  a  magisterial inquiry  under  section               159, investigation under section 156, Criminal               Procedure  Code,  shall be made  by  a  police

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             officer  selected  by  the  Superintendent  of               Police  and  higher in rank than  the  officer               charged;               (4).........."     The high Court relying on the decision of this Court  in State of Uttar Pradesh v. Babu Ram Upadhya, [1961] 2 SCR 679 took  the view that since the provisions of  Reg.  486(I)(3) were  mandatory, the investigation made by an  Inspector  of the Crime Branch who was not an officer "higher in rank than the  officer  charged" namely the  respondent,  was  clearly vitiated in law.     It has been urged by the learned counsel for the  appel- lants that since the respondent was alleged to have  commit- ted an offence inter alia under section 5(2) of the  Preven- tion  of Corruption Act also the investigation made  by  the Inspector,  Crime  Branch, who had been duly  authorised  in this  behalf by the State Government was in accordance  with law,  notwithstanding  the fact that the respondent  at  the relevant time was an officer higher in rank than the Inspec- tor  who  made investigation. Reliance in  support  of  this submission  has been placed on section 5A of the  Prevention of Corruption Act, 1947 particularly the proviso to the said section.  It was also submitted by learned counsel  for  the appellants  that Regulation 486(1)(3) even  though  relevant with  regard  to departmental proceedings against  a  police officer  had no relevance in so far as the investigation  of an 353 offence under Section 5 of the Prevention of Corruption  Act was concerned. For the respondent, on the other hand, it was urged  that the judgment appealed against did not  call  for any interference in view of Section 36 of the Code of Crimi- nal Procedure and Regulation 486(I)(3).     Having  heard learned counsel for the parties we are  of the  opinion  that the judgment appealed against  cannot  be sustained. Subsection (1) of Section 5A of the Prevention of Corruption Act, 1947 reads as hereunder:               "5A. Investigation into cases under this Act               (1) Notwithstanding anything contained in  the               Code of Criminal Procedure, 1898 (5 of  1898),               no police officer below the rank                        (a) in the case of the Delhi  Special               Police  Establishment,  of  an  Inspector   of               Police;                        (b)  in the presidency-towns of  Cal-               cutta and Madras, of an Assistant Commissioner               of Police;                        (c) in the presidency-town of Bombay,               of a Superintendent of Police; and               (d)  elsewhere, of a Deputy Superintendent  of               Police.               shall investigate any offence punishable under               Section  16 1, Section 165 or Section 165A  of               the  Indian Penal Code (45 of 1860)  or  under               Section  5 of this Act without the order of  a               Presidency  Magistrate or a Magistrate of  the               first  class, as the case may be or  make  any               arrest therefore without a warrant:                         Provided  that if a  police  officer               not  below the rank of an Inspector of  Police               is authorised by the State Government in  this               behalf  by  general or special order,  he  may               also investigate any such offence without  the               order  of a Presidency magistrate or a  Magis-               trate of the first class, as the case may  be,

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             or make arrest therefore without a warrant:               Provided  further that an offence referred  to               in clause               354               (e) of sub-section (1) of Section 5 shall  not               be investigated without the order of a  police               officer not below the rank of a Superintendent               of Police.                  (2)............."     As  seen  above, one of the offences said to  have  been committed by the respondent was, as contemplated by  Section 5(2)  of  the Prevention of Corruption Act. In view  of  the proviso to Section 5A, therefore, a police officer not below the  rank  of an Inspector of Police if  authorised  by  the State Government in this behalf by general or special  order was  entitled to investigate the aforesaid  offence  without the order of a Presidency Magistrate or a Magistrate of  the first class as the case may be, as contemplated by the  main provision  contained in sub-section (1) of Section 5A.  That the Inspector of Police, Crime Branch who made the  investi- gation in the instant case had been authorised by the  State Government as contemplated by the aforesaid proviso has  not been disputed before us. Indeed, even before the High  Court the said fact had not been disputed, as is apparent from the following   observations  made  in  the  judgment   appealed against:               "It  is undisputed that in the State of  Uttar               Pradesh, Inspector of the Crime Branch of  the               Criminal  Investigation  Department,  who  are               superior  in rank to the Station Officer,  had               been entrusted with the jurisdiction over  the               whole  State  to investigate  into  the  cases               under  the  provisions of  the  Prevention  of               Corruption Act."     In this view of the matter unless the submission made by learned  counsel for the respondent based on Section  36  of the  Code of Criminal Procedure and Regulation 486(1)(3)  is accepted,  no  exception can be taken to  the  investigation made  in  the  instant case by the Inspector  of  the  Crime Branch of the Criminal Investigation Department. As  regards Section  36 of the Code of Criminal Procedure  firstly,  the provisions  with regard to investigation of an offence  pun- ishable under Section 5 of the Prevention of Corruption  Act as  contained in Section 5A thereof are to prevail over  any provision  to  the contrary in this behalf in  view  of  the non-obstante  clause occurring in the beginning of the  Sec- tion namely, "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898)  .....  ". Secondly, Section  36  of the Code of Criminal  Procedure  deals  with powers  of  superior officers of police  and  provides  that police officers superior in rank to an officer in charge  of a police station may exercise the same powers, 355 throughout  the local area to which they are  appointed,  as may  be exercised by such officer within the limits  of  his station is only an enabling provision. On its plain language the said section only purports to confer on police  officers superior in rank to an officer in charge of police  station, the same powers throughout the local area to which they  are appointed  as  may be exercised by such officer  within  the limits  of  his  station. It does not  obviously  contain  a provision similar to Regulation 486(1)(3) that investigation shall  be made by a police officer higher in rank  than  the officer charged.     As  regards Regulation 486(I)(3), it is  significant  to

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note that the said Regulation as is apparent from its  open- ing  words  deals  with a case  "When  the  offence  alleged against  a police officer amounts to an offence  only  under Section  7  of the Police Act  .....  ". Section  7  of  the Police  Act  provides for the  departmental  punishments  of inferior  police officers. It does not in terms make  provi- sion  for any inquiry and merely provides that the  exercise of  disciplinary powers shall be "subject to such  rules  as the  State Government may from time to time make under  this Act".  Chapter  32  of the  Regulations  wherein  Regulation 486(1)(3)  occurs, lays down these rules. In a recent  deci- sion of this Court in State of Punjab v. Raj Kumar, AIR 1988 SC  805. Rule 16.38 of the Punjab Police Rules came  up  for consideration.  Sub-clauses 1 to 4 of the said Rule read  as hereunder:               "16.38(1).  Immediate  information  shall   be               given  to the District Magistrate of any  com-               plaint  received  by  the  Superintendent   of               Police,  which indicates the commission  by  a               police  officer of a criminal offence in  con-               nection  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   pre-               scribed  in rule 16.24 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               comp-               356               laint  against a police officer is  laid  pro-               ceeds  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  Superin-               tendent  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  pre-               scribed the following supplementary  procedure               to  be  adopted  in  the  case  of  complaints               against  police  officers in  those  districts               where  abuse  of the law with  the  object  of               victimising such officers or hampering  inves-               tigation is rife. The District Magistrate will               order that all petitions against police  offi-               cers shall be presented to him personally.  If               he  considers  that these petitions are  of  a               frivolous  or fictitious 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.

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                       In  the  case  of  formal   criminal               complaints,   the  District  Magistrate   will               arrange  for all cases to be transferred  from               other courts to his own." In  that case a report was given against the respondent  who was an Assistant Sub-Inspector in the Punjab Police  service to  the  Deputy Superintendent of Police,  Patiala  alleging demand of illegal gratification. After completion of  inves- tigation  the respondent was chargedsheeted before the  Sub- Judge, Sangrur and an objection was raised by the respondent to the framing of charges against him on the ground that the investigation  of  the  case was in  contravention  of  Rule 16.38. His objection having been overruled by the Sub-Judge, the  respondent  filed a petition before the High  Court  of Punjab and Haryana under Section 561A of the Code of  Crimi- nal  Procedure.  There being a conflict  of  decisions  with regard  to the interpretation and scope of Rule  16.38,  the case was referred to a full Bench which allowed the petition and quashed the charges framed against the respondent on the ground that the investigation against the respondent had not been  done  in  accordance with Rule 16.38.  An  appeal  was preferred in this Court on the basis of a certificate grant- ed under Article 134(1)(c) of the Constitution by the  State of Punjab and it was urged that the procedure prescribed  in Rule 16.38 called for observance in the case of 357 departmental enquiries alone and it could not govern  crimi- nal  prosecutions also for offences under the  Indian  Penal Code and other Acts. Reliance in support of this  submission was placed on an earlier decision of this Court in State  of Punjab v. Charan Singh, [1981] 2 SCC 197 declaring that Rule 16.38  cannot govern criminal prosecutions against the  mem- bers of the police force as it could not override the provi- sions of the Code of Criminal Procedure. While agreeing with the  aforesaid proposition of law the matter was dealt  with in  Raj Kumar’s case (supra) at some length in view of  cer- tain  misconceptions contained in the judgment of  the  High Court under appeal. It was pointed out that Section 3 of the Police Act conferred the fight of superintendence of  police force  throughout the general police district on  the  State Government and vested in such government the right to  exer- cise  such  powers in that behalf. It was also  pointed  out that Section 7 thereof dealt with the appointment,  dismiss- al,  etc. of inferior officers. It was also noticed  therein that besides the power conferred on the State Governments to make  rules under Section 7, there was also provision  under Section  12 of the Police Act for the  Inspector-General  of Police  subject to the approval of the State  Government  to frame  such orders and rules as stated in the said  Section, and  that the Punjab Police Rules, 1934 had been  framed  in the  exercise of the powers conferred under Sections  7  and 12.     The  view  taken  by the full Bench of  the  Punjab  and Haryana High Court in that case was that the rules flamed in exercise of powers conferred under Sections 7 and 12 had the force  of  law and they constituted  a  special  legislation which  took  precedence over the provisions of the  Code  of Criminal Procedure. And since Rule 16.38 contained a  manda- tory  provision regarding the procedure to be followed  when any  complaint was received by the Superintendent of  Police against  a member of the police force regarding the  commis- sion  of  offence  by him in connection  with  his  official relations  with the public, the said rule would  apply  with equal force to investigations relating to criminal  offences for  which a prosecution was to be launched as it would  .to

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enquiries  for taking departmental action through  discipli- nary proceedings.     After  referring to earlier decisions of this  Court  in the cases of Delhi Administration v. Channan Shah, [1969]  3 SCR 653; Union of India v. Ram Kishan, [1971] 2 SCC 349  and State of Uttar Pradesh v. Babu Ram Upadhya (supra) on  which reliance seems to have been placed on behalf of the respond- ent  of that case, it was held that the aforesaid  decisions "related to departmental enquiries and not crimi- 358 nal  prosecutions for offences committed by  the  delinquent police  offices.  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 departmen- tal 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." After considering the  nature  and purpose  of  Rule 16.38 of the Punjab Police Rules,  it  was further held:               "The  procedure envisaged by the Rule  is  for               effective  check being exercised against  vic-               timisation  of  efficient  and  honest  police               officers on the one hand and favoritism  being               shown to the delinquent police officers on the               other.  These rules were not intended  to  re-               place and certainly cannot override the provi-               sions of the Criminal Procedure Code. The Full               Bench  was  therefore in error in  taking  the               view that the Rules lay down a special  proce-               dure for investigation of all offences commit-               ted  by the members of the police  force  and,               that  they  have overriding  effect  over  the               provisions  of the Criminal Procedure Code  in               terms of Sections 4 and 5 of the Code."               "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  rela-               tions  with  the  public and  that  the  rules               constitute  a special statute and take  prece-               dence  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  accord-               ance    with    the    procedure    prescribed               thereunder." Coming  to the facts of the instant case it may  be  pointed out that 359 in  view of the opening words of the said Regulation  namely "when the offence alleged against a police officer,  amounts to  an offence only under Section 7 of the Police Act,"  the said  Regulation  also stands on the same  footing  as  Rule 16.38  of  the  Punjab Police Rules. In  Mahendra  Singh  v.

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State, AIR 1956 Allahabad 96 a special Bench of the  Allaha- bad  High Court held that section 7 of the Police  Act  pro- vides  for  the departmental punishment of  inferior  police officers. it was also held that the said section did not  in terms  make  provision for any inquiry; it  merely  provided that the exercise of disciplinary powers shall be subject to rules  framed by the State Government and Chapter 32 of  the Police Regulations laid down these rules which provided  for a  departmental trial for punishment to be  inflicted  under Section  7 of the Police Act. In this view of the matter  it is apparent that like Rule 16.38 of the Punjab Police Rules, the  procedure  prescribed in Regulation  486(I)(3)  of  the Regulations  had to be confined to departmental  proceedings under  Section  7 of the Police Act and the High  Court  was clearly in error in taking the view that notwithstanding the provision  contained  in the proviso to Section  5A  of  the Prevention  of Corruption Act and the undisputed  fact  that the  Inspector  of Criminal Branch,  Criminal  Investigation Department,  who conducted the enquiry in the  instant  case had been duly authorised by the State Government as  contem- plated  by the said proviso, the investigation was  vitiated in law on the ground that the said Inspector was not  higher in  rank  to the respondent as  contemplated  by  Regulation 486(I)(3) of the Regulations.     Learned counsel for the respondent, in this  connection, brought to our notice the following averment in paragraph  3 of  the rejoinder affidavit of Mahavir Singh Tomar filed  on behalf of the appellants:               "It  is further submitted that  the  complaint               against the respondent was not received by the               Superintendent of Police of District. The same               was  received from Central Government  by  the               State  Government  of U.P. and  wherefrom,  in               exercise of the General powers of superintend-               ence  over  criminal  investigation,  it   was               handed over directly to Crime Branch, Criminal               Investigation Department, U.P. Anti-Corruption               Department  of U.P. inquired into  the  matter               for testing and verifying the truth of allega-               tions  and finally lodged F.I.R.  against  the               Respondent     and     others     under               s.   409/392/218/342/120-B  I.P.C.  and   5(2)               Prevention of Corruption Act at Crime No.  351               at P.S. Shikohabad,               360               District Mainpuri. It is worth mentioning that               offence  under  Sec.  5(2)  of  Prevention  of               Corruption Act covers demand of illegal grati-               fications by one S.I. Sobran Singh Chauhan and               Constable  Brijendra  Singh  only,  hence  the               application  of provisions of Para  486(1)  is               out of question." On  its  basis, it was urged that since  offence  punishable under  Section 5(2) of the Prevention of Corruption  Act  is said to have been committed only by S.I. Sobran Singh  Chau- han and Constable Brijendra Singh and not by the respondent, the  proviso to Section 5A of the Prevention  of  Corruption Act  was not attracted to the facts of the instant case.  We find  it difficult to agree with this submission in view  of the  specific  statement  contained in Paragraph  3  of  the rejoinder affidavit to the effect that the First Information Report  which was lodged against the respondent  and  others was  under  various sections including Section 5(2)  of  the Prevention  of Corruption Act. The averment with  regard  to S.I.  Sobran Singh Chauhan and Constable Brijendra Singh  is

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with reference to "demand of illegal gratification". Section 5(2)  of  the Prevention of Corruption  Act  provides:  "Any public  servant  who commits criminal  misconduct  shall  be punishable  with imprisonment for a term which shall not  be less  than one year but which may extend to seven years  and shall also be liable to fine:     Provided  that  the court may, for any  special  reasons recorded  in writing, impose a sentence of  imprisonment  of less than one year."     For what is meant by "criminal misconduct" used in  sub- section  (2)  of Section 5 of the Prevention  of  Corruption Act, one has to refer to sub-section (1) thereof. This  sub- section  contains clauses (a) to (e) and provides  that  the public  servant committing any of the acts mentioned in  the said  clauses (a) to (e) "is said to commit the  offence  of criminal  misconduct". Accepting or obtaining or  attempting to  obtain  illegal  gratification would  be  covered  under clause  (a). As seen above, the case against the  respondent is  that  the  20 gold bricks which he  had  recovered  were misappropriated  by him. Thus, even though it would  not  be covered by clause (a) it would squarely be covered by clause (c) of Section 5(1) of the Prevention of Corruption Act  and constitutes  "criminal  misconduct" within  the  meaning  of sub-section  (2) of the said Section. From the  averment  in the rejoinder affidavit referred to above, it is, therefore, not possible to accept the submission made by learned  coun- sel for the respondent that the respondent is 361 not alleged to have committed any offence under Section 5(2) of the Prevention of Corruption Act. In view of the  forego- ing discussion, this appeal succeeds and is allowed and  the judgment  of  the High Court is set aside. It would  now  be open  to the Inspector of the Crime Branch to  proceed  with the  investigation and to submit a chargesheet  against  the respondent  if on investigation it is found expedient to  do so. T.N.A.                              Appeal allowed. 362