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PUNJAB & HARYANA HIGH COURT
A.N.Grover, J.
Jagan Nath
Versus
Senior Superintendent Of Police, Ferozepore
Civil Writ No. 1581 of 1960,
Decided On : AUGUST 21, 1961
POLICE RULES - RULE 16.38 - MANDATORY PROVISIONS - NON-COMPLIANCE - DEPARTMENTAL ENQUIRY - ILLEGAL - WRIT OF MANDAMUS ISSUED.
Fact of the Case:
The petitioner, an Assistant Sub-Inspector of Police, was facing a departmental enquiry for alleged offences under the Prevention of Corruption Act and the Arms Act. He challenged the legality of the enquiry on the grounds that it was initiated without complying with the mandatory provisions of Rule 16.38 of the Punjab Police Rules.
Finding of the Court:
The court held that the departmental enquiry was illegal and invalid as the mandatory provisions of Rule 16.38 of the Punjab Police Rules were not followed. The court found that the Senior Superintendent of Police had not forwarded the complaint to the District Magistrate as required by sub-rule (1) of the rule, and the District Magistrate had not ordered the investigation as required by the second part of the sub-rule. The court also found that the District Magistrate had not given reasons for proceeding departmentally against the petitioner as required by sub-rule (2) of the rule.
Issues: 1. Whether the departmental enquiry against the petitioner was illegal for non-compliance with the mandatory provisions of Rule 16.38 of the Punjab Police Rules? 2. Whether the petitioner could be proceeded against departmentally on the same facts and allegations for which he was already facing judicial proceedings?
Ratio Decidendi: The court held that Rule 16.38 of the Punjab Police Rules was mandatory and its provisions had to be strictly complied with before a departmental enquiry could be ordered. The court relied on the decision of the Supreme Court in State of Uttar Pradesh v. Babu Ram Upadhya, wherein it was held that the Police Act of 1861 continued to be a good law under the Constitution and that the rules governing disciplinary proceedings could not be treated as administrative directions but would have the same effects as the provisions of the statute where under they were made, in so far as they were not inconsistent with the provisions thereof.
Final Decision: The court allowed the petition and issued a writ of mandamus directing the respondents not to hold or proceed with the departmental enquiry without complying with the mandatory provisions of law.
1. This is a petition under Article 226 of the Constitution which is directed against a departmental enquiry which is being held against the petitioner by Shri D. D. Kashyap, Assistant Superintendent of Police, Ferozepore.
2. The Petitioner at the material time was working as Assistant Sub-Inspector of Police, In the petition a number of allegations have been made with regard to the prejudice which the then Senior Superintendent of Police, Shri Puran Singh had against the petitioner. It is said that on 10th June 1960 that officer registered a case under S. 5 of the Prevention of Corruption Act, 1947, against him and also ordered his suspension and deputed the Deputy Superintendent of Police, Moga, for investigation. The latter registered a case under S. 19 of the Arms Act. After having approached the superior officers with a representation that an enquiry by an officer subordinate to the Senior Superintendent of Police who would be the main prosecution witness should not be held and having failed to obtain any redress from them the present petition has been instituted.
3. The main points that have been agitated before me by the learned counsel for the petitioner are:
(1). The petitioner having already been proceeded against judicially under Section 5 of the Prevention of Corruption Act and under Section 19 of the Arms Act, he could not be proceeded against departmentally on the same facts and allegations until the criminal cases are decided.
(2) The Proceedings of departmental enquiry against the petitioner are altogether illegal having been instituted without complying with the procedure prescribed by rule 16.38 of the Punjab Police Rules.
(3) The Senior Superintendent of Police being the prosecutor himself having lodged the first information report under Section 5 of the Prevention of Corruption Act, an enquiry by an official subordinate to him would be contrary to the rules of natural justice.
4. It may be mentioned that Shri Puran Singh, the Senior Superintendent of Police, has now been transferred and Shri S. N. Mathur has taken over as Senior Superintendent of Police, Ferozepore. Any apprehension of the petitioner that the enquiry officer would be under the influence of Shri Puran Singh at whose instance the first information report under Section 5 of the Prevention of corruption Act is said to have been lodged would not be justifiable. There can, however, be no doubt that the enquiry has not been ordered in compliance with the first part of rule 16.38 and what has to be seen is whether such non-compliance would vitiate the enquiry proceedings.
The relevant sub-rules of the rule may now be set out: "16.38(1) Immediate information shall be given to the District Magistrate of 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 16.24 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 complaint against a police officer is 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
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