Full Judgment Text
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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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
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