Full Judgment Text
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PETITIONER:
DELHI ADMINISTRATION
Vs.
RESPONDENT:
CHANAN SHAH
DATE OF JUDGMENT:
12/02/1969
BENCH:
BACHAWAT, R.S.
BENCH:
BACHAWAT, R.S.
SIKRI, S.M.
HEGDE, K.S.
CITATION:
1969 AIR 1108 1969 SCR (3) 653
1969 SCC (1) 737
CITATOR INFO :
D 1970 SC 122 (12)
R 1971 SC1402 (4)
R 1971 SC1403 (13)
D 1988 SC 805 (10)
D 1989 SC 811 (10)
ACT:
Punjab Police Rules, 1934, r. 16.38-sanction of District
Magistrate for departmental inquiry under said rule-Inquiry
vitiated when requirements of rule not followed.
HEADNOTE:
The respondent was recruited as a constable in undivided
Punjab in 1934 and in 1946 became an Assistant Sub-
Inspector. In 1950 he was posted at Delhi. In 1955 he was
confirmed in the above rank by the Senior Superintendent of
Police, Delhi. In 1957 there was an accusation against him
of having received illegal gratification in a case he was
investigating, whereupon after a summary inquiry the
Superintendent of Police (City) Delhi passed an order of
censure against him. On a review of this order under r.
16.28 of the Punjab Police Rules, 1934 the Deputy Inspector
General of Police passed an order cancelling the order of
censure and further ordered that the respondent should be
dealt with departmentally. The conduct of the departmental
inquiry was entrusted to the Superintendent of Police
Central District, New Delhi who asked the District Magis-
trate for the necessary sanction under r. 16.38 of the
Punjab Police Rules 1934. On receiving the sanction the
Inquiry Officer proceeded with the inquiry and found that
the allegations against the respondent were substantially
true. After a show cause notice he passed an order in 1958
dismissing the respondent from service. An appeal against
the order of dismissal was rejected by the Deputy Inspector
General and the subsequent revision was dismissed by the
Inspector-General. The respondent there upon filed a writ
petition in the Punjab High Court for quashing the dismissal
order. The petition was dismissed by the Single Judge but
the Division Bench held that the dismissal order could not
be sustained in view of the fact that the inquiry was made
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in contravention of Ch. XVI r. 38 of the Punjab Police
Rules. The Delhi Administration appealed to this Court.
HELD : The provisions of sub-rr. (1) and (2) of r. 38
are attracted in cases of complaint received by the
Superintendent of Police, indicating the commission by a
police officer of a criminal offence in connection with his
official relations with the public. In such a case the
superintendent of police is required to bring the complaint
to the notice of the District Magistrate who is to decide
whether the investigation of the complaint should be made by
a selected Magistrate having first class powers or should be
left to a police officer. If the, investigation discloses a
prima facie case a judicial prosecution should normally
follow unless for reasons to be recorded in writing the
District Magistrate directs that the matter should be
disposed of departmentally. [657 D-E]
In the present case the complaint received by the
Superintendent of Police City) Delhi indicated the
commission by the appellant of a criminal offence in
connection with his official relations was the public. The
complaint fell within r. 38(1) and should have been dealt
with accordingly. Nevertheless there was no investigation of
the kind prescribed by r. 38(1). The District Magistrate
did not direct any preliminary investigation nor was any
prima facie case against the respondent as a result of such
an investigation, established. The District Magistrate was
not in
L10Sup/69-7
654
formed that the Superintendent of Police held an inquiry and
passed an order of censure and that his order was set aside
by the Deputy Inspector-General. The inquiry held by the
Superintendent of Police was not authorised by the District
Magistrate nor did it receive his approval. The District
Magistrate gave his sanction without recording any reasons
and without applying his mind to the requirement of r.
16.38. In the circumstances the departmental action taken
against the respondent was invalid. [657 F; 658 C-D]
State of Uttar Pradesh v. Babu Ram Upadhya, [1961] 2 S.C.R.
679, 711, 727-728 and Jagan Nath v. Sr. Supdt. of Police,
Ferozepur, A.I.R. 1962 Punjab 38, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 277 of 1966.
Appeal by special leave from the judgment and order dated
January 23, 1963 of the Punjab High Court, Circuit Bench at
Delhi in Letters Patent Appeal No. 68-D of 1961.
V. A. Seyid Muhammad, R. N. Sachthey and B. D. Sharma, for
the appellants.
Frank Anthony and Harbans Singh,for the respondent.
The Judgment of the Court was delivered by
Bachawat, J. The respondent was recruited as a constable in
the police service in the undivided Punjab on April 3, 1934.
By April 1946 he was promoted to the rank of Assistant Sub-
Inspector. In 1950, he was posted at Delhi. On August 26,
1955 he was confirmed in this rank by the Senior
Superintendent of Police, Delhi.
In the beginning of 1957 an accusation was made against him
that while investigating a case registered by him against
one Mohammad Jamil under First Information Report No. 1322
dated November 25, 1956 he had taken one Rame Shah to the
Lahori Gate police post without formally arresting him and
received from him by way of illegal gratification Rs. 100
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which was paid on his behalf by one Roshan Lal. On coming
to know of this complaint Sri A. C. Chaturvedi,
Superintendent of Police (City), Delhi, made some kind of a
summary inquiry into the matter and on February 28, 1957
passed the following order
"Reference complaint received from S.P.’s
Office Vide No. 1212/GB, dated the 12th of
January 1957.
Integrity of S.I. Chanan Shah No. 112/D was
found to be doubtful in connection with case
F.I.R. 1322 dated 25-11-1956 under section
20/11/78 of P.S. Kotwali against one Mohd.
Jamil a Pakistani National. He is hereby
censured."
On a review of this order under rule 16.28 of
the Punjab Police Rules, 1934, Sri N. S.
Saxena, the
655
Deputy Inspector General of Police
passed the following order on June 12, 1957 :-
"I have gone through the inquiries made by the
city police as well as by the Crime Branch and
feel that the S.I. should have been dealt with
departmentally for his misconduct and by which
course the S.I. could have a chance to
prove his innocence. I therefore order under
P.R. 16-28 that the censure awarded to
officiating Chanan Shah be cancelled and he
should be dealt with departmentally. The
departmental file will be prepared by Sri B.
L. Gulati, I.P.S., Superintendent of Police
(Traffic). The relevant papers may be sent to
him."
The conduct of the departmental inquiry was
entrusted to Sri D. C. Sharma, Superintendent
of Police, Central District, Delhi. On August
20, 1957 Sri Sharma wrote the following D.O.
letter No. 2165-e to Sri C. B. Dube, District
Magistrate, Delhi :-
"1. On 25-11-56, S.I. Chanan Shah No.
112/D while posted as I/c PP. Lahori Gate
recovered a revolver with 6 rounds from the
possession of one Mohd. Jamil alias Mohan Lal
of Lahore while the latter was staying at
Regal Hotel. A case FIR No. 1322, dated 25-11-
56 u/s. 20-11-78 Arms Act was accordingly
registered at P.S. Kotwali. The investigation
of this case was carried out by S.I. Chanan
Shah.
2. During the course of investigation, the
S.I.raided, the house of one Rame Shah owner
of shop No. 1387 Lajpat Rai Market. Although
nothing incriminating was found, yet he took
Rame Shah to the P.P. where it is alleged, he
(Rame Shah) was threatened with arrest and
later on let off at midnight after he had paid
a sum of Rs. 100/- through one Roshan Lal by
way of illegal gratification.
3. In the course of inquiry it is felt that
there is no sufficient evidence to prosecute
the S.I. in a court of law under the
Prevention of corruption Act, though he can be
successfully dealt with departmentally.
4. In view of the above it is proposed that
he may be dealt with departmentally instead of
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filing judicial proceedings against him.
Necessary approval under P.P. Rule 16.38. may
kindly be accorded."
A copy of the letter was produced in this
Court. On August 21, 1957 Sri C. B. Dube,
District Magistrate, Delhi, sent the following
letter to Sri D. C. Sharma:-
656
"Please refer to your D.O. letter No.’ 2165-C,
dated the 20th August, 1967.
Sanction is hereby accorded to the taking of
departmental action against S.I. Chanan Shah
as required under Punjab Police Rule 16.38."
On November 15, 1957 Sri Sharma drew up a formal charge
sheet, On the basis of the charge-sheet he held an inquiry
and found_ that the allegations against the. respondent were
substantially true. On March.18, 1958 Sri Sharma served a
notice of the respondent to show cause why he should not be
dismissed. After considering reply and hearing him
personally Sri Sharma passed an order on April 12, 1958
dismissing him from service. An appeal filed,by him against
the order was rejected by the Deputy Inspector General on
February 14, 1959, and a revision petition filed by him was
rejected by the Inspector General on June 5, 1959.
On August 18, 1959 the respondent filed a writ petition in
the Punjab High Court for quashing the dismissal order. One
of the grounds taken by him was that the departmental
inquiry was made in contravention of Chapter 16 rule 38 of
the Punjab Police Rules, 1934. Gosain, J. dismissed the
petition. The respondent filed a Letters Patent appeal
against this order. A Divisional Bench of the High-Court
allowed the appeal and set aside the order dismissing the
respondent from service. The Divisional Bench held that the
dismissal order could not be sustained in view of the fact
that the inquiry was made in contravention of Chapter XVI
rule 38. The present appeal has been filed by the Delhi
Administration after obtaining special leave.
Chapter XVI of the Punjab Police Rules deals with punish-
ments. Rule 1 prescribes the punishments and provides that
"no police officer shall be departmentally punished
otherwise than as provided in these rules." Rule 23 provides
for prompt record of, complaints against a police officer
made by a member of the general public and the transmission
of the record to the Superintendent of Police or other
gazetted officer under whose immediate control the officer
who has recorded the complaint is serving. If such officer
is of opinion that the allegations in the record constitute
a prima facie case for inquiry, a departmental inquiry as in
rule 24 must be held. Rule 38 specially deals with certain
types of complaint against a police officer. Sub-Rules (1)
and (2) of Rule 38 are as follows :-
" (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 connec-
657
tion 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
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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."
The provisions of sub-rules (1) and (2) of r. 38 are
attracted in cases of complaint received by the
Superintendent of Police, indicating the commission by a
police officer of a criminal offence in connection with his
official relations with the public. In such a case, the
Superintendent of Police is required to bring the complaint
to the notice of the District Magistrate who is to decide
whether the investigation of the complaint, should be made
by a selected magistrate having first class powers or should
be left to a police officer. If the investigation discloses
a prima facie case, a judicial prosecution should normally
follow unless for reasons to be recorded in writing the
District Magistrate directs that the matter should be
disposed of departmentally.
In the present case, the complaint received by the Superin-
tendent of Police (City) Delhi indicated the commission by
the respondent of a criminal offence in connection with his
official relations with the public. The complaint fell
within r. 38(1) and should have been dealt with accordingly.
Nevertheless there was no investigation of the kind
prescribed by rule 38(1). The District Magistrate did not
direct any preliminary investigation nor was any prima facie
case against the respondent as a result of such an
investigation established.
In State of Uttar Pradesh v. Babu Ram Upadhya(1) the Court
by majority held that the provisions of paragraph 486 rule 1
of the U.P. Police Regulations were mandatory and that a
departmental action against the police officer in
disregard thereof was invalid. The minority held that the
paragraph was directory and as there was substantial
compliance with its provisions the departmental proceedings
were not invalid. In Jagan Nath v. Sr. Supdt. of Police,
Ferozepur(2) the Punjab High Court held that the provisions
of rule 16.38 (1) and (2) were mandatory
(1) [1961] 2 S.C.R, 679, 711, 727-728.
(2) A.I.R. 1962 Punjab 38.
658
and that a departmental inquiry held without following its
provisions was illegal.
It is not necessary to decide in this case whether the
provisions of Rule 16.38 of the Punjab Police Rules are
mandatory or directory. Even assuming that the rule is
directory we find that there has been no substantial
compliance with its provisions. The complaint fell within
rule 16.38, and it was for the District Magistrate to decide
who should investigate the case. No investigation of any
kind was made under his directions. Without obtaining his
directions, the Superintendent of Police held an inquiry and
passed an order of censure. The order was set aside by the
Deputy Inspector-General. Thereafter by D.O. letter No.
2165-C, the Superintendent of Police, asked for the sanction
of the District Magistrate to proceed departmentally. Even
at this stage, the District Magistrate-was not informed that
the Superintendent of Police held an inquiry and passed an
order of censure and that his order was set aside by the
Deputy Inspector-General. The inquiry held by the
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Superintendent of Police was not authorised by the District
Magistrate nor did it receive his approval. The District
Magistrate gave his sanction without recording any reasons
and without applying his mind to the requirement of r.
16.38. In the circumstances, we are constrained to hold that
the departmental action taken against the respondent is
invalid.
In the result, the appeal is dismissed with costs.
G.C. Appeal dismissed.
659