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
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 referred 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 Treasure 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 receiving 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 Inspector in the Crime Branch of the Criminal Investigation Department. Before however any chargesheet could be submitted, the respondent filed the aforesaid writ petition in the Allahabad High Court challenging the legality of the investigation 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 chargesheet on the basis of the Crime Branch. It was, however, left open to the appellants to get the investigation conducted 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:
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
(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
officer selected by the Superintendent of
Police and higher in rank than the officer
charged;
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 appellants that since the respondent was alleged to have committed an offence inter alia under section 5(2) of the Prevention 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 Inspector 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 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 Criminal 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,
or make arrest therefore without a warrant:
Provided further that an offence referred to
in clause
(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.
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 investigation 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 punishable 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 Section 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, 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 note that the said Regulation as is apparent from its opening 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 provision 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 decision 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-
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.
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 investigation the respondent was chargedsheeted before the SubJudge, 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 Criminal 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 granted 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 departmental enquiries alone and it could not govern criminal 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 members of the police force as it could not override the provisions 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 certain 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 exercise such powers in that behalf. It was also pointed out that Section 7 thereof dealt with the appointment, dismissal, 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 mandatory 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 commission 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 enquiries for taking departmental action through disciplinary 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 respondent of that case, it was held that the aforesaid decisions "related to departmental enquiries and not criminal 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 departmental enquiries are held against delinquent police officers is not far off to see. In the very nature of their duties, the members of the police force would often stand exposed to criticism and complaints by not only the members of the public but also by the members of the force themselves and consequently they stand placed more vulnerable than members of other Government services, of being implicated in false or exaggerated charges." 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 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. State, AIR 1956 Allahabad 96 a special Bench of the Allahabad High Court held that section 7 of the Police Act provides 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 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(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,
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 Chauhan 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 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 subsection (2) of Section 5 of the Prevention of Corruption Act, one has to refer to sub-section (1) thereof. This subsection 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 counsel for the respondent that the respondent is not alleged to have committed any offence under Section 5(2) of the Prevention of Corruption Act. In view of the foregoing 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.