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Arjunrao Baburao Ashtekar Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 30 of 1960 and Miscellaneous Application No. 285 of 1959
Judge
Reported in(1960)62BOMLR1038
AppellantArjunrao Baburao Ashtekar
RespondentThe State of Bombay
DispositionAppeal Dismissed
Excerpt:
.....sections 25, 4, 27-bombay police (punishments and appeals) rules, 1956. rules 17, 3, 6-whether state government can, in revision, convert an order of acquittal, passed after departmental inquiry, into one of conviction-power of state government under section 25(1)-period of limitation whether prescribed within which state government can send for records of case under rule 17(2)-whether state government precluded from dismissing police officer who has been reinstated by subordinate authority.; under rule 17(2) of the bombay police (punishments and appeals) rules, 1956, the state government in revision can convert an order of acquittal of a police officer who has been proceeded against under the rules, into one of conviction.; the mere fact that a district superintendent of police has..........rule 9 against an order of the punishment:provided that no second appeal shall lie under this rule.rule 7 provides that no appeal shall lie against an order inflicting any of the punishments specified in clauses (i) to (vi) of sub-rule (2) of rule 3. rule 15 specifies the matters which are to be considered by the appellate authority while dealing with an appeal. it is not necessary to reproduce that rule in extenso. rule 17, which is the one with which we are concerned in this case, runs thus:-17. (1) the state government shall alone have the power of revision and revision shall lie only in respect of punishments which are appealable.(2) the state government may, of its own motion or otherwise, call for the record of any case in which an order has been made by an authority'.....
Judgment:

J.R. Mudholkar, Actg. C.J.

1. This is an appeal from the judgment of Mr. Justice Mody in Miscellaneous Petition No. 285 of 1959 preferred by the appellant under Article 226 read with Article 311 of the Constitution.

2. The petitioner was a Sub-Inspector of Police in the State of Bombay and was serving at Poona in the year 1957. He was attached to the Shukrawar Peth Police Chdwkey in September, 1957.

3. One R.P. Gogate of Bhor made a report to the Police of Poona some time after September 8, 1957, that his son Balkrishna had left his house; at Bhor on September 8, 1957, and had taken away with him ornaments valued at Rs. 4,000. A search for Balkrishna was made in Poona, and ultimately he was traced on September 25 1957. It may be mentioned that R. P. Gogate went back to Bhor after making the report to the police regarding the disappearance of his son. Immediately after Balkrishna was traced the appellant went to Bhor in a special taxi and informed E.P. Gogate of the fact that his son had been traced. The principal allegation against the appellant was that he had demanded Rs. 200 as illegal gratification from R. P. Gogate. Another allegation against him was that he, had misappropriated a sum of Rs. 160 which he had found with Balkrishna after the latter was traced. A preliminary enquiry was held in respect of these allegations and thereafter on November 25, 1957, the District Superintendent of Police, Poona City, framed the following charges against him:-

Charges against P.S.I., A.B. Ashtekar of Karashkhana Police Station, Poona City.

Serious misconduct and gross dereliction of duty in that you P.S.I., A. B. Ashtekar, while on duty at the Shukrawar Peth Chowkey on 25-9-57 and 26-9-57,conductted an inquiry improperly into a theft committed by a boy named BalakrishnaRaghunath Gogate and acted in a highly irregular and objectionable manner as described below:-

(1) You did not record the statement of the boy nor did you draw up a panchnama of his belongings;

(2) You went to Bhor for further investigation without permission from any superior officer;

(3) You made a false entry in your weekly diary that you did night rounds on 25-9-57 when actually you had been to Bhor;

(4) You made no report to your Inspector about this investigation;

(5) You unauthorisedly removed Rs. 160/- from the person of the boy and did not account for the amount;

(6) You demanded an illegal gratification of Rs. 200/-from Shri Raghunath Parshuram Gogate, father of the boy for hushing up the matter.

The District Superintendent of Police came to the conclusion that the first four charges had been established, but not the last two and thereupon he made the following order.--

I, the undersigned, do hereby reinstate P.S.I., A.B. Ashtekar in service and reduce him in pay by Rs. 30/- p.m. (i.e. from Rs. 150/- to Rs. 120/-) for a period of two years exclusive of any leave except C.L. w.e.f. 25-3-1958 (A. N.).

This reduction in pay will not affect his future increments.

The period of suspension is treated as such.

As a result of the aforesaid order of the D.S.P. the appellant, who was under suspension during the enquiry against him, was reinstated, but his salary was reduced to Rs. 120 per month.

4. On March 6, 1959, the respondent through its Secretary, Home Department, issued a show cause notice against the appellant. In that notice it is stated that the respondent agreed with the findings of the Inquiry Officer on the first four counts of the charge, but that the respondent did not accept the findings on the 5th and the 6th counts. The notice further stated that the respondent regarded the appellant to be guilty for the reasons stated in the notice on the 6th count also. Then the notice proceeded to state that in the opinion of the respondent it had been proved that the appellant had been guilty of the charge of demanding some bribe, though not of demanding the specific sum of Rs. 200 as bribe as mentioned in count No. 6. The notice also stated that the punishment of reduction in pay awarded to the appellant by the District Superintendent of Police, Poona, was inadequate, that the respondent proposed to enhance that punishment to that of dismissal from service and called upon the appellant to show cause within 30 days from the date of the receipt of that notice why the proposed punishment of dismissal from service should not be imposed upon the appellant.

5. The appellant submitted his written statement or reply on May 5, 1959. In his reply, he not only urged reasons for not enhancing the punishment, but also for not accepting the findings of the D.S.P. on the first four counts. Upon a consideration of this reply of the appellant, the State Government passed an order on June 12, 1959, dismissing the appellant from service. The appellant preferred an appeal from this decision before the State Government itself. On September 9, 1959, he was, however, informed by the State Government that after careful consideration of his case the State Government saw no reason to alter the decision.

6. The appellant thereupon preferred a petition before this Court under Article 226 of the Constitution. As already stated, this petition was rejected by Mr. Justice Mody. The appellant has, therefore, come up before us in appeal under Clause 15 of the Letters Patent. Mr. Paranjape, who appears for him, has urged three points before us. Those points are as follows:-

1. The State Government has no power under the Rules framed under the Police Act to convert acquittal into conviction and enhance punishment.

2. No reasonable opportunity was given to the appellant to defend himself in the proceedings before the State Government.

3. The State Government could not legally enhance the appellant's punishment after his reinstatement and after a lapse of more than a year from the date of his reinstatement.

7. The argument of Mr. Paranjape is that the Rules which confer revisional power upon the State Government do not empower the State Government to interfere with the acquittal of a person who has been proceeded against under the Rules. In order to appreciate the argument, it is necessary to refer to certain provisions of the Bombay Police Act, 1951. Section 25 of the Act deals with punishment of the members of the subordinate ranks of the Police Force departmentally for neglect of duty, misconduct etc. Sub-section (7) of that section provides that the State Government or any Officer authorised by Sub-section (2) in that behalf, may inflict certain punishments including dismissal from service upon an Inspector or any member of the subordinate ranks of the Police Force for certain kinds of offences. Sub-section (2) of that section states that the Inspector-General of Police, the Commissioner of Police and the Deputy Inspector-General of Police shall have power to punish all the aforesaid persons under Sub-section (7). It further provides that the District Superintendent of Police shall have the like authority in respect of any Police officer subordinate to him below the grade of Inspector. The appellant before us was, as already stated, a Sub-Inspector and, therefore, under Sub-section (2) it was open to the District Superintendent of Police, Poona, to whom he was subordinate, to inflict punishment on him including the punishment of dismissal. Clause (c) of Sub-section (2) provides that the exercise of the powers conferred by Sub-section (2) shall be subject to such rules and orders as may be made by the State Government in that behalf. In pursuance of the power conferred by this clause of Sub-section (2) the State Government has framed certain Rules which are to be found in Part IV-B of the Bombay Government Gazette dated May 3, 1956. at page 669. 'We shall refer to the relevant Rules a little later. Section 27 of the Act provides for an appeal from the order of punishment. Section 4 of the Act provides that the superintendence of the Police Force throughout the State of Bombay vests in and is exercisable by the State Government and any control, direction or supervision exercisable by any officer over any member of the Police Force shall be exercisable subject to such superintendence.

8. Rule 3 deals with the punishments which may be imposed upon any police officer. Clauses (i), (ii) and (m) of Sub-rule (7) of that Rule specify those punishments and run thus:-

(i) reduction in rank, grade or pay or removal from any office of distinction or withdrawal of any special emoluments;

(ii) removal from service which does not disqualify from future employment in any Department other than the Police Department;

(iii) dismissal which disqualifies from future employment in Government service.

Sub-rule (2) of Rule 3 provides for the following eight kinds of punishments which may also be awarded in certain cases:-

(i) Caution.

(ii) A reprimand (to be entered in the service book).

(iii) Extra drill.

(iv) Extra duty.

(v) Black mark.

(vi) Stoppage of leave.

(vii) Fine not exceeding one month's pay.

(viii) Stoppage of increments.

Rule 4 provides that no punishment specified in Clauses (i) to (iii) of Sub-rule (7) and in Clauses (vii) and (viii) of Sub-rule (2) of Rule 3 shall be imposed on any Police Officer unless a departmental inquiry into his conduct is held and a note of the inquiry with the reasons for passing an order imposing the said punishment is made in writing by the Inquiry Officer. Rule 6 is important and we would reproduce it. It runs thus:-

Every police officer on whom any of the punishments specified in clauses (i) to (iii) of Sub-rule (1) and in clauses (vii) and (viii) of Sub-rule (2) of Rule 3 is inflicted shall have a right to appeal to the authority specified under Rule 9 against an order of the punishment:

Provided that no second appeal shall lie under this rule.

Rule 7 provides that no appeal shall lie against an order inflicting any of the punishments specified in Clauses (i) to (vi) of Sub-rule (2) of Rule 3. Rule 15 specifies the matters which are to be considered by the Appellate Authority while dealing with an appeal. It is not necessary to reproduce that rule in extenso. Rule 17, which is the one with which we are concerned in this case, runs thus:-

17. (1) The State Government shall alone have the power of revision and revision shall lie only in respect of punishments which are appealable.

(2) The State Government may, of its own motion or otherwise, call for the record of any case in which an order has been made by an authority' subordinate to it in the exercise of any power conferred on such authority by these rules and may-

(a) confirm, modify or reverse the order, or

(b) direct that further enquiry be held in the case, or

(c) reduce or enhance the punishment inflicted by the order, or

(d) make such other order in the case as it may deem fit:

Provided that where it is proposed to enhance the punishment inflicted by any such order, the Police Officer concerned shall be given an opportunity of showing cause against the proposed enhancement,

(3) Every application for revision shall be made within two months of the date on which the applicant was informed of the orders complained against. The State Government may, in its discretion, for good cause shown, relax that period.

Rule 18 confers revisional powers on the Inspector-General of Police in certain cases.

9. Mr. Paranjape contends that under Sub-rule (7) of Rule 17 a revision can lie only at the instance of a person who has been 'punished after a departmental inquiry and that there is nothing in that part of Rule 17 which confers a power upon the State Government to entertain a revision application to interfere with an order of acquittal passed against a Police Officer and convert his acquittal into a conviction. According to him, the power of the State Government to interfere in revision is confined only to those cases where an appeal lies. Since no appeal is provided for in the Rules against an order of acquittal passed in favour of a police officer, Mr. Paranjape argued that the acquittal cannot be challenged in revision. It seems to us that that argument of Mr. Paranjape ignores the specific provision of Sub-rule (2) of Rule 17. Before we deal with it, we would like to observe that Sub-rule (7) of Rule 17 consists of two parts. The first part is to the effect that the State Government shall alone have the power of revision. The second part is to the effect that a revision application shall lie only in respect of punishments which are appealable. Now, the second part of this Rule obviously deals with an application in revision at the instance of the aggrieved person. It does not and cannot deal with any action which the State Government itself proposes to take in revision. The simple reason for this is that where the State Government wants to interfere in revision it does not have to make an application to itself.

10. Sub-rule (2) of Rule 17 also consists of two parts. The first part of this Sub-rule is to the effect that the State Government may, of its own motion or otherwise, call for the record of any case etc. The second part deals with the extent or the content of the powers of the State Government in revision. Now, according to Mr. Paranjape the first part of Sub-rule (2) of Rule 17 confers upon the State Government only the power to call for the records '' of its own motion or otherwise' and that this does not mean that it has the power to revise the order passed by a subordinate authority. We cannot accept this contention. The language used in this rule clearly indicates that the State Government is not only empowered to call for the records, but having done so it is empowered to do any of the various things enumerated in the latter part of Sub-rule (2). Under the latter part of Sub-rule (2) the State Government is empowered to confirm, modify or reverse the order of the subordinate authority whose proceedings it has called before itself and it is also empowered to make such other order in the case as it may deem fit. The powers conferred under the latter part of Sub-rule (2) are thus wide enough to enable the State Government to convert an order of acquittal into one of conviction. The vires of this rule has not been challenge ed before us by Mr. Paranjape and he accepts the position that under Section 4 of the Act read with Section 25(2)(c) of the Act revisional jurisdiction is conferred upon the State Government.

11. Mr. Paranjape's next argument then was that the power conferred upon the District Superintendent of Police by Sub-section (1) read with Sub-section (2) is concurrent with the power of the State Government under Sub-section (7) of Section 25 in the matter of inflicting punishments on a Police Officer subordinate to the rank of an Inspector and that once the District Superintendent of Police, who according to him is the authority co-ordinate with the State Government, has decided not to punish a particular police officer, it was no longer open to the State Government to punish that very person. This argument of Mr. Paranjape runs counter to the decision of this Court in Gabrial Pedroo v. Dy. Commissioner of Police, Division South and Port,Bombay (1959) Special Civil Application No. 361 of 1939, decidedby|Chainani O.J. and V.S. Desai J., on August 25, 1959 (Unrep.). This Court has there observed as follows:-

Mr. Paranjpe has contended that under Sub-section (1) the power to punish can be exercised either by the State Government or any officer authorised by Sub-section (2). He has urged that once the power to punish has been exercised by any officer, it would not be open to Government to exercise the power again or to revise the order made by the officer concerned. This argument ignores clause (c) in Sub-section (2), which states that the exercise of the power by any of the officers mentioned in clause (a) shall be subject to such orders as the State Government may make. Section 4 of the Act also provides that the superintendence of the Police Force throughout the State of Bombay vests in and is exercisable by the State Government and any control, direction or supervision exercisable by any officer over any member of the Police Force shall be exercised subject to such superintendence. Clause (b) in Section 5 states that the recruitment, pay, allowance and all other conditions of service of the Police Force shall be such as may from time to time be determined by the State Government by general or special order.

On this view this Court rejected the argument of Mr. Paranjape. We respectfully agree with the view taken in that case and hold that the mere fact that the District Superintendent of Police had acquitted the appellant would not deprive the State Government of its power under sub- Section (1) of Section 25 to hold him guilty of the offence of having demanded a bribe and impose on him the punishment of dismissal.

12. Coming to the second contention, what Mr. Paranjape contended was that the State Government had already made up its mind when it issued the notice dated March 6, 1959, and, therefore, it could not be said that the appellant had been given a reasonable opportunity of showing cause against the action proposed to be taken against him. In other words, according to Mr. Paranjape the State Government's mind having already been made up before hearing the appellant he was deprived of the constitutional guarantee contained in Article 311. This is not purely a question of law but both a question of law and fact and, therefore, it was necessary for the appellant to make the necessary averments in the petition. If he had done so, the respondents could have had an opportunity of meeting it. In the absence of specific averments on the point, we are of the opinion that the appellant is not entitled to urge this point.

13. The third and the last contention was that after reinstatement of the appellant and more particularly after a lapse of a year or so from the date o the reinstatement, the State Government had no power to convert his acquittal in respect of one of the charges into a conviction and dismiss him from service. It is sufficient to say that there is no period of limitation within which the State Government is empowered to send for the records of the case and pass its orders in revision. There is further no rule which precludes the State Government from passing an order of dismissal against a person who had been reinstated into service by any of its subordinates and thus, there is no substance whatever in thisappeal.

14. For these reasons, we affirm the order of the learned single Judge and dismiss the appeal. We, however, make no order as to costs of the appeal. Liberty to the respondents' attorneys to withdraw Kg. 250 out of the sum of Rs. 500 deposited by the appellant in this Court. The balance is permitted to be withdrawn by the appellant.


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