1. This is an application under Article 226 of the Constitution praying for a writ of prohibition or direction in the nature of prohibition to opposite party No. 2 the Superintendent of Police Mirzapur not to proceed with the departmental trial on the basis of the findings arrived at by the learned Deputy Superintendent of Police and on the allegations made in the charge sheet.
2. The facts of the case briefly are that the petitioner was enrolled in the IT. P. Police force as a constable in 1938. He was promoted to the post of Head Constable in 1948. In February, 1955 he was Head Constable at Police station Chopan in the District of Mirzapur. According to the petitioner the station officer Chopan became inimical to him and he therefore complained against the petitioner to the Superintendent of Police Mirzapur. The complaint related to two incidents which took place on the 23rd of September, 1954 and the 17th of January, 1955. The Superintendent of Police received complaints on the 24th of March, 1955 and the 14th of April, 1955.
It is alleged that on the 17th of January, 1955 one Barak Kol of village Chiraulia came to lodge a first information report at the police station and the petitioner refused to record the report and demanded a sum of Rs. 10 from Barak Kol. Barak Kol had no money then. He accordingly went back and came the next day with Rs. 5 and on payment of this amount the petitioner recorded his first information report. The incident alleged to have occurred on the 23rd of September, 1954 is that Moti Gonrh and Bishnath Gonrh of village Gonrhmara each paid a sum of Rs. 50 to the petitioner in connection with some dispute about a field.
Out of these two complaints against the petitioner charges under Section 7 of the Police Act were framed on the 14th February and proceedings were started against him before the Deputy Superintendent of Police, who gave his findings against the petitioner on the 6th August, 1956. On the 14th of August, 1956 the Superintendent of Police Mirzapur gave a notice to the petitioner to show cause why his services should not be terminated on the findings arrived at by the Deputy Superintendent of Police. When this notice was given to the petitioner, the present petition was filed in this Court on the 22nd of August, 1956.
3. Two main points have been urged in this case by the petitioner. Firstly it is contended by him that proceedings are barred by time. Section 42 of the Police Act provides that:
'All actions and prosecutions against any person, which may be lawfully brought for anything done or intended to be done under the provisions of this Act or under the general police powers hereby given shall be commenced within three months after the act complained of shall have been committed, and not otherwise; and notice in writing of such action and of the cause thereof shall be given to the defendant, or to the District Superintendent or an Assistant District Superintendent of the District in which the act was committed, one month at least before the commencement of the action.
No plaintiff shall recover in any such action if tender of sufficient amount shall have been made before such action brought, or if a sufficient sum of money shall have been paid into Court after such action brought, by or on behalf of the defendant and, though a decree shall be given for the plaintiff in any such action, such plaintiff shall not have costs against the defendant, unless the Judge before whom the trial is held shall certify his approbation of the action : Provided always that no action shall in any case lie where such officers shall have been prosecuted criminally for the same act.'
4. This section, to my mind, affords a protection to the police employees in respect of anything done or intended to be done under the provisions of this Act. If any person who is affected by any act done by a police officer or intended to be done under the provisions of the Act and against which action can be lawfully brought against the police officer, it is open to the third party to bring action against him after complying with the provisions of the Act by giving notice and as soon as notice was given it affords an opportunity to the police officer to consider the matter either to compromise or to pay the money to fight out the case; but this section, to my mind, does not apply to a disciplinary proceeding against a police employee for any misconduct or any other acts enumerated in Section 7 on which such proceedings could be started.
It cannot be regarded as an action or prosecution against any person as contemplated to Section 42. There is therefore no force in the contention of the petitioner.
5. The next point which was urged was that the Deputy Superintendent of Police did not give him an opportunity to summon the witnesses and to produce certain documents. Reliance was placed on Act XXI of 1953 passed by the U.P. legislature which gives power to the officers appointed to conduct any disciplinary enquiry against any of the employees of the State to summon the witnesses and documents. The petitioner is certainly entitled to the protection of Article 311. Article 311 contemplates that a notice to show cause is to, be given to an employee against the action proposed.
As has been held by this Court the obligation to issue notice to show cause does not only mean to permit an employees to file his explanation. An opportunity to show cause implies within its ambit the power to give an opportunity to an employee to summon the witnesses and to produce evidence and to cross-examine witnesses. It is a different matter that when charges were initially investigated and the employee had been given full opportunity he could not be entitled to a further opportunity to recall the witnesses or to have a second opportunity to cross-examine the witnesses ; but in the present case if the petitioner is able to satisfy the Superintendent of Police that his witnesses were not rightly summoned on illegal grounds by the Deputy Superintendent of Police, he was certainly to be given an opportunity by the Superintendent of Police to summon the witnesses and cross-examine them and also to call for the record of the case but it cannot be said at this stage that the proceedings before the Superintendent of Police cannot proceed inasmuch as he was not given an opportunity by the Deputy. Superintendent of Police to summon his witnesses and certain records. The petitioner in view of these circumstances is not entitled to any relief.
6. The petition is, therefore, rejected.