(1) This is a petition under Article 226 of the Constitution which is directed against a departmental enquiry which is being held against the petitioner by Shri D. D. Kashyap, Assistant Superintendent of Police, Ferozepore.
(2) The Petitioner at the material time was working as Assistant Sub-Inspector of Police, In the petition a number of allegations have been made with regard to the prejudice which the then Senior Superintendent of Police, Shri Puran Singh had against the petitioner. It is said that on 10th June 1960 that officer registered a case under S. 5 of the Prevention of Corruption Act, 1947, against him and also ordered his suspension and deputed the Deputy Superintendent of Police, Moga, for investigation. The latter registered a case under S. 19 of the Arms Act. After having approached the superior officers with a representation that an enquiry by an officer subordinate to the Senior Superintendent of Police who would be the main prosecution witness should not be held and having failed to obtain any redress from them the present petition has been instituted.
(3) The main points that have been agitated before me by the learned counsel for the petitioner are:
(1). The petitioner having already been proceeded against judicially under Section 5 of the Prevention of Corruption Act and under Section 19 of the Arms Act, he could not be proceeded against departmentally on the same facts and allegations until the criminal cases are decided.
(2) The Proceedings of departmental enquiry against the petitioner are altogether illegal having been instituted without complying with the procedure prescribed by rule 16.38 of the Punjab Police Rules
(3). The Senior Superintendent of Police being the prosecutor himself having lodged the first information report under Section 5 of the Prevention of Corruption Act, an enquiry by an official subordinate to him would be contrary to the rules of natural justice.
(4) It may be mentioned that Shri Puran Singh, the Senior Superintendent of Police, has now been transferred and Shri S. N. Mathur has taken over as Senior Superintendent of Police, Ferozepore. Any apprehension of the petitioner that the enquiry officer would be under the influence of Shri Puran Singh at whose instance the first information report under Section 5 of the Prevention of corruption Act is said to have been lodged would not be justifiable. There can, however, be no doubt that the enquiry has not been ordered in compliance with the first part of rule 16.38 and what has to be seen is whether such non-compliance would vitiate the enquiry proceedings. The relevant sub-rules of the rule may now be set out.
'16.38(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 connection 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 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.
(3) Ordinarily a Magistrate before whom a complaint against a police officer is laid proceeds 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 Superintendent 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 prescribed the following supplementary procedure to be adopted in the case of complaints against police officers in those districts where abuses of the law with the object of victimising such officers or hampering investigation is rife. The District Magistrate will order that all petitions against police officers 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 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.'
The scheme of these rules apparently is that whenever any complaint is made against a police officer of a criminal offence in connection with his official relations with the public which would include an offence under the Prevention of Corruption Act, the Superintendent of Police cannot take any decision himself but he must forward that information to the District Magistrate who is then to decide whether the investigation of the complaint shall be conducted by a police officer or made over to a selected Magistrate having Ist Class powers. The judicial prosecution has normally to follow when investigation of such a complaint establishes a prima facie case but the District Magistrate alone is empowered to direct for reasons to be recorded that the matter should be disposed of departmentally. Even when a complaint against such an officer is laid before a Magistrate, he is to make a judicial enquiry and has to report the details of the case to the District Magistrate.
Thus it is clear that a departmental enquiry can only be ordered by the District Magistrate after investigation of the complaint conducted by the police officer or the Magistrate to whom such a task is entrusted by the District Magistrate has been completed and the District Magistrate has applied his mind to the result of the aforesaid investigation. He has to keep in mind at that stage that normally a judicial prosecution should take place if a prima facie case is disclosed but it will be then his discretion to deviate from that normal rule and order a departmental enquiry.
The apparent purpose and object of entrusting the District Magistrate with the discretion to have investigation made either by a police officer or a Magistrate and then to depart from the normal rule of judicial prosecution if a prima facie case is disclosed as a result of the investigation seem to be that he should be able to apply his independent mind to the facts of a particular case free from any atmosphere which may not be favourable to a police officer in his own department. As sub-rule (2) contemplates that a judicial prosecution shall normally follow where investigation under sub-rule (1) against a police officer establishes a prima facie case, rule 16.3 lays down that on acquittal he shall not be punished departmentally except in certain cases. Rule 16.38 employs language, which is essentially mandatory, and before a departmental enquiry can be ordered, there must be strict compliance with sub-rule (1) of that rule.
In State of Uttar Pradesh v. Babu Ram Upadhya, 1961 S. C. A. 593 : (AIR 1961 SC 751), it was held that the Police Act of 1861 continued to be a good law under the Constitution and that the rules governing disciplinary proceedings could not be treated as administrative direction but would have the same effects as the provisions of the statute where under they were made, in so far as they were not inconsistent with the provisions thereof. In that case, which was from the State of Uttar Pradesh, the material part of paragraph 486 of the Police Regulations expressly laid down that every information received by the police relating to the commission of a cognizable offence by a police officer 'shall' be dealt with in the first place under Chapter XIV of the Criminal Procedure Code, Paragraph 488 of the Police regulations dealt with a judicial trial and paragraph 489 with a departmental trial.
Paragraph 489 was to the effect:
'A police officer may be departmentally tried under Sec.7 of the Police Act:
1. after he has been tried judicially:
2. after a magisterial enquiry under the Criminal Procedure Code;
3. after a police investigation under the Criminal Procedure Code or a departmental enquiry under paragraph 486 iii above'.
The question was whether rule 1 of paragraph 486 was directory or mandatory. Their Lordships observed that the word 'shall' in its ordinary import was 'obligatory' though there were many decisions wherein the Courts under different situations construed the word to mean 'may'.
After laying down the rule of interpretation to the effect that when a statute uses the word 'shall' prima facie it is mandatory, their Lordships considered the object of rule 1 of paragraph 486 of the Police Regulations and observed:
'In our opinion, it is conceived not only to enable the Superintendent of Police to gather information but also to protect the interests of subordinate officers against whom departmental trial is sought to be held After making the necessary investigation under Chapter XIV of the Criminal Procedure Code, the Superintendent of Police may as well come to the conclusion that the officer concerned is innocent, and on that basis drop the entire proceedings. He may also hold that it is a fit case for criminal prosecution, which, under certain circumstances an honest officer against whom false charges are framed may prefer to face than to submit himself to a departmental trial. Therefore, the rules are conceived in the interest of the department as well as the officer. From the stand-point of the department as well as the officer against whom departmental enquiry is sought to be initiated, the preliminary enquiry is very important and it serves a real purpose.'
Other rules were also considered which showed that a departmental trial could be held only after a Police investigation and it was not permissible to hold it without such investigation. For all these reasons paragraph 486 was held to be mandatory and it was decided that as the investigation had not been held under chapter XIV of the Criminal procedure Code, the subsequent enquiry and order of dismissal were illegal.
The same reasoning can be appositely applied in the present case and sub-rules (1) and (2) of rule 16.38 must be held to be mandatory in so far as they enjoin that the Superintendent of Police must forward the complaint to the District Magistrate who will decide whether the investigation should be conducted by a police officer or made over to a Magistrate and then after examining the result of such investigation the District Magistrate has to decide and has to give reasons in his decision for proceeding against the police officer departmentally and not prosecuting him judicially if the investigation establishes a prima facie case.
(5) It is apparent from my previous order dated 19th May 1961 and the affidavit which has been filed by Shri S. N. Mathur, senior Superintendent of Police, dated 4th July 1961 that the mandatory provisions contained in sub-rule (1) of rule 16.38 were never followed. It is said in the affidavit that on receipt of the complaint against the petitioner disclosing the commission of offences under Section 5(2) of the Prevention of Corruption Act and Section 19 of the Arms Act, cases were registered at Police Station Moga and investigated by the Deputy Superintendent of Police. After registration of the cases, due information was sent to the Illaqa Magistrate, but as the police had statutory right to investigate these cases, no information was given to the District Magistrate under R. 16.38(1) for his decision whether investigation of the complaint was to be conducted by a police officer or made over to a Magistrate.
It is further stated that on 15th June 1960 when it was contemplated to take departmental action against the petitioner before judicially prosecuting him, full facts of the case were placed before the District Magistrate and requisite sanction, as provided by sub-rule (2) of rule 16.38, was obtained from him on the same day for starting departmental enquiry. In paragraph 4 of the affidavit it is admitted that the Senior Superintendent of Police had addressed a memorandum to the District Magistrate for grant of Necessary sanction and had given all the facts mentioning therein inter alia that it would be more suitable if Jagan Nath were proceeded first departmentally and there after, if need be, judicially and the District Magistrate agreeing with him had accorded the requisite sanction by Writing the word 'sanctioned'.
It may be pointed out that it is exactly this kind of situation, which the Police Rules definitely meant to meet so that the District Magistrate may be able to have an impartial investigation conducted in the first instance to enable him to come to an independent decision as to whether the normal judicial prosecution should follow in the event of a prima facie case being disclosed as a result of the investigation or whether the police officer should be proceeded against departmentally. The mischief which is necessarily sought to be avoided of any suggestion or influence from the Superintendent of Police affecting the mind of the District Magistrate was perpetrated in the present case by the Senior Superintendent of Police making a suggestion in the memorandum mentioned in paragraph 4 of the affidavit that the petitioner should be proceeded against departmentally.
It is abundantly clear that neither the Senior Superintendent of Police forwarded the complaint under the Prevention of Corruption Act to the District Magistrate as contemplated by sub-rule (1) of rule 16.38 nor did the District Magistrate order the investigation under the second part of that sub-rule. The investigation was conducted by the police officers themselves and although they may have been entitled to conduct the same under the provisions of the Criminal Procedure code but the aforesaid sub-rule of rule 16.38 which has the binding force of a statute provided that it was the District Magistrate alone who could get the investigation done through a police officer or a Magistrate. In the present case there was complete non-compliance with the mandatory provisions of that sub-rule.
As regards sub-rule (2), its provisions also do not seem to have been present to the, District Magistrate when he made the order because he acted on the facts supplied in the memorandum of the Senior Superintendent of Police and on the suggestion and did not come to a decision to proceed departmentally against the petitioner in the manner indicated in sub-rule (2) The requisite sanction was granted by him with the word 'sanctioned' whereas the said rule requires that he should give reasons for proceeding departmentally. Thus as the mandatory provisions of the police rule 16.38 were not followed, it must be held that the departmental enquiry which is being conducted against the petitioner is altogether illegal and invalid.
(6) Mr. Gujral, the learned counsel for the petitioner, submitted that no report had so far been made under Section 173 of the Code of Criminal Procedure in respect of the charges which were being investigated against the petitioner and that the investigation has been held up for such a long period without any reason having been assigned for so much delay. It does appear that the report has not yet been submitted in the corruption case but it is not possible to give any direction or order in that behalf at this stage on the material placed before me nor is it necessary to decide point No. 1 for which reliance was placed on an unreported decision of this Court in Hakim Singh v. Daulat Ram, Civil Misc. No. 748 of 1950 decided by Harnam Singh and Soni JJ. on the 27th March 1951, in view of the fact that the departmental enquiry must be held to be vitiated for non-compliance with the provisions of police rule 16.38.
(7) In the result, this petition is allowed and a writ in the nature of Mandamus shall issue directing the respondents not to hold or proceed with the departmental enquiry without complying with the mandatory provisions of law. No order as to costs.
(8) Petition allowed.