Avadh Behari Rohatgi, J.
(1) The petitioner was a Sub-inspector. He was posted at the Roshanara Police Station. On 9-7-71 he arrested at Maurice Nagar a person named Din Dayal. Din Dayal was prosecuted under Ss. 112/ 117 of the Bombay Police Act. The case against him later on was withdrawn.
(2) Din Dayal after his arrest made a complaint on 12-7-71 that he was maliciously arrested and was compelled to pay a bribe of Rs. 250.00 to the petitio
(3) On 4th November, 1971, Mr. A.A. Khwaja, Additional District Magistrate passed an order. He directed that the inquiry be made by a police officer. After the completion of the inquiry under the Punjab Police Rule 16.38(1) by the inspector of the vigilance branch, the Superintendent of Police enquired whether necessary action under Punjab Police Rule 16.38(2) shoulde taken against the petitioner or not. On24-7-1972MissVinecta Singh, Additional District Magistrate, made an order under Punjab Police Rule 16.38(2) that the petitioner be dealt with departmentally. Thereafter, a summary of allegations was given to the petitioner on 28th December, 1972. The petitioner brought this writ petition on 12th March, 1973 questioning the validity of the two orders made by the Additional District Magistrate one by Mr. A.A. Khwaja dated 4th November, 1971 and the other by Miss Vineeta Singh dated 24-7-1972.
(4) At this stage the provisions of Punjab Police Rule 16.38 may be set out in so far as they are material for our purposes :
'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.'
(5) The short question for decision is whether an Additional District Magistrate is a District Magistrate within the meaning of the expression used in the Police Rule 16.38. This point is squarely covered by two decisions of the Supreme Court : Ajaib Singh v. Gurbachan Singh, Air 1965 Sc 1619 and Hari Chand v. Batala Eng. Co., V (1969) D.L.T. 25 These decisions lay down that if District Magistrate is named in a statute as the repository of a certain power, for example power to detain a person as was the case in Ajaib Singh or power to order inquiries and prosecutions as in this case, it means that he must be a District Magistrate appointed under Section 10(1) of the Code of Criminal Procedure, 1898. An Additional District Magistrate is appointed under Sub-scc. (2) of S. 10 and he being below the rank of a District Magistrate cannot be said to be of the same rank as the District Magistrate even when he performs the powers and functions of the District Magistrate under the Code or any other law for the time being in force. In Ajaib Singh (supra) the court said:
'CLEARLY,therefore, an Additional District Magistrate must be an officer below the rank of the District Magistrate. Further Sub scc. (3) of S. 10 bears this out. That sub-section says that for certain purposes, the Additional District Magistrate shall be deemed to be subordinate to the District Magistrate. thereforee, even if the Additional District Magistrate is invested with all the powers of a District Magistrate under the Code or under any other law for the time being in force he is still below the District Magistrate for certain purposes mentioned in S. 10(3) of the Code.'
(6) On behalf of the Government reliance is placed on two notifications, one dated 27-12-1965 by which Mr. A.A. Khwaja was appointed as the Additional District Magistrate and the other dated 30-11-1972 by which Miss Vineeta Singh was appointed as the Additional District Magistrate. Both these notifications were issued in exercise of the powers conferred by Sub-section (2) of Section I Oof the Code of 1898. The Supreme Court has held that an Additional District Magistrate under Sub-section (2) is not a District Magistrate. It was said that even though an Additional District Magistrate had been invested with all the powers under the Code and also under any other law for the time being in force, he was still not the District Magistrate unless the Government appoints him as such under Section 10(1) of the Code. Though Shri Khwaja and Mrs. Vineeta Singh may have been exercising all the powers of the District Magistrate by virtue of their being Additional District Magistrates they were not 'District Magistrate' within the meaning of the term used in the Punjab Police Rule 16.38(1) and (2).
(7) On the authorities one rule emerges quite clearly, which unmistakably appears from the provisions of the Code, that unless a person has been appointed under Section 10(1) of the Code he cannot be called a District Magistrate and that an Additional District Magistrate is below the rank of a District Magistrate. In the absence of a notification under Scc. 10(1) of the Code it is, thereforee, impossible to maintain that Mr. Khwaja or Miss Vineeta Singh were of the rank of 'District Magistrate' competent to pass orders under Punjab Police Rule 16.38.
(8) Mr. Dhar raised other points also. But in view of what I have held on the first point, it is not necessary to consider his other contentions.
(9) For these reasons the writ petition succeeds. The orders of the Additional District Magistrate dated 4-11-71 and 24-7-72 are hereby quashed. As a result, the entire departmental proceedings are held to be invalid and are accordingly quashed. The parties are left to bear their own costs.
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