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Case Number

Civ. Misc. Appln. No. 115 of 1955

Advocates

Niamatullah and Harish Chandra
Standing counsel

Judges

R. Singh
V.D Bhargavai, JJ.

Acts

Sec. 2 of the Police Act (Act No. V of 1861).
Sec. 7 of the Police Act

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Smart Summary

Comprehensive Summary of the Opinion (Randhir Singh, J.)

Factual and Procedural Background

The petitioner was a Sub-Inspector of Police appointed in December 1948. In June 1953 he was posted at Sitapur. On 6 September 1953, while returning from the village of Madhwapur (where he had been in connection with a theft investigation), he observed a man later identified as Tika Ram behaving suspiciously near a canal and a field. Lalji, an ex-patwari, was with the Sub-Inspector. The Sub-Inspector called Tika Ram, who carried a potli (bundle) in the folds of his dhoti which he attempted to conceal. On being asked to produce it, the potli was found to contain currency notes. The notes were examined and counted by the Sub-Inspector and Lalji; Lalji returned the notes to Tika Ram.

When Tika Ram counted the notes at his home he discovered a shortage of Rs. 250 and on 9 September 1953 he lodged a complaint with the Superintendent of Police recounting the incident. An inquiry followed and departmental proceedings under Section 7 of the Police Act were instituted against the applicant. These proceedings culminated in the dismissal of the applicant on 19 October 1954. That dismissal was confirmed in appeal by the Inspector General of Police on 28 February 1955, and a revision was dismissed by opposite-party no. 1 in September 1955. The petitioner filed the present writ petition under Article 226 seeking quashing of the order of dismissal; the petition had been pending for over two years at the time of the judgment.

Legal Issues Presented

Whether the departmental proceedings taken under Section 7 of the Police Act were invalid because the mandatory procedure prescribed in Paragraph 486 of the U.P. Police Regulations was not followed.
Whether the factual complaint by Tika Ram concerned a cognizable offence (i.e., whether the conduct amounted to an offence under Section 409, IPC) or only a non-cognizable offence (Section 403, IPC).
Whether the Police Regulations (specifically Chapter XXXII, including Paragraph 486) have the force of law because they were framed under Section 7 of the Police Act, and consequently whether non-observance of those rules renders departmental action illegal.
Whether, given the delay in seeking relief by writ and the possibility of time-bar for a civil action, the petitioner should nevertheless be granted relief by the Court.

Arguments of the Parties

Applicant's Arguments

The departmental proceedings that led to his dismissal did not observe Paragraph 486 of the Police Regulations and so were invalid and illegal.
The facts alleged (custody/taking of Tika Ram's money by the Sub-Inspector and subsequent shortfall) amounted to criminal breach of trust under Section 409, IPC — a cognizable offence — and therefore the criminal procedure mandated by Paragraph 486 (including registering a case and following Chapter XIV, Cr.P.C.) should have been followed before departmental action.

Opposite-Parties' Arguments

The misappropriation (if any) constituted an offence under Section 403, IPC (criminal misappropriation) which is not cognizable; hence the procedure in Paragraph 486 requiring initial criminal proceedings did not apply.
There was no entrustment of the money to the Sub-Inspector by Tika Ram — the money remained the property of Tika Ram and thus the acts relied on by the applicant fall within the authorities (cases) where the property ceased to vest in the complainant, supporting the Section 403 classification.
Police Regulations are, in part, only administrative guidance; some rules have force of law and some do not. Reliance was placed on observations in Niranjan Singh v. State of U.P. to suggest that not all Police Regulations are statutory obligations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chelloor Mankkal Narayan Ittiravi Namboodiri v. State of Travancore-Cochin, A.I.R. 1953 S.C. 478	Illustrates situation where money given as illegal gratification immediately ceased to be the property of the giver, negating entrustment.	Opposite-parties relied on this case to argue absence of entrustment; the Court distinguished it on facts and did not accept it as determinative here.
Emperor v. Ghanshamdas, A.I.R. 1928 Sind 106	Example where movable property passed to another (a contractor) and thus entrustment did not arise.	Cited by opposite-parties to support contention that there was no entrustment; Court observed such cases involve transfer of property and were not analogous to the present facts.
Niranjan Singh v. The State of Uttar Pradesh, 1957 A.L.J. 233	Observation that U.P. Police Regulations contain both rules of statutory force and rules that are merely administrative; Regulations indicate which are framed under statutory provisions.	Court used the principle to examine whether Chapter XXXII (including Paragraph 486) was framed under Section 7 of the Police Act and thus had the force of law; concluded it did.
Ayodhia Prasad v. State of Uttar Pradesh (Civil Misc. Application (O.J.) No. 86 of 1954) (two-Bench decision, unreported)	Support for the proposition that non-compliance with Paragraph 486 renders departmental proceedings under Section 7 invalid.	Cited as a supporting bench decision of this Court (one in which the present bench member was a party); relied upon to support quashing of dismissal for non-observance of Paragraph 486.
Sri Mohd. Umar v. Inspector General of Police, 1957 A.L.J. 603	Another decision of this Court supporting the view that mandatory provisions of Paragraph 486 must be observed.	Relied upon along with the Ayodhia Prasad decision to support the conclusion that departmental trial was illegal for failure to follow Paragraph 486.
Union of India v. T.R. Varma, 1958 A.L.J. 127 S.C.	Observation that a person whose services have been wrongfully terminated is entitled to institute appropriate action; delay and possible time-bar are relevant when considering relief by writ.	Cited by the Court during dictation to justify granting relief despite delay, since the petition had been pending for over two years and a suit might be time-barred.

Court's Reasoning and Analysis

The Court proceeded through a sequence of factual and legal determinations, applying the rules found in the Police Regulations and relevant penal provisions strictly to the facts as pleaded.

Characterisation of the offence:
(As stated in the opinion)

The Court examined the complaint by Tika Ram which stated he possessed currency notes of Rs. 650, had handed the potli to the Sub-Inspector for examination, and later discovered a shortage of Rs. 250. The opposite-parties argued for classification under Section 403, IPC (non-cognizable). The applicant contended the facts amounted to Section 409, IPC (criminal breach of trust — cognizable).

The Court emphasised that an offence under Section 409 requires entrustment or dominion over property. The Court held that entrustment need not involve formalities of a trust; if the property was given or handed over to the officer in circumstances showing that the officer was to treat it as still belonging to the giver (i.e., taking it only to examine and not to take ownership), that constitutes entrustment. On the facts, the Court found the circumstances compatible with entrustment and conversion and therefore considered the matter capable of constituting an offence under Section 409 (a cognizable offence).
Application of Police Regulation Paragraph 486:
(As stated in the opinion)

Paragraph 486 requires that information relating to the commission of a cognizable offence by a police officer shall, in the first instance, be dealt with under Chapter XIV of the Cr.P.C., including registration of a case at the police station, with certain limited exceptions not applicable here. Because the Court treated the complaint as in respect of a cognizable offence (Section 409), Paragraph 486 applied.

The Court noted the prescribed procedure was not followed: no case was registered by the Police, no report under Section 157, Cr.P.C. was submitted to or accepted by the District Magistrate, and no final report under Section 173, Cr.P.C. was made or accepted — all prerequisites before departmental action under Paragraph 490 could be validly taken.
Legal status of the Police Regulations:
(As stated in the opinion)

The Court referred to Paragraph 477 of the Police Regulations which indicates that rules in Chapter XXXII were made under Section 7 of the Police Act and apply to officers appointed under Section 2 of the Police Act (Act V of 1861). On that basis the Court concluded that Paragraph 486 (in Chapter XXXII) was framed under Section 7 of the Police Act and therefore has the force of law rather than being merely directory or administrative guidance.

The Superintendent of Police conducting the departmental proceeding had therefore failed to observe a provision which constituted a legally binding procedure. The Court held that such failure rendered the departmental trial (and the resulting dismissal) illegal.
Effect of absence of a judicial trial:
(As stated in the opinion)

Paragraph 493 was invoked to stress that a Superintendent of Police cannot, in the course of departmental proceedings, re-examine facts that have been the subject of a judicial trial; the finding of a court is final on such facts. The converse was that, where there had been no judicial trial, the officer was deprived of the opportunity to establish facts in his favour before a court of law. The Court treated non-compliance with the procedural safeguards as a denial of a judicial process to the applicant.
Consideration of delay and remedial consequences:
(As stated in the opinion)

The Court considered the Supreme Court's observation in Union of India v. T.R. Varma that wrongful termination entitles a person to institute action, and that delay or time-bar considerations are relevant to whether relief should be granted by writ. Although the dismissal dated 19 October 1954 and the petition had been pending for over two years, the Court concluded that it should not refuse relief on the ground that the petitioner should be driven to file a regular suit which might be time-barred.

Holding and Implications

Holding:

ORDER OF DISMISSAL QUASHED.

Implications and direct effects:

The departmental order dismissing the petitioner dated 19-10-1954, the confirmation by the Inspector General of Police on 28-2-1955, and the subsequent dismissal of revision in September 1955 were quashed by the Court.
The petitioner was awarded his costs against the opposite-parties.
The Court did not decide other grounds raised in the writ petition because the procedural illegality found (failure to observe Paragraph 486 and related provisions) was sufficient to quash the dismissal.
No broader novel legal principle was announced beyond application of existing rules: the decision enforces that where Police Regulations in Chapter XXXII are framed under Section 7 of the Police Act they carry the force of law and mandatory procedural safeguards (including criminal procedure for cognizable offences) must be observed before departmental action can validly result in dismissal.

Note: This summary strictly adheres to the content of the provided opinion and does not add facts or inferences beyond the text delivered by the Court in the opinion.

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Babu Ram Upadhya v. Uttar Pradesh Government

Randhir Singh, J.:— This is a petition under Art. 226 of the Constitution of India for the quashing of an order of dismissal passed by opposite-party no. 2 and subsequently confirmed by opposite-parties nos. 3 and 1.

2. It appears that the applicant was a Sub-Inspector of Police appointed in December, 1948. In June, 1953, he happened to be posted at Sitapur. On 6-9-1953 the applicant was returning from a village known as Madhwapur where he had gone in connection with the investigation of a theft case when he saw a person who was subsequently found to be Tika Ram coming from the side of a canal and going hurriedly towards a field. The movements of Tika Ram roused some suspicion in the mind of the applicant. One Lalji, an ex-patwari also happened to be with the Sub-Inspector at that time. Tika Ram was called and it was found that he was-carrying something in the folds of his Dhoti which he was trying to hide with his hand.

3. The applicant asked him to produce the Potli which Tika Ram had and on examination it was found to contain, currency notes. They were examined by the applicant and were counted by him and Lalji the ex-patwari. The notes were subsequently returned by Lalji to Tika Ram. Tika Ram went away and when he counted the currency notes at his house he found that they were short by Rs. 250/-. He then made a complaint to the Superintendent of Police on 9-9-1953 in which he narrated the above facts. An inquiry was then made by the Superintendent of police and ultimately departmental proceedings under Sec. 7 of the Police Act were taken against the applicant. These proceedings resulted in the dismissal of the applicant and he has, therefore, come up to this Court with this petition for the issue of a writ.

4. The first point on which the order of dismissal has been attacked by the applicant is that the provisions of para 486 of the Police Regulations had not been observed and as such the proceedings taken under Sec. 7 of the Police Act were invalid and illegal. Paragraph 486 lays down the procedure and the conditions for departmental trial under Sec. 7 of the Police Act. It is expressly provided 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, Cr. P.C according to law, and a case under the appropriate section will be registered in the police station concerned. There is a proviso attached to sub-paragraph I of Paragraph 486 which lays down certain exceptions. One of the exceptions is that no case will be registered by the police if the information is received, in the first instance, by a Magistrate and forwarded by the District Magistrate to the Police. The proviso, however, does not apply to the facts of the present case inasmuch as there is no allegation that the information which was conveyed to the Superintendent of Police by means of the application made by Tika Ram was given to a Magistrate in the first instance. The other point which is material is whether the information was in respect of a cognizable offence. Tika Ram had in his application made to the Superintendent of Police clearly mentioned that he had in his possession currency notes of the value of Rs. 650/- and the Potli containing these notes was given to the Sub-Inspecter when he wanted to search and that the currency notes were returned to him after examination. The Sub-Inspecter evidently never meant to take away the money but he wanted to examine the contents of the Potli as Tika Ram was found behaving in a suspicious manner.

5. It has been contended on behalf of the opposite-parties that the misappropriation of a part of the money amounted in the present case, if at all, to an offence under Sec. 403 of the Indian Penal Code which is not a cognizable offence. The contention on behalf of the applicant, however, is that the mis-appropriation of the money under the circumstances mentioned above amounted to an offence under Sec. 409, I.P.C The main ground on which it has been contended on behalf of the opposite-parties that the case fell under Sec. 403, I.P.C is that there was no entrustment made by Tika Ram in favour of the applicant. Some reported cases have also been cited on behalf of the opposite-parties but it is not necessary to refer to all those cases as in everyone of those cases the property in the moveables made over or taken away by the accused ceased to vest in the person who parted with the property. In Chelloor Mankkal Narayan Ittiravi Namboodiri v. State Of Travancore-Cochin A.I.R 1953 Sup. Court 478. a person gave a certain sum of money as illegal gratification to another person. As soon as the money was given it ceased to remain the property of the person who gave it and, therefore, there was no question of an entrustment. In Emperor v. Ghanshamdas A.I.R 1928 Sind 106. a certain sum of money was given to a contractor for doing a certain act. In this case also the movable property ceased to be the property of the person who parted with it. There can, be no doubt that there should be some entrustment of property or dominion over property in order to constitute an offence under Sec. 409, I.P.C but it is not necessary that this entrustment should be attended by all legal formalities required for the creation of a trust. If the parties or at least the person who takes away the property does not intend to take away the property as his own or for his own benefit but takes it away with the intention that it will continue to be the property of the person from whose possession it has been takert this conduct will evidently create an entrustment and if the person so taking away the property subsequently converts it to his own use it will be a case of criminal breach of trust and not of criminal misappropriation. We are unable, therefore, to agree with the contention raised on behalf of the opposite-parties that the complaint made by Tika Ram to the Superintendent of Police amounted only to an offence under Sec. 403, I.P.C and not to an offence under Sec. 409, I.P.C An offence under Sec. 409, I.P.C is admittedly a cognizable offence and as the complaint made by Tika Ram was in respect of a cognizable offence the provisions of Police Regulation 486, sub-paragraph I applied to it. It is not disputed that on the information received by the Superintendent of Police no case was registered by the Police nor was any report under Sec. 157, Cr. P.C submitted to the District Magistrate or was accepted by him. The procedure provided for in paragraph 486 of the Police Regulations clearly required the Superintendent of Police to register a case in the police station and to follow the procedure laid down in Sec. 173, Cr. P.C if there was no sufficient evidence in support of the complaint. Departmental action as laid down in paragraph 490 could be taken only after the final report under Sec. 173, Cr. P.C had been accepted by the District Magistrate. No such report as mentioned above was made or accepted by the District Magistrate. Paragraph 493 of the Police Regulations is as follows:—

“It will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a police officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial and the finding of the court on these facts must be taken as final.”

6. This provision clearly indicates that the Superintendent of Police was bound to accept a finding on facts in issue arrived at a judicial trial. There having been no judicial trial the applicant was deprived of his right to establish the question of fact in his favour at a judicial trial before a court of law. There is, therefore, no doubt that the express provision laid down in paragraph 486 of the Police Regulations was ignored in the case of the applicant.

7. It has further been contended on behalf of the opposite-parties that the Police Regulations are only rules of conduct laid down by the Inspector General of Police with the approval of the State Government and reliance has been placed on certain observations in Niranjan Singh v. The State of Uttar Pradesh 1957 A.L.J 233.. It has been observed by their Lordships of the Supreme Court that the U.P Police Regulations contain rules which are statutory as also rules which have no force of law and are only for the guidance of the officers and that an indication as to whether a particular rule has been framed under the provisions of some law has been given in the Regulations themselves. Paragraph 486 finds a place in Chapter XXXII of the Police Regulations and paragraph 477 with which the Chapter starts indicates that the rules in Chapter XXXII have been made under Sec. 7 of the Police Act and apply only to officers appointed under Sec. 2 of the Police Act (Act No. V of 1861). In view of the indication given in paragraph 477 of the Police Regulations the rules embodied in Chapter XXXII have been framed under Sec. 7 of the Police Act and have the force of law and are not only directory or administrative. The Superintendent of Police who conducted the departmental trial did not observe the provisions of paragraph 486 of the Police Regulations which have the force of law and as such a dismissal as a result of such departmental proceedings would be illegal. This view finds support in two Bench cases of this Court. One of them which has not yet been reported and to which one of, us was a party was decided only on 23-12-1957. It is Civil Misc. Application (O.J) No. 86 of 1954 (Ayodhia Prasad v. State of Uttar Pradesh). The other case is Sri Mohd. Umar v. Inspector General of Police 1957 A.L.J 603.. In view of the fact that the departmental trial under Sec. 7 of the Police Act which resulted in the dismissal of the applicant was illegal the order of dismissal cannot stand and must be quashed. In view of this finding it is not necessary to enter into the other grounds taken up in the writ petition.

8. While the judgment was being dictated the learned Standing counsel drew our attention to a very recent case reported in Union Of India v. T.R Varma 1958 A.L.J 127 S.C. in which an observation has been made that a person whose services have been wrongfully terminated is entitled to institute an action to vindicate his rights and this circumstance should be taken into consideration while considering a petition for writ. Though their Lordships of the Supreme Court has made the above observation, yet they felt pressed by the fact that the order dismissing the respondent in that case having been made on September 16, 1954, an action to set aside that order would have been time-barred, and, therefore, they entered into the merits of the case. In the present case also, the order of dismissal was passed as far back as the 19th of October, 1954 and this petition has been pending for over two years and possibly a suit by the petition would be time-barred and, therefore, we do not think that the relief should be refused to the petition in the present case and that he should be driven to the necessity of filing a regular suit after his petition has been pending for over two years in this Court.

9. As a result, the petition is allowed and the order of dismissal passed on 19-10-1954 and confirmed by the Inspector General of Police in appeal on 28-2-1955 and against which a revision was dismissed by opposite-party no. 1 in September, 1955, is, therefore, quashed. The petitioner shall get his costs from the opposite-parties.

10. Petition allowed.

Babu Ram Upadhya v. Uttar Pradesh Government

Comprehensive Summary of the Opinion (Randhir Singh, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

Opposite-Parties' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Babu Ram Upadhya v. Uttar Pradesh Government

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