1.This is a petition under Art. 226 of the Constitution of India by Raj Pat Singh petitioner for the issue of a writ of certiorari to quash the-various steps taken in the departmental proceeding conducted against him which eventually resulted in-his dimissal from service.
2. The petitioner joined the U.P Police Force as a Constable on 26-8-1947 and at the time the departmental action was taken against him, he was holding the post of a Head Constable. In the month of March or April 1955, the Station Officer, S.I Suraj Pratap Singh, orally reported to the Circle Inspector, Ram Nandan Rai, that the petitioner had) not paid full amounts due to village chaukidars though he had obtained thumb-marks or signatures-in token of having paid the full amounts to them, and thereby submitted a false report of full disbursement to the Accountant. Thereupon C.I Ram Nandan Rai made an inquiry and recorded the statements of village chaukidars and of the petitioner. The Circle Inspector thereafter submitted his report dated 21-1-1955, Annexure I to the affidavit, to the S.P On perusal of this report the S.P ordered that department proceedings be taken against the petitioner. He further directed that the Dy. S.P should conduct the departmental inquiry, lit was then that the Deputy Superintendent of Police served the charge-sheet, Annexure 2 to the affidavit, on the petitioner which contained two charges; one with regard to the non-disbursement of the total amount to Chaukidars and the other with regard to those items which had by then been disbursed in full but in two instalments and not in a lump sum.
3. Partial disbursement or disbursement in instalments of amounts which were payable to chaukidars was said to be irregular and motivated with corrupt motives. The Dy. S.P recorded the evidence and submitted his finding on 1-7-1955 which is a part of the show cause notice which was served upon the petitioner on or about the 2nd of July 1955, by the Superintendent of Police, Basti. The show cause notice is Annexure 3, dated 2-7-1955. The representation made by the petitioner in reply to the show cause notice is Annexure 4.
4. It was on consideration of the report of the Inquiring Officer and the various points raised by the petitioner in his representation that the S.P passed the final order of dismissal as contained in Annexure 5 dated 7-8-1955. The petitioner then preferred an appeal before the Deputy Inspector General of Police, but it was dismissed under order dated 5-4-1956, Annexure 6 to the affidavit. The petitioner thereafter moved a revision application before the Inspector General of Police which met the same fate under order dated 18-5-1957, Annexure 7. It was at this stage that the petitioner invoked the jurisdiction of this Court under Art. 226 by moving the present petition.
5. The petitioner has challenged the order of dismissal on many grounds as detailed in the petition, but only one, namely, ground No. 4, has force.
6. It may, first of all, be observed that the first two grounds are of a general nature. Therein it is alleged that proceedings were conducted against the petitioner in total disregard of the mandatory provisions of Ch. XXXII of the Police Regulations, specially para. 489. Apparently these general pleas have reference to grounds Nos. 5 to 7, wherein it was pleaded that the S.P had acted illegally by refusing to grant leave to the petitioner to seek legal aid before submitting his reply to the show cause notice; that the S.P and also the Dy. S.P had failed to supply him copies of documents necessary for his defence, and also failed to summon witnesses who would have made a statement in support of the petitioner; and that the charge itself was illegal and further proceedings taken on its basis could not be sustained.
7. It will be found that none of the above four joints were raised in the revision made before the Inspector General of Police. The petitioner has not filed the grounds of revision; but from the order, Annexure 7, it shall be clear that only one point was raised in particular and it was about the proceedings not being taken in accordance with paragraph 486 of the Police Regulations. The petitioner has also not filed the grounds of appeal; but from the order of the D.I.G Annexure 6, it appears that only one of the above four points was raised before him, namely, that all his defence witnesses were not summoned and examined by the Officer who held the inquiry and also by the Officer who later on awarded the punishment of dismissal.
8. While exercising jurisdiction under Art. 226, High Courts do not and cannot usurp the functions of a Court of Appeal and for that reason cannot permit the party to raise a fresh point for the first time before the High Court. Even otherwise this Court can presume that a point not raised before the subordinate authorities had been given up as being without any substance. From whatever aspect the matter is looked into, the three points other than the non-summoning of defence witnesses can be disregarded by this Court.
9. The respondent No. 1 has given cogent reasons for not summoning two of the witnesses cited by the petitioner. The reason given for not summoning these witnesses is that their evidence was not material for the inquiry being conducted against the petitioner. There is no reason why a contrary view may be taken by this Court. The Dy. S.P had permitted the other two witnesses to be examined in defence, but the petitioner examined S.I Thakur Lal only. The fourth witness, namely, the Record Keeper of Basti, was not examined probably for the reason that he had already been examined by the prosecution and he must have been suitably cross-examined by the petitioner. In other words, the petitioner was given a reasonable opportunity to adduce his evidence in defence.
10. The petitioner had been asserting from the very beginning that the allegations made against him amount to a cognizable offence punishable under S. 409 I.P.C and that after the registration of the crime it should be investigated and proceeded with in accordance with the provisions of Ch. XIV Code of Criminal Procedure. The suggestion made throughout was that file Superintendent of Police did not comply with the provisions of para 486 of the Police Regulations with the result that without a proper judicial trial he could not be awarded any punishment for having committed such a crime. This question was considered by a Division Bench of this Court in the case of Babu Ram Upadhya v. U.P Government, AIR 1958 All 584. I am in respectful agreement with the view expressed therein and in this judgment I shall confine myself by making only a few observations on the point
11. Para 486 has been divided into three sub-paragraphs. Sub-para I relates to information received by the police relating to the commission of a cognizable offence by a police officer while sub-para II to non-cognizable offences. Sub-para III is of a general nature and is not independent of Sub-para II and for certain reasons cannot be said to be independent of sub-para I. However, before the information received may be inquired into depart-mentally under sub-para III, it is necessary that compliance of sub-para I be made.
12. Sub-para I clearly provides 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 Ch. XIV Code of Criminal Procedure. after the registration of the crime at the police station, unless the case comes within one of the six provisos detailed therein. The registration of the crime is not necessary if the information is received, in the first instance, by a magistrate and is forwarded by the D.M to the police.
13. When it is not necessary to register the crime, it will also not be necessary to hold the investigation under Ch. XIV Code of Criminal Procedure. If the information is received in the first instance, by the police, it has, as mentioned above, to be registered and investigated by the police in accordance with the provisions of Section 157 of the Cr PC. At the same time a copy of the information received has to be forwarded to the D.M along with the comments of the S.P indicating the steps being taken as regards investigation of the alleged crime. But if the S.P refuses to order investigation under proviso (b) of Section 157(1) of the Cr PC lie has to indicate his reasons in his forwarding report.
14. The District Magistrate can then act under Section 159 of the Cr PC. if necessary. He can either confirm the direction of the S.P not to investigate the crime, or direct an investigation by the police itself. In the alternative he can himself make an inquiry or depute any subordinate magistrate to proceed to the spot to hold a preliminary inquiry. Where the D.M directs the police to conduct the investigation, the police has to comply with the provisions of the Code of Criminal Procedure.
15. Thus, where investigation is refused by the Superintendent of Police and is not ordered by the District Magistrate, no further action has to be (taken under the Code of Criminal Procedure. Whether the S.P can then proceed under sub-para III or not is, I may say, not a question free from controversy. I am aware of a decision of this Court in the Division Bench case of Mohammad Umar v. Inspector General of Police, U.P, (S) AIR 1957 All 767, where it was observed that in cases where (investigation was refused under Section 157(1)(b) of the Cr PC the Superintendent of Police could proceed departmentally against the officer concerned under sub-para III.
16. In the proviso to Section 157 of the Cr PC. are detailed the circumstances in which a police officer may not investigate a crime registered in the police station or a report made to the police. Proviso (a) relates to crimes not of a serious nature. They can include technical offences or crimes of a petty nature. Under the proviso (b) the police officer can refuse to investigate the case if it appears to him that there is no sufficient ground for entering on an investigation.
17. This proviso has been worded generally, but it will be wrong to hold that an unrestricted discretion has been vested in police officers whether to investigate a particular case or not. Under this clause the police appears to have been given the power to refuse to investigate only those cases where no prima facie case has been made out; either the report appears to be false having been made to satisfy the grudge against the person alleged to have committed the crime or the dispute is more or less of a civil nature which can be better adjudicated upon in a regular civil or revenue suit.
18. If proviso (b) is given a narrower meaning, as indicated above, it will not be open for the S.P to order a departmental trial when he was at the same time of opinion that the case was not one which should be investigated by the police. As this point shall not be of importance in the decision of the present proceeding, no final opinion is being expressed. It may become necessary to reconsider this matter in an appropriate case and that shall be the proper stage to decide whether the question should or should not be referred to a larger Bench for reconsideration.
19. In case the investigation of the case is not refused by the S.P the investigation has to be conducted by a police officer higher in rank than the officer charged. After the conclusion of the investigation the S.P has to take the decision, with the concurrence of the D.I.G if necessary, whether a charge sheet or a final report be submitted in the case. Whenever a charge-sheet is submitted against the officer charged, he has to undergo a regular judicial trial and departmental action can be taken against him after the final decision of the criminal case depending upon the finding recorded therein.
20. But where the police does not submit a charge-sheet but instead submits a final report, it shall be for the Magistrate to decide whether to issue notice to the officer concerned to stand trial for offences alleged to have been committed by him. In such a case also there would be regular criminal trial and further departmental proceedings shall depend upon, the decision of the case. If the final report is accepted by the Magistrate, the S.P has still to decide whether to take departmental action against the police officer concerned. It is quite natural that where the report made is baseless, no further action should be taken against the officer.
21. The S.P, however, can order departmental trial or proceeding if the charge is believed to be true and the prosecution is not undertaken owing to the evidence being considered insufficient for a judicial trial or for any other reason. The departmental action to he taken shall be as laid down in para 490 of the Police Regulations and can be deemed to be under sub-para III of para 486 also. It is not necessary to express any final opinion on this point. It would be immaterial whether the departmental action is under sub-para III of para 486, or merely under para 490. In either case after proper departmental inquiry the officer concerned can be suitably punished.
22. In the present case, the information received was not registered in the police station. It was admittedly an information received in the first instance by the police. If the oral complaint made by the S.I is treated as the first information report, it will be an information received by the Inspector of Police; and if the proceedings started on the inquiry report of the C.I it will be his report submitted to S.P which can be treated as the information received. In either case the information is so received in the first place by the police, and as laid down in sub-para I, it should have been registered in the police station.
23. The other irregularity committed is that the case was not investigated by the police. The S.P does not appear to have passed any formal order refusing investigation, nor did he communicate to the D.M the reasons for not ordering investigation. Thus, the case had not been investigated in accordance with the provisions of the Code of Criminal Procedure. When the case was not so investigated, no charge sheet or final report was submitted to the magistrate concerned and the Magistrate could not intervene by ordering investigation or by issuing notice to the petitioner to appear in Court to stand his trial for the offence, in the present case, under S. 409 I.P.C There has thus been non-compliance of para 486 of the Police Regulations.
24. The next point for consideration, of course, is whether any manifest injustice was done to the petitioner as a result of the non-compliance of this rule.
25. In the present case, instead of an investigation under the provisions of the Code of Criminal Procedure. the complaint was inquired into by the C.I before the matter was reported to the S.P for his information and necessary action. In this inquiry village chaukidars and also the petitioner were examined. In substance, therefore, the complaint had been investigated, though somewhat summarily than what would have been done if the case was formally investigated under the provisions of the Code. If this was the only irregularity, I would have been inclined not to grant the writ. But in the present case the S.P never forwarded the papers to the D.M or to the Magistrate of the sub-division for his directions. Under sub-para I of para 486, the Magistrate could intervene at two stages: at the initial stage by ordering investigation under Section 159 of the of the Cr PC and at the end by issuing notice to the offender, if considered necessary.
26. It is the second intervention by the Magistrate which is of great importance and could enable the petitioner to defend himself in a regular judicial trial. If on the paper a good case had been made out against the petitioner, the Magistrate would not have accepted the final report and instead he may have directed a notice to be issued to the petitioner to stand his trial of an offence punishable under S. 409 I.P.C and in such a case he would have had an opportunity to prove his innocence before the courts of law.
27. If he was honourably acquitted in the case, no departmental action could have been taken against him. But when the result of the investigation was not reported to the Magistrate, the S.P was at liberty to take such action as he desired. In other words, this irregularity has considerably prejudiced the petitioner and it will not be wrong to hold that manifest injustice has been done to him. A similar view was taken in the aforementioned case of AIR 1958 All 584.
28. The last ground raised is that the Dy. S.P who recorded the entire evidence, was not authorised under para 490 to conduct the departmental inquiry upto the stage of the show cause notice, and for that reason all the proceedings taken by him were illegal and ineffective. This plea can be disregarded on two grounds in so far as writ proceedings are concerned. In para 490 the word used is “Superintendent of Police”, but for purposes of departmental inquiry other subordinate officers can exercise the powers of a S.P Sub-para (f) of para 479 of the Police Regulations is clear on this point. All permanent A.S Ps and Dy. S. Ps who have crossed the first efficiency bar in the time scale of pay applicable to them can, subject to the provisions of para 491(i), exercise all the powers of a S.P as detailed in sub-paras (d) and (e).
29. A.S Ps, and Dy. S. Ps can also be authorised in this behalf by the D.I.G so far as his range is concerned. Consequently, an A.S.P or a Dy. S.P of the first category, or an officer if duly authorized by the D.I.G can take departmental proceedings under para 490, subject to the limitation that he cannot award the punishment of dismissal or removal from service. In the present case, the Dy. S.P took all the steps prior to the issue of the show cause notice. All these actions he could take if he had crossed the first efficiency bar or had been so authorized by the D.I.G
30. A question of jurisdiction must be raised before the authority concerned and if not raised, cannot be permitted to be raised for the first time before the High Court in proceedings under Art. 226. High Courts shall be strict, all the more, when the question of jurisdiction depends upon facts, in the present case whether the Dy. S.P had or had not crossed the first efficiency bar and whether or not he had been duly authorized by the D.I.G to exercise the powers of the S.P under para 490.
31. If the petitioner had raised the objection before the Dy. S.P or before other Police Officers, namely, the S.P, the D.I.G and the I.G, it would have come on record whether Sri Yashpal Singh, Dy. S.P fulfilled the conditions enumerated in sub-para (f) of para 479 of the Police Regulations. On merits, therefore, it cannot be held that the Dy. S.P was not empowered to record evidence in the present departmental inquiry. Brother Mehrotra J. has expressed a contrary view in Darbari Ram Sharma v. State of U.P, 1956 All LJ 447 : (AIR 1956 All 578). On perusal of this case it appears that para 479 was not brought to the notice of the brother Judge and the opinion was expressed merely on the wording of para 490 of the Police Regulations.
32. Even if it be assumed that Sri Yashpal Singh was not authorized to record evidence in the departmental trial, the evidence recorded by him cannot, in my opinion, be rights disregarded unless the petitioner satisfies this Court that he had been prejudiced thereby. No one can, as a matter of right, claim a writ of the nature of Art. 226. High Courts can in suitable cases refuse to issue a writ even when the subordinate authorities had committed some error in the exercise of jurisdiction.
33. What is necessary is that some manifest injustice must be caused to the person. In the present case, there is no complaint that the Dy. S.P did not correcdy record the evidence. The order of dismissal was however challenged on a few grounds which were not accepted by the subordinate authorities, nor has this Court found any substance in them. In these circumstances it can be held that no injustice was dope to the petitioner when the entire evidence was recorded by the Dy. S.P This will be another ground for not placing any undue importance to the fact that the evidence was recorded by the Dy. S.P and not by the S.P himself.
34. To sum up, the provisions of para 486, sub-para I of the Police Regulations had been completely ignored by the Dy. S.P and also by the S.P with the result that they did not exercise the jurisdiction in accordance with, the law. The defect in the exercise of jurisdiction has caused manifest injustice to the petitioner in that he had no opportunity to defend himself in a regular judicial trial. It was not for the S.P alone to lay down whether the case would be sent up before the Courts or not.
35. Even if the Police arrived at the decision that the case was not fit for being submitted to Court for trial, the D.M or the Magistrate concerned, could pass an order to the contrary and issue notice to She petitioner to appear in Court to stand his trial. One cannot forecast or know from before what opinion the Magistrate may have formed. In these circumstances the order of dismissal shall have to be quashed though it shall be open for the respondents to take action afresh against the petitioner in accordance with the law.
36. Hie petition is hereby allowed and the order of dismissal dated 7-8-1955 passed by the S.P Basti, is quashed. The orders passed in appeal and revision whereby this order of the S.P was confirmed shall also stand quashed.
37. Costs on parties.
ID/R.G.D
38. Petition allowed.