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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Bose, J.
Acts
  • Section 243 of the Government of India Act, 1935 the Police Regulations and Section 7 of the Police Act
  • Section 6 of the Police Act. But this section was repealed in 1882.5. Section 35 of the Police Act,
  • Article 313 of the Constitution preserves the Police Act and Regulations.12.
  • Ss. 220 and 342, Penal Code, and Section 29 of the Police Act.
  • Ss. 220 and 342, Penal Code read with Section 50 of the CPC
  • Section 5 of the Police Act (Act V 151 of 1861)
  • Section 7(b) of the Police Act.
  • SECTION 35 POLICE ACT
  • SECTION 7 POLICE ACT
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Bose, J.
Acts
  • Section 243 of the Government of India Act, 1935 the Police Regulations and Section 7 of the Police Act
  • Section 6 of the Police Act. But this section was repealed in 1882.5. Section 35 of the Police Act,
  • Article 313 of the Constitution preserves the Police Act and Regulations.12.
  • Ss. 220 and 342, Penal Code, and Section 29 of the Police Act.
  • Ss. 220 and 342, Penal Code read with Section 50 of the CPC
  • Section 5 of the Police Act (Act V 151 of 1861)
  • Section 7(b) of the Police Act.
  • SECTION 35 POLICE ACT
  • SECTION 7 POLICE ACT
See more information ...
Smart Summary

Summary of the Opinion

Factual and Procedural Background

The petitioner, appointed Sub-Inspector of Police on 2-1-1945 and serving in West Bengal, was posted at Sarupnagar Police Station (Basirhat Sub-Division, 24 Parganas). On or about 13-1-1951 he was entrusted with executing a Magistrate's warrant for the arrest of Anil Kumar Banerji for failure to attend as a witness in a smuggling case. The petitioner deputed Head Constable Khublal Singh, who arrested Anil at the Charghat camp. The petitioner, present at the camp, offered bail; Anil refused and used abusive language and resisted. The petitioner directed the Head Constable to take Anil to the Police Station by force. Anil was brought to the Police Station and later released on bail. After release, Anil allegedly threatened the petitioner.

On or about 20-2-1951 the Superintendent of Police suspended the petitioner pending inquiry. On 27-3-1951 the petitioner received a notice signed by the Sub-Divisional Police Officer framing charges (high-handed conduct, mala fides and tying with a rope, and not releasing Anil on bail in the village). The petitioner protested and asked for trial by a competent court; his request was refused on 11-4-1951. On 30-4-1951 he filed the present petition under Article 226 seeking prohibition of the departmental proceedings and restraint from steps under the Police Regulations, Bengal, 1943. The Court issued a rule nisi.

Legal Issues Presented

  1. Whether the departmental enquiry initiated by the Sub-Divisional Police Officer is illegal for want of jurisdiction under the Police Act — specifically whether Section 35 read with Section 5 of the Police Act confines the power to enquire and determine charges to the Inspector General of Police.
  2. Whether the Superintendent of Police (as appointing authority under Regulation 741 and Section 7 of the Police Act) has power to suspend, dismiss or otherwise punish a subordinate officer and to conduct the departmental proceedings.
  3. Whether the Police Regulations (and Section 7 of the Police Act) are ultra vires the Constitution for want of a corresponding provision to Section 243 of the Government of India Act, 1935 (i.e., constitutional validity of those statutory/regulatory powers).
  4. Whether the framing of charges that may amount to criminal offences (invoking Penal Code sections and Police Act provisions) precludes departmental proceedings and requires trial before a criminal court.
  5. Whether Article 20(2) or Article 21 of the Constitution are offended by holding departmental proceedings in respect of conduct which may also amount to a criminal offence.
  6. Whether the person who prosecutes or initiates departmental proceedings can act as judge (i.e., objection to bias because the proposer is the adjudicator).
  7. Whether delegation of disciplinary powers to the District Superintendent (or other officers) is ultra vires.
  8. Whether the order directing the petitioner to join Police Lines at Alipur and obey certain discipline amounts to unlawful confinement under Section 7(b) of the Police Act.
  9. Whether the act of tying a prisoner with rope was an excess and contrary to Regulation 330 of the Police Regulations (an issue bearing on the charges).

Arguments of the Parties

Petitioner's (Mr. J.C. Moitra) Arguments

  • The departmental enquiry is illegal because it was initiated by the Sub-Divisional Police Officer who lacks power; Section 35 read with Section 5 of the Police Act shows the Inspector General (holding magisterial powers under Section 5) is the only person competent to enquire into and determine charges against police officers above the rank of constable.
  • The Police Regulations and Section 7 of the Police Act are ultra vires the Constitution because there is no corresponding constitutional provision (alleged absence of a corresponding provision to Section 243 of the Government of India Act, 1935); therefore the Regulations/sections should be treated as abrogated to the extent inconsistent with the Constitution.
  • The charges amount to criminal offences (relying on Ss. 220 and 342, Penal Code and Section 29 of the Police Act) and therefore the petitioner should be tried in a criminal court rather than by departmental proceedings; reliance was also placed on Article 20(2) and Article 21 of the Constitution.
  • The prosecutor (or proposer of the charges) cannot be the judge in the cause — the person who initiates the charge should not be the adjudicator because of fundamental fairness and bias.
  • The delegation of disciplinary determination to the District Superintendent is ultra vires (relying on Tun Ya v. The King).
  • The order directing the petitioner to join Police Lines at Alipur is ultra vires and amounts to confinement contrary to Section 7(b) of the Police Act (relying on Ram Gopal v. Emperor).

Respondent's / Government Arguments (as reflected in the opinion)

  • The Superintendent of Police is the appointing authority for a Sub-Inspector (Regulation 741) and has the power to suspend or dismiss such an officer (Section 7 of the Police Act); thus the departmental proceedings and suspension are within statutory authority.
  • Section 35 of the Police Act does not require the Inspector General to conduct every stage of an inquiry personally; participation or decision by the Inspector General at any relevant stage is sufficient for compliance with Section 35.
  • The Police Regulations (Regulations 857, 858, 861) establish a full departmental inquiry procedure that provides safeguards equivalent to Article 311(2) of the Constitution; Article 313 preserves the Police Act and Regulations.
  • Regulations 862 and 863 expressly preserve the right to departmental punishment notwithstanding criminal prosecution or discharge/acquittal by a court — departmental proceedings do not bar criminal liability, nor does a criminal adjudication bar departmental punishment.
  • Article 20(2) and Article 21 were not relevant on the facts as presented in this petition.
  • Allegations that the petitioner tied the prisoner with rope point to conduct in excess of requirements and Reg. 330 suggests such restraint is often unnecessary; but the court should not pre-empt or investigate the facts so as to prejudice the departmental inquiry.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
High Commissioner for India v. I.M. Lal, 75 I.A. 225 Authority cited for the proposition that a proper and reasonable inquiry is one resembling judicial inquiry and satisfying procedural safeguards (as to Article 311(2) standards). The court relied on the principle that the departmental inquiry procedures under Reg. 861 — including framing of definite charges, evidence, oral hearing and cross-examination — conform to the kind of inquiry Lord Thankerton described as proper and reasonable.
Province of Bombay v. Kausaldas S. Advani, 1950 S.C.R. 621 (pp. 724–726) Illustration that statutory/quasi-judicial bodies or authorities sometimes act as both proposer and adjudicator; accepted that such arrangements exist in administrative law. The court invoked this authority to reject the contention that the proposer of departmental charges cannot act as judge, noting many statutory bodies act in that manner and that it is not necessarily invalid.
Tun Ya v. The King, A.I.R. (25) 1938 Rang. 181 Relied upon by petitioner to challenge delegation of disciplinary power to a District Superintendent (argument that such delegation may be ultra vires). The court found the Rangoon decision inapplicable to the facts because Section 7 of the Police Act expressly designates the District Superintendent as one of the officers who may suspend or dismiss subordinate officers; no impermissible delegation was shown.
Ram Gopal v. Emperor, 58 Cal. 1132 Used to interpret Section 7(b) of the Police Act regarding confinement — where directions to live in the Police lines for more than 15 days constituted confinement. The court distinguished Ram Gopal: in the present case the petitioner was not ordered to live in the Police lines and hence there was no comparable confinement; the contention failed.
Suresh Chandra Das Gupta v. Himansu Kumar Roy, 55 C.W.N. 605 Authority on the implications of Article 20(2) of the Constitution (as to double jeopardy or related protections). The court referred to its prior observations in that case to indicate what Article 20(2) means and found Article 20(2) and Article 21 not relevant to the petitioner's arguments on these facts.

Court's Reasoning and Analysis

The Court proceeded through a series of statutory and regulatory constructions and factual observations to decide whether the departmental proceedings should be interdicted at this stage:

  1. Jurisdiction under the Police Act and Regulations: The Court examined Regulation 741 (Superintendent as appointing authority) and Section 7 of the Police Act (power of Inspectors General, Deputy/Assistant Inspectors General and District Superintendents to dismiss, suspend or reduce subordinate officers). On this statutory matrix the Superintendent's actions in suspension and initiation of proceedings were within the statutory framework.
  2. Meaning of Section 35 and Section 5: Although Section 35 provides that charges against police officers above constable "shall be enquired into and determined only by an officer exercising the power of a Magistrate" and Section 5 confers magisterial powers on the Inspector General, the Court interpreted Section 35 as not requiring that the Inspector General personally conduct every stage of an inquiry. The Court held that if the Inspector General participates in the enquiry at any stage and comes to a decision on the charges, there is sufficient compliance with Section 35. Hence initiation or conduct of preliminary stages by subordinate officers did not, per se, render the proceedings void.
  3. Nature and sufficiency of departmental inquiry procedure: The Court analysed Regulations 857, 858 and especially 861, noting that Regulation 861 requires definite charges, particulars of time and place, supply of copies to the accused, and oral enquiry with evidence and cross-examination as required. The Court found that these procedures amount to a "full and thorough enquiry resembling the proceedings of a judicial enquiry," and that they satisfy the procedural protection envisaged by Article 311(2) of the Constitution. The Court relied on High Commissioner for India v. I.M. Lal to support the view that such an enquiry is proper and reasonable.
  4. Constitutional challenge to the Police Act and Regulations: The Court accepted the general principle that statutory or regulatory provisions inconsistent with the Constitution would be void to the extent of inconsistency, but rejected the submission that the entire Police Act or Regulations were ultra vires. The Court observed that where Regulations conform to the safeguards of Article 311(2) and where Article 313 preserves the Police Act and Regulations, departmental proceedings under those Regulations cannot be held void on the asserted basis.
  5. Concurrent criminal and departmental liability: The Court addressed whether the existence of charges that may amount to criminal offences prevents departmental proceedings. It relied on Regulations 862 and 863, which explicitly preserve departmental punishment irrespective of criminal prosecution or acquittal. Accordingly, mere overlap with criminal offences does not preclude departmental action.
  6. Relevance of Articles 20(2) and 21: The Court considered the petitioner's reliance on Articles 20(2) and 21 and found them not relevant on the facts presented; the Court referenced its prior exposition on Article 20(2) in Suresh Chandra Das Gupta v. Himansu Kumar Roy.
  7. Alleged bias (prosecutor acting as judge): The Court acknowledged the desirability that an impartial judge decide charges but held that many statutory/quasi-judicial bodies permit the proposer to be the adjudicator; relying on Province of Bombay v. Kausaldas S. Advani, the Court found this objection insufficient to vitiate the departmental proceedings.
  8. Delegation argument and confinement argument: The Court rejected the delegation objection (Tun Ya) because Section 7 expressly designates District Superintendents as competent to take disciplinary action; the confinement argument based on Ram Gopal v. Emperor failed because in the present case the petitioner was not ordered to live in Police lines (so no comparable confinement).
  9. Allegation of tying with rope and allegation about Memorial: The Court noted Regulation 330's view that the use of ropes or handcuffs is often unnecessary and tying is unusual; however the Court declined to investigate or express any view on whether the petitioner actually acted in excess, because doing so in the writ proceedings might prejudice the departmental inquiry. The Court also rejected a suggestion that the Memorial was prepared for the litigation, finding it pre-dated the rule and contained inaccuracies inconsistent with fabrication by the petitioner.
  10. Preliminary stage of proceedings: Because the departmental proceedings were in preliminary stages and the Inspector General had participated in drawing up proceedings (or at least had ordered proceedings), the Court held that it could not declare the proceedings illegal or void at this point.

Holding and Implications

Holding:

Rule discharged.

Implications:

  • The petition seeking prohibition of the departmental proceedings was dismissed and the rule nisi was discharged; the departmental proceedings may therefore continue.
  • The Court found that the statutory and regulatory framework (Police Act sections and Police Regulations) provided adequate procedural safeguards comparable to Article 311(2), and that those provisions are not wholly ultra vires the Constitution on the facts before the Court; Article 313 preserves the Police Act and Regulations.
  • The existence of possible criminal charges does not preclude departmental proceedings (Regulations 862 and 863); departmental punishment and criminal prosecution can co-exist.
  • The Court made no order as to costs.
  • No broader constitutional or precedent-changing holding was announced beyond the application of the Police Act, the Police Regulations and the authorities relied upon to the facts of this case; the Court expressly declined to investigate factual allegations which could prejudice the ongoing departmental inquiry.

This summary is limited to and strictly derived from the statements and reasoning contained in the provided opinion. No additional facts or inferences beyond the opinion have been introduced.

Show full summary ...

    Tarapada Banerjee v. State Of West Bengal Opposite Party.

    1. This is an application under Article 226, of the Constitution for a writ in the nature of prohibition prohibiting the respondent from proceeding with certain departmental proceedings taken against the petitioner and from taking any steps against the petitioner under the Police regulations, Bengal, 1943. The petitioner's case is that he was appointed as Sub-Inspector of Police on 2-1-1945 and has continued in such service under the State of West Bengal. The petitioner was posted as such Sub-Inspector at the Police Station of Sarupnagar in Basirhat Sub-Division in the District of 24 Parganas on the border of East Pakistan. On or about 13-1-1951, the petitioner was entrusted with the execution of warrant of arrest issued against one Anil Kumar Banerji of Charghat within the said Sarupnagar Police Station. The said warrant of arrest was issued by the Magistrate of Basirhat Sub Division as the said Anil Kumar Banerji failed to attend as a witness in his Court in one of the smuggling cases which were pending before the Magistrate. The petitioner deputed a Head Constable to execute the said warrant of arrest and the said Head Constable Khublal Singh brought the said Anil Kumar Banerji under arrest to the Charghat camp. When the petitioner visited the said Charghat camp on his way to the Police Station he was informed by Khublal that the said Anil Kumar Banerji attempted to avoid the execution of the warrant. The petitioner offered to release Anil on bail on the spot. Anil, however, refused to offer bail and refused to proceed to the Police Station unless he was forced to do so and he also used vile language against the petitioner and against the authority who issued the said warrant of arrest. The petitioner thereupon directed the Head Constable to take Anil to the Police Station by force. Anil was thereafter brought to the Police Station but was subsequently released on bail. It is alleged that after such release Anil threatened the petitioner with personal violence and loss of service and he represented to the petitioner that he had considerable influence with persons at the helm of affairs on or about 20-2-1951 the petitioner received an order from the Superintendent of Police, 24 Parganas by which he was suspended from service pending an enquiry into his conduct. On or about 27-3-1951 the petitioner received a notice under the signature of one Mr. S.K Mitra the Sub-Divisional Police Officer, Basirhat, containing certain charges framed against the petitioner and calling upon him to show cause why he should not be dismissed, discharged, reduced or otherwise severely dealt with. The charges against the petitioner were: (1) That the petitioner acted in a most high-handed manner in the matter of execution of the warrant of arrest and in excess of requirements. (2) That the petitioner betrayed mala fide and displayed tactlessness in ordering Anil Kumar Banerji to be tied with a rope. (3) That the petitioner acted in bad faith in not releasing Anil on bail in the village although the petitioner was personally present there and thus committed another act of excess without sufficient cause.

    2. On or about 30-3-1951 the petitioner protested against any departmental enquiry being held and offered to be tried for the alleged charges by a competent Court of Law. On 11-4-1951, the petitioner was, however, informed that there was no bar to the departmental proceedings being held and his request for enquiry by the Court was rejected. On 30-4-1951, the present petition was moved before this Court and rule nisi was issued.

    3. It is contended by Mr. J.C Moitra, the learned counsel for the petitioner, that the departmental enquiry started against the petitioner is illegal inasmuch as it has been initiated by the Sub-Divisional Police Officer who has no power to do so. Mr. Moitra relies on Section 5 of the Police Act (Act V 151 of 1861) which is as follows:

    “The Inspector General of Police shall have the full powers of a Magistrate throughout the general police district; but shall exercise those powers subject to such limitations as may from time to time be imposed by the Provincial Government.”

    4. It may be noted that such Magisterial powers had also been conferred on other Police officers like the Deputy Inspector General, Assistant Inspector General and others under Section 6 of the Police Act. But this section was repealed in 1882.

    5. Section 35 of the Police Act, runs as follows:

    “Any charge against a Police officer above the rank of a Constable under this Act shall be enquired into and determined only by an officer exercising the power of a Magistrate.”

    6. Mr. Moitra submits that S. 35 read with Section 5 of the Act makes it quite clear that the Inspector General of Police is the only person who has jurisdiction to enquire into the charges that have been levelled against the petitioner in connection with the execution of the warrant entrusted to him and as this has not been done the entire departmental proceedings are illegal and without jurisdiction.

    7. It appears, however, from Reg. 741 of the Police Regulations 1943 that the Superintendent of Police of the district is the appointing authority of a Sub-Inspector of Police and so the Superintendent of Police has the power to dismiss or suspend the petitioner if the petitioner merits such a punishment. Section 7 of the Police Act provides:

    “Subject to such rules as the Provincial Government may from time to time make under this Act the Inspector General, Deputy Inspectors General, Assistant Inspectors General and District Superintendents of Police at any time dismiss, suspend or reduce any Police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty or unfit for the same.”

    8. Regulation 857 divides punishment into two classes—major and minor and major punishments include dismissal, removal from service, reduction, deprivation of approved service increment, removal from any office of distinction or special emolument and award of Black Marks. Under R. 858(a)(2) a Superintendent of Police may award to any police officer subordinate to him below the rank of an Inspector any punishment which may be awarded to such officer by the Inspector General or Deputy Inspector General under this Regulation.

    9. Under Regulation 861 no major punishment shall be awarded unless a definite charge is framed before evidence is recorded. The alleged offence has to be clearly specified with particulars of time and place and the person charged has to be supplied with a copy of the charge and an oral enquiry has to be held if the person charged so requires it and at such enquiry oral evidence shall be heard and witnesses may be cross-examined and various other matters are provided for. In fact the enquiry held is a full and thorough enquiry resembling the proceedings of a judicial enquiry held in a Court of law. It is only after the requirements of this rule No. 861 are complied with and the person charged is afforded full facilities for presenting his case and for defending himself against the charges that the officer conducting the enquiry comes to a finding on each of the charges after duly considering the evidence recorded in relation to the enquiry and then he makes an order or recommends an order to the authority empowered to pass an order. After this stage of enquiry is concluded, then a subsequent stage of the enquiry begins and the authority empowered to pass the order of punishment grants a personal hearing to the person charged and then passes the final orders. It is thus clear that the opportunity which is offered to the person charged is what is contemplated by the Constitution under Article 311(2) thereof and it is also this kind of enquiry which was laid down to be the proper and reasonable enquiry by Lord Thankerton in the case of High Commissioner for India v. I.M Lal reported in 75 I.A 225 at p. 242.

    10. The Sub-divisional Police Officer has affirmed the counter, affidavit on behalf of the respondent. It appears from the affidavit and the annexures thereof that at the instance of the Inspector General of Police who ordered drawing up of proceedings against the petitioner that the Superintendent of Police made certain preliminary investigation and submitted his report to the Inspector-General. Thereafter charges have been drawn up and served on the petitioner under the signature of the Sub-divisional Police Officer. Section 35 of the Police Act, does not require that every stage of the enquiry should be conducted by the Inspector-General himself. If at any stage of the enquiry the Inspector. General of Police participates in the enquiry as to the charges and comes to a decision as to the charges there is sufficient compliance with S. 35. Until the proceedings come to a close it cannot be stated whether S. 35 has not been substantially complied with or not. The departmental proceedings against the petitioner are in their preliminary stage and so cannot be declared to be illegal or void. Moreover I am inclined to think that S. 35 was intended to apply to a judicial enquiry into the charges and not to enquiries in the nature of departmental proceedings.

    11. It was contended by Mr. Moitra that as there is no provision in the Constitution corresponding to Section 243 of the Government of India Act, 1935 the Police Regulations and Section 7 of the Police Act are ultra vires the Constitution or should be deemed to have been abrogated. It is true that to the extent the Police Regulations and the sections of the Police Act are inconsistent with the provisions of the Constitution such inconsistent provisions will be void but the whole of the Regulations or the Police Act cannot be said to be ultra vires or to have been abrogated. If the appointing authority is the authority which conducts the departmental proceedings of the nature prescribed by the Regulations, which as I have pointed out already, conform to the nature of enquiry or proceedings contemplated by Article 311(2) of the Constitution and as a result of the proceedings or enquiry decides to inflict the punishment of dismissal upon the person against whom the proceedings are taken, I fail to see how the proceedings can be said to be illegal or void. Article 313 of the Constitution preserves the Police Act and Regulations.

    12. It was next contended by Mr. Moitra that as the charges against the petitioner amount to criminal offence he should have been tried before a Court of law and the departmental proceedings are without jurisdiction. Mr. Moitra submits that the charges against the petitioner fall within Ss. 220 and 342, Penal Code, and Section 29 of the Police Act. A perusal of the charges as set out in Para. 15 of the petition makes it clear that Ss. 220 and 342, Penal Code read with Section 50 of the CPC may cover the charges framed against the petitioner if a liberal construction is put upon the sections. But merely because the charges amount to criminal offence cannot have the effect of preventing departmental proceedings against the petitioner. Regulations 862 and 863 completely negative the contention of Mr. Moitra. Regulation 862 provides:

    “that the fact that any departmental punishment has been awarded to a Police Officer shall not affect his liability to prosecution and punishment under any law for the time being in force.”

    13. Regulation 863 is as follows:

    “An order of discharge or acquittal of a Police Officer by a Court shall not be a bar to the award of departmental punishment to that officer in respect of the same cause or matter.”

    14. Mr. Moitra relies in this connection on Article 20(2) and Article 21 of the Constitution. I, however, fail to see what relevancy these Articles have to the facts of the present case.

    15. As to what are the true implications of Article 20(2) of the Constitution have been pointed out by me in the case of Suresh Chandra Das Gupta v. Himansu Kumar Roy, 55 C.W.N 605.

    16. Mr. Moitra has also attacked the validity of the departmental proceedings on the ground that the Prosecutor himself cannot be the judge in the cause. The person who is the complainant cannot himself enquire into the charges and arrive at a decision on such charges. The fundamentals of fair play require that a stranger should act as judge in the matter. Although that is no doubt a desirable thing, it is clear that the departmental proceedings cannot be declared as illegal on that ground. Instances are not rare where the authority which is the proposer is the judge in its own cause. Many statutory bodies having a duty to act quasi-judicially act as Judges in the matters in which they are themselves interested as parties. (See the cases cited in Province of Bombay v. Kausaldas S. Advani, 1950 S.C.R 621 at pp. 724-726.) Moreover it is in the fitness of things that the person who made the appointment of a particular employee should himself decide whether the employee is fit to continue in employment or not or whether he deserves any punishment or not. (See also Section 7 of the Police Act— ‘Whom they shall think etc.). I do not think that the contention of Mr. Moitra can be accepted as sound.

    17. Mr. Moitra contended relying on the case of Tun Ya v. The King, A.I.R (25) 1938 Rang. 181 that the delegation of the power of determination of the question whether a Police Officer merits any punishment or not to the District Superintendent of Police who is at present conducting the enquiry is ultra vires. I do not see what application the Rangoon case has to the facts of this case. Section 7 of the Police Act, designates the District Superintendent of Police as one of the officers who can suspend or dismiss officers of the subordinate ranks. No question of any delegation arises on the facts of this case. This contention of Mr. Moitra must fail.

    18. Mr. Moitra has drawn my attention to an order of the District Superintendent of Police dated 23-2-1951 which directs the petitioner to join the Police Lines at Alipur and to remain under the control of R.I and obey all line discipline and Hajira as per P.R.B Rules and contends that the order is ultra vires as it infringes Section 7(b) of the Police Act. Mr. Moitra relies on Ram Gopal v. Emperor, 58 Cal. 1132. In the case relied on by Mr. Moitra the Police Officer concerned was ordered to live in the Police lines until further orders and was also directed not to leave the lines without permission and this was held as confinement for more than 15 days within the meaning of Section 7(b) of the Police Act, and as such ultra vires. In the case before me the petitioner has not been asked to live in the Police lines and so there is no question of any confinement. This point of Mr. Moitra must also fail.

    19. The learned Advocate General has drawn my attention to Para. 330 of the Regulations (p. 144 of the Manual) and submits that tying a prisoner with rope is an unusual thing and it is clear the petitioner acted in excess of the requirements. Reg. 330 is as follows:

    “(a) Prisoners arrested by the Police for transmission to a Magistrate or to the scene of enquiry and also under trial prisoners, shall not be subjected to more restraint than is necessary to prevent their escape. The use of handcuffs or ropes is often an unnecessary indignity.”

    20. I do not propose to enter into an investigation of the question whether the petitioner had in fact acted in excess of requirements or not as any expression of opinion by this Court may prejudice the departmental enquiry.

    21. It was also suggested by the Advocate-General that the Memorial annexed to the affidavit of Gour Chandra Ghosh Biswas has been prepared for the purpose of this case. This suggestion of the Advocate-General cannot be accepted. The Memorial is dated 31-3-1951 and it contains some inaccurate statements. If the petitioner had any hand in the preparation of the Memorial the mistakes would not have been there. The Memorial was drawn and sent to the Prime Minister about a month before the Rule was issued. In my view this petition must fail. The Rule is discharged. I make no order as to costs.

    K.S

    22. Rule discharged.

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    Comments

    Tarapada Banerjee v. State Of West Bengal Opposite Party.
    (Jul 31, 1951)