Ram Labhaya, J.:— This order shall cover civil Rule No. 168 of 1954 and Criminal Revision No. 116 of 1954. They arise out of the same transaction. The Petitioner in both cases is Kanak Chandra Bairagi. He joined Assam Police force as a constable in the year 1940. He was promoted to the post of an Assistant Sub-Inspector and was confirmed in that post with effect from 21-1-1950. In 1951, he was posted as an Assistant Sub-Inspector in the Amguri Police Station in the District of Sibsagar.
2. While he was serving there, one Mohan Chandra Ojha who was wanted in a case under S. 366, I.P.C, surrendered himself at the Police Station. He came with the Gaobura of his village and some other persons on 16-8-1951. The petitioner was not in the Police Station at the time. Mohan Chandra was put in the lock up by Bhadreswar Saikia, the constable. The petitioner arrived soon after. He declined to enlarge the accused on bail on the request of his companions who then left. Shri P. Chetia, Deputy Minister, happened to pass by the Police Station that day. He stopped his car near the Police Station and heard some one crying. He went inside. Mohan Chandra Ojha complained against the petitioner and the constables. He was then in the lock up. His complaint was that he had been beaten. The Deputy Minister sent for the doctor who examined him. He then reported the matter to the Sub-Divisional Officer.
3. Mohan Chandra Ojha also lodged a complaint against the petitioner and the three constables for voluntarily causing hurt to him and also under S. 161, I.P.C They were proceeded against only under S. 323, I.P.C They had a summary trial as a result of which they were found guilty of causing hurt to the complainant Mohan Chandra. The petitioner was sentenced to pay a fine of Rs. 50/- and in default to rigorous imprisonment for two months. He challenged the propriety of his conviction by a revision petition in the Court of the Sessions Judge but subsequently did not press for a decision on the petition. It was dismissed on his withdrawal.
4. After his conviction, departmental proceeding was started against him. The proceeding was originally dropped by the Superintendent of Police. He later reviewed his own order and on 16-12-1953 punished him by censuring him for causing hurt to Mohan Chandra Ojha. Later on, the petitioner was dismissed from service by the order of the Government which was conveyed to the Inspector General of Police by the letter of the Chief Secretary dated 26-6-1954.
5. After this order of dismissal, the petitioner has again invoked the revisional jurisdiction of this Court and has prayed that his conviction be quashed. He has also applied under Arts. 226 and 227 of the Constitution for obtaining a reversal of the order of dismissal. It is both convenient and desirable to deal with the petition for revision first, for, if the conviction is quashed, the basis for departmental action would completely disappear.
6. So far as the petition of revision is Concerned, the main contention raised by the learned counsel for the petitioner is that this was pre-eminently a case in which the trial Magistrate should have exercised his discretion in favour of the petitioner by trying him on the regular side rather than under S. 260, Cr. P.C, in a summary manner. He points out that as a result of the conviction, the petitioner could be dealt with depart-mentally and that departmental proceeding could result in his dismissal as has actually happened.
7. Therefore, the consequences of a conviction even under S. 323, I.P.C could be far more serious in his case than in a case under S. 323, I.P.C, in which the accused does not happen to be a Government servant and where such a result cannot follow. He has cited some authorities in support of his contention. He has argued that the learned Magistrate was influenced in exercise of his discretion by some order or direction of the District Magistrate.
8. We have carefully considered the argument addressed on the point and we have come to the conclusion that this contention should not prevail.
9. There is nothing on the record to show that the Deputy Commissioner directed or suggested to the learned Magistrate to try the accused summarily. The order that was passed by the learned Magistrate on the application of the accused for a regular trial is not very happily worded. Its language creates an erroneous impression. What the learned Magistrate meant to state was that as was the view of the District Magistrate, it was not necessary in the circumstances of the case to try the accused on the regular side.
10. Under cl. (2) of S. 260, Criminal P.C, the Magistrate has the discretion if he is satisfied that the offence is one which is of a character which renders it undesirable that it should be tried summarily to recall any witnesses who may have been examined and proceed to re-hear the case in manner provided by the Code. This provision would apply only when the Magistrate during the course of the trial discovers that it would be more appropriate for the Court to try the accused on the regular side.
11. Here, the application was made before the trial commenced. The Court was not bound to try the accused summarily. He therefore considered the application. He could in exercise of his discretion come to the same result as any other Magistrate had done previously. His agreement with the District Magistrate would not show that there was no independent exercise of his discretion.
12. The order thus is not vitiated on the ground that it has been influenced by any order or direction from any superior authority.
13. On the merits also, we do not think that there has been any improper exercise of discretion. In any case, no prejudice appears to have been caused in view of the fact that even though he has characterised the trial as a summary one, his enquiry is fairly elaborate.
14. The evidence that has been produced in the case is impressive. The Deputy Minister himself appeared as witness. There is the doctor who examined the petitioner immediately after the occurrence in the presence of the Deputy Minister of the Government. Injuries were even found on his person. There was an achymosis and a swelling. The body of Mohan Chandra was tender at some four points. He came to the Thana voluntarily only a short while before the occurrence.
15. He could at that time have no motive to prefer a false charge against the Assistant Sub-Inspector and the constables. It was his cries from the lock up which attracted the Deputy Minister inside. The circumstances were such that it was not possible for the Magistrate to arrive at any other conclusion than the one that he came to. Therefore, the summary trial has not resulted in any prejudice or failure of justice.
16. On the question whether a Government servant when charged with an offence which is summarily triable, may not be tried summarily, I do not think it would be desirable to lay down any hard and fast rule which may apply generally or to all cases. The law does leave the discretion with the Magistrate concerned. It is not expedient that this discretion should be fettered in any way. It should be exercised by him on the facts and circumstances of each case.
17. The fact that an accused who happened to be a Government servant is liable to be dismissed or punished departmentally is certainly a relevant consideration. But no binding rule may be laid down. Each case has its own distinctive features and it should be for the trial Magistrate to determine for himself which is the desirable course in the circumstances of the case before him.
18. We do not think there has been any illegality or irregularity in the trial which may be said to have prejudiced the accused nor is there anything in the facts of the case which would justify interference with the order of the learned Magistrate.
19. The circumstance that the accused himself did not press his revision petition in the Court of the Session is also very material in the connection. He was prepared to accept the verdict of the learned Magistrate at that stage. As he was dismissed later on by the order of the Government, he has thought or challenging the propriety or the validity of the order of conviction against him.
20. The evidence in the case is not merely direct. The circumstances of the case are eloquent and fully support the allegations made against the petitioner. This revision petition therefore must fail.
21. The departmental proceeding against the petitioner was drawn up after the order of conviction against the petitioner. No drawing up of the proceeding or recording of evidence was necessary as the order of conviction itself could form the basis of punishment under the rules. In any case, the proceeding was drawn up and as a result of this proceeding, the petitioner was censured. This censure is a major punishment under the rules.
22. The petitioner did not challenge the validity of this order either. Later, the Government not feeling satisfied with the order of the Superintendent of Police ordered his dismissal. This order of the Government was conveyed by the Chief Secretary to the Inspector General of Police who conveyed it to the Superintendent of Police. The petitioner was removed from services in consequence.
23. Mr. Sen, the learned counsel for the petitioner has argued that the petitioner could not be dismissed from service by the Government in an independent proceeding. The Government also had no power to enhance his sentence in the same proceeding and therefore, the order of dismissal whether it was passed by the Government or lay the Chief Secretary has no justification or support from the statute or the rules. It is without jurisdiction and therefore should not stand. Even this contention in our opinion should not prevail.
24. It was not a case of any second or independent proceeding by the Government. The Governor under R. 66 of the Assam Police Manual Part III has the power to revise any order passed by any authority subordinate to him. A revision of the order of the Superintendent of Police would be a continuation of the same proceeding. There is considerable force in the contention of Mr. Sen that a second departmental proceeding may not be drawn up against any Government officer.
25. We are however not concerned with that contention in this case as the order passed by the Government was in the exercise of the powers conferred on the Governor by the rule referred to above. The power is very wide. It can be exercised by the Governor even on his own motion and it may be exercised for any purpose. Enhancement of sentence is not outside the purview of this very wide revisional jurisdiction. The rules do not also provide for any notice at this stage.
26. The Governor therefore according to the rules was competent to enhance the sentence and to dismiss the petitioner on the basis of the conviction from a competent Court of law. His competency does not appear to us to be a matter of any serious doubt.
27. It has been next pointed out that the Chief Secretary in his letter informed the Inspector General of Police that the Government had decided to dismiss the petitioner. Mr. Sen urges that the power under the rules does not vest in the Government. It is the Governor who is to exercise this power and he contended further that the power has to be exercised by Governor in his discretion.
28. Therefore, the Government could not come info the picture. His contention is that there is nothing on the record to show that the Governor ever dealt with the case or exercised any discretion in the matter.
29. Section 3 clause (60)(b), General Clauses Act, provides that after the commencement of the Constitution, State Government shall mean in a Part A State, the Governor, in a Part B State, the Rajpramukh and in a Part C State, the Central Government. Clause (60) defines the expression State Government. Its effect is that in respect of things done or to be done, the State Government shall mean the Governor.
30. Mr. Goswami points out that the two are synonymous and if the Governor has the power to do a certain thing, the State Government can do it. He also draws our attention to the provision contained in Art. 163 of the Constitution. Clause (1) of Art. 163 provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
31. He argues that the Governor is to be aided and advised by the Council of Ministers in all matters except those in which under the Constitution he had to exercise his own discretion. This is not a matter in which he was required by the Constitution to exercise his discretion. The Governor in the relevant rule must, therefore, be interpreted as meaning the Governor acting with the aid and advice of his Ministers.
32. Governor when so acting meant the State Government which could dismiss the petitioner even without placing the matter before the Governor. If the State Government come to that decision, all that was necessary was that the decision should have been expressed to have been taken in the name of the Governor under Art. 166(1) of the Constitution. He has relied on — ‘Joseph John v. State of Travancore-Cochin, AIR 1953 Trav-C 130 (A) and — ‘Biman Chandra v. Governor, West Bengal’, AIR 1952 Cal 799 (B). It was held in the former case AIR 1953 Trav-C 130 (A) that “the exercise of the Page: 1477executive power under Art. 154 directly by the Rajpramukh is as regards the function or functions which he can exercise in his discretion under Art. 163(1) whichever it or they may be.” The contention does receive support from this decision.
33. It is clear from Art. 166(1) that all executive action of the Government of a State shall be exercised to be taken in the name of the Governor. So far as the Governor is concerned, he can exercise his discretion only in matters which are left to his discretion by some express provision in the Constitution. In all other matters, the decision is to be arrived at with the aid and advice of the ministers.
34. There can be no manner of doubt that the Chief Secretary in this case conveyed the decision of the Government to the Inspector General of Police. The only omission or irregularity on his part was that he did not comply with the requirement of Art. 166(1). The omission is not fatal to the validity of the order and therefore the order of dismissal is not without jurisdiction or is it contrary to any provision of the law. No case for any writ has been made out nor is there any jurisdiction for interference with the order under Art. 227 of the Constitution. The petitions therefore fail ani they are dismissed. The Rules are discharged.
Sarjoo Prosad, C.J:— I agree.
V.S.B
35. Petitions dismissed.