Hari Shyam, A.S.I. vs The State of Punjab and Others

Amarjeet Chaudhary, J.—The Petitioner, who is an A.S I. in Punjab Police, has filed the present writ petition for quashing Departmental Enquiry being conducted against him in pursuance of the summary of allegations, a copy of which is Annexure P-2 to the writ petition. The primary challenge to the Departmental proceedings was on the ground that as per Rule 16 38 of the Punjab Police Rules (hereinafter referred to be as the ''Rules''), the permission of the District Magistrate was required to be obtained, which admittedly in the case in hand, the respondents have not obtained. As such, the enquiry proceedings are liable to be quashed.

In brief, the facts of the case are that the petitioner while posted at Police Recruitment Training Centre, Jahar Khela, District Hoshiarpur was directed to attend the office of Respondent No. 5 on 19-4-1989 in connection with the Departmental Enquiry. The petitioner presented himself in the office of respondent No. 5 on 26-5-1989 where a summay of allegations was given to him under Rule 16.24(1) of the Rules. The charges against the petitioner were that on 9-2-1989 he along with other officials was deputed to escort two prisoners for producing them in the Court of Judicial Magistrate 1st Class, Gidderbaha. After the hearing of the case, petitioner consumed liquor alongwith the prisoners as a result of which the officers of Zila Jail, Faridkot refused to accept the prisoners. Thereafter, the petitioner took the prisoners to his official quarter to enable them to spend the night with him The Line Officer, Faridkot took the petitioner and two prisoners from the petitioner''s quarter to the Medical Officer, Faridkot for getting them medically examined. Since on that day the Doctors in the Police Lines ware on strike, the medical examination was not possible. Subsequently, the Line Officer, Faridkot, SI Des Raj took the the under trials to Police Station Sadar, Faridkot and put them in lock up. Then he lodged a complaint against the petitioner in the Roznamcha at Police Station Sadar, Faridkot and Police Lines. Later on, he sent a report of the entire incident including a copy of the complaint to respondent No. 2, who ordered a regular departmental enquiry against the petitioner u/s 1624 of the Rules.

It was urged that though the petitioner was ready to answer the charges levelled against him in a proceeding under a competent forum, but the action of the respondent No. 2 in initiating this enquiry is contrary to the provisions of Rule 16.38 of the Rules. Therefore, the petitions seeks the quashing of the entire proceedings on this ground. Mr. P S. Patwalia, Advocate, the learned Counsel for the petitioner contends that whenever any complaint is received by the Senior Superintendent of Police which indicates the commission by a -police officer of a criminal offence in connection with his official relation with the party, Senior Superintendent of Police is required to give immediate information to the District Magistrate who will then decide whether the investigation of the complaint shall be conducted by a Police Officer or made over to a selected Magistrate having the first Class powers.

On the other hand, the case of the respondents is that no permission, as required under Rule 16.38 of the Rules, was required to be obtained under law.

I have considered the submissions made at the bar and perused the paper-book. For facility of reference, Rule 16 38(1) of the Rules reads as under.

"16.38. Criminal Offences by Police Officers and strictures by Court-procedure regarding :-

(1) Immediate information shall be given to the District Magistrate of any complaint received by the Superintendent of Police which indicates the commission of a police officer of a criminal offence in connection with his official relations with the public The District Magistrate will decide whether the investigation of the complaint shall be conducted by a Police Officer, or made over to a selected Magistrate having 1st Class powers"

The perusal of the above rule clearly provides that whenever any complaint is received, the same has to be handed over to the District Magistrate who will decide whether the investigation of the complaint has to be conducted by a Police Officer or made over to a selected Magistrate. It is the admitted case of the respondents that the complaint made to respondent No. 2 was not handed over to the District Magistrate and the procedure as envisaged in Rules 16.38(1) of the rules was not complied with. Earlier, the Delhi High Court in Daulat Ram v. Union of India 1971 (2) S.I. R. 502 held that the office note was deemed to be complaint. While dealing with the point, the learned Judge observed as under:-

"The word ''complaint'' is no defined in the Rules It must therefore be understood in its general sense to mean any accusation, allegation or information of the commission of an offence or misconduct against the police officer concerned Such an accusation, allegation or information may be in writing or it may be oral. It may be couched in the form of a petition by a member of the public or a note by a departmental officer or a confidential report by a superior police officer or information given by any person whether official or non official."

It is not in dispute that a complaint against the petitioner was lodged in Roznamcha at Police Station Sadar, Faridkot and Police Lines. In view of law laid down above, the form of a complaint cannot be disputed Admittedly, the respondents had lodged a complaint against the petitioner for initiating departmental enquiry for which sanction was required to be obtained from the District Magistrate as required. under Rule 16 38(1) of the Rules The Supreme Court in State of Punjab v. Raj Kumar AIR 1988 S.C. 508 held that Rule 16 38 of the Punjab Police Rules does not apply to criminal prosecutions for offences under Penal Code and other Acts. This rule is mandatory for the investigation of cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder.

In view of the discussions made above and well settled proposition of law laid down by the Hon''ble Supreme Court, this Writ petition is allowed and, the departmental proceedings initiated against the petitioner as par Annexure P-2 are quashed. However, it will be open to the respondents to proceed against the petitioner in accordance with the provisions as contained in Rule 16.38(1) of the Rules. No orders as to costs.