Mushtaq Ahmed vs State of Karnataka and Others

The following question of law arises for consideration in this writ petition:

Whether a Superintendent of Police or a Deputy Superintendent of Police who isappointed on deputation to the State Vigilance Commission, as Deputy Commissioner Investigation or as Assistant Commissioner Investigation whose office is declared to be a Police Station by the State Government, under S. 2(s) Crl. P.C. (''the Code'' for short) has no lawful authority to undertake investigation of an offence under S. 5 of the Prevention of Corruption Act (''the Act'' for short) against a civil servant, of this State, under the provisions of the Code read with S. 5-A of the Act, and consequently the charge-sheet filed by them before the Special Judge functioning under the Act, is without authority of law, and therefore the proceedings before the Special Judge pursuant to such charge-sheet are illegal and invalid.

The facts of the case, in brief, are: The petitioner is an Executive Engineer in the Public Works Department of the State Government. During the year 1971, he was working as the Executive Engineer, Minor Irrigation (Investigation) Dvn., Chickmagalur. In view of certain allegations of corruption against him, he was placed under suspension. Sri Kalyana Rao, who was the Assistant Commissioner ofInvestigation (General) and Deputy Superintendent of Police (''A.C., Dy. S.P.'' for short), State Vigilance Commission and M.H. Deshpande. Deputy Commissioner of Investigation (General) and Superintendent of Police. (D.C., S.P. for short.) State Vigilance Commission, conducted investigation in respect of anoffence under S. 5 of the Act alleged against the petitioner, and have filed a charge-sheet against the petitioner before the District and Sessions Judge, Chickmagalur and the Special Judge under the Act after obtaining the sanction of the State Government under S. 6 of the Act. The petitioner is questioning the legal authority of the officers of the Commissionto investigate under the Code and has sought for quashing the proceedings before the Special Judge.

The writ petition has come up for preliminary hearing after notice to the respondents. Sri H.K. Vasudeva Reddy learned counsel for the petitioner and Sri S.V. Narasimhan, learned High Court Government Pleader, for the respondents, have addressed arguments on the merits of the case. Sri G.S. Ullal and. Sri H.R. Venkataramanaiah learned advocates, intervened with permission and addressed arguments in support of the writ petitioner.

The learned counsel for the petitioner contended that the proceedings before the Special Judge were liable to be quashed, as the investigation was made and charge-sheet was filed by officers who had no lawful authority to do so. In support of his contention, he urged the following points:

(1) A Superintendent of Police or a Deputy Superitendent of Police, on his appointment on deputation as Deputy Commissioner of Investigation or Assistant Commissioner of Investigation on the establishment of the Vigilance Commission, ceases to be a Police Officer for the purpose of the Karnataka Police Act and the Code and, therefore, he had no power to investigate.

(2) As only a single Police force, funtioning under the control of the Inspector General of Police is provided for under the Karnataka Police Act notwithstanding the fact that an officer deputed to Vigilance Commission was a Police officer, he cannot legitimately exercise the powers of a Police Officer under the Code so long he remains under the administrative control of the Vigilance Commissioner and, therefore, he had no authority to investigate.

(3) An officer on the establishment of the Vigilance Commission being subordinate to the Vigilance Commissioner and has to function under his directions as clearly indicated by the Rules, he cannot exercise the powers of investigation under the provisions of the Code.

Learned High Court Government Pleader, per contra, submitted as follows: The office of the S.P., and the Dy. S.P., who were appointed on deputation as Deputy Commissioner and Assistant Commissioner, respectively, on the establishment of the Vigilance Commission had been declared by the Government to be a ''Police Station'' under S. 2(s) of the Code. Thereby he also became an officer in charge of a ''Police Station'' as defined in S. 2 (o) Code. Further such an officer could exercise the powers of investigation under the various provisions in Chap. XII of the Code (S. 154 to S. 175). Further in view of Section 36 of the Code, the Superintendent of Police and the Deputy Superintendent of Police being Police Officers superior in rank to an officer in charge of a Police Station, they could exercise the powers of investigation under the Code within the area of their Police Station. In support of his submission, he relied on the judgement of the Supreme Court in State of Bihar v. J.A.C. Saldana, AIR 1980 SC 326.

It is true that the Dy. S.P., and the S.P., who investigated into the allegations against the petitioner and submitted the charge-sheet, before the Special Judge, had been appointed on deputation, as Assistant Commissioner of investigation and Deputy Commissioner of Investigation, respectively, on the establishment of the Vigilance Commission. The question is, whether by such appointment, they ceased to be Police officers? In order to find out the answer to the question, it is necessary to refer to the notification dt. 2nd June 1981 issued by the State Government under S. 2(s) of the Code. A copy of the same has been produced in the connected writ petition No. 25970/82. The relevant portion of the notification reads-

"In exercise of the powers conferred by clause (s) of S. 2 of the Code of Crl. Procedure 1973 (Cent. Act 2 of 1974) and in supersession of the Notification No. HD 270 PEG 80 dt. 30th July 1980, the Government of Karnataka hereby declare the places mentioned in column (1) of of Table below as Police stations and specifies the local areas mentioned in the corresponding entries in column (2) thereof, as local areas included within those Police Stations:

TABLE

OFFICE JURISDICTION

Office of the Deputy Commissioner of Investigation (General) and Superintendent of Police, State Vigilance Commission, Mysore.

Mysore Revenue Division.

Office of the Assistant Commissioner of investigation (General) and Deputy Superintendent of Police, State Vigilance Commission, Mangalore

Dakshina Kannada, Kodagu and Chickmagalur Districts.

Under the above notification, inter alia, the offices of D.C., S.P., and A.C., Dy. S.P., have been declared to be ''Police Stations'' within the meaning of that expression as defined in S. 2(s) of the Code. It is obvious that on such declaration, the office of each of the two officers, became ''Police Station'' and each of the officers became the ''Officer in charge of that Police Station'' within the meaning of that expression used in S. 2(n) of the Code. There was, however, a contention raised by the petitioner to the effect that the two officers not having been declared as officers in charge of the respective Police Station, notwithstanding the fact that his office was declared to be a Police Station, he could not exercise the powers of investigation exercisable by an officer incharge of a Police Station under the various provisions of the Code. But this contention was not pursued after the attention of the learned counsel for the petitioner was invited to paras 11 and 12 in the judgment of the Supreme Court in Saldana''s case, which is extracted later in this order.

The learned counsel for the petitioner, however, maintained that on the appointment of the S.P. and the Dy. S.P., on deputation on the establishment of the Vigilance Commission, they ceased to be Police Officers under the control of the Inspector General of Police, who alone had the authority to control the entire police force in the State under the provisions of the Karnataka Police Act and thereby ceased to be Police officers and, therefore, could not exercise the powers of investigation.

It is true, that the Inspector General of Police is the head of the Police Department as provided in S. 6 (1) of the Police Act, which reads-

"6. Inspector General and Deputy Inspector General.-(1) For the direction and supervision of the Police Force, the Government shall appoint an Inspector-General of Police who shall; subject to the control of the State Government, exercise such powers and perform such functions and duties and have such responsibilities and such authority as may be provided by or under this Act."

It may be true that an S.P., or a Dy.S.P., on being appointed on deputation to the Vigilance Commission, would be for the time being, functioning under the administrative control of the Vigilance Commissioner, instead of the Inspector General of Police. But as S. 6 itself indicates the control of the Inspector General of Police is subject to the control of the State Government. In other words, the control of the Inspector General of Police over the Police Force is only penultimate. The ultimate control over the Police force of the State is vested in the State Government as is evident from S. 4 of the Karnataka Police Act. It reads- "4. Superintendence of Police Force to vest in the Government. The superintendence of the Police Force throughout the State vests in and is exercisable by the Government and any control, direction or supervision exercisable by any officer over any member of the Police Force shall be exercisable subject to such superintendence."

An A.S.P., or a Dy.S.P., appointed toassist the Vigilance Commissioner does not cease to be a Police Officer. This is obvious, because he is only sent on deputation. Further by virtue of S. 4 of the Karnataka Police Act, as a Police Officer, he continues to be under the control of the State Government.

It may be, that if the office of a Police Officer so appointed on deputation was not declared to be a Police Station and consequently he did not become an officer in charge of a Police Station, it might be open to the objection that he could not exercise the powers of investigation under the Code. But, as pointed out earlier, the State Government has made a specific declaration to the effect that the office of each of the two officers was a Police Station. By the force of this declaration itself, each of the two Officers also became the officer in charge of the Police Station and, therefore, there can be no doubt that each of them could exercise all the powers available to an officer in charge of a Police Station for investigation under the provisions of the Code. Moreover S. 36 of the Code specifically empowers a Police officer, who is superior in rank to an officer in charge of a Police Station to exercise all the powers of an officer in charge of a Police Station throughout the local area to which he is appointed. It is not disputed that the S.P., and the Dy. S.P., are officers superior in rank to an officer in charge of a Police Station The notification, the contents of which is extracted earlier, specifically indicates that the territorial jurisdiction of the concerned D.C., S.P. was Mysore Revenue Division and of A.C., Dy. S.P., was Dakshina Kannada, Coorg and Chickmangalur Dts. The investigation in question against the petitioner was conducted by them within the said local areas. The question is also fully covered by the pronouncement of the Supreme Court in the case of Saldana, AIR 1980 SC 326. Relevant portions of the judgment read- "11. S. 156 enables the officer incharge of a Police Station to investigate without the order of a Magistrate into a cognizable case committed within the area of the police station.

"12. The officer directed by the State Government to carry on the investigation is Inspector-General, Vigilance, who is undoubtedly an officer superior in rank, if not in department-wise administrative hierarchy, to an officer in charge of a police station. Inter se departmental division such as Inspector General of Police or Inspector-General, Vigilance, or Addl. Inspector General, C.I.D., may be merely a division of work for administrative efficiency, but the Inspector General of Police could not by any stretch of imagination be said not to be an officer superior in rank toan officer in charge of a police station. While interpreting S. 551 of the Cr. PC., 1898 (1898 Code for short) which was in pari materia with S. 36 of the Code, this Court in R.P. Kapoor v. Saradar Partap Singh Kairon (1961) 2 SCR 143 at pp. 153-154, observed that the Addl. inspector-General of Police was, without doubt a police officer superior in rank to an officer in charge of a police station. Rule 7(a) of the Bihar Police Manual provides that the Police force of the entire State is under the overall charge of Inspector-General of Police and for the help of the Inspector-General and for the convenience of carrying out the work connected with the different branches of police administration, Deputy Inpector-General and Asst. Inspector-General of the rank of Superintendent are posted at headquarters. The use of the word ''rank'' in S. 36 of the Code comprehends the hierarchy of police officers. It is equally clear that the Inspector-General of Police will have jurisdiction over the whole of the State Division of work, but not demarcating any local area indicates that the Inspector-General Vigilance, will have jurisdiction extending over the whole of the State and this equally becomes clear from the Notification dated June 6, 1973, issued by the State Government in exercise of the power under clause (s) of sub-sec. (1) of Sec. 4 of the 1898 Code declaring that in respect of certain offences the Vigilance Department shall be deemed to be a police Station having its jurisdiction throughout the whole State of Bihar. Even apart from this, Inspector-General appointed by the State Government has jurisdiction over the whole of the State unless the contrary is indicated. If he is thus an officer superior in rank to an officer in charge of a police station he could in view of Sec. 36 exercise the powers of an officer in change of a police station throughout the local area too which he was appointed, meaning thereby the whole of Bihar State as might be exercised by an officer in charge of a police station within the limits of his police station. It was to him that the investigation of the case was ordered to be handed over by the State Government."

Moreover as the two officers, were of the ranks of S.P., and Dy.S.P., they were also empowered to undertake investigation under S. 5-A of the Act. Further before filing the charge-sheet the requisite sanction under S. 6 of the Act has also been accorded by the State Government. Therefore I see no force in the contention urged for the petitioner.

The argument of dual control, namely, that a Police Officer cannot be expected to function under the Inspector General of Police and the State Vigilance Commissioner, is also, without force. The Police Officers being servants of the State Government, remain under the control of the State Government, whether they are working in the Police Department as such or on deputation in the office of the Vigilance Commissioner. Further, by virtue of S. 4 of the Police Act, as a Police Officer also he remains under the, control of the State Government. Therefore, if the State Government required him to exercise the powers of investigation under the Code, in any local area, he is bound to do so and he has lawful authority to do so and that was what the Government did, when it declared each of the two offices as Police Station. Hence, I see no force in the submission based on dual control.

The third point urged for the petitioner was that in view of rules 3 and 5 of the Vigilance Commission Rules, the D.C., S.P., and A.C., Dy S.P., were officers subordinate to the Vigilance Commissioner and, therefore, they had got to act according to the instructions of the Vigilance Commissioner and, therefore, they cannot exercise the functions of Police Officers. Relevant portions of rules 3 and 5 of the Vigilance Commission Rules, on the basis of which the point was sought to be made out, read- "3. Constitution of the State Vigilance Commission, Etc., (3) The Vigilance Commission shall have a Secretary to the Vigilance Commissioner and such other officers and employees as the Government may from time to time determine, to assist the Vigilance Commissioner in the discharge of his functions.

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5.Procedure of the Commission.-(1) Any complaint against a Government servant in respect of any matter referred to in clause (a) or clause (b) of rule 4 received by the Vigilance Commission, or which may come to its notice in any manner, may, if in the opinion of the Vigilance Commissioner, or any other officer of the Vigilance Commission authorised by him in writing in this behalf that such complaint requires investigation, cause the matter to be investigated by the officers and employees of the Commission.

(2) The report of every investigation shall be considered by the Vigilance Commissioner, or by any officer of the Vigilance Commission authorised by him in writing in this behalf, and taking into consideration the circumstances of the case, the Vigilance Commissioner or the officer, as the case may be, may- (a) advise the appropriate authority to prosecute the Government servant concerned;or (b) advise the appropriate authority to lake disciplinary proceedings against the Government servant concerned; or (c) advise the appropriate authority that no action may be taken against the Government servant concerned;

Provided that the officer authorised under sub-rules (1) and (2) shall not be an officer lower in rank than that of the Government servant proceeded against." (Underlined (italics) by me).

The Vigilance Commission Rules are, rules framed under the proviso to Art. 309 of the Constitution. The power to frame rules under the said provision is confined to the matters relating to method of recruitment and conditions of service in relation to the civil services under the State. The power to regulate the procedure of the disciplinary proceedings against civil servants falls within that power. The Vigilance Commission Rules framed under the proviso to Art. 309 are those meant to regulate the investigation, institution and inquiry in connection with the taking and holding of disciplinary proceedings against civil servants of the State. In. fact, there are general rules, namely, the Karnataka Civil Services (C.C.A.) Rules, framed under the proviso to Art. 309, to regulate disciplinary proceedings against civil servants of this State. Rule 14-A thereof is a special provision in respect of disciplinary proceedings taken on the basis of investigation made by the Vigilance Commission. Rule 14-A reads- "14-A. Special procedure in certain cases. (1) The following provisions, shall, notwithstanding anything contained in Rules 9 to 11-A and 13 be applicable for purposes of proceedings against Government servants whose alleged misconduct has been investigated into by the Vigilance Commission either suo moto or on a reference from Government or from any other authority, viz.,

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(b) Where the Vigilance, Commission is directed to hold an inquiry into a case under clause (a), the inquiry may be conducted either by the Vigilance Commissioner or by an officer of the Directorate of Vigilance authorised by the Vigilance, Commissioner to conduct the inquiry.

Thus the Vigilance Commission Rules are only supplementary to the K.C.S. (C.C.A.) Rules. Therefore, the powers which a Deputy Commissioner of Investigation or an Assistant Commissioner of Investigation exercises under these rules are those in connection with the institution of disciplinary proceedings against civil servants and has nothing to do with the exercise of powers under the provisions of the Code. Learned counsel for the petitioner pointed out that there was a specific provision under rule 5 which empowers the Vigilance Commissioner or an officer of the Vigilance Commission to advise the Government to prosecute a Government servant. The said provision, in my opinion, has nothing to do with the powers of investigation for an offence specially conferred on a Police Officer under the provisions of the Code. What the rule provides is that when investigation is made by an officer of the Vigilance Commission in respect of allegations against a civil servant, the officers could suggest either the holding of disciplinary proceedings or taking steps to prosecute the concerned Government servant. This can be done by any officer of the Commission, who investigates into the charges, who need not necessarily be a police officer. It is also open to the Commission after holding a civil servant guilty of the charge framed against him, that he should be departmentally punished and should also be prosecuted, if the Commission finds that the gravity of the charge demands, it. The investigation spoken of in rule 5 of the Vigilance Commission Rules, which is part of the rules framed under the proviso to Art. 309 of Constitution is entirely different and not an investigation under the Code, which can be undertaken only by a Police Officer. Therefore an S.P., or a Dy. S.P., appointed on deputation to the Commission as Deputy Commissioner of Investigation and Assistant Commissioner of Investigation respectively, whose office is declared to be a Police Station and by virtue of which he becomes an officer incharge of a Police Station, has a dual capacity viz., (1) being an officer of the Vigilance Commission he is empowered to conduct investigation in connection with the initiation of disciplinary proceedings against a civil servant; and (2) being a Police Officer in charge of a Police Station, he has also the lawful authority to exercise the powers of investigation under the Code."

For the reasons aforesaid, I do not find any substance in the contention urged for the petitioner, and, accordingly answer the question set out first against him.

There was also a question, as to whether a petition under Art. 226 of the Constitution is maintainable for quashing the proceedings before the Special Judge on the ground that the remedy available under the Code alone should be resorted to. As I have come to the conclusion that there is no merit in the case, it is unnecessary for me to go into that question.

In the result, I make the following order:

(i) The writ petition is dismissed.

(ii) No costs.

Sri S.V. Narasimhan, High Court Government Pleader, is permitted to file his memo of appearance within two weeks.