Appeal No 270 of 1959
Appeal by special leave from the judgment and order dated December 23 1957 of the Allahabad High Court Lucknow Bench at Lucknow in Civil Miscellaneous Application 0
J No 86 of 1954
C B Aggarwala G C Mathur and C P Lal for the appellants
Achhru Ram section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the respondent
November 25
The Judgment of Sarkar Subba Rao and Mudholkar JJ was delivered by Subba Rao J and that of Gajendragadkar and Wanchoo JJ was delivered by Wanchoo J SUBBA RAO J This is an appeal by special leave against the judgment and order of the High Court of Judicature at Allahabad Lucknow Bench allowing the petition filed by the respondent under article 226 of the Constitution
The facts are in a small compass and may be briefly stated
In the year 1933 the respondent was appointed a constable in U P Police Force on December 1 1945 he was promoted to the rank of head constable and in May 1952 he was posted as officer incharge of Police Station Intiathok District Gonda
Complaints were received by the District Magistrate Gonda to the effect that the respondent was receiving bribes in the discharge of his duties
On September 16 1952 the District Magistrate Gonda directed the Sub Divisional Magistrate to make an enquiry in respect of the 674 said complaints
On November 31952 the Sub Divisional Magistrate after making the necessary enquiries submitted a report to the District Magistrate recommending the transfer of the respondent to some other station
On November 17 1952 the District Magistrate sent an endorsement to the Superintendent of Police to the effect that the Sub Divisional Magistrate had found substantial complaints against the integrity of the respondent that he had also received such complaints and that his general reputation for integrity was not good but that his transfer should however come after sometime and that in the meantime his work might be closely watched
On being called upon by the Superintendent of Police to submit an explanation for his conduct the respondent submitted his explanation on November 29 1952
On December 17 1952 the respondent was forced to go on leave for two months
Before the expiry of his leave he was reverted to his substantive post of head constable and transferred to Sitapur
On February 17 1953 he was promoted to the rank of officiating Sub Inspector and posted as Station Officer at Sidholi
On February 27 1953 the Superintendent of Police made the following endorsement in his character roll A strong officer with plenty of push in him and met with a strong opposition in this new charge
Crime control was very good but complaints of corruption were received which could not be substantiated
Integrity certified
 Meanwhile on further complaints the CID probed the matter further and on July 26 1953 the Superintendent of Police Investigation Branch CID reported that the respondent was a habitual bribetaker
On July 28 1953 he was placed under suspension and on August 18 1953 he was charged under section 7 of the Police Act with remissness in the discharge of his duty and unfitness for the same inasmuch as while posted as a Station Officer Police Station Intiathok he had been guilty of dishonesty corruption and misbehaviour in that he had on nine occasions particulars of which were given in the charge accepted bribes
it may be mentioned that the magisterial inquiry 675 related to seven of the nine charges alleged against the respondent
The trial was conducted by the Superintendent of Police and the respondent submitted his explanation on September 12 1953
The Superintendent of Police who conducted the trial examined many witnesses and found that seven out of the nine charges had been established
Thereafter he issued a notice to the respondent calling upon him to show cause why he should not be dismissed from the police force
On February 20 1954 the respondent sub mitted his explanation and the Superintendent of Police by his order dated February 22 1954 dismissed the respondent from service with effect from the said date
The appeal preferred by the respondent to the Deputy Inspector General of Police was dismissed by his order dated June 2 1954
Thereafter the respondent on August 5 1954 filed a petition under article 226 of the Constitution before the High Court of Judicature at Allahabad Lucknow Bench for quashing the order of dismissal
Before the High Court three points were raised namely 1 as the petitioner was officiating
as Sub Inspector of Police at the time of the departmental trial the Suprintendent of Police had no power to dismiss him since an order in such circumstances could only be made by a police officer senior in rank to a Superintendent 2 the trial was vitiated by a number of serious irregularities and 3 the specific acts with which the petitioner was charged were cognizable offences and therefore the Superintendent of Police had no jurisdiction to proceed with a departmental trial without complying with the provisions of subparagraph 1 of para
486 of the Police Regulations
The learned Judges of the High Court held that the respondent was charged with committing cognizable offences and therefore sub paragraph 1 of para
486 governed the situation and that as no case as required by the said sub paragraph was registered against the respondent in the police station the order of dismissal was invalid
They further held that the case was not covered by the first proviso to sub paragraph 1 of para
486 as in their opinion the information 676 about the commission of the offences was not in the first instance received by the Magistrate and forwarded to the police for inquiry
In view of that finding they found it unnecessary for them to express any opinion upon other arguments which had been advanced on behalf of the respondent
In the result they issued a writ in the nature of certiorari quashing the impugned orders
Hence the appeal
Mr C B Agarwala learned counsel appearing for the appellants raised before us the following points 1 The Governor exercised his pleasure through the Superintendent of Police and as the Police Regulations were only administrative directions the non compliance therewith would not in any way affect the validity of the order of dismissal
2 If the order of dismissal was held to have been made under the statutory power conferred upon the Superintendent of Police the regulations providing for investigation in the first place under chapter XIV of the Criminal Procedure Code were only directory in nature and inasmuch as no prejudice was caused to the respondent the non compliance with the said regulations would not affect the validity of the order of dismissal
3 The Superintendent of Police was authorized to follow the alternative procedure prescribed by subparagraph 3 of para
486 and therefore the inquiry held without following the procedure prescribed by rule I was not bad
4 As the magisterial inquiry was held in regard to practically all the charges the subject matter of the departmental trial the case is not covered by the provisions of para
486 of the Police Regulations
In the case of The State of U P vs Babu Ram Upadhya 1 in which we have just delivered the judgment we have considered the first three point and for the reasons mentioned therein we reject the first three contentions
The appellants must succeed on the fourth contention
From the facts already narrated the conduct of the respondent when he was officer incharge of the Police Station Intiathok was the subject matter of 1 Civil Appeal No 119 of 1950  677 magisterial inquiry
The Sub Divisional Magistrate made inquiry in respect of seven of the charges which were the subject matter of the departmental trial and
submitted a report to the District Magistrate
The District Magistrate in his turn made an endorsement on the report and communicated the same to the Superintendent of Police recommending the transfer of the respondent and suggesting that in the meanwhile the work of the respondent might be closely watched
Though the Superintendent of Police gave at first a good certificate to the respondent in respect of the same a further probe was made through the CID Thereafter the Superintendent of Police conducted a departmental trial in respect of the aforesaid seven charges and two other new charges of the same nature
The inquiry ended in the dismissal of the respondent
In the circumstances it would be hypertechnical to hold that there was no magisterial inquiry in respect of the matter which was the subject matter of the departmental trial
On the said facts we hold that the departmental inquiry was only a further step in respect of the misconduct of the respondent in regard whereto the magisterial inquiry was held at an earlier stage
If so the question is whether para
486 would govern the present inquiry or it would fall out side its scope
The relevant provisions of the Police Regulations read Paragraph 486 When the offence alleged against a police officer amounts to an offence only under s 7 of the Police Act there can be no magisterial inquiry under the Criminal Procedure Code
In such cases and in other cases until and unless a magisterial inquiry is ordered inquiry will be made under the direction of the Superintendent of Police in accordance with the following rules Paragraph 489 A police officer may be departmentally tried under section 7 of the Police Act 1 after he has been tried judicially 2 after a magisterial inquiry under the Criminal Procedure Code 86 678 3 after a police investigation under the Criminal Procedure Code or a departmental enquiry under paragraph 486 III above A combined reading of these provisions indicates that para
86 does not apply to a case where a magisterial inquiry is ordered and that a police officer can be departmentally tried under section 7 of the Police Act after such a magisterial inquiry
In this case the departmental trial was held subsequent to the completion of the magisterial inquiry and therefore it falls within the express terms of para
4892
The fact that in the interregnum the police received further complaints or that the CID made further enquiries do not affect the question if substantially the subject matter of the magisterial inquiry and the departmental trial is the same
In this case we have held that it was substantially the same and therefore the departmental trial was validly held
We therefore set aside the order made by the High Court
As we have pointed out earlier the High Court in the view taken by it did not express its opinion on the other questions raised and argued before it
In the circumstances we remand the matter to the High Court for disposal in accordance with law
The costs of this appeal will abide the result
WANCHOO J
We have read the judgment just delivered by our learned brother Subba Rao J
We agree with the order proposed by him
Our reasons for coming to this conclusion are however the same which we have given in CA 119 of 1959 The State of Uttar Pradesh vs Babu Ram Upadhya
Appeal allowed
Case remanded


Summary:
The respondent was posted as officer incharge of a police station when complaints were received by the District Magis trate that the respondent was receiving bribes
The District Magistrate got an enquiry made by the Sub Divisional Magistrate and forwarded the report toghether with his own endorsement to the Superintendent of Police
The respondent was forced to go on 2 months leave and was reverted to his substantive post of Head Constable but later he was promoted to the rank of officiating Sub Inspector and posted at another police station
Meanwhile on further complaints an investigation was made and it was reported that the respondent was a habitual bribe taker
He was charged under section 7 Police Act for 9 charges of bribery and after departmental trial was dismissed by the Superintendent of Police
He filed a Writ Petition before the High court challenging the order of dismissal inter alia on the ground that the offences charged being cognizable offences the Superintendent of Police had no jurisdiction to hold the departmental trial without first complying with the provisions of para
4861 of the U P Police Regulations
The High Court accepted this contention and quashed the order of dismissal
673 Held per Sarkar Subba Rao and Mudholkar JJ that the subject matter of the magisterial enquiry and of the depart mental trial was substantially the same and that the depart I mental trial was validly held
The fact that there was an interregnum between the magisterial enquiry and the departmental trial did not affect the question
Paragraph 486 did not apply to a case where a magisterial enquiry was ordered and a police officer could be departmentally tried under section 7 Police Act after such magisterial enquiry
Per Gajendragadkar and Wanchoo JJ
The provisions of para
486 were merely directory and even if there was non compliance therewith the order of dismissal was not invalidated