N Criminal Appeal No 580 of 1976
From the Judgment and Order dated 10101975 of the High Court of Punjab and Haryana in Criminal Miscellaneous No 772 M of 1974
RS Sodhi for the Appellant
Gopal Subramaniam Amicus Curiae for the Respondent
The Judgment of the Court was delivered by NATARAJAN J
This appeal by certificate granted under Article 1341c of the Constitution is directed against the judgment of a Full Bench of the High Court of Punjab and Haryana in Raj Kumar ASI vs The State of Punjab 1976 IV CLR Pb  Har page 39 allowing a petition under Section 561A of the Code of Criminal Procedure 1898 filed by the respondent
The objective in filing the appeal it was conceded by Mr RS Sodhi learned counsel for the State is the determination of a larger issue transcending the narrow confines of the quashing of the criminal proceedings against the respondent viz the construction of Rule 1638 of the Punjab Police Rules and its applicability to criminal prosecutions launched against the members of the Punjab Police Service for offences under the Indian Penal Code and other Acts
The controversy regarding the ambit of Rule 1638 of the Punjab Police Rules has arisen in the following circumstances
One Jamuna Devi Mukhtiar Kaur gave a report against the respondent who was an Assistant Sub Inspector in the Punjab Police Service to the Deputy Superintendent of Police Patiala alleging command of illegal gratification of Rs200 by him for releasing her husband and brother on bail bonds in a case pertaining to a land dispute
A first information report was registered and a trap was laid for the respondent and he was apprehended as soon as the marked currency notes treated with phenolophthalene were handed over to him and the marked currency 939 notes were recovered from him
After completion of investigation the respondent was chargesheeted before the Special Judge Sangrur
The respondent appeared before the Special Judge and raised an objection to the framing of charges against him on the ground the investigation of the case was in contravention of Rule 1638
The Special Judge over ruled the objection and framed charges and posted the case for trial
The respondent filed a petition before the High Court under Section 561A of the Criminal Procedure Code 1898 for quashing the proceedings against him before the Special Judge
As there were conflicting decisions of the High Court in the interpretation of Rule 1638 a learned Single Judge referred the matter to a Division Bench and in turn the Division Bench referred the matter to a Full Bench
A Full Bench of the High Court reviewed the earlier decisions and held that Rule 1638 is mandatory and not directory in character and secondly the mandate would govern criminal prosecutions as well as departmental enquiries in equal measure and as such any prosecution launched or departmental enquiry held in violation of the terms of the Rule would vitiate the proceedings concerned
Having interpreted Rule 1638 thus the Full Bench noticed that the investigation against the respondent had not been done in accordance with Rule 1638 and therefore the bench allowed the petition and quashed the charges framed against the respondent
The High Court however granted a certificate under Article 1341c to the State to file an appeal to this Court and that is how the appeal is before us
What therefore calls for consideration is whether the procedure prescribed in Rule 1638 calls for observance in the case of departmental enquiries alone or whether it would govern criminal prosecutions also for offences under the Indian Penal Code and other Acts and secondly whether the Rule is mandatory in character or only directory
Our task has been considerably lightened by a pronouncement on the first question with which we are primarily concerned by another Bench of this Court in the State of Punjab vs Charan Singh  declaring that Rule 1638 cannot govern criminal prosecutions against the members of the Police Force as it cannot over ride the provisions of the Criminal Procedure Code
In spite of the said pronouncement with which we are in respectful agreement we feel it necessary to deal with the matter at some length because of certain misconceptions contained in the judgment of the High Court under appeal
940 Before we advert to the decisions pertaining to Rule 1638 we may refer to certain provisions of the and the Punjab Police Rules framed thereunder
Section 3 of the  confers the right of superintendence of the Police Force throughout the general police district on the State Government and vests in such Government the right to exercise such powers in that behalf
Section 7 deals with the appointment dismissal etc
of inferior officers
The Section lays down that the Subject to the provisions of Article 311 of the Constitution and to such Rules as the State Government may from time to time make under this Act the Inspector General Deputy Inspector General Asstt
Inspector General and District Superintendents of Police may 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 or to award any of the lesser punishments prescribed under clauses a b c d for discharge of duty in a careless or negligent manner etc
Besides the power conferred on the State Government to make Rules under Section 7 there is also provision under Section 12 for the Inspector General of Police subject to the approval of the State Government to frame such orders and rules as he shall deem expedient relative to the organisation classification and distribution of police force the places at which the members of the police force shall reside the services to be performed by them etc
for ensuring the efficiency of the police force in the discharge of its duties
It is in exercise of the powers conferred by Sections 7 and 12 of the that the Punjab Police Rules 1934 have been framed
The Rules have been categorised under 28 Chapters for dealing with various matters such as organisational setup uniforms arms and ammunition leave pension promotions rewards punishments training supervision investigation prosecution etc
The matters covered by the Rules make it clear that the Rules have been framed for regulating the set up and the service conditions of the police force as well as for awarding them rewards and departmental punishments and other matters of internal administration for keeping efficient and disciplined one
It is in that perspective Rule 38 of Chapter 16 has to be viewed
The very first Rule in Chapter 16 sets out the scope and purpose of the Rule comprised in that chapter
Rules 161 reads as follows 1 No police officer shall be departmentally punished otherwise than as provided in these rules 2 The departmental punishments mentioned in the second 941 column of the subjoined table may be inflicted on officers of the various ranks shown in the heading Nos
3 to 9 by the officers named below each heading in each case or by any officer of higher ranks
Emphasis supplied Rule 1638 with which we are concerned contains 7 sub clauses
For our purpose it is enough if we extract sub clauses
1 to 4 and refer in general terms to the contents of Clauses 5 to 7
16381 Immediate information shall be given to the District Magistrate or any complaint received by the Superintendent of Police which indicates the commission by 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
2 When investigation of such a complaint establishes a prima facie case a judicial prosecution shall normally follow the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded
When it is decided to proceed departmentally the procedure prescribed in rule 1638 shall be followed
An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed
3 Ordinarily a magistrate before whom a complaint against a police officer if laid proceeds at once to judicial enquiry
He is however required to report details of the case to the District Magistrate who will forward a copy of this report to the Superintendent of Police
The District Magistrate himself will similarly send a report to the Superintendent of Police in cases of which he himself takes cognizance
4 The Local Government has prescribed the following supplimentary procedure to be adopted in the case of complaints against police officers in those districts where abuses of the law with the object of victimising such officers or hampering investigation is rife
The District Magistrate will order that all petitions against police officers shall be 942 presented to him personally
If he considers that these petitions are of a frivolous or factious nature it is within his discretion to take no action on them
When he considers an enquiry to be necessary he will use his discretion whether to send the papers to the Superintendent of Police or to a magistrate for judicial enquiry
In the case of formal criminal complaints the District Magistrate will arrange for all cases to be transferred from other courts to his own
Clauses 5 to 7 relate to strictures passed by the High Court and other courts against police officers and the manner of communication of the strictures to the District Magistrate and the Government
Different interpretations were given by different Benches of the High Court of Punjab and Haryana regarding the scope and force of rule 1638
In Criminal Revision No 1100 of 1972 Amarjit Singh vs State of Punjab HR Sharma J held that Rule 1638 debarred criminal proceedings if the same had been instituted without a prior sanction of the District Magistrate
In Ram Prakash Asstt
Sub Inspector vs The State 1974 Chandigarh Law Reporter 205 Gurnam Singh J took a diametrically opposite view
In Hoshiar Singh vs The State a Division Bench of the High Court held that Rule 1638 was attrected in the case of departmental enquiries only and the departmental enquiry would be vitiated if the papers had not been produced before the District Magistrate for getting his sanction at the initial stage
In Nand Singh vs The Superintendent of Police and another Current Law JournalPb146 it was held that the Rule was mandatory
The said view was affirmed by a Full Bench in Nand Mandan Sarup vs The District Magistrate and others 1966 Current Law Journal Pb 608
It was in that backdrop of conflicting decisions the petition filed by the respondent herein under Section 561A for quashing of the proceedings against him before the Special Judge came to be referred to a Full Bench
The reasoning of the Full Bench for allowing the respondent s petition can be summarised thus The vests the right of superintendence of the police force in a State on the State Government
Section 7 of the empowers the State Government to frame rules regarding disciplinary matters and Section 12 em 943 powers the Inspector General of Police subject to the approval of the State Government to frame orders and rules relating to the organisation classification and distribution of the police force the services to be performed by them etc
 Hence the rules framed in exercise of powers conferred under section 7 and 12 have the force of law and they constitute a special legislation which takes precedence over the provisions of the Criminal Procedure Code
Section 4 of the inter alia lays down that the administration of the police within the jurisdiction of a District Magistrate shall under his general control and direction be vested in a District Superintendent and Assistant District Superintendents as the Government may appoint
Consequently the District Magistrate has statutory authority to exercise control over the administration of the police force in his District including the launching of criminal prosecutions or holding of Departmental enquiries against a member of the police force
Rule 1638 contains a mandatory provision regarding the procedure to be followed when any complaint is received by the Superintendent of Police against a member of the police force regarding the commission of an offence by him in connection with his official relations with the public
The said rule will apply with equal force to investigations relating to criminal offences for which a prosecution is to be launched as it would to enquiries for taking departmental action through disciplinary proceedings
On the basis of such reasoning the Full Bench over ruled the decision in Hoshiar Singh vs State of Punjab supra
We will now refer to the decision in Hoshiar Singh supra since it has been approved by this Court in State of Punjab vs Charan Singh supra and then advert to some decisions of this Court relevant for consideration
In that case a Sub Inspector of Police was challaned under Section 52 of the Prevention of Corruption Act and Section 161 Indian Penal Code and was suspended from service and chargesheeted and thereafter a departmental enquiry followed
When a show cause notice was served on him on the conclusion of the enquiry intimating him the proposed punishment he objected to the legality of the enquiry on the ground that no permission of the District Magistrate in accordance with Rule 1638 of the Punjab Police Rules had been obtained
The objection was sustained and the departmental enquiry was quashed
Thereafter the challan was put into Court and 944 once again an objection was raised that in the absence of a reference to the District Magistrate and his orders thereon directing prosecution the Special Judge could not take cognizance of the case
The Special Judge over ruled the objection holding that his powers under the Criminal Law Amendment Act were not trammelled by the Punjab Police Rules
A criminal revision was filed before the High Court against the order of the Special Judge and the High Court dismissed the criminal revision holding thus I do not think Rule 1638 was intended or could have the effect of imposing as a condition precedent to the trial of a police officer in a Court of Law a sanction or an order by the District Magistrate as contemplated therein
The language appears to me to be confined only to departmental enquiries
The investigation for establishing a prima facie case is merely meant to guide the District Magistrate uncontrolled by the opinion of the Superintendent of Police whether or not a departmental proceeding should be initiated against the guilty party and it is the procedure and the punishment controlling the departmental proceedings alone which appear to have been prescribed by this rule
 In Delhi Administration vs Chanan Shah 1969 3 SCR 653 an Asstt
Sub Inspector was censured after summary enquiry for having received illegal gratification in a case he was investigating
The Deputy Inspector General of Police revoked the order of censure and directed departmental action being taken
The departmental enquiry culminated in an order of dismissal against Chanan Shah
An appeal and revision to the higher authorities having failed Chanan Shah filed a writ petition which was dismissed by a Single Judge but allowed in writ appeal by a Division Bench and the order of dismissal was quashed
The Delhi Administration came in appeal to this Court and this Court held that irrespective of whether Rule 1638 is mandatory or directory the authorities had failed to substantially comply with the provisions of the Rule and therefore the laches vitiated the departmental enquiry
The same view was taken in a later case Union of India vs Ram Kishan  which related to the dismissal of a constable from service pursuant to a disciplinary enquiry being set aside in a civil suit filed by the dismissed constable
The decree of the Trial Court was affirmed by the Appellate Court and the High Court and in further appeal to this Court it was held that as no immediate information was given to the District Magistrate in respect of the complaint received 945 against the plaintiff constable and secondly since the District Magistrate has also not decided whether the investigating agency should be a police officer or a magistrate as prescribed by Rule 1638 the departmental enquiry was vitiated and therefore the plaintiff s suit had been rightly decreed
In State of Uttar Pradesh vs Babu Ram Upadhya  the view taken by the majority of the Bench was that paragraph 486 Rule 1 of UP Police Rules was mandatory in character and hence the departmental action taken against the respondent police officer in disregard of the rule was invalid
It may be noticed that the three decisions of this Court which have been referred to above related to departmental enquiries and not criminal prosecutions for offences committed by the delinquent police officers
The pronouncements in these cases will therefore govern only cases where departmental enquiries are held in contravention of the procedure prescribed by the Police Rules
The reason for a special procedure being prescribed in the Rules for investigations before departmental enquiries are held against delinquent police officers is not far off to see
In the very nature of their duties the members of the police force would often stand exposed to criticism and complaints by not only the members of the public but also by the members of the force themselves and consequently they stand placed more vulnerable than members of other Government services of being implicated in false or exaggerated charges
In order to protect them from false implications and resultant proceedings the Government had thought it necessary to have an initial screening of the complaints received against members of the police force by the District Magistrate
Such screening would however extend only to matters which fall within the zone of departmental action and it could never extend to cases where the offences alleged to have been committed would attract investigation under the Criminal Procedure Code in the same manner the investigation would be attracted if the offences complained of had been committed by any member of the public
That the procedure prescribed in Rule 1638 has only a limited field of operation ie applicable only to departmental enquiries and punishments could be seen from the fact that clause 3 of the Rule enjoins every Magistrate to whom a complaint against a police officer is referred by the District Magistrate for judicial enquiry to report the details of the case to the District Magistrate in order to enable the District Magistrate to forward the report to the Superintendent of Police
The clause further says that if the District Magistrate himself takes congnizance of a case he should of his own accord send a report to the Superintendent of Police
Clause IV of Rule 1638 also throws light on the matter and brings out the 946 objective in greater clarity
This clause sets out that in order to protect the interests of police officers serving in districts where petition mongering activities are notorious the District Magistrate can direct that all petitions complaining about police officers shall be presented to him personally so that he can scrutinize them to find out whether the petitions are of a frivolous nature or they have been engineered by factious groups in the districts etc
In fact the words used in the clause are of a tell tale nature viz complaints against police officers in those districts were abuses of law with the object of victimising such officers or hampering investigation is rife
 All these features make it clear that the purpose underlying the rule is to enable the District Magistrate and the District Superintendent of Police to exercise personal control and supervision over the complaints received against members of the police force in the performance of their duties and enable the District Magistrate to ensure that the complaint is not a baseless or mala fide one and secondly to determine whether the complaint requires investigation by a police officer or by a selected magistrate
The procedure envisaged by the Rule is for effective check being exercised against victimisation of efficient and honest police officers on the one hand and favouritism being shown to the delinquent police officers on the other
These rules were not intended to replace and certainly cannot over ride the provisions of the Criminal Procedure Code
The Full Bench was therefore in error in taking the view that the Rules lay down a special procedure for investigation of all offences committed by the members of the police force and that they have over riding effect over the provisions of the Criminal Procedure Code in terms of Sections 4 and 5 of the Code
We may now refer to some other decisions where it has been laid down that the provisions of the cannot prevail over the provisions of the Indian Penal Code
In Maulud Ahmad vs State of UP 1963 Supp 2 SCR 38 the appellant who was a head constable contended that the prosecution launched against him was barred by limitation under Section 42 of the because the prosecution had been launched beyond the period of three months prescribed by Section 42
The contention was rejected and it was pointed out that the period of three months prescribed under Section 42 for commencing a prosecution would govern only prosecutions of a police officer for something done or intended to be done by him under the provisions of the or under general police powers given by the Act and Section 42 would not apply to prosecutions against a police officer for anything done under the provisions of any other Act or under 947 Police powers conferred under any other Act
It was also brought to focus that Section 36 of the explicitely provides that nothing contained in the said Act shall be construed to prevent any person from being prosecuted under any Regulation or Act for any offence made punishable by the Act or for being liable under any other Regulation or Act or any other or higher penalty or punishment that is provided for such offence by the 
The above ratio was followed in Ajaid Singh vs Joginder Singh  In yet another case viz SN Sharma vs Bipen Kumar Tiwari  Ors it was held that the power of the police to investigate a cognizable offence is uncontrolled by the Magistrate and it is only in cases where the police decided not to investigate the case that the Magistrate can intervene and either direct an investigation or in the alternative himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case and that the powers of the police to investigate have been made independent of any control by the Magistrate
Lastly we come to the decision in the State of Punjab vs Charan Singh supra where the identical question under consideration had come up for determination by this Court
The respondent therein was convicted by the Special Judge Ludhiana of an offence under Section 51d read with Section 52 of the Prevention of Corruption Act and sentence to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs 100
On appeal a Single Judge of the High Court acquitted the respondent on the ground the prosecution was vitiated by reason of non compliance with the provisions of Rule 1638 of the Punjab Police Rules 1934
In the appeal preferred by the State this Court allowed the appeal and held as follows A perusal of Chapter XVI of the Punjab Police Rules shows that the provisions of the Chapter deal with departmental punishments and the procedure to be followed in imposing such punishments
Guidance is given as to how police officers guilty of misconduct and criminal offences may be dealt with   It is clear that Rule 1638 is not designed to be a condition precedent to the launching of a prosecution in a criminal court it is in the nature of instructions of the department and is not meant to be of the nature of a sanction or permission for a prosecution nor can it over ride the provisions of the Cr
PC and the Prevention of Corruption Act
We agree with the observations of Dua and Mahajan JJ in Hoshiar Singh vs State supra
 948 Though the decision of the Full Bench of the Punjab High Court which is now under consideration had not been brought to the notice of the Learned Judges when they rendered judgment in State of Punjab vs Charan Singh we are in full agreement with the pronouncement of the Bench as the conclusion therein accords with our own conclusion and the reasons therefore
We therefore hold that the Full Bench was in error in taking the view that the Punjab Police Rules read in conjunction with the prescribe a different procedure for the investigation and prosecution of offences committed by Police officers under the IPC or other Acts in connection with their relations with the public and that the rules constitute a special statute and take precedence over the provisions of the Cr
The Full Bench has failed to note that Rule 1638 only mandates the investigation of cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder
We therefore hold that the decision of the Full Bench under appeal in Raj Kumar ASI vs The State of Punjab supra is not in accordance with law and has to be set aside
However as mentioned at the outset the State is not interested in reviving the charges against the respondent and pursuing the trial because of the long lapse of time
Therefore while allowing the appeal and setting aside the judgment of the High Court we leave undisturbed the quashing of the charges framed against the respondent
Since the respondent did not enter appearance or engage a counsel to contest the appeal in spite of the notice served on him we requested Mr Gopal Subramaniam Advocate to act as amicus curiae and render assistance to the Court on behalf of the respondent
Mr Gopal Subramaniam readily complied with our request and placed all the authorities for our consideration and we thank him for his assistance and place on record our appreciation of the services rendered by him
HSK Appeal allowed


Summary:
 The second respondent in the appeal was detained under subsection 1 of section 3 of the 
The grounds of detention Annexure B  served on the detenu stated that information was received by the custom staff that a notorious smuggler and his gang was likely to land packages of contraband goods on the Saurashtra Coast and that the modus operandi of the smugglers  gang would be to remove the goods to trucks cover them with cargo of vegetables and grain and then to drive away
Vigilance was stepped up by the authorities
A Truck an Ambassador Car in the service of the respondent detenu and a jeep were stopped by the Officers and several persons travelling therein were detained and interrogated
Incriminating documents were recovered indicating involvment of other vehicles
Goods of foreign origin valued at over Rs68 lakhs were also recovered
The arrested persons gave vital clues about the clandestine business of smuggling that was being carried on and named the 2nd respondent detenu as being directly involved in the business
The co conspirators made an application for bail on 2101984 and on the following day ie 3101984 they filed an application before the Chief Judicial Magistrate retracting some of their earlier statements
Though the detention order was passed on October 20 1984 it could not be served on the detenu earlier than July 4 1986 as he was absconding
On his arrest the first respondent his nephew challenged the detention order in the High Court on several grounds but the High 904 Court allowed the writ petition and quashed the order of detention only on one ground viz non application of mind by the detaining authority to a vital document ie the second application dated 3101984 whereby the other accused persons retracted their earlier statements and held that this had vitiated the subjective satisfaction of the detaining authority
In the appeal to this Court it was contended on behalf of the State appellant that the second application dated 3101984 was also placed before the detaining authority and that he had applied his mind thereto
The document was mentioned in the grounds Annexure B  served on the detenu although it was not actually described as a petition containing the retraction
The original file dealing with the detenu s case was also produced for the Court s perusal
The appeal was contested on behalf of the respondents by stating that the plea of the State that the second application dated 3101984 had been considered by the detaining authority should be rejected in the absence of an affidavit by the detaining authority and that it was necessary to have mentioned in the grounds Annexure B  served on the detenu that the detaining authority was of the view that not much credence could be given to the statements made in the petition dated 3101984
Allowing the Appeal  HELD 1
It is true that in a given case the detaining authority should personally affirm on oath the stand taken on its behalf but this cannot be suggested as an inflexible rule applicable to all detention cases irrespective of the circumstances
908D E In the instant case a further affidavit by the Deputy Secretary Home Department of the State of Gujarat was filed stating that the Home Minister who was authorised under the Rules of Business to pass orders on behalf of the Government in detention matters had ceased to be a Minister before the filing of the affidavit in the High Court and he was therefore not available
The then Deputy Secretary Home Department who was fully conversant with the case had to file the affidavit
908E F 2
The original file dealing with the detenu s case produced in Court shows that the Home Minister State of Gujarat while passing the order for detention made a detailed note running in several para 905 graphs and in paragraph 2 he pointedly mentioned both the bail application dated 2101984 and the petition dated 3101984
The notes also show that the detaining authority correctly appreciated the nature and purport of the 3rd October document but was of the view that not much credence could in the circumstances be given to it
908B C 3
So far as the inference drawn by the detaining authority from the materials on the records and his subjective satisfaction were concerned they are expressly stated in the grounds and there cannot be any grievance on that score
909B C 4
It is not necessary to mention in the ground of detention the reaction of the detaining authority in relation to every piece of evidence separately
909D E In the instant case the recital in Annexure B  that the detaining authority formed his opinion after consideration of the document dated 3101984 by itself clearly implied that he was not impressed by the statement therein
909E 5
Several other questions were raised in the writ petition which were not considered by the High Court and since the order of the High Court by which it allowed the writ petition has been set aside it becomes necessary to decide the other questions
The matter is remanded for further hearing and disposal to the High Court
909G PC Mehta vs Commissioner and Secretary Govt
of Kerala and others 1985 Supp SCC 144 referred to