J.S. Trivedi, J. - (1.) This defendants' Second Civil Appeal is directed against the judgment and decree of the District Judge, Hardoi allowing the appeal and decreeing the plaintiff's suit for the relief sought in the plaint which are that the plaintiff is still a permanent Government servant and the order of dismissal is illegal, void and inoperative. The relief for injunction directing the defendants to reinstate the plaintiff was also granted. The plaintiff-respondent was a permanent employee of the U.P. Government working in the Police Department as a Constable since 1944 and in the year 1954, he was posted at Out-post Kurha, P.S. Harpalpur, Kotwali Fatehgarh. On the morning of 18-2-1954 Constable Nazir Ahmad, plaintiff-respondent lodged a report at P. S. Kotwali, Fategarh that when he was returning the previous evening at 18-30 hours from Gangaghat, he received information that one person was carrying unauthorised arm in his jhola. He, therefore, took one Shyam Lal, son of Ram Swarup and Bhikham, son of Pritam with him and searched the said person and illicit country-made pistol and some cartridges were recovered by him. Just then, Netthu, Bhurji and others arrived on the spot, caught hold of him and took him into the village where he was tied up with rassis and was rescued by Constable Tribhunan Singh and Surja Baksh to whom information was carried by Shyam Lal. The same morning i.e. on 18-2-1954 another report was made by Sheo Baran Lal of village Salempur to the Superintendent of Police complaining against plaintiff-respondent Nazir Ahmad. According to Sheo Baran Lal, Nazir Ahmad and others had entered his house and snatched a box containing cash from him. The Superintendent of Police immediately proceeded to village Salempur to make a spot enquiry and found that both the versions were incorrect. He recommended disciplinary proceedings against Nazir Ahmad for making a false report. Nazir Ahmad was thereafter put under suspension and transferred to Hardoi for his departmental trial by order of the D.I.G. Police dated 24th April 1954. The following two charges were framed against Nazir Ahmad and he was departmentally tried in respect of the aforesaid two charges. The two charges framed were : (1) On 17-2-1954 while stationed at O. P. Kurha P. S. Harpalpur on behalf of Kotwali, Fatehgarh proceeded to village Salempur, P. S. Rajeypur to make investigation into a case of theft of property belonging to Rati Ram of Salempur without any authority to do so and, (2) He recorded G. D. No. 33 of 17/18-2-1954 at P. S. Fatehgarh containing an entirely false report of his alleged checking of a bag suspected to contain illicit firearm. Both the charges were found duly established and the Superintendent of Police recommended his dismissal from service. In the departmental appeal, the D.I.G. Police absolved him of charge No. 1 but held that charge No. 2 was duly proved. The punishment of dismissal recommended by the Superintendent of Police was, however, maintained. The departmental revision filed by the plaintiff-respondent was also dismissed. The suit out of which this appeal arises was then filed after due notice. The contention of the plaintiff-respondent had been that the incidents of 18-2-1954 being in the nature of a cognizable offence, no departmental proceedings could be started against the plaintiff-respondent without first dealing under Chapter 14 Cr.P.C.
(2.) The trial Court dismissed the plaintiff's suit holding that the charges being in the nature of non-cognizable offences, departmental action in respect of the same was not improper. The lower appellate Court allowed the appeal holding that the incidents alleged by the parties were in the nature of cognizable offences and, therefore, departmental proceedings against the plaintiff-respondent were not competent without proceeding under Para 486 (1) of the Police Regulations, hence this second Civil Appeal.
(3.) Learned counsel for the appellant has contended that the charges framed against the appellant being of gross remissness in the discharge of his duties and of making a false report Para 486 (1) was inapplicable and departmental trial in respect of the aforesaid two charges was not vitiated by any error of law. Learned counsel for the respondent has placed his reliance on State of Uttar Pradesh v. Babu Ram Upadhya, A.I.R. 1961 SC 751 and has contended that under Rule 1 of Para 486 the interest of subordinate officer was protected and departmental trial can be held only after a Police investigation under chapter 14 of the Code of Criminal Procedure. Sec. 7 of the Police Act authorises the Inspector for General and other officers to dismiss, suspend or reduce any Police officer of subordinate rank. It also authorised the award of punishment enumerated in the section to a Police officer of the subordinate rank. Para 486 of the Police Regulations provides the procedure for taking departmental proceedings against the said Police officer in respect of cognizable and non-congnizable offences. Para 486 being the relevant para is quoted here and is as under : 486. "When the offence allegad against a police officer amounts to an offence only under Sec. 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 : I - Every information received by the Police relating to the commission of a cognizable offence by a police officer shall be dealt with in the first place under Chapter XIV, Criminal Procedure Code, according to law, a case under the appropriate Section being registered in the police station concerned provided that- (1) if the information is received in the first instance, by a magistrate and forwarded by the District Magistrate to the police, no case will be registered by the police (2) if the information is received, in the first instance by the police, the report required by Sec. 157, Criminal Procedure Code, shall be forwarded to the District Magistrate, and when forwarding it the Superintendent of Police shall note on it with his own hand what steps are being taken as regards investigation or the reasons for refraining from investigation, (3) unless investigation is refused by the Superintendent of Police under Sec. 157(1)(b), Criminal Procedure Code, and not ordered by the District Magistrate under Sec. 159, or unless the District Magistrate orders a magisterial inquiry under Sec. 159, investigation under Sec. 156, Criminal Procedure, Code shall be made by a police officers selected, by the Superintendent of Police and higher in rank than the officer charged, (4) On the conclusion of the investigation and before the report required by Sec. 173, Criminal Procedure Code, is prepared the question whether the officer charged should or should not be sent for trial shall be decided by the Superintendent of Police, provided that before an officer whose dismissal would require the concurrence of the Deputy Inspector General under paragraph 479 is sent for trial by the Superintendent of Police, the concurrence of the Deputy Inspector General must be obtained. (5) the charge-sheet or final report under Sec. 173 or Sec. 169, Criminal Procedure Code, as the case may be shall he sent to the District Magistrate, if the Superintendent of Police or the Deputy Inspector General has decided against a prosecution, a note by the Superintendent of Police giving the reasons for the decision, shall be endorsed on, or attached to, the final report, (6) when the reason for not instituting a prosecution is that the charge is believed to be baseless, no further action will be necessary, if the charge is believed to be true and a prosecution is not undertaken owing to the evidence being considered insufficient or for any other reasons the Superintendent may, when the final report under Sec. 173, Criminal Procedure Code, has been accepted by the District Magistrate, take departmental action as laid down in paragraph 490. II - When information of the commission by a police officer or an non-cognizable offence (including an offence under Sec. 29 of the Police Act) is given in the first instance to the police, the Superintendent of Police may, if he sees reason to take action, either (a) proceed departmentally as laid down under head III of this, paragraph and in paragraph 490, or as an alternative to, or at any stage of the departmental proceedings, forward report in writing to the District Magistrate with a request that he will take cognizable of the offence under Sec. 190 (1) (b) Criminal Procedure Code, provided that reports against police officers of having committed non-cognizable offences will (when made to the police and unless there are special reasons for desiring a magisterial inquiry or formal police investigation under the Code) ordinarily be inquired into departmentally and will not ordinarily be referred to the District Magistrate until departmental inquiry is complete, and then only if a criminal prosecution is desired. On receiving information either by means of a report in writing from the Superintendent of Police as laid down above, or otherwise as laid down in Sec. 190 (1) (a) and (c) Criminal Procedure Code of the commission by a police officer of a non-cognizable offence, the District Magistrate may, subject to the general provisions of Chapter Part B, Criminal Procedure Code- (a) proceed with the case under Chapter XVII, Criminal Procedure Code, (b) order an inquiry by a magistrate or an investigation by the police under Sec. 202 Criminal Procedure Code, or an investigation by the police under Sec. 155 (2), (c) decline to proceed under Sec. 203, Criminal Procedure Code. If an investigation by the police is ordered, it would be made under Sec. 155 (3), Criminal Procedure Code by an officer selected by the Superintendent of Police and higher in rank than the officer charged and all further proceedings will be exactly as laid down for cognizable cases in paragraph 486 (1) (4), (5) and (6) above. If no investigation by the police is ordered, and the District Magistrate, after or without magisterial inquiry, declines to proceed criminally with the case, the Superintendent of Police will decide, in accordance with the principles set forth in paragraph 486 (1) (6) above and subject to the orders contained in paragraph 494, whether departmental proceedings under paragraph 490 are required. III - When a Superintendent of Police sees reasons to take action on information given to him, or on his own knowledge or suspicion, that a police officer subordinate to him has committed an offence under Sec. 7 of the Police Act or a non-cognizable offence (including an offence under Sec. 29 of the Police Act) of which he considers, unnecessary at that stage to forward a report in writing to the District Magistrate under rule 11 above, he will make or cause to be made by an officer senior in rank to the officer charged, a departmental inquiry sufficient to test the truth of the charge. On the conclusion of this inquiry he will decide whether further action is necessary and if so, whether the officer charged should be departmentally tried, or whether the District Magistrate should be moved to take cognizable of the case under the Criminal Procedure Code, provided that before the District Magistrate is moved by the Superindent of Police to proceed criminally with a case under Sec. 29 of the Police Act or her non-cognizable section of the law against an inspect, tor, or sub-inspector, the concurrence of the Deputy Inspector General must be obtained Prosecution under Sec. 29 should rarely be instituted and only when the offence cannot be adequately dealt with under Sec. 7.";