K.N.SINGH, J. - (1.) THIS is a petition under Article 226 of the Constitution for the issue of a Writ of certiorari quashing the order of the Superintendent of Police, Shahjahanpur, dated August 14, 1971, dismissing the petitioner from service and the orders dated January 16, 1972 and June 30, 1973, passed by the Deputy Inspector General of Police and the Inspector General of Police, U.P. dismiss­ing the petitoner's appeal and revision against the order of dismissal.
(2.) THE facts giving rise to the present petition are that the peti­tioner was posted as Constable at the police outpost Isapur, P.S. Nigohi district Shahjahanpur. On April 23, 1970, one Har Saran Singh, a resident of Kheria, P.S. Nigohi made a complaint before the Superintendent of Police against the petitioner and certain other police constable for extortion of money. He alleged that the peti­tioner and his associate constables threatened him to lodge a false case of theft or a case under the Arms Act and on the threat of false implication be extorted a sum of Rs. 2251- as illegal gratification. On receipt of the complaint Sri P.B. Bajpai, Deputy Superintendent of Police, conducted a preliminary enquiry into the allegations. In his report Sri Bajpai concluded that there was prima facie case aga­inst the petitioner and as such a criminal case should be registered against him. In pursuance of the report, a criminal case under Sec­tion 384, I.P.C. read with Sections 5(2) and (3) of the Prevention of Corruption Act was registered against the petitioner at Police Station Nigohi. Investigation of the case was carried on by Sri D.P. Singh, a Deputy Superintendent of Police posted in the district. After the completion of investigation he submitted a report to the Magistrate's court that the evidence available against the petitioner was insufficient for criminal trial and as such a final report was sub­mitted on July 31, 1970. The final report was accepted by the Dis­trict Magistrate on December 15, 1970. After acceptance of the final report the Superintendent of Police Shahjahanpur directed that the petitioner be tried departmentally under Section 7 of the Police Act in respect of the allegations made against him. He appointed S.D. Parashri, Deputy Superintendent of Police as Enquiry Officer to hold departmental proceedings against the petitioner. Charges were framed and the petitioner was directed to submit his explanation. After the petitioner denied the allegations the Enquiry Officer held proceedings, recorded the statement of witnesses and submitted his report to the Superintendent of Police holding that the charges were proved against the petitioner. The Superintendent of Police issued a show cause notice to the petitioner and after receipt of his explanation passed the impugned order dated Augsut 14, 1971, dismissing the petitioner from service. In appeal and revision to the Deputy Inspector General of Police and Inspector General of Police both affirmed the order of dismissal and rejected the petitioner's appeal and revision. Aggrieved the petitioner filed the present petition. Learned counsel for the petitioner urged that the petitioner was denied reasonable opportunity of defence as contemplated by Article 311 of the Constitution inasmuch as he was not supplied copies of the statement of the witnesses examined by D.P. Singh, the Investiga­ting Officer during the investigation of the criminal case against him. In the absence of the copies of those statements-the peti­tioner was greatly handicapped in cross-examining the witnesses produced before the Enquiry Officer during the departmental trial. The petitioner placed reliance on his application dated January 9, 1971 made before the Enquiry Officer (Annexure B to the petition) wherein he demanded copies of the statements of the witnesses re-corded under Section 161 of the Code of Criminal Procedure by the Investigating Officer. In paragraph 19 of the petition he has again reiterated that those copies were not supplied to him inspite of his demand. In the counter-affidavit filed on behalf of the respondents there is no denial of the petitioner's assertion. In the absence of denial it has to be presumed that copies of the statements of wit­nesses recorded under Section 161, Cr. P.C. during the investigation of the case against the petitioner were not supplied to him, even though these witnesses were examined by the Enquiry Officer and the petitioner was allowed to cross-examine him.
(3.) IT is urged on behalf of the respondent that since the petitioner had been allowed to inspect the file he must have examined the state­ments of witnesses recorded under Sec. 16, Cr.P.C. and as such he was not prejudiced in his defence. I find no merit in this conten­tion. Firstly, there is no material before me to show that the state­ment of witnesses recorded under Section 161, Cr.P.C. was brought on the record of the departmental trial. If the papers had been brought on the record they must have been exhibited as required by paragraph 490(3) (a) of the Police Regulations. There is nothing in the enquiry report or in any of the three impugned orders to show that the statement of witnesses recorded under Section 161, Cr.P.C. were brought on record of the departmental trial or they were ex­hibited. The rule contained in paragraph 490(3) (a) has statutory force. In this view of the matter it is clear that the petitioner was not supplied with copies of the statements of witnesses examined under Section 161, Cr.P.C.;