Mehrotra, J. - (1.) This is an application under Article 226 of the Constitution praying for a writ of prohibition or direction in the nature of prohibition to opposite party No. 2 the Superintendent of Police Mirzapur not to proceed with the departmental trial on the basis of the findings arrived at by the learned Deputy Superintendent of Police and on the allegations made in the charge sheet.
(2.) The facts of the case briefly are that the petitioner was enrolled in the IT. P. Police force as a constable in 1938. He was promoted to the post of Head Constable in 1948. In February, 1955 he was Head Constable at Police station Chopan in the District of Mirzapur. According to the petitioner the station officer Chopan became inimical to him and he therefore complained against the petitioner to the Superintendent of Police Mirzapur. The complaint related to two incidents which took place on the 23rd of September, 1954 and the 17th of January, 1955. The Superintendent of Police received complaints on the 24th of March, 1955 and the 14th of April, 1955. It is alleged that on the 17th of January, 1955 one Barak Kol of village Chiraulia came to lodge a first information report at the police station and the petitioner refused to record the report and demanded a sum of Rs. 10 from Barak Kol. Barak Kol had no money then. He accordingly went back and came the next day with Rs. 5 and on payment of this amount the petitioner recorded his first information report. The incident alleged to have occurred on the 23rd of September, 1954 is that Moti Gonrh and Bishnath Gonrh of village Gonrhmara each paid a sum of Rs. 50 to the petitioner in connection with some dispute about a field. Out of these two complaints against the petitioner charges under Section 7 of the Police Act were framed on the 14th February and proceedings were started against him before the Deputy Superintendent of Police, who gave his findings against the petitioner on the 6th August, 1956. On the 14th of August, 1956 the Superintendent of Police Mirzapur gave a notice to the petitioner to show cause why his services should not be terminated on the findings arrived at by the Deputy Superintendent of Police. When this notice was given to the petitioner, the present petition was filed in this Court on the 22nd of August, 1956.
(3.) Two main points have been urged in this case by the petitioner. Firstly it is contended by him that proceedings are barred by time. Section 42 of the Police Act provides that: "All actions and prosecutions against any person, which may be lawfully brought for anything done or intended to be done under the provisions of this Act or under the general police powers hereby given shall be commenced within three months after the act complained of shall have been committed, and not otherwise; and notice in writing of such action and of the cause thereof shall be given to the defendant, or to the District Superintendent or an Assistant District Superintendent of the District in which the act was committed, one month at least before the commencement of the action. No plaintiff shall recover in any such action if tender of sufficient amount shall have been made before such action brought, or if a sufficient sum of money shall have been paid into Court after such action brought, by or on behalf of the defendant and, though a decree shall be given for the plaintiff in any such action, such plaintiff shall not have costs against the defendant, unless the Judge before whom the trial is held shall certify his approbation of the action : Provided always that no action shall in any case lie where such officers shall have been prosecuted criminally for the same act.";