- (1.) THE petitioner, Nand Nandan Sarup, in this petition under Articles 226 and 227 of the Constitution, was, on September 16, 1968, Naib Court Foot Constable in the Court of the Sub-Divisional Magistrate at Patiala, and is said to have been caught red-handed on that day, accepting a bribe of Rs. 4/- from one Mohinder Singh. A case in that respect having been registered, investigation for an offence under section 5 (2) of the Prevention of Corruption Act, read with Section 161 of the penal Code, having been completed, a report in regard to the incident was made by the Superintendent of Police, Patiala, on September 27, 1963, to the District magistrate of Patiala, who, in his order of the same date, said that he had gone through the report of the Superintendent of Police and the preliminary enquiry report of the Deputy Superintendent of Police against the petitioner, and, as a prima facie case was proved against the petitioner, he should be proceeded against departmentally. In the last part of his order the District Magistrate said that, therefore, he was sanctioning the holding of a departmental enquiry against the petitioner. The case had been placed before the District Magistrate by the superintendent of Police under Sub-rule (2) of Rule 16. 38 of the Punjab Police rules, 1934 (1959 Edition ). When this petition came for hearing before my learned brother, Shamsher Bahadur J. , the learned counsel for the petitioner urged that the order of the District Magistrate was in contravention of Sub-rule (2) of Rule 16. 38 and hence be quashed.
(2.) THE only sub-rules of Rule 16. 38 that are relevant here are the first two sub-rules which read - - "16. 38. (1) Immediate information shall be given to the District magistrate of 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 16. 24 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed. " The learned counsel for the parties is support of their respective contentions, the petitioner's counsel to strengthen his contention, and the counsel for the respondents to negative the same, cited before the learned Single Judge Bua Dass kaushal v. Inspector-General of Police, L. P. A. No. 169 of 1957, D/-19-8-1958 (Punj), in which the judgment of the Bench was delivered by Dulat J. , Jagan Nath v. Senior Superintendent of Police, Ferozepore, 1961-63 Pun LR 860: (AIR 1962 punj 38), in which the judgment was given by my learned brother, Grover J. , chanan Singh v. Delhi Administration, L. P. A. 68-D of 1961 D/-28-1-1963 (Punj), in which the judgment was given by my Lord, the Chief Justice, Hoshiar Singh v. The State, 1965-67 Pun LR 438, a Division Bench decision of Dua and D. K. Mahajan JJ. , and Walaiti Ram v. State of Punjab, 1965-67 Pun LR 523, a judgment of my learned brother, Shamsher Bahadur J. , and the learned Judge sensing a seeming conflict of opinion in those decisions referred this case to a larger Bench, and this is how it comes before this Full Bench for final disposal.
(3.) IN Chanan Singh's case, LPA No. 68-D of 1961, D/-23-1-1963 (Punj) following state of Uttar Pradesh v. Babu Ram Upadhya, AIR 1961 SC 751, my Lord the Chief justice held that the provisions of Sub-rules (1) and (2) of Rule 16. 38 are mandatory, and that decision has been followed in another Division Bench case, union of India v. Ram Kishan, Second Appeal No. 256-D of 1962, D/-4-3-1964 (Punj) by my Lord, the Chief Justice and myself. In both these cases, on the strength and basis of the decision of their Lordships in Babu Ram Upadhya's case, air 1961 SC 751, Sub-rules (1) and (2) of Rule 16. 38 have been held to be mandatory provisions. No argument has been addressed by the learned counsel in this respect and indeed none is open in view of the decision of their Lordships in babu Ram Upadhya's case, AIR 1961 SC 751.;