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Gujarat High Court
Prabhatbhai Kamabhai Miatra vs District Superintendent Of Police And ... on 15 September, 1989
Equivalent citations: (1990)2GLR983
JUDGMENT P.K. Gokulakrishnan, C.J.
1. This Letters Patent Appeal is against the order passed by the learned single Judge in Special Civil Application No. 328 of 1988. The appellant herein had invoked the jurisdiction of the High Court under Article 226 of the Constitution of India to set aside the order of suspension dated 29-12-1987 which was annexed as Annexure 'A' to the special civil application by declaring it as illegal. By the said impugned order the appellant herein was put under suspension from the date of receipt of the said impugned order owing to the fact that an offence has been registered against him in Jamnagar ACB Police Station as Crime No. 4 of 1987 under Section 161 of the Indian Penal Code and under Section 5(2) of Prevention of Corruption Act while he was working as Police Constable in Police Station, Jamnagar. It is also clear from the record that as early as 12-12-1987, i.e., before passing of the impugned order on 29-12-1987, the appellant was transferred from Jamnagar District to Kutch District for the very same offence alleged above.
2. The learned single Judge of this High Court holding that having regard to the allegations made against the appellant herein, the order of transfer would not be sufficient to prevent the appellant from committing mischief which is illegal against him held that the order of suspension which has been passed after proper application of mind by the District Superintendent of Police, Kutch, is valid. It is as against this order the present Letters Patent Appeal has been filed.
3. Mr. Deshmukh, learned Counsel appearing for the appellant submitted that the order of suspension cannot stand inasmuch as the same was passed by the in charge District Superintendent of Police whose substantive post is Deputy Superintendent of Police. To substantiate this contention he referred to various provisions of the Bombay Police Act and also the BCSR Rules. Pressing into service the circular issued by the General Administration Department of Government of Gujarat wherein it is stated that in the case of non-gazetted staff, suspension should not be resorted to without the prior approval of the Secretary of the Administrative Department, the learned Counsel contended that the present suspension did not have the prior approval of the Secretary of the Administrative Department and as such the same is bad. He also pointed out from the circular that such suspension should be periodically reviewed and in the absence of such a review the continuance of suspension becomes illegal.
4. Mr. Deshmukh has also contended that as per Circular Memorandum dated 1-7-1976, all officers who are directed to hold additional charge should not exercise the powers including the disciplinary powers vested under the Bombay Police Act, 1951 to District Superintendent of Police. It is the further say of Mr. Deshmukh that any power exercised under the Act is subject to the superintendence and control of the State Government as per Section 4 of the Bombay Police Act. In view of this Section 4 Mr. Deshmukh says that the words 'holds charge" and the word "succeeds" occurring in Section 157A of the Bombay Police Act must be in pursuance of the order made by the State Government and will not cover cases where such holding of charge and succeeding is by automatice process. Hence, according to the learned Counsel that in the absence of any such notification or order of the State Government making Mr. A. R. Rehwar, who has passed the impugned order, as the District Superintendent of Police, the said Mr. A. R. Rehwar who is in charge of District Superintendent of Police cannot act under Section 157A of the Act since he has no authority of law to do so. Mr. Deshmukh further submitted that under Section 8 of the Bombay Police Act certain powers have been delegated to the District Superintendent of Police by the State Government and as per the principle that delegatee cannot further delegate, the powers of District Superintendent of Police cannot be delegated to Deputy Superintendent of Police by anybodyelse except the State Government and hence even the arrangement under Section 157A also has to be made by the State Government. To substantiate his contention Mr. Desmukh reads Sub-section (3) of Section 8 and states that a District Superintendent of Police may with the previous permission of the State Government delegate any of the powers and functions conferred on him by or under this Act. For all these reasons Mr. Deshmukh submits that inasmuch as the respondents have not produced any order from the Government appointing Mr. A. R. Rehwar either as the District Superintendent of Police or as the Officiating District Superintendent of Police, the said Mr. Rehwar cannot act under Section 157A of the Bombay Police Act. According to Mr. Deshmukh, his submission is correct in view of Section 8(3) and Section 4 of the Bombay Police Act and Rule 3 of the Bombay Police (Punishment and Appeals) Rules, 1956.
5. It is clear from the facts of the case that the appellant is involved in a serious corruption case. He was placed under suspension under the provisions of the Bombay Police Act, 1951. The case against the appellant has been registered as Crime No. 4 of 1987 at the ACB Police Station, Jamnagar. The offence is under Section 161 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act. When the order of suspension was passed the suspending authority Shri Rehwar was in charge District Superintendent of Police. The respondent State has clearly averred in its affidavit-in-reply that Shri A. R. Rehwar, who passed the impugned order, is a competent authority to take action against the appellant and he has done so under the power vested upon such officers by virtue of Section 157A of the Bombay Police Act.
6. Rule 3 of the Bombay Police (Punishment and Appeals) Rules, 1956, deals with suspension of a Police Officer pending enquiry or pending investigation in respect of a criminal offence. It reads as follows:
3(1-A) (i) The appointing authority or any authority to which it is subordinate or any other authority empowered by the State Government in this behalf may place a Police Officer under suspension where:
(a) an inquiry into his conduct is contemplated or is pending, or
(b) a complaint against him or any criminal offence is under investigation or trial; Provided that where the order of suspension is made by an authority lower in rank than the appointing authority, such authority shall forthwith report to the appointing authority the circ*mstances in which the order of suspension was made.
Explanation : The suspension of a Police Officer under this sub-rule shall not be deemed to be a punishment specified in Clause (a-2) of Sub-rule (1).
(ii) A Police Officer who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty eight hours shall be deemed to have been suspended by the appointing authority under this rule.
(iii) An order of suspension under Sub-rule (1) may be revoked at any time by the authority making the order or by any authority to which it is subordinate.
7. Reading this rule it is clear that suspension pending enquiry or pending investigation in respect of criminal offences shall not be deemed to be a punishment as mentioned in Clause 3(1)(a-2).
8. Section 2 of the Bombay Police Act defines Police Officer under Sub-section (11). It reads as follows:
2(11) "Police Officer" means any member of the Police Force appointed or deemed to be appointed under this Act, and includes a special or an additional Police Officer appointed under Sections 21 or 22.
Section 8 of the Bombay Police Act, 1951 deals with appointments of District, Additional, Assistant and Deputy Superintendent of Police and reads as follows:
8(1) The State Government may appoint for each District or for a part of a District or for one or more Districts as Superintendent and one or more Additional Assistant and Deputy Superintendents of Police, as it may think expedient.
(2) The State Government may by a general or special order, empower an Additional Superintendent to exercise and perform in the District for which he is appointed or in any part thereof, all or any of the powers, functions or duties to be exercised or performed by a District Superintendent under this Act or under any law for the time being in force.
(3) The District Superintendent may, with the previous permission of the State Government delegate any of the powers and functions (conferred on him by or under this Act, except the powers to make, alter or rescinds rules or orders under Section 33 to an Assistant or Deputy Superintendent).
Section 25(2)(a) deals with punitive powers of Inspector General, Commissioner, Deputy Inspector General and District Superintendent and it reads as follows:
25(2)(a) The inspector General, the Commissioner and the Deputy Inspector General have authority to punish (an Inspector or) any member of the subordinate ranks under Sub-section (1). A District Superintendent shall have the like authority in respect of any Police Officer subordinate to him below the grade of Inspector (and may suspend an Inspector who is subordinate to him pending inquiry into a complaint against such Inspector and untill an order of the Inspector General or Deputy Inspector General can be obtained).
9. Reading these two Sections it is clear that these appointments under Section 8 are made by the State Government and the powers to be performed by such officers are also spelt out by the Legislature. By Section 25(2)(a) the District Superintendent of Police has a punitive power in respect of any Police Office subordinate to him below the grade of Inspector, An additional power is given to the District Superintendent of Police under this sub-section by permitting him to suspend an Inspector who is subordinate to him pending enquiry in a complaint against such Inspector and until an order of the Inspector General or Deputy Inspector General can be obtained. Reading Sections 8, 25(2)(a) and also the Rule which we have extracted above it is clear that the suspension pending enquiry or any investigation in respect of criminal offences cannot be deemed to be a punishment for which only the powers are allotted to specified officers under Section 25(2)(a) of the Bombay Police Act. No doubt, power to dismiss an employee will include the power to suspend him pending enquiry. But suspension pending enquiry cannot be equated to punishment envisaged by Section 25(2)(a) read with Rule 3 of the Act. In this background we look into Section 157A of the Bombay Police Act which reads as follows:
157A. Whenever in consequence of the officer of a Commissioner, Magistrate or Police Officer becoming vacant, any officer holds charge of the post of such Commissioner, Magistrate, or Police Officer or succeeds either temporarily or permanently to his office, such officer shall be competent to exercise all the powers and perform all the duties respectively conferred and imposed by this Act on such Commissioner, Magistrate or Police Officer as the case may be.
10. It clearly empowers the officer who holds charge of the post of District Superintendent of Police or succeeds temporarily to the said office shall be competent to exercise all the powers and perform all the duties respectively conferred and imposed by this Act on such officer. It is not in dispute that the authority who suspended the appellant was holding charge as District Superintendent of Police Kutch. The impugned order self makes it clear that it was passed by the District Superintendent of Police on 29-12-1987. Section 8 of the Bombay Police Act deals with the appointment of officers and also the assignment of powers to such officers. Section 157A empowers an officer who holds charge of the post or succeeds to the post whether it be a Commissioner, Magistrate or District Superintendent of Police, etc. to have all powers and perform all duties respectively conferred and imposed by this Act on such officer.
11. Circular dated 8th July, 1970 which is at Annexure 'E' to the Special Civil Application seems to be a Circular with reference to Bombay Civil Services Rules issued by the General Administration Department. The Bombay Police Act which alone governs the personnel belonging to the Police Department clearly enumerates in the rules framed thereunder the method and manner in which disciplinary action can be taken and suspension can be made pending enquiry or investigation in respect of criminal cases. Factually the offence alleged against the appellant is one of corruption charges and it is a trap case. In the light of the powers given to the officer concerned under Section 157A of the Bombay Police Act read with Section 25(2)(a) and Rule 3 of the Bombay Police (Punishment and Appeals) Rules, 1956, the Circular dated 8th July, 1970 pressed into service cannot have any relevance.
12. As far as the Circular Memorandum dated 1-7-1976 is concerned, apart from the fact that this was not referred to in the main special civil application, this Circular Memorandum prohibits all officers who are directed to hold additional charge from exercising powers including the disciplinary powers vested under the Bombay Police Act, 1951 to District Superintendent of Police. The power of suspension pending enquiry and also pending investigation in respect of criminal offences is not by virtue of the powers conferred by the main Bombay Police Act, 1951, but by the powers conferred by Rule 3 of the Bombay Police (Punishment & Appeals) Rules, 1956. The Circular Memorandum refers to only to the main Act and not to the powers conferred by the Rules. Even apart from this Circular, Section 157A clearly empowers the officer who holds the change of a particular post to have all the powers and perform all duties respectively conferred upon that post. In the light of this specific section, the powers conferred by the Act cannot be taken away by issuance of a Circular Memorandum when especially the officer who passed the orders has acted under Section 157A of the Bombay Police Act, 1951. No illegality or irregularity will attach to the impugned order both on the ground that the Circular Memorandum, (referred by Mr. Deshmukh) does not refer to the powers vested with the officer under the rule and on the ground that the same cannot override the powers conferred by the provisions of the Bombay Police Act. Hence the argument that the impugned order is against the direction of the Circular Memorandum cannot have any substance.
13. Mr. Deshmukh learned Counsel for the appellant cited the decisions in the case of Abdul Hakim v. D.S.P. 1978 GLR 210 and J.S. Solanki v. Chief Conservator of Forest 1986 (1) GLR 41 for the proposition that both transfer and suspension could not have been made to this case. It is to be seen that in view of the serious charge of corruption and trap, petitioner could not have continued at the same place even pending the decision regarding suspension. Immediate requirement was to remove him from that area and that was done by the transfer. The learned Counsel for the appellant submits that once that was done, the investigation could proceed unhampered and there was no reason for suspending the appellant at the transferred place. Having regard to the nature of allegations of corruption and the gravity of it, such person could not be trusted with any duty in public service where he may have opportunity of indulging is similar activity. Even in the case relied by the learned Counsel, the Division Bench observed as under:
Cases are not difficult to conceive where it may become absolutely necessary for the Government to not only suspend him, but also change his headquarters. In cases where a delinquent is alleged to have accepted illegal gratification, it would be necessary to suspend him from service because transferring him to another place would not serve the purpose inasmuch as the possibility of his indulging in similar activity elsewhere cannot be ruled out. Such a Government servant who is under suspension may be found to be interfering with the course of inquiry, namely, recording of statements of his erstwhile subordinates, tampering with the evidence of witnesses other than civil servants, etc., and hence it may become necessary for the State Government to change his headquarters even while under suspension to put him out of harm's way.
13.1. In view of the above, there is no merit in the contention that in the present case, suspension as well as transfer could not have been resorted to.
14. Except the abovesaid points, no other points were argued by the learned Counsel appearing for the appellant. From the discussion, we have made above, it is clear that the order of suspension passed by the officer concerned is valid and has been correctly made. For all these reasons, this Letters Patent Appeal is dismissed.
