judgement:
Civil Appeal No. 3677 of 1984.
From the Judgment and Order dated 17.5.1982 of the Delhi High Court in F.A. No. 30 of 1975.
P.P. Malhotra and N.K. Sharma for the Appellant.
O.P. Goyal, Ms. Sunita Vasudeva and R.C. Verma for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
This appeal by special leave has been filed by the National Insurance Company Ltd., New Delhi, against a judgment of the Delhi High Court in an appeal under Section 110 D of the (hereinafter referred to as the 'Act ').
Necessary facts may be stated herein in a nutshell.
Shri Jugal Kishore, Respondent No. 1 was, on 15th June, 1969, driving a threewheeler scooter when he met with an accident with bus No. DLP 913 3699, driven by Shri Rai Singh, Respondent No. 2 and owned by M/s. Delhi Janata Co operative Transport Society Limited, Respondent No. 3, He sustained injuries consequent upon which he made a claim for compensation before the Motor Accident Claims Tribunal, Delhi against Respondent Nos. 2 and 3 and the appellant which was the insurer of the bus aforesaid.
The claim of Respondent No. 1 was contested by the appellant and also by Respondent No. 3 but proceeded ex parte against Respondent No. 2.
The Tribunal awarded compensation in the sum of Rs.10.000 recoverable jointly and severally from the appellant and Respondent No. 3.
Aggrieved by the award of the Tribunal Respondent No. 1 preferred an appeal before the High Court of Delhi and asserted that the amount of compensation awarded by the Tribunal was inadequate.
His appeal was allowed by the High Court and the award was modified.
The High Court awarded a sum of Rs. 1,00,000 as compensation to Respondent No. 1 with interest at 9 per cent per annum from the date of institution of the claim till realisation with costs against the driver as well as the owner of the bus as also against the appellant, Insurance Company.
Before granting special leave this Court required the appellant to deposit Rs. 1,00,000 namely the amount of compensation awarded by the High Court and permitted Respondent No. 1 to withdraw the same.
Special leave was granted on 14th September, 1984 by the following order of this Court.
"Under the orders of this Court the appellant has deposited Rs. One lac, which is the amount of compensation awarded to the claimants.
The claimants have withdrawn the amount without furnishing security.
Special leave granted on condition that in the event of reversal of the decision of the High Court, the said amount shall not be refunded by the claimants.
Stay of further execution of the award confirmed.
" It has been urged by the learned counsel for the appellant that in view of the statutory provision contained in this behalf in clause (b) of sub section (2) of Section 95 of the Act as it stood on the date of accident namely 15th June, 1969 which happens to be prior to 2nd March, 1970, the date of commencement of Amending Act 56 of 1969, no award in excess of Rs.20,000 could have been made against the appellant.
Before dealing with the submission we may point out that the policy under which the bus aforesaid was insured had not been 914 filed either before the Tribunal or before the High Court.
A photostat copy of the policy has, however, been filed in this Court and learned counsel for the respondents did not have objection in the same being admitted in evidence.
Clause (b) of sub section (2) of Section 95 of the Act as it stood at the relevant time reads as under: "95.
(1) . . . (2) Subject to the proviso to sub section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely: (a) . . . . (b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees; and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver; (c) . . .
On the plain language of the aforesaid clause (b) which applies to the instant case it is apparent that the liability of the appellant could not be in excess of Rs.20,000.
Learned counsel for the respondents, however, urged that notwithstanding the provision contained in this behalf in clause (b) aforesaid it was open to the insurer to take a policy covering a higher risk than contemplated by the aforesaid clause (b) and consequently the said clause had to be read subject to the terms of the policy which was taken in the instant case.
We find substance in this submission in view of the decision of this Court in Pushpabai Purshottam Udeshi and others vs M/s Ranjit Ginning and Pressing Co. and another, where it was held that the insurer can always take policies covering risks which are not covered by the re 915 quirements of Section 95 of the Act.
We have accordingly perused the photostat copy of the policy to ascertain whether risk for any amount higher than the amount of Rs.20,000 contemplated by clause (b) aforesaid was covered.
Our attention was invited by learned counsel for the respondents to the circumstance that at the right hand corner on the top of page 1 of the policy the words "COMMERCIAL VEHICLE COMPREHENSIVE" were printed.
On this basis and on the basis that the premium paid was higher than the premium of an "act only" policy it was urged by the learned counsel for the respondents that the liability of the appellant was unlimited and not confined to Rs.20,000 only.
We find it difficult to accept this submission.
Even though it is not permissible to use a vehicle unless it is covered at least under an "act only" policy it is not obligatory for the owner of a vehicle to get it comprehensively insured.
In case, however, it is got comprehensively insured a higher premium than for an "act only" policy is payable depending on the estimated value of the vehicle.
Such insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf.
Comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under sub section (2) of Section 95 of the Act.
For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf.
Likewise, if risk of any other nature for instance, with regard to the driver or passengers etc.
in excess of statutory liability, if any, is sought to be covered it has to be clearly specified in the policy and separate premium paid therefor.
This is the requirement of the tariff regulations framed for the purpose.
Coming to the photostat copy of the policy in the instant case it would be seen that Section II thereof deals with liability to third parties.
Sub section (1) minus the proviso thereto reads as hereunder: "1.
Subject to the Limits of Liability the Company will indemnify the insured against all sums including claimant 's cost and expenses which the insured shall become legally liable to pay in respect of (i) death or bodily injury to any person caused by or 916 arising out of the use (including the loading and/or unloading) of the Motor Vehicle.
(ii) damage to property caused by the use (including the loading and/or unloading) of the Motor Vehicle)".
The Schedule to the policy indicates the limits of liability and the amount of premium paid.
The limits of liability are indicated as hereinbelow: "Limits of Liability: Limit of the amount of the Company 's Such amount as is necessary liability under Section II 1(1) in to meet the requirements of respect of any one accidentthe Motor Vehicle Act, 1939 Limit of the amount of the Company 's liability under Section II 1(11) in respect of any one claim or series of claims arising out of one event Rs.20,000/ The premium paid on the other hand is shown as below: "Premium Rs.415.00 Add 1/2% on I.E.V.
Rs.200.00 Add for 53 Pass, 9 of Rs.2.50 Rs.132.50 Add for Driver & Conductor Rs.10.00 757.50" A perusal of the policy, therefore, indicates that the liability undertaken with regard to the death or bodily injury to any person caused by or arising out of the use (including the loading and or un loading) of the motor vehicle falling under Section II(1)(i) has been confined to "such amount as is necessary to meet the requirements of the Motor Vehicle Act, 1939.
" This liability, as is apparent from clause (b) of sub section (2) of Section 95 of the Act, was at the relevant time Rs.20,000 only.
The details of the premium also indicate that no additional premium with regard to a case falling under Section II(1)(i) was paid by the owner of the vehicle to the insurance company.
It is only the vehicle which was comprehensively insured, the insured 's estimate of value including accessories (I.E.V.) thereof having been shown as Rs.40,000.
In this view of the matter the submission made by learned 917 counsel for the respondents that the appellant had in the instant case undertaken an unlimited liability does not obviously have any substance.
The liability under the policy in the instant case was the same as the statutory liability contemplated by clause (b) of sub section (2) of Section 95 of the Act namely Rs.20,000.
An award against the appellant could not, therefore, have been made in excess of the said statutory liability.
Learned counsel for the appellant then urged relying on the decision of this Court in British India General Insurance Co. Ltd. vs Captain Itbar Singh and Others, AIR 1959 Supreme Court 1331 that in view of the sub section (6) of Section 96 of the Act no insurer to whom the notice referred to in sub section (2) thereof has been given, is entitled "to avoid his liability" to any person entitled to the benefit of any such judgment as is referred to in sub section (1) thereof otherwise than in the manner provided for in sub section (2).
On this basis it was urged that the appellant was not entitled to assert that its liability was confined to Rs.20,000 only inasmuch as this is not one of the defences specified in sub section (2) of Section 96 of the Act.
We find it difficult to agree with this submission either.
Firstly, in paragraph 12 of the report of this very case it has been held that sub section (2) of Section 96 in fact deals with defences other than those based on the conditions of a policy.
Secondly, from the words "to avoid his liability" used in sub section (6) of Section 96 it is apparent that the restrictions placed with regard to defences available to the insurer specified in sub section (2) of Section 96 are applicable to a case where the insurer wants to avoid his liability.
In the instant case the appellant is not seeking to avoid its liability but wants a determination of the extent of its liability which is to be determined, in the absence of any contract to the contrary, in accordance with the statutory provisions contained in this bahalf in clause (b) of sub section (2) of Section 95 of the Act.
In the instant case since as seen above the appellant did not undertake in the policy any liability in excess of the statutory liability the award against it could be only in accordance with the said statutory liability.
Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal.
In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof.
This Court has consistently emphasised that it is the duty of the party 918 which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.
This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly.
In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof.
We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence.
Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in Civil Appeal would in all probability have been avoided.
Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the Court in doing justice between the parties.
The obligation on the part of the State or its instrumentalities to act fairly can never be over emphasised.
In the result, this appeal succeeds and is allowed to this extent that the liability of the appellant is fixed at Rs.20,000 together with interest as allowed by the High Court.
In view of the order of this Court dated 14th September, 1984 quoted above, however, it is held that even if the total liability of the appellant falls short of Rs.1,00,000, it shall not be entitled to any refund out of the sum of Rs.1,00,000 which was deposited by it and withdrawn by the claimant respondent in pursuance of the said order.
The decree of the High Court as against the driver and the owner of the vehicle namely Respondents 2 and 3 is, however, maintained and all sums in excess of Rs.1,00,000 which has already been withdrawn by the claimant respondent as aforesaid shall be recoverable by him from Respondents 2 and 3 only.
There shall be no order as to costs.
R.S.S. Appeal allowed.

summary/full:
% Respondent No. 1, Jugal Kishore, while driving a three wheeler scooter, met with an accident with bus No. DLP 3699, driven by Rai Singh, respondent No. 2, owned by M/s. Delhi Janata Co operative Transport Policy Limited, respondent No. 3, and insured with the appellant.
The Motor Accident Claims Tribunal, Delhi awarded compensation in the sum of Rs.10,000 to respondent No.1.
On appeal, the High Court enhanced the Compensation to Rs.1,00,000.
This Court, while granting special leave required the appellant to deposit the amount of compensation awarded by the High Court and permitted the respondent to withdraw the same, making it clear that it shall not be refunded by him in the event of reversal of the decision of the High Court.
The appellant contends that in view of the statutory provision contained in this behalf in clause (b) of sub section (2) of section 95 of the Act, as it stood on the date of accident, no award in excess of the statutory liability of Rs.20,000 could have been made against the appellant.
The respondent, on the other hand, contends (1) Notwithstanding the provision contained in this behalf in clause (b) aforesaid, it was open to the insurer to take a policy covering a higher risk than contemplated by clause (b) and consequently the said clause had to be read subject to the terms of the policy.
In this connection, the respondent relies on the words "Commercial Vehicle comprehensive" printed on the policy, 911 and on the circumstance that the premium paid was higher than the premium of an "Act only" policy, and urges that the liability of the appellant was unlimited.
(2) In view of sub section (6) of section 96 of the Act no Insurer to whom the notice referred to in sub section (2) thereof has been given, is entitled "to avoid his liability" to any person entitled to the benefit of any such judgment as is referred to in sub section (1) thereof otherwise than in the manner provided for in sub section (2).
On this basis it is urged that the appellant was not entitled to assert that its liability was confined to Rs.20,000 only inasmuch as this is not one of the defences specified in sub section (2) of section 96 of the Act.
Allowing the appeal, this Court, ^ HELD: (1) It is not obligatory for the owner of a vehicle to get it comprehensively insured for which a higher premium than for an "act only" policy is payable.
Such comprehensive insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle insured.
Comprehensive insurance of the vehicle and payment of higher premium on this score, as was done in the instant case do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under sub section (2) of section 95 of the Act.
For this purpose a specific agreement has to be arrived at between the owner and the insurance company and additional premium paid.
[915C E] (2) A perusal of the policy indicates that the liability undertaken with regard to the death or bodily injury to any person caused by or arising out of the use of the vehicle has been confined to "such amount as is necessary to meet the requirements of the Motor Vehicle Act, 1939", which was at the relevant time Rs.20,000 only.
An award against the appellant could not, therefore, have been made in excess of the said statutory liability.
[916F G] (3) It is apparent from the words "to avoid his liability" used in sub section (6) of section 96 that the restrictions placed with regard to defences available to the insurer specified in sub section (2) of section 96 are applicable to a case where the insurer wants to avoid his liability.
In the instant case the appellant is not seeking to avoid its liability but wants a determination of the extent of its liability in accordance with the statutory provisions contained in this behalf in clause (b) of sub section (2) of section 95 of the Act.
[917E F] 912 (4) This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.
This duty is greater in the case of instrumentalities of the State, such as the appellant, who are under an obligation to act fairly.
The obligation on the part of the State or its instrumentalities to act fairly can never be over emphasized.
[918C D] (5) The attitude often adopted by the Insurance Companies, as was adopted in this case, is not to file a copy of the policy before the Tribunal and before the High Court in appeal.
The claimants for compensation are invariably not possessed of either the policy or a copy thereof.
In all cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy alongwith its defence.
[917G H; 918B C] Pushpabai Purshottam Udeshi vs Ranjit Ginning and Pressing Co., and British India General Insurance Co. vs Captain Itbar Singh, AIR 1959 Supreme Court 1331, referred to.


judgement:
: Criminal Appeal No. 80 of 1988.
From the Judgment and Order dated 20.11.1986 of the Gujarat High Court in Spl.
A. No. 886 of 1986.
T.U. Mehta and M.N. Shroff for the Appellant.
V.A. Bobde, Mrs. H. Wahi and Mrs. Kamini Jaiswal for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The order of detention of the respondent No. 2, 906 Mahendra V. Shah, passed under the , was challenged by his nephew, respondent No. 1, before the Gujarat High Court under Article 226 of the Constitution.
By the impugned judgment the detention order was quashed.
The State of Gujarat has impugned the High Court 's decision by the present Special Appeal Application.
Special leave is granted.
The detention order was passed on the 20th of October, 1984, but could not be served on the detenu earlier than 4.7.1986 as he was absconding.
The grounds of detention served on him as mentioned in Annexure B state that information was received by the Customs staff of Ahmedabad on 26.9.1984 that a notorious smuggler, Juwansinh Jadeja, had shifted his smuggling activites to the coast of Chorwad in Saurashtra, and was working on behalf of two citizens of Pakistan.
Information about Jadeja 's main associates was also received.
The authorities were informed that the gang was likely to land about 180 packages of contraband goods within a couple of days and vigilance activities were therefore stepped up.
The officers further learnt that the modus operandi of the smugglers ' gang would be to remove the goods to trucks and to cover them with cargo of vegetables and grains and then to drive away.
An Ambassador car bearing registered No. MRH 6595 which was earlier in the service of the respondent detenu a resident of Bombay was spotted in the late night of 28.9.1984 and they suspected it to be on the road in that connection.
They proceeded in the same direction and found a truck loaded with bags of vegetables.
The truck was intercepted but the driver ran away.
The Ambassador car was also passing by, but on being signalled to stop, it took a sharp turn and got away.
The officers unsuccessfully chased it for some time.
The suspicion of the officers was thus confirmed and they searched the truck and discovered the contraband goods.
Two other vehicles, a Jeep and another car also arrived and were stopped by the officers and several persons travelling therein including Jadeja were taken to the Excise Office for interrogation.
Incriminating documents were recovered, inter alia, indicating that several other trucks were also involved.
All available Customs and police officers thereafter became active and two other trucks were seized.
They also found the Ambassador car MRH 6595 abandoned.
The goods found in the first truck were all of foreign origin and were valued at over Rs.68 lakhs.
Similar contraband goods were discovered in the other trucks also.
Later a fourth truck was also intercepted.
The arrested persons 907 gave vital clues about the clandestine business of smuggling and named respondent Mahendra V. Shah as being directly involved in the business.
It was inter alia stated that Mahendra V. Shah had gone to the coast where the goods were received.
The grounds have mentioned the various activities of the detenu including the fact that he was travelling in the Ambassador car MRH 6595.
We do not consider it necessary to mention here all the details of his activities.
As stated earlier, although the order of detention was made in October 1984, it could not be served on the detenu before July 1986 as he was absconding.
On his arrest the writ application was filed by his nephew the respondent No. 1.
The other persons involved in the affair were also detained.
These co conspirators made an application for bail on 2.10.1984 and on the next day, that is, on 3.10.1984, they filed an application before the Chief Judicial Magistrate, Junagadh retracting some of their earlier statements.
One of the points urged on behalf of the detenu was that the retraction by the aforesaid other persons (co conspirators) was not placed before the detaining authority and was, therefore, not considered by him.
The High Court held that this point by itself vitiated the detention order.
The other grounds urged were not considered on merits.
It has been contended on behalf of the State that the second application dated 3.10.1984 whereby the other accused persons retracted their earlier statements was also placed before the detaining authority and he had applied his mind thereto.
It was pointed out that the said document was mentioned in the grounds Annexure B, served on the detenu although it was not accurately described as a petition containing the retraction.
The mis description was in the following words: "While arriving at the above satisfaction the Detaining Authority has taken into consideration the bail applications dated 2.10.1984 and 3.10.1984 filed jointly by Jayantilal Damji Thakker and nine others before the Chief Judicial Magistrate, Junagadh. " In paragraph 6 of the State 's counter affidavit this fact was pointedly mentioned and it was stated that the mistake in the description was of drafting, and the detaining authority had considered the same while passing the order of their detention and that there was no substance in 908 the point taken on behalf of the detenu.
The stand of the State that the petition dated 3.10.1984 was considered by the detaining authority appears to be right.
The original file dealing with the detenu 's case was produced in Court for our perusal, and we found that the Home Minister, State of Gujarat, while passing the order for detention made a detailed note running in several paragraphs and in paragraph 2 he pointedly mentioned both the bail application dated 2.10.1984 and the petition dated 3.10.1984.
The notes also show that he (detaining authority) correctly appreciated the nature and purport of the 3rd October document but was of the view that not much credence could be in the circumstances given to it.
The first point urged on behalf of the respondent must, therefore, be rejected.
The error in the description of the document in the grounds cannot in the situation be said to have vitiated the order.
Mr. Bobde, the learned counsel for the respondent, contended that the plea of the State should be rejected in absence of an affidavit by the detaining authority.
Although it is not an essential requirement of law, the learned counsel proceeded, but the Court in every detention case must insist on such an affidavit to be filed.
It is true that in a case where a point as mentioned above arises the detaining authority should personally affirm on oath the stand taken on his behalf, but it cannot be suggested as an inflexible rule applicable to all detention cases irrespective of the circumstances.
In the present case a further affidavit by Sri Pavitra Narayan Roy Chaudhary, Deputy Secretary, Home Department (Special) of the State of Gujarat was filed stating that the Home Minister Sri Prabodh Raval who was authorised under the Rules of Business framed under Article 166 of the Constitution to pass orders on behalf of the Government in detention matters had ceased to be a Minister before the filing of the affidavit in the High Court, and he was, therefore, not available.
Sri M.T. Parmar, the then Deputy Secretary, Home Department was fully conversant with the case and had filed his affidavit.
The original file was produced before us to dispel any suspicion about the detaining authority having considered the document dated 3.10.1984 and having felt satisfied that it was a proper case for detention of the respondent.
In this background we do not attach much importance to the fact that the affidavit was not filed by the detaining authority personally.
The next point urged by Mr. Bobde was that it was necessary to have mentioned in the grounds (Annexure B) served on the detenu the fact that the detaining authority was of the view that "not much 909 credence could be given to the" statements in the petition dated 3.10.1984.
The state of the mind of the detaining authority while holding that much credence could not be given to the document should be treated to be a ground essential to be served on the detenu.
Reliance was placed on the observations in P.C. Mehta vs Commissioner and Secretary, Government of Kerala and others, [1985] (Supp.) SCC 144.
The contention is that factual inference is included in the expression "grounds" and has to be expressly and specifically stated.
We are afraid, the assumption on which the argument is founded is not correct.
So far as the inference drawn by the detaining authority from the materials on the records and his subjective satisfaction in this regard are concerned, they are expressly stated in the grounds and there cannot be any grievance on that score.
The objection of the respondent, properly analysed, comes to this, that the reason why the detaining authority is not impressed by a particular piece of evidence or on the other hand the reason why he prefers to rely on any other evidence should be detailed in the grounds.
Mr. Bobde urged that if the respondent had known that the detaining authority did not attach much credence to the statements in the petition dated 3.10.1984 he would have attempted to impress upon the relevant authorities to take a contrary view.
We do not find any merit in this contention and hold that it is not necessary to mention in the grounds the reaction of the detaining authority in relation to every piece of evidence separately.
Besides, the recital in Annexure B that the detaining authority formed his opinion after consideration of the aforesaid document by itself clearly implied that he was not impressed by the statement therein.
The detenu cannot, therefore, be heard to say that he was prejudiced in any manner.
As mentioned above, the points pressed on behalf of the respondents before us have been rejected.
Mr. Bobde has contended that several other questions also arise in this case which have not been dealt with by the High Court.
He appears to be right.
The impugned judgment states that several other questions were also raised which were not necessary to be considered as the writ application was succeeding on the first point.
Now in view of our finding mentioned above, it becomes necessary to decide the other questions also.
In the circumstances, we think that the case should go back to the High Court for further hearing.
Accordingly, the impugned judgment is set aside, and the matter is remanded for further hearing and disposal of the case in accordance with law.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary/full:
% The second respondent in the appeal was detained under subsection (1) of section 3 of the .
The grounds of detention Annexure 'B ' served on the detenu stated that information was received by the custom staff that a notorious smuggler and his gang was likely to land packages of contraband goods on the Saurashtra Coast and that the modus operandi of the smugglers ' gang would be to remove the goods to trucks, cover them with cargo of vegetables and grain, and then to drive away.
Vigilance was stepped up by the authorities.
A Truck, an Ambassador Car in the service of the respondent detenu, and a jeep were stopped by the Officers and several persons travelling therein were detained and interrogated.
Incriminating documents were recovered indicating involvment of other vehicles.
Goods of foreign origin valued at over Rs.68 lakhs were also recovered.
The arrested persons gave vital clues about the clandestine business of smuggling that was being carried on and named the 2nd respondent detenu as being directly involved in the business.
The co conspirators made an application for bail on 2.10.1984 and on the following day i.e. 3.10.1984 they filed an application before the Chief Judicial Magistrate retracting some of their earlier statements.
Though the detention order was passed on October 20, 1984, it could not be served on the detenu earlier than July 4, 1986 as he was absconding.
On his arrest the first respondent his nephew, challenged the detention order in the High Court on several grounds, but the High 904 Court allowed the writ petition and quashed the order of detention only on one ground viz. non application of mind by the detaining authority to a vital document i.e. the second application dated 3.10.1984 whereby the other accused persons retracted their earlier statements, and held that this had vitiated the subjective satisfaction of the detaining authority.
In the appeal to this Court it was contended on behalf of the State appellant that the second application dated 3.10.1984 was also placed before the detaining authority and that he had applied his mind thereto.
The document was mentioned in the grounds Annexure 'B ', served on the detenu although it was not actually described as a petition containing the retraction.
The original file dealing with the detenu 's case was also produced for the Court 's perusal.
The appeal was contested on behalf of the respondents by stating that the plea of the State that the second application dated 3.10.1984 had been considered by the detaining authority should be rejected in the absence of an affidavit by the detaining authority, and that it was necessary to have mentioned in the grounds Annexure 'B ', served on the detenu that the detaining authority was of the view "that not much credence could be given to the statements made in the petition dated 3.10.1984".
Allowing the Appeal, ^ HELD: 1.
It is true that in a given case the detaining authority should personally affirm on oath the stand taken on its behalf, but this cannot be suggested as an inflexible rule applicable to all detention cases irrespective of the circumstances.
[908D E] In the instant case, a further affidavit by the Deputy Secretary, Home Department of the State of Gujarat was filed stating that the Home Minister who was authorised under the Rules of Business to pass orders on behalf of the Government in detention matters, had ceased to be a Minister before the filing of the affidavit in the High Court, and he was, therefore not available.
The then Deputy Secretary, Home Department who was fully conversant with the case had to file the affidavit.
[908E F] 2.
The original file dealing with the detenu 's case produced in Court shows that the Home Minister, State of Gujarat, while passing the order for detention made a detailed note running in several para 905 graphs and in paragraph 2 he pointedly mentioned both the bail application dated 2.10.1984 and the petition dated 3.10.1984.
The notes also show that the detaining authority correctly appreciated the nature and purport of the 3rd October document but was of the view that not much credence could in the circumstances be given to it.
[908B C] 3.
So far as the inference drawn by the detaining authority from the materials on the records and his subjective satisfaction were concerned, they are expressly stated in the grounds and there cannot be any grievance on that score.
[909B C] 4.
It is not necessary to mention in the ground of detention the reaction of the detaining authority in relation to every piece of evidence separately.
[909D E] In the instant case, the recital in Annexure 'B ' that the detaining authority formed his opinion after consideration of the document dated 3.10.1984 by itself clearly implied that he was not impressed by the statement therein.
[909E] 5.
Several other questions were raised in the writ petition which were not considered by the High Court, and since the order of the High Court by which it allowed the writ petition has been set aside, it becomes necessary to decide the other questions.
The matter is remanded for further hearing and disposal to the High Court.
[909G] P.C. Mehta vs Commissioner and Secretary, Govt.
of Kerala and others, [1985] Supp SCC 144, referred to.


judgement:
N: Criminal Appeal No. 580 of 1976.
From the Judgment and Order dated 10.10.1975 of the High Court of Punjab and Haryana in Criminal Miscellaneous No. 772 M of 1974.
R.S. Sodhi for the Appellant.
Gopal Subramaniam, Amicus Curiae for the Respondent.
The Judgment of the Court was delivered by NATARAJAN, J.
This appeal by certificate granted under Article 134(1)(c) of the Constitution is directed against the judgment of a Full Bench of the High Court of Punjab and Haryana in Raj Kumar, A.S.I. vs The State of Punjab, [1976] IV C.L.R. (Pb. & Har.) page 39 allowing a petition under Section 561(A) of the Code of Criminal Procedure 1898 filed by the respondent.
The objective in filing the appeal, it was conceded by Mr. R.S. Sodhi, learned counsel for the State is the determination of a larger issue transcending the narrow confines of the quashing of the criminal proceedings against the respondent viz. the construction of Rule 16.38 of the Punjab Police Rules and its applicability to criminal prosecutions launched against the members of the Punjab Police Service for offences under the Indian Penal Code and other Acts.
The controversy regarding the ambit of Rule 16.38 of the Punjab Police Rules has arisen in the following circumstances.
One Jamuna Devi Mukhtiar Kaur gave a report against the respondent, who was an Assistant Sub Inspector in the Punjab Police Service, to the Deputy Superintendent of Police, Patiala alleging command of illegal gratification of Rs.200 by him for releasing her husband and brother on bail bonds in a case pertaining to a land dispute.
A first information report was registered and a trap was laid for the respondent and he was apprehended as soon as the marked currency notes treated with phenolophthalene were handed over to him and the marked currency 939 notes were recovered from him.
After completion of investigation, the respondent was chargesheeted before the Special Judge, Sangrur.
The respondent appeared before the Special Judge and raised an objection to the framing of charges against him on the ground the investigation of the case was in contravention of Rule 16.38.
The Special Judge over ruled the objection and framed charges and posted the case for trial.
The respondent filed a petition before the High Court under Section 561(A) of the Criminal Procedure Code 1898, for quashing the proceedings against him before the Special Judge.
As there were conflicting decisions of the High Court in the interpretation of Rule 16.38, a learned Single Judge referred the matter to a Division Bench and in turn the Division Bench referred the matter to a Full Bench.
A Full Bench of the High Court reviewed the earlier decisions and held that Rule 16.38 is mandatory and not directory in character and secondly the mandate would govern criminal prosecutions as well as departmental enquiries in equal measure and as such any prosecution launched or departmental enquiry held in violation of the terms of the Rule would vitiate the proceedings concerned.
Having interpreted Rule 16.38 thus, the Full Bench noticed that the investigation against the respondent had not been done in accordance with Rule 16.38 and therefore the bench allowed the petition and quashed the charges framed against the respondent.
The High Court, however, granted a certificate under Article 134(1)(c) to the State to file an appeal to this Court and that is how the appeal is before us.
What, therefore, calls for consideration is whether the procedure prescribed in Rule 16.38 calls for observance in the case of departmental enquiries alone or whether it would govern criminal prosecutions also for offences under the Indian Penal Code and other Acts, and secondly whether the Rule is mandatory in character or only directory.
Our task has been considerably lightened by a pronouncement on the first question, with which we are primarily concerned, by another Bench of this Court in the State of Punjab vs Charan Singh, ; declaring that Rule 16.38 cannot govern criminal prosecutions against the members of the Police Force as it cannot over ride the provisions of the Criminal Procedure Code.
In spite of the said pronouncement, with which we are in respectful agreement, we feel it necessary to deal with the matter at some length because of certain misconceptions contained in the judgment of the High Court under appeal.
940 Before we advert to the decisions pertaining to Rule 16.38, we may refer to certain provisions of the and the Punjab Police Rules framed thereunder.
Section 3 of the , confers the right of superintendence of the Police Force throughout the general police district on the State Government and vests in such Government the right to exercise such powers in that behalf.
Section 7 deals with the appointment, dismissal, etc.
of inferior officers.
The Section lays down that the "Subject to the provisions of Article 311 of the Constitution, and to such Rules as the State Government may from time to time make under this Act, the Inspector General, Deputy Inspector General, Asstt.
Inspector General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty or unfit for the same" or to award any of the lesser punishments prescribed under clauses (a) (b) (c) (d) for discharge of duty in a careless or negligent manner etc.
Besides the power conferred on the State Government to make Rules under Section 7, there is also provision under Section 12 for the Inspector General of Police, subject to the approval of the State Government, to frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of police force, the places at which the members of the police force shall reside, the services to be performed by them etc.
for ensuring the efficiency of the police force in the discharge of its duties.
It is in exercise of the powers conferred by Sections 7 and 12 of the that the Punjab Police Rules 1934 have been framed.
The Rules have been categorised under 28 Chapters for dealing with various matters such as organisational setup, uniforms, arms and ammunition, leave, pension, promotions, rewards, punishments, training, supervision, investigation, prosecution etc.
The matters covered by the Rules make it clear that the Rules have been framed for regulating the set up and the service conditions of the police force as well as for awarding them rewards and departmental punishments and other matters of internal administration for keeping efficient and disciplined one.
It is in that perspective Rule 38 of Chapter 16 has to be viewed.
The very first Rule in Chapter 16 sets out the scope and purpose of the Rule comprised in that chapter.
Rules 16.1 reads as follows: "(1) No police officer shall be departmentally punished otherwise than as provided in these rules; (2) The departmental punishments mentioned in the second 941 column of the subjoined table may be inflicted on officers of the various ranks shown in the heading Nos.
3 to 9, by the officers named below each heading in each case, or by any officer of higher ranks".
(Emphasis supplied) Rule 16.38 with which we are concerned, contains 7 sub clauses.
For our purpose it is enough if we extract sub clauses.
1 to 4 and refer in general terms to the contents of Clauses 5 to 7.
"16.38(1) Immediate information shall be given to the District Magistrate or 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 16.38 shall be followed.
An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed.
(3) Ordinarily a magistrate before whom a complaint against a police officer if laid proceeds at once to judicial enquiry.
He is, however, required to report details of the case to the District Magistrate, who will forward a copy of this report to the Superintendent of Police.
The District Magistrate himself will similarly send a report to the Superintendent of Police in cases of which he himself takes cognizance.
(4) The Local Government has prescribed the following supplimentary procedure to be adopted in the case of complaints against police officers in those districts where abuses of the law with the object of victimising such officers or hampering investigation is rife.
The District Magistrate will order that all petitions against police officers shall be 942 presented to him personally.
If he considers that these petitions are of a frivolous or factious nature, it is within his discretion to take no action on them.
When he considers an enquiry to be necessary he will use his discretion whether to send the papers to the Superintendent of Police or to a magistrate for judicial enquiry.
In the case of formal criminal complaints, the District Magistrate will arrange for all cases to be transferred from other courts to his own.
Clauses 5 to 7 relate to strictures passed by the High Court and other courts against police officers and the manner of communication of the strictures to the District Magistrate and the Government.
Different interpretations were given by different Benches of the High Court of Punjab and Haryana regarding the scope and force of rule 16.38.
In Criminal Revision No. 1100 of 1972 (Amarjit Singh vs State of Punjab) H.R. Sharma, J. held that Rule 16.38 debarred criminal proceedings if the same had been instituted without a prior sanction of the District Magistrate.
In Ram Prakash, Asstt.
Sub Inspector vs The State, [1974] Chandigarh Law Reporter 205 Gurnam Singh, J. took a diametrically opposite view.
In Hoshiar Singh vs The State, a Division Bench of the High Court held that Rule 16.38 was attrected in the case of departmental enquiries only and the departmental enquiry would be vitiated if the papers had not been produced before the District Magistrate for getting his sanction at the initial stage.
In Nand Singh vs The Superintendent of Police and another, Current Law Journal(Pb)146 it was held that the Rule was mandatory.
The said view was affirmed by a Full Bench in Nand Mandan Sarup vs The District Magistrate and others, [1966] Current Law Journal (Pb) 608.
It was in that backdrop of conflicting decisions, the petition filed by the respondent herein under Section 561(A) for quashing of the proceedings against him before the Special Judge came to be referred to a Full Bench.
The reasoning of the Full Bench for allowing the respondent 's petition can be summarised thus: "The vests the right of superintendence of the police force in a State on the State Government.
Section 7 of the empowers the State Government to frame rules regarding disciplinary matters and Section 12 em 943 powers the Inspector General of Police, subject to the approval of the State Government, to frame orders and rules relating to the organisation, classification and distribution of the police force, the services to be performed by them etc.
" Hence the rules framed in exercise of powers conferred under section 7 and 12 have the force of law and they constitute a special legislation which takes precedence over the provisions of the Criminal Procedure Code.
Section 4 of the inter alia lays down that the administration of the police, within the jurisdiction of a District Magistrate, shall under his general control and direction, be vested in a District Superintendent and Assistant District Superintendents as the Government may appoint.
Consequently, the District Magistrate has statutory authority to exercise control over the administration of the police force in his District including the launching of criminal prosecutions or holding of Departmental enquiries against a member of the police force.
Rule 16.38 contains a mandatory provision regarding the procedure to be followed when any complaint is received by the Superintendent of Police against a member of the police force regarding the commission of an offence by him in connection with his official relations with the public.
The said rule will apply with equal force to investigations relating to criminal offences for which a prosecution is to be launched as it would to enquiries for taking departmental action through disciplinary proceedings.
On the basis of such reasoning, the Full Bench over ruled the decision in Hoshiar Singh vs State of Punjab (supra).
We will now refer to the decision in Hoshiar Singh (supra), since it has been approved by this Court in State of Punjab vs Charan Singh (supra), and then advert to some decisions of this Court relevant for consideration.
In that case a Sub Inspector of Police was challaned under Section 5(2) of the Prevention of Corruption Act and Section 161, Indian Penal Code and was suspended from service and chargesheeted and thereafter a departmental enquiry followed.
When a show cause notice was served on him on the conclusion of the enquiry intimating him the proposed punishment, he objected to the legality of the enquiry on the ground that no permission of the District Magistrate in accordance with Rule 16.38 of the Punjab Police Rules had been obtained.
The objection was sustained and the departmental enquiry was quashed.
Thereafter, the challan was put into Court and 944 once again an objection was raised that in the absence of a reference to the District Magistrate and his orders thereon directing prosecution, the Special Judge could not take cognizance of the case.
The Special Judge over ruled the objection holding that his powers under the Criminal Law (Amendment) Act were not trammelled by the Punjab Police Rules.
A criminal revision was filed before the High Court against the order of the Special Judge and the High Court dismissed the criminal revision holding thus: "I do not think Rule 16.38 was intended or could have the effect of imposing as a condition precedent to the trial of a police officer in a Court of Law, a sanction or an order by the District Magistrate, as contemplated therein.
The language appears to me to be confined only to departmental enquiries.
The investigation for establishing a prima facie case is merely meant to guide the District Magistrate, uncontrolled by the opinion of the Superintendent of Police, whether or not a departmental proceeding should be initiated against the guilty party, and it is the procedure and the punishment controlling the departmental proceedings alone, which appear to have been prescribed by this rule.
" In Delhi Administration vs Chanan Shah, [1969] 3 S.C.R. 653 an Asstt.
Sub Inspector was censured, after summary enquiry for having received illegal gratification in a case he was investigating.
The Deputy Inspector General of Police revoked the order of censure and directed departmental action being taken.
The departmental enquiry culminated in an order of dismissal against Chanan Shah.
An appeal and revision to the higher authorities having failed, Chanan Shah filed a writ petition which was dismissed by a Single Judge but allowed in writ appeal by a Division Bench and the order of dismissal was quashed.
The Delhi Administration came in appeal to this Court and this Court held that irrespective of whether Rule 16.38 is mandatory or directory, the authorities had failed to substantially comply with the provisions of the Rule and, therefore, the laches vitiated the departmental enquiry.
The same view was taken in a later case Union of India vs Ram Kishan, ; which related to the dismissal of a constable from service pursuant to a disciplinary enquiry being set aside in a civil suit filed by the dismissed constable.
The decree of the Trial Court was affirmed by the Appellate Court and the High Court and in further appeal to this Court, it was held that as no immediate information was given to the District Magistrate in respect of the complaint received 945 against the plaintiff (constable) and secondly since the District Magistrate has also not decided whether the investigating agency should be a police officer or a magistrate, as prescribed by Rule 16.38, the departmental enquiry was vitiated and, therefore, the plaintiff 's suit had been rightly decreed.
In State of Uttar Pradesh vs Babu Ram Upadhya, ; the view taken by the majority of the Bench was that paragraph 486 Rule 1 of U.P. Police Rules was mandatory in character and hence the departmental action taken against the respondent police officer in disregard of the rule was invalid.
It may be noticed that the three decisions of this Court which have been referred to above related to departmental enquiries and not criminal prosecutions for offences committed by the delinquent police officers.
The pronouncements in these cases will therefore govern only cases where departmental enquiries are held in contravention of the procedure prescribed by the Police Rules.
The reason for a special procedure being prescribed in the Rules for investigations before departmental enquiries are held against delinquent police officers is not far off to see.
In the very nature of their duties, the members of the police force would often stand exposed to criticism and complaints by not only the members of the public but also by the members of the force themselves and consequently they stand placed more vulnerable than members of other Government services, of being implicated in false or exaggerated charges.
In order to protect them from false implications and resultant proceedings, the Government had thought it necessary to have an initial screening of the complaints received against members of the police force by the District Magistrate.
Such screening would however extend only to matters which fall within the zone of departmental action and it could never extend to cases where the offences alleged to have been committed would attract investigation under the Criminal Procedure Code in the same manner the investigation would be attracted if the offences complained of had been committed by any member of the public.
That the procedure prescribed in Rule 16.38 has only a limited field of operation i.e. applicable only to departmental enquiries and punishments could be seen from the fact that clause 3 of the Rule enjoins every Magistrate to whom a complaint against a police officer is referred by the District Magistrate for judicial enquiry to report the details of the case to the District Magistrate in order to enable the District Magistrate to forward the report to the Superintendent of Police.
The clause further says that if the District Magistrate himself takes congnizance of a case, he should of his own accord send a report to the Superintendent of Police.
Clause IV of Rule 16.38 also throws light on the matter and brings out the 946 objective in greater clarity.
This clause sets out that in order to protect the interests of police officers serving in districts where petition mongering activities are notorious, the District Magistrate can direct that all petitions complaining about police officers shall be presented to him personally so that he can scrutinize them to find out whether the petitions are of a frivolous nature or they have been engineered by factious groups in the districts etc.
In fact, the words used in the clause are of a tell tale nature viz. "complaints against police officers in those districts were abuses of law with the object of victimising such officers or hampering investigation is rife.
" All these features make it clear that the purpose underlying the rule is to enable the District Magistrate and the District Superintendent of Police to exercise personal control and supervision over the complaints received against members of the police force in the performance of their duties and enable the District Magistrate to ensure that the complaint is not a baseless or mala fide one and secondly to determine whether the complaint requires investigation by a police officer or by a selected magistrate.
The procedure envisaged by the Rule is for effective check being exercised against victimisation of efficient and honest police officers on the one hand and favouritism being shown to the delinquent police officers on the other.
These rules were not intended to replace and certainly cannot over ride the provisions of the Criminal Procedure Code.
The Full Bench was therefore in error in taking the view that the Rules lay down a special procedure for investigation of all offences committed by the members of the police force and, that they have over riding effect over the provisions of the Criminal Procedure Code in terms of Sections 4 and 5 of the Code.
We may now refer to some other decisions where it has been laid down that the provisions of the cannot prevail over the provisions of the Indian Penal Code.
In Maulud Ahmad vs State of U.P., [1963] (Supp) 2 S.C.R. 38, the appellant who was a head constable contended that the prosecution launched against him was barred by limitation under Section 42 of the because the prosecution had been launched beyond the period of three months prescribed by Section 42.
The contention was rejected and it was pointed out that the period of three months prescribed under Section 42 for commencing a prosecution would govern only prosecutions of a police officer for something done or intended to be done by him under the provisions of the or under general police powers given by the Act and Section 42 would not apply to prosecutions against a police officer for anything done under the provisions of any other Act or under 947 Police powers conferred under any other Act.
It was also brought to focus that Section 36 of the explicitely provides that nothing contained in the said Act shall be construed to prevent any person from being prosecuted under any Regulation or Act for any offence made punishable by the Act or for being liable under any other Regulation or Act or any other or higher penalty or punishment that is provided for such offence by the .
The above ratio was followed in Ajaid Singh vs Joginder Singh, ; In yet another case viz. S.N. Sharma vs Bipen Kumar Tiwari & Ors., it was held that the power of the police to investigate a cognizable offence is uncontrolled by the Magistrate and it is only in cases where the police decided not to investigate the case that the Magistrate can intervene and either direct an investigation, or in the alternative himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case and that the powers of the police to investigate have been made independent of any control by the Magistrate.
Lastly, we come to the decision in the State of Punjab vs Charan Singh (supra) where the identical question under consideration had come up for determination by this Court.
The respondent therein was convicted by the Special Judge, Ludhiana of an offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and sentence to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 100.
On appeal, a Single Judge of the High Court acquitted the respondent on the ground the prosecution was vitiated by reason of non compliance with the provisions of Rule 16.38 of the Punjab Police Rules, 1934.
In the appeal preferred by the State, this Court allowed the appeal and held as follows: "A perusal of Chapter XVI of the Punjab Police Rules shows that the provisions of the Chapter deal with departmental punishments and the procedure to be followed in imposing such punishments.
Guidance is given as to how police officers guilty of misconduct and criminal offences may be dealt with . . .It is clear that Rule 16.38 is not designed to be a condition precedent to the launching of a prosecution in a criminal court; it is in the nature of instructions of the department and is not meant to be of the nature of a sanction or permission for a prosecution nor can it over ride the provisions of the Cr.
P.C. and the Prevention of Corruption Act.
We agree with the observations of Dua and Mahajan, JJ in Hoshiar Singh vs State (supra).
" 948 Though the decision of the Full Bench of the Punjab High Court which is now under consideration had not been brought to the notice of the Learned Judges when they rendered judgment in State of Punjab vs Charan Singh, we are in full agreement with the pronouncement of the Bench as the conclusion therein accords with our own conclusion and the reasons therefore.
We therefore hold that the Full Bench was in error in taking the view that the Punjab Police Rules read in conjunction with the prescribe a different procedure for the investigation and prosecution of offences committed by Police officers under the I.P.C. or other Acts in connection with their relations with the public and that the rules constitute a special statute and take precedence over the provisions of the Cr.
The Full Bench has failed to note that Rule 16.38 only mandates the investigation of cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder.
We therefore hold that the decision of the Full Bench under appeal in Raj Kumar, A.S.I. vs The State of Punjab (supra) is not in accordance with law and has to be set aside.
However, as mentioned at the outset, the State is not interested in reviving the charges against the respondent and pursuing the trial because of the long lapse of time.
Therefore, while allowing the appeal and setting aside the judgment of the High Court, we leave undisturbed the quashing of the charges framed against the respondent.
Since the respondent did not enter appearance or engage a counsel to contest the appeal in spite of the notice served on him, we requested Mr. Gopal Subramaniam, Advocate, to act as amicus curiae and render assistance to the Court on behalf of the respondent.
Mr. Gopal Subramaniam readily complied with our request and placed all the authorities for our consideration and we thank him for his assistance and place on record our appreciation of the services rendered by him.
H.S.K. Appeal allowed.

summary/full:
% The respondent was apprehended while taking bribe.
Investigation was held and the respondent was chargesheeted before the Special Judge.
The respondent raised an objection to the framing of charges against him on the ground that the investigation of the case was in contravention of rule 16.38 of the Punjab Police Rules.
The Special Judge overruled the objection and framed charges and posted the case for trial.
The respondent filed a petition before the High Court under section 561(A) of the Code of Criminal Procedure, 1898, for quashing the proceedings against him before the Special Judge.
A full bench of the High Court held that rule 16.38 is mandatory and not directory in character and that the mandate would govern criminal prosecution as well as departmental inquiries in equal measure.
The full bench having noticed that the investigation against the respondent had not been done in accordance with rule 16.38 allowed the petition and quashed the charges framed against the respondent.
Hence this appeal filed by certificate issued by the High Court.
Allowing the appeal and setting aside the High Court 's judgment this Court, ^ HELD: The procedure prescribed in rule 16.38 has only a limited field of operation that is applicable only to departmental inquiries and punishments.
This could be seen from the fact that clause 3 of the rule enjoins every Magistrate to whom a complaint against a police officer is referred by the District Magistrate for judicial enquiry to report the details of the case to the District Magistrate in order to enable the District Magistrate to forward the report to the Superintendent of Police.
The clause further says that if the District Magistrate himself takes cognizance of a case he should of his own accord send a report to 937 the Superintendent of Police.
Clause IV of rule 16.38 also throws light on the matter and brings out the objective in greater clarity.
This clause sets out that in order to protect the interest of police officers serving in districts where petition mongering activities are notorious, the District Magistrate can direct that all petitions complaining about police officers shall be presented to him personally so that he can scrutinize them to find out whether the petitions are of a frivolous nature or they have been engineered by factious groups in the districts etc.
In fact, the words used in the clause are of a tell tale nature viz. "complaints against police officers in those districts where abuses of law with the object of victimising such officers or hampering investigation is rife.
" [945F H; 946A B] The purpose underlying the rule is to enable the District Magistrate and the District Superintendent of Police to exercise personal control and supervision over the complaints received against members of the police force in the performance of their duties and enable the District Magistrate to ensure that the complaint is not a baseless or mala fide one and secondly to determine whether the complaint requires investigation by a police officer or by a selected Magistrate.
The procedure envisaged by the rule is for effective check being exercised against victimisation of efficient and honest police officers on the one hand and favouritism being shown to the delinquent police officers on the other.
These rules were not intended to replace and certainly cannot over ride the provisions of the Criminal Procedure Code.
[946C E] In the instant case the Full Bench was in error in taking the view that the Punjab Police Rules read in conjunction with the Police Act prescribe a different procedure for the investigation and prosecution of offences committed by Police Officer under the I.P.C. or other Acts in connection with their relations with the public and that the rules constitute a special statute and take precedence over the provisions of the Cr.
The Full Bench has failed to note that Rule 16.38 only mandates the investigation of cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder.[948B C] Raj Kumar, A. section I. vs The State of Punjab, [1976] IV CLR (Pb. & Har.) page 39, overruled.
State of Punjab vs Charan Singh, ; , referred to/agreed to.
Delhi Administration vs Chanan Shah, [1969] 3 S.C.R. 653; 938 Union of India vs Ram Kishan, ; ; State of Uttar Pradesh vs Babu Ram Upadhya, ; ; Maulud Ahmad vs State of U.P., [1963] (Supp.) 2 S.C.R. 38; Ajaib Singh vs Joginder Singh, ; and S.N. Sharma vs Bipan Kumar Tiwari & Ors.
,[1970] 1 S.C.C. 653, referred to.