Holding

Rule 16.38 is limited to departmental inquiries and punishments and does not govern criminal prosecutions nor override the provisions of the Criminal Procedure Code.

Summary

The respondent, an Assistant Sub‑Inspector, was caught taking a bribe and was investigated and charge‑sheeted in a criminal trial. He challenged the framing of charges on the ground that the investigation violated Rule 16.38 of the Punjab Police Rules. The High Court held the rule to be mandatory and applicable to criminal prosecutions, quashed the charges and the State appealed. The Supreme Court held that Rule 16.38 governs only departmental inquiries and punishments, is not a condition precedent for criminal prosecution, and cannot override the Criminal Procedure Code. Consequently, the High Court’s judgment was set aside, but the quashing of the charges was left undisturbed as the State chose not to revive the case.

Issues considered

Whether Rule 16.38 of the Punjab Police Rules is mandatory or directory.
Whether Rule 16.38 applies only to departmental inquiries or also to criminal prosecutions under the IPC and other statutes.
Whether non‑compliance with Rule 16.38 vitiates a criminal prosecution.

Legislation cited

Criminal Procedure Code, 1898s. 4, s. 5, s. 561
Indian Penal Code, 1860s. 161
Police Act, 1861s. 12, s. 3, s. 36, s. 4, s. 7
Prevention of Corruption Acts. 5(1)(d), s. 5(2)

Subjects

Punjab Police RulesRule 16.38departmental inquirycriminal prosecutionmandatory vs directoryPolice Act 1861Criminal Procedure Codesanctionquashing of chargesappeal

Judgment

A STATE OF PUNJAB
v.
r...
I
...

RAJ KUMAR

FEBRUARY 11, 1988

B [A.P. SEN AND S. NATARAJAN, JJ.]

Punjab Police Rules, 1934 framed under the Police Act 186 ! -
t
Rule 16.38-Jnterpretation of-Whether Mandatory or directory in
nature-Scope of-Whether applicable to departmental inquiries alone
or would govern criminal proceedings also under J.P. C. and other acts.
Held-Applicable to departmental inquiries only.
c
The respondent was apprehended while taking bribe. Investiga- ~,
tioil 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
D 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 56l(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
r
-
E 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.
F
Allowing the appeal and setting aside the High Court's judgmeni I"
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
G 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 y
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
H takes cognizance of a case he should of his own accord send a report to
936
STATE OF PUNJAB v. RAJ KUMAR 937
• the Superintendent of Police. Clause IV of rule 16.38 also throws light
"' . 1
\ on the matter and hriugs out the objective iu greater clarity. This clause
sets out that in order to protect the interest of police officers serving in
A

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 Ibey have been B
- 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 victimis-
ing such officers or hampering investigation is rife." [945F-H; 946A-B]

The purpose underlying the rule is to enable the District Magis-
trate and the District Superintendent of Police to exercise personal
c
control and supervision over the complaints received against members of
the police force in the performance of their duties and enable the Dis-
trict Magistrate to ensure that the complaint is not a baseless or mala
lide one and secondly to determine whether the complaint requires
investigation by a police officer or by a selected Magistrate. The proce- D
> dure 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]
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 consti-
tute a special statute and take precedence over the provisions of the Cr. F
P.C. 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.S.l. v. The State of Punjab, [1976] IV CLR (Pb. & G
Har.) page 39, overruled.
y
State of Punjab v. Charan Singh, [1981] 2 SCC 197, referred
to/agreed to.

Delhi Administration v. Chanan Shah, [1969] 3 S.C.R. 653; H
I 938 SUPREME COURT REPORTS (1988] 2 S.C.R.

A Union of India v. Ram Kishan, (1971] 2 S.C.C. 349; State of Uttar
Pradesh v. Babu Ram Upadhya, [1961] 2 S.C.R. 679; Maulud Ahmad
v. State of U.P., (1963] (Supp.) 2 S.C.R. 38; Ajaib Singh v. Joginder
Singh, (1969] 1 S.C.R. 145 and S.N. Sharma v. Bipan Kumar Tiwari &
Ors., (1970] 1 S.C.C. 653, referred to.

B CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 580 of i976.
'r ~

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.
c R.S. Sodhi for the Appellant.

Gopal Subramaniam, Amicus Curiae for the Respondent.
~
The Judgment of the Court was delivered by
D
NATARAJAN, J. This appeal by certificate granted under Arti- < .
cle 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. v. 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
E 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 a
Rules and its ::.pplicability to criminal prosecutions launched against
F the members of the Pun jab Police Service for offences under the
Indian Penal Code and other Acts.
y
The controversy regarding the ambit of Rµle 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
G Assistant Sub Inspector in the Punjab Police Service~ to the Deputy '
Superintendent of Police, Patiala alleging command of illegal gratifica-
tion of Rs.200 by him for releasing h_er husband and brother on bail y
_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
H phenolophthalene were handed over to him and the marked currency
STATE OF PUNJAB v. RAJ KUMAR [NATARAJAN, J.J 939

. 1 notes were recovered from him, After completion of investigation, the A
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
8
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 con-
flicting 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 C
tum 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 departmen-
tal enquiries in equal measure and as such any prosecution launched or
0
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 respon-
, dent 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 E
how the appeal is before us.

What, therefore, calls for consideration is whether the procedure
J prescribed in Rule 16.38 calls for observance in the case of departmen-
tal enquiries alone or whether it would govern criminal prosecutions
' also for offences under the Indian Penal Code and other Acts, and F
·"' l. 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 v. Charan Singh, [1981) 2
SCC 197 declaring that Rule 16.38 cannot govern criminal prosecu-
tions against the members of the Police Force as it cannot over-ride G
the provisions of the Criminal Procedure Code. In spite of the said
y 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.
H
940 SUPREME COURT REPORTS [1988) 2 S.C.R.

Before we advert to the d~cisions pertaining to Rule 16.38, we
A may refer to certain provisions of the Police Act 1861 and the Punjab
Police Rules framed thereunder. Section 3 of the Police Act, 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
B 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 Superinten- ...
dents of Police may at any time dismiss, suspend or reduce any police
officer of the subordinate ranks whom they shall think remiss or negli-
C gent 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
D 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
E by Sections 7 and_ 12 of the Police Act 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 set-
up, uniforms, arms and ammunition, leave, pension, promotions,
rewards, punishments, training, supervision, investigation, prose-
cution etc. The matters covered by the Rules make it clear that the
p 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 administra-
tion for keeping efficient and disciplined one. It is in that perspective
.Y
Rule 38 of Chapter 16 has to be viewed.

G 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:
y
"(1) No police officer shall be departmentally punished
otherwise than as provided in these rules;

H (2) The departmental punishments mentioned in the second
STATE OF PUNJAB v. RAJ KUMAR [NATARAJAN, J.I 941

column of the subjoined table may be inflicted on officers A
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 ranRs".
(Emphasis supplied)

t,'
Rule 16.38 with which we are concerned, contains 7 sub-clauses. For B
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
c

"'
r- by a police officer of a criminal offence in connection with
his official relations with the public. The District Magis-
!rate will decide whether the investigation of the complaint
shall be conducted by a police officer, or made over to a
selected magistrate having lst class powers.
D
• (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 re-
corded. When it is decided to proceed departmentally the
-i procedure prescribed in rule 16.38 shall be followed. An E

- ~
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 F
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.
G
(4) The Local Government has prescribed the following
y supplimentary procedure to be adopted in the case of corn-
plaints 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 H
' 942 SUPREME COURT REPORTS [1988] 2 S.C.R.

A presented to him persoqally. If he considers that these peti-
tions 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.
B
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
...
c 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 v.
D State of Punjab) H.R. Sharma, J. held that Rule 16.38 debarred crimi-
nal proceedings if the same had been instituted without a prior •
sanction of the District Magistrate. In Ram Prakash, Asstt. Sub_
Inspector v. The State, [1974] Chandigarh Law Reporter 205 Gurnam
Singh, J. took a diametrically opposite view. In Hoshiar Singh v. The
State, [1965] PLR 438 a Division Bench of the High Court held that
E 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 v. The Superintendent of Poliee and
another, Current Law Journal(Pb)l46 it was held that the Rule was
mandatory. The said view was affirmed by a Full Bench in Nand
1<.
-
F Mandan Sarup v. 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.

G The reasoning of the Full Bench for allowing the respondent's
petition can be summarised thus:
y
"The Police Act vests the right of superintendence of the
police force in a State on the State Government. Section 7
of the Police Act empowers the State Government to frame
rules regarding disciplinary matters and Section 12 em-
STAIB OF PUNJAB v. RAJ KUMAR [NATARAJAN, J.J 943

powers the Inspector General of Police, subject to the A
approval of the State Government, to frame orders and
rules relating to the organisation, classification and distri-
bution 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 B
over the provisions of the Criminal Procedure Code.
Section 4 of the Police Act inter alia lays down that the
administraton 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 statu- c
tory 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 D
followed when any complaint is received by the Superin-
tendent of Police against a member of the police force re-
garding 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 E
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 v.
State of Punjab (supra).

We will now refer to the decision in Hoshiar Singh (supra), since F
• '- it has been approved by this Court in State of Punjab v. 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 charge-
sheeted and thereafter a departmental enquiry followed. When a G
show cause notice was served on him on the conclusion of the enquiry
y intimating him the proposed punishment, he objected to the legality of
the enquiry on the ground that no permission of the District Magis-
trate 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 H
944 SUPREME COURT REPORTS [1988] 2 S.C.R.

once again an objection was raised that in the absence of a reference to •
A
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
B 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 w!
police officer in a Court of Law, a sanction or an order by
the District Magistrate, as contemplated therein. The
c language appears to me to be confined only to departmen-. ~
tal 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
D be initiated against the guilty party, and it is the procedure
and the punishment controlling the departmental proceed- r ,
ings alone, which appear to have been prescribed by ·this
rule."

In Delhi Administration v. Chanan Shah, [1969] 3 S.C.R. 653 an
E Asst!. 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 culmina-
ted in an order of dismissal against Chanan Shah. An appeal and " ·,
revision to the higher authorities having failed, Chanan Shah filed a
F 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 J
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 !aches vitiated the departmental enquiry.
G The same view was taken in a later case Union of India v. Ram Kishan, ~.
[1971] 2 S.C.C. 349 which related to the dismissal of a constable from
service pursuant to a disciplinary enquiry being set aside in a civil suit y
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
H given to the District Magistrate in respect of the complaint received
STATE OF PUNJAB v. RAJ KUMAR INATARAJAN, J.I 945
"·:u
-,', against the plaintiff (constable) and secondly since the District Magis- A
trate has also not decided whether the investigating agency should be ·a
.;;. police officer or a magistrate, as prescribed by Rule 16.38, the depart-
mental enquiry was vitiated and, therefore, the plaintiff's suit had
been rightly decreed. In State of Uttar Pradesh v. Babu Ram Upadhya,
[1961] 2 S.C.R. 679 the view taken by the majority of the B,ench was
that paragraph 486 Rule 1 of U .P. Police Rules was mandatory in B
character and hence the departmental action taken against the respon-·
•' f dent police officer in disregard of the rule was invalid.
1
'
... It may be noticed that the three decisions of this Court which
have been referred to above related to departmental enquiries and not

r
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
c
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 D
"''
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 impli-
'-f cations and resultant proceedings, the Government had thought it E

-
\

'
necessary to have an initial screening of the complaints received
against members of the police force by the District Magistrate. Such
screening
zone of
would however extend only to matters which fall within the
departmental action and it could never extend to cases where
the offences alleged to have been committed would attract investiga-
tion under the Criminal Procedure Code in the same manner the in- F
) vestigation would be attracted if the offences complained of had been
- committed by any member of the public. That the procedure pres-
cribed 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 en joins every Magistrate to whom a
' complaint against a police officer is referred by the District Magistrate G
for judicial enquiry to report the details of the case to the District
y 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 H
946 SUPREME COURT REPORTS [19881 2 S.C.R.

A objective in greater clarity. This clause sets out that in order to protect r
the interests of police officers serving in districts where petition mon-
gering 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
B 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 t'
districts were abuses of law with the object of victimising such officers
or hampering investigation is rife." ~
.,t.'-
!I
All these features make it clear that the purpose underlying the
C rule is to enable the District Magistrate and the District Superinten-
dent 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 ma/a fide one and
secondly to determine whether the complaint requires investigation by
D 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 provi-
sions of the Criminal Procedure Code. The Full Bench was therefore in
E 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
F down that the provisions of the Police Act cannot prevail over the ,
provisions of the Indian Penal Code. In Maulud Ahmad v. State of \ /
U.P., [1963] (Supp) 2 S.C.R. 38, the appellant who was a head const- ,.{
able contended that the prosecution launched against him was barred
by limitation under Section 42 of the Police Act because the prosecu-
tion had been launched beyond the period of three months prescribed ,
G by Section 42. The contention was rejected and it was pointed out that
the period of three months prescribed under Section 42 for commenc-
ing a prosecution would govern only prosecutions of a police officer Y
for something done or intended to be done by him under the provi-
sions of the Police Act or under general police powers given by the Act
and Section 42 would not apply to prosecutions against a police officer
.H for anything done under the provisions of any other Act or under •,
'
i STATE OF PUNJAB v. RAJ KUMAR [NATARAJAN, J.] 947
l.. i
I Police powers conferred under any other Act. It was also brought to
focus that Section 36 of the Police Act explicitely provides that nothing A
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 Regu-
lation or Act or any other or higher penalty or punishment that is
: provided for such offence by the Police Act. The above ratio was B
-f I followed in Ajaid Singh v. Joginder Singh, [1969) tS.C.R. 145. In yet
i another case viz. S.N. Sharma v. Bipen Kumar Tiwari & Ors., [1970) 1

.,. r ' S.C.C. 653 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
+l'itemative himself .proceed or depute a Magistrate subordinate t? him C
1 to proceed to enqmre mto 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 v. Charan D
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( l)(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 E

- 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 F
shows that the provisions of the Chapter deal with depart-
mental 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 G
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 Preven-
tion of Corruption Act. We agree with the observations of
Dua and Mahajan, JJ in Hoshiar Singh v. State (supra)." H

I
948 SUPREME COURT REPORTS [1988] 2 S.C.R.

A Though the decision of the Full Bench of the Punjab High Court 'r
which is now under consideration had not been brought to the notice
of the Learned Judges when they rendered judgment in State of Punjab ,..
v. 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
B error in taking the view that the Punjab Police Rules read in conjunc·
tion with the Police Act prescribe a different procedure for the investi· i"' ,
gation 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 prece· .,..,
dence over the provisions of the Cr.P.C. The Full Bench has failed to ·~
C note that Rule 16.38 only mandates the investigation of cases pertain·
ing to departmental enquiries and the holding of departmental en,---'\'
quiries 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. v. The State of Punjab (supra) is not in accordance with
law and has to be set aside. However, as mentioned at the outset, the
D 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.

E 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 assist·
F ance and place on record our appreciation of the services rendered by ,
him. J'
H. S. K. Appeal allowed.