Kanhaiya Lal vs I.G. of Police Northern Range, Bareilly UP and another

Mootham, C.J.—This an appeal from an order of Mr. Justice Chaturvedi dated 7-2-1957, dismissing a petition u/Art. 226 of the Constitution. On 22-10-1955, the Appellant who was a police constable, was served with a charge sheet u/s 7 of the Police Act in which it was alleged that he had been remiss in the discharge of his duties as a police officer and unfit for the same in that he had committed certain acts of misconduct, particulars of which were specified in the charge. The Dy. S. P. who couducted the inquiry found the charges to be established, and by an order dated 22-5-1956 he dismissed the Appellant from police force. The Appellant then appealed to the I. G. of Police, Northern Range, Bireilly, but his appeal was dismissed by an order dated 12-10-1956. The Appellant then filed a petition in this Court in which he questioned the validity of the order dismissing him from service on a number of grounds. That petition was dismissed by Mr. Justice Chaturvedi by the order which is the subject of the present appeal.

One poiut only has been argued on behalf of the Appellant. It is that as the acts of misconduct which formed the basis of the charge against the Appellant u/s 7 of the Police Act were committed by him more than three months prior to the date upon which he was served with the charge sheet, a departmental trial u/s 7 of the Act was barred by S. 42 of that Act. This contention was raised before the learned Judge and was rejected by him. Mr Justice Mehrotra in Mohammad Hanif Ashan Ullah Khan v. The Dy. S. P. Muzaffarnagar 1957 AIR All. 634 has also held that the provision of S. 42 of the Police Act have no application to a departmental trial u/s 7 of that Act. With that view we are, with respect in entire agreement.

S. 42 of the Police Act provides that all actions and prosecution against any person, which may be lawfully Drought for anything done or intended to be done under the provisions of this Act, or under the general police powers given thereby, shall be commenced within three months after the act complained of shall have been committed. It is not suggested that the proceedings against the Appellant amount to a prosecution, but it is argued that such proceedings are included within the word actions as used in this section. We. however, agree with Mr. Justice Chaturvedi that the word action as used in this section means a civil suit. That that is so is, in our opinion made clear by the second para of S. 42 the open-words of which are "No Plaintiff shall recover in any such action if tender of sufficient amend shall have been made......"

It is further to be observed that S. 42 must be read in conjunction with the first schedule to the Indian Limitation Act of 1871, which provides that:

So much of S. 42"-that is of the Police Act-

as relates to the limitation of suits is repealed.

As a consequence of this repeal it was held in Mohammad Sharif v. Nasir Ali AIR1930 All.743 that after the coming into force of the Indian Limitation Act of 1871 the period of limitation for suits (which before that Art came into force would have fallen within the ambit of S. 42) is governed by the Indian Limitation Act and not by that section.

S. 42 is intended as a protection to police officers against action and prosecutions brought by a third party, in respect of anything done or intended to be done by them in the performance of their duties. It has no relation to departmental enquiries instituted u/s 7.

We are accordingly of opinion that there is no substance in this appeal, which is dismissed.