Om Prakash vs State

(1) This judgment will dispose of Criminal revision petition No : 32 of 1979 titled Om Prakash Vs. State' and Criminal Revision Petition No : 36 of

1979 titled 'Kuldeep Rai Vs State as identical questions of law and fact involved in both the petitions.

(2) Briefly stated the facts giving rise to the petition are that the Anti Corruption Organization challenged the petitioners Om Prakash Sethi and

Kuldeep Rai, relevant time serving as Assistant SubInspectors of Police, in two separate cases in the court of learned Special Judge,

antiCorruption, Jammu for offences under section 5 (2) of the Prevention of Corruption, Act, 2006. Both the accused were later on charge sheeted by the learned Special Judge for offences under section 5 (2) read with section 5 (1) (d) of the J&K. Prevention of Corruption Act, 2006.

At the stage when the court started recording prosecution evidence, both the accused submitted applications stating therein that since the investigating agency had not followed the mandatory requirements of Rule 347 of the J&K Police Rules their prosecution was vitiated and they could not be tried by the Court. The applications were resisted by the prosecution. The learned Special Judge dismissed the applications vide his order dated 27279. Aggrieved, the petitioners have come up to this court by means of the above noted revision petitions seeking quashing of the

proceedings.

(3) That the petitioners were challaned by the Anti Corruption Organization and charge sheeted by the learned Special Judge for offences under

section 5 (2)/5 (l)(d) of the Prevention of Corruption Act 2006 is not denied. It is also not disputed that Rule 349 of the J&K Police Rules was not complied with before the prosecution against the petitioners was launched The argument of the learned Addl. Advocate General, however, is that

Rule 349 of the J&K Police Rules has no application to the facts of the instant cases and as such its compliance was not warranted. Mr. Bakshi,

learned counsel for the petitioners, however, asserts that' Rule 349 of the Police Rules was applicable to the case and its noncompliance has rendered the prosecution illegal.

(4) The only short question which, therefore falls foi determination in this case is the applicability or otherwise of Rule 349 of the J&K Police Rules

to the facts of the present case.

(5) To properly appreciate the controversy it is first desirable to note the provisions of Rule 349.

(6) Rule 349, which appears in Chapter XI of the J&K Police Rules, reads thus :

Criminal offence by police officers and strictures by Court.(l) Whenever a Superintendent of Police receives a complaint against a police officer that colour of his duties he has committed an offence, as defined in the Ranbir Penal Code the substance of the complaint shall be reported immediately to the District Magistrate who will decide whether the investigation of the complaint shall be conducted by a Police Officer or by a

Magistrate. If he decides that the investigation of a trial or an inquiry under the Criminal Procedure Code should be held by a Magistrate, he shall proceed according to the instructions laid down in the Rules and Orders (Criminal) for the Guidance of Courts subordinate to the High Court.

These instructions are quoted in Appendix XII.

(2) When the District Magistrate decides that the matter shall be disposed of departmentally the procedure prescribed in these rules for the holding

of departmental enquiries shall be followed.

(3) An inquiry shall be made in every case in which the conduct of a police officer is censured by a court (vide Appendix XIII) in all such cases a

copy of the judgment shall be sent to the District Magistrate who shall decide whether an inquiry is to be made departmentally or by a magistrate.

When such inquiry indicates the commission of an offence as defined in the Ranbir Penal Code, the procedure laid down in subrule (1) shall be

followed. Where departmental inquiry is ordered the result of the departmental inquiry shall be communicated to the District Magistrate.

(4) Under rule I (6) of Chapter XVI of the Rules and Orders (Criminal) for the Guidance of Courts Subordinate to the High Court Magistrates are

required to exercise care in making entries of censure on police officers in their judgments, and it is desirable that they should make remarks in criminal cases censuring the action of police officers, unless they are supported by the evidence given in the course of the trial and are material to the decision. If remarks to which exception can be taken come to notice, they should be referred in the first instance to the District Magistrate.

(7) According to Mr. Bakshi, learned counsel for the petitioner, it was incumbent on the Superintendent of Police to first send the substance of the

complaint against the police officers to the District Magistrate for his decision whether the investigation of the complaint was to be conducted by a

Police Officer or by a Magistrate and also to decide whether the case should be tried in the court of law or dispose of departmentally within the meaning of SubRule (1) of Rule 349 (Supra). According to the learned counsel, the noncompliance with subrule (1) of Rule 349 has vitiated the

proceedings. It is maintained that Rule 349 is mandatory in character and leaves no option with the authorities but to comply with its requirements.

(8) A careful reading of Rule 349 (1) (Supra) show that whenever a Superintendent of Police receives a complaint against a Police Officer that

under colour of his duties he has committed an offence, as defined in the RFC he shall submit a substance of the complain to the District Magistrate for the decision whether or not the case should be tried in a court of law or disposed of departmentally. It is however, manifest that the rule has to be complied with only where the complaint against the police officer discloses the commission of an offence as defined in the Ranbir Penal code

The offences for which the petitioners have been charged are under section 5 (2) read with S. 5 (1) of the Prevention of Corruption Act 2006.

They have not been charged with in offence under the RFC. SubRule (1) of Rule 349 would be attracted only when the act complained of against the police officer is an offence as defined in the Ranbir Penal Code This view finds support from the decision of a Division Bench of this Court in

'State of J&K Vs Gula Khan' reported in 1980 KLJ 139. Their lordships held in that case that Subrule (1) of Rule 349 would apply where the Act complained of constitutes an offence punishable under RFC as also where the act constitutes more than one offences, one of which is punishable under the RFC. Their Lordships further opined that the operation of the Rule would be barred where the Act complained of does not touch the precincts of the RFC at all

(9) Thus, I find no difficulty in holding that Rule 349 of the J&K Police Rules has relationship only to an offence under the RFC and not to offences

under other Special Acts.

(10) Lot of emphasis was laid by Mr Bakshi on a judgment of the Punjab and Haryana High Court reported in 1976 Chandigarh Law reporter 39

to urge that Rule 349 of the Police Rules needs to be complied with even in cases where the offence charged is not under the Penal Code but is an offence covered by a Special Act.

(11) The corresponding rule under the Punjab Police Rules is Rule 26. 38. It was this rule which was considered in the said judgment. The said

rule reads as under :

(1) Immediate information shall be given to the District Magistrate of any complaint received by the S. P. 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 established a primafacie case, a judicial prosecution shall normally follow the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in rule 16. 24 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed.

(12) A joint reading of Rule 349 of J&K Police Rules and Rule 16. 38 of the Punjab Rules (Supra) reveals that there is a basic difference between

the two Rules. Whereas Rule 349 of J&K Police Rules restricts its scope and applicability to offences as defined in the Ranbir Penal Code, Rule

38 of the Punjab Police Rule has a much wider scope and has relationship with any ""criminal offence. "By using the expression" ""Criminal

offence"" in Rule 16. 38 of the Punjab Police Rules, it is obvious that the intention was to bring within the scope of Rule 16 38 all such cases where

the complaint indicate the commission by a police officer, of any 'criminal offence' in connection with his official relationship with the public ; The

Rule making authority in the J&K, however restricted the scope of Rule 349 in its applicability to the offence under the Ranbir Penal Code and did

not extend it to all "criminal offences". Therefore, the judgment of the Punjab and Haryana High Court (Supra) is clearly distinguishable and has no

application to the present case.

(13) For what has been said above, it follows that Rule 349 of the J&K Police Rules has no application to the case of a police officer charged only

under the Prevention of Corruption Act, 2006. In this view of the matter, there was no requirement of complying with Rule349 in the instant case.

The challenge to the validity of the impugned order is, therefore, untenable. The revision petitions are accordingly dismissed. The record of the case is directed to be sent back to the learned special Judge for disposal in accordance with law.

(14) The petitioners, through their learned counsel are directed to appear before the learned Special Judge on 2621981.