MAHALINGA Vs. D I G OF POLICE

JUDGEMENT

(1.) This Writ Petition is by a Sub-Inspector of Police who has been dismissed from service on the basis of the conduct which has led to his conviction, on a criminal charge under Section 353 of the Indian Penal Code.

(2.) The facts of the case are as follows:--While the petitioner was working as Sub-Inspector of Police at Mangalore a criminal case was filed against him on a charge under Section 353 IPC., that he assaulted a police constable who was discharging his public duty. By his order dated 23-3-82 the Learned Judicial Magistrate First Class (II Court) Mangalore, held the petitioner guilty of the charge levelled against him and imposed the penalty of Rigorous Imprisonment for a period of three months. Aggrieved by the said conviction and sentence the petitioner preferred an appeal before the Sessions Judge, Dakshina Kannada at Mangalore in Cr. A. No. 27/82 on 29-3-82. The Learned Sessions Judge, in exercise of the powers under Section 389(1) of the Cr.P.C. suspended the execution of the sentence. The operative portion of the order reads :

(3.) To the said notice the petitioner furnished his reply. His Stand was as the sentence had been suspended, no penalty could be imposed, having regard to the wording of Rule 9 of the Karnataka State Police (Disciplinary Proceedings) Rules, 1965. The disciplinary authority however did not agree with the petitioner. He proceeded to impose the penalty of dismissal from service. Aggrieved by the said order the petitioner has presented this Writ Petition. Sri P. Vishwanatha Shetty, Learned Counsel for the petitioner has urged the following two contentions : 1. In view of the interim order made by the Learned Sessions Judge, the sentence as well as the conviction got suspended and therefore there was no conviction on the basis of which the disciplinary authority could act and impose the penalty of dismissal from service against the petitioner. 2. in any event even if the interim order issued by the Learned Sessions Judge is to be understood as suspending the sentence only, it clearly follows from that order that no sentence is imposed so far against the accused and therefore in view of the wording of Rule 9 of KSP(DP) Rules the disciplinary authority had no authority to impose the penalty.