BALVANTSINGH BHIMSINGH Vs. N RAMA IYER IGP

JUDGEMENT

(1.) This is a petition under Articles 226 and 227 of the constitution of India in which the main point for consideration is whether the revisional power over an acquittal order conferred on the Inspector General of Police by an amendment introduced on 4th January 1962 in rule 17 of the Bombay Police (Punishments and Appeals) Rules 1956 (hereafter called the rules) has or has not retrospective action. Petitioner Balvantsingh Bhimsingh was at the relevant time an unarmed police constable attached to the Dabhoi Police Station. On May 9 1961 an incident took place in which a bribe is alleged to have been taken by another member of the police force in the presence and with the connivance of petitioner. On 12th July 1961 petitioner was suspended. On 18 July 1961 petitioner and two more constables were charge-sheeted the charge being that they had committed gross dereliction of duty and moral turpitude involving corruption on 9th May 1961 inasmuch as petitioner and those two others after arresting three persons who were found drunk had allowed all of them to go away without taking any further legal action after accepting an illegal gratification of Rs. 20/through one Vechan Jiva near the lake at Dabhoi. One Chaudhary the D. S. P. Kaira who was petitioners superior officer held an enquiry into the aforesaid charge. That officer held the charge to be proved and issued a show cause notice to petitioner stating that he intended to dismiss petitioner as he was satisfied that the charge was proved. Petitioner replied to the show cause notice in November 1961 However on 20th December 1961 the D.S.P. held finally that the charge was proved and passed an order of dismissal. Petitioner then filed an appeal under rule 6 of the rules to the Deputy Inspector General of Police. This appeal was filed on 1st January 1962 On that date rule 17 of the rules did not confer power in terms to revise any order of acquittal whether original appellate or revisional. However on 4th January 1962 the State of Gujarat in exercise of the power conferred on it by clause (c) of subsection (2) of sec. 25 read with clause(b) of sec. 5 of the Bombay Police Act 1961 (hereafter called the Act) amended rule 17. Substantially by that amendment the Inspector General of Police was given the power of revising an order of acquittal whether original appellate or revisional. On 27th July 1962 the D. I. G. the appellate authority allowed petitioners appeal set aside the order of dismissal passed by the D. S. P. and ordered petitioners reinstatement in police service. On 24th August 1962 petitioner reported for duty and he was posted at the Sankheda Police Station. On 21st May 1963 Nagarwala the then I. G. P. and the predecessor-in-office of first respondent issued a show cause notice purporting to act under the amended rule 17. In that notice he recorded a provisional finding that petitioner was guilty of the charge levelled against him and called upon petitioner to show cause why he should not be dismissed from service. After petitioner had shown cause Nagarwala by his order dated 19th September 1963 held petitioner to be guilty and ordered his dismissal from police service. Petitioner preferred an appeal to the State Government respondent No. 2. That respondent by its order dated 27th July 1964 dismissed the appeal. Aggrieved by the orders of Nagarwala and second respondent dated respectively 19th September 1963 and 27th July 1964 petitioner filed the present petition in which he prayed for an appropriate writ or order or direction for quashing the order of dismissal passed by Nagarwala and for restoring the order passed be the Deputy Inspector General of Police.

(2.) Petitioner has attacked the impugned order on a number of grounds in the memo. of petition. However at the time of the arguments Mr. Thakore learned advocate for petitioner stated that though he proposed to challenge the impugned orders only on two grounds now he could not press one of them in view of the decision recorded by this Court in Special Civil Application No. 913 of 1963 by the judgment dated 30th June/1st July 1966 Ranchhodbhai v. J.D. Nagarwala now reported at VII G.L.R.1091). That point which Mr. Thakore stated he could not press was that sub-rule (1) of rule 17 was ultra vires sec. 25 sub-sec. (2) clause (c) of the Act in the contest of an order of acquittal. Therefore the point which Mr. Thakore formulated and pressed for decision was the second point and that point was that having regard to the facts of the present case the then I.G.P. had no power to revise the order of acquittal passed in appeal by the D. I. G. under amended rule 17 sub-rule (1) on the ground that the amended sub-rule cannot have retrospective operation.

(3.) Therefore the point which arises for determination in the present petition is whether on a true construction of the amended sub-rule (1) of rule 17 the power of the I. G. P. to interfere in revision against an order of acquittal can or cannot act retrospectively on an order of acquittal recorded in an appeal which was pending at the time when the rule was amended.