MAHENDRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This special appeal arises out of a writ petition under Article 226 of the Constitution. The applicant Sri Mahendra Singh was posted as a head constable at police outpost, George Town, Police Station Colonelganj, Allahabad, in August 1952. Shortly thereafter the petitioner was suspended by an order of the Senior Superintendent of Police on a report that he was exorting money from persons who grazed their cattle on road patris. An enquiry was made by the Deputy Superintendent of Police who submitted his report on 3-1-1953 to the Senior Superintendent of Police with a recommendation that the petitioner be dismissed from service. On 8-1-1953, the Senior Superintendent of Police issued a notice to the appellant to show cause why he should not be dismissed from service. The appellant submitted his explanation on 16-1-1953. The Senior Superintendent of Police did not accept his explanation, but instead of dismissing him, he reduced him to the post of a constable for a period of three years by his order dated 3-2-1953. The appellant appealed to the Deputy Inspector-General of Police who was of opinion that the charge against the appellant had been fully established but that the punishment awarded to him was inadequate, and he therefore, called upon the appellant to show cause why he should not be dismissed. After considering his representation and hearing the appellant in person, the Deputy Inspector General of Police-on 6-7-1953, passed an order dismissing the appellant. A further appeal by the appellant to the Inspector-General of Police was dismissed, The appellant then moved this Court under Article 226 of the Constitution praying for a Writ of Certiorari calling for the record of the case and for quashing the order dated 6-7-1953, passed by the Deputy Inspector General of Police.

(2.) Two points were raised before the learned Single Judge hearing the writ petition: first, that the Superintendent of Police not being vested with the powers of a Magistrate had no power to make an enquiry, inasmuch as under Section 35, Police Act, only a police officer exercising the powers of a Magistrate could enquire into a charge against the appellant, the appellant, being above the rank of a constable; and second that the appellant was, not given opportunity by the Inspector-General of Police to state his case before he was dismissed. Both the points were rejected by the learned Single Judge, who, as regards the first point, was of opinion that Sections 7 and 35 were in conflict and that the provisions of the former must prevail.

(3.) In this special appeal the first point alone has been urged before us, and we proceed to consider it.