S.S. Chadha, J.
(1) This order will dispose of the two appeals, one by Constable Malkiyat Singh, being L.P.A. 242/80 and the other by A.S.I. Jagrup Singh, being L.P.A. 241180, arising out of a common judgment of the learned Single Judge dismissing their petitions under Article 226 of the Constitution of India assailing the validity of their dismissal from police force on the charge of molesting a young girl while in their protective custody.
(2) Fir No. 728173 was registered on May 25. 1973 at police station Daryaganj under Sections 363/366 Indian Penal Code on a complaint by one Shri Narinder Kumar, father of Miss Shashi Bala against Shri Mohinder Kumar Gupta, son of Shri Trilok Chand, r/o Mohalla Garhi Pilhwa District, Meeru. alleging therein that he had kidnapped Shashi Bala under 18 years from lrwin Hospital, New Delhi, with intention that she may be forced to illicit intercourse or knowing it to be likely that she will be forced to illicit intercourse. The case on the registration of the Fir was investigated by P.S. Daryaganj. Asi Jagrup Singh No. 1339/ND accompanied by Constable Malkiyat Singh No. 777- C/6l6-ND recovered the kidnapped girl Shashi Bala from village Kanhiar District Solan (Himachal Pradesh) on June 16, 1973. Malkiyat Singh, Constable and Jagrup Singh, Asi thus had the protective custody of Shashi Bala. I was alleged by the father of Shashi Bala that, while they were coming back to Delhi from village Kanhiar (H.P.) the appellants misbehaved with the kidnapped girl Shashi Bala and offended her modesty. He lodged a complaint D.D. No. 22 dated June 17/18, 1973 at P.S. Nalagarh (H.P.).
(3) Miss Vinita Singh, Additional District Magistrate, Delhi vide her order No. F. 3(110)/73-Judl. dated August 6, 1973 under the Punjab Police Rules, 1934 (for short P.P.R.) 16.38(1) ordered an inquiry to be made by S.D.M., Daryaganj on the said complaint received from S.H.O. P.S. Nalagarh, District Solan (Himachal Pradesh) against Jagrup Singh and Malkiyat Singh after forming an opinion that it indicated the commission of a criminal offence by the said officials in connection with their official relations with the public. The inquiry was held by Shri K. N. Bose, S.D.M., Daryaganj who reported that a prima facie case had been established against the appellants by the complainant and his witnesses. Shri Ashok Pradhan, Addl. District Magistrate. Delhi thereafter vide his order No. F. 3(110)/73-Judl., 18823 dated December 13, 1973 under Ppr 16.38(2) ordered that the appellants Jagrup Singh. and Malkiyat Singh be dealt with departmentally after recording the reason that 'the evidence and material available for prosecuting them may not be sufficient to prove their guilt beyond all reasonable doubt as required in the Court of law. but which, nevertheless seems sufficient to hold departmental proceedings '.
(4) The departmental inquiry against Ast Jagrun Singh and Constable Malkiyat Singh was entrusted to Shri Chander Parkash, Ips vide order dated February 2. 1974. The memorandum of charge sheet dated March 30. 1974. enclosing the summary of allegations the list of witnesses and the. list of documents was served on the appellants. The inquiry was later entrusted to Shri N. N. Chopra, Inquiry Officer, D.S.P. Headquarters, who conducted the inquiry.
(5) Shri N. N. Chopra in his report dated March 25, 1975 came to the conclusion that the charge against Asi Jagrup Singh and Cons.able Malkiyat Singh stood fully proved and established. S.P. Central District who was the disciplinary authority, agreed with the findings of the Inquiry Officer and issued a show cause notice provisionally proposing the punishment of dismissal from the force. The appellants submitted their written replies to the :how cause notices- After taking into consideration the whole circumstances of the case, the disciplinary authority awarded the punishment of forfeiture of two years approved service permanently of Asi Jagrup. Singh and Constable Malkiyat Singh in the order dated June 28, 1975. The appellants filed appear against the orders of the disciplinary authority. The appellate authority by virtue of the power vested in him under Ppr 16.28 proposed to enhance the punishment from forfeiture of two years service to one that of dismissal for the reason that the punishment awarded to the appellants was not commensurate with the gravity of the charge. A show cause notice dated August 14, 1975 was issued as to why the order be not set aside and as to why they should not be dismissed from the force. Asi Jagrup Singh and Constable Malkiyat Singh submitted their replies to the show cause notices. D.I.G. of Police considered the representations but passed the orders dismissing Asi Jagrup Singh and Constable Malkiyat Singh from the force from the date of the issue of the order dated November 12, 1975. The appellants then filed appeals against the order of the Dy.Inspector General of Police, Delhi awarding the. punishment of dismissal. The appellate authority in the order dated May 31. 1976 came to the conclusion that there is sufficient evidence on the record to prove the act of grave misconduct on the part of the appellants, especially the version of the father and the brother of kidnapped girl Shashi Bala and also Dd No. 22 dated June 17/18. 1973 at police post Baddi. It was felt that the act of the appellants was unbecoming of a police officer and thus a deterrent punishment was needed for acts of such grave misconduct. The appeals were rejected.
(6) The appellants then filed the petitions under Article 226 of the Constitution of India for quashing the departmental inquiry and the impugned order of dismissal of the appellants from police force. The writ petitions were dismissed by M. L. Anand, J. by the common order dated March 27, 1980 under appeal.
(7) The main submission of Shri Sital A. K. Dar, the learned counsel for the appellants, is that the orders under Ppr 16.38 (1) and (2) could only be made by a District Magistrate and not an Additional District Magistrate, since there is no power of delegation permissible under Ppr 16.38(1) and (2). The contention is that the Additional District Magistrate is not equivalent to the District Magistrate but is subordinate to and below the District Magistrate. The two orders of the Additional District Magistrate dated August 6, 1973 and December 13, 1973 are urged as without jurisdiction with the result that all subsequent proceedings are nullity in the eye of law and non-est.
(8) The said two orders were passed under Ppr 16.38(1) and (2) admittedly by an Additional District Magistrate. The respondents have filed copies of the notifications of the Delhi administration whereby the concerned Additional District Magistrates have been appointed under sub-section (2) of Section 10 of the Code of criminal Procedure, 1898 (as amended) by the Union Territories (Separation of Judicial and Executive Functions) Act, 1969. It was directed that 'as such he shall have all the powers of a District Magistrate under the said Code or under any other law for the time being in force'. The submission of.M/s. Avnish Ahlawat, the learned counsel for the respondents is that the concerned Additional District Magistrates have been invested with all the powers of District Magistrate under the said Code or under any other law for the time being In force and that would include Punjab Police Rules and thus the orders dated August 6. 1973 and December 13, 1973 have been passed validly and within jurisdiction.
(9) The vexed question, that arises for consideration is whether the decisions of the Additional District Magistrate, Delhi dated August. , 1973 directing that investigation be conducted by a police officer against, the appellants on the allegations of having committed a criminal offence in connection with their official relations with the public and thereafter directing in the order dated December 13, 1973 that they be dealt with departmentally are with jurisdiction under Ppr 16.3.8(1) and (2) or contrary to the mandatory statutory provisions.
(10) The Punjab Police Act, 1861 was enacted for the regnlation of Police. The Magistrate of the District is defined in the interpretation clause, that is to say :- 'The Magistrate of the District shall mean the chief Officer charged with executive administration of the district and exercising the powers of a Magistrate by whatever designation the Chief Officer charged with such executive administration is styled.' Thus the words 'Magistrate of the District' are synonymous with words 'District Magistrate'. He is the head of the executive department of the district. The word 'Magistrate' has been defined to include all persons within the General Police district, exercising all or any of the powers of a Magistrate. There is no definition of the words 'Addl. District Magistrate'. The Punjab Police Rules, 1934 have been framed in exercise of the powers conferred by Section 46 of the Act.
(11) Rule 1638(1) and (2) read as under :-
(1)Immediate information shall be given to the District Magistrate of any complaint received by the Superintendent of Police, 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 selected magistrate having 1st class powers.
(2)when investigation of such a complaint establishes a prima facie 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 ft is decided to proceed departmentally the procedure prescribed in rule 16.24 shall be followed. An officer found quality on a charge of the nature referred to in this rule shall ordinarily be dismissed.'
(12) SECTION. 10 of the Criminal Procedure Code, 1898 reads as under '1. District Magistrate.-
(1)In every district outside the Presidency-towns .the State Government shall appoint a Magistrate of the first class, who shall be called the District Magistrate.
(2)The State Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code, or under any law for the time being in force, as the State Government may direct.
(3)For the purposes of sections 192, sub-section (1), 407, sub-section (2) and 528, sub-sections (2) and (3) such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate.'
(13) A bare perusal of Rule 16.38 shows that it is the District Magistrate who, on receipt of information regarding the commission by a police officer of a criminal offence in connection with his official relations with the public, i firstly to decide whether investigations of the complaint shall be conducted by a police officer or made over to a selected Magistrate having first class powers. If a prima facie case is established, then a judicial prosecution has normally to follow. It is the District Magistrate who has to decide whether instead of a judicial prosecution the matter should be disposed of departmentally. Rule 16.38(1) and (2) vests the power in the District Magistrate alone. The judicial prosecution is the rule and the departmental inquiry is an exception. The source of power to direct departmental inquiry instead itself lays down the authority empowered to act. No officer other than the District Magistrate can pass an order under Ppr 16.38(1) and (2). It is the District Magistrate who has to consider if a departure from judicial prosecution would be justified and to give good and valid reasons for the proposed departurs. The jurisdiction to exercise the power under Ppr 16.38(1) and (2) is given, to the District Magistrate. A District Magistrate is other- than an Additional District Magistrate. The distinction between the post of a District Magistrate and an Additional District Magistrate is quite dear and the two cannot be equated. By virtue of the notification, an Additional District Magistrate may exercise all or any of the powers of the District Magistrate under the Criminal Procedure Code or under any other law for the time being in force, but he does not. thereby acquire the status and rank of the District Magistrate. Whatever might be the powers of the Additional District Magistrate to carry on the administration of the District, he is not appointed as a District Magistrate. There is an absence of a notification under Section 10(1) and thus the two above-named officers are not appointed as District Magistrate. The exercise of power under Ppr 16.38(1) and (2) is vested in a District Magistrate and could not by the side-wind of a notification under Section 10(2) of the Criminal Procedure Code be conferred on an Additional District Magistrate. The Additional District Magistrate, who is invested with the powers of a District Magistrate, does not thereby attain the status of the District Magistrate as sub-section (3) of S. 10 itself makes clear. The fact that the Additional Distt. Magistrate may have all the powers of a District Magistrate does not make him a District Magistrate inasmuch as there can be only one person in the District which can be a District Magistrate and that is what is referred to in Rule 16.38(1) and (2).
(14) Reliance by Ms. Ahlawat on 'State v. Hussain Mirda', A.I.R. 1960 Assam 45(1) and 'State v. B.C. Khorey', A.I.R: 1962 Bombay 168(2) is misplaced. In those cases, it was held that the word District Magistrate in Section 29 of the Arms Act, 1878 means the District Magistrate as understood under the Criminal Procedure Code. Rules were framed in exercise of the powers conferred by the Arms Act. Rule 2 defined District Magistrate includes, in the case of the suburbs of Calcutta, any District Magistrate as defined in Government of Bengal Notification, dated September 21, 18.90, and Commissioner of Police, Calcutta and in cases where the Central Government so directs 'in respect of any district or part thereof, an Additional District Magistrate...............' . The decision in those cases rested on Rule 2 which has been framed by the Central Government and must be referable to. the power under;Section 17 of the Arms Act. The,rule of interpretation says that District .Magistrate shall include several authorities enumerated in. that Rule, including an Additional District Magistrate. It is for this reason that it was held that any person who is. appointed as Additional District Magisterial by the State Government can exercise all or any of the powers of the District Magistrate under sub-section (2) of Section 10 of the Criminal Procedure Code and he would automatically have the powers of a District Magistrate under the Arms Act.
(15) A similar question as is before us arose in 'Kanta Prasad Sharma v. Union of India and others' 1983 D.L.T. 218(3) before a single Judge of this Court. Avadh Behari, 1. felt that the question is squarely covered by the two decisions of the Supreme Court in 'Ajaib Singh v. Gurbachan Singh' A.I.R. 1965 S.C. 1619(4) and 'Hari Chand v. Patel Engineering Co.' 1969 D.L.T. 125(5). These decisions laid down that if District Magistrate named in a statute as the repository of certain power, for example, power to detain a person, as was the case of Ajaib Singh (supra) or power to order inquiry and prosecution as in this case, it means that he must be a District Magistrate appointed under Section 10(1) of the Code of Criminal Procedure, 1898. An Additional District Magistrate is appointed under sub-section (2) of Section 10 and he being below the rank of a District Magistrate cannot be said to be of the same rank as the District Magistrate even when he performs the functions as District Magistrate under the Code or any other law for the time being in force. It was held that in the absence of a notification under Section 10(1) of the Code, it is impossible to maintain that Mr. Khwaja arid Ms. Vinita Singh (A.D. Ms.) were of the rank of District Magistrate competent to pass orders under Ppr 16.38. This was followed in C.W.P. 1730180-'Kumar Pal Singh v. Union of India', decided on August 31, 1984 by R. N. Aggarwal, J.(6). It was reiterated that an Additional District Magistrate may exercise all or any of the powers of a District Magistrate under the Code or any other law for the time being in force but he does not thereby acquire the rank of a District Magistrate and that the District Magistrate has to be appointed under Section 20(1) of the Code of 1973 equivalent to Section 10(1)]. The question again arose in C.W.P. 85176-'Siri Pal v. Union of India', decided on January 7, 1985 by Charanjit Talwar, J.(7) and the view taken by Avadh Behari, J. and R. N. Aggarwal. J. was reiterated and followed. We are, thereforee, fortified by our conclusion that the two orders passed by the Additional District Magistrate under Ppr 16.38(1) and (2) are without jurisdiction and a nullity with the result that all subsequent proceedings are vitiated.
(16) In all fairness to Mr. Dhar, we may notice his challenge to the preliminary enquiry without associating the appellants in alleged violation of Ppr 16.24(i) and (viii), the denial of reasonable opportunity during the inquiry for non-supply of material documents for proper and effective cross-examination. and the absence of the provisions for enhancement of the punishment in terms of Section 7 of the Police Act, 1861, but without expressing any opinion.
(17) In the result, the appeals succeed and the orders under appeal are hereby set aside. The impugned orders in the writ petitions are quashed. The appellants shall be deemed to be in continuous service with all consequential benefits. The parties are, however, left to bear their own costs throughout.