Monoranjan Mallick, J.
1. The petitioner who is Sub-Inspector of Police attached to the District of Howrah has moved this Court against the order of suspension being D.O.D. No. 109 dated 21.3.1990 issued by the then Superintendent of Police, Howrah being annexure 'H' to the writ petition.
2. He challenges the same as malafide, arbitrary and issued by way of punishment in violation of Regulation 880 of Police Regulation of Bengal.
3. He alleges the following facts in support of his above submission.- Sri S. Mukhopadhyay, the then Superintendent of Police transferred him from the Howrah Police lines to take charge as Officer-in-charge of Amta Police Station by his order dated 30th January 1990 and he joined his post on 2nd February 1990. He received complaint from the Zonal Secretary of CPI(M) Chandrapur village, a mass petition, on 3rd March 1990 complaining about various anti-social and illegal activities of Sk. Ashgar Ali, the Prodhan of Chandrapur Gram Panchayat and his associates requesting him to take proper and effective steps against Sk. Ashgar Ali and his associates, He discussed the matter with Respondent No. 7, the Circle Inspector of Police, Amta who asked him not to take steps immediately but to wait for sometime. Then on 6th March 1990 at 22.05 hours one Sakina Khatun lodged a complaint with him which he recorded as FIR and as it disclosed various non-bailable and cognizable offences. He started Amta P. S. Case No. 19 dated 6,3.1990 under Sections 147/148/449/448/3123/325/342/ 427/380/506 I.P.C. read with Sections 25/27 of the Arms Act and Section 9(b) of Explosive Substance Act Against Sk. Ashgar Ali, Gora Mallik, Abdullah Khan, Wahab Khan, Sheik Musaraf, Rashid Mallik, Babulal Mirda and others.
4. On 7.3.1990 the petitioner arrested Sk. Ashgar Ali and also Mir Mozambbal. At the time of arrest of Sk., Ashgar Ali, bhojalis, katans swords, choppar, spears and several live bombs were also seized from the residence of Sk. Ashgar Ali. On 5th March 1990 the Respondent No. 6 Sub-divisional Police Officer, Uluberia and Respondent No. 7, the Circle Inspector, Amta asked the petitioner to enlarge Sk., Ashgar Ali on bail but the petitioner pointed out to them that the offences committed by him is both cognizable and non-bailable but both of them directed him to enlarge Sk. Ashgar Ali on bail and Respondent No. 7 also directed him to keep the portion G.D. Entry blank. On the basis of such direction he had to enlarge Sk. Ashgar Ali on bail and also to keep portion of the General Diary blank. The petitioner thereafter sent a Radio Telephonic Message to the Superintendent of Police, Additional Superintendent of Police, Head Quarters and other superior officers about the factum of arrest and the release of the accused on bail on medical grounds under the instructions of Respondent Nos. 6 and 7.
5. The petitioner was thereafter asked by the Respondent Nos. 6 and 7 on 11th March 1990 to proceed on leave and on 12th March he took sick leave on the basis of the advice of the Block Medical Officer, Amta I.P. H.C. Respondent No. 6 thereafter by the Memo No. 729 dated 12th March 1990 directed the petitioner to make over the investigation of the case with all connected papers to S.I. S. Routh of Amta Police Station, the junior most S.I. of Police of the Thana positively by 14th March 1990. As the petitioner started a case against Sheikh Ashgar Ali and arrested him, the respondent Nos. 6 and 7 were enraged with him and became inimical towards him and directed him to hand over the investigation of the case to some other Police Officer. Another Police Station Case No. 73 dated 8.9.1989 is already pending against Sk. Ashgar Ali and there is no progress in investigation of that case also as the Respondent Nos. 6 and 7 did not allow to take any further steps in investigation of that case and wanted to keep Sk. Ashgar Ali under their protective umbrella.
6. On 13th March 1990 the then Superintendent of Police by issuing D.O.A. No. 100 dated 13.1.1990 transferred him to report to Line O.R, immediately after making over the charge of Police Station to the next senior Sub-Inspector. The said transfer order is the sequal of petitioner's arrest of Sk. Ashgar and if the records were produced it would be clear that the said transfer was at the instance of the Respondent Nos. 6 and 7.
7. On 14th March 1990 he was directed by the Respondent No. 6 to resume his duties from sick leave and accordingly he resumed duties and on 17th March 1990 Respondent No. 7 took suo moto charge of the Police Station and directed the petitioner to hand over charge and he made over charge of the Police Station to Respondent No. 7.
8. On 19th March 1990 the petitioner joined in the Police Lines at Howrah but no job was assigned to him. On 29th March 1990 the petitioner was served with a purported order of suspension being D.O.D. No. 109 dated 21st March 1990 issued by the then Superintendent of Police, copy of which is annexed as Annexure 'H' to the writ petition.
9. The petitioner complains that the purported order of suspension is in complete contravention of Regulation 880 of the Police Regulation of Bengal, that the alleged ground did not justify the action of suspension, that the petitioner was placed under suspension by way of punishment, that no enquiry was initiated against him prior to the issuing of suspension, that no departmental enquiry was initiated or pending against the petitioner when the order of suspension was passed and that he has been placed under suspension as he initiated Amta Police Station Case No. 19 dated 6.3L1990 against Sk. Ashgar Ali and arrested him for which he had been transferred from Amta Police Station and had thereafter been placed under suspension. The petitioner thereafter prays for a writ of Mandamus for quashing the order of suspension and for other consequential reliefs.
10. Shri S. N. Kundu the Superintendent of Police, Howrah has filed an affidavit-in-opposition contesting the writ petition.
11. He admits that on the basis of the FIR lodged by Sakina Khatun, the writ petitioner as Officer-in-charge of Police Station arrested Sk. Ashgar Ali in connection with Amta Police Station Case No. 19 dated 6.3.1990. But he states that the Sk. Ashgar Ali, the Prodhan on being arrested was assaulted by Officer-in-charge of Police Station at Thana lock up and became seriously ill. He also states that because of such arrest and assault by the petitioner there was a demonstration at the Thana by the Local C.P.I. (M) M.L.A. and other members of that party in the afternoon of 7th March 1990 and the S.D.P.O., Uluberia and Circle Inspector, Amta had to rush to Amta Police Station to consider the granting of bail to Sk. Ashgar Ali on medical grounds but the petitioner instigated D.A.P. personnel against them who protested against the release of Sk. Ashgar Ali and had also threatened and abused them. As the act of the petitioner amounted to serious misconduct the petitioner was suspended pending enquiry. He also submits that suspension order was issued on the basis of the report submitted by S.D.P.O. Uluberia as the petitioner was liable for gross misconduct including indisciplined conduct in presence of his superior officers for inciting force to go against the superiors. He also justifies the transfer of the petitioner from Amta Police Station as it was necessary for administrative reasons.
12. The writ petitioner in his affidavit-in-reply has denied specifically that Sk. Ashgar Ali had been assaulted by him at the Thana or that injury of the accused was such as the Medical Officer recommended release on bail. He also specifically denies that he instigated any D.A.P. personnel against the S.D.P.O. and the Circle Inspector.
13. During hearing, I called upon the Respondent's learned Advocate to produce the Case Diary of the case started by the writ petitioner against Sk. Ashgar Ali and others but the Respondents have failed to produce the same. But by filing a supplementary affidavit through the Sub-divisional Police Officer, Uluberia again justified the action taken against the petitioner and reiterated that the petitioner instigated D.A.P. personnel against him and the Circle Inspector., Regarding the Case Diary it was stated that the petitioner did not hand over the same to his successor.
The writ petitioner has filed an affidavit-in-reply in which he annexed the Medical report of the medical examination of Sk. Ashgar Ali after his arrest by the local hospital to show that the injuries on Sk. Ashgar Ali were minor in nature and that Ashgar Ali before the doctor mentioned the name of different persons as his, assailents and also about the circumstances under which he sustained the said injuries.
14. In this writ petition, I am primarily concerned with the allegations of the writ petition that the order of suspension passed against him is mala-fide, without complying with the provision of Regulation 880 of Police Regulation of Bengal and the same has been issued by way of punishment at the instigation of the respondent Nos. 6 and 7 who were extremly annoyed and enraged with him for arresting Sk. Ashgar Ali, the Prodhan of the Gram Panchayat who was a member of a particular political party.
15. On the other hand, the Respondents contend that the then Superintendent of Police passed the order on the basis of the report of S.D.P.O. dated 9.3.1990 that while on 7.3.1990 when S.D.P.O. Uluberia and Circle Inspector, Amta were meeting the deputation of the demonstrators who came to protest against the arrest of Sk. Ashgar Ali by the petitioner, the petitioner instigated D.A.P. personnel against them to protest against their action for releasing Sk. Ashgar Ali and abusing them which according to the Respondents is a case of serious misconduct. Even if, I assume that on 7.3.1990 the petitioner did the above acts but for that there could be no reason for the Superintendent of Police to issue the order of suspension on 21.3.1990 after he had been transferred from Amta and closed in the police line of Howrah.
16. Moreover, Regulation 880 of Bengal Police Regulation clearly shows that the police officer cannot be suspended by way of punishment and it is only authorised in cases where continuance in office of an officer pending enquiry into his conduct is prejudicial to public interest.
17. The order of suspension reads as follows :
'S. I. Sankar Majumdar of Line O.R. is placed under suspension with effect from the date of service of the order for his alleged incitement to the force, as reported pending enquiry into his conduct. .. .'.
'The alleged incitement to the force' according to the Respondents took place while the petitioner was posted as Officer-in-charge of Amta Police Station. Thereafter he had been transferred from Amta Police Station and closed in Police Line. The order does not show that the then Superintendent of Police considered his suspension necessary as his continuance in office would be prejudicial to the public interest pending enquiry against him. In my view for holding enquiry his alleged misconduct while posted as Officer-in-charge of Amta Police Station cannot be prejudicial in public interest when he is now 'closed' in Police Line Howrah.
18. Moreover, suspension under Regulation 880 of Bengal Police Regulation is justified only in pending enquiry. But the impugned order shows that no disciplinary enquiry had yet been initiated and the then Superintendent of Police, Howrah directed the Additional Superintendent of Police to prepare a draft charge-sheet. But Regulation 880 of the Police Regulation states that suspension can only be ordered pending enquiry into conduct, 'The enquiry into conduct' would definitely be disciplinary enquiry. The Respondent conceeds that on the basis of the report S.D.P.O. he was suspended. It is not stated that enquiry had already been initiated before placing the petitioner under suspension. On the contrary, the impugned order annexure 'H' shows that the Superintendent of Police, Howrah directed Additional Superintendent of Police, to put up a draft charge sheet. Therefore even before issuing any charge sheet and initiating any enquiry, writ petitioner has been suspended by the order dated 21.3.1990. But under the Regulation 880 the suspension cannot be ordered in contemplation; of any future enquiry.
Therefore, on the face of the impugned order Annexure 'H' the order cannot be sustained because there is clear violation of Regulation 880 in issuing the order of suspension. Therefore, it cannot but be held that the then Superintendent of Police on receiving the report of S.D.P.O. placed the petitioner under suspension by way of punishment.
19. I would now consider the petitioner's case that the impugned order of suspension has been passed at the instance of the Respondent Nos. 6 and 7 as they were enraged with the petitioner for arresting Sk. Ashgar Ali on 9.3.1990.
20. The facts which are revealed clearly indicate that there is sufficient force in the above submission of the petitioner.
21. The Respondent could not find any fault with the writ petitioner for starting an investigation and arresting Sk. Ashgar Ali on the basis of the complaint lodged by Sakina Khatun on 6.3.1990. The allegations in the complaint contained serious allegations against Sk. Ashgar Ali and his associates. The petitioner arrested him and another accused. As Sk. Ashgar Ali had some injury at the time of arrest he got him examined medically and the medical report shows that Sk. Ashgar Ali received some simple injuries. After his arrest there was a demonstration by the Local M.L.A. and his associates against the arrest of Sk. Ashgar Ali and in the afternoon of 7.3.1990, S.D.P.O. Uluberia and Circle Inspector came to tackle the situation. The writ petitioner states that both of them insisted on the accused being released on bail but he protested as the accused was arrested in cognizable and non-bailable offences. It is surprising that the Respondents state in their affidavit-in-opposition that as Sk. Ashgar Ali had been assaulted by the writ petitioner and his physical condition was so bad that they asked the petitioner to allow him bail on medical ground.
22. Before me, no material has been produced by the respondents in support of their statements in the affidavit-in-opposition that the petitioner assaulted Sk. Ashgar Ali while in police custody and because of his physical condition, Sub-divisional Police Officer instructed the O.C. to grant bail on medical ground. On the other hand, the copy of medical report annexed in the affidavit-in-reply of the writ petitioner clearly falsifies the statement on oath of both the present Superintendent of Police Sri S. N. Kundu and S.D.P.O., Sri P. K. Das that Sk. Ashgar Ali had been assaulted by the petitioner in police custody who was then Officer-in-charge of Amta Police Station. Therefore, the physical condition of Sk. Ashgar Ali was not such that the S.D.P.O. would ask the petitioner to release him on bail. Moreover the S.D.P.O. and Circle Inspector had no power and authority under Section 437 of the Code of Criminal Procedure to direct the Officer-in-charge of the Thana who was investigating a case in serious non-bailable offence of the accused to release him on bail on medical ground.
23. I, however, find that the Radio Telephonic message of the Officer-in-charge dated 8.3.1990 to Superintendent of Police, Howrah annexed in the affidavit-in-opposition of P. K. Das clearly shows that the petitioner reported, everything to the Superintendent of Police and also the fact that under instructions of S.D.P.O. and Circle Inspector he released Sk. Ashgar Ali on bail. After a copy of this report was sent to S.D.P.O. on 8th March, 1990 the S.D.P.O. on 9th March 1990 sent his own version of the case and in that report he for the first time introduced the story that the petitioner instigated D.A.P. personnel against him and Circle Inspector. If the allegations of the S.D.P.O. were genuine that the O.C. of Thana was guilty of such grave misconduct then he ought to have reported the matter to S.P. on the very day on which the alleged act of instigation of the petitioner took place i.e. 7.3.1990. Moreover the S.D.P.O. in such case should have taken immediate action against the D.A.P. personal who according to him threatened and abused him on 7.3.1990.
24. But the S.D.P.O. remained silent for two days and on 9.3,90 in order to save his skin as he was aware that he could not issue any illegal direction 'to the Officer-in Charge to release an accused on police bail when he was arrested on grave charges of non-bailable offence he appears to have introduced that story. Thereafter the petitioner was practically stripped of all the powers by S.D.P.O. Uluberia by directing him to go on leave, by directing him to hand over charge of investigation to a junior officer and thereafter got an order of the then Superintendent of Police to transfer him from Amta P.S. The whole motive as alleged by the petitioner is to see that the investigation against Sk. Ashgar Ali is not proceeded with. It is submitted on behalf of the petitioner by his learned Advocate after he was released from police bail Sk. Ashgar Ali had not appeared before Sub-Divisional Judicial' Magistrate, Uluberia and the warrant of, arrest issued by the Magistrate had not been executed. It is also disclosed in the petition that a previous case is pending against Sk. Ashgar AH started in 1989 which has also not been investigated.
25. If the police does not promptly investigate the cases against the accused persons who are influential people of the locality then it becomes an erosion of the rule of law and the people making complaint against the accused persons would lone faith in; administration.
26. Therefore, ;I entertain great doubt as regards the bonafide in the allegations of S.D.P.6. in his report dated 9.3.1990 that the writ petitioner was guilty of serious misconduct as he instigated D.A.P. personnel against his superior officer. I am of the view that the said report of S.D.P.O. Uluberia should be enquired into by a senior police officer.
27. In the result, I allow the writ petition and quash the order of suspension, annexure 'H' and direct that the petitioner be re-instated in service with immediate effect.
28. It is fit and proper that the Director General of Police, West Bengal shall direct an independent enquiry into the report of S.D.P.O. Uluberia dated 9.3.1990 sent to S.P., Howrah against the conduct of the petitioner by some senior officer of the rank of D.I.G. and if he finds from the said enquiry that the report of S.D.P.O. Uluberia dated 9.3.1990 was not genuine he would take appropriate steps against the Respondent No. 6 Pabitra Kumar Das. He shall also take appropriate steps against the S.D.P.O. Uluberia for issuing illegal direction upon the Officer-in-Charge of Amta Police Station to release, the accused Sk. Ashgar Ali in police bail when under the law he had no authority or power to do so. However, if on such independent enquiry it is found that the petitioner really instigated D.A.P. personnel against his superior officers this will not stand in the way of the Director General of Police directing disciplinary enquiry against him. Till such enquiry is held under the order of the Director General of Police there shall be no departmental enquiry against,the petitioner on the basis of the; report of S.D.P.O. Uluberia dated.9.3.1990. D.G. of Police shall also issue necessary direction to the Superintendent of Police, Howrah to cause proper investigation into. all the pending cases against Sk. Ashgar Ali.
29. All parties including Director General of Police, West Bengal shall act on the signed copy of the operative portion of this judgment on usual undertaking.
30. A whole copy of the judgment be also sent to Director General of Police, West Bengal.