Ashok Kumar v. State of Bihar — 1983 DIGILAW 100 (PAT)

JUDGMENT : C.N. Tiwary, J. In this application under Articles 226 and 227 of the Constitution of India, the prayer is for quashing the investigation by the Police in Nawadah Police Station Case No. 247 of 1982. 2. The petitioner, Ashok Kumar’s case is that he was transferred from the post of Assistant Engineer, Rural Engineering Organisation (R.E.O.), design, Circle, Patna, to the post of Assistant Engineer R.E.O., Works Subdivision Nawadah, vice the intervenor Respondent No. 4, Bhola Nath Singh, by a Notification dated the 27th March, 1982 (Annexure ‘2’), of the Government of Bihar, Gramin Punarnirman and Panchayati Raj Vibhag, and, in pursuance of that notification, he joined his new post at Nawadah on the 31st March, 1982, and took charge from the intervenor Respondent, Bhola Nath Singh, vide Charge Report dated the 31st March, 1982 (Annexure 3'). The Superintending Engineer informed the Chief Engineer that the intervenor respondent, Bhola Nath Singh had made over charge of his office at Nawadah to the petitioner, Ashok Kumar, in his presence, vide Annexure 6'. The intervenor respondent, Bhola Nath Singh, was transferred from the post of Assistant Engineer, R.E.O., Works Subdivision No. I, Nawadah, to the post of Assistant Engineer, R.E.O., Designs Circle, Patna, by the Government of Bihar, Gramin Punarnirman and Panchayati Raj Vibhag, Notification dated the 30th March, 1982 (Annexure 4'). Despite the ORDER :of transfer and making over charge at Nawadah, the intervenor Respondent, Bhola Nath Singh, did not join his new post at Patna. The Additional Secretary to the Government of Bihar, in the Road and Buildings Construction Department, by his letter dated the 6th October, 1982, ORDER :ed him to join his new post at Patna within ten days of the receipt of the said letter (Annexure 5'). 3. After taking over charge, the petitioner, Ashok Kumar, start functioning on the post of Assistant Engineer, R.E.O., works Subdivision I, Nawadah, from the 31st March, 1982. 3. After taking over charge, the petitioner, Ashok Kumar, start functioning on the post of Assistant Engineer, R.E.O., works Subdivision I, Nawadah, from the 31st March, 1982. The matter was communicated to the Chief Engineer, as already stated, by the Superintending Engineer, and the Chief Engineer, by his letter dated the 15th April, 1982 (Annexure 7'), informed the Executive Engineer that the petitioner, Ashok Kumar, was in charge of the post of Assistant Engineer, R.E.O., Works Subdivision, No. I, Nawadah, and that work should be taken from him only and that the intervenor Respondent, Bhola Nath Singh, should be treated as haying been relieved with effect; from the 31st March, 1982. The Chief Engineer also informed the State Government that the petitioner Ashok Kumar was working on the post of Assistant Engineer, R.E.O., Works Subdivision No. I. Nawadah, since the 31st March, 1982, vide his letter dated the 6th May, 1982 (Annexure ‘8’). 4. On the 19th September, 1982, the intervenor Respondent, Bhola Nath Singh, lodged the First Information Report (Annexure 1') at Nawadah Police Station, which was registered as Nawadah Police Station Case No. 247 of 1983, describing himself as the Assistant Engineer, R.E.O., Works Subdivision No. I, Nawadah. In the first information report it is said that the informant, Bhola Nath Singh (intervenor respondent), having taken leave to perform the marriage of his daughter, proceeded on leave on the 1st May, 1982, and remained on leave till the 6th September, 1982, and resumed his duties at Nawadah and had been performing the duties of the Assistant Engineer, R.E.O. Works Sub-division I, Nawadah, since then. It is further stated that during the period of his absence from Nawadah, the petitioner, Ashok Kumar started doing the duties of the Assistant Engineer, R.E.O., Works Sub-Division I, Nawadah, and the petitioner broke open the lock of the cash-chest of the office of the Assistant Engineer, R.E.O. Works Subdivision I, Nawadah, and removed from the cash chest the second set of keys of the chest and some valuable documents. This information was given to the intervenor respondent (the informant) at his home by Ramadhar Mahto, the Treasure Guard, and Gauri Sharker Ram, the Chaukidar. On these allegations, Nawadah Police Station Case No. 247 of 1982 was registered. It is for the quashing of the investigation by the Police in that case that this writ application has been filed. 5. This information was given to the intervenor respondent (the informant) at his home by Ramadhar Mahto, the Treasure Guard, and Gauri Sharker Ram, the Chaukidar. On these allegations, Nawadah Police Station Case No. 247 of 1982 was registered. It is for the quashing of the investigation by the Police in that case that this writ application has been filed. 5. The statements contained in the counter-affidavit filed on behalf of the State of Bihar, the Superintendent of Police, Nawadah and the Officer-in-Charge, Nawadah Police Station, (Respondents Nos. 1 to 3) are evasive and contrary to the statements contained in the aforesaid letters of the Additional Secretary to the State Government, the Chief Engineer and other Officers of the State Government, referred to above. The aforesaid Officers of the State Government should have been in a position to say, whether the petitioner joined the post of Assistant Engineer, R.E.O., Works Subdivision No. I, Nawadah, in pursuance of the Government notification, aforesaid, or not, and whether the petitioner has been working as such since the 31st March, 1982 or not, and, whether the allegation that the petitioner broke open the cash chest and removed keys and valuable documents from the chest are true or false. But, unfortunately, the counter-affidavit, which purports to have been filed on behalf of the respondents, including the State Government, was sworn by the Investigating Officer himself. Learned Counsel appearing on behalf of the respondents has admitted that no instruction was obtained from the Government in the appropriate Department or from the aforesaid respondents-Officers of the State Government in this regard before filing the counter-affidavit. It is really unfortunate that the counter-affidavit should be filed on behalf of the State Government, without obtaining instruction from the State Government and its responsible Officers concerned. In Paragraph No.6 of the counter-affidavit dated the 13th January, 1983, filed on behalf of the respondents, it is said, with regard to the statements made in Paragraphs Nos. 6 to 9, 11 and 12 or the writ application, that the case is under investigation and the parties are still to produce documents to guide the investigation. 6. In Paragraph No.6 of the counter-affidavit dated the 13th January, 1983, filed on behalf of the respondents, it is said, with regard to the statements made in Paragraphs Nos. 6 to 9, 11 and 12 or the writ application, that the case is under investigation and the parties are still to produce documents to guide the investigation. 6. In Paragraph No.6 of the writ application it is said that the petitioner was transferred to the post of Assistant Engineer, R.E.O. Works Subdivision No. I, Nawadah, vide Notification dated the 30th March, 1982, and he took charge of his new office at Nawadah on the 31st March, 1982 from the intervenor Respondent, Bhola Nath, Singh. Copies of the aforesaid Notification and the Charge Report have been filed as Annexures 2' and 3'. In Paragraph No.7 of the writ application it is said that, the intervenor respondent, Bhoa Nath Singh was transferred from the post, of Assistant Engineer, R.E.O. Works Subdivision No. I Nawadah, to the post of Assistant Engineer, R.E.O., Designs Circle, Patna by a notification dated the 30th March, 1982 (Annexure 4')., In Paragraph No. a of the writ application it is said that in violation of the ORDER :of transfer, the intervenor respondent had not joined, his new post and a direction was issued to him to join his new post by a particular date vide letter dated the 6th October, 1982 (Annexure 5). In Paragraph No.3 of the writ application, it is stated that the petitioner started functioning on the post of Assistant Engineer, R.E.O. Works Subdivision No. I, Nawadah, from the 31st March, 1982, and an information to this effect was given by the Superintending Engineer to the Chief Engineer, vide letter dated the 3rd April, 1982 (Annexure 6'). In Paragraph No. 11 of the writ application, it is said that the Chief Engineer also informed the State Government that the petitioner was working on the post of Assistant Engineer, R.E.O. Works Subdivision No. I, Nawadah, from the 31st March, 1982, vide letter dated the 6th May, 1982 (Annexure 8'). In Paragraph No. 12 it is said that the petitioner is working fullfledgedly on the post in question at Nawadah, and money was advanced by him on several occasions for doing the works of the Department. In Paragraph No. 12 it is said that the petitioner is working fullfledgedly on the post in question at Nawadah, and money was advanced by him on several occasions for doing the works of the Department. The State Government and the Respondent Officers of the State Government in the appropriate Department are the proper persons to say, whether the statements made in Paragraphs No. 1 to 3, 6 to 9, 11 and 12 of the writ application are true or not, and, whether the Notifications and Annexures, referred to in those paragraphs of the writ application were actually issued by the State Government or not. But, as pointed out above, in the counter-affidavit filed on behalf of the Respondents, including the State Government, it is said that the matter is under investigation and the parties are still to produce documents to guide the investigation. This contention raised in the counter-affidavit amounts to this that it is the investigating officer, who, after completion of the investigation, can say whether the aforesaid letters and notifications issued by the Government and the Respondent Officers of the State Government, were or were not issued by the Officers under whose signatures they purport to have been issued. State Government and their Officers concerned should not keep mum and allow the two Officers to indulge in unseemly litigations in an irresponsible manner. 7. So far as the counter-affidavit filed on behalf of the respondents itself is concerned, it is stated therein that the statements made in Paragraphs Nos. 1, 2 and 12 of the said counter-affidavit are true to the knowledge of the Sub-Inspector of Police, who swore the affidavit and the statements made in Paragraphs Nos. 3 to 10 thereof are true to his information derived from the records of this case, and the statements made in the rest of the paragraphs are by way of substitutions before this Court. It is not known, how the Sub-Inspector of Police could have information derived from the records of this case. In the circumstances, no reliance can be placed on any of the statements made in the counter-affidavit filed on behalf of the Respondents. 8. Two counter-affidavits have been filed on behalf of the intervenor Respondent, Bhola Nath Singh. It is not known, how the Sub-Inspector of Police could have information derived from the records of this case. In the circumstances, no reliance can be placed on any of the statements made in the counter-affidavit filed on behalf of the Respondents. 8. Two counter-affidavits have been filed on behalf of the intervenor Respondent, Bhola Nath Singh. It is said that the intervenor respondent represented on the 21st October, 1982, to the Engineer-in-Chief cum Additional Commissioner, Rural Engineering Organisation, against his transfer ORDER :dated the 30th March, 1982, and on the said representation, an ORDER :was passed on the 24th February, 1983, which was communicated to the intervenor respondent, relieving him with effect from the afternoon of the 24th February, 1983. A copy of the office ORDER :is issued by the Executive Engineer, R.E.O. Nawadah, dated the 26th February, 1983, has been annexed as .Annexure 'E' to the counter-affidavit. The office ORDER :dated the 25th February, 1983 (Annexure 'E') is to the effect that a meeting of the Committee to review the work done was held on the 22nd February, 1983, under the Chairmanship of the Chief Engineer, R.E.O., and in accordance with the ORDER :issued by the Works Commissioner in that meeting, the intervenor respondent, Bhola Nath Singh was relieved with effect from the date of the office ORDER :(Annexure 'E'), namely, the 24th February, 1983, and the intervenor respondent, Bhola Nath Singh was directed to make over all accounts, cash (Sabhi Lekha Rakam) and other connected papers to the Executive Engineer, under whose signature that office ORDER :was issued. 9. A copy of the aforesaid representation dated the 31st October, 1982, filed by the intervenor respondent is Annexure-B to the first counter affidavit filed on behalf of the said respondent. It would appear that till the 21st October, 1982, the intervenor respondent had not joined his new post at Patna, in obedience to the ORDER :s and notifications issued in this regard, although, as pointed out above, he made over charge of his post at Nawadah to the petitioner in presence of the Superintending Engineer, vide the Charge Report (Annexure 3') and the communication of the Superintending Engineer (Annexure 6'). He stated in the representation that the petitioner was not prepared to take over charge and that even if he was prepared to take over charge, this respondent could not have made over charge to the petitioner, because the petitioner had broken open the cash-chest and had removed documents etc. He further stated that due to some domestic troubles, he was not in a position to leave Nawadah. The prayer made by him in his representation was that he should be allowed to continue at Nawadah for the time being. 10. The fact that the intervenor respondent was directed to make over whatever documents, etc., might be in his possession to the Executive Engineer, goes to show beyond doubt that the petitioner Ashok Kumar was functioning as the Assistant Engineer, R.E.O., Works Subdivision No. I, Nawadah. As the intervenor respondent had not joined his new post at Patna, his absence from duty had to be regularised, and it is, perhaps, for this reason that the office ORDER :dated the 24th February, 1983 (Annexure 'E') was issued. 11. In view of the aforesaid discussions, it is manifest that the petitioner, Ashok Kumar, has been functioning as the Assistant Engineer, R.E.O., Works Subdivision No.1, at Nawadah since the date he took over charge, i.e., the 31st March, 1982, and, therefore, even if he broke open the cash-chest, belonging to the office of the Assistant Engineer, R.E.O., Works Subdivision No. I, Nawadah, and took out some papers from the same, when he was fullfledgedly Incharge of that office, it cannot be said that he committed offence of criminal trespass of theft. Thus, the allegations made in the first information report lodged by the intervenor respondent do not constitute any offence. 12. Section 156 of the Code of Criminal Procedure, relied upon by the learned Counsel for the intervenor respondent, lays down, inter alia, that any officer incharge of a Police Station may, without the ORDER :of a Magistrate, investigate any cognizable case, and that no proceeding before a Police Officer in such case shall, at any stage, be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate. There cannot be two opinion about it. It is evident that the Police Officer has power to investigate a cognizable case. There cannot be two opinion about it. It is evident that the Police Officer has power to investigate a cognizable case. If the allegations made in the first information report do not constitute an offence, it would be an abuse of the process of the court to allow such a Police investigation to proceed. 13. Learned Counsel appearing on behalf of the petitioner has placed reliance on a decision of the Supreme Court in the case of State of West Bengal and others vs. Swapna Kumar Guha and others (A.I.R. 1982 Supreme Court 949), in support of his contention that if the materials do not disclose an offence, no investigation should normally be permitted. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. It is on the basis of this principle that the court normally does not interfere with the investigation of a case where an offence has been disclosed. But it cannot be said that an investigation must necessarily be permitted to continue and will not be prevented by the Court at the stage of investigation, if the materials do not disclose an offence. 14. On consideration of the relevant materials aforesaid, it is evident that no offence is disclosed. In such a case, it will be the duty of the Court to interfere with investigation and to stop the same to prevent any kind of uncalled for and unnecessary harasament to the petitioner. 15. In view of the aforesaid discussions, this application is allowed and the investigation by the Police in the aforesaid Nawadah Police Station Case No. 247 of 1982 is quashed. Chaudhary Sia Saran Sinha, J. I agree to the ORDER :proposed by my learned Brother, but, would like to make a few observations of my Own. 17. The prayer made is to quash the investigation started on the first information report (Annexure 1'). There are separate spheres of working of the Police, the Executive and the Judiciary. Normally no impediment should be raised in the functioning of the different limbs in their respective spheres. But, when compelling circumstances do arise, appropriate interference by the Court becomes necessary. 18. On looking to the various affidavits (sic) the averments made and the attending circumstances, it is crystal clear that on receipt of the transfer ORDER :dated the 30th March, 1982, the intervenor respondent. But, when compelling circumstances do arise, appropriate interference by the Court becomes necessary. 18. On looking to the various affidavits (sic) the averments made and the attending circumstances, it is crystal clear that on receipt of the transfer ORDER :dated the 30th March, 1982, the intervenor respondent. Bhola Nath Singh made over charge to the petitioner, Annexure 3' being the Charge-report. Annexure 5', Annexure 6', Annexure 7', Annexure 8', and Annexure 9' to the writ application, as also Annexures 13' and 14' to the second supplementary affidavit I filed on behalf of the petitioner all point out clearly that after taking over charge, the petitioner functioned as the Assistant Engineer on the post referred to above, for all intents and purposes. It was not disputed that it was the Assistant Engineer of the Works Subdivision concerned, who was to be Incharge of the iron-chest. If the petitioner functioned as the Assistant Engineer, what offence there can be, even if he broke open the chest and took out some papers, as alleged by the intervenor respondent. The reply would be that in such a situation, by no stretch of imagination the offence under Section 380 or under Section 448 of the Indian Penal Code would be attracted. 19. Coming to the first information report (Annexure 1') itself, it does not mention at all about the dishonest element, necessary to constitute a crime under Section 380 of the Penal Code. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. Though mainly the court has to take into consideration the complaint or first information report, in' appropriate cases it may take into consideration the relevant facts and circumstances of the case. On a consideration of all these, no offence, worth investigation by the Police, stands disclosed in the instant case. In such a situation, allowing the investigation to proceed will amount to unnecessary and uncalled for harassment to the petitioner, particularly, at the hands of the anxious Sub-Inspector of Police, who has come to awear affidavit on behalf of the State and others. In these circumstances, it will be the duty of this Court to interfere with the investigation by the Police.