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1986 DIGILAW 263 (PAT)

Anil Kumar Jha v. State Of Bihar

1986-08-25

NAGENDRA PRASAD SINGH, YADUNATH SHARAN SINGH

body1986
Judgment N.P.Singh, J. 1. This application has been filed on behalf of the petitioner for a writ of mandamus directing the Superintendent of Police and the Officer in-charge, Bisfi Police Station to complete the investigation of Bisfi Police Station Case No 54 of 1986 and to arrest respondent Mumtaz Mian, who is one of the accused in the aforesaid police case, ignoring the order dated 17.5.1986 issued by the Superintendent of Police (C), Patna. 2. According to the petitioner, his father was murdered in the night of 25.4.1986 and a First Information Report was lodged the next day. In the First Information Report, afore said Mumtaz Mian was mentioned as the person suspected to have committed the murder along with others. While the investigation was in progress, the aforesaid order was issued on 17.5.1986 by Superintendent of Police (C), Patna addressed to the Superintendent of Police, Madhubani not to arrest aforesaid Mumtaz Mian till the case is investigated by the Criminal Investigation Department (hereinafter referred to as the C.I.D.). According to the petitioner, the direction not to arrest the accused had been issued only to protect him as he happens to be a son of an Ex-member of Legislative Assembly, which amounts to interference, with an ulterior motive with the statutory right of police to investigate and arrest an accused of a cognizable offence. 3. On 3.6 1986, the present writ application was filed. On 4.6.1986, this Court directed the Government Pleader No. V to seek instruction as to how the aforesaid communication dated 17.5.1986 had been issued, directing the Superintendent of Police not to arrest the accused of the case in question, when the police has statutory power to investigate a cognizable offence and to arrest an accused person if a prima facie case is made out against such an accused person, unless the investigation in the meantime has been taken up by some other agency, from the district police. 4. A counter affidavit has been filed on behalf of the State and its officers. That affidavit has been sworn by the Deputy Superintendent of Police, C.I.D. Bihar, Patna. It has been stated that on 11.6.1986 the Criminal Investigation Department decided to take over Bisfi P.S. Case No. 54 of 1986 and the deponent was directed to investigate the said case. A counter affidavit has been filed on behalf of the State and its officers. That affidavit has been sworn by the Deputy Superintendent of Police, C.I.D. Bihar, Patna. It has been stated that on 11.6.1986 the Criminal Investigation Department decided to take over Bisfi P.S. Case No. 54 of 1986 and the deponent was directed to investigate the said case. A copy of the order issued under the signature of the Superintendent of Police (C), C.I.D. has been annexed to the counter affidavit, About the communication dated 17.5.1986 it has been explained that as C.I.D. was to take over the investigation an advice was sent to the Superintendent of Police, Madhubani not to arrest the aforesaid accused till the case was investigated by C.I.D. But on 10.6.1986 the Director General-Cum-Inspector General of Police instructed to arrest the accused Mumtaz Mian so that he may be interrogated. In other words, the impugned order dated 17.5.1986, not to arrest the accused aforesaid was recalled on 10.6.1986 and a direction was given to arrest the accused for the purpose of interrogation. 5. During the hearing of this application it was stated on behalf of accused-respondent No.7 that he filed an application for anticipatory bail before this Court and by order dated 22.5.1986, this Court called for the case diary and supervision note in respect of the aforesaid case and ultimately respondent No.7 has been granted anticipatory bail by this Court. 6. In view of the developments after the impugned communication was issued now there is no occasion for this Court to direct the police to arrest the accused respondent in connection with the aforesaid police case. Similarly, there is no necessity of quashing the order communicated by letter dated 17.5.1986 directing the Superintendent of Police. Madhubani, not to arrest the accused respondent because that order was recalled on 10.6.1986 on the direction of the Director General-Cum. Inspector General of Police. as mentioned above. 7. On behalf of the petitioner however, it was urged that, in the facts and circumstances of the case, neither it was legal nor proper for the C.I.D. to take up the investigation when the case was being investigated by the local police. Inspector General of Police. as mentioned above. 7. On behalf of the petitioner however, it was urged that, in the facts and circumstances of the case, neither it was legal nor proper for the C.I.D. to take up the investigation when the case was being investigated by the local police. In this connection it was pointed out that the father of the accused-respondent had filed a petition before the Chief Minister, Bihar, who had passed an order directing the Inspector General of Police, C.I.D. to take steps for getting the case investigated through some senior officer of the C.I.D. According to the petitioner, this order was passed by the Chief Minister with an ulterior motive in order to shield and protect the accused-respondent. 8. In the counter affidavit filed on behalf of the State and its Officers, a copy of order dated 11.6.86 issued under the signature of the Superintendent of Police (C), C.I.D. bas been annexed. In that it has been mentioned that the Deputy Inspector General of Police, C.I.D. has passed an order under Rule 425 of the Police Manual, saying that the investigation of the police case aforesaid had been taken up by the C.I.D. and has deputed the Deputy Superintendent of Police. C.I.D. to investigate the case. That order was communicated to the Deputy Inspector General of Police, Darbhanga Range. Merely the investigation of the police case in question has been taken up by the C.I.D. after necessary order being passed by the Deputy Inspector General of Police, C.I.D. I am not inclined to hold that the investigation had been taken up by the C.I.D. from the local police with some mala fide intention. It is well known that the other wings of the State Government entrusted with the investigation of an offence can very well investigate a case registered before local police station after proper orders from the authorities concerned. The High Court should not Interfere with such investigation unless the High Court is satisfied on the materials produced that the action of the authorities concerned can be held to be malice in law or in fact. Reference in this connection may be made to the judgment in the case of State of Bihar V/s. J.A.C. Saldanha. The High Court should not Interfere with such investigation unless the High Court is satisfied on the materials produced that the action of the authorities concerned can be held to be malice in law or in fact. Reference in this connection may be made to the judgment in the case of State of Bihar V/s. J.A.C. Saldanha. In the instant case, except that the father of the accused respondent had filed a petition before the Chief Minister of Bihar which was sent to the Director General of Police requesting the latter to get the allegations made against the accused respondent investigated by a superior officer of C.I.D. nothing has been brought on the record on the basis of which it can be held that the investigation has been taken up from the local police by the C.I.D. with some ulterior purpose, i.e. to shield the accused and to scuttle the investigation. I have already pointed out above, that the Deputy Inspector General of Police, C.I.D. who has been entrusted with the power to direct that any investigation in any police case be held by C.I.D., has passed the order in the present case. He has deputed an Officer of the rant of Deputy Superintendent of police, who is investigating the case instead of a Sub-Inspector or an Assistant Sub-Inspector of the local police station. According to me, in the facts and circumstances mentioned above, it is not possible to quash the investigation of the case by the C.I.D. How ever, it is expected that the investigation shall be conducted in accordance with law so that the evidence against the real culprits are properly collected. 9. Before I part with this judgment I must observe that the superintendent of Police (C) by the impugned communication dated 17.5.86 should not have requested the Superintendent of Police, Madhubani, not to arrest the accused respondent because till that day the State Government had not taken any decision that C.I.D. should take up the investigation of the case. It has been consistently pointed out by the Privy Council as well as the Supreme Court that police has statutory right to investigate and to arrest an accused person of a cognizable offence. That right should not be interfered with even by any wing of the Department of Police, barring such superior Officers who have right to guide and supervise the investigation. That right should not be interfered with even by any wing of the Department of Police, barring such superior Officers who have right to guide and supervise the investigation. In the instant case, it cannot be held that the Superintendent of Police (C) had communicated the order not to arrest the accused respondent, while supervising the case because he was not the supervising authority. But, as the order communicated by letter dated 17.5.1986 has already been withdrawn, there is no occasion to issue any direction in that respect. 10. In the result, this writ application is dismissed. Y.S.Singh, J. 11 I agree.