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2011 DIGILAW 2055 (PAT)

Balmiki Singh v. State Of Bihar

2011-09-26

DHARNIDHAR JHA

body2011
JUDGEMENT Dharnidhar Jha, J. 1. These two petitions arise out of Vigilance P.S.Case No.62 of 2009 pending before Special Judge, Patna. They have been heard together and are being disposed of by this common order. 2. The Criminal Writ Petition has been filed by Balmiki Singh, his wife and their two sons out of whom Smt. Indra Devi wife of Balmiki Singh, Balmiki Singh himself and his son Samarjeet Kumar, have preferred the Criminal Revision Petition also. The Criminal Writ Petition has been filed for issuing the writ in the nature either of certiorari or mandamus for quashing the seizure list-cum-inventory dated 12.06.2009 under which cash amounting to rupees Twenty lakhs and some important documents as also Tata Indica vehicle bearing registration no.BR-IX-8245 were seized. The further prayer is to issue suitable directions for initiating appropriate legal action against the erring respondents who were the officials of the Vigilance Department, Bihar with further directions to the Government of Bihar to provide suitable compensation to petitioners as they had been unnecessarily agonized mentally and had been put to economic loss besides being abashed in the society. 3. The above reliefs have been sought for under the facts that the officers of the Vigilance Department who are respondents no.10 to 13 entered inside the house of the petitioners and conducted a search of it during which course rupees Twenty lakhs in cash with some documents as per seizure memo were recovered as per inventory-cum-seizure list(Annexure- 6). Other articles were also found there and they were all seized and a copy of the seizure list was handed over to petitioners Balmiki Singh and his two sons. Out of the total seized amount, some part of it was returned to the petitioner Balmiki Singh and the remaining sum of money was kept by the Vigilance Department. 4. As per replies of the respondents the sum of money which had been kept in custody of the petitioners belonged to Sanjay Kumar, accused of Vigilance P.S. Case No.62 of 2009 who happens to be the son-in-law of petitioner Balmiki Singh. On account of recovery of the cash, etc. another case, vide P.S.Case No.86 of 2009, was registered regarding the acquisition of properties disproportionate to the known sources of income of accused Sanjay Kumar. 5. On account of recovery of the cash, etc. another case, vide P.S.Case No.86 of 2009, was registered regarding the acquisition of properties disproportionate to the known sources of income of accused Sanjay Kumar. 5. It appears that the petitioners had moved the learned Special Judge, Vigilance-I, Patna seeking the release of Rs.4,63,458/- to the petitioners along with the car and further cash amount of Rs.2,41,599/-. 6. The contention was that Section 102 Cr.P.C. does empower any police officer to make a search of any house or premises, etc. on suspicion that any property which could have been obtained after commission of theft or which was suspected to be subject matter of commission of any offence may be seized by the police. It was contended that as soon as the seizure had been made, Section 102(3) requires that the report thereof must be made, to the Magistrate having jurisdiction in the matter forthwith. It was contended that the word forthwith? has been explained by various judgments in different context and it has been held that there should not be any unreasonable time lag in making the report and as such delay of over two months in lodging the case and showing the recovered properties and articles as the subject matters of that case is not to be countenanced as may be evident from the language of Section 102(3)Cr.P.C. It was contended that the inventory and seizure be quashed and the reliefs as sought for including the direction to the investigating agency to release the properties/documents seized from the house of the petitioners be granted. 7. When the learned counsel rose up to make submissions on the two petitions on 19.09.2011, the court had pointed out to him the provision of Section 22 of the Bihar Special Courts Act, 2009 which creates a bar in maintaining a suit or other legal proceedings? in respect of any money or property or both ordered to be confiscated under Section 15 of the said Act. The learned counsel for the petitioners in the two petitions took time to examine the provision, whereas the learned counsel appearing for the Vigilance Department also sought adjournment for seeking instructions. in respect of any money or property or both ordered to be confiscated under Section 15 of the said Act. The learned counsel for the petitioners in the two petitions took time to examine the provision, whereas the learned counsel appearing for the Vigilance Department also sought adjournment for seeking instructions. Affidavit has been filed by the Vigilance Department indicating as if the confiscation proceeding has now been initiated in respect of the subject matter of the Vigilance P.S.Cases no.69 and 46 both of 2009 regarding the disproportionate assets acquired by the accused Sanjay Kumar. 8. It was contended by Sri Shakil Ahmad Khan, Senior Counsel for the petitioners that unless an order had been passed the bar under Section 22 of the Act shall not apply. Section 22 of the Act reads as under:- "Bar to other Proceedings.-Save as provided in Section 9 and 17 and notwithstanding anything contained in any other law, no suit or other legal proceedings shall be maintainable in any Court in respect of any money or property or both ordered to be confiscated under Section 15." 9. The language of the Section indicates as if the mere pendency of confiscation proceedings may not operate as a bar to maintaining any suit or other legal proceeding because the words ordered to be confiscated under Section 15?, appearing in Section 22 of the Act, clearly indicates that the bar may operate only when the properties have been ordered to be confiscated. However, if the proceedings for confiscation of the proceedings has been initiated and that is pending adjudication of the Authorized Officer, then in my considered view, any Court, even acting under Article 226 or 227 of Constitution of India should refrain from interfering with the special proceedings after an application under Section 13 of the Act has been filed as the very interference shall be obstructing the exercise of a very special power of a special forum and thus frustrate the object of the Act for which it was enacted. Further, the confiscation proceeding to be initiated or already initiated, in any case, has never to end in a final order, it may be challenged under Section 17 of the Act before this Court and in case any instances of prejudice or other illegality was pointed out, this Court may set the same right. Further, the confiscation proceeding to be initiated or already initiated, in any case, has never to end in a final order, it may be challenged under Section 17 of the Act before this Court and in case any instances of prejudice or other illegality was pointed out, this Court may set the same right. Acting under Article 226 or 227 of the Constitution may not allow an appropriate lawful forum to exercise its jurisdiction to adjudicate the proceedings and pass a final order under Section 15 of the Act. In the present view of mine, I am of the opinion that neither the writ petition nor the criminal revision petition is maintainable. 10. However, considering the importance of the issue as to whether the officers of the Vigilance Department were justified in making the search of the house of the petitioners and seize the properties as per inventory-cum-seizure memo (Annexure-6) without registering the first information report, I have decided to proceed to decide this particular question. 11. Police has a statutory, solemn power of investigating a case after registering the FIR. The power of the police to investigate a cognizable case flows from the provisions of Sections 156 and 157 Cr.P.C. Section 156 empowers an officer-in-charge of a police station to investigate any cognizable case without the order of the Magistrate who may have the jurisdiction over such local area. It may further appear from sub-Section(2) to that Section that the power of a police officer to investigate such cognizable case could never be questioned through any proceeding at any stage of the investigation on the ground that such police officer was not enjoying the power. On perusal of Section 157 Cr.P.C. what appears is that the investigation of a cognizance case may be initiated by any officer empowered under Section 156 Cr.P.C. if he has reason to suspect the commission of an offence and if he starts the investigation he shall have to send the report of the same to a Magistrate empowered to take cognizance of such offences upon a police report. What follows from the provision is that there may not be any bar or prohibition in proceeding to investigate any information, raising even a suspicion of commission of any cognizable offence and if the police stumbles upon material evidence showing commission of such offence or offences, it may collect them and later on register the First Information Report and send the report to the Magistrate as soon as he has drawn up the First Information Report. Collection of evidence being the only purpose of an investigation, there is no harm that the police prepared the documents in respect of those steps of investigating the case. However, this power of police is never qualified by the fact that it should always first institute the FIR and then proceed to investigate the case. If the provision of Section 157 Cr.P.C. be construed that way, then the whole purpose of empowering the police officer to investigate a cognizable case merely on suspicion shall be frustrated. It could best be illustrated by the very facts of the present case. The police was investigating the acquisition of disproportionate assets by accused Sanjay Kumar who happened to be the son-in-law of the petitioner Balmiki Singh. The police had information that the said accused had stashed his illegally amassed money or other properties at different places by putting the same in custody of different persons. If the police was to register the case first and then was to go to search the places then there might have been a very strong possibility that the persons in whose custody the properties had been put could have removed or concealed the properties to such an extent as to making it inaccessible by the police officers. This is the reason that in the cases of the present nature, generally the police conducts the raids, searches the premises or houses or even different banking or financial institutions where the accused is suspected to have stashed his properties either in the form of money or in any other form and, thereafter sits down to stitch up the facts to frame the FIR for filing the report with the Magistrate with all copies of seizure memoes, etc. If the above procedure is not followed, then it could be almost in every case that no property could be recovered or seized. It could be in the above background that the word forthwith? If the above procedure is not followed, then it could be almost in every case that no property could be recovered or seized. It could be in the above background that the word forthwith? has to be construed. 12. It is not that only this Court is taking the present view and the same was never taken by any other court that the police may, first, go to search a premises or any place suspected to store the stolen property or any other property which may be the subject matter of commission of any offence and recover the same and thereafter register the case. It is true that generally the police registers the FIR in cases of general nature involving general offences under the IPC or any other law and thereafter proceeds to investigate the case, but that is not always the rule. In cases in which there could be suspicion of commission of any other offence, it is always permissible for the police that they go, first, to conduct the searches and recover the properties and then file the report. This question was considered, probably, for the first time by the Privy Council in Emperor Vrs. Khwaja Nazir Ahmad reported in AIR 1945 Privy Council 18. It was held by their Lordships as follows:- "But, in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal P.C., when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under S.156 has been committed shall proceed to investigate the facts and circumstances, supports this view. In truth the provisions as to an information report (commonly called a first information report) are enacted for other reasons. In truth the provisions as to an information report (commonly called a first information report) are enacted for other reasons. Its object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished, and it has to be remembered that the report can be put in evidence when the informant is examined if it is desired to do so." 13. Thus, what may appear from the above observations of the Privy Council, the police is duly entitled to conduct the searches first on account of some exigencies and seize properties/documents, etc. and thereafter to register the report. It is true that conducting a search and seizing a property are part of investigation, but criminal law could not be put into a straight jacket so as to be blinded by procedural technicalities. It has always to be interpreted in such a way as to permitting investigations, inquiries and trials to eliminate commission of offence and further the cause of justice by allowing proper collection of evidence and then putting them together through different reports or documents before the court of justice for adjudication of the indictment. 14. In addition to the above reason what may further be found, as I have noted also, conducting a search and recovering or seizing any property, or a document, etc. and preparing documents in that behalf are all parts of investigation, or better put, steps in investigation of a criminal offence. They are very much part and parcel of investigation which is the statutorily earmarked jurisdiction of police. Section 156(2)Cr.P.C. clearly prohibits questioning such proceedings of a police officer on ground indicated therein. Thus, there is a statutory bar also in maintaining any petition seeking any part of investigation like the search and seizure, to be quashed as the same always has to be interpreted as interfering with the statutory powers of the police to investigate a cognizable offence. This position has been clarified by innumerable decisions of various Courts. The same decision in Khwaja Nazir Ahmad(Supra)elucidates the law as follows:- In their Lordships? opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. This position has been clarified by innumerable decisions of various Courts. The same decision in Khwaja Nazir Ahmad(Supra)elucidates the law as follows:- In their Lordships? opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S.491, Criminal P.C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court?s functions begin when a charge is preferred before it and not until then. 15 In the above views of the matter, it could not be said that the search of the house of the petitioners were without jurisdiction and was completely arbitrarily or illegal which required the issuance of the writs as was prayed for. 16. I find no merit in the writ petition and Cr.Revision petition and the two petitions are hereby dismissed.