Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 428 (PAT)

Dr. Lakshmi Roy v. State Of Bihar

2011-03-25

BIRENDRA PRASAD VERMA

body2011
JUDGEMENT BIRENDRA PRASAD VERMA, J. 1. The petitioner, now a former Chairman of Bihar Public Service Commission, Patna (hereinafter referred to as "B.P.S.C"), has approached this Court under Article 226 of the Constitution of India by filing the present writ petition for the reliefs, delineated in paragraph-1 of the writ petition, which are reproduced herein below: "A. To issue an appropriate writ/ writs, order/orders, direction/directions in the factual backdrop of the facts and circumstances of the case declaring, the manner of arrest and taking into custody at the hands of respondent no.2 a Constitutional functionary gracing the post of Chairman, Bihar Public Service Commission and he has been disgraced and humiliated at the hands of respondent no.2, as being illegal, motivated by extraneous consideration and against the mandate as enshrined under the Constitution of India. B. For a further declaration by this Honble Court that the petitioner who was admittedly arrested at the time when he was the Chairman of the Bihar Public Service Commission, in a most illegal and unconstitutional manner, in as much as, the special procedure prescribed under the Constitution in Chapter-2 of Part-14 of the Constitution of India for taking any action whether civil or criminal and the said provision clearly laid down the mandatory guideline as to how one should act when the Chairman of States Public Service Commission has been found to have some complicity in a criminal conspiracy and the violation of the said constitutional provision has resulted in making the said arrest void ab initio, and as such the respondents be directed to abide by the constitutional provisions strictly and to proceed in accordance with law. C. After making the above said declaration and for a graceful interpretation of the constitutional provision relating to the dismissal of a Chairman, the respondents may be directed to set him at a liberty and thereafter follow the constitutional provision if at all required for his said arrest in accordance with law. D. To pass any other consequential order/orders to which the writ petitioner may be legally entitled to in the facts and circumstances of the case." 2. In order to appreciate the points involved in the present writ petition and submissions advanced on behalf of the parties, it would be relevant to indicate certain material facts of the present case. Fortunately, factual matrix in the present case is not in much controversy. 3. In order to appreciate the points involved in the present writ petition and submissions advanced on behalf of the parties, it would be relevant to indicate certain material facts of the present case. Fortunately, factual matrix in the present case is not in much controversy. 3. Admittedly, on 30.06.1996 Combined Engineering Entrance Examination, 1996 (in short "C.E.E.E.") was conducted by the Department of Science and Technology, Government of Bihar, for selection of the eligible candidates for their admission in different Engineering Colleges in the State of Bihar, as also for nomination of the candidates for different Regional Engineering Colleges, out side the State of Bihar, to the extent of the quota fixed for the State. In the year 1996, the petitioner was posted and working as the Principal of Regional Institute of Technology, Jamshedpur. The petitioner, being the Principal of R.I.T., Jamshedpur, was made Incharge of first Coding team for the said Examination. On completion of evaluation works, result of the successful candidates was published on 02.08.1996. 4. One Pramod Kumar Oukania and two other unsuccessful candidates, being aggrieved by the result so published, filed three writ petitions separately, vide C.W.J.C. No. 7666, 7779 and 8122, all of 1996, for almost similar and identical reliefs before this Court praying therein for cancellation of the result of C.E.E.E. on the ground of manipulation and use of unfair means in the said examination and also with a prayer for re-evaluation of their answer sheets and on such re-evaluation, to declare them as successful candidates. 5. In the meantime, the petitioner was appointed as Chairman of the BPSC by the Governor of Bihar. Accordingly, the petitioner assumed the charge on 25.01.1997 and started functioning and discharging the duty of Chairman of BPSC. 6. The writ petitions, filed by Pramod Kumar Dukania and two other unsuccessful candidates, were finally allowed by a common judgment and order dated 17.07.1997, reported in 1997(2) PLJR 325 (Pramod Kumar Dukania V/s. State of Bihar & Ors.). The learned Single Judge of this Court, after considering the entire facts and circumstances relating to the aforesaid examination (C.E.E.E.) cancelled the selection and admission of 245 candidates in the different Engineering Colleges on the ground of fraud and manipulation in the aforesaid examination and it was further held that successful candidates, being the beneficiaries, were in active connivance with other authorities for such manipulation and fraud. In view of gravity of the case, the learned writ Court directed the respondent- C.B.I. to investigate the matter and submit a report within three months, so that an appropriate direction may be issued for prosecution of the persons found to have indulged in such activities. In compliance of the aforesaid orders and directions issued by this Court in the case of Pramod Kumar Dukania (supra), an F.I.R. (Annexure-3) was lodged by the respondent- C.B.I., giving rise to R.C. 43(A)/ 97-PAT dated 11.08.1997= Special Case No. 23 of 1997, for various offences under the Penal Code as also under the provisions of Prevention of Corruption Act, 1988. However, in the said F.I.R. the petitioner is not named as an accused. The F.I.R., vide Annexure-3, has been lodged against four named and other unknown accused persons. 7. The petitioner was interrogated by the respondent- C.B.I in course of investigation in connection with aforesaid R.C. No. 43(A)/97 and finally he was arrested by the respondent- C.B.I, on 11.11.2000. It has been specifically averred in the counter- affidavit filed on behalf of respondent no.2, and not disputed by the petitioner, that on such arrest of the petitioner on 11.11.2000, he was produced before the learned Incharge Special Judge, C.B.I., A.H.D., Patna on 12.11.2000 within 24 hours of his arrest and, accordingly, he was remanded to judicial custody. The petitioner was subsequently granted bail by learned Special Judge, C.B.I., Patna on 12.02.2001 and, accordingly, he was released from judicial custody. 8. At this place it is relevant to mention here that the judgment and order dated 17.07.1997 passed by the learned writ Court in the case of Pramod Kumar Dukania V/s. State of Bihar (supra) was challenged in L.P.A. No. 876 of 1997 and its connected L.P.As., which all were heard together by a Division Bench of this Court and were disposed of by a common judgment and order dated 22nd May, 1998, brought on record as Annexure-PB with the reply affidavit filed on behalf of the petitioner. The L.P.A. Court did not interfere with the investigation undertaken by the respondent- C.B.I, in compliance of order and direction dated 17.07.1997 passed by learned Writ Court. The L.P.A. Court did not interfere with the investigation undertaken by the respondent- C.B.I, in compliance of order and direction dated 17.07.1997 passed by learned Writ Court. However, the students, whose selection and admission in different Engineering Colleges were cancelled, were granted some interim protection and their admissions were relegated to the stage of interim order dated 20.08.1996 passed by the learned writ Court and it was ordered to continue till submission of charge sheet and consequently framing of charge against those candidates/students. However, it was made imperative that the concerned examinees and all other concerned persons were required to cooperate with the investigation undertaken by the C.B.I, and they were further required to make themselves available before the Investigating Agency for interrogation etc, if and when required. 9. So far as the petitioner is concerned interim charge sheet was submitted against him on 12.10.2001 by the respondent-CBI and according cognizance was taken on 19.10.2001. However, aforesaid order dated 19.10.2001, taking cognizance against the letitioner, was challenged by him before pis Court in Cr. Misc. No. 33510 of 2001, Which was finally allowed by an order dated 06.09.2002 and order taking cognizance was quashed on the ground that the sanction or prosecution against the petitioner was not found there to have been accorded by the competent authority. Subsequently, C.B.I. submitted fresh charge sheet against the petitioner on 28.02.2005, when sanction for prosecution was granted by the competent authority, and, accordingly, cognizance was taken against him on 01.03.2005 by learned Special Judge, C.B.I.,Patna.The petitioner, being aggrieved by the aforesaid order taking cognizance, challenged the same before this Court once again by filing a quashing petition, but that was rejected by an order dated 30.03.2005. In the meantime, the petitioner completed his tenure of six years as Chairman of BPSC on 24.01.2003. 10. Mr. In the meantime, the petitioner completed his tenure of six years as Chairman of BPSC on 24.01.2003. 10. Mr. Rajendra Prasad Singh, learned Senior Counsel, appearing on behalf of the petitioner, in his elaborate submissions, assailed the very validity and legality of the arrest of the petitioner in RC No. 43(A)/97 by the respondent C.B.I. According to him, the petitioner having not been named as accused in the F.I.R., vide Annexure-3, there being no sufficient materials available on record for his arrest by the C.B.I., there was absolutely no justification for his arrest on 11.11.2000, while the petitioner was still functioning and working as the Chairman of the B.P.S.C. In his submission, it was a case of illegal detention of the petitioner at the behest of the C.B.I, on certain extraneous consideration. However, he has fairly conceded that the main rellef sought for on behalf of the petitioner in the main writ petition for his release from judicial custody/for setting him at liberty has become infructuous, in view of the fact that he was granted bail on 12.02.2001 and he is still enjoying the priviledge of bail. 11. Mr Singh, learned Senior Counsel, has further submitted that since the petitioner has been granted bail during the pendency of the present writ petition by learned Special Judge, C.B.I., Patna, and main relief having become infructuous, he has filed I.A. No. 1157 of 2006, seeking amendment in the reliefs sought for on behalf of the petitioner and it has been prayed therein, inter-alia, that the respondents be directed to pay compensation of Rs. One Crore to the petitioner for his illegal arrest and detention in the case lodged by the C.B.I. In support of his contention he has placed reliance on several judgments of the Apex Court as also by this Court. In the same vein, it was submitted that though the F.I.R. was lodged as far back as in the year 1997 and fresh charge street was submitted against the petitioner in the year 2005 and cognizance was taken against him and despite full cooperation by the petitioner, even charge has not been framed as yet against him in the aforesaid criminal case, putting him in great mental agony and harassment, and his future prospect, despite having his brilliant academic career, has become doomed. 12. Mr. 12. Mr. Bipin Kumar Sinha, learned Standing Counsel, appearing on behalf of the respondent- C.B.I has vehemently opposed the prayers made on behalf of the petitioner in the writ petition as also in the interlocutory application, referred to above. According to Mr. Sinha, the present writ petition filed by the petitioner challenging his arrest in a criminal case was not at all maintainable. He submits that if the petitioner was at all aggrieved, he should have filed a criminal writ petition In the light of the judicial pronouncement made by a Division Bench of this Court in the case of Ram Krishna Upadhyaya V/s. State of Bihar and Anr., reported in 1995(1) PLJR 213. He also submits that though the petitioner was arrested by the C.B.I on 11.11.2000, but his arrest was for certain criminal acts while he was still functioning as the Principal of R.I.T., Jamshedpur in the year 1996 and was made Incharge of the First Coding Team for the conduct of C.E.E.E. In the same vein, it is urged that arrest of the petitioner was not with respect to any omission or commission made by him in the capacity of the Chairman of the BPSC and, therefore the pleas raised on his behalf for violation of provisions of Articles 317 or 361 of the Constitution of India are not at all applicable in the facts of the present case, are completely misconceived and are simply fit to be ignored by this Court. 13. In the factual backdrop of the case delineated in the preceding paragraphs, learned counsel for the petitioner has fairly submitted that now this writ petition is primarily confined to the reliefs regarding payment of compensation of Rs. One crore to the petitioner for his illegal arrest and detention in judicial custody for a period of about three months. He has placed reliance on the following judgments of the Apex Court as also our own High Court:- (A). Rudal Sah V/s. State of Bihar & Another, reported in A.I.R. 1983 SC 1086. (B) Bhim Singh V/s. State of J. & K. and Ors., reported in A.I.R. 1986 SC 494. (C) Nilabati Behera (Smt.) Alias Lalita Behera V/s. State of Orissa and Ors., reported in (1993)2 SCC 746 = A.I.R. 1993 SC 1960. (D) Joginder Kumar V/s. State of U.P. and Ors., report in (1994)4 SCC 260 . (E) Ram Awtar Swarnkar @ Ram Awtar Pd. (C) Nilabati Behera (Smt.) Alias Lalita Behera V/s. State of Orissa and Ors., reported in (1993)2 SCC 746 = A.I.R. 1993 SC 1960. (D) Joginder Kumar V/s. State of U.P. and Ors., report in (1994)4 SCC 260 . (E) Ram Awtar Swarnkar @ Ram Awtar Pd. Swarankar V/s. State of Bihar and Ors., reported in 2006(3) PLJR 336. (F) Sita Ram Mahato V/s. State of Bihar & Ors., reported in 2007(4) PLJR 226 . (G) Mahesh Ram & Ors. V/s. State of Bihar & Ors, reported in 2007(4) PLJR 250 . (H) Vijay Kumar Gupta V/s. State and ors., reported in 2009(1) PLJR 107 . (I) Sharmila Jaisawal V/s. State of Bihar & another, reported in 2009(2) PLJR 222 . 14. In the case of Rudal Sah V/s. State of Bihar and Anr. (supra), the Apex Court was dealing with a Habeas corpus petition. In that case, though the petitioner Rudal Sah was acquitted by the Court of Session, Muzaffarpur, Bihar, on 3rd June, 1968, yet he was not set at free and was still kept in judicial custody for more than 14 years and was finally released from jail on October 16, 1982. In that background the State of Bihar was directed to pay him Rs. 30,000/- by way of interim measure in addition to the sum of Rs. 5,000/- already paid to him earlier. It was also made clear that the order passed by the Apex Court shall not preclude the petitioner Rudal Sah from bringing a suit to recover appropriate damages from the State and its erring officials. The Apex Court, while dealing with the subjects regarding payment of compensation, has laid down the law in paragraphs 9 and 10 of the judgment, which are reproduced herein below: "9. It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary process of the Courts, Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. But the important question for our consideration is whether in the exercise of its jurisdiction under article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases. The petitioner was detained illegally in the prison for over fourteen years after his acquittal in a full-dressed trial. He filed a Habeas Corpus petition in this Court for his release from illegal detention. He obtained that relief, our finding being that his detention in the prison after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal detention and that we ought to pass an appropriate order for the payment of compensation in this Habeas Corpus petition itself. 10. We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government. Happily, the States counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in his country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its offices to the petitioners rights. It may have recourse against those officers." 15. In the case of Bhim Singh V/s. State of J. & K. (supra), the petitioner was a Member of Legislative Assembly of J. & K. and he was illegally kept in police lock up from 10th September, 1985 to 14th September, 1985, i.e., for five days and during all those five days, he was never produced before the learned Judicial Magistrate and he was not remanded to the judicial custody. The facts regarding his illegal detention in the police lock up was beyond the pale of controversy. In that background, he was awarded compensation of Rs.50,000/-. 16. The case of Nilabati Behera (Smt.) Alias Lalita Behera V/s. State of Orissa and others, (supra) was the case of custodial death of the son of the petitioner. Suman Behera, son of the petitioner, was taken from his home in police custody on December 1, 1987 by a police official. On December 2, 1987 his dead body was found on a railway track. In view of controversy raised on behalf of the State of Orissa regarding cause of death of Suman Behera, the Apex Court by order dated 4th March, 1991 directed the District Judge, Sundergarh to hold enquiry in the matter and submit a report. The parties were directed to appear before the District Judge and lead their evidence in support of their claim. The parties were directed to appear before the District Judge and lead their evidence in support of their claim. Finally, the District Judge submitted his enquiry report dated 4th September, 1991 by recording a finding of fact that death of Suman Behera was in the police custody. In view of the fact that it was a case of custodial death, the Supreme Court directed the State of Orissa to pay a sum of Rs. 1,50,000/- (Rs. One lac fifty thousand) to the petitioner-Nilabati Behera as compensation. In that case, the custodial death was fully established. However, the petitioner was further granted liberty to file any other proceeding for recovery of compensation on the same ground. 17. The case of Joginder Kumar V/s. State of U.P. and others, (supra) is also in altogether different factual background. The petitioner Joginder Kumar was a young Advocate, aged about 28 years. He was called by the Senior Superintendent of Police, Ghaziabad in his office on 07.01.1994 for making enquiries in some cases. He was kept in illegal detention for five long days and when a habeas corpus petition under Article 32 of the Constitution of India was filed, then he was produced before the Supreme Court. Therefore, the Apex Court held that though in law, the habeas corpus petition had become infructuous on the day of hearing of the case, yet for effective enforcement of fundamental rights inherent under Articles 21 and 22(1) of the Constitution of India, the Supreme Court issued certain guidelines for arrest of any person by the police. No compensation was awarded in favour of the petitioner in that case. 18. Our own High Court in the case of Ram Awtar Swarnkar @ Ram Awtar Pd. Swarankar V/s. The State of Bihar & Ors, (supra), Sita Ram Mahato V/s. State of Bihar & Ors., (supra) and in the case of Sharmila Jaisawai V/s. State of Bihar & Anr (supra) awarded compensation/damages because of custodial death of the kins of the petitioners of those cases. 19. In the case of Mahesh Ram & Ors. V/s. State of Bihar & Ors. (supra), it was found that a palpably false case of murder punishable under Section 302 of the Indian Penal Code was instituted and they were kept in judicial custody, for quite a long time, though subsequently it was found that alleged deceased was still alive. 19. In the case of Mahesh Ram & Ors. V/s. State of Bihar & Ors. (supra), it was found that a palpably false case of murder punishable under Section 302 of the Indian Penal Code was instituted and they were kept in judicial custody, for quite a long time, though subsequently it was found that alleged deceased was still alive. Despite recording a finding of fact by the police that deceased was still alive, yet the petitioners of that case had to remain in judicial custody for more than two months. In that background compensation was awarded in their favour. 20. Similarly in the case of Vijay Kumar Gupta V/s. State and Ors. (supra), it was found that a prisoner had remained in jail for two long years in excess of the period of sentence awarded by the trial court. In that background a sum of Rs. 24, 000/- was awarded to him as compensation/ damages. 21. Though the petitioner has pleaded in the writ petition that there has been infraction of Articles 317 and 361 of the Constitution of India, because at the relevant time on the date of his arrest, he was holding the post of Chairman of BPSC, a constitutional body. However, during the course of arguments, learned counsel appearing on behalf of the petitioner has not demonstrated before the Court as to how the petitioner was having constitutional immunity and he could not have been arrested in the present case.Neither any legal provision nor any judicial pronouncement either of the Apex Court or of our own High Court has been brought to my notice to establish the point that since the petitioner was working as a Chairman of a Constitutional body, his arrest with respect to his certain acts as a Principal of the R.I.T.,Jamshedpur was not permissible in the eye of law. No constitutional provision has been shown to have been violated by the C.B.I by arresting the petitioner in the criminal case lodged by the C.B.I in compliance of the direction issued by this Court in the case of Pramod Kumar Dukania V/s. State of Bihar (supra). 22. After having noticed the judicial pronouncements of the Apex Court as also of our own High Court in the factual background stated above, ! 22. After having noticed the judicial pronouncements of the Apex Court as also of our own High Court in the factual background stated above, ! am of the considered opinion that the facts involved in the present case are entirely different from the facts involved in those cases, referred to above. In the present case, the petitioner was arrested by the C.B.I on 11.11.2000. He was produced before the Incharge Special Judge, C.B.I., Patna on 12.11.2000 and was accordingly remanded to the judicial custody. Finally he was granted bail by the learned Special Judge, C.B.I, on 12.02.2001 apparently in terms of section 167(2) of the Code of Criminal Procedure in view of the fact that charge sheet could not be submitted by the C.B.I. by that time. 23. Merely on the ground that a person is not named in the F.I.R. as an accused and the charge sheet is not submitted within the statutory period prescribed under the provisions of the Code of Criminal Procedure, the arrest/ detention of that person cannot be termed "illegal". Admittedly, in the present case, final charge sheet has been submitted against the petitioner, cognizance has been taken against him, order taking cognizance having been affirmed by this Court by order dated 30.03.2005, his arrest at this stage cannot be termed to be illegal and unwarranted. If such pleas advanced on behalf of the accused persons are accepted, then in no criminal case, the persons who are not named in the F.I.R. can be arrested by investigating agency, despite the materials showing his complicity in the commission of crime. Sufficiency or otherwise of materials for putting a person on trial can be adjudicated either at the stage of framing of charge or finally at the stage of holding of trial against such person. The present being neither a case of custodial death nor being a case of admitted illegal detention, prayer of compensation of Rs. One Crore cannot be allowed. Accordingly, it has to be rejected. However, if so advised, as observed by the Supreme Court in the case of Rudal Sah V/s. State of Bihar & Anr. (supra), the petitioner shall be at liberty to file a suit for damages/compensation before an appropriate Civil Court of competent jurisdiction. 24. One Crore cannot be allowed. Accordingly, it has to be rejected. However, if so advised, as observed by the Supreme Court in the case of Rudal Sah V/s. State of Bihar & Anr. (supra), the petitioner shall be at liberty to file a suit for damages/compensation before an appropriate Civil Court of competent jurisdiction. 24. Before parting with the judgment, it would be appropriate to mention that F.I.R. in the present case was lodged as far back as on 11.08.1997 and charge sheet has been submitted against more than 249 accused persons including the petitioner. Some of the accused persons are either absconding or their attendance could not be secured. Admittedly, the petitioner is facing a criminal trial for more than ten years. Therefore, it would be appropriate that if the attendance of some of the accused persons cannot be secured, then in that case, the trial of the petitioner and other accused persons, whose presence has been secured, can be taken up on priority basis by separating their trial from other absconding co-accused persons. The respondent C.B.I has stated in paragraph 32 of the supplementary counter affidavit filed on 13.12.2010, that it has filed a petition before the trial court for separating the trial of the accused persons, who are in attendance before the trial court from the other accused persons, who are either absconding or have gone abroad by the order of the Court, but according to the affidavit, no order has been passed by the learned trial court. In the aforesaid background, the learned trial Court is hereby directed to split up the trial of the petitioner and similarly situated other co-accused persons and take up their trial on priority basis. All endeavours should be made to complete the trial of the petitioner within a period of one year from the date of receipt/production of a copy of this order. 25. For the reasons recorded above, the prayer made for payment of compensation of Rs. one crore for alleged illegal arrest/ detention of the petitioner is hereby rejected. However, learned trial court is directed to conclude the trial of the petitioner and similarly situate other co- accused persons, as per observation/ directions made above. The writ petition as also I.A. No. 1157 of 2006 stand disposed of. However, there shall be no order as to costs.