STATE OF BIHAR AND ANR v. J.A.C. SALDANHA AND ORS (2)

Citation: [1980] 2 S.C.R. 16

Court: Supreme Court of India

Bench: R.S. SARKARIA, D.A. DESAI, O. CHINNAPPA REDDY

Case summary

46(2) of the Police Act, there would be no question of State Government exercising general power of . In that case upon a disciplinary inquiry an Inspector of Police was served a notice by the Inspector-General of Police, Bihar, to show cause why he should not be dismissed.

Judgment text

STATE OF BIHAR AND ANR. v. J. A. C. SALDANHA AND ORS. November 13, 1979 fR. S. SARKARL. \, D. A. DESAI AND 0. CHJNN\I'PA REDDY, JJ. ] Investigation by Police-Further investigation in case in which one investf. patin~, of(:'ccr bud sul;n1ittnl a final r·cpon under section 172(2) of Crilninal Procedure Code, 1973, but on which the Court had not passed any order- Whether the State Government is precluded from directing further investigation in 1/ic case-Sections 2(h), 2(r), 36 156(1) and (2) and 193(8) of the Criminal Procedure Code, 1973 r/w Sectz'ons 1, 3, 12 and 22 of the Indian Police Act, 1861-Wherher E. G. of Police Vigilance, a ~superior" officer in rank for the purpose of section 36 of the Code-Power of Magistrate under s. 156 of the Code. Words and pfi.. -ases-"superintendcnce" in 11:ctio11 3 of Indian Police Act, 1861, meaning of. Investigation-Court's duty in interfering in a Criminal matter at the stage of h1vestigation.

f A First Information Report alleging loss of legitimate revenues due . to the railway by defrauding it with the connivance of railway officials either by loading pearl coke without being booked according to railway rules in the empty wagons after the man_ganese ore in them were unloaded at Adityapur in Tatanagar, a railway siding of the Tata Iron & Steel Co. Ltd. or by diverting \vithout regular booking of tanks containing furnace oil. was lodged on March 11, 1977, consequent upon which a case was registered at Tatanagar G. R. P. S. disclosing offences under sections 420/120B, 418 and 368 Indian Penal Code and sections 105/106 of the Indian Railways Act, against 9 persons. One S. R. I. Rizvi. Inspector of Railway Police, S. E. Railway Tatanagar con1menced investigation into the offences under the general supervision of R. P. Singh S. P. Railway Police appellant in Cr!. Appeal No. 300/79 and Respondent 6 in Cr!. Appeal No. 301 f79. The D. I. G.

Railway Police who was the immediate superior of Respondent 6, wrote a letter to the D. l. G. , C. l. D. , Bihar on May > 11, ! 977 requesting him to entrust the investigation to the Central Bureau of investigation. but the Inspector General of Police, Bihar, as per his letter dated June 24, 1977, declined the request. In the meantime on June 16, 1977 on a complaint from one Mr. Rusi 1\.. Iodi representative of TISCO, at Patna· to the Chief Secretary to the Government a1leging harassment of TISCO officials by respondent 6 and requesting for appropriate steps, the cabinet took the decision to transfer respondent 6. One Sbri R. H. Modi who was required to appear before the Investigating Officer, made some enquiry by his Jetter dated '! 'Iovi;-mber 4 1977 which was copied to some higher police officers including Respondent 2, Inspector General of Police, Bihar, acting on the copy of that letter requested Respondent 3, Add!. I. G. , C. I. D. to look into the com~laint of ' BIHAR V. J. A.

C. SALDANHA 17 Mr. 1\-Iodi. The third respondent sent a telegraphic communication to RespoQdent. 6 informing him that the investigation of the aforesaid offences had been taken over by the c·J. D. . The Com1nissioner, South Chhota Nagpur Division, Ranchi, on a request made by the Secretary to Government of Bihar (Home) Police departn1cnt enquired into the ·allegations made by officers of TISCO dgainst respOndent 6 and, after consultations with D. l. G.. Railway, the irnrr1e- ' t. Iiate su. perior of Respondent 6 submitted his report dated December 27, i977 giving a clean chit to Respondent 6. In the meantime, there was another application from M. L. As and M. L. Cs seven in all addressed to the Inspector General of Police, Vigilance, Bibar making serious a. llegations against the inves~igation • made by the C. I. D. under the supervision of respondent - 3, whereupon the Chief' Secretary to Government of Bihar submitted a note to the Chief f\.

Iinister on August 28, 1978 suggesting that the case involved in the matter be handed Over to the CBI for illquiry. This note Was approved and signed by the Chief j ~finister on the same day. In the meantime, the Chief Secretary by his letter dated September 2, 1978 directed respondent 3 to send all papers of the case with a note indicating the stage of investigation. to him and in compliance there~ · \\'ith respondent 3 sent all papers of investigation till then done ·to the Chief Secretary with his covering letter dated September II, 1978. The CBI declined to undertake the investigation and suggested that the Inspector General, Vigilance Department may be asked to conduct the investigation. The recommendation made accordingly by the Chief Secretary on February 8, 1979 was accepted by the 'Chief Minister on February 27, 1979.

In·between -on January 18, 1979, even though the papers were still with the· Chief Secretary respondent 3 directed the investigating office·r respondent 4 to submit the final report. When . the Chief Secretary came to know about it he wrote· to respondent 2 deprecating the conduct of respondent 3 in pushing through the matter, though the papers were not with him and he was orally instructed not to submit the final report. As undef the direction and orders of respondent 3, respondent 4 had already submitted final report on February 6, 1979, a communication was addressed to respondent 5. ' Superintendent of Railway Police who had taken over charge from respondent 6 to move the court not to accept the final report and await report of, Police after completion of the further investigation which was directed by the Government in the case. The matter was placed before th\'. '! Addi.

Chief Judicial Magistrate on February 24, 1979 along with report of the Assistaint Public Prosecutor not to ac. cept the final report of "no case" filed by respondent 4, whereupon the learned Magistrate passed an order to await report on further investigation and adjourned the matter to 23~3-1979 for further orders. On March 5, 1979, J. A. C. Saldanha respondent I and one of the officials named in the First Information Report filed a Writ Petition in the ITigh Court questie•ing the validity, legality and correctness of the· order of the Additional Chief Judicial Magistrate.. A full Bench of the High Court by its Judgment dated May 14, 1979 quashed the order inter alia holding that the direction give• by the Chief Secretary with the concurrence of the Chief Minister for handim: over investigation of the case to the Inspector General Vigilance WilS iUegal in as much as the I. G.

, Vigilance could not be entrusted in law with the investi,eation of the case registered with the railway police and consequently the learned Additional Chief Judicial Magistrate was in error in postponing the cons~dcration of the . final report already submitted by respondent 4 till such unauth. orisal investigation was completed. I SfY A Allowing the appeal by the State, the Court HELD: 1. A combined reading of sections 2(h), 2(r), 36, 156 and 173(8) of the Criminal Procedure Code, 1973 read with sections 1, 3, 12, and 22 of Indian Poiice Act, 1861 would indicate that the State Government was not precluded from directing further investigation in the case in which one investi- >:';- gating officer had submitted his 'final report' under section 173(2) of the Code, B but on which the Court had not passed any order.

Section 156 en~bles the officer incharge of a Police Station to investigate without the order of a Mag:strate into a cognizable case committed within the area of the police st. 1. tion. Under section 36 police· officers superior in rank to an officer in cha-rge of a. police station may exercise the same powers, throughout the local area to which they are appointed as may be exercised by such officer within the limits of his station. Section 173(8) enables an officer-in-charge of the Police Station C to undertake for their investigation in a. case \Vh(:re be has already sub1nitte -s. (8) 'of s. 173 is material.

It reads as under : "173(8) Nothing in this section shall be deemed to preciude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Mdgistrate and, whereupon such investigation, the officer in 8 cirnrgc of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescnbr-0; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)". The fim question is whether the State Government was precluded from directing further investigation in the case in which one investigating officer had submitted a report under s. 173(2) of the Code but on which the Court had not passed any order ?

D Section 156 enables the officer in charge of a police station to investigate without the order of a Magistrate into a cognizable case commilted within the area of the police station. The officer directed by the State Government to cany on the investigation is Inspector-General, Vigilance. He is undoubtedly an officer £ superior in rank, if not in departmentwise administrative hierarchy, to an officer in charge of a police station. Inter ;e departmental division such as Inspector-General of Police or Inspector-General, Vigilance, or Additional Inspector-General, C. I. D. may be merely a division of work for administrative efficiency, but the Inspector-General of Police could not by any stretch of imagination be said not to be an officer superior in rank to an officer in charge of a police station. While interpreting s. 551 of the Code of Criminal Procedure, 1908 ('1908 Code' for short), which was in pori materia with s. 36 of the Code, this Court in R. P. Kapoor & Ors. v.

Sardar Partap Singh Kairon & Ors. ,(') observed that the Addi. Inspector-General of Police was, without doubt, a police officer superior in rank to an officer G in charge of a police station. Rule 7(a) of the Bihar Police Manual provides that the police force of the entire State is under the overall charge of Inspector-General of Police and for the help of Inspector- General and for the convenience of carrying out the work connected with the different branches of police administration, Deputy Inspector- General and Assistant Inspectors-General of the rank of Superinten- II dent are posted at headquarters. The use of the word 'rank' in s. 36 . ' . (1) [1961] 2 S. C. R. 143 at 153,154. BIHAR v. J. A. C. SALDANHA (Desai, 1. ) 29 of the Code comprehends the hierarchy of police officers. It is equaJly cl. ear that Inspector-General of Police will have jurisdiction over the whole cf the State.

Division of work, but not demarcating any local area indicates that Inspector-General, Vigilance, will have jurisdiction extending over the whole of the State and this equally becomes clear from the Notification dated June 6, 1973,. issued by the State Government in exercise of the power under clause (s) of sub-s. (1) of s. 4 of the 1908 Code declaring that in respect of certain offiences tho Vigilance Department shall be deemed to be a police station having its jurisdiction throughout the whole State of Bihar. Even apart from this, Inspector-General appointed by the State Government has jurisdiction over the whole of the State unless the contrary is indicated. If he is thus an officer superior in rank to an officer in charge of a police station he could in view of s.

36 exercise the powers of an officer in charge of a police station throughout the local area to which he was appointed meaning thereby the whole of Bihar State as might be exercised by an officer in charge of a police station within the limits of his police station. It· was to him that the investigation of the case was ordered to be handed over by the State Government. It was, however, contended that State Government has no power to direct further investigation, that being the power of the officer in charge of a police station under sub-s. (8) of s. 173 of the' Code, or the power of the Magistrate to direct further investigation under sub-s. (3) of s. 156, and, therefore, the State Government under orders of the Chief Minister was not competent to direct further investigation in the case. The State of Bihar is governed by the Indian Police Act, 1861, ('Act' for short), because it has not enacted any Police Act of its own. r In s.

1 of the Act the word 'Police' is defined to include all persoDJ who shall be enrolled under the Act and the words 'general police dis- > trict' are defined to embrace any presidency, State or place, or any part of any presidency, State or place, in which the Act shall be ordered to take effect. Section 3 of the Indian Police Act provides as under : "3. The superintendence of the police throughout a general police-district shall vest in and, shall be exercised by the State Government to which such district is subordinate; and except as authorised under the provisions of this Act, no person, officer or Court shall be empowered by the State Government to supersede or control any police functionary". ''" Section 12 confers power on the Inspector-General of Police, subjCol to the approval of the State Government, to make rules and it was stated that the Bihar Police Manual, 1978, has been issued in exercise of the power conferred by s. 12.

Section 22 provides that every police officer shall, for all purposes in the Act contained, be considered to be always on duty, and may at any time be employed as a police officer in any part of the general police-district. The Act, as its long title· shows, was enacted to re-organise the police and io make it a more efficient instrument for the prevention and detection of crime. Investigation comprehends detection of the crime. General police-district covers the entire State. Inspector-General, Vigilance, being appointed for the whole of the State, is a police officer considered to be oli duty for all purposes of the Act in the whole of the State and it is open to the State Government to employ him as police officer in any part of the 1 general district.

This would effectively answer the contention of respondent 1 that Inspector-General, Vigilan~, being o"nly in charge of bribery and corruption cases, could not be directoo by the State Government in exercise of its executive administrative function to take over investigation of a cognizable offence registered at railway police station because when he was directed to take over the inv~stigation it would mean that he was employed as a police officer in that police station for the detection of the crime. However, even apart from this, what is the scope, content and ambit of the power of general snperintendence conferred on the State Government over the police throughont the general police-district meaning thereby the whole State ? The general power of superintendence as conferred by s. 3 would comprehend the power to exercise effective control over the actions, performance and discharge of duties by the members of the police force throughout the general district.

The word 'superintendence' would imply administrative control enabling the authority enjoying such power to give directions to the subordinate to discharge its administrative duties and functions in the manner indicated in the order. It is • only when a subordinate authority subject to superintendence is dischargiug duties and functions of a quasi-judicial character under a stB. tute that the inhibition of abdication of such power can be invoked. But where the subordinate subject to such ·power of superintendence of the superior is discharging administrative and executive functions, obligations and duties, the power of superintendence would comprehend the authority to give directions to perfo1m the duty in a certain manner, to refrain from performing one or the other duty, to direct some one else to perform the duty and no inhibition or limitation can be read in this power unless the section conferring such power prescribes one. ·such is the scope and ambit of power conferred by s.

3 on the State Government of superintendence over the entire police force of the Dil! AR v. J. A. C. SALDANHA (Desai, !. ) 31 State. This is borne out by a decision of this Court in Makeshwa1• Nath Srivastava v. State of Bihar & Ors. (I). In that case upon a disciplinary inquiry an Inspector of Police was served a notice by the Inspector-General of Police, Bihar, to show cause why he should not be dismissed. After taking into consideration the representation of the delinquent, the LG. Police, Bihar, passed order dated September 30, 1958, exonerating the delinquent of all the charges held proved against him by the inquiry officer. But on an entirely untenable extraneous ground he directed reversion of the delinquent from the post of Inspector of Police to the post of Sub-Inspector of Police. The delinquent preferred an appeal to the Government which was dismissed and the delinquent filed a writ petition .

in the High Court, Patna, which was allowed with a direction that the appeal of the delinquent be heard by the Government over again. The State Government thereupon issued notice under rules 851(b) and 853A of the Biliar and Orissa Police Manual, 1930, to the delinquent calling upon him to show cause why he should 11ot be dismissed from service and ultimately the delinquent was dismissed by the State Government. The writ petition filed by him was dismissed i11 limine by the High Court. In appeal to this Court by the delinquent, the order of the State Government was sought to be sustained on behalf of the State Government by contending that under its general power of superintendence conferred by s. 3 of the Police Act it would be open to pass an order of dismissal even in an appeal preferred by the delinquent against his reversion to the subordinate post by the LG. Police.

Setting aside this order of dismissal by the State Government this Court held that as rule 85l(b) provides for appeal and disciplinary proceed- 'ings, presumably both, at the instance of the officer punished or the Department and the rule being statutory having been framed in exercise of powers conferred by s. 46(2) of the Police Act, there would be no question of State Government exercising general power of . superintendence under s. 3 of the Act. It was further observed that the exercise of such power is ordinarily possible when there is no provision for an appeal unless there are other provisions providing for it. It would thus transpire that where the power is ,limited or fettered or taken away by some specific provision to the contrary, the general power of superintendence would comprehend power to issue directions, orders for performance' of duty in a certain. manner, directing some one else to discharge certain function, refrain from performing certain duty, etc.

Superintendence connotes supervision which implies a hierarchy, viz. , supervisor nnd the one supervised, It would, therefore, mean keeping a check, (I) [1971] 3 S. C. R. 863. watch over the work of another may be a subordinate in a hierarchy of authority. It would also comprehend that supervision is not merely 11. negative thing so as to keep a watch but it would imply giving ot direction, guidance, even instructions, and in a given case and in a given 1>ituation asking one who is being supervised to forebear from doing a thing and directing some one else to do that thing. In 'Words and Phrases', Permanent Edition, Vol. 40A, the word 'superintendence' • has been generally stated to mean the act of superintending, care and oversight for the purpose of direction and with authority to direct. To take an analogy, Art.

227 of the Constitution prior to iii amendment by 42nd Amendment conferred on every High Court the power of superintendence over all courts and tribunals throughout the J territory in relation to which it exercises jurisdiction and this power was held to embrace within its width, inter alia, the power to direct 1ubordinate courts and tribunals to carry out its orders, to direct inquiry with a view to taking disciplinary action for cases of flagrant m:tladrnini- •tration of justice (see Rajkumar v. Ramsunder) . (') Tho High Court construed the expression 'superintendence' in s. 3 of. tho Act to mean 'general supervision of the management of the police department and does not vest the State Government with authority to decide what the police_ alone is authorised to decide'. There is nothing in the Act to indicate such a narrow construction of the word 'superintendence'.

Nothing was pointed out to us to put a narrow construction on this general power of superintendence conferred under the Act on the State Government and there is no justification for limiting the broad spectrum of power comprehended in power of superintendence. Accordingly superintendence would comprehend the power to direct further investigation if the circumstances so warrant and there is nothing in the Code prO\iding to the contrary so as to limit or fetter this power. Sub-s. (8) of s. 173 was pressed into service to show that the power of furthec investigation after the submission of a report under s. 173 (2) would bo with the officer in charge of a police station. Sub-s. (8) of s. 173 i1 not the source of power of the State Government to direct furthet' investigation. Section 173(8) enables an officer in charge of a police litation to carry on further investigation even after a report under r. 173 (2) is submitted to Court.

But if State Government has otherwiss power to direct further investigation it is neither curtailed, limited nor denied by s. 173 (8), more so, when the State Government directs an. officer superior in rank to an officer in charge of police station thereby eojoying all poweni of an officcr in charge of 1 police station to furthec (I) A. LR. 1932 P. C. 69. ... BIHAR v. J. A. C. SALDANHA (Desai, J. ) 33 investigate the case. Such a situation would be covered by the combined reading of s. 173(8) with s. 36 of the Code. Such power ia claimed as flowing from the power of superintendence over police to direct a police officer to do or not to do a certain thing because at the stage of investigation the power is enjoyed as executive power untn. • melled by the judiciary. It was incidentally submitted that it is an undisputed dictum of law that when a statute requires a thing to be done in a certain manner it shall be done in that manner a.

Jone and the Conrt would not expect its being done in some other manner (su State of Gujarat v. Shanti/al Mangaldas & Ors. (1) Expounding the ,. 1mbmission it was stated that sub-s. (8) of s. 173 clearly indicates the l power of further investigation after submission of a report al)d that power is conferred on the officer in charge of a police station. only and, therefore, the State Government was incompetent to direct further inve11tigation. It was further contended that in view of the provision contained in s. 173 (8) it would not be open to the Court to so interpret the word 'superintendence' in s. 3 of the Police Act as to empower the State Government to direct investigation beingi done by some> one other than the statutory authority envisaged by s. 173 (8) because su~h an interpretation would derogate from the principle that where a thing i9 required by a statute to be done in a particular way it shall be deemed to have prohibited that thing being done in any other way.

In Ex-parte Stephen's('), the principle is stated that if a statute directs a thing to be done in a certain way that thing shall not, even if there be no negative words, be done in any other way. Subba Rao, J. in Patna Improvement Trust v. Smt. Lakshmi Devi & Ors. (•), spelt out the combined effect of the aforementioned principles thus : "A general Act must . yield to a special Act dealing with a specific subject-matter and that if an Act directs a thing to be done in a particular way, it shall be deemed to have prohibited the doing of that thing in any other way". There is no warrant for invoking this principle because s. 5 of the Code provides that nothing in the Code shall, in the absence of a i;pecific provision to the contrary, effect any special or local law for the time being in force, or any special jurisdiction or power conferred, . or any special form of procedure prescribed, by any other law for tho time being in force.

Section 3 of the Act does not prescribe any special procedure for investigation contrary to one prescribed in tho Code. It merely provides for conferment of certsin power which, whett TI (I) (1969) 3 S. CR. 341 direct investigation or further investigation is entirely different from the method and procedure of investigation and the competence of the person to investigate. Section 3 of the Act as interpreted by us deals with the powers of the State Government to direct further investigation into the case. Undoubtedly, such direction · will be given to a person competent to investigate the offence and as bas '. been pointed out, the police officer in rank superior to the police officer in charge of the police station, to wit, Inspector-General, Vigilance, has been directed to carry on further investigation. An ollicer superior in rank to an officer-in-charge of a police station couid as well exercise the power of further investigation under s.

173(8) in view of the provision embodied in s. 36 of the Code, If that be so, such superior officer could as well undertake further investigation on his own and it is immaterial and irrelevant that he does it at the instance or on the direction of the State Government. Such a direction in no way corrodes his power to further investigate on his own. · The power of the Magistrate under s. 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbeforc. The power conferred upon the Magistrate under s. 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation.

This provision docs not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in s. 173(8). Therefore, the High Court was in error in holding that the State Government in exercise of the power of superintendence under s. 3 of the Act lacked the power to direct further investigation into the case. In reaching this conclusion we have kept out of consideratioH the provision contained in s. 156(2) that an investigation by an otlicer-iii-charge of a police station, which expression includes police office? Superior in rank to such officer, cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on tho investigation; otherwise that provision would have been a short answer to the contention raised on behalf of respondent I. The High Court found circumstances in which investigatiO)l was directed to be taken by the Inspector-General of Vigilance as peculiar BIHAR v. J. A. C.

SALDANHA (Desai, l. ) 35 and unconventional. There are some tell-tale facts disclosed in the A. record which would totally dispel any doubt in this behalf. After respvndent 3 took over the investigation in circumstances far more curious and unintelligible than what the High Court found in respect of the direction given by the State' Government, respondent 3 directed his subordinate officer respondent 4 to carry on further investigation under his supervision. It would not be out of place to briefly narrate the cir- B cumstances in which respondent 3 took over investigation of this case. On a complaint received from one R. H. Modi, Managing Director of TISCO in respect of an intimation calling him to appear at the police station, the Inspector-General of Police, Bihar, requested respondent 3, Addi. inspector-General, C. I. D. , to look into the complaint of Mr. Modi whereupon respondent 3 seized the opportunity to take over the c investigation from railway police.

It is suggested that this routine direction to look into the complaint of R. H. Modi by Inspector-General of Police to Addi. Inspector-General, C. I. D. , purports to be an order transferring the investigation from Railway Police to ·c. r. D. It is stretching credulity to extreme to interpret the direction to look into D the complaint as one ordering transfer of investigation. The High Court was in error in so interpreting such an innocuous endorsement. This is how respondent 3 arrogated to himself the authority to investigate this case and even when papers of investigation were called from him by the Chief Secretary and were lying with him which would indicate that for the time being respondent 3 was not to fake any action in the E matter, he proceeded to direct that a report exonerating · the persons whose names were set out in the first information report be filed in the Court.

This would imply that the decision reached by the Superintendent, Railway Police, respondent 6 and his subordinate ln,pector Rizvi whQ had concluded that a charge-sheet had to be filed, was unacceptable to respondents 3 and 4 and in the guise of further investigation, they re-opened the investigation to explain away certain peculiar features of the case of which at present no note need be taken. It appears that the manner in which respondent 3 usurped and his subordinate respondent 4 carried on the investigation, attracted the attention of MLAs/ MLCs. and seven of them submitted a complaint dated August 28, 1978, to the State Government, Inspector General, Vigilance, and G others, complaining therein that the officers cf TISCO were bringing tremendous pressure to camouflage the issues disclosed in investigation of respondent 6 and that he has been got transferted a: :he instance of the officers of TISCO which prima facie appeals inasmuch as the.

day on which the resident representative of TISCO wrote a letter of request to do something in the matter addressed to the then Chief Secretary, H the same day Council of Ministers appears to have decided to transfer 1cspondent 6. The coincidence, if not curious, is certainly revealing, -T~--- ( MLAs. /MLCs. made certain allegations against respondent 3 which ' may be ignored for the time being but two things cranspire from his complaint which are of considerable imporance. It appears that TISCO has a special preference for retired highly placed State and Union level officers and attracts them on salary which none of them drew throughout his service. Mahabir Singh, the retired Inspector-General, Police, Bihar, has been appointed as Chief Security Officer; H. F. Pinto, after his retirement from the post of Secretary to Railway Board, was employed by TISCO. That is equally true of one N. K.

Gupta, retired Superintendent of Police, Tatanagar area who got employment with TISCO and no one other than the D. I. G. , Railway, against whom not a little of allegation is made in this case, has complained in his letter dated May 11, 1977, that TISCO authorities appoint retired railway and police officers with a view to influencing railway officers and others. He also complained that TISCO authorities are reported to be trying their best to seal all sorts of irregularities and might be manufacturing documents with break neck speed in defence. This emanates from a person who at least has been spared of any allegation by respondent~ 1, 3 and 4 and even those supporting them. The complaint made by MLAs. /MLCs. merely vouchsafes the suspicion voiced by D. I. G. , Railway, way back on May 11, 1977. This complaint was made by MLAs. /MLCs. undoubtedly belonging to the ruling party but that does not detract from its credibility.

If on such a ~omplaint made by elected representatives of the people of the State, and in the background of what n. r. G. , Railway, had suspected and which was confirmed in the report made by the Commissioner, South Chhota Nagpur Division, an officer not connected with the police establishment and free from any allegation of bias, the Chief Secretary, decided to draw altention of the Chief Minister to take some action in the matter so as to transfer the investigation to the C. B. I. , a body free from local political influence, there is. hardly any justification for calling the circumstances unconventional or unusual. And this step was taken by the Chief Secretary way back on August 28, 1978. This is a material date. Even at that time the Chief Secretary only prepared a note pointing out what was the situation and why it had beconie necessary to direct C. B. I. investigation in the case. The last sentence in the note dated August 28, 1978, i• .

that along with the investigation of the case "C. B. I. may also be ref. quested to make enquiries whether any senior police officer concerned with these two cases is involved in corruption or not". That effectively and conclusively answers the futile exercise undertaicen by the High Court to come to an utterly unsustainable conclusion that the case did not involve any corruption or bribery and, therefore, I. G. Vigilance was incompetent to undertake investigation of the case. Misappropriation BIHAR v. J. A. C. SALDANHA (Desai, J. ) of public funds has been complained in the first information report registered on March 11, 1977. A suspicion of corruption is voiced by the Chief Secretary. This note was approved meaning thereby that the suggestion therein made was accepted by the Chief Minister on the same day, i. e. August 28, 1978.

The acceptance of the note by the Chief Minister would tantamount to taking over the investigation from respondent 3 and his subordinates and to transfer it to C. B. I. It is im- ' material whether C. B. I. accepted it or. not. Pursuant to this decision within 5 days, i. e. on September 2, 1978, the Chief Secretary wrote to respondent 3 asking him to send all the papers of investigation to him in a sealed envelope. Respondent 3 was also directed to submit a brief l. note with respect to the case under investigation to ascertain the stage of investigation. This direction was received by respondent 3 on September 7, 1978. While complying with the requisition for papers, respondent 3 stated that he has pointed out the present progress of investigaticn and the need for further action to be taken. It means investigation was not complete even according to respondent 3. He aloo requested the Chief Secretary to return the papers to him.

Respondent 3 a very highly placed police officer would be presumed to be aware of departmental procedure that when all the papers of a case are called for from him any further gction has to be stayed by h,im. In administrative hierarchy one does not go on passing stay orders and it would be too naive to accept such a suggestion. There is nothing to show on record that thereafter any further investigation has Leen done by respondent 3 or his subordinates. ·subsequent thereto, on November 20, 1978, respondent 3 requested the Chief Secretary for the return of the records if they were no more required so that further steps could be taken to complete the investigation. Two unassailable conclusions emerge from this note of respondent 3 : (1) that the investigation was not complete; and (2) thaV the same could not be completed without, the records which were then with the Chief Secretary.

However, without any rhyme or reason and without the record and without the slightest further investigation with an unseemly hurry respondent 3, with a view to forestalling any action by the higher officers, viz. , the Chief Secretary and the Chief Minister, directed a final report to be submitted saying that no offence is disclosed. 'The narration of facts are so telltale that any further comment is uncalled for. We consider the observation of the High Court that the entrustment of the case for investigation to Vigilance Department is rather peculiar and unconventional, as unwarranted and unsustainable on the facts hereinabove narrated and discussed. Similarly, the aspersion cast on the complaint of MLAs/ MLCs. , lacks judicial propriety in that they were stigmatised and adversely commented upon at their back without calling for any explanation from them. In parliamentary democracy elected representatives have r. ,.

a duly to perform and their vigilance in performance of duty without anything shown as unbecoming of them cannot be unilaterally chastised. We say no more. It was next contended that the addition of the Chief Secretary in. suggesting that the investigation be taken over by the C. B. J. and the acceptance of the same by the Chief Minister suffers from legal malice inasmuch as the Chief SecretarY. and the Chief Minister had no jurisdic- ' tion, authority or power to make such an order to transfer investigation or to direct further investigation when a report was already submitted by respondent 4 as investigating officer to the Court competent to take cognizance of the case· It was, therefore, submitted that even though no personal ma/a fides is attributed to the Chief Secretary, once be lacked jurisdiction to re-open investigation his note would show legal malioo, Reference was made to Shearer v.

Shields('), wherein it is observed that : "Between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular system of jurispmdence. A person who inflicts an injury upon another person in contravention of the law is not allowed io say that he did so with an innocent mind; he is faken to know the law, and he must act within the Jaw. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently". This was affirmed by this Court in Bh11t Nath Mete v. State of West Bengal. (2) As pointed out above, if the Chief Secretary as the highest executive officer at the State level exercising power of superintendence over the police of the State posted in general police district would have powers to suggest change of investigating machinery in the circumstances disclosed in the letter dated May 11, 1977, of the D. LG.

, Railway, the report of the Commissioner of South Chhotanagpur Division, and the complaint of MLAs. /MLCs, his action could not be said to be without power or authority. In our opinion, if he had acted otherwise, a charge of inaction or failure or default in performance of his duty as the highest chief executive officer would be squarely laid at his door. He acted in the best tradition of the Chief executive officer ;_n public interest and for vindication of tmth and in an honest and unbiaBed manner. Afterall, if he had even the remotest bias against any one, he could have . II • (1) [1914] A. C. 808 at 813. (2) [1974] 3 S. C. R. 315 at 321. BIHAR v. J. A. C. SALDANHA (Desai, J. ) 39 as well suggested in agreement with the earlier investigation done by respondent 6 and the report submitted by him for submitting the chargesheet that a charge-sheet should be filed.

In fact, in tho background herein discussed, the Chief Secretary with utmost candour, with a view to vindicating the honour of the administration, proposed ascertainment of truth at the hands of C. B. I. , a body beyond reproach as far as local politics is concerned. The High Court was, therefore, in our opinion, clearly in error in casting aspersions on the Chief Secretary and the observation "whether respondent No. 2 is lying or the Chief Secretary is feeding ns with false facts is not for this Court to determine... " is an observation belied by the record and unwarranted in the circumstances of the case, The contention is wholly unmerited. A grievance was made that there was serious impropriety in the Superintendent of Railway Police, Mohammad Sulaiman, directly addressing a letter to the learned Additional Chief Judicial Magistrate on February 15, 1979, informing him about the decision of the Government to continue the investigation and, therefore, not co accept the final report.

lt is true that the police officers should refrain from addressing communications to the Court on pending matters required to be determined judicially and we express our disapproval of this conduct. However, it makes no difference in this case bec_ause the learned Addi. Chief Judicial Magistrate acted not on the letter dated February 15, 1979, but on an application made by the Assistant Public Prosecutor in charge of the case and that is the legally accepted mode of obtaining a judicial order. The next contention is that the High Court was in error in exercising jurisdiction under Art. 226 at a stage when the Addi. Chief Judicial Magistrale who has jurisdiction to entertain and try the case has not passed upon the issues before him, by taking upon itself the appreciation of evidence involving facts about which there is an acrimonious dispute between the parties and giving a clean bill to the suspects against whom the first information report was filed.

By so directing the ' learned Addi. Chief Judicial Magistrate the judgment of the High Court virtually disposed of the case finally. As we are setting aside the judgment of the High Court with the result that the case would go back to the learned Additional Chief Judicial Magistrate, it would be imprudent for us to make any observation on facts involved in the case. There is a clear cut and well demarcated sphere of activity in tl1e field of crime detection and crime punishment. Investigation of an II ·offence is the field exclusively reserved for the executive through the police department, the superintendent over which ve~ts in the State 40 SUl'REME COURT REPORTS [1980] 2 S. C. R. A Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book.

Once it in- • vestigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is B completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under s. 190 of the Code its duty comes to an end. On a cognizance of the offence be. ing taken by the Court the police function of investigation comes to an end subject to the provision contained in s. 173 (8), there commence! the adjudicatory function of the judiciary to determine whether an c offence has been committed and if so, whether by the person or persons charged with the crime'by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate.

This has been m:ognised way back in King Emperor v. Khwaja Nazir Ahmad('), where the Privy Council observed as under : "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 E 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 of the Criminal Procedure Code 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". This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power ·of tbe police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary. (1) [1944] L. R. 71 I. A. 20Jat 213. lllHAR v. J. A. C. SAj,DANHA (Desai, J. ) 41 Some attempt was made to impress us with utterly irrelevant A factor!! as to bow much freight TISCO-is paying to the railways every year and even the amount which may become payable in view of the disputed facte "llW also paid some time prior to the filing of the first information report.

We would refrain from making even an implied observation on any facts involved in the dispute, The case is not at ' a stage where the court is called upon to quash the proceedings as disclosing no offence but the case is at a stage where further investigation into the offence is sought to be thwarted by interference in exercise of the extra-ordinary jurisdiction. Apart from reiterating the caution administered way back in Khawaja Nazir Ahmad's (supra) case that unless an extra-ordinary case af' gross abuse of power is c made out by those in charge of iJ1vestigation as noted in S. N. Sharma v. Bipen Kumar Tiwari & Ors. (') the Court should be ouite loathe to int"erfere at the stage of investigation, a field of activity reserved for police and the executive. It :would be advantageous to extract what this Court observed in S. N.

Sharma's case : D "It app'ears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence liM been committed, in apprOpriate cases an aggrieved pCht. m can always seek a remedy by invoking the power of tht: High Court under Art. 226 of the Constitution under E which, if the High Court could be convinced that the power of in\festigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers". Not only such a case is not made out but the High Court by an utter . F ~onception of its jurisdiction almost directed the Magistrate before whom the papers are pending to act in a manner as enjoined by the High Court. How the High Court has usurped the jurisdiction of the leamed Magistrate, the following passage from the judgment of the High Court would be illustrativt.

·After setting aside the impugned order of the learned Magistrate dated February 24, 1979, and remit- G ting the CRS! ' to the leamed Magistrate, the High Court gave the following direction : "He will now proceed to consider the final report submitted by the Police (C. I. D. ). I should, however, like to observe for the benefit of the learned Magistrate that he will H bear in mind that mere failure to follow rules and regulations · (1) [1970] 3 S. C. It. 946. 4-868SCl/79 A is neither cheating nor breach of trust. He will also bear in mind while applying himself to the case diary with all thoroughness whether there is any materilil to show that the Railways have suffered. In order to constitute offence of cheating causation of damage or harm to a Person in body, mind, reputation or property is essential. The learned Magistrate will direct his attention to this aspect of the matter. Loss to the Railways cannot be presumed merely from the fact of irregular booking.

The learned Magistrate will consid~ the effect of issuing of despatch advice and forwarding notes by Tisco at the time of despatch of goods. The learned Magistrate will also bear in mind that mere failure to pay does not amount to cheating for, mere breacll of contract is not cheating. The attention of the learned Additional Chief Judicial Magistrate is particularly drawn to the cases of Harkrishna Mahatab v. Emperor (AIR 1930 Patna 209), Major Robert Stuart Wauchope v. Emperor (AIR 1933 Calcutta 800) and the State of Kerala v. A. Prasad Pillai and Another (AIR 1973 SC 326). To my mind that Railway as an organisation profited rather . than lost by the unusual procedure adopted in relation to Tisco. The learned Magistrate will also consider whether the whole case diary reveals any material· indicating that any P'riblic servant had enriched himself either by bribery or by breach or 1fy breach of faith. After going through the.

ease diary thoroughly the learned Magistrate will decide dehors the recommendation of Superintendent of Railway Police, respondent No. 7 and C. I. D. whether any offence had been committed and if so which accused should be put on triaP'. F Is there anything more required to write the final epitaph and say amen by the learned Additional Chief Judicial Magistra~ Bfter the finding is recorded by the High Court, more especially finding of fact that railway organisation has profited rather than lost by the nnusnal procedure? It is a clear case of usurpation of jtμisdiction vested in the learned Addi. Chief Judicial Magistrate to take or not to take cognizance of a case on the material placed before him. The High Court in exercise of the extra-ordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material.

In our opinion the High Court was clearly in error in giving the direction virtually amountiRg to a mandamus to close the case before the investigation is complete. We say no more. BIHAR v. J. A. C. SALDANIIA (Desai, J. ) 43 There are some serious allegations made against respondent 6 by the original petitioner and some of them were repeated with vellem•ence even at the Maring before this Court. We do not propose to examine them on merits save and except saying that once the investigation was taken over by respondent 3 and the conclusion reached by respondent 6 and his subordinate investigating officer to file the charge-sheet was not acted upoii, the stage at wjiieh the case was brought to t)le High Court did not call for investigation into the ma/a fules of respondent 6, appellant in the cognate appeal. After making him a respondent in the High Court an opportunity was taken to cast aspersions against his character.

His whole attitude in registering an offence and directing invcitigation into the offence has been questioned though an independent officer not even remotely connected with police department, the Commissioner of Chhota Nagpur Division found snbstance in the first information report, in the investigation done by respondent 6 and his conclusion, which again was affirmed by D. I. G. , Railway, not shown to be biased. The High Court interfered at the stage where investigation was to be taken up by an ~ indepeadent agency and, therefore, the so called bias of respondeat 6 becomes wholly irrelevant. It must, however, be pointed out that if an information is lodged at the rolice station and an offence is registered, the ma/a fide of the informant w6uld be of secondary importance if the investigation produces unimpeachable evideace disclosing the offence.

We, therefore, consider the aspersioAs cast on the character of respondent 6 and the allegations of ma/a fides made against him virtually accepted by the High Court in entirety as nttery irrelevant and the same may be treated as expugned for the c. purposes of thi~ appeal. We accordingly allow Criminal Appeal 301/79, quash and set aside the order of the High Court and restore the order passed by the learned Addi. Chief Judicial Magistrate, Jamshedpur, dated February 24, 1979. In view of this order it is not necessary to pass· any final order in the cognate appeal (Criminal Appeal 300/79) preferred by respondent 6. V. D. K. State Appeal allowed.