Jharkhand High Court
Citizens' Cause, Ranchi vs State Of Jharkhand & Ors on 18 January, 2012
Equivalent citations: 2012 (2) AIR JHAR R 609, (2012) 2 JCR 546 (JHA)
Author: Prakash Tatia
Bench: Chief Justice, P.P.Bhatt
IN THE HIGH COURT OF JHARKHAND,RANCHI.
W.P(PIL) No. 858 of 2009
Citizens'. Cause .......................... Petitioner.
Versus
The State of Jharkhand and Ors. ............................. Respondents
CORAM :- HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE P.P.BHATT
For the Petitioner : Mr. M.S.Anwar, Sr. Advocate
For the State : Mr.R.R. Mishra G.P. II
.
Order No. 34 Dated 18th January,2012
Reportable . 1. Heard the learned counsel for the parties
2. The learned Sr. Counsel for the petitioner drew our attention to the paragraph- 6 of the order of this Court dated 14th September, 2011, which reads as under :-
"6 The petitioner in prayer (E) of the writ petition, has prayed for effective implementation of the Bihar/Jharkhand Prevention of Specified Corrupt Practices Act, 1983 and particularly implementation of Section 34 of the Act which provides that State Government servants and officers and all employees, officers and Chairman, Vice Chairman, Directors, Deputy Directors and members etc. of a public undertaking, Authority, Co-operative Society, Corporations, Body, Board, Society or Organizations and known by any other name constituted under Central Act, ordinance, Rule or Regulation or over which the State Government has its control or authority and all those who in any way are concerned with the functioning of the said public undertaking etc. shall submit simultaneously with joining the post after their appointment, statement of their entire movable and immovable property in prescribed proforma and in case the public servants have submitted the particulars as required under the above provision."
3. The learned Sr. Counsel for the petitioner also drew our attention to the Government's notification dated 9th September, 2010 whereby the State Government has amended the Rule 9 of the Jharkhand Government Servant Conduct Rules 2001.
4. It appears that by this order, one order issued by the then State of Bihar numbering 69491 dated 5th April 1976 has been amended requiring submission of the statement of the movable and immovable property of the government servants within three months and thereafter submitting the periodical statement of such properties. It has also been provided by this notification that Principal Secretary and the Secretary shall get the order implemented.
5. The learned Sr. Counsel for the petitioner submitted that it is a clear case of deliberate violation of the order of this Court wherein it has been indicated that the petitioner has prayed for implementation of Section 34 of the Bihar Prevention of Specified Corrupt Practices Act,1983 which is adopted by the State of Jharkhand.
6. Section 34 of the said Act of 1983 covers the State government servant and officers and all employees and Chairman, Vice Chairman, Directors, Deputy Directors and members etc. of public undertaking, authority, cooperative society, corporation, body, Board , society or organization and known by any other name constituted under Central Act, ordinance rule or regulation or over which the State Government has its control or authority and all those who in any way are concerned with functioning of said public undertaking etc. Such persons are required to submit the statement of their movable and immovable properties at the time of joining of their services or within a maximum period of three months as per clause (2 ) of Section 34 of the Act. If such declaration is not furnished even after direction of the competent authority then they shall be punished with imprisonment for a term of one year or with fine or with both. Furthermore, the court shall have also right to pass an order in pursuance of the provision of Chapter 34 of the Code of Criminal Procedure 1973 for confiscating the property in case above mentioned officers or employees is found guilty of earning it by corrupt practice.
7. Prima facie, it appears that to come out of rigour of sub- clause( 2) of Section 34 of the Act of 1983, this notification dated 9 th September, 2010 has been issued and it has been stated that notification has been brought in compliance of this court's order dated 14th September, 2011 and instead of requiring of the statement of the property under section 34 of the said Act, it has been required by notification dated 9th September, 2010 to obtain the particulars of the properties of such employees, referred to above. In case of non-furnishing of particulars of such properties, only departmental proceedings can be initiated.
8. However, we are of the considered opinion that the government even failed to achieve its objective, which was sought to be achieved by issuing the notification dated 9th September, 2010, as a few government employees have submitted their returns. As the government is bound to enforce the law, which has not been stand amended by notification dated 9th September, 2010 nor it has an effect over the statutory provision made under the Act of 1983 therefore, in spite of the notification dated 9th September, 2010, the government is bound to act according to law.
9. From the affidavit we found that the government has received the details of the properties of 3059 government employees, obviously on the date of filing of the affidavit which was filed on 16th December, 2011, prima facie, indicating that virtually the government employees have not complied with the directions issued by the notification dated 9th September, 2010, which required furnishing of the statement of the property within three months. Therefore, we want to know whether there was bonafide on the part of the State Government even in issuing the notification dated 9th September, 2010. We direct the State Government to state on oath whether because of non-compliance of the order given by notification dated 9th September, 2010 and any order issued in consequence of the notification dated 9 th September, 2010, if the employees have not furnished the particulars of their properties as required then any department proceeding has been initiated against any of the employees and if initiated, the government may state on oath that against how many persons such departmental proceedings have been initiated as required by the notification dated 9th September, 2010.
10. At the cost of the repetition, we may indicate that unless satisfactory explanation is given for not implementing the provision of section 34 of the Act of 1983, the court has to pass appropriate order by observing that notification dated 9th September, 2010 is nothing but a camouflage and to bring out the corrupt officers from the clutches of section 34 of the Act of 1983.
11. Therefore, in view of the above order, the State Government may file affidavit within a period of three weeks from today.
12. The learned counsel for the State submitted that there was total 88 P.C. Cases at the time of filing of this writ petition or within the period nearby, out of which, 24 cases were under investigation before the District Police related to IPC offences, however, those 24 cases were also having allegation of corruption. Vigilant department had 64 cases, out of 64, in 14 cases charge sheets have been filed on/ before 14th September, 2011 and in 31 cases, challan have been filed after 14 September, 2011. One matter has been sent to the CBI being Vigilance Case No. 3/99. From remaining 18 cases, six matters were with respect to the certain employees for which the High Court and Hon'ble Supreme Court passed the certain orders regularizing the services of those persons and in view of the above, the matter is under consideration of the State Government whether to continue their prosecution or not.
13. Apart from that, in several cases though challan was filed, subsequently investigation is going on in five cases and in one case, the investigating officer deliberately delayed the matter. Now it has been returned to the department. According to the learned counsel for the State, substantially the vigilant cases have been fully taken care of by now.
14. At this juncture ,we would like to know about the latest position of the case now pending before the vigilant department and number of pending cases may be indicated year wise in the above affidavit i.e year wise breakup.
15. The learned counsel for the State has submitted that substantially in large number of vigilance cases, challans have been submitted but it has come to the notice of this court that there is general practice in the State of Jharkhand of not following the provisions of Sections 207 and 208 of the Code of Criminal Procedure,1973 nor the police submits the police report and complete documents on completion of investigation as required under Section 173 of Cr.P.C which requires not only submitting the report in the prescribed format as provided under sub-section (2) of Section 173 Cr.P.C but it requires forwarding of all the documents or relevant extract thereof on which the prosecution proposed to rely including the statements recorded under Sections 161/164 of Cr.P.C of all the persons to whom the prosecution proposed to produce as its witness, subject to exception as given under sub-section (6) of Section 173 of Cr.PC. It has come to the notice, that sub-section(5) of section 173 of Cr.P.C is normally not complied with and complete set of the documents and the statements recorded under Section 161 of Cr.PC are not submitted in trial courts and are being kept by the police which is in violation of sub-section (6) of Section 173 of Cr.P.C. Because of this reason only, the court is required to call for the case diary for the purpose of taking any further step including even for hearing the arguments on framing of charges and only the report, as provided in sub-section (2) of Section 173 of Cr.P.C, alone is forwarded to the Sessions court for sessions trial without there being any of the documents, referred in sub-section(5) of Section 173 of Cr.P.C and even the statement of the witnesses resulting into waiting of the police papers by the Sessions Court. .
16. Section 207 of Cr.P.C provides for supply of copy of the police report and other documents to accused when proceeding has been instituted on a police report and section 207 Cr.P.C clearly mandates that such report and documents shall be furnished to the accused without any delay, free of cost. Section 208 of Cr.P.C also provides supply of copies of the statements and documents to the accused in case instituted otherwise then on police report and triable by court of Sessions. It is essential to quote the sections 207 and 208 of the Cr.P.C :-
"207. Supply to the accused of copy of police report and other documents.- In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request , direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.
208. Supply of copies of statements and documents to accused in other cases triable by Court of Session.- Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy each of the following:-
(i) the statements recorded under section 200 or section 202, or all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under section 161 or section 164;
(iii) any documents produced before the Magistrate on which the prosecution proposes to rely;
Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court."
17. It is strange that in spite of having statutory provision and right of the accused to get all police papers, including police report, copy of FIR, statements recorded under section 161(3) Cr.P.C subject to exception under sub-section(6) of Section 173 and all relevant documents, the same are not provided to the accused resulting into filing of the writ petitions before this court wherein only prayer made by the petitioner-accused is that he may be provided the copies of the above referred documents. The courts should not confuse by sub-section(7) of Section 173 Cr.P.C which provides the words "where the police officer investigating the case finds it convenient" is not arbitrary discretion of police officer in the matter of supply of copies of the documents referred in Sections 207 and 208 of Cr.P.C. Further it is right of an accused to know what evidence prosecution is relying upon. At the same time the report sent by a police station and the documents referred in sub-sections under section 173 are submitted to the court, they became court record which itself cannot be given to anybody including the public prosecutor for his use. Therefore, one complete such set is required to be given to public prosecutor also.
18. In view of the above, we direct the Director General of Police of the State of Jharkhand to see that Sections 172, 173,207 and 208 of Cr.P.C be complied with strictly and whenever the challan is filed in the court of Magistrate that must be filed with the documents as referred under section 173 of Cr.P.C which have already been referred to above, at the time of filing of the challan. The copy of the police report and other documents as referred under sections 207/208, be provided to the accused, free of cost. In case of non-compliance of Sections 173,207 and 208 of Cr.P.C ,the trial court will be free to refuse to accept the challan with note on the police report or in order sheet that the documents are not complete and in that situation, the Investigating Officer and the State Government shall be responsible for serious consequences which may occur. Every police officer making an investigation shall maintain case diary separately as is required under section 172 of Cr.P.C.
19. Section 172 Cr.P.C is also very important to note the difference between the "case diary" and challan(police report) and the documents mentioned in section 173 Cr.P.C. Section 172 Cr.P.C is as under :-
"172.Diary of proceeding in investigation -(1)Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(1A) The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary.
(1B) The diary referred to in sub-section(1) shall be a voloume and duly paginated (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court ; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act 1872 (1) of 1872), shall apply."
In view of section 172 Cr.P.C, every police officer making an investigation is required to maintain "case diary" in addition to recording every event of the case , he is required to "insert" statement of witnesses recorded under section 161.Sections 172 and 173 made it clear that original statements under sections 161 will be submitted to the court and it's copies will be in the case diary.
20. We are further making it clear that"case diary" of proceedings in investigation is required to be maintained under Section 172 of Cr.P.C and it is a duty of the police officer, making any investigation, that he, day to day enters his proceedings of the investigation in a diary, setting forth the time at which the information reached him, the place or places visited by him, and the statement of circumstances ascertained through his investigation and it further requires the statement of witnesses recorded during the course of investigation under section 161 of Cr.P.C shall be inserted in the case diary. It is clearly mentioned in sub- section (1A) of Section 172 of Cr.PC that the statements of witnesses recorded during course of investigation under section 161 of Cr.P.C shall be inserted in the case diary which clearly indicates that second set of statements under section 161 Cr.PC are recorded on separate sheet and its copy remained in the case diary. Sub- section (2) of Section 172 of Cr.P.C is very relevant which clearly declares that such diaries shall not be evidenced in the case but to aid it in such inquiry. 21 We are making further more clear, that this order is required to be complied with all seriousness by the prosecution agency and the lapses on the part of the prosecution which may be treated to be deliberate disobedience of this court's order. .
22. All the courts, competent to receive the police report and challans, are directed to comply Sections 173,207 and 208 of Cr.PC.
23. The copy of this order(Para 15 to 23) be circulated to all the courts in the entire State of Jharkhand and the copy of this order be sent to the Director General of Police , State of Jharkhand for issuing instructions to all police stations to fallow the directions referred above and comply with sections 172,173,207 and 208 Cr.P.C .
24. It has been brought to the notice of this court that in the State of Jharkhand though there is vigilant department of the police but it is on the verge of collapse for want of the officers and who are holding post, they are unwilling to work because of the reason that they are coming very late in the vigilant department of the police and that too at the verge of retirement, on which time, officer may not like to take any risk under apprehension of being caught in wrong traps so as to effect his retiral benefits. However, at present, serious issue is that the post of even Director General of Police is lying vacant for about nine months. Against the sanctioned five posts of Superintendent of Police, four posts are lying vacant subject to verification of fact and that there are 22 posts of Deputy Superintendent of Police, out of which 12 posts are vacant and out of 10 working, six officers are about to retire. It is clearly indicated that officers posted in the vigilant department of the police are on the verge of retirement. The Deputy Superintendent of Police is the Investigating Officer under the P.C. Act and this is the position of working strength in the vigilant department. 25 The State Government may immediately look into the matter and take immediate decision to give full or adequate strength to the vigilance department of the police, which is almost necessary , in view of coming up of large number of vigilance cases before the vigilance department.
26. We have passed several directions to the State Government and in this order, the directions is being issued with heavy hurt because of reasons that in spite of our hope that the governance will start governing the field of governance, the court is required to pass an order for the valid reasons.
27. Office is directed to list this matter in future after showing the name of Mr.R.R. Mishra, G.P.II for the respondent-State.
28. Put up this case on 28th February, 2012 on the top of the list.
(Prakash Tatia, CJ) (P.P.Bhatt, J) SD/-SB