Patna High Court
Association For Protection Of Public ... vs State Of Bihar And Ors. on 26 March, 1990
Equivalent citations: 1991(39)BLJR161, 1990CRILJ1928
JUDGMENT Prabha Shanker Mishra, J.
1. The petitioner, herein, who has claimed to be an Association for Protection of Public Rights and Interest, has moved this Court for a writ commending the respondents, their subordinates and agencies to certify before this Court/the records of Patna H.C. 25/86, R.C. 26/86, R.C. 43/86, R.C. 44/86 and R.C. 45/86 cases instituted pursuant to the Notification of the State Government dated 5-3-1986 addressed to the Central Bureau of Investigation (for short 'C.B.I.') and for a writ to quash the aforesaid proceedings against such officers of Indian Police Service in the Bihar Cadre, against whom, according to them, unfounded allegations have been stemmed out of malice and which allegations do not constitute any offence, and for instituting cases and proceedings in accordance with law against the real culprits irrespective of their status and position.
2. The petitioner has alleged that in the year 1985-86, startling disclosures through public for a and print media were made showing bunglings of crores of Rupees of Public Exchequer by certain high officials of the Police Department of the State in collusion and collaboration with others. Informations at such public fora and print media indicted the police administration of the State of Bihar, the State Government and the then Director General of Police who was alleged to be in criminal conspiracy with his relations in the cadre and accordingly to have maliciously acted on extraneous considerations in getting misleading reports on the basis of distorted facts aimed at innocent law abiding administrators; and to shield the real culprits who themselves participated in the preparation of the reports forwarded the said reports to the State Government and got them through to the C.B.I. for enquiry and registration of cases against innocent persons and not against the real culprits. The petition has referred to the debates in the Bihar Assembly in October, 1986 and special investigation stories by the press from October 5, 1986 to October 15, 1986 and quoted one such report published in a daily newspaper on 5-10-1986 which carried information inter alia:
"The sources said that the then Director General of Police (now retired) Mr. Jagatanand forwarded the issues allegedly in a discriminatory manner in so far as he picked up only such I.P.S. Officials as he considered not amendable to suggestion. He allegedly prevailed upon the Home Department to refer the entire matter to C.B.I. in connivance with some top officials of the State Government. Subsequently, the Home Department forwarded the scandal to the C.B.I. with the 'so-called notes' of the then D.G.P. sometime in March, 1986 despite differences at Government level. The differences were over the names of some I.P.S. officials involved in the recket and whose names were not forwarded to the Home Department for enquiry by the C.B.I." ...."The sources said the C.B.I., which reportedly had not been able to establish prima facie charges against some of the I.P.S. officials on the basis of D.G.P.'s notes, repeatedly requested the State Government to send Special Audit Report (SAR) carried out by the Accountant General (Audit), Ranchi, in the matter. But for reasons best known to the State Government, the SAR was not made available to C.B.I. till May, 1986. However all these SARs were handed over to C.B.I. sometime in June, 1986 when the new Director General of Police, Mr. S. B. Sahay, assumed the office".
3. A further portion of the said newspaper report has been extracted in the petition which stated:
"The SAR, sources said made startling disclosures of many irregularities in purchase of materials, which were obscurely mentioned in the D.G.P.'s notes allegedly to save some people in I.P.S. ranks. The C.B.I. was surprised over the whole issue and detected that names of many 'big sharks in I.P.S. cadre' who were posted in different years at key positions of purchase, were missing from the referred list of I.P.S. officials for enquiry. The Special Audit Report was altogether different from the contention of the notes of the then Director General of Police.
The C.B.I. reportedly felt that if the notes of the then D.G.P. would have been made the basis of enquiry, many big sharks in I.P.S. cadre would go scot-free and many I.P.S. officials, whose names had been allegedly referred out of personal animosity would come under the trap of a 'big conspiracy' said to have been hatched in the Police Department a year back.
The C.B.I. after scrutiny of the Special Audit Report, found glaring instances of bunglings committed by some top reanking I.P.S. officials in purchases and presently posted at key position at Police Headquarters and Police Commissioneries. Surprisingly their names had not been referred to C.B.I. for enquiry.
Disgusted with these 'tactics' since initial stage, the C.B.I. has recently, in a communication to the State Home Department, said undertaking the entire responsibility of enquiry/ scrutiny into all the audit reports will be a huge task carrying further stress on the meagre resources of the C.B.I. It suggested that these cases may be entrusted to the Vigilance Organisation of Bihar".
Similar story (sic) with some variations, according to the petition, were published in other Hindi dailies including the 'Hindustan' dated 9-10-1986, the 'Aaj' dated 9-10-1986, the 'Patliputra Times' dated 9-10-1986 and 10-10-1986, the Manshakti' dated 9-10-1986 and it is asserted that such stories were published in several other newspapers of the country. Every report published revealed the spurious, conspiratorial and mala fide act of the then Director General of Police and his cronies who were responsible for such blatant and flagrant abuse of authority by the Government officials in the State of Bihar as well as the C.B.I.
4. According to the petitioner, the Director General of Police and his relatives who were responsible for the reports against innocent I.P.S. officers and for shielding those, who were guilty, were not unaware of the special C.A.G. report. On 8-4-1985 the then Director General of Police had himself written to the Accountant General, Bihar, that there were irregular local purchases of centralised and decentralised items on a large scale by the different Superintendents of Police and Commandants of different Military Police Battalians during the year 1982-83 and 1983-84; these purchases were made in excess of needs, at a rate higher than the approved rates by Police Headquarters and from sources/suppliers/contractors not approved by the Police Headquarters. In his letter, he had alleged, inter alia, that the Finance Branch of the Police Headquarters had sanctioned finance and allotted funds. He had asked for a deep and special audit of the local purchases by Superintendents of Police/ Commandants and the allotment and release of the fund under the sub-heads (a) office expenses, and (b) material and supply by the Finance Section, and suggested points, inter alia
(i) Justification for local purchases during 1983-84 by the concerned Superintendents of Police and Commandants.
(ii) Whether the laid down Rules and Procedures were observed by the Superintendents of Police and Commandants.
(iii) Whether financial prudence and discipline were observed in local purchases by the Superintendents of Police and Commandants and queried, (1) Whether there was justification for the release of fund by Finance Section during 1982-85 and 1983-84.
(2) Whether laid down Rules/Procedures were observed by the Finance Section, and (3) Whether financial prudence and discipline were observed in allotment of funds by Finance Section. Following the said request of the Director General of Police, the Accountant General, Bihar, issued direction on 24-5-1985 directing its own organisation to constitute its own audit teams commensurate with the request of the Director General of Police and observed that the special audit of the office at the request of the State, Government was permissible and desirable when some serious irregularities were suspected. The Director General of Police had, invoked the jurisdiction of the 'C.A.G's authority to conduct the probe and submit report, which is referable to Article 151 (2) of the Constitution of India. The Director General of Police, however, almost simultaneously with his request to the Accountant General, Bihar, on 27-5-1985 wrote to the State Government through the Home Department to institute case/cases against Commandant B.M.P. 16 and some other staff of his office and suppliers as also concerned A.I.G. (B) and some staff of the Finance Branch of Police Headquarters for local purchases, during 1982-83 and 198,3-84. He for the said purpose utilised an inspection note of the Deputy Inspector General of Police, Military Police, North Zone, Muzaffarpur, and some notes of his own office inspection and suggested names for institution of case against them. He also suggested that the case should be investigated by the C.B.I. and stated that he intended to submit further reports in respect of other districts/ B.M.P, in future. The petitioner has alleged that the then Director General of Police had got those enquiries held by his relatives but withheld this information from the Govt. that those documents were prepared by his relations who were directly involved in the allotment of funds and exercising control upon the purchases by the Districts/B.M.P. and Head quarters. He also did not inform the State Government or the C.B.I. that he had already made a reference to the Accountant General, Bihar, for special audit and deep probe into the so-called sanction of irregular local purchases and release of fund by Finance Branch or purchase by some Superintendents of Police/Commandants of B.M.P. He suppressed the name of the agency at Police Headquarters which was supposed to sanction and control purchases under the financial sub-head: 'Material and Supply'. He also suppressed that there were documents showing interpolations, distortions, and destruction of records by or in the office of the A.I.G. (Q). The Accountant General, Bihar, returned the special report of the audit of B.M.P.-16 to the State Government (Home and Finance) and the Director General of Police stating that:
"It is an indication of the chaotic situation and lack of system in the purchase wing that is "Q" Branch of the Police Headquarters. This gave uncontrolled freedom to the Commandant to purchase clothings and materials even at the rates higher in many cases than what were approved rates and also from the suppliers other than those already enlisted and approved by the Police Headquarters. During 1982-83 and 1983-84 what emerges from the scrutiny of the purchases are avoidable irregularities and wasteful transactions. The Commandant does not seem to have made efforts to obtain central prices of the central list and decentralised list from A.I.G. (Q). He also does not appear to have considered competitive prices which is prudent. It was compulsory for the C.O. to examine the actual requirement of the battalian. The selection of contractors and suppliers by the C.O. does not seem to be based on objective tests like competitive prices, published tenders and reasonable selection prices and suppliers".
........"All funds were released during 1983-84, 1984-85 to C.O.16 on his written requisitions for payment or purchases quoting memos of 'Q' Branch. The funds were released during 1984-85 also.".... "The Finance Branch did not sanction any purchase under 'Material and Supply' during the year 1983-84 except under office expenses which was regular although sanction of purchases under this Head by the Finance Branch had been a practice in the past. The release of funds under the Head O.E. during 1982-83, 1983-84 was subjected to scrutiny and sanction in the Finance Branch. It is quite regular that fund has been released after the purchases for clearing the bills when the payments had become inevitable under Rule 13 of B.F. Rules. Therefore, the release of fund in respect of B.M.P.-16 during 1982-83, 1984 conform to the practice prevailing in Police Department. Audit could see the same practice operating before 1983-84 and after that period also. All the four AIG (B) during 1983-84 (3 regular and 1 acting) followed the practice of Department uniformally and the release of fund was as per Rule 110 of the B.R. Rule and Rule 13 of the same Rule as records revealed."
5. The Special Audit Report said a lot inche about "Q" Branch, "Invariably quantity of each item for each district/unit are supposed to be pre-deter-mined by the "Q" Branch of the police headquarters. The required scrutiny of purchases of the items of central tender under the head 'Material and Supply' is done by "Q" Branch. The payment of bills in respect of Schedule I item is done by the AIC (Q) and in respect of items of Schedule II by SSPs/Commandants at their level".
and commented "Policy formulations and scrutiny of purchases appear to have been done by the different wings of the purchase department independently without reference to the Finance Branch. Therefore, the Department has a system of multi level purchases independent of the Controller of Finance i.e. the Finance Branch of Police Headquarters. This is precisely the position of machinery and agencies for purchase at different levels in Police Department".
Speaking fruther about the Finance Branch the said audit report said :
"The Finance Branch also does not decide the quantity, price, contracts etc. of the items of local indents at the level of SSPs and Commandants and those are supposed to be authorised by the central purchases committed and 'Q' Branch and, therefore, local indents by SSPs and Commandants, or for that matter central indents by 'Q' Branch, by motor transport branch, by wireless branch, etc. are not subject to scrutiny by Finance Branch before releasing the funds. . . . ."
It thus concluded:
"Under the existing system, the Finance Branch may not refuse allotment to indenting officers of different wings and field formations unless there was a lack of funds or the purchases were likely to exceed the grant or there was serious reasons to refuse it or was advised by any branch to refuse the allotment".
and again adverted to the affairs of the 'Q' branch to say:
"The note by 'Q' branch and the photocopy of note-sheets if some files without signature of any officer fails to explain the lack of control over purchases in B.M.P.-16 by 'Q' branch during 1983-84 and 1984-85. Memos relating to release of fund by Finance Branch are shown to have been marked to 'Q' branch. In the opinion of the audit the denial of receipt of relevant memos concerning allotment of fund or disappearnace of these endorsements from 'Q' Branch during 1983-84, do not inspire confidence about the plea of lack of knowledge by 'Q' Branch".
6. The audit report lamented why the Director General of Police had not included in the terms of reference audit of major purchase wing of Police Headquarters 'Q' Branch and proceeded to identify ailments and said "In the scope of the audit of Police Headquarters the role of the main purchase wings i.e. 'Q' Branch add Motor Branch as these branches were the major spending agencies at the Headquarters has been thoroughly scrutinised".
and summarised:
(i) The 'Q' Branch of the Police Headquarters under the control and guidance of Central Purchase Committee and I.G.P. himself, controls and Central tender, purchases of central list and local list (known as Schedules I and II respectively). The contract allotment of central tenders under "Material and Supply" is thus completely controlled by the 'Q' Branch and its responsibility of control of central purchase as well as local purchases by the SSPs, and Commandants or by different Departments as far as items of central tenders are concerned, is final".......
"Besides, all Drawing and Disbursing Officers of and above the level of SSPs and Commandants make purchase at local level not only items of expendiable and daily use but other items of Schedules I and II subject to approval by 'Q' Branch or the Finance Branch, as the case may be. The motor chasis and wireless equipments are not purchased locally by any SSP and Commandant".
7. The audit has then observed :
"Finance Branch under an officer called AIG(B) performs the role of Controller of Finance, Bihar, on behalf of D.G.-cum-I.G. Police. This wing manages the budgeting, allotment of funds under distributable and non-distributable heads. After the annual grants or supplementary grants are received after Vote on account, the allotment and release of fund under the heads "Material and Supply", Motor or Wireless etc. are done by the Finance Branch on requisition from "Q" Branch, Motor Branch, etc. of the Police Headquarters and SSPs and Commandants. The different purchase wings of the Police Headquarters and SSPs. and Commandants, get lump allotment under "contract contingent charges" under Rule 110(2) read with 117 of the Bihar Financial Rules. The Finance Branch is not the Controller of purchase tender. "Material and Supply", Motor, Wireless, FSL etc. as the purchase proposals for particular year or prices, quantities, entitlement etc. are not subject to scrunity by the Finance Branch but by the different purchase wings of the Police Headquarters. AIG(B) is not on the Central Purchase Committee or on any of the purchase commottees like --Motor Wing, Wireless, FSL, etc."
and then said:
"The "Q" Branch of the Police Headquarters does not appear to observe instruction relating to purchase of stores and stock the purchases made by it during 1982-83, 1983-84 and 1984-85 were not based on needs and actual position of the different stores available in the Central Stores".
and then said:
"It appeared that the "Q" Branch although supposed to be working under the guidelines prescribed by the Central Purchase Committee and the D.G.-cum-I.G. Police himself, did not follow guidelines. The Central Purchase Committee did not authorise the "Q" Branch or any field level agency to go ahead with the purchases without deciding the actual need for a particular year at the Headquarters level for the Central Stores and for purchases of local indents at the level of the SSPs. and Commandants".
8. The audit once again adverted to the role of "Q" Branch and the Finance Branch and said:
"The release of fund to the "Q" Branch or Motor Branch or for that matter to the SSPs. and Commandants under Rule 110(2) read with 117 of the Bihar Financial Rules, does make them fully and finally responsible for all expenditure in case of lump sum grant of contract contingent charges, i.e. the fund under "Material and Supply" or for that matter, Motor etc. The lump release of fund under contract contingent charges does not authorise any purchase agency to violate the norms of purchases.
The lump release of fund under Rule 110(2) read with 117 of the Bihar Financial Rules, does not authorise indiscriminate and massive purchase by Purchase Wings. The norms of purchase should be followed by the agency responsible for purchase. The lump release of fund in the Police Department is not based on a scrutiny of purchase plans but on demand of requisition only. There is no practice at Police Headquarters which would require that release of fund in lump under the head "Material and Supply" and "Motor" is taken to Head of the Department, i.e. D.G.-cum-I.G. Police as the release of fund by itself is not the sanction of purchase. The agencies engaged in actual purchase and controlling the purchases, like "Q" Branch, take their purchase plans recommended and decided by different purchase Committee to the D.G.-cum-I.G. Police for sanction and approval".
9. With the above in mind, the audit commented upon the actual findings and investments in the following words :
"Poor supplies of even fabricated uniforms and necessary items for the bulk of the police force of the rank of constables and Havildars appear to be the main reason why local purchases could not be resisted at field level. After 1981-82, central tender was never finalised in time and the samples and prices and list of contractors were never circulated to contractors and Indenting Officers. Even the ordinary scrutiny of the dates of finalisation of tenders, i.e. acceptance of tenders, revealed that prices and names of suppliers/ contractors were not available even in January or February of the current financial year from 1982-83 to 1985-86. Tenders for 1985-86 are still unfinalised"......................
the entitlement of quantity of different items for different districts and the Units were not pre-determined and circulated during the financial years 1982-83, 1983-84 and 1984-85. This was the main reason why heavy and unnecessary purchases were resorted to in majority of districts and units from 1982-83 onwards. When not even the entitlement of different items for different districts and units can be worked out in time, it is but natural that excess purchases will be resorted to at the local level".
10. The offending part of the D.C.P. report has been commented upon by the auditor in the following words:
". . . . .Same set or group of suppliers selected by the Central Purchase Committee year after year for items they do not manufacture is one of the definite causes for failure of supply. The same set of suppliers after failure of the time and supply schedule deliver the materials,, mostly sub-standard, to districts/units after creating a man-made crisis of shortage of their own terms and charge rates double or sometimes more than double then the so-called central prices. Obviously the districts/units cannot wait indefinitely as the need of the Constables and Havildars for whom most of the supplies are needed cannot be deferred. The Central Purchase Committee has not been able to find solution to this kind of trading".
"..... The Central indents from 1982-83 onwards have invariably gone to the suppliers either at the fag end of the financial year with 30 to 60 days time to complete the supply or have not gone at all"..... "Absence of a valid central price can naturally lead to procurement of supplies at local level and at varying prices". ".,... Thus the lack of organisation coupled with lack of expertise in material management in "Q" Branch seems to have resulted in the collapse of the annual supplies and control of purchase not only at the Headquarter level for central stores but at the field level also. The lack of organisation for material management largely accounts for delayed finalisation of tenders, supplies, predetermination of requirements and entitlement of different districts, B.M.P. Units and above all even the approximate forecasting for the annual monitary requirement under material and supply for central stores and for districts/units separately",
11. There are so many lamentations and comments about the functioning of "Q" Branch and the Officer who held the office of the AIG(B) in the audit, report and so much in the report to show that A.I.G.(B) were obliged to honour the demands of SSPs./ Commandants, that a detailed study of the audit report alone will show, if the Commandants have never stopped sort of a reference to the "Q" Branch as at one place again it has said:
"The "Q" Branch has not been able to prepare its budget for purchases under material and supply and send it to the Finance Branch for the last four financial years from 1982-83 onwards. This amply demonstrates that the main purchase wing of the Police Headquarters does not have even the approximate view of the annual expenditures for the central indents and for local indents as well, This again shows that even the approximate need of different items of the force during a particular year was not being worked out and circulated to field organisations and to the Finance Branch. This is a clear proof of poor material management" ........"There is absolutely no doubt that central purchase committee is responsible for selection of samples, prices and contractors".
12. Since we shall be concerned in the instant case with one of the issues raised before us as to whether A.I.G.(Q) or A.I.G.(B) was responsible or involved in any shady deal or not, I may here point out that the aforementioned audit report adverted itself to it and said :
"The Audit probled the level of financial control and discipline exercised by the Finance Branch as referred by the D.G.P, in the terms of reference. It was examined whether the release of fund had anything to do with the local purchases. The Audit found that fund under sub-heads "Materials and Supply", 'Office Expenses', "Motor and Wireless", etc. was released in lump by the Finance Branch to concerned purchase branches at Police Headquarters in the past but D.G.-cum-I.G.'s letter made specific mention of 1982-83 and 1983-84 only".
13. When I shall come to the allegation of malice I shall advert more to the role of the D.G.-cum-I.G. but cannot resist at this stage adding how the State Government or the C.B.I. could not see through the contents of the letter of the D.G.-cum-I.G. of the State Government aforementioned and notice, as the auditor noticed, that D.G.-cum-I.G. had picked out the Finance Branch for indictment and particularly A.I.G.(B) and not A.I.G.(Q) when A.I.G.(B) had done nothing but followed the practice of the past and released in lump the money on demand by the Districts/Units concerned.
14. Rule 110(2) and R. 117 of the Bihar Financial Rules have been referred to by the petitioner which run as follows:
"110(2) In respect of contract contingent charges for which lump sum is placed annually at the disposal of a disbursing officer, no formal sanction will be required for expenditure incurred within the annual allotment except in so far as the authority fixing the contract allotment issues directions to the contrary".
"117 When under any special order of competent authority a lump sum is placed annually at the disposal of a disbursing officer for expenditure on specified items of contingencies without further restrictions, the officer incurring expenditure against the lump sum allotment should be held entirely responsible for the regularity of such expenditure, and for any expenditure in excess of such allotment unit the excess is sanctioned by competent authority".
and accordingly referred to the audit report which has said :
"The audit feels that local purchases in the district/units during 1983-84 or during any financial year is not linked with the release of fund. The prudence and financial discipline may be judged on the part of the purchase agencies and the drawing and disbursing officers rather than on the part of the Finance Branch".
15. The petitioner has alleged that respondent No. 2 wrote to the respondent No. 5 on 30-1-1986 about the decision of the State Government to hand over the inquiry and investigation into all the materials of local purchases to the C.B.I. and appended to the said letter the seven documents -- all prepared by the then Director General of Police and his office conspicuously omitting any reference to special audit or the special audit report/reports. Accordingly respondents Nos. 2 and 3 wanted to ensure that respondent No. 4 should be compelled to and tricked to rely on the documents framed by them which emphasised that A.I.Gs.(B), who were responsible for allotments and release of funds were responsible for the alleged offences in conspiracy with others and withheld informations which were fully dealt with in the audit reports showing that A.I.G.(Q), District Superintendents of Police/Commandants and other officers concerned with the purchases and supply were responsible for the huge bungling of funds in the name of purchase and supply.
16. The petitioner has alleged that the Director General of Police made false statement that during the year 1983-84, allotments of fund to the Superintendents of Police/ Commandants were questionable/dishonest and that allotments by the A.I.G.(B) de facto conveyed sanction for purchases. This he did notwithstanding the specific provisions in the Bihar Financial Rules aforementioned and the practice which prevailed in the Police Establishment. According to the petitioner, C.B.I. on the aforementioned communication instituted five cases against the five Indian Police Service officers of Bihar and one Additional Superintendent of Police (a member of Bihar Police Service) and others, but in the body of the reports incorporated such statements which indicated that the probe precisely was to be made in the bungling in the allotments of the fund to the districts/units and not in the purchase of the commodities in violation of the mandates of the Bihar Financial Rules. In any event, according to the petitioner there were deliberate omissions which ensured that no action could be taken against some of the District Superintendents of Police and A.I.G.(Q). It will be worthwhile to extract from the petition statements relating to the affairs in the office of the Director General of Police. The petition contains statements inter alia:
"That all probes into so-called irregular/ illegal purchases were so designed by the then Director General of Police that the whole thing turned out to be a probe into allotment or fund and not the much published purchases. Shri Jagatanand was the Director General of Police of the State for 13 months -- 12 months in 1985 and one month in January, 1986. This was the period when all inspection notes, office notes and letter/ recommendations concerning probes, cases etc. into alleged purchases and allotments were carried out by the Director General of Police and his two aides called D.P. Ojha and Anand Shankar. To start with on 20-4-85 a document in the form of Inspection Note on B.M.P.-16 was framed by Shri D.P. Ojha and this note reached Sri Jagatanand. Immediately on receipt of the Inspection Note of the group, another partner of the conspiracy, Sri Anand Shankar stepped in and examined the Inspection Note. Instead of examining the purchases in the light of Financial Rules, Practices, Provisions of Police Manual and orders of competent authorities like the State Government, Inspector General of Police, or minutes of Central Purchase Committee for purchases and also the established Financial Rules for lump allotment for release of fund under contract contingent charges, i.e. Material and Supply, Office expenses, etc. the group acted with surprising speed and fabricated documents called "office note in the file" containing fictitious and motivated line of argued deductions and inferences. An officer not notified by the State Government finally put up a note to Sri Jagatanand that purchases in B.M.P.-16 were possible because heavy funds were released (in lump sum) without the order of the Director General of Police and without concurrence from the A.I.G.(Q)/Supply Section and he further noted that this showed that the A.I.G.(B) concerned was a party to the misconduct of C.O. B.M.P.-16 in local purchases in that Battalian in 1983-84. The only reason given was that large sums of funds released to B.M.P.-16 through two or three different memos of the same date. As part of the pre-design it went to Sri Jagatanand for orders and none else. Sri Jagatanand who was waiting for a document of this kind naturally agreed with Sri D.P. Ojha and Sri Anand Shankar in toto and decided to refer the matter to the Accountant General, Bihar for Special Audit on 8-4-1985 with a particular kind of terms of reference as stated in aforesaid paras. But suddenly Sri Jagatanand decided on another course of action and referred the so-called purchases and the release of fund as related to local purchases of B.M.P.-16 and subsequently through similar and repeated letters in respect of some other districts and battalians, to the State Government for according approval for institution of criminal cases and then handing over the matter to the C.B.I. The behaviour of the then Director General of Police in adopting a move like this had a calculated design behind it. He could see that local purchases by some Superintendents of Police and Commandants were in violation of financial norms and, therefore, a canard of involvement in corrupt practices could be conveniently extended to release of fund also, and thereby to get some A.I.G.(B) into the net of the criminal case. However, he knew it too well that his fabrication of terms of reference to the Accountant General, Bihar, and grounds of criminal cases referred to the State Government would not stand the test of scrutiny and examination by the expert auditors. This explains his extraordinary behaviour to get rid of the audit probe and rely on his own documents".
17. After stating as aforesaid the petitioner has alleged that Sri Jagatanand, Shri D.P. Ojha and Anand Shankar are related to each other through marriage. Shri Anand Shankar is the brother-in-law of the nephew of Shri Jagatanand and Shri D.P. Ojha is married to the sister of one Ram Nivas Singh who is related of Shri Jagatanand.
18. Their close association, the aforementioned relationship apart, has also been dealt with in the petition and certain instances of Shri Jagatanand favouring Shri Anand Shankar and Shri D.P. Ojha are specifically stated. The petitioner had alleged that Shri Jagatanand kept the post of the A.I.G.(Q) vacant for several months and without obtaining the order of the State Government allowed Shri Anand Shankar to function as in charge of the office of A.I.G.(Q). Although he was holding the office A.I.G.(Q) and then succeeded in getting Shri Anand Shankar transferred as A.I.G.(Q), this positioned Shri Anand Shankar as an A.I.G.(Q) to fabricate document and draw false inferences regarding the purchase and allotment of funds. Similarly Shri Jagatanand managed to keep the post of Commandant B.M.P.-16 vacant for nearly 11 months out of 13 months that he was in office as Director General-cum-Inspector General of Police, Bihar, and in blatant violation of the Bihar Military Police Manual .authorised Shri D.P. Ojha to act as Commandant of B.M.P.-16 and allowed him to operate from Patna. Shri D.P. Ojha at that time was the Deputy Inspector General of Police, Bihar Military Police, North Zone, Muzaffarpur. As per the Bihar Military Police Act and Bihar Military Police Manual, an officer of the rank of the Superintendent of Police, only could be the Commandant of a B.M.P. Battalian and not an officer of the rank of the Deputy Inspector General of Police. Shri Jagatanand thus succeeded in creating conditions for stay of Shri D.P. Ojha at Patna without the order of the State Government. According to the petitioner even the institution of the cases aforementioned by the C.B.I. was a result of manipulations by the then Director General of Police, Shri Jagatanand, Shri Anand Shankar and Shri D.P. Ojha. Shri Jagatanand's son was one of the Senior Officers of C.B.I. posted in Bihar and the Superintendent of Police, C.B.I. at Patna, was a close relative of his.
19. Two sets of counter affidavits have been filed. In the return of the State of Bihar it has been stated :
"that the special audit report prepared by the Accountant General's office on 12-2-1986 was received in the Police Headquarters on 17-2-1986. It is submitted that the audit report howsoever unimpeachable in merit cannot be conclusive. Other materials and evidences have also to be taken into consideration":
and that "it is submitted that the preliminary enquiries were made and actions were taken after thorough verification and scrutiny of materials".
The thrust of the counter-affidavit is that the State Government instituted cases against the concerned officers after full application of mind and on the basis of evidences available to it but has conceded :
"Since the report of the Accountant General was not made available to the Government it was not obligatory to await the special audit report and, as such, the action of the D. G. P. making reference to the Accountant General for audit and the action of the State Government in making reference to the C.B.I. for investigation were two independent actions aimed to achieve two different ends. In this connection it may be stated that the respondents have no knowledge about the relationship of the then D. G. Police, with some officers and it is also not true that all the notes were prepared by the relatives of the then D.G.P. In this connection it may also be stated that for taking action in respect of the criminal act of the officers, the audit report alone cannot be the basis".
20. Respondent No. 4 has, in his counter-affidavit, stated that the investigation in the aforementioned five cases was initiated at the request of the Government of Bihar and has proceeded to add in one of the rejoinders filed on his behalf:
"the perusal of the records of the investigation of all the cases indicate that there is sufficient material indicating involvement of many A.I.G.(B)".
21. The C.B.I. had full opportunity at the hearing of this application to make full discloser of facts so that it could clear out the allegations levelled against it. It has, however, instead of chosen to state in one of its affidavits "disclosure in the open Court in the nature of the evidence and circumstances against each one of them when investigation of the case have not been finalised would not be in the public interest".
22. In the counter-affidavit, however, it has been stated that the C.B.I. has neither acted fast and loose nor ignored the audit reports and maintained that the findings of the audit reports itself are not exclusively binding upon the investigation of the criminal offences made out. It contains the statement to the effect that Investigating Officers have examined all the materials available to them in course of the investigation with respect to the allegations made in the first information report of the cases registered by the C.B.I. and reiterated almost the words of the affidavits filed on behalf of the State of Bihar that the audit report, however unimpeachable, on merits cannot conclusively be binding upon the investigation of criminal offences. It has mostly harped upon the untouchable character of the investigation by them by the courts, and gone in no uncertain words into the special nature of the investigation the C.B.I. conducts. It has hardly touched any. question raised by the petitioner, but stated that the petitioner, it appears, does .not represent vox populi but interest of some of the accused persons.
23. Chapter XII of the Code of Criminal Procedure contains provisions as to information to the Police and their powers to investigate. Section 154 therein states that:
"154. Information in cognizable cases --(1) Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant : and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
Section 156(1) states that:
"Any officer-in-charge of a police station may, without, the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a public officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.
Section 157, Thereafter provides for investigation.
Section 158. Report how submitted.
Section 159. Power to hold investigation or preliminary inquiry.
Section 160. Police officer's power to require attendance of witnesses.
Section 161. Examination of witnesses by police.
Section 162. Statements to police whether to be signed or to be used in evidence or not''.
These provisions taken together clearly spell out that information relating to the commission of a cognizable offence has to be received by an officer-in-charge of a police station and on receipt of information relating to the commission of a cognizable offence, the officer-in-charge of a police station may investigate or hold preliminary inquiry as provided in Sections 156 to 159.
24. What may be the procedure for investigation is stated in Section 157 of the Code of Criminal Procedure. According to it if, from information received or, otherwise, an officer-in-charge of a police station has reason to suspect commission of an offence which he is empowered under Section 156 to, investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offences upon a police report and shall proceed in person, or shall depute one of his subordinate officers not below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the case and circumstances of the case, and, if necessary to take measures for the discovery and arrest of the offender. To this there is one exception that when information as to the commission of any cognizable offence is given against any person by name and the case is not of a serious nature, the officer-in-charge of the police station need not proceed in person or depute a subordinate officer to make an investigation on the spot. If, however, it appears to him that there is no sufficient ground for entering on an investigation, he shall not investigate the case. In such a case the officer-in-charge of the police station is required to state in his report which he is obliged to submit before the Magistrate having jurisdiction, his reason for not fully complying with requirement of Section 157(1) and in the latter case also to notify to the informant, if any, the fact that he will not investigate the case or cause it to be investigated. The Magistrate to whom it is reported that it is not a case to make investigation is empowered under Section 159 of the Code to direct an investigation or at once himself proceed or depute any Magistrate subordinate to him to hold a preliminary inquiry into, or otherwise to dispose of the case in the manner provided in the Code. In a case, however, in which the officer-in-charge of a police station decided to proceed to investigate, he has been given powers to ensure attendance of witnesses', examine witnesses, record confessional statements, search, seize and arrest. The details in this regard, however, in the Code are not required to be considered in the instant case.
25. The Delhi Special Police Establishment Act, 1946, which has created a Special Police Establishment and given power to the Central Government to constitute a special Police Force for investigation of an offences notified under Section 3 of the Act has spelt out the power of the Special Police Force so constituted in Section 2 thereof. It states:
"Section 2. Constitution and powers of special police establishment:-- (1) Notwithstanding anything in the Police Act, 1961, the Central Government may constitute a special police force to be called the Delhi Special Police Establishment for the investigation in any Union Territory of offences notified under Section 3.
(2) When by an order under Sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force.
(3) Where any such order Under Sub-section (1) is made in relation to any area, then without prejudice to the provisions of Sub-section (2) any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer-in-charge of a police station in that area and when so exercising such powers shall be deemed to be an officer-in-charge of a police station discharging the functions of such an officer within the limits of his station".
26. This power to investigate offences given to the Special Police Force has been confined to the offences or classes of offences which the Central Government may by notification in the official gazette specify by a specific provision in this regard in Section 3 of the Act. The jurisdiction to investigate offences in any Union Territory may, however, be extended as provided in Sections 5 and 6 of the Act. Section 5 states:
"5. Extension of powers and jurisdiction of special police establishment to other areas.--
(1) The Central Government may by order extend to any area including Railway areas, in a State, not being a Union territory the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3.
(2) When by an order under Sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force.
(3) Where any such order under Sub-section (1) is made in relation to any area, then without prejudice to the provisions of subsection (2) any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer-in-charge of a police station in that area and when so exercising such powers shall be deemed to be an officer-in-charge of a police station discharging the functions of such an officer within the limits of his station".
The language of Section 5 makes it clear that it enables the Special Police to investigate an offence which has been committed outside the Union Territory when the Central Government by order extended the area. Sub-section (3) of Section 5 in the event of the jurisdiction extended by the order of the Central Government has made the members of the Delhi Special Police Establishment of the rank of Sub-Inspector and above in charge of a police station, discharging their functions within the limits of the police station mentioned in the notification, the Central Government's order extending the jurisdiction of the Special Police Establishment, however, has been made subject, to Section 6 of the Act which states:
"6. Consent of State Government to exercise of powers and jurisdiction.-- Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area, without the consent of the Government of that State".
27. The two provisions together, thus, clarify that the Special Police Force constituted in accordance with Section 2 of the Act may investigate cases arising beyond the territorial limitations of the Union Territory when so empowered by an order by the Central Government with respect to the offences notified as required by Section 3 of the Act, but notwithstanding any order extending jurisdiction of this Special Police Force beyond the Union Territory by the Central Government unless there is an express consent of the State Government its officers (officers of the Special Police Force) cannot exercise powers and jurisdiction in any area within a State not being the Union Territory, except the Railway area, for which the Central Government's order may be enough to empower them to investigate. The two acts which are referred to in Sections 5 and 6 of the Central Government and the State Government respectively are such executive acts which have to be expressed and done as provided in Articles 73 and 162 of the Constitution of India respectively. Article 73 states:
"73. Extent of executive power of the Union --
(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend --
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in Sub-section (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any. officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution."
This Article has made the executive power of the Union co-extensive with Parliament's legislative power and has expressly excluded exercise of the executive power by it in any State with respect to matters with respect to which the Legislature of the State has also power to make laws.
28. Article 77 of the Constitution of India states:
"All executive action of the Government of India shall be expressed to be taken in the name of the President, shall be authenticated in such manner as may be specified in rules to be made by the President...."
thus stating clearly in Clause (3) thereof:
"The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business".
A duly authenticated order in accordance with the rules of the executive business framed under Article 77(3) of the Constitution which is not within the Legislative power of the State Legislature shall be presumed to be valid and cannot be called in question on the ground that it is not an order or instrument made or executed by the President. Article 162 of the Constitution of India states:
"162. Extent of executive power of State. --Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to. make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof".
29. The executive power of the State thus has been made co-extensive with its Legislative power and by the provision thereof matters falling in the concurrent list have been made subject to the executive power, specially conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. Article 166 of the Constitution like Article 77 thereof which is a provision as to the conduct of the business of the Government of India has provided for the conduct of the business of the Government of a State. It states:
(1) All executive actions of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion".
30. It is thus clear that all executive actions of the Government of a State has to be in conformity with Article 166 of the Constitution of India and in accordance with the rules of executive business framed by the State Government. An order under Section 5 of the Delhi Special Police Establishment Act, therefore, has to be made in accordance with Article 77 of the Constitution of India and the consent of the State Government contemplated under Section 6 of the Act must be in conformity with Article 166 of the Constitution of India, Although we have exercised ourselves in some details on the question of the nature of the executive order by which the State Government may give its consent for investigation of a case by a Special Police Force Officer and the role a Special Police Officer may play as an officer investigating a case with respect to an offence or offences notified under Section 3 of the Act, our task has been made easy by quite a few authoritative decisions on the subject. Since provisions in Sections 2 to 6 Delhi Police Establishment Act have undergone many amendments, the last being by the Anti Corruption Laws (Amendment) Act, 1964 which has been brought to our notice, we shall prefer referring to the decisions after the 1964 Amendment in preference to the decisions prior to the said amendment.
31. A Bench of this Court had the occasion to deal with some questions as to the exercise of power to investigate a case in the area falling in the State of Bihar by the C.B.I. which is the nomenclature of the Special Police Force under the Delhi Special Police Establishment Act. The two learned single Judges had expressed conflicting views and the matter had been placed before a Division Bench, speaking for the Court in the Bench decision, Hari Lal Agrawal, J, in the case of J. M. Sahay v. State of Bihar, 1982 Cri LJ 410 made a preliminary statement about the Legislative history of the Special Act. According to the said judgment as an aftermath of the outbreak of the World War II, various unscrupulous anti-social persons, both officials and non-officials, indulged in activities enriching themselves dishonestly at the cost of public and Government. The Government of India, accordingly, set up a central organisation for investigating offences relating to such transactions and the Delhi Special Police Establishment was set up in 1941 by an executive order under the administration of a Deputy Inspector General of Police with headquarters at Lahore, for the purposes of investigating cases of corruption connected with matters relating firstly only to the War Department. Some doubt was raised about the jurisdiction and powers of investigation of offences by this Establishment and consequently an Ordinance being Ordinance No. 22 of 1943 was promulgated constituting a Special Police Force for the investigation of certain offences committed in connection with the Departments of the Central Government with powers to investigate such offences wherever committed in British India. This Ordinance was issued under the powers conferred under Sections 102(1) and 126-A (b) of the Government of India Act, 1935. The Ordinance, however, elapsed with the revocation of Proclamation of Emergency during the Second World War with effect from 1st April, 1946. Since, however, the efficacy and advantages of this organization were realised, it was considered expedient and necessary to continue this Police Establishment and, therefore, the Ordinance was replaced by the Delhi Special Police Establishment Ordinance No. 22 of 1946 which was subsequently replaced by Act XXV of 1946 with effect from 19-11-1946. After the Act came into force the Superintendence of the Special Police Establishment was transferred to the then Home Department of the Government of India and its jurisdiction was extended to cover all the Departments of the Government of India. The Act intended to apply only to "certain offences committed in connection with matters concerning departments of the Central Government". Section 3 of the Act authorised the Central Government" by notification in the official gazette to specify the offences or classes of offences committed in connection with matters concerning Departments of Central Government" to be investigated by the Delhi Special Police Establishment". Section 5 of this Act authorised the Central Government to extend to any area including Railway areas in British India, outside the Chief Commissioner's Province of Delhi, aside "the powers and jurisdiction of members of the Delhi Special Police Establishment for investigation of any offence or classes of offences specified in a notification under Section 3" by an order. The authority of the members of this Police Establishment so extended made them Police Officer and here to be deemed to be members of the Police Force of that area vested with all the powers, functions and privileges, subject, however, to the liabilities of a Police officer belonging to that Police Force. The original Act of 1946 was subsequently amended in the year 1950 and again in the year 1952 and even thereafter. Some of the amendments were formal in nature necessitated on account of the adaptation of laws and orders made subsequent to the enforcement of 1946 Act requiring mutatis mutandis changes and alterations. Agrawal, J. then said (para 4):
"The important changes were, however, introduced by the Amending Act No. 26 of 1952 by which the restrictions in the long title and Preamble and Section 3 of the Act, which purported to apply the provisions of the Act only the State of Delhi for the investigation of certain offences committed in connection with the matters concerning Departments of the Central Government only, were omitted thereby enlarging the powers of the Central Government to specify offences or class of offences to be investigated by the Delhi Special Police Establishment with respect to the department beyond the Departments of the Government of India; and under the Act as it stands after the above amendments, its jurisdiction now extends to all the States and Union territories. But the authority to exercise powers and jurisdiction in any area in a State (not being a Railway area) is subject to the consent of the State Government concerned. This restriction is contained in Section 6 of the Act and it prescribes that "nothing contained in Section 5 shall be deemed to enable any member of the D.S.P.E. to exercise powers and jurisdiction in any area in a State without the consent of the Government of that State", It is this provision which was the foundation for the questions raised in the said case and which in our view has to be answered by us ' before we deal with the main issue as to whether the cases registered on the reports aforementioned of the State Government have been legally registered or not and whether the Special Police Force has investigated the case in accordance with law or not.
32. The provision for consent was necessitated on account of the provisions contained in the Government of India Act, 1935 as well as the Constitution of India. List II of the VIIth Schedule of the Government of India Act as well as of the Constitution put the 'police' under the State List (then provincial legislative list) and Entry No. 39 of List I (Federal legislative list) corresponding to Entry No. 80 of the present List I (Union list), contemplated that "extension of the powers and jurisdiction of the members of a police force belonging to any part of British India to any area in another Governor's province or Chief Commissioner's province" could not be done "elsewhere without the consent of the Governor of the province or the Chief Commissioner, as the case may be". Similar is the provision with mutatis mutandis changes in Entry No. 80 of the Union list of the present Constitution in view of Article 246 of the Constitution of India. It is manifest that giving of consent by the State Government is a condition precedent for application of the provision of the 1946 Act within the State territory.
32-A. We are not required in this case and, accordingly, I am not proceeding to examine in any detail, whether consent in terms of Section 6 of the Act shall be a consent required in each case or can be a consent generally to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area of the State of Bihar or not, as this Court in J. N. Sahay's case (1982 Cri LJ 410) (supra) has dealt with this aspect and said that a communication by the State Government on the subject dated 1-6-1946 amounted to consent of the State Government to the Central Government extending jurisdiction of the Delhi Special Police Establishment Personnel to the territory of the State of Bihar. 'Consent' has not/been defined any-where under the Act. Indian Contract Act, however, has defined 'consent' to mean:
"Two or more persons are said to consent when they agree upon the same thing in the : same sense".
This Court in J. N. Sahay's case has said that 'consent' is a question of fact and it can be either expressed or implied. The Court also took notice of the correspondent between the Central Government and the State of Bihar and recorded (para 9, at pp. 415-16 of Cri LJ) :
"In my view, this amounts to a complete consent of the State Government in the eye of law within the meaning of Section 6 of the Act inasmuch as there was sufficient indication in the communication of the Home Department that the Central Government wanted the consent of the State Government not only for the sake of any moral support for this laudable legislation but specifically wanted the consent in terms of Entry No. 39 of List I of the VIIth Schedule, and once such a consent was specifically given with full knowledge of the implications in pursuance of the said Entry No. 39, in my view, it would be futile and too late in the day to contend that this could not amount to a valid consent in terms of Section 6".
33. Several decisions on the point were taken notice of in J. N. Sahay's case and quite a few of them have been brought to our notice by the learned counsel for the parties. To refer to a few in State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317 : (1952 Cri LJ 1269) it has been held that what the Court has to see is whether the substance of requirement of Article 166(1) is there or not. This has been reiterated in the case of E. G. Barsay v. State of Bombay, AIR 1961 SC 1762 : (1961 (2) Cri LJ 828) in which there is a further statement of law to the effect that non-observance of some of the rules of the executive business will not invalidate the order rendering consent.
34. No futher examination, therefore, is necessary except noticing as a fact that it was the State Government's desire that the case should be investigated by the C.B.I. This conduct of the State Government is, if not a result of the explicit consent aforementioned implied consent to the C.B.I. to investigate the cases aforementioned. An argument that there could be no consent "case-wise" or "personwise" or that there could be no implied consent when the statute requires express consent was not accepted by the Court in J. N. Sahay's case (1982 Cri LJ 410). This Court has said (para 15):
"I do not find any force in this contention advanced by learned counsel for the petitioner in this regard. All that is contemplated either by entry 39 bf the 1935 Act or for that matter, Entry 80 of the Constitution of India referred to earlier, is that a Police Force belonging to any part other than the part where it is called upon to investigate any case, cannot do so unless its powers to investigate were extended by obtaining the consent of the concerned State over whose territory the members of the Police Force belonging to an outside agency were to put their feet. It is not possible to read in Section 6 to support the reasoning and argument of learned counsel for the petitioner that the consent of the State Government cannot be given in relation to an 'area' in this manner and that it must be with respect to the whole of the State or any part of the same as such. It goes without saying that offence by an accused are committed in relation to a geographical area or places and, therefore, once a consent is given for investigating particular offences committed by any particular person, obviously and as a matter of necessary corollary, it would amount to giving consent for the investigation over the entire area and confer jurisdiction for making investigation with reference to the entire area over which the offences committed by any particular person are spread over".
35. Proceeding in the case, therefore, on the footing that there has been a consent as required by Section 6 and the officers of the Delhi Special Police Establishment got power and jurisdiction of police officers belonging to the police force of the State of Bihar for investigating cases in respect of the offences notified under Section 3 of the Act, it has to be seen that they do not get any status or privilege higher than the Police Personnel of the State and their jurisdiction and power to investigate does not go beyond the limitations prescribed by the Code of Criminal Procedure. Clue in this behalf is expressed in the language of Section 5 of the Act. In Section 5(2) it is said :
"a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force", A police officer belonging to the force of the Special Police Establishment for the purposes of investigation of the cases notified under Section 3, thus, shall be deemed to a member of the police force of the State of Bihar. Sub-section (3) of Section 5 then says:
".......any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer-in-charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police discharging the functions of such an officer within the limits of his station".
It is again worthwhile to notice that the Code of Criminal Procedure has assigned specific role to the officer-in-charge of the police station within whose jurisdiction offence is Committed and who is under the command of law to reduce any information given orally to writing and whether given in writing or reduced in writing and read over to the informant for his signature and after obtaining signature of the informant to put the substance thereof in a book kept by him in such form as prescribed by the State Government. He has thereafter been commanded by law to send a report of the same to a Magistrate empowered to take cognizance of such offences upon a police report and proceed in person, or to depute one of his subordinate officers not below such rank as the State Government may by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.
36. Provisions in the Delhi Special Police Establishment Act, however, do not make the Delhi Special Police Establishment or its officer super corps nor information to them means that local police shall cease to have jurisdiction or power to investigate. Their power is not exclusive (see AIR 1973 SC 913 : (1973 Cri LJ 902)). They have to strictly follow the commands of law aforementioned and, thus, investigate a case as any other police officer empowered to investigate may do.
37. I have already noticed the provision under the Criminal Procedure Code that information relating to the commission of a cognizable offence, whether given in writing or reduced in writing, as stated under Section 154 thereof, shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and a copy thereof shall be given forthwith, free of cost, to the informant. The Home Commissioner Bihar (Respondent No. 2) wrote to the Special Secretary, Union of India, N.H.A., New Delhi, on 30-1-1986 about the decision of the State Government to hand over the enquiry and investigation into all the matters of local purchases to the C.B.I. and appended to the said letter seven documents -- all prepared by the then Director General of Police. The then Director General of Police, Shri Jagatanand, had on 8-4-1985 written to the Accountant General, Bihar, for special audit. Without waiting for audit report, however, on 22-5-1985 he had moved the State Government stating, inter alia, that during the year 1982-83 and 1983-84 financial irregularities were noticed, for which he referred to Annexures to the letter, in purchases by B.M.P. 16 which disclosed commission of offences punishable under Section 5(1)(d) of the Prevention of Corruption Act read with Section 120B, Section 109 of the Penal Code against commandants B.M.P. 16 and other officers connected with his office and the concerned A.I.G. (B) and officers connected with his office. This he did notwithstanding the reference made by him to the audit on questions concerning (1) justification for the release of fund by Finance Section during 1982-83 and 1983-84 (2) whether Rules and Procedures for the same were observed by the Finance Section or not or (3) whether financial prudence and discipline were observed in allotment of funds by Finance Section or not. The audit report aforementioned has answered the aforementioned queries categorically declaring that, "A.I.G. (B) is not on the Central Purchase Committee or on any of the purchase committees like Motor Wing, Wireless, FSL. etc." and "the audit feels that local purchases in the district/ units during 1983-84 or during any financial year is not linked with the release of fund. The prudence and financial discipline may be judged on the part of the purchase agencies and the drawing and disbursing officers rather than on the part of the Finance Branch", and similar other findings which led to the conclusion that "the Finance Branch also does not decide the quantity price contracts etc. of the items of local indents at the level of SSPs and Commandants as these are supposed to be authorised by the Central Purchases Committee and 'Q' Branch and, therefore, local indents by SSPs. and Commandants, or for that matter central indents by 'Q' Branch, by motor transport branch, by wireless branch, etc. are not subject to scrutiny by Finance Branch before releasing the funds......"
and also "Under the existing system, the Finance Branch may not refuse allotment to indenting officers of different wings and field formations unless there was a lack of funds or the purchases were likely to exceed the grant or there was serious reason to refuse it or was advised by any Branch to refuse the allotment".
38. The petitioner has alleged that Shri Jagatanand deliberately omitted the information about the role of A.I.G. (Q) whether he did it deliberately or was ignorant however of their role is a different issue. The fact, which is established beyond doubt, is that in his letter aforementioned he made no mention of the role of A.I.G. (Q). Annexures to his letter also, made no reference to be role of A.I.G. (Q). The audit reports conclusions which have been culled out by me earlier go a long way to suggest that whosoever was the A.I.G. (Q) at the relevant time subject to his or her explanations had a definite role in the matter as 'Q' Branch was one of the major spending agencies at the headquarters and the only controlling authority at the Headquarter of the expenditure at districts or units headquarters. In the words of the audit, "The 'Q' Branch of the Police Headquarters does not appear to observe instruction relating to purchase of stores and stock the purchases made by it during 1982-83, 1983-84 and 1984-85 were not based on needs and actual position of the different stores available in the Central Stores", it appeared that the "Q" Branch although supposed to be working under the guidelines prescribed by the Central Purchase Committee and the D. G. cum-I.G. Police himself did not follow guidelines. The Central Purchase Committee did not authorise the "Q" Branch or any field level agency to go ahead with the purchases without deciding the actual need for a particular year at the Headquarters level for the Central Stores and for purposes of local indents at the level of the SSPs; and Commandants". ' and several other indictment leading to total mismanagement by the A.I.G. (Q), suggesting manipulations and variations at the level of the office of the A.I.G. (Q) including observations :
"The note by "Q" branch and the photo-copy of note-sheets if some files without signature of any officer fails to explain the lack of control over purchases in B.M.P,-16 by "Q" branch during 1983-84 and 1984-85. Memos relating to release of fund by Finance Branch are shown to have been marked to 'Q' Branch. In the opinion of the audit the denial of receipt of relevant memos concerning allotment of fund or disappearance of these endorsements from "Q" Branch during 1983-84, do not inspire confidence about the plea, of lack of knowledge by "Q" Branch".
39. To take the link of the events further, there is a communication by Shri B.K. Singly, Home Secretary, Government of Bihar dated 29-1-1986 to Shri; Jagatanand, which reads.
'"Dear Shri Jagatanand Ji, On the basis of your recommendations contained in various letters, Government: have decided to entrust all the cases of irregular purchases by various officers of the Indian Police Service to Central Bureau of Investigation. Government also desire that well-drafted F.I.R. should be lodged with P.S. This is the pre-condition before the Central Bureau of Investigation can take-over investigation of these cases. Kindly send copies of F.I.Rs. lodged with P.S. to Government so that the same could be sent to C.B.I. With regards, Yours sincerely, Sd/-B.K. Singh 29-1-86 (B. K. Singh)"
40. Shri Jagatanand, however, had his own reasons for not lodging first information report with the local police which the Government, it appears, thought, was a precondition before the Central, Bureau of Investigation took over the investigation. The State Government, it appears, could not withstand the pressure. It resiled and left insisting for lodgement of the first information report at the local police station, Shri B. K. Singh, Home Secretary, wrote to the Special Secretary, Government of India, Ministry of Home, on 30-1-1986 as aforementioned. These facts are not in controversy. They tell without any doubt that Shri Jagatanand had his own conviction about the role of the A.I.G. (B) and that of the A.I.G. (Q). He must have his own reasons to insist that A.I.G. (B) were involved in the alleged offences, why he kept silence about A.I.G. (Q) can be any body's guess.
41. Doubts, however, about the role of A.I.G. (B) and convictions which Shri Jagatanand could develope about their conduct in the matter, should have been removed by the aforementioned findings of the audit. If he had reasons to withhold informations about the role of A.I.G. (Q), he as a responsible, officer of the Police Establishment of the State of Bihar was at least expected to correct himself and report fairly to the State Government and in turn to the C.B.I. that auditors had indicted the conduct of A.I.G. (Q) and that they had their reasons to statew that A.I.G. (B) had no role to play. He, however, did not do even that little thing which was required to be done in the name of fair play.
42. The C.B.I. however, was not prepared to swallow easily indictments which had been forwarded by Shri Jagatanand to the State Government and by the State Government to the C.B.I. Shri K. K. Puri, Joint Director (A), C.B.I. H.O. New Delhi, wrote on the subject to the Home Secretary, Government of Bihar, Patna, on 5-3-1986 and demanded:
"We shall be grateful if you could intimate us if an audit of the police units involved has been conducted and if so the same may please be made available to us to examine whether there are any instances bordering on criminality calling for investigation by the C.B.I."
The C.B.I. could have proceeded to register the case without asking for any further information. It had however, its own doubts. Since the audit report was not available they thought there were not enough reasons to suspect commission of cognizable offence. Unless they suspected that a cognizable offence had been committed and that there was sufficient ground for entering on an investigation, they could decline to register a case and proceed to investigate. Such act of an officer of the police station may have legal sanction and one may profitably refer to proviso (b) to Sub-section (1) of Section 157 of the Code of Criminal Procedure. Shri Puri's letter, it appears, found its way to the then Director General of Police, Shri S.B. Sahai, Shri Jagatanand had since retired. Shri Sahai responded to the demand of the C.B.I., by sending copies of audit reports available with the Police Headquarters at Patna. In his letter dated 21-4-1986 it is said:
"Please refer to our discussion regarding enquiry by the C.B.I. into irregular purchases in some districts/units of this State. As desired by you, copies of audit reports available with us are being sent to you for your perusal through the S.P., C.B.I. Patna Branch"
43. After receiving the audit reports C.B.I. registered two cases, namely, (1) R.C. 25/86-Pat and (2) R.C. 26/86-Pat and named the then Commandant of B.M.P.8 and B.M.P.16 some officers and some traders. The then Joint Director (S), C.B.I., Shri R. Shekhar, on 29-8-1986 wrote to the Home Secretary, Government of Bihar, Patna, informing him that the audit reports were received, that two cases had been registered and that "undertaking the entire responsibility of enquiry into all the Audit Reports will be a huge task causing further strain on the meagre resources of C.B.I. It is, therefore, suggested that these cases may be entrusted to the Vigilance Organisation of Bihar. The Vigilance Organisation may get in touch with the C.B.I. for assistance or guidance in investigation".
44. On 24-9-1986 however the Home Secretary, Government of Bihar, sent his reply to Shri Shekhar stating that the Government had decided to entrust all cases concerning irregular purchases by the Police Establishments to the C.B.I. as getting two cases investigated by the C.B.I. and rest by the State Vigilance, could give rise to suspicions about the intentions of the State Government. Besides the two first information reports which are on the record of the instant case, there is one more document a letter signed by the Director General, C.B.I., New Delhi, dated 25-12-1987. The same has been marked Annexure-'11' to the application. In one of the returns however, which is on behalf of Respondent No. 4 authenticity of the document has been questioned. I shall advisedly exercise refrain and make no mention of the contents of the same.
45. After all that has been stated earlier by me, I venture into the first information report. The first information report concerning the affairs of B.M.P. 16 which has been numbered R.C. 26/86 Pat and filed on 8-7-1986 have referred to the then Commandant and others in the following words:
"Information has been received that Shri Rajendra Sharma, I.P.S. while functioning as Commandant, Bihar Military Police 16, Gopalganj Nausa, Phulwarishariff, Patna, during 1983 and 1984-85 hatched a conspiracy with M/s Janta Bedding Stores, Patna M/s Ajanta Furnishing House, Ashok Raj Path, Patna and M/s Royal Hosiery work, Lakhisarai and others and thereby misusing his official position committed following acts and omission......"
Thereafter eight items of acts and omissions have been enumerated which talk clearly of violation of Rules and Bihar Finance Code, Bihar Police Manual and Standing Orders, obtaining quotations in which no quality was described and with which no sample was produced, and purchasing substandard quality of material at three to four times the rates approved for standard quality fixed by the Police Department saying "thus, Shri Rajendra Sharma purchased articles from the firms at more than double the rates approved by the Department and agreed upon by the firms". There is, however, one fact mentioned in this first information report which seems relevant to. It states:
"Thus the allotment of Rs. 54,33, 447.60 were obtained over and above the budget allotment. These excess allotments were obtained by Shri Rajendra Sharma by making false representations before the Finance Wing of the Police Headquarters stating that he had obtained clearance for purchase of the articles from the Supply Wing of the Police Headquarters. Also he obtained these allotments for purchase of decentralised items and used the amount for purchase mostly of centralised items for which he was not at all competent".
46. What has made me curious is: the under statements in it about the role of the purchase wing of the Police Headquarters and the role of the Finance Wing.
47. All the exercise made by me until now has hinted clearly and categorically that A.I.G. (Q) and his office (Purchase Wing) cannot escape the liability without explaining each and every act and omission to the, extent it was required to act in the matter of purchase by the B.M.P. 16. At least that appears to be the thrust of the audit report. So far Finance Wing is. concerned, the audit report has clearly said it could not withhold allotments or refuse until there was any direction for refusal or information otherwise, yet the first information report contains "Shri Rajendra Sharma by making false representations before the Finance Wing of the Police Headquarters stating that he had obtained clearance for purchase of the articles from the Supply Wing of the Police Headquarters", obtained excess allotment. The audit report is clear and categorical. Documents in the office of the A.I.G. (Q) (Purchase Wing) were not enough to explain that the A.I.G. (Q) and his office had committed no wrong. This predisposition in the first information report is a reiteration of the misrepresentation which I have already noticed in the communication of Shri Jagatanand to the Secretary, Department of Home, Government of Bihar, Patna.
48. Once the aforementioned premise is picked up from the first information report aforementioned, it is not difficult to visualise the resentment which found expression at the floor of the Bihar Assembly as well as in the reports of the C.A.G. This false premise remained and continued in spite of the C.A.G. report. The C.B.I. which appeared to act with caution could not ignore the aforequoted observations in the audit report, yet in the first information report a sort of a predisposition, as I have already said, found mention.
49. Indian Police Service, by its nature, is the main service which recruits Police Personnel who control the police activities both for maintenance of law and order and the investigation throughout the country. Its State Cadre plays that vital role of police officers superior in rank to the incharge of a police station who by virtue of the power conferred upon them by Section 36 of the Code of Criminal Procedure may in appropriate cases exercise the same powers through out the local area to which they are appointed as may be exercised by the officer-in-charge within the limits of his station. In the Headquarter, however, they play the vital role of administrators who ensure for the police force of the State allocation of budget for each district/ unit and affairs concerning discipline and control of the force in the State. In such division of work it appears that those who are placed in the Finance Wing and belong to a certain rank in hierarchy in the Indian Police Service Cadre of the State are called A.I.G. (B) and those who are placed incharge of materials and supply are called A.I.G. (Q) who, as the audit report has revealed, exercise control and discharge such functions which are assigned by the Rules and orders of the Director General of Police with respect to purchase and supply of materials for the police force of the State. While A.I.G. (B) act to allot according to the demands which are determined after examination of the requirements of each district/unit at the level of A.I.G.(Q), latter determine the quantity, assess the quality and verify purchases and expenses incurred upon such purchases. The pre-determination in the first information report thus which was a result of the misrepresentation aforementioned has all the elements of mischief other than investigation of a case in which large scale bungling appear to have been done. I have no intention to embark upon examination of the materials collected by the C.B.I. in course of the investigation of the aforementioned cases. I do not also intend to doubt the sincerity of the C.B.I. and think even for a moment that only on account of the presence of the son of the then Director General of Police Shri Jagatanand as one of the Controlling Officers in the State of Bihar or in that matter, yet another officer who has been described by the petitioner as a relative of Shri Jagatanand, there was any malice in fact such examination of facts including the mala fide of these officers cannot be done without affording opportunity or being heard to them. This, however, will not inhibit my retrospection into the background of the lodgement of the case. Two officers, who it is not in dispute, prepared the report for the proposed lodgement of cases, were not either superior in rank than the officers who were allegedly involved in the affair, nor Were assigned officially to enquire or investigate the allegations. One of them was posted at Muzaffarpur. He was thus responsible for the police administration in the Muzaffarpur region which a D.I.G. was required to perform. He could look into the affairs of B.M.P. 16 with its Headquarters at Patna only in spare time and for special reasons. The other was A.I.G. (Q) at the relevant time. Any enquiry or investigation into the allegations had, to be also gone into his conduct as the A.I.G. (Q). Such reports can hardly be called fair or impartial. The then Director General's hurry to rush through the lodgment of the case with the C.B.I., is also not understandable. He had already made a reference to the audit of the same very issues which he thought were enough to warrant lodgment of a criminal case. He being the Head of the Police Establishment Of the State was expected to exercise utmost restrain and care and act well within all refrains which the Head of the State Police Establishment is required to exercise. The audit report has told the story of a large scale bungling touching to criminality in which the District Superintendents of Police and Commandants of the units and the A.I.G.(Q) and their offices are suspected to be involved. The scandal is such that should not be ignored. Had the Director General of Police waited for the audit report he would have ensured that only those who were suspected of crime, were named as accused in the case. A decision to entrust investigation of the case to the C.B.I. was a momentous decision. It, had to be taken with all restrain, cool and determination. Had the Director General of Police acted as the case demanded he would have on the one hand listened to the responsibilities of the State Government and on the other hand ensured that the case was lodged against real culprits and investigation did not wander around all and sundry.
50. At this stage I may refer to an important contention raised on behalf of the respondents. While they have said in their affidavits as also while arguing that C.A.G's report deserves highest deference, they have suggested that they are never conclusive. Facts found in course of the investigation by the police are also not conclusive. Their opinion in the reports which they submit to the Court have also no relevance before the Court, the court is required to look into the materials collected in course of the investigation at the time of taking cognizance. There can be a case lodged without there being an audit and investigated by the police. The police may in course of investigation find materials to substantiate the allegations. Such materials collected by the police may be translated into evidence in course of any judicial enquiry or trial, before however, a case is registered, it is necessary to examine whether there are reasons to suspect the commission of the offence or not and whether those who are alleged to have committed the offence have any complicity in the commission of the offence or not. True an officer-in-charge of a police station may not have the power to judge whether the information is true or false, yet unless he has reason to suspect the commission of an offence, he is not expected to act. This alone can ensure compliance with the requirements of Section 157 of the Code of Criminal Procedure.
51. A case can be registered without there being any accused named. It is enough that there is a report of an office. Yet Courts in India have invariably taken exceptions to lodgement of cases against innocent persons or lodgement of cases in a manner that investigation may be misdirected, so that those who are guilty escaped and those who are innocent suffer the indignity of being suspected of committing a crime.
52. There is now a plethora of judicial pronouncements as to when a Court can quash investigation. It is not necessary to refer to all of them. In State of West Bengal v. Swapan Kumar Cuba AIR 1982 SC 949 : (1982 Cri LJ 819) the Supreme Court has made a reference to almost every material decision on the subject until then, including the case of the State of Bihar v. J.A.C. Saldhana, AIR 1980 SC 326: (1980 Cri LJ 98) and taken notice of similar views expressed in several other cases including the off repeated citation at the Bar in the case of Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 : (1945 (46) Cri. LJ 413). The consenus of such cases has been noticed in the judgment aforementioned with reference to the observation which I may extract (at pp. 836-37, para 54 of Cri LJ) :--
"There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State 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 being the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an 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".
53. The above judgment of the Supreme Court has thereafter again adverted to yet another observation in J.A.C. Saldhana's case (1980 Cri LJ 98) (supra) and quoted (at p. 837, para 54 of 1982 Cri LJ):
"Counsel appearing on behalf of the appellant urged that such an interpretation is likely to be very prejudicial particularly to Officers of the Judiciary who have to deal with cases brought up by the police and frequently give decisions which the police dislike. In such cases, the police may engineer a false report of a cognizable offence against the judicial officer and may then harass him by carrying on a prolonged investigation of the offence made out by the report. It appears 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 person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation 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".
The Supreme Court has thereafter stated the law in the following words (at pp. 841-42, para 64 of Cri LJ):
"In my opinion, the legal position is well-settled. The legal position appears to be that if an offence is disclosed, the Court will not normally interfere with an investigation into 1990 Cri. L.J./123 X the case and will permit investigation into the offence alleged to be-completed if, however, the materials do not disclose an offence, no investigation should normally be permitted. The observations of the Judicial Committee and the observations of this Court in the various decisions which I have earlier quoted, make this position abundantly clear. The propositions enunciated by the Judicial Committee and this Court in the various decisions which I have earlier quoted, are based on sound principles of justice. Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty and property may be put to jeopardy for nothing. The liberty and property of any individual are sacred and sacrosanct and the Court zealously guards them and protects them. An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interest of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large, Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Courts interfere with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed....... The decisions relied on by Mr. Chatterjee, do not lay down, as it cannot possibly be laid down as a broad proposition of law, that art investigation must necessarily be permitted to continue and will not be prevented by the Court at the stage of investigation, even if no offence is disclosed. While adverting to this specific question as to whether an investigation can go on even if no offence is disclosed, the Judicial Committee in the case of King Emperor v. Khwaja Nizam Ahmad AIR 1945 PC 18 : (1945 (46) Cri LJ 413) (supra) and this Court in R. P. Kapur v. State of Punjab, AIR 1960 SC 866 : (I960 Cri LJ 1239) (supra), Jehan Singh v. Delhi Administration, AIR 1974 SC 1146 : (1974 Cri LJ 802) (supra), S. N. Sharma V. Bipin Kumar Tiwari, AIR 1970 SC 786 : (1970 Cri LJ 764) (supra) have clearly laid down that no investigation can be permitted and have made the observations which I have earlier quoted and which were relied on by Mr. Sen. As I have earlier observed this proposition is not only based on sound logic but is also based on fundamental principles of justice, as a person against whom no offence is disclosed, cannot be put to any harassment by the process of investigation which is likely to put his personal liberty and also property which are considered sacred and sacrosanct into peril and jeopardy".
54. The Supreme Court has in a short but well considered judgment on the principles of law in the case of Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, AIR 1988 SC 709 : (1988 Cri LJ 853) stated the law in the following words (para 7) :
"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage".
56. The above statement of law has been reiterated by the Supreme Court in the case of State of U.P. v. R.K. Srivastava, AIR 1989 SC 2222: (1989 Cri LJ 2301) in which the first information lodged by the C.B.I. under the provisions of the Prevention of Corruption Act and the Indian Penal Code, as in the instant case, was quashed. The Supreme Court has stated the law in the following words (paras 3 and 5):
"It is a well settled principle of law that if the allegations made in the first information report are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such first information report should be quashed. In the instant case, on the basis of the said first information report the respondent and the said P.C. Saxena and Shri Sarwant Singh were charged under Sections 120-B, 420, 468 and 471 Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. According to the appellant, as no prima facie case was made out against Smt. Rajwant Kaur, wife of Shri Sarwant Singh, she has been dropped from the array of the accused persons.... The High Court has rightly held that as the criminal proceedings have been started against the respondent on the basis of a first information report which does not contain any definite accusation, it amounts to an abuse of process of the Court and, as such, is liable to be quashed. We entirely agree with the view expressed by the High Court",
56. The latest from the Supreme Court is a case in which the scope of quashing a proceeding under Section 482 of the Code of Criminal Procedure has been considered and a similar view has been expressed but it has been pointed out that a meticulous analysis of the material collected by the police or filed on behalf of the complainant should not be examined to find out whether it is mala fide, frivolous or vexatious or not. I am tempted, however, here to refer to a Special Bench Judgment of the Allahabad High Court where a Bench of seven Judges of the said Court has gone into the question of the power of the Court under Section 482 of the Code of Criminal Procedure and its power under Article 226 of the Constitution of India. The Court has said:
"In our opinion the High Court has no inherent power under Section 482 of Criminal Procedure Code to interfer with the arrest of a person by a Police Officer even in violation of Section 41(1)(a), Cr. P.C. either when no offence is disclosed in the first information report or when the investigation is mala fide as the inherent powers of the Court to prevent the abuse of the process of the Court or to otherwise secure the ends of justice come into play only after the charge sheet has been filed in Court and not during investigation which may even be illegal and unauthorised. If the High Court is convinced that the power of. arrest by a police officer will be exercised wrongly or mala fide in violation of Section 41(1)(a), Cr. P.C. the High Court can always issue a writ of mandamus under Article 226 of the Constitution restraining the police officer from misusing his legal power".
57. Consensus of the authorities aforementioned can thus be stated that it is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of enquiry or investigation is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot reasonably, have reason so to suspect unless the first information report, prima facie, discloses the commission of such offence. The Court has, once such decision is available, no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. But if the first information report does, not disclose commission of a cognizable offence, or allegations are devoid of consistency or appear to stem from malice or from admitted facts appear to be absurd and devoid of truth, this Court can interfere exercising its power under Article 226 of the Constitution. True investigation of an offence is the field exclusively reserved for the executive through the police Department, but the executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if the offence has been alleged to have been committed it is its bounden duty to investigate into offence and bring the offender to book. This unfettered power to investigate all cases, however, is subject to the power of this Court under Article 226 of the Constitution. If the High Court is convinced that the power of investigation 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 its legal power.
58. Mala fide has been divided into two types of malice which strike any action at the root. One is generally called malf fide in fact, the other is called mala fide in law. Allegations which stem from the malice; and when examined on the basis of admitted facts and materials, show that they are bordering concoction of a story to make out a case for investigation, may fall in either of the two categories of mala fide. Mala fide, in fact, has to be proved beyond reasonable doubt before any inference is drawn. Such proof may not be accepted ex parte. The Court ordinarily shall be obliged to give opportunity to the person against whom such allegations of mala fide are made to explain his position and bring his version on the record. Action, however, which is arbitrary, which is not based on any material to give credibility to it or is based upon irrelevant or extraneous facts and considerations is usally termed as mala fide in law.
59. In the instant case there are strong suggestions of mala fide in fact against Shri Jagatanand the then Director General of Police and two other officers who are said to be his relatives and who, it is alleged, were involved in the concoction of the allegations against persons who held the office of the A.I.G.(B) at the relevant time. They have, however, not been impleaded as party respondent in the instant application. Allegations against them may or may not be true. This, however, is established that before the lodgment of the case the C.B.I. had obtained a copy of the audit report, the audit report stated in no uncertain words that Finance Wing of the Police Headquarters was concerned only with the allotment of the funds and the A.I.G.(B) had no concern with the purchases and expenses over the purchases.
The audit report has particularly referred to the role of the A.I.G.(Q) and the Purchase Wing of the Headquarters and their derelictions in the matter of purchases control over the purchases by the district and other units and similar matters leading to strong suspicion about things being a miss or wrong with the A.I.G.(Q). Still in the first information report, while there are suggestions above quoted, which intend to implicate notified A.I.G.(B) who were concerned with the Finance Wing of the Police Headquarters and there is absolutely no mention of those who were concerned with the Purchase Wing and held the office of A.I.G.(Q). This subversion of facts has occurred because the reports which were submitted to the State Government and in turn forwarded to the C.B.I. contained suggestions about the suspicious conduct of the persons who held the office of the A.I.G.(Q) and were concerned with the allotment of funds at the relevant time.
60. Before some one is sought to be accused, in my view, it is necessary that there are materials to raise suspicion about commission of cognizable offence by him. Respondent C.B.I. as well as the State Government have accepted that the audit report deserved due deference, still they decided to ignore the audit report and insisted upon the allegations against the Finance Wing and the A.I.G.(B) which were not supported by any material whatsoever. They similarly took no notice of the audit report against the purchase wing of the Headquarters and officers who held the office of the A.I.G.(Q). Both the State Government and the C.B.I. thus acted upon most entraneous and irrelevant considerations made available in the private reports obtained by the then Director General of Police, Bihar and his notings and suggestions which were contrary to the findings of the audit. This in my view is good enough to hold that the first information reports in respect of the Finance Wing and the A.I.G.(B) whosoever, were the A.I.G.(B) at the relevant time stem from malice in law. Similarly withholding of the allegations against the A.I.G.(Q) and other persons connected with the affairs of the Purchase Wing is a glaring case of suggestio falsi and suppresio veri, an act bordering concoction and thus mala fide.
61. Learned counsel for C.B.I. has, however, contended before us that whereas the audit reports deserve respect and consideration, since it is not conclusive, investigation can proceed and the police in course of investigation find other materials to suspect involvement of persons who held the office of the A.I.G.(B) or were concerned with the allotment of the funds. When I say that the aforesaid act of incorporating in the first information report allegations against the A.I.G.(B) and Finance Wing and not incorporating in the first information report allegations against the purchase wing and the A.I.G.(Q) is mala fide, I do not for a moment suggest that in case there are materials showing involvement of persons other than those indicted by the audit (since some persons have been exonerated by the audit) no case can be registered against them. But conjectures, surmises or a bit here and a bit there put in a report or dropped into the bowl of the investigating officer can never be taken to be enough to warrant either registration of a case or a charge against any person.
62. My reasons are two-fold, first the whole case got a twist on account of reports and suggestions which were based on no material evidence whatsoever against the A.I.G.(B) or persons connected with the Finance Wing and secondly omission of the role of the Purchase Wing and the A.I.G.(Q) made the conduct of those who will get the case filed with the C.B.I. suspect.
63. I have carefully gone through the various affidavits filed on behalf of the C.B.I. I am conscious of their claim that they have been able to find evidence against the A.I.G.(B). But they have not disclosed such evidence before the Court, although they had full opportunity to do so. Still I hold the view that the C.B.I. could and can proceed against the Finance Wing or the A.I.G.(B) but only if the materials available against them are strong enough to distroy the findings recorded by the audit. Their own assessment of the affairs of the Finance Wing or of the role of the A.I.G.(B) which shall run counter to the findings recorded by the audit, will carry no value unless findings recorded by the audit are destroyed. They can be destroyed only by showing that there was some material which the audit had not taken into consideration and which came to light in course of the investigation of the case. The A.I.G.(B), as found above, was concerned only with the allotment of funds. They had no responsibility to examine the correctness or otherwise of the demand. They had no responsibility to sanction the purchases or verify, whether the allotted fund was reasonably spent or not. These were responsibilities of the A.I.G.(Q). The audit, as I have already noticed suspected irregularities in the Purchase Wing. It found nothing wrong with the A.I.G.(B). The C.B.I. has not suggested that it has investigated the Purchase Wing and the A.I.G.(Q). It has, however, been more than fair before the Court at least in stating that it shall not hesitate investigating the case against such persons who for one reason or the other have escaped the ambit of the investigation, but are indicted by the C.A.G.
64. Before I come to my conclusion and to the nature of the order that 1 may make in the instant case, 1 may take notice of one more submission on behalf of the C.B.I. and the State of Bihar. Learned counsel appearing for them have contended that the instant application has been framed to defend certain culprits who in course of investigation have been found to be involved in the aforementioned case. They have submitted that this application has wrongly been described as a "public interest litigation". The interest of such Police Personnel, who were involved in the crime cannot be a subject of "public interest". The thrust of the argument is that this Court should throw out the instant application as not maintainable at the instance of the petitioner.
65. Facts, which are not denied, are (1) the State Assembly debated the issue and blamed the State Government and some other persons for concocting cases against innocent persons and deliberately sheilding dishonest persons and the persons involved in the alleged offences, (2) newspapers and news magazines carried many informations about involvement of certain persons who themselves were preparing reports and trying to deflect the entire case towards persons who were innocent to save themselves. Such was the vox populi which, according to the petitioner, prompted them to go into the depth of the matter to find out as to what was being done in connection with the serious cases of criminal breach of trust and other allied offences by the Senior Police Officers of the State of Bihar. The petitioner has claimed that he picked up that vox populi, and obtained informations from various sources including the Personnel in the Police Department of the State of Bihar. What the Director General of Police, the State Government and the C.B.I. were expected to do was done by the petitioner. It is not possible in such a situation to say that the petitioner has been set up by any person to defend himself or spouse his cause. It is also not possible on the facts aforementioned to suggest that the petitioner has no interest for the public in his mind, as the prosecution of a offender in a criminal case and protection of the innocent from malacious prosecution is always a matter of public interest. After all bringing to book an offender and protecting innocent from illegal prosecution is a social cause which every person in the country is entitled to adopt. Locus standi rule of the Court has undergone a change beginning from the day when a person aggrieved was described as a person who suffered some legal injuries to his right. Passing through the period when interest in the cause and the interest of a rank stranger were distinguished, Courts have come to allow petitions by those who bring a cause of the public to the Court whether they have any interest of their own or not because it cannot be said that a member of the public does not have interest in common with other public. Since we are now living in the days where those who are required to discharge legal duties and act to protect the interest of the public are found faltering or failing. Courts have decided not to insist upon the old rule of locus standi so that administration of justice is done in the interest of all. The Police and the executive have a public accountability of every act they do. Courts have themselves acknowledged that they too have a social accountability. Any refrain in such matters is self imposed or a self created refrain. No law prevents the Court from entertaining a cause which is worth entertaining. The instant application has raised a cause of the public. I see no reason to reject the application on the ground of locus standi.
66. I have already said about the extent of the untouchability of the police investigation and the area in which the Court may enter into. I have taken notice of the seriousness of the offence and its importance, for the public of the Stale of Bihar. The people of the State of Bihar shall not accept any excuse for exonerating those who are guilty without there being full enquiry and investigation into the conduct of those who are suspected to be guilty. The only mala fide part of the first information reports is that part of it which is contrary to the findings of the audit in which reference has been made of the involvement of the Finance Wing of the Police Headquarters and no reference has been made to the role of the Purchase Wing and the A.I.G.(Q).
67. I am conscious of the fact that report to the police is given about of the commission of the offence and not of the offenders unless they are known. The C.B.I. has been informed about the commission of the offence and it has registered some cases. If it has gone wrong and wasted investigation into the Finance Wing of the Headquarters and the A.I.G.(B) , and not proceeded against the A.I.G.(Q) and the Purchase Wing until now, I believe it can still correct itself. Its impartiality shall suffer seriously unless it undertook the investigation of the case in right earnest and against real culprits. I have no intention to say that whosoever was A.I.G.(Q) is guilty or a suspect against whom a case must be registered and investigated. Some one who was the A.I.G.(Q) may have his own explanations which may be acceptable and enough to explain away the findings and indictments of the audit. Keeping all these in view in my considered opinion the first information reports in so far as they relate to the Finance Wing and the A.I.G.(B) deserve to be quashed and notwithstanding the absence of any mention of the Purchase Wing and the A.I.G.(Q), C.B.I. is required to be directed to investigate into the case in full and in tune with the findings recorded by the audit, subject to such materials which may in a given case be enough to destroy the findings recorded by the audit.
68. To conclude the cases lodged against the notified A.I.G.(B) incharge of the Finance Wing of the Police Headquarters have to be quashed; the case as it is of conspiracy must be taken to embrance the Purchase Wing of the Headquarters and the A.I.G.(Q) with the exception of those who may have explanation of their conduct.
69. We have some disturbing information at the Bar and there are clear assertions in the writ application that quite; a few officers who were involved in the purchases in the districts as well as Commandants in one or the other unit of the B.M.P. have been shielded and although there are clear indications in the audit report ' about their conduct being suspect, the State Government have chosen to withhold their names and informations to the C.B.I. as has been done in the case of the A.I.G.(Q) and some other officers of the purchase wing. Since I have taken the view that the cases have been lodged in respect of the offences which involve purchases in the districts and in the B.M.P. units, I trust and believe that the C.B.I. shall irrespective of the attitude of the State Government or its officers to investigate the case in full and leave no officers who may have link or connections with the offences unless there are materials to hold them not responsible.
70 In the result, this application is allowed. The first information reports in Case Nos. R.C. 25/86, RC26/86, RC43/86, RC44/86 and RC45/86 in so far as they relate to the notified A.I.G.(B) of the Finance Wing are quashed. The respondent State Government and the C.B.I. are directed to proceed with the investigation of the case as if it embrances the findings and indictments recorded in the special audit report referred to above and include in the field of investigation the Purchase Wing of Headquarters including the conduct of the A.I.G.(Q) concerned, the Commandants of the B.M.P. units and the, Superintendent; of Police of such districts and other officers of such districts where purchases made were found to be bordering criminality. Let a writ in the nature of mandamus accordingly issue to restrain the respondents from proceeding against the Finance Wing and the notified A.I.G.(B) Incharge Finance Wing and to direct them to proceed against the Commandants of B.M.P. Units and other officers and persons connected with the purchases aforementioned, the Superintendents of Police of the districts and other officers in whose districts purchases were made contrary to the financial rules and involved transactions bordering to criminality and the A.I.G.(Q) and officers in the Purchase Wing of the Headquarters against whom findings have been recorded by the audit. The first information reports to the extent it refers to the notified A.I.G.(B) incharge of Finance Wing of the Police Headquarters are, accordingly, quashed. There shall be no order as to cost.
Bhuvaneshwar Prasad, J.
71. I agree.