# STATE OF BIHAR AND ANR v. J.A.C. SALDANHA AND ORS

- **Citation:** [1980] 2 S.C.R. 16
- **Court:** Supreme Court of India
- **Decided:** 1979-11-13
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bihar-and-anr-v-j-a-c-saldanha-and-ors-7882
- **Pages:** 28

## Headnote

A
c
16
STATE OF BIHAR AND ANR.
v.
J.A.C. SALDANHA AND ORS.
November 13, 1979
fR. S. SARKARL.\, D. A. DESAI AND 0. CHJNN\I'PA REDDY, JJ.]
Investigation by Police-Further investigation in case in which one investf.
patin~, of(:'ccr bud sul;n1ittnl a final r·cpon under section 172(2) of Crilninal
Procedure Code, 1973, but on which the Court had not passed any orderWhether the State Government is precluded from directing further investigation
in 1/ic case-Sections 2(h), 2(r), 36 156(1) and (2) and 193(8) of the Criminal Procedure Code, 1973 r /w Sectz'ons 1, 3, 12 and 22 of the Indian
Police
Act, 1861-Wherher E.G. of Police Vigilance, a ~superior" officer in rank for
the purpose of section 36 of the Code-Power of Magistrate under s.
156 of
the Code.
D
Words and pfi..-ases-"superintendcnce" in 11:ctio11 3 of Indian Police Act,
E
F
G
H
1861, meaning of.
Investigation-Court's duty in interfering in a Criminal matter at the stage
of h1vestigation.
A First Information Report alleging loss of legitimate revenues due .to the
railway by defrauding it with the connivance of railway officials
either
by
loading pearl coke without being booked according to railway rules
in the
empty wagons after the man_ganese ore in them were unloaded at Adityapur in
Tatanagar, a railway siding of the Tata Iron & Steel Co. Ltd. or by diverting
\vithout regular booking of tanks containing furnace oil. was lodged on March
11, 1977, consequent upon which a case was registered at Tatanagar G.R.P.S.
disclosing offences under sections 420/120B, 418 and 368 Indian Penal Code
and sections 105 /106 of the Indian Railways Act,
against 9
persons. One
S. R. I. Rizvi. Inspector of Railway Police, S. E. Railway Tatanagar con1menced
investigation into the offences under the general supervision of R. P. Singh S.P.
Railway Police appellant in Cr!. Appeal No. 300 /79 and Respondent 6 in Cr!.
Appeal No. 301 f79.
The D.I.G. Railway Police
who was
the immediate
superior of Respondent 6, wrote a letter to the D.l.G., C.l.D., Bihar on May
11, !977 requesting him to entrust the investigation to the Central Bureau of
investigation. but the Inspector General of Police, Bihar, as per his letter dated
June 24, 1977, declined the request. In the meantime on June 16, 1977 on a
complaint from one Mr. Rusi 1\..Iodi representative of TISCO, at Patna· to the
Chief Secretary to the Government a1leging harassment of TISCO officials by
respondent 6 and requesting for appropriate steps, the cabinet took the decision
to transfer respondent 6.
One Sbri R. H. Modi who was required to appear
before the Investigating Officer, made
some
enquiry by his
Jetter dated
'!'Iovi;-mber 4 1977 which was copied to some higher police officers
including
Respondent 2, Inspector General of Police, Bihar, acting on the copy of that
letter requested Respondent 3, Add!. I.G., C.I.D. to look into the com~laint of
f
>
'
•
'
BIHAR V. J.A.C. SALDANHA
17
Mr. 1\-Iodi. The third respondent sent a telegraphic communication to RespoQA
dent. 6 informing him that the investigation of the aforesaid offences had been
taken over by the c·J.D. . The Com1nissioner, South Chhota Nagpur Division,
Ranchi, on a request made by the Secretary to Government of Bihar (Home)
Police departn1cnt enquired into the · allegations made
by officers of TISCO
dgainst respOndent 6 and, after consultations with D.l.G .. Railway, the irnrr1et.Iiate su.perior of Respondent 6 submitted his report dated December 27, i977
giving a clean chit to Respondent 6. In the meantime, there was another appliB
cation from M.L.As and M.L.Cs seven in all addressed to the Inspector General
of Police, Vigilance, Bibar making serious a.llegations against the inves~igation
made by the C.I.D. under the supervision of respondent - 3, whereupon the
Chief' Secretary to Government of Bihar submitted a note to the Chief f\.Iinister
on August 28, 1978 suggesting that the case involved in the matter be handed
Over to the CBI for illquiry. This note Was approved and signed by the Chi

## Text

_Characters 0–39,816 of 83,155. This is a partial read: ask again with offset=39816 for what follows._

A
c
16
STATE OF BIHAR AND ANR.
v.
J.A.C. SALDANHA AND ORS.
November 13, 1979
fR. S. SARKARL.\, D. A. DESAI AND 0. CHJNN\I'PA REDDY, JJ.]
Investigation by Police-Further investigation in case in which one investf.
patin~, of(:'ccr bud sul;n1ittnl a final r·cpon under section 172(2) of Crilninal
Procedure Code, 1973, but on which the Court had not passed any orderWhether the State Government is precluded from directing further investigation
in 1/ic case-Sections 2(h), 2(r), 36 156(1) and (2) and 193(8) of the Criminal Procedure Code, 1973 r /w Sectz'ons 1, 3, 12 and 22 of the Indian
Police
Act, 1861-Wherher E.G. of Police Vigilance, a ~superior" officer in rank for
the purpose of section 36 of the Code-Power of Magistrate under s.
156 of
the Code.
D
Words and pfi..-ases-"superintendcnce" in 11:ctio11 3 of Indian Police Act,
E
F
G
H
1861, meaning of.
Investigation-Court's duty in interfering in a Criminal matter at the stage
of h1vestigation.
A First Information Report alleging loss of legitimate revenues due .to the
railway by defrauding it with the connivance of railway officials
either
by
loading pearl coke without being booked according to railway rules
in the
empty wagons after the man_ganese ore in them were unloaded at Adityapur in
Tatanagar, a railway siding of the Tata Iron & Steel Co. Ltd. or by diverting
\vithout regular booking of tanks containing furnace oil. was lodged on March
11, 1977, consequent upon which a case was registered at Tatanagar G.R.P.S.
disclosing offences under sections 420/120B, 418 and 368 Indian Penal Code
and sections 105 /106 of the Indian Railways Act,
against 9
persons. One
S. R. I. Rizvi. Inspector of Railway Police, S. E. Railway Tatanagar con1menced
investigation into the offences under the general supervision of R. P. Singh S.P.
Railway Police appellant in Cr!. Appeal No. 300 /79 and Respondent 6 in Cr!.
Appeal No. 301 f79.
The D.I.G. Railway Police
who was
the immediate
superior of Respondent 6, wrote a letter to the D.l.G., C.l.D., Bihar on May
11, !977 requesting him to entrust the investigation to the Central Bureau of
investigation. but the Inspector General of Police, Bihar, as per his letter dated
June 24, 1977, declined the request. In the meantime on June 16, 1977 on a
complaint from one Mr. Rusi 1\..Iodi representative of TISCO, at Patna· to the
Chief Secretary to the Government a1leging harassment of TISCO officials by
respondent 6 and requesting for appropriate steps, the cabinet took the decision
to transfer respondent 6.
One Sbri R. H. Modi who was required to appear
before the Investigating Officer, made
some
enquiry by his
Jetter dated
'!'Iovi;-mber 4 1977 which was copied to some higher police officers
including
Respondent 2, Inspector General of Police, Bihar, acting on the copy of that
letter requested Respondent 3, Add!. I.G., C.I.D. to look into the com~laint of
f
>
'
•
'
BIHAR V. J.A.C. SALDANHA
17
Mr. 1\-Iodi. The third respondent sent a telegraphic communication to RespoQA
dent. 6 informing him that the investigation of the aforesaid offences had been
taken over by the c·J.D. . The Com1nissioner, South Chhota Nagpur Division,
Ranchi, on a request made by the Secretary to Government of Bihar (Home)
Police departn1cnt enquired into the · allegations made
by officers of TISCO
dgainst respOndent 6 and, after consultations with D.l.G .. Railway, the irnrr1et.Iiate su.perior of Respondent 6 submitted his report dated December 27, i977
giving a clean chit to Respondent 6. In the meantime, there was another appliB
cation from M.L.As and M.L.Cs seven in all addressed to the Inspector General
of Police, Vigilance, Bibar making serious a.llegations against the inves~igation
made by the C.I.D. under the supervision of respondent - 3, whereupon the
Chief' Secretary to Government of Bihar submitted a note to the Chief f\.Iinister
on August 28, 1978 suggesting that the case involved in the matter be handed
Over to the CBI for illquiry. This note Was approved and signed by the Chief
j ~finister on the same day. In the meantime, the Chief Secretary by his letter
C
dated September 2, 1978 directed respondent 3 to send all papers of the case
with a note indicating the stage of investigation. to him and in compliance there~ ·
\\'ith respondent 3 sent all papers of investigation till then done ·to the Chief
Secretary with his covering letter dated September II, 1978. The CBI declined
to undertake the investigation and suggested that the Inspector General, Vigilance
Department may be asked to conduct the investigation. The recommendation
made accordingly by the Chief Secretary on February 8, 1979 was
accepted
D
by the 'Chief Minister on February 27, 1979. In·between -on January 18, 1979,
even though the papers were still with the· Chief Secretary respondent 3 directed
the investigating office·r respondent 4 to submit the final
report. When .the
Chief Secretary came to know about it he wrote· to respondent 2 deprecating
the conduct of respondent 3 in pushing through the matter, though the papers
were not with him and he was orally instructed not to submit the final report.
As undef the direction and orders of respondent 3, respondent 4 had already
E
submitted final report on February 6, 1979, a communication was addressed to
respondent 5. ' Superintendent of Railway Police who had taken over charge
from respondent 6 to move the court not to accept the final report and await
report of, Police after completion of the further investigation which was
directed by the Government in the case. The matter was placed before
th\'.'!
Addi. Chief Judicial Magistrate on February 24, 1979 along with report of the
Assistaint Public Prosecutor not to ac.cept the final report of "no case" filed by
F
respondent 4, whereupon the learned Magistrate passed an order to await
report on further investigation and adjourned the matter to
23~3-1979 for
further orders.
On March 5, 1979, J. A. C. Saldanha respondent I and one of the officials
named in the First Information Report filed a Writ Petition in the ITigh Court
questie•ing the validity, legality and correctness of the· order of the Additional
Chief Judicial Magistrate.. A full Bench of the High Court by its
Judgment
dated May 14, 1979 quashed the order inter alia holding that the direction
give• by the Chief Secretary with the concurrence of the Chief Minister for
handim: over investigation of the case to the Inspector General Vigilance WilS
iUegal in as much as the I.G., Vigilance could not be entrusted in law with the
investi,eation of the case registered with the railway police and
consequently
the learned Additional Chief Judicial Magistrate was in error in postponing the
cons~dcration of the .final report already submitted by respondent 4 till such
unauth.orisal investigation was completed.
I
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18
SUPREME COURT REPORTS
[1980] 2 s.c.R.
Allowing the appeal by the State, the Court
HELD: 1. A combined reading of sections 2(h), 2(r), 36, 156 and 173(8)
of the Criminal Procedure Code, 1973 read with sections 1, 3, 12, and 22 of
Indian Poiice Act, 1861 would indicate that the State Government was
not
precluded from directing further investigation in the case in which one investi-
>:';-
gating officer had submitted his 'final report' under section 173 (2) of the Code,
B
but on which the Court had not passed any order.
Section 156 en~bles the
officer incharge of a Police Station to investigate without the order of a Mag:strate into a cognizable case committed within the area of the police st.1.tion.
Under section 36 police· officers superior in rank to an officer in cha-rge of a.
police station may exercise the same powers, throughout the
local area
to
which they are appointed as may be exercised by such officer within the limits
of his station. Section 173(8) enables an officer-in-charge of the Police Station
C
to undertake for their investigation in a. case \Vh(:re be has already sub1nitte<l ii
report under sub-section (2) of section 173 and if in course of such further
investigation he collects additional oral or documentary evidence, he
has
to
forward the same in the prescribed form to the l\lagistrate.
[27 G, 28 A, C-D,
32 GJ
D
E
F
G
2. The officer directed by the State Government to carry on the inve'itigation is Inspector General Vigilance. He is und~ubtedly an ofticer superior in
rank, n1ay not be departmentwise administrative hierarchy, to an officer in
charge Of police station.
Inter se departmental division
such as
Inspector
General of Police or Inspector General Vigilance, or Additional Inspector General C.l.D. n1ay be merely a division of work for administra<tive efficiqicy but
the Inspector General of Police cnnld not by any stretch of imaglnation be said
not to be an officer superior in rank to an officer in charge of :i police st::ttion.
[28 D-F]
Rule 7(a) of the Bihar Police Manual provides that the police force of the
entire State is under the overall charge of Inspector General of Police and for
the help of Inspector General and for the convenience of carrying out the work
ccnnected with the different branches of police administration, Deputy Inspector·
General and Assistant Inspector-General of the rank of Superintendent are
post~d at headquarters. The use of the word 'rank' in s. 36 of the Code comprehends the hierarchy of police officers. It is equally clear that
Inspector
General of Police will. have jurisdiction over the whole of the State. Division
of work, but not demarcating any local area indicates that Inspector General,
Vigilance, \\'ill have jurisdiction extending over the whole of the State
and
this equally becomes c!~1.r from the Notification dated June 6, 1973. ismed by
the State Government in exercise of the power under clause (s) of sub-section
(1) of s. 4 of the 1908 Code declaring that in respect of certai• oITencCs
the
Vigilance Department shall be deemed to ba· a police station having its jurisdiction throughout the whole State of Bihar. Even apart from this, Inspector
General appointed by the State Government has jurisdiction over the whole of
the State unless the contrary is indicated. If he is thus an officer superior in ·
rank to an officer in charge of a police station he could in view of s. 36 exercise the po.vers of an officer in charge of a police station throughout tlie local
area to which he was appointed meaning thereby the \.\.·hole of Bihar State as
might be exercised by an officer in chagre of a polici.:- station within the limits
of his police station.
It was to him that the investigation of the case was
ordered to be handed over by the State Government.
[28 G-H, 29 A-41
1
_J
B!HAR v. J.A.C. SALDANHA
R. P. Kapoor and Ors. v. Sardar Parlap Singh Kairon and 01 .. , [1961) 2
i\
SCR 143 at 153-154; applied.
3. The State of Bihar is governed by the Indian Police Act, 1861.
. .<\. com·
bined reading of sections 1, 3, 12 and 22 of the 1).ct makes it clear that (a)
investigation comprehends detection of
crime; (b)
General
pc;lice
district
covers the entire State and ( c) the superintendence of the police throughout a
general-police district shall vest in and shall be exercised by the State GovernB
ment to which such district i's subordinate. ID.spector General, Vigil;tri.ce ·being
appointed for the whole of the State, is a police officer considered to be on
,duty for all purposes of the Act and it is open to the State Government to
employ him as polite officer in iny part of the general district.
[29 F, 30 A-C.]
4. The general power of superintendence as conferred by section 3 of the
Police Act, 1861
would comprehend the power to exercise effec;tive control
C
over the actions performance and discharge of duties by the members of the
police force throughout the general district. The word 'superintendence' "Would
imply administrative control enabling the authority enjoying such power to
give directions to the subordinate to discharge its administrative duties and functions in the manner indicated· in the order. It is only when a subordinate
authority subject to superintendence· is discharging duties and functions of
a·
quasi-judicial character under a statute that the inhibition of abdication
ef
D
such power can be invoked. But where the subordinate subject to such power
of supedntendence of the superior is discharging admini.strative ~nd executive
function, obligations and duties the power of .superintendence would comprehend the authority to give directions to perform the duty in a certain manner,
Jo refrain from performing one of the other duty, to direct some one else to
perform the duty and no inhibition or limitation can be read in thiS
power
unless the section conferring such power prescribes one.
Such is the scope anP
E
ambit of power conferred by s. 3 on the State Government of superintendence
over the entire police force of the State.
[30 E-Hl
Makeshwar Nath Srivastava v. State of Bihar & Ors. [1971] 3 S.C.R. 863
followed.
S. Unless the power is limited or fettered or taken away by some specific
p
provision to the contrary, the general power of superintendence would comprehend power to issue directions, orders for performance of duty in a
ce~ain
manner, directing some; one ·else to discharge certain function,
refrain from
performing
1 certain duty, etc. Superintendence·
connotes
supervision
which
implies a hierarchy, viz. supervisor and the one supervised. It \Vould, therefore, mean keeping a check, watch over the work of another who may be a
subordinate in a hierarchy of authority. It would also comprehend that superG
vision is not merely a negative thing so as to keep a watch but it would imply
giving of direction, guidance, even instructions, ?-nd in a given case and in
a
given situation asking one who is being supervised to forbear from doing a
thing and directing someone else to do that thing.
[31 G-H, 32 A-B]
Rajkumar v. Ramsundar AI.R. 1932 P.C. 69, referred to.
6. Superintendence would comprehend the power to direct further investigation if the circumstances so warrant. There is nothing in the police Act to
indicate the nanow construction of the word "superiniendence" in section 3 to
H
20
SUPREME COURT REPORTS
[1980] 2 S.C.R.
A
mean 'general supervision' of t~e managen1ent of the police Ucpart1nent
and
does not vest lh::: State Government with authority to decid·.:: what the police
alone is authorised to dec:Je'.
{32 D·EJ
7. 'Sub·section (8) of section 173 of the Code is not the source of power of
the State Government to direct further investigation. Section 173(8) enables
an officer in charge of a police station to carry on further investigation even
B
after a report under s. 173(2) is submitted to Court. But if Slate Government
has othcn.vise power to direct further investigation it is neither curtailed, limited
nor denied by s. 173(8) IT:llrC so, \Vhcn th~ State Govcrnmi:nt J1ncts an officer
superior in rank to an officer in charge of police staticin thereby enjoying all
powers ot an officer in charge of a police station to further investigate the case.
Such a ~itnation would be CC\ered by the com.bi11_ed r~ading of.;. 173(8) \vith
c
D
E
F
G
II
s.' 36 of the Code.
[32 F-I-f, 33 ,\]
r
8. There is no warrant or invoking the principle, namely "if a statute directs
a thing to be done in a certain ·way that thing shall not, even if there be no
negative \Von.ls be done in :1ny other way" because section 5 of the code "j'lrovides
that nothing in the code shall, in the. absence of a specific provision to the contrary. affect any special or local law for the time being in force, or any special
form of procedure prescribed, by any other law for the time being in force.
Section 3 of the Police Act does not prescribe any special procedure for investigation contrary to one prescribed in the Code. It merely provides for conferment of certain rower \Vhich. \\'hen exercised, v;ould project into the provisions
of the Code which confers power on the officer in charge of a police sta·tion
1to
carry on further investigation under s. 173(8) after submission of a report ahd
that too without any permission of the Magistrate. There is no conflict between
the two provisions. Power to direct investigation ·or further investigation
is
entirely different from the method and procedure. of investigation and the competence of the person to investigate. Section 3 of the Act dea1s with the rowers
of the State Government to direct further investigation into the
case. Undoubtedly, such direction will be given to a person competent to investigate the
offence and tLe police officer in rank superior to the police officer in charge of
the police station, Inspector General, Vigilance, has been directed to carry on
further investigation.
An Officer superior to rank to an officer-in-charge of a
police station could as well exercise the power of further investigation under
s. 173(8) in viev.· of the provision embodied in s. 36 of the Code.
If that be
so, such superior officer could as well undertake further investigation on his
own and it is immaterial and irrelevant that he does it at the instance or on the
direction. of the State Government. Such a dire'ction in no way corrodes his
po\vcr to further investigate on his own.
[33 G-H, 34 .i\.-D]
State of Gujarat v. Shanti/al Mangaldas and Ors. [1969] 3 SCR 341 at 372,
ex-parte Stephens [1876] Ch.D., 659 and Patna ln1proven1c11t Trust
v.
Snit.
Lakshmi Devi and Ors., [1963] Suppl 2 SCR 812; referred to.
9. The power of the 1\-Iagistrate under s. 156(3) to direct further investiga·
tion is clearly an independent power and does not stand in conflict with the
pO¥/er of the Sratc Government. The power conferred upon the
}.,fagistrate
under s. 156(3) can be exercised by the Magistrate even after submission of a
report by the investigating officer which would mean that it would be open to
the Magistrate not to accept the conclusion of the investigating omcer and direct
BIHAR 1'. J.A.C. SALDANHA
21
fUrther investigation. This provision does not in any way affect the power of
A
the investigating officer to further investigate the case and even after subn1ission of the report as provided in s. 173 (8). Therefore, the High Court was in
error in holding that the State Government in exercise of the power of superintendence under s. 3 of the Act lacked the power ):o direct further investigation
into the case.
[34 E-F]
10. The contention that the action of the Chief Secretary in suggesting that
B
the investigation be taken over by the C.B.L and the acceptance of the same by
the Chief Minister Sllffered from legal malice in as much as both had no jurisdiction, authority or power to make such an order to transfer investigation or
to direct further investigation when a report was already submitted by the
investigating officer to the Court competent to take cognizance of the case is
not correct.
[3 8 B~C]
· If the Chief Secre\ary as the highest executive officer at the State level
C
exercising power of superintendence over the police of the State posted
in
general police district would have powers to suggest change
of investigating
machinery ill the circumstances disclosed in the letter dated May 11, 1977, of
the D.I.G., Railway, the report of the Commissioner of South Chhotanagpur
Division, a-nd the complaint of MI ... As./MLCs., his action cou1d not be said to
be withont power or authority. If he had acted otherwise, a charge of inaction
D
or failure or default in performance of his duty as tbe highest chief executive
officer would be squarely laid at his door. He acted in the best tradition of
the Chief .executive officer in public interest and for vindication of truth and in
an honest and unbiased manner. Afterall, if he had even the
remotest bias
against any one, he could have as well suggested in agreement with the earlier
investigation done by respondent 6 and the report submitted by him for submitting the charge-sheet that a charge-s·heet should be filed.
In fact, the Chief
E
Secretary with utmost candour, with a view to vindicating the hono~ of the
administration, proposed ascertainment of triith at the hands of CBI, a body
beyond reproach as far as local politics is concerned, and that is unchallengeable.
[38 F-H, 39 A-Bl
11. The Police officers should refrain from addressing communications to
the Courts on pending
n1atter.: required· tO be determined judicially. In the
instant case, though the conduct of the Superintendent of Police, in informing
the learned Additional Judicial Magistrate about the decision of the Government to continue the investigation, by the letter dated February 15,
1979 is
not proper. it makes no difference in the matter because:' the Magistrate acted
not on that letter, but on an application made by the Assistant Public Prosecutor in charge of 11\e case, and that is the legally accepted mode of obtaining
a judicial order.
[39 C-E]
12. The power of the Police to investigate into a
cognizable offence
is
ordinarily not to be interfered with by the Judiciary. There is a clear cut and
;well den1arcated sphere of activity ·in the field of crime detection and crime
punishment. Investigation of an offence is the field exclusiveJy reserved for the
executive through tho police department, the superintendence over Which vests
in the State Government. The, executive which is charged with a duty to keep
vigil:mce over law and order situation is obliged to prevent crime and if an
offence is alleged to have been committed it is its bounden duty to investigate
into the offence and bring the offender to book. Once it investigate• and finds
F
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22
SUPREME COURT REPORTS
[19811] 1 S.C.R.
A
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 s. 190 of the Ccxte 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 s. 173(8), there commences the adjudicatory function of the judiciary to
determine \vhcther an
B
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 av.1ard 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 ~nd the
Magistrate.
[39·G-H. 40 A-D]
C
Kin;.: En1p~ror v. Khwaja AJ11nad, [1944] L.R. 71 I.A. 203 z..t 213; followed.
13. Court should be quite loathe to interfere at the stage of investi:ation,
a field of. activity reserved for Police and the executive. In· the instant case,
the High Court in exercise of the extraordinary jurisdiction committed a grave -
error by ·making observations on seriously disputed questions of fact~ tatia.g its
cue from affidavits which in such a situation would hardly pr&vide any reliable
D
materi"al. The Hi:h Court was clearly in error in giving the direction virtually
a·mouRting: f'o a. nu1ndamus to c!me the case before. the investiiation is complete. ,
The Hi:h Court virtually h~ usurped the jurisdiction of tke Ma:istrate. The
casei i~ not a :.ta~~ where the Court is called up to quash the proceeding as dis~
closi•:: n@ offence, ltY.t the case. is at a ~tar;e where furtl.er iavesti::ati•a into
the tttfcnce is sou::ht te be thwarted by interference Jn exercise of the
extraE
ordinary juri"ldiction.
[41 B-D, 42 F-H]
S. lV. Sharnu1 v. lrisluiln
1 Kun1ar Tiwari, [1'7~] 3 SCR. '4€9; applici.
14. If an informatiea. is lodged at the Police station ani au o:!'ience i! registered, the mala fiies of the informant would be of seco:atiary importaace if
the investigation prOOuces unimpeachable evidence disciosiRg tile evidence.
[43 D·El
F
[The Court directei the rtlle~ations of n11tla fide made a:-ainst J{espo1ulent 6
be expunged for tile· purpose of t~is appeal.]
Ob8ervation
15. In Parlia11te•tary democr<1.cy elected representatives kave a duty to perform and their vi:ilas.ce in performance of duty without anytRing
shewn as
unbecoming of them caanot he unilaterally chastised.
[38 A]
CRIMINAt APPELLATE JURISDICTION : Criminal App~al Nos. 301
and 300 of 1979.
Appeals by Special Leave from the Judgment and
Order dated
14-5-1979 of the Patna High Court in Writ Jurisdiction Case No.
H
12/79.
Lal Narain Sinha, Ram Amugn,h Prasad and U.l'. Singh for the
Appellants in Cr!. A. No. 301/79.
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BIHAR v. J.A.C. SALDANHA (Desai, '1.)
23
Basudeo Prasad and R. P. Singh for the Appellant in
Cr!. A.
A
300/79.
A. K Se11, Y. S. Chitale, J. B. Dadacha11ji, S. B. Sanyal, N. C.
Ganguli, S. Warup, J. S. Sinha and K. J. John for Respondent No. 1 in
bod1 the appeals.
Prabh"· Shwikar Mishra and B. P. Singh for Ilespondcnt Nos. 2-3 in
both the appeals .
M. P. Jha for Respondent No. 4 in both the appeais.
R. K . .laiu for Respondent No. 7 in Cr!. A. 301/79 and Respondent
_No. 6 in Crl. A. No. 300/79.
The Judgment of the Court was delivered by
DESAI, J.--Reverence and anxiety to the same degree, if not more,
to shoot at eight even a remote intrusion into the field preserved for
judiciary must inform the judicial approach whenever assistance of the
judicial machinery is sought for an unwarranted encroachment into the
field of activity reserved for the other branch of Goverament, more so,
when extraordinary flOWer conferred 011. tlte High Court to issue prerogative writ in aid of justice is invoked to thwart a possible detection
of a suspected offence. How dan:;erous it is to rush inwhere one
should be wary to tread is amply demonstrated by the facts revealed in
these two apf'Oals.
Factual matrix will highlight the situation. Though the point can-
-vassetl centres round the limit of jurisdiction to interfere with the investigation of an offence registered at a police station, to pin-point the
contention, rdevant facts may be stated with circumspection, as the
-case is suhjwiia because any overt or covert expression of opinion on
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the facts i11 cm1troversy awaiting adjudication may be censured as: judiF
Cial impropriety.
Tata Iron & Steel Co. Ltd., ('TISCO' for short), has
a railway
siding at Adityapur ia Tatanagar. A ferro Manganese Plant has been
·set Ufl by TlSCO at fada, for which tfue
nearest railway head
is
Banaspani i• Orissa. TISCO has its iro11. ore and manganese mines at
G
Naomundi. Ore is beia~ transported from Banaspani and Naomundi
·to Tatana:ar, oielivery point bein: railway yard at Adityapur.
Thr;
allegation is that some of the emrty wa:;ons after ore was delivered
at Adityapur Railway Station
Yard on the
return
journey to
Banaspani/Naomundi -were loaded with pearl coke
without being
·booked accord in: to railway rules and without the issuance of railway
H
receipts with the connivance of the local railway officials and the rail-
-way was defrauded of its legitimate revenue. It was also alieged that
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SUPREME COURT REPORTS
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some tanks containing furnace oil were diverted without 1egular book.
ing .which also resulted in deprivation of the legitimate revenue to the
Railway.
Adityapur railway yard was not, according to the railway
administration, a bOoking station and hence no booking
staff
was
posted there and, therefore, wagons could not have been booked from
Adityapur railway yard and there was considerable variation in the
nun1ber of \Vagons booked fron1 Tatanagar and received at Banaspani
as set out in first information report.
On these allegations a first in·
formation report was lodged on March 11, 1977, consequent upon
which an offence was registered at Tatanagar G.R.P.S. under sections
420/120-B, 418 and 368, Indian Penal Code, and ss. 105/106 of the
Indian Railways Act against 9 persons.
One S.R.I. Rizwi, Inspector
Railway Police, S.E. Railway, Tatanagar, commenccJ
investigation
into the offence under the general supervision of R.P. Singh, Superintendent, Railway Police, respondent 6 in Criminal Apocal No. 301 of
1979 (appellant in Criminal Appeal No. 300/79). Ordinarily, the
investigation would proceed in a traditionally routine manner by the
police machinery but it has
taken none-too-commendable zig-zag
course because of the personalities involved in the case and which
should have been the most irrelevant factor to influence the decisions
of various persons involved in these appeals. It appears that . the
D.I.G., Railway Police who was the immediate superior of respondent
6, wrot.e a letter to the then D.I.G., C.I.D. Bihar, on May 11, 1977 re·
questing him to entrust the investigation of the aforementioned offences
to Central Bureau of Investigation but the Inspector General of Police,
Bihar, as per his letter dated June 24, 1977, declined the request. In
the mean time one Shri Rusi Modi, resident representative of TISCO
at Patna appears to have written a personal letter to Shri Saran Singh,
the then Chief Secretary of the State of Bihar, complaining about the
harassment suffered by the officers of TISCO pursuant to the investigation carried on by railway police under the supervision ef respondent
6 and requesting him to take whatever steps the Chief Secretary considered appropriate to curb the enthusiasm of respondeat 6 in carrying
on the investigation of the offences. It appears from the reply affidavit
filed by M. J. Basha, an officer of TISCO, that on June 16, 1977,
the very day the resident representative handed over his letter to the
Chief Secretary, Cabinet took the decision to transfer respondent 6.
It is necessary to refer to this fact to evaluate a submission that even
though respondent 6 was transferred he directed a charge-sheet to be
submitted despite the fact that the investigation was incomplete and
that this conduct would provide demonstrable proof of his malice and
mala fides.
It appears that one Shri R. H. Modi who was required by
the investigating officer to appear before liim made some enquiry by
.1
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BIHAR v. J.A.C. SALDANHA (Desai, J.)
25
his letter dated November 4, 1977, which appears to have been copied
to some higher police officers and in the margin of this letter there is
an endorsement by respohdent 2, Inspector General of Police, Bihar
requesting respondent 3, Addi. LG., C.l.D., to look into the complaint
made by Mr. Modi. Immediately thereupon the third respondent sent a
telegraphic communication to respondent 6 informing him that the
investigation of the aforementioned offence has been taken over by the
C.I.D. It appears that on a request made by the Secretary to Govern·
ment of Bihar (Home) Police Department, the Commission, South
Chhota Nagpur Division, Ranchi, enquired into the alleg:itions made
by officers of TISCO against respondent 6 and after consultations with
DJ.G., Rallway, the immediate superior of respondent 6, and
submitted his report dated December 27, 1977, in which it is stated that
there was no ulterior motive on the part of respondent 6 in instituting
a c"ase and that there was "material strong enough to institute a case
and taking up the investigation and that it could not be said that the
case was instituted in order to harass the TISCO management".
The
Government of Bihar appears to have recieved an application signed
by MLAs. and MLCs., 7 in all, addressed to Inspector General of
Police, Vigllance, Bihar, making serions allegations against the investigation done under the supervision of respondent 3 and suspecting a
foul play possibly with a view to covering up the case and requested
. the Government to get the investigation done through LG., Vigilance.
Such a complaint appears to have been made to the then Prime Minister
of India as also some question appears to have been asked in Parliament. The then Chief Secretary submitted a note to the Chief Minister
on August 28, 1978, with reference to the letter of the MLAs.jMLCs.
snggesting that the case involved in the matter be handed over to the
C.B.I. for enquiry.
Approving this note and
suggestion, the then
Chief Minister signed the note on the same day.
IJ:i the mean lime
Chief Secretary on September 2, 1978, directed respondent 3 to send
all papers of the case with a note indicating the stage of investigation
to him and in compliance therewith respondent 3 sent all papers of investigation till then done to the Chief Secretary under his covering letter
dated September 11, 1978. C.B.I. by its letter dated January 30, 1979,
declined to undertake the investigation and suggested that the Inspector
General, Vlgfilance Department, may be asked to conduct the investi·
gation.
The Chief Secretary thereafter submitted a further .note to
the Chief Minister on February 8, 1979, stating therein 'hat the C.B.I.
is not in a position to take up the investigation and that the I.G.,
Vigilance, is recommended for investigation and, therefore, ihe Chief
Minister was requested to pass an appropriate order directin• I.G.
Vigilance to get the case investigated by the Vigilance Depa"rtmen;
3-868SCI/79
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[ l 9 80] 2 S.C.R.
under his personal control. This recommendation was accepted by the
Chief Minister on February 27, 1979. In between, on January 18, 1979,
even though the papers were still with the Chief Secretary, respondent
3 directed the investigating offi= respondent 4 to submit the final
report. When the Chief Secretary came to know abou: it he wrote to
respondent 2 deprecating the conduct of respondent 3 in pushing
through the matter though the papers were not with him and he was
orally instructed not to submit the final report. As under the direction
and orders of respondent 3, respondent 4 had already submitted the
final report on February 6, 1979, a communication was addressed to
respondent 5, Superintendent, Railway Police, one Mr. Mohammad
Sulaiman, who had taken over in the mean time from respondent 6
who was transferred, to move the Court not to accept the final report
and await report of the police after completion of the further investigation which was directed by the Government in the case. The matter
was placed before the Addi. Chief Judicial Magistrate on February 24,
1979, along with report of the Asst!. Public Prosecutor not to accept
the final report as hereinabove stated whercupcn the learned Magistrate
passed the following order :
"After hearing both the parties, I consider it proper to
await report on further investigation.
Therefore, put up on
23-3-1979 for further
orders awaiting report on further
investigation".
On March 5, 1979, J.A.C. Saldanha, original petitioner (respondent 1) filed a petition in the High Court questioning the validity,
legality and correctness of the order of the Addi. Chief Judicial
Magistrate.
A full bench c;f the High Court by its judgment dated May 14, 1979,
quashed the order, inter alia, holding that the direction given by the
Chief Secretary with the concurrence of the Chief Minister for taking
over investigation of the case by the Inspector-General, Vigilanc was
illegal inasmuch as the I.G., Vigilance could not be entrusted in law
with the investigation of the case registered with the raliway police
and consequently the learned Addi. Chief Judicial Magistrate was in
error in postponing consideration of the final report already submitted
by the fourth respondent till such unauthorised investigation was completed. The High Court gave various directions to the learned Addi.
Chief Judicial Magistrate how to dispose of the case. Two appeals
have been preferred by special leave, one by the State of Bihar, and
the other by original respondent 7 (respondent 6 herein), the then
Superintendent of Police, Railway.
Bl!IAR v. J.A.C. SALDANHA (Desai, !.)
27
.;
Two substantial questions arise in these appeals: (la). Whether
the State Government was competent to direct further investigation
in a criminal case in which a report was submitted by the investigating
agency under s. 173(2) of the Code of Criminal Procedure, 1973
('Code' for short) to the Magistrate having jurisdiction to try the
cru;e ? (lb). Whether the Magistrate having jurisdiction to try the
case committed an illegality in postponing consideration of the report
submitted to him upon a request made by Asstt. Public Prosecutor in
charge of the case till report on completion of further investigation
directed by the State Govermnent was submitted to him; and
(2)
whether, when the investigation was in progress the High Court was
justified in interfering with the investigation and prohibiting or precluding further investigation in exercise of its extraordinary jurisdiction
under Art. 226 of the Constitution ?
·
'Investigation' is defined in s. 2(h) of the Code to include all the
proceedings under the Code for the collection of evidence conducted
by a police officer or by any person (other than a Magistrate) who is
authcrfaed by a Magistrate in this behalf. 'Police report' is defined in
s. 2(r) to mean a report forwarded by a police officer to a Magistrate
under sub-s. (2) of s. 173. Chapter XII deals with investigation of
a cogmzable case. Section 156(1) and (2) are relNant and may be
extracted :
"156(1) Any officer in charge of a 'police station may,
without the order of a Magistrate, investig:ite 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 police 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".
Section 36 confers power of an officer in charge of a police station
on all police officers superior in rank to an officer in charge of a police
~tation. It reads as under :
·
"36. Police officers superior in rank.to an officer in charge
of a police station may exercise the same powers, throughout the local area to whlch they are appointed, as may be
ex~rcised by such officer within the limits of his station".
Section 173 provides for submission of a report by an officer in
charge of a police station on completion of the investigation, to the
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Magistrate empow&ed to take cognizance of the offence.
Sul:>-s. (8) '-
of s. 173 is material. It reads as under :
"173(8) Nothing in this section shall be deemed to preciude further investigation in respect of an offence after a
report under sub-section (2) has been forwarded to the
Mdgistrate and, whereupon such investigation, the officer in
cirnrgc of the police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a further
report or reports regarding such evidence in the form prescnbr-0; and the provisions of sub-sections (2) to (6) shall, as
far as may be, apply in relation to such report or reports as
they apply in relation to a report forwarded under sub-section
(2)".
The fim question is whether the State Government was precluded
from directing further investigation in the case in which one investigating officer had submitted a report under s. 173(2) of the Code but on
which the Court had not passed any order ?
Section 156 enables the officer in charge of a police station to investigate without the order of a Magistrate into a cognizable case
commilted within the area of the police station.
The officer directed by the State Government to cany on the investigation is Inspector-General, Vigilance. He is undoubtedly an officer
£
superior in rank, if not in departmentwise administrative hierarchy,
to an officer in charge of a police station.
Inter ;e departmental
division such as Inspector-General of Police or
Inspector-General,
Vigilance, or Additional Inspector-General, C.I.D.