Jharkhand High Court
Paras Kumar Aged About 61 Years Son ... vs The State Of Jharkhand Through Its ... on 18 March, 2021
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.40 of 2019
----
Paras Kumar aged about 61 years son of late Ram Janam Singh
resident of Narayan Niwas, Mohalla - Morabadi, P.O. and P.S.
Morabadi, District-Ranchi, Jharkhand.
... ... Petitioner/Appellant
Versus
1. The State of Jharkhand through its Chief Secretary, Project
Bhawan, P.O. Dhurwa, P.S. Jaganathpur, District-Ranchi
(Jharkhand).
2. The Secretary, Road Construction Department, Govt. of
Jharkhand, Project Bhawan, P.O. Dhurwa, P.S.
Jaganathpur, District-Ranchi (Jharkhand).
3. The Secretary, Department of Ministerial Secretariat and
Vigilance, Govt. of Jharkhand, Project Bhawan, P.O.
Dhurwa, P.S. Jaganathpur, District-Ranchi (Jharkhand).
4. The Chief Engineer, Department of Ministerial Secretariat
and Vigilance, Govt. of Jharkhand, Project Bhawan, P.O.
Dhurwa, P.S. Jaganathpur, District-Ranchi (Jharkhand).
5. The Additional Director General of Police, Anti-Corruption
Bureau, Kanke Road, P.O. Kanke, P.S. Gonda, District -
Ranchi, Jharkhand.
6. The Superintendent of Police, Anti-Corruption Bureau,
Kanke Road, P.O. Kanke, P.S. Gonda, District - Ranchi,
Jharkhand.
7. The Dy. Superintendent of Police, Anti-Corruption Bureau,
Kanke Road, P.O. Kanke, P.S. Gonda, District - Ranchi,
Jharkhand.
... ... Respondents/Respondents
With
L.P.A. No.44 of 2018
----
Dilip Kumar Singh aged about 51 years son of late Yogendra
Narayan Singh resident of Village + P.O. - Ora Bagicha, P.S.
Dharhara, District Munger (Bihar), at present posted and
working as Junior Engineer, NREP, Deoghar, At + P.O. and P.S.
- Deoghar, District - Deoghar, Jharkhand.
... ... Petitioner/Appellant
Versus
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1. The State of Jharkhand through its Chief Secretary, Project
Bhawan, P.O. Dhurwa, P.S. Jaganathpur, District-Ranchi
(Jharkhand).
2. The Secretary, Road Construction Department, Govt. of
Jharkhand, Project Bhawan, P.O. Dhurwa, P.S.
Jaganathpur, District-Ranchi (Jharkhand).
3. The Secretary, Rural Works Department, Govt. of
Jharkhand, Project Bhawan, P.O. Dhurwa, P.S.
Jaganathpur, District-Ranchi (Jharkhand)
4. The Secretary, Department of Ministerial Secretariat and
Vigilance, Govt. of Jharkhand, Project Bhawan, P.O.
Dhurwa, P.S. Jaganathpur, District-Ranchi (Jharkhand).
5. The Chief Engineer, Department of Ministerial Secretariat
and Vigilance, Govt. of Jharkhand, Project Bhawan, P.O.
Dhurwa, P.S. Jaganathpur, District-Ranchi (Jharkhand).
6. The Additional Director General of Police, Anti-Corruption
Bureau, Kanke Road, P.O. Kanke, P.S. Gonda, District -
Ranchi, Jharkhand.
7. The Superintendent of Police, Anti-Corruption Bureau,
Kanke Road, P.O. Kanke, P.S. Gonda, District - Ranchi,
Jharkhand.
8. The Dy. Superintendent of Police, Anti-Corruption Bureau,
Dumka, P.O. and P.S. and District - Dumka, Jharkhand.
... ... Respondents/Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
------
For the Appellant : Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Krishna Murari, Advocate
[in L.P.A. No.40 of 2019]
For the Appellant : Mr. Pushkar Narain Shahi, Sr. Advocate
Mr. Harsh Preet Singh, Advocate
[in L.P.A. No.44 of 2018]
For the Respondent-State : Mr. Rajiv Ranjan, Advocate General
Mr. Sachin Kumar, A.A.G.-II
Mrs. Neelam Tiwary, Sr. S.C.-II
[in both cases]
For the A.C.B. : Mr. T.N.Verma, Spl. P.P.
[in both cases]
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C.A.V. on 21.10.2020 Pronounced on 18.03.2021
Per Sujit Narayan Prasad, J.
With consent of the parties, hearing of the matter was
done through video conferencing and there was no complaint
whatsoever regarding audio and visual quality.
2. Both these appeals are directed against the part of
common order dated 19.12.2017 passed by the learned Single
Judge of this Court in W.P.(S) No. 6314 of 2016 and W.P.(S) No.
4056 of 2016 whereby and whereunder the learned Single
Judge has declined to interfere with the ex-parte enquiry report
dated 02.09.2016 prepared and submitted under the joint
signatures of Respondent Nos. 6 to 8 (in W.P.(S) No.6314 of
2016) so far as it relates to petitioners with respect to the
construction of the road work in 2007 from "Kankhapra to
Satpahari" in the District of Deoghar, whereby after more than
8-9 years of execution of the said Road work on mechanical and
physical verification of the same, loss amount of Rs.8,23,728/-
has been sought to be saddled on the concerned Executive
Engineer, Assistant Engineer, Contractor including the
petitioners, who were posted as the Junior Engineers and have
contributed to the work as such, while posted in R.E.O.,
Division, Deoghar.
3. The brief facts which are necessary to be enumerated read
hereunder as :-
Both the writ petitioners, appellants herein, were working
in the Rural Engineering Organization by way of deputation and
on bifurcation of the State, they finally have been allocated
their cadre for the State of Jharkhand. While the writ
petitioners/appellants were discharging their duties under the
Rural Engineering Organization, a preliminary enquiry has
been initiated being P.E. No. 03/09 by the Anti Corruption
Bureau for conducting an enquiry against the alleged
irregularity in the matter of construction of one of the roads in
the district of Deoghar during the period from June, 2007 to
February, 2009. The aforesaid preliminary enquiry has been
concluded by submission of report on 02.09.2016 finding
complicity of the writ petitioners/appellants in the matter of
construction of the roads. The writ petitioners, being aggrieved
with the finding recorded in the preliminary enquiry dated
02.09.2016, had approached to this Court by filing writ
petitions being W.P.(S) No.6314 of 2016 and W.P.(S) No. 4056 of
2016.
The learned Single Judge of this Court after hearing the
counsel for the writ petitioners as also the respondent State of
Jharkhand, has refused to interfere with the aforesaid
preliminary enquiry on the following grounds :-
"(i) Admittedly, the aforesaid writ applications have
been filed for quashing the enquiry report, dated
02.09.2016, whereby some deficiencies and
irregularities have been found in the said report,
basing on which the respondents have moved to take
coercive action by lodging F.I.R. as well as other
consequential action. If on the basis of the said inquiry
report, any F.I.R. is lodged , then the petitioners could
have the remedy to challenge the same before the
appropriate Forum. So far as the enquiry report dated
02.09.2016 is concerned, indisputably, no
departmental proceeding has since been initiated
basing on the impugned enquiry report and unless any
disciplinary proceeding is initiated and the petitioners
are subjected to any evil or civil consequences, this
Court under apprehension/presumption of the
petitioners ought not to interfere in exercise of
extraordinary jurisdiction under Article 226 of the
Constitution of India, because it is too early, rather
premature to tinker with the enquiry report dated
02.09.2016, unless, the rights of the petitioners being
Government servants are adversely affected by any evil
or civil consequences. Though, this Court would not
like to interfere with the consequential action on the
impugned enquiry report, but, if any future action
would be taken by the respondents on the basis of the
Vigilance Circular No. 1623, dated 07.08.2015,
annexed as Annexure-7 to the I.A. No. 2631 of 2017,
the petitioners shall be afforded reasonable
opportunity, as enshrined in the aforesaid Circular,
therefore, in the fitness of things without dwelling
upon the nitty-gritty of the factual and legal aspects on
the impugned enquiry report, interest of justice would
be met, if a direction is issued to the respondents to
take action in the event any action would be proposed
to be taken basing on the enquiry report, the same be
done after affording reasonable opportunity of hearing
to the petitioners and in accordance with law."
The aforesaid order is the subject matter of the instant
intra-court appeal.
4. Mr. Anil Kumar Sinha, learned Senior counsel appearing
for the writ petitioner/appellant in L.P.A. No.40 of 2019,
assisted by Mr. Krishna Murari, has submitted that the
aforesaid preliminary enquiry although has been initiated
sometime in the year 2009 but its report has come in the year
2016 which is contrary to the guidelines issued by the Cabinet
Secretariat and Vigilance Department of the State of Jharkhand
as contained in Circular No.1623 dated 07.08.2015 which
contains the guidelines to be followed by the Anti Corruption
Bureau of the State of Jharkhand wherein specifically it has
been provided under Clause No.21(4)(v) that before converting
the finding recorded in the preliminary enquiry into a criminal
case, an opportunity of hearing is required to be provided to the
accused while Clause 21(4)(viii) clearly provides maximum
period of three months for completion of preliminary enquiry
and if the enquiry is not going to be completed within the
period of three months, power to extend the aforesaid
maximum period of three months will be upon the Chief of the
Bureau.
According to Mr. Sinha, since the preliminary enquiry has
already been completed, therefore, in pursuance to Clause
21(4)(v) as contained in Circular dated 07.08.2015, the writ
petitioners/appellants are required to be provided an
opportunity to defend themselves but such opportunity has not
been provided.
Secondly, his submission is that admittedly the
preliminary enquiry has been initiated sometime in the year
2009 but has been completed on 02.09.2016, therefore, it is
beyond the maximum period of three months and the aforesaid
period of three months has never been extended as required
under the aforesaid provision and hence the preliminary
enquiry is absolutely illegal and as such, fit to be quashed and
set aside but the learned Single Judge has not appreciated this
aspect of the matter.
5. Mr. Pushkar Narain Shahi, learned Senior counsel,
assisted by Mr. Harsh Preet Singh, representing the appellant
in L.P.A. No. 44 of 2018, in addition to the argument advanced
on behalf of Mr. Anil Kumar Sinha, has submitted that if any
condition has been provided in the circular, the same has to be
followed in its strict sense but as has been submitted by Mr.
Sinha that the condition stipulated in Clause 21(4)(v) and
21(4)(viii) has not been followed, therefore, the aforesaid
preliminary enquiry will be said to be in the teeth of the
aforesaid circular.
6. The Anti Corruption Bureau has been represented by Mr.
T.N.Verma, who has been heard at length.
This Court, after taking into consideration the fact that
even after submission of the preliminary enquiry report on
02.09.2016, the matter is kept pending by the Cabinet
Vigilance Department and as such a report was sought for as
would be evident from the order dated 17.09.2020. In
pursuance thereto, report has been brought on record by the
Anti Corruption Bureau.
This Court has perused the aforesaid report and found
therefrom that in spite of repeated request/reminders being
made by the Anti Corruption Bureau to the Cabinet Vigilance
Department, permission to institute F.I.R. has not been
accorded and as such, the F.I.R. has not yet been instituted.
This Court, thereafter, vide order dated 21.09.2020 has
passed an order directing the State to be ready with the answer
as to why the concerned department did not give any opinion
regarding whether the First Information Report should be
registered or not?
This Court, taking into consideration the nature of the lis,
has passed an order warranting the learned Advocate General
to appear in this case.
Learned Advocate General, in pursuance of the aforesaid
order, has put his appearance on behalf of the State of
Jharkhand and presented the case of the State Authority by
filing a detailed counter affidavit dated 19.10.2020 wherein it
has been stated that the delay has been caused in taking final
decision on the preliminary enquiry report due to non-approval
of the Administrative Department. The parent department of
Anti Corruption Bureau is the Cabinet Vigilance Department
which is to accord permission to the Anti Corruption Bureau to
institute the F.I.R. but prior to that approval of the
Administrative Department i.e. Rural Engineering Organization
is required but the aforesaid approval since has not been
received in the Cabinet Vigilance Department therefore, delay
has been caused. However, he submits that finally the approval
has been accorded on 25.09.2020 for instituting F.I.R. against
the accused of Vigilance Enquiry being P.E. No.03/09.
On the issue of non-compliance of condition stipulated
under Clause 21(4)(v) which contains a provision to provide an
opportunity to put forth his defence prior to conversion of the
aforesaid enquiry into a criminal case, submission has been
made that approval/sanction has been accorded by the
Administrative Department on 25.09.2020 but before
converting the preliminary enquiry into a criminal case an
opportunity of hearing shall be provided to the writ
petitioners/appellants as per the direction passed by the
learned Single Judge of this Court.
So far as the condition stipulated under Clause 21(4)(viii),
it has been submitted by refuting the argument advanced on
behalf of writ petitioners/appellants that since the extension for
conducting the preliminary enquiry has not been granted by
the Bureau Chief, only on that ground preliminary enquiry will
not vitiate since according to him, the aforesaid condition is not
mandatory rather, it is directory. In support of his argument,
he has relied upon the judgment rendered in the case of
Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and
Others reported in (2003) 2 SCC 111 and in the case of State
of Telangana v. Managipet alias Mangipet Sarveshwar
Reddy reported in 2019 SCC OnLine SC 1559.
He has further raised an issue about maintainability of the
writ petition since according to him, if the pleading of the writ
petition or the instant appeal would be scrutinized the same
since pertains to the commission of offence attracting the
provision of Indian Penal Code or the Prevention of Corruption
Act and as such, the writ petition filed under Article 226 of the
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Constitution of India will be treated to be a criminal proceeding
and it is settled that if in a criminal proceeding any order has
been passed by the writ court, L.P.A. will not lie. To
substantiate his argument, he has placed reliance on a
judgment rendered in the case of Ram Kishan Fauji v. State
of Haryana and Others reported in (2017) 5 SCC 533.
7. In response to the aforesaid argument advanced on behalf
of learned Advocate General, Mr. Anil Kumar Sinha, learned
Senior counsel has relied upon the judgment rendered in the
case of Lalita Kumari v. Government of Uttar Pradesh and
Others reported in (2014) 2 SCC 1, more particularly, relying
upon the direction as contained under Paragraph 120.6 thereof
wherein it has been laid down that as to what type and in
which cases preliminary inquiry is to be conducted will depend
on the facts and circumstances of each case. The category of
cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
Since reference of corruption case has been made in the
aforesaid paragraph of the aforesaid judgment, therefore, a
preliminary enquiry is required to be conducted and
accordingly it has been conducted but the question is when it
has not been concluded within a maximum period of three
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months as required under the provision of Clause 21(4)(viii) of
the Circular, therefore, the preliminary enquiry will vitiate.
Mr. Sinha, refuting the argument advanced on behalf of
learned Advocate General about nature of guidelines as to
whether it is said to be directory or mandatory, has relied upon
the judgment rendered by the Division Bench of this Court in
the case of Uttam Kujur v. State of Jharkhand and Others
reported in 2008 (2) JCR 306 (Jhr) while Mr. P.K.Shahi,
learned Senior counsel appearing for one of the appellants has
relied upon, in this regard, the judgment rendered by Hon'ble
Apex Court in the case of B.S. Minhas v. Indian Statistical
Institute and Others reported in (1983) 4 SCC 582.
8. We have heard the learned counsel for the parties at
length, perused the documents available on record as also the
finding recorded by the learned Single Judge.
Before proceeding further to consider the legality and
propriety of the impugned order, it requires to refer herein that
the instant appeals are against part of the judgment since the
learned Single Judge has passed two fold directions, firstly to
provide an opportunity of hearing to the writ
petitioners/appellants if the occasion so arises so that the
condition stipulated under Clause 21(4)(v) be complied with and
secondly, refused to interfere with the preliminary enquiry
report holding it as premature.
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The second part i.e. interference with the preliminary
enquiry is the subject matter of the present appeal.
This Court, in order to answer the issue, deems it fit and
proper to first consider as to whether :-
(i) L.P.A. would be maintainable or not ?
(ii) The nature of the guideline stipulated under Clause
21(4)(viii) in the circular dated 07.08.2015 is
directory or mandatory?
(iii) If any cognizable offence is made out, F.I.R. can be
instituted without any preliminary enquiry or not ?
Issue No.(i)
"L.P.A. would be maintainable"
9. It has been emphatically agitated by the learned Advocate
General that the L.P.A. will not be maintainable, however, no
argument in rebuttal has been advanced on behalf of learned
counsel appearing the writ petitioners/appellants.
Learned Advocate General has relied upon the judgment
rendered in Ram Kishan Fauji v. State of Haryana and
Others (Supra) wherein the fact of the case is that the Chief
Secretary to the Government of Haryana made a reference to
the Lokayukta, Haryana to enquire into the allegations, namely,
(i) whether the allegations of bribery levelled in the alleged
compact disc (CD) were correct, (ii) whether change of land
use/licence was granted in pursuance of these allegations, and
(iii) whether by such act, any illegality was committed.
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Lokayukta, Haryana thought it appropriate to recommend for
registration of FIR for the offences punishable under the
provisions of the Prevention of Corruption Act, 1988. The
appellant had preferred civil writ petition praying for issue of a
writ in the nature of certiorari for quashing of the impugned
orders dated 20-1-2014 and 11-2-2014 passed by the
concerned authority whereby it had recommended registration
of a case against the petitioner therein under the provisions of
the 1988 Act and further for issue of a writ or direction in the
nature of mandamus restraining Respondent No.1 from
initiating any consequential proceeding on the basis of the
impugned orders.
The learned Single Judge had opined that an FIR has been
registered on 4-12-2014, that is, after the writ petition was
filed, when the issue of the authenticity of the CD was very
much open for consideration. If the investigation is purported
to be taken by lodging an FIR, consequent on the directions
given by the order which is now quashed, it shall also be
quashed.
The aforesaid order came to be assailed and the Division
Bench had stayed the operation of the judgment passed by the
learned Single Judge, subsequent thereto the aforesaid interim
order has been made absolute by the order dated 12-5-2016
which was assailed before the Hon'ble Apex Court.
The issue involved in the appeal was whether the
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jurisdiction exercised by the learned Single Judge of the High
Court was criminal jurisdiction in nature and thereby Letters
Patent Appeal against such order was maintainable?
Answering in affirmative, the Hon'ble Apex Court has been
pleased to lay down that maintainability of a Letters Patent
Appeal would depend upon the pleadings in the writ petition,
the nature and character of the order passed by the learned
Single Judge, the type of directions issued regard being had to
the jurisdictional perspectives in the constitutional context.
The test, thus, is whether criminal proceedings are
pending or not and the petition under Article 226 of the
Constitution is preferred concerning those criminal proceedings
which could result in conviction and order of sentence. When
viewed from this angle, it is clear that if the FIR is not quashed,
it may lead to filing of challan by the investigating agency,
framing of charge and can result in conviction of order of
sentence. Writ of this nature filed under Article 226 of the
Constitution seeking quashing of such an FIR would therefore
be "criminal proceedings" and while dealing with such
proceedings, the High Court exercises its "criminal
jurisdiction".
It is settled position of law that applicability of a judgment
is to be seen in the facts and circumstances governing the case
and there cannot be any universal applicability of the
judgment, rather, it is to be tested on the facts and
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circumstances of each case as has been decided by the Hon'ble
Apex Court in the case of Dr. Subramanian Swamy v. State
of Tamil Nadu and others reported in (2014) 5 SCC 75
wherein at paragraph 47 the Hon'ble Apex Court has held
which reads hereunder as :-
"47. It is a settled legal proposition that the ratio of any
decision must be understood in the background of the
facts of that case and the case is only an authority for
what it actually decides, and not what logically follows
from it. "The court should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed."
The facts of the case (Ram Kishan Fauji's case), the writ
petition was filed under Article 226 of the Constitution for
quashing of the recommendation of the Lokayukta. The said
recommendation would have led to launching of criminal
prosecution, and, as such, FIR was registered and criminal
investigation was initiated. The learned Single Judge analysed
the report and the ultimate recommendation of the statutory
authority and quashed the same, as he found that FIR had
been registered, he annulled it treating the same as a natural
consequence. Therefore, the effort of the writ petitioner was to
avoid a criminal investigation and the final order of the writ
court is quashment of the registration of FIR and the
subsequent investigation. In such a situation, to hold that the
learned Single Judge, in exercise of jurisdiction under Article
226 of the Constitution, has passed an order in a civil
proceeding as the order that was challenged was that of the
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quasi-judicial authority, that is, the Lokayukta, would be
conceptually fallacious.
In the case at hand, the writ petition was filed under
Article 226 of the Constitution of India for quashing of the
preliminary enquiry report dated 02.09.2016. Admitted position
is, as would be evident from the stand of the respondent State
as also the Anti Corruption Bureau in the counter affidavit,
that the finding recorded in course of preliminary enquiry will
only be converted into a criminal case if it is approved by the
Administrative Department, herein, Rural Engineering
Organization, Jharkhand, and duly been sanctioned by the
Cabinet Vigilance Department of the State of Jharkhand.
The further admitted position is that the approval for
instituting an F.I.R. has been accorded by the Administrative
Department i.e., on 25.09.2020 and the said approval is still to
be sanctioned by the Cabinet Vigilance Department and, as
such, on the date of filing of the writ petition since there was
no approval either by the Administrative Department or
sanction by the Cabinet Vigilance Department, the nodal
department of the Anti Corruption Bureau, as such, the
proceeding by way of writ petition under Article 226 of the
Constitution of India will be treated to be a civil proceeding and
at that stage there might be chance of non-approval of the
preliminary enquiry report and in that circumstances there will
be no likelihood of institution of F.I.R. In that view of the
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matter, the proceeding filed under Article 226 of the
Constitution of India being in the nature of civil proceeding, in
which the order has been passed by the learned Single Judge
and as such, applying the ratio laid down in the case of Ram
Kishan Fauji v. State of Haryana (Supra) the very nature of
the suit before the learned Single Judge being civil in nature,
hence, the Letters Patent Appeal will be maintainable against
the order passed by the learned Single Judge.
Accordingly, the instant issue is answered.
Issue No.(ii)
"The nature of the guideline stipulated under Clause
21(4)(viii) in the Circular dated 07.08.2015 is directory or
mandatory?"
10. The Cabinet Secretariat and Vigilance Department, State
of Jharkhand has come out with a circular dated 07.08.2015. It
is evident from the aforesaid circular that the erstwhile
Vigilance Bureau has been restructured as Anti Corruption
Bureau along with its working, accountability and
determination of powers. It is evident from the preamble of the
aforesaid circular that the State Government has taken
decision considering the complaints of corruption against the
public servants as also delay in disposal in the enquiry and the
cases registered under the Prevention of Corruption Act and
hence decision was taken to strengthen and restructure the
Vigilance Bureau to achieve the object and intent and to deal
with the corruption cases. The relevant condition for the
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present case which is required to be discussed is under Clause
21 which stipulates about preliminary enquiry wherein it has
been decided to conduct a preliminary enquiry for alleged
commission of irregularities leveled against the public servants
or criminal mis-utilization of the post.
It is evident that under Clause 21 (4) (i) to 21(4)(iv) the
competent authority has been defined to recommend for
preliminary enquiry. Under the aforesaid provision, the subject
matter of preliminary enquiry as also the role of the department
in extending co-operation has been discussed.
Under Clause 21(4)(v) it has been stipulated that after
completion of the preliminary enquiry if any offence has been
found committed and if the enquiry is required to be converted
into a criminal case, an opportunity of hearing is required to be
provided to the accused.
Clause 21(4)(viii) provides maximum period of three
months for completion of the preliminary enquiry, however, the
aforesaid period of three months may be extended by the Chief
of the Bureau.
Learned counsel for the writ petitioners/appellants have
raised the issue of non-compliance of the condition stipulated
under Clause 21(4)(v) and 21(4)(viii).
So far as the compliance of condition stipulated under
Clause 21(4)(v) is concerned, learned Advocate General has
conceded that the said condition shall be complied with and
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before instituting F.I.R., opportunity of hearing shall be
provided. He further submits that since the State has not
challenged the part of the order passed by the learned Single
Judge which contains a direction to provide an opportunity of
hearing before conversion of the finding recorded in the
preliminary enquiry into a criminal case, therefore, there is no
dispute that the said condition will not be complied with.
In view of such submission, we thought it proper not to
give any finding in this regard, moreover, the said part of the
order passed by the learned Single Judge since is not the
subject matter of the present appeals hence there is no reason
to go into this issue.
Learned Senior counsel for the writ petitioners/appellants,
however, have given emphasis upon the non-compliance of the
condition stipulated under Clause 21(4)(viii) and according to
them, since the preliminary enquiry has not been completed
within the period of three months and as per the counter
affidavit filed on behalf of the Anti Corruption Bureau, three
months' period has never been extended by Bureau Chief,
therefore, the preliminary enquiry is not sustainable in the eyes
of law. Submission has also been made in this regard that the
aforesaid condition is mandatory in nature and hence, it has to
be complied with by the concerned authority and having not
been done, the preliminary enquiry will be said to be without
jurisdiction.
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Learned Senior counsel representing the writ
petitioners / appellants has relied upon the judgment rendered
by the Division Bench of this Court in the case of Uttam Kujur
v. State of Jharkhand and Others (Supra) and the judgment
rendered by Hon'ble Apex Court in the case of B.S. Minhas v.
Indian Statistical Institute and Others (Supra).
On the other hand, learned Advocate General has
submitted that the said condition cannot be said to be
mandatory, rather, it is directory as because it has not been
referred in the said condition that if the enquiry will not be
completed within the period of three months, what would be the
consequence and in absence of consequence, the said condition
will be said to be directory and in that view of the matter, even
if the preliminary enquiry has not been completed within the
period of three months, the same will not be vitiated.
11. We have considered it fit to scrutinize the aforesaid
judgment. In the case of Uttam Kujur v. State of Jharkhand
and Others (Supra), the issue fell for consideration was with
respect to observance of Resolution dated 25.10.1980
published in Extra-ordinary Gazette of the State of Bihar,
comprehensive transfer and posting policy for the Government
servants was notified by the then State of Bihar. Some of the
important features of this resolution are required to be referred
hereunder :
"The 25th October, 1980
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Subject--Policy and procedure regarding transfer and
posting of Government servants.
The policy and procedure regarding transfer and
posting of Government servants has been laid down by
the State Government, from time to time. The policy
and procedure as laid down in the Personnel and
Administrative Reforms Departments Resolution No.
14747, dated the 6th September, 1979 and No. 16609,
dated the 18th October, 1979 which is enforced at
present has failed to fulfill the desired objective. The
matter has, therefore, been reconsidered by the State
Government and with a view to further streamlining
the policy and procedure of transfer and postings, the
State Government have been pleased to take the
following decisions in supersession of all previous
orders:
(A) General policy regarding transfer and
posting.--(1) Transfer and postings will generally
be done twice, i.e., in May-June and November-
December of each year:
Provided that in special circumstances,
e.g., death, illness, vacancy or other
administrative reasons transfer and posting
could be made at any other time subject to the
following conditions
(i) In respect of officers whose
transfer/posting is done with the approval of
Minister or by Council of Ministers, specific prior
approval of the Chief Minister has to be
obtained; and
(ii) In respect of such officers and
Government employees whose transfer and
posting is done by subordinate officers under
delegated power of transfer, specific prior
approval of the immediate superior officers is
obtained.
(2) The duration of posting on any post
and at any particular place will generally be for a
period of 3 years. For some posts of places, the
period of posting may. however be kept for 2
years which should be specified by the
departments by Standing Orders.
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xxx xxx xxx
(B) Procedure for transfer and posting.--(1)
xxx xxx xxx
(2) Proposals regarding transfer, posting
and deputation of such officers whose maximum
pay in the pay scale exceeds Rs. 810 but dose
not exceed Rs. 1,200 should be placed before the
Minister-in-charge for orders after the
recommendation of the Establishment
Committee. Proposals regarding transfer, posting
and deputation of such officer whose maximum
pay in the pay scales exceeds Rs. 1,200 shall be
placed before the Cabinet after obtaining the
recommendation of the Establishment
Committee and approval of the Minister-in-
charge.
xxx xxx xxx"
(C) Formation of Establishment
Committee.--(1) An Establishment Committee
should be formed for each Department with the
approval of the Departmental Minister for
recommending transfer/posting of such officers
whose transfer and posting is made by
Government. The Committee will consist of the
following officers:
(i) Commissioner and Secretary,
(ii) Seniormost head of Department,
(iii) One Special Secretary/Additional
Secretary,
(iv) Suitable senior most officer of the
Scheduled Caste/Scheduled Tribe.
xxx xxx xxx"
It is, thus, evident that the aforesaid resolution indicates
that the State Government has laid down norms for transfer
and posting of the Government servants which has been carved
out considering the situation that no statutory rules framed
under proviso to Article 309 of the Constitution of India
regulating the transfer and posting of Government servants in
the State of Jharkhand and in that circumstances, it has been
- 23 -
observed therein that if the Government has laid down norms
and policy, there must be valid reasons to deviate from that.
Admittedly, in the aforesaid judgment which pertains to the
subject matter of transfer having been formulated by the
undivided State of Bihar in absence of a rule regulating the
transfer and as such, the position of law as has been laid down
therein that in order to fill up the gap and lacuna, if any policy
decision is framed out, the same has to be complied with,
therefore, the basic object of the resolution dated 25.10.1980 is
to regulate the transfer policy of the State so that while
transferring one or the other public servants, the principle of
fairness and transparency may be observed.
The judgment rendered in the case of B.S. Minhas v.
Indian Statistical Institute and Others (Supra), the same
also pertains to observance of bye-laws wherein it has been laid
down that if the bye-laws have been framed for the conduct of
its affairs to avoid arbitrariness, the same has to be followed.
Therefore, according to our considered view, both the
judgments deal with the fact that if any guidelines have been
formulated, the same is strictly to be adhered to, i.e., to avoid
any arbitrariness.
The paramount consideration in both the judgments is
that if any policy has been framed and if it is not being
followed, the authority will be said to have acted arbitrarily.
The question of applicability of these judgments in the
- 24 -
facts and circumstances of this case, have been scrutinized by
us, as discussed hereinafter.
Learned Advocate General has relied upon a judgment
rendered in the case of Bhavnagar University v. Palitana
Sugar Mill (P) Ltd. and Others (Supra), more particularly, he
has referred paragraph 42 and 43 thereof. We have gone across
the aforesaid judgment and found therefrom that basic
principle of construction of statute has been dealt with and
while dealing with the same, it has been laid down that when a
public functionary is required to do a certain thing within a
specified time, the same is ordinarily directory but it is equally
well settled that when consequence for inaction on the part of
the statutory authorities within such specified time is expressly
provided, it must be held to be imperative. Further, it is evident
that if no consequence of non-compliance is stated in the
statute, is to be considered as a factor tending towards a
directory construction. Paragraph 42 and 43 are required to be
referred hereunder which read as under :-
"42. We are not oblivious of the law that when a public
functionary is required to do a certain thing within a
specified time, the same is ordinarily directory but it is
equally well settled that when consequence for inaction on
the part of the statutory authorities within such specified
time is expressly provided, it must be held to be imperative.
43. In Sutherland's Statutory Construction, 3rd Edn., Vol. 3,
at p. 102 the law is stated as follows:
"... unless the nature of the act to be performed, or
the phraseology of the statute is such that the
designation of time must be considered a limitation of
the power of the officer".
- 25 -
At p. 107 it is pointed out that a statutory direction to
private individuals should generally be considered as
mandatory and that the rule is just the opposite to that
which obtains with respect to public officers. Again, at p.
109, it is pointed out that often the question as to whether a
mandatory or directory construction should be given to a
statutory provision may be determined by an expression in
the statute itself of the result that shall follow non-
compliance with the provision. At p. 111 it is stated as
follows:
"As a corollary of the rule outlined above, the fact
that no consequences of non-compliance are stated in
the statute, has been considered as a factor tending
towards a directory construction. But this is only an
element to be considered, and is by no means
conclusive."
According to us, the aforesaid principle laid down by
Hon'ble Apex Court in the judgment referred hereinabove
stipulates by laying down law that if any law has been
formulated for completion of certain thing in specified time, the
same is ordinarily directory but if it is along with consequence
for inaction, the same will be said to be mandatory.
The judgments rendered by the learned counsel for the
writ petitioners/appellants in this regard in the case of Uttam
Kujur v. State of Jharkhand and Others (Supra) and B.S.
Minhas v. Indian Statistical Institute and Others (Supra) is
with respect to observance of the policy/bye-laws in order to
achieve the object and intent for the purpose for which the
guidelines or bye-laws have been formulated.
The State of Bihar has formulated the transfer policy on
25.10.1980 in order to avoid arbitrariness and to observe
transparency and fairness in the transfer policy but if it will be
- 26 -
allowed to be deviated, the same will lead to the arbitrary action
on the part of the authority as also it will be unfair and non-
transparent and ultimately the object and intent for which the
policy has been formulated, will not be achieved.
It is well known that an interpretation of the statute which
harmonizes with its avowed object is always to be accepted
than the one which dilutes it.
The Hon'ble Apex Court in the case of State of West
Bengal v. Union of India reported in AIR 1963 SC 1241 at
page 1245, emphasized the importance of construing the
statute as a whole, the relevant paragraph is being referred
hereunder as:
"The court must ascertain the intention of the
legislature by directing its attention not merely to the
clauses to be construed but to the entire Statute; it
must compare the clause with the other parts of the
law, and the setting in which the clause to be
interpreted occurs."
The Hon'ble Apex Court, further in the case of N.K.Jain
and Others v. C.K.Shah and Others reported in (1991) 2 SCC
495 has decided that for construing the provision of an Act a
purposive approach should be adopted, in the aforesaid
judgment, their Lordships of the Hon'ble Apex Court at
paragraph 13 thereof has been pleased to lay down :
"The legislative purpose must be noted and the statute
must be read as a whole. In our view taking into
consideration the object underlying the Act and on
reading Sections 14 and 17 in full, it becomes clear
that cancellation of the exemption granted does not
amount to a penalty within the meaning of Section
- 27 -
14(2-A)."
In view of the aforesaid settled position of law and this
Court after going across the judgment relied upon by the
learned Senior counsel appearing for the writ
petitioners/appellants rendered by this Court in the case of
Uttam Kujur v. State of Jharkhand and Others (Supra) and
Hon'ble Apex Court in the case of B.S. Minhas v. Indian
Statistical Institute and Others (Supra) wherein also the
consideration of Court is upon the purposive approach of the
circular dated 25.10.1980, the subject matter of case in Uttam
Kujur v. State of Jharkhand and Others (Supra) and the
bye-laws subject matter of the case of B.S. Minhas v. Indian
Statistical Institute and Others (Supra) i.e. to avoid
arbitrariness and the method leading to fairness and
arbitrariness, herein also the circular reflects its object to deals
strictly with the rampant corruption cases rising in the State of
Jharkhand and therefore, on the basis of the principle of
purposive approach of the circular if we will read it in entirety
and on the ground of non-extension of three months' period of
time, if the preliminary enquiry report will be declared to be
vitiated at the threshold, the very purpose and object of the
circular will not be achieved.
We, on following the aforesaid principle and on
scrutinizing the guidelines dated 07.08.2015, has found from
the very preamble that such guidelines have been formulated to
- 28 -
achieve the object and intent of rampant corruption prevalent
amongst the public servants and in order to deal with such
situation strictly, the Vigilance Bureau has been restructured
and strengthened so that impartial and fair enquiry may be
allowed to be conducted.
Thus, the object and intent of the circular dated
07.08.2015 is to deal with the corruption rampant amongst the
public servants and for this certain guidelines have been
formulated. One of it is for completion of the preliminary
enquiry within a period of three months subject to extension by
the Bureau Chief and if there is no extension what would be the
effect.
The question is that Clause 21(4)(viii) does not contain any
consequence and as such, it will be treated to be directory in
nature as per law laid down by Hon'ble Apex Court in the case
of Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and
Others (Supra). Further, if on technicality the preliminary
enquiry will be said to be vitiated, then ultimately the object
and intent of the circular dated 07.08.2015 will not be achieved
and further, even the judgment relied upon by the learned
counsel for the writ petitioners/appellants in this regard is
equally applicable taking into consideration the object and
intent of the circular which is for the purpose of regulating the
action of the authorities so that the very object of circular/bye-
laws may be achieved applying the ratio of both the judgments
- 29 -
in the facts of the case since herein also the circular dated
07.08.2015 has been issued by way of policy decision to deal
with corruption cases in the State, as such, if on technicality
the preliminary enquiry containing prima facie allegation of
corruption will be quashed at threshold, the same will lead to
encouraging the corruption amongst the public servants and
thereby the very object of circular dated 07.08.2015 will not be
achieved.
In view of the aforesaid discussion, we are of the
considered view that the condition stipulated under Clause
21(4)(viii) is not mandatory, rather it is directory in nature.
Issue No.(iii)
"If any cognizable offence is made out, F.I.R. can be
instituted without preliminary enquiry or not?"
12. In order to answer this issue we have gone across the
judgment rendered in the case of Lalita Kumari v.
Government of Uttar Pradesh and Others (Supra) upon
which learned Senior counsel appearing for the writ
petitioners/appellants have given much emphasize since as per
paragraph 120.6 even in corruption case preliminary enquiry is
required to be made but it is settled that every judgment is to
be read out in entirety and not in piecemeal.
We have gone across paragraph 119 of the aforesaid
judgment and found therefrom that registration or non-
registration of F.I.R., what is necessary is only that the
information given to the police must disclose the commission of
- 30 -
a cognizable offence. In such a situation, registration of an FIR
is mandatory. However, if no cognizable offence is made out in
the information given, then the FIR need not be registered
immediately and the police can conduct a sort of preliminary
verification or inquiry for the limited purpose of ascertaining as
to whether a cognizable offence has been committed. But, if the
information given clearly mentions the commission of a
cognizable offence, there is no other option but to register an
FIR forthwith. Other considerations are not relevant at the
stage of registration of FIR, such as, whether the information is
falsely given, whether the information is genuine, whether the
information is credible etc. Reference of paragraph 119 is
required to be made which reads as under :-
"119. Therefore, in view of various counterclaims
regarding registration or non-registration, what is
necessary is only that the information given to the
police must disclose the commission of a cognizable
offence. In such a situation, registration of an FIR is
mandatory. However, if no cognizable offence is made
out in the information given, then the FIR need not be
registered immediately and perhaps the police can
conduct a sort of preliminary verification or inquiry for
the limited purpose of ascertaining as to whether a
cognizable offence has been committed. But, if the
information given clearly mentions the commission of a
cognizable offence, there is no other option but to
register an FIR forthwith. Other considerations are not
relevant at the stage of registration of FIR, such as,
whether the information is falsely given, whether the
information is genuine, whether the information is
credible, etc. These are the issues that have to be
verified during the investigation of the FIR. At the stage
of registration of FIR, what is to be seen is merely
whether the information given ex facie discloses the
commission of a cognizable offence. If, after
- 31 -
investigation, the information given is found to be
false, there is always an option to prosecute the
complainant for filing a false FIR."
Further, if we read paragraph 120.6 which stipulates that
under Condition No.(e) that cases where there is abnormal
delay/laches in initiating criminal prosecution, for example,
over 3 months delay in reporting the matter without
satisfactorily explaining the reasons for delay.
Further, under paragraph 120.7 it has been referred that
while ensuring and protecting the rights of the accused and the
complainant, a preliminary inquiry should be made time bound
and in any case it should not exceed 7 days. The fact of such
delay and the causes of it must be reflected in the General
Diary entry, meaning thereby that reference has been made
under paragraph 120.6 if read together with 120.7, the same
speaks about the action after instituting the F.I.R. by assigning
the reason of delay, if any, in the case diary.
The judgment rendered in the case of Lalita Kumari v.
Government of Uttar Pradesh and Others (Supra) has been
taken into consideration in the judgment rendered in the case
of State of Telangana v. Managipet alias Mangipet
Sarveshwar Reddy (Supra) wherein it has been clarified by
reiterating the observation made in the case of Lalita Kumari
v. Government of Uttar Pradesh and Others (Supra) as
under paragraph 199 to the effect that if an information in
respect of prima facie allegation disclosing a cognizable offence,
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preliminary enquiry is not required to be made.
We have gone across the preliminary enquiry report and
found prima facie therefrom that the allegation is in the nature
of cognizable offence and as such, applying the principle laid
down in the case of Lalita Kumari v. Government of Uttar
Pradesh and Others (Supra) as also in the case of State of
Telangana v. Managipet alias Mangipet Sarveshwar Reddy
(Supra), we are of the view that in a cognizable offence, F.I.R.
can directly be instituted without resorting to the preliminary
enquiry.
Accordingly the issue has been answered.
13. In view of the fact that all the three issues have been
answered, as such, we are of the considered view that the
learned Single Judge while passing the order holding the stage
at which the preliminary enquiry has been assailed, as
premature, the same cannot be faulted with.
14. In that view of the matter, the appeals lack merit and are
accordingly dismissed.
(Dr. Ravi Ranjan, C.J.)
I agree
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Birendra/ A.F.R.
