Jharkhand High Court
The State Of Jharkhand Through The ... vs The Central Bureau Of Investigation on 19 January, 2024
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No.1229 of 2023
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The State of Jharkhand through the Department of Home, Jail and Disaster
Management, Govt. of Jharkhand, Ranchi duly represented by Prabhat
Kumar, Inspector General, Provisions, Police Head Quarters, Dhurwa,
Ranchi. .... .... Petitioner
Versus
1. The Central Bureau of Investigation, represented by its Director,
Officiating from office at Plot No.5-B, CGO Complex, P.O. & P.S.-
Lodhi Road, New Delhi.
2. Bijay Hansda .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : Mr. Rajiv Ranjan, A.G.
Mr. Kapil Sibbal, Sr. Adv.
Mr. Manoj Kumar, G.A.-III
Mr. Ashok Kr. Yadav, Adv.
For the Respondents : Mr. Anil Kumar, A.S.G.I.
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th
04/Dated: 19 January, 2024
1. The instant writ application has been filed for following reliefs:-
"(1) Issue writ of certiorari or any other appropriate order, writ
direction in the nature of writ of certiorari for quashing of the
FIR being RC case No. 0242023S0011 of CBI, ACB, Ranchi
dated 20.11.2023 purportedly registered on the basis of the order
dated 18.08.2023 of Hon'ble High Court of Jharkhand passed in
WP(Cr.) No. 665/2022 in as much as the FIR registered by CBI
is in clear violation of Section 6 of Delhi Special police
Establishment Act, 1946 as no consent from the State Govt has
been obtained before lodging of the FIR and proceeding for the
investigation in the case by the respondents.
(ii) Issue a writ of declaration or any other appropriate writ,
order or direction in the nature of writ of declaration, that the
power of the respondent so far as directly in violation of S. 6
therein and violative of basic structure of federalism and
separation of powers, and therefore such inquiry, investigation
etc. by the respondent can be carried out only at the request of
the State agencies/State Government or by or under the
directions of the Hon'ble Constitutional Court.
(iii) Issue an order of interim stay of further investigation in
connection with FIR being RC case No. 0242023S0011 of CBI,
ACB, Ranchi registered dated 18.08.2023 passed in WP(Cr.) No.
665/2022.
(iv) Pass such other and further order or reliefs as this Hon'ble
Court may deem fit and proper in the facts and circumstances of
the case."
2. It has been submitted by the learned senior counsel for the petitioner
that earlier a case being Sahebganj SC/ST P.S. Case No.06 2022 dated
01.12.2022 for the offence under Sections 379, 323, 500, 504, 506, 120-B &
34 of the Indian Penal Code, under Section 27 of the Arms Act, under Rules
04/54 of the J.M.M.C. Rules, 2004 and under Section 3(1)(s) of the S.C./S.T.
(PoA) Act, has been lodged by Bijay Hansda. The said FIR has been
instituted on the basis of complaint petition. A writ petition being W.P.(Cr.)
No.665 of 2022 (Annexure-3) has been filed to hand over the matter to the
Central Bureau of Investigation.
In the meantime, an interlocutory application being I.A. No.7438 of
2023 has been filed for withdrawal of the same criminal writ application
being W.P.(Cr.) No.665 of 2022 but the prayer made in the said
interlocutory application has been rejected vide order dated 17.08.2023. The
court had asked the CBI vide order dated 18.08.2023 to make a preliminary
enquiry specially to know the allegation that the complainant is being
pressurised. The relevant portions of the order dated 18.08.2023 passed in
W.P.(Cr.) No.665 of 2022, are quoted hereinbelow:-
"30. In view of the above facts discussed hereinabove, the
Court comes to the conclusion that it would be sufficiently
served if the Director, Central Bureau of Investigation (C.B.I.) is
directed to initiate a preliminary enquiry into the conduct of the
accused persons including this petitioner as he has sought to
withdraw the writ petition on Vakalatnama filed by a new
Advocate by way of obtaining N.O.C. and in view of that, the
prayer made by the petitioner with regard to the enquiry through
the Registrar General will also be justified. Such preliminary
enquiry shall be conducted in accordance with law and will be
concluded as early as possible within one month from the date of
receipt of a copy of this order.
31. The petitioner shall be protected by the Sahibganj police,
as his life is under threat.
32. This Court hopes and trust that the officers appointed for
the purpose of conducting preliminary enquiry shall receive due
consideration from individual agencies who are approached by
the C.B.I including the Enforcement Directorate (E.D). Once the
preliminary enquiry is completed and report to that effect is
submitted, the Director, C.B.I shall be at liberty to choose further
course of action in accordance with law. If the Director, C.B.I
comes to the conclusion that there is no reason to proceed further
in the matter, he may pass appropriate order to that effect.
33. In view of the above facts and the reasons and analysis,
W.P.(Cr.) No.665 of 2022 is allowed in the above terms and
stands disposed of.
34. I.A. if any pending shall stand disposed of.
35. Mr. Anil Kumar, the learned A.S.G.I. appearing on
behalf of the Enforcement Directorate and he also represents the
C.B.I. and he has requested to communicate this order to the
Director, C.B.I.
36. Consequently, this petition is disposed of."
3. It has been further submitted by the learned senior counsel that after
conducting preliminary enquiry the CBI has approached this Court by filing
Cr.M.P. No.3378 of 2023 (Annexure-5). The said Cr.M.P. had been
dismissed vide order dated 03.11.2023. The said order reads as under:-
"This petition has been filed for modification of the order dated
18.08.2023, passed in W.P.(Cr.) No. 665 of 2022, in connection
with SC/ST Sahibganj P.S. Case No. 06 of 2022, pending in the
court of learned Additional Sessions Judge-I, Sahibganj.
2. By the order dated 18.08.2023, W.P.(Cr.) No. 665 of
2022 was disposed of by way of direction at para-32 of the said
judgment, which reads as under:-
"32. This Court hopes and trust that the officers
appointed for the purpose of conducting
preliminary enquiry shall receive due
consideration from individual agencies who are
approached by the C.B.I including the
Enforcement Directorate (E.D). Once the
preliminary enquiry is completed and report to
that effect is submitted, the Director, C.B.I shall
be at liberty to choose further course of action in
accordance with law. If the Director, C.B.I
comes to the conclusion that there is no reason
to proceed further in the matter, he may pass
appropriate order to that effect."
3. Mr. Anil Kumar, learned A.S.G.I. appearing for the
petitioner-CBI submits that there is no direction of registration of
the FIR after the preliminary inquiry and for taking over the
investigation in view of that the modification of the aforesaid
order is required.
4. Mr. Rajiv Ranjan, learned Advocate General appearing
for the State submits that once the criminal case is disposed of,
the court is ceased with of passing any order in view of Section
362 of the Cr.P.C. He submits that the order is already there and
there is no need of modifying the same.
5. In view of the above direction, which is quoted
hereinabove, it appears that this petition is misconceived one.
Accordingly, this petition is dismissed."
Thereafter, the First Information Report being FIR
No.RC0242023S0011 of 2023 dated 20.11.2023 has been lodged by the CBI
under Sections 120-B, 379, 323, 500, 504, 506 read with Section 34 IPC,
Section 27 of the Arms Act, Section 3(1)(s) of the S.C./S.T. (PoA) Act and
under Rules 04/54 of the J.M.M.C. Rules, 2004.
4. Further, the learned senior counsel appearing on behalf of the State of
Jharkhand has assailed the said institution of FIR by making plea that it is
wholly without jurisdiction as the CBI can enter into the State's subjects
only on the consent given by the State Government or an authorisation by
the constitutional court, not otherwise. Further, it has been argued that the
court had simply asked for enquiry on some allegation. The FIR in question
was never handed over to the CBI for investigation.
5. It has further been argued that the institution of FIR is wholly without
jurisdiction. Even otherwise, it is sort of private dispute between the parties
and there is allegation of harassment to the member of Scheduled Caste and
Scheduled Tribes. Further, the general consent given to the CBI has already
been withdrawn by the State vide order dated 05th November, 2020. Thus,
neither there is consent of the State Government nor there is any
authorisation by the constitutional court. The only issue involved in the
present writ application is, "whether the CBI has been authorised by the
constitutional court to take over the investigation as initiated by the FIR
being SC/ST P.S. Case No.06 of 2022 dated 01.12.2022 or not." On above
basis, prayer for interim protection has been made in the form of staying the
investigation itself.
6. Learned counsel for the CBI has opposed the prayer made by the
learned senior counsel for the petitioner and it has been submitted that the
court has clearly authorised the CBI to conduct a preliminary enquiry and
thereafter it has been directed to place the report before the Director, CBI
and the Director, CBI has been given a liberty to choose further course of
action in accordance with law.
7. Further, the objection has been raised by the learned counsel for the
CBI that the State Government has no authority to file the present writ
application as the State Government is not affected and this has been replied
by the learned senior counsel for the State/Petitioner stating that it is a
subject matter of the State which is being usurped by the CBI and it is
otherwise not permissible in law. Thus, the State is the affected person.
8. As jointly prayed for, put up this case on 09.02.2024.
9. Till further order, the CBI will not proceed with the investigation.
(Rajesh Kumar, J.)
Amar/-
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