AJIT SHARMA v. THE STATE OF BIHAR

Mr. Rana Pratap Singh, learned senior counsel appearing in support of the writ application submits that on reading the entire F.I.R. no cognizable offence is disclosed. All that is disclosed is the grievance of the police against the accused persons and the motor vehicle authorities in not sharing money with the police. While dealing with this case some very disturbing facts have been noted by this Court, disturbing enough to refer the matter 2 to the Bihar State Human Rights Commission for enquiry and appropriate action as it may deem fit and proper. The allegation as per First Information Report in substance is that Respondent No. 2 got information that trucks loaded with coal coming from Assam and going to various destination outside Bihar, crossing Bihar, are overloaded. The truck driver in conspiracy with people like the petitioner and officials of the Motor Vehicle Department managed to evade being caught for violating the provisions of the Motor Vehicle Act with regard to overloading. The modus- operandi was that when the alleged overloaded trucks come within the State of Bihar they get in touch with agents like the petitioner who receive money from the truck drivers and ensure that the trucks pass through their territory without being detained for overloading and/or penalizing for overloading by the motor vehicle authority under the said Act. Petitioner has been named in the F.I.R. merely on basis of a visiting card that was found in possession of one of the drivers when they were intercepted within the jurisdiction of Fulwaria P.S. in the District of Begusarai just after they have crossed the District of Naugachhia where petitioner’s petrol pump is situated. On these information, on the evening on 08.11.2008 the two trucks are seized. As per seizure list dated 08.11.2008 drawn up by Respondent 3 No. 2 and on his statement Fulwaria P.S. case No. 145 of 2008 is instituted on 09.11.2008 at 10 am with the aforesaid allegation. The truck drivers were arrested on

08.11.2008 itself but from the records it appears that they were produced in the Court of learned Chief Judicial Magistrate only on 13.11.2008 i.e. after five days of illegal detention. There are affidavits of the truck drivers placed on record in the Court of Chief Judicial Magistrate, Begusarai in this regards. Then on 09.11.2008 the Munshi of petitioner is arrested. He is produced before the Chief Judicial Magistrate, Begusarai on 11.11.2008, not within 24 hours as is usual. The production and remand order is drawn up as if everything was normal but fortunately the Judicial Officer still had some judicial conscious left in him, having signed the order as if everything was normal he appended a note to the order noting that the arrested accused Mohan Chaudhary proceeded by police for remand, drew attention of the Court towards bodyly injuries which he has received at the hands of the police while in custody. He also noted that the said Mohan Chaudhary was arrested on 09.11.2009 in the morning from his house and was beaten up for three days and then being produced. He specifically noted implication of several police officials as disclosed by the arrested person. The learned Chief 4 Judicial Magistrate immediately forwarded Mohan Chaudhary to the Sadar Hospital for treatment and injury report which was received on the same very day within hours from the Sadar Hospital. The receipt of the said injury report is also noted in the order-sheet on the same day which is annexed as Annexure-3/1. A mere look at the injury report shows how brutally the said Mohan Chaudhary had been beaten up and how 3rd degree methods were applied to him and all within 12 to 24 hours while he was in police custody. This part of happening is stated in detail in paragraph No. 13 of the writ petition. Though the said Umeshwari Prasad who is Respondent No. 2 and the S.H.O. of Fulwaria P.S., District- Begusarai has chosen to file a comprehensive counter affidavit giving paragraph wise reply, to this most inconvenient statement and matters of record, he has chosen to keep totally silent. There is no denial of those facts. These are the disturbing aspects of the matter which this Court would like the State Human Rights Commission to take up within its jurisdiction for appropriate action. Now coming to the allegations aforesaid. The Privy Council as far back as in 1945 in the case of Emperor versus Khwaja Nazir Ahmad since reported in AIR(32) 1945 Privy Council 18 at page 22 of the reports have clearly held thus:- 5 “No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation.” This decision has been held to be in authority for the proposition that unless cognizable offence is disclosed, no F.I.R. can be registered and police has no jurisdiction in the matter. This decision has been consistently followed by this Court in the case of Nakul Chandra Banerjee and others versus The State of Bihar since reported in 1970 PLJR 431. It has found approval of Apex Court in several judgments including AIR 1982 Supreme Court 949(State of West Bengal and others versus Swapan Kumar Guha and others) Now coming to the facts of the present case. The allegation is that the truck drivers, petitioner and the motor vehicle authorities are involved in unholy conspiracy to avoid provisions of Motor Vehicle Act. Firstly I must refer to provisions of the Motor Vehicle Act in this regards. Section 113 of the Motor Vehicle Act authorizes the State Government to fix the load that can be carried by a motor vehicle duly registered. Section 114 is important. It authorizes any officer of the Motor Vehicle Department, who has reason to believe that vehicle is overloaded, to stop the vehicle and get it weighted 6 but nowhere authorizes any police Officer to do this. Police has no business in this regards. Then we come to Section 194 of the Motor Vehicle Act. For a contravention of Sections 113 and 114 of the Motor Vehicle Act, the punishment is minimum fine of Rs. 2000/- and additional amount of Rs. 1000/- per ton of excess load. Thus seen two things are apparent. Firstly police has no role to play in the matter and secondly for a contravention of the said provision punishment is only with fine. It is thus non cognizable offence. Therefore police can not assume jurisdiction in the matter of verifying whether vehicles are overloaded or not. They can not stop vehicle. They can not interrogate drivers for all that would be wholly without jurisdiction. It is because of this I feel that they have sprung story of petitioner, the driver of the motor vehicle conspiring to avoid implication of law by collecting illegal money but the basic fact is whether the trucks were overloaded in any manner. Though a counter affidavit has been filed and now it is over one year of investigation the trucks though seized have not been weighed at all. Thus everything is purely speculative because if the police were so sanguine about the allegation then the first thing they should have done was get the trucks weighed because all other allegations being sought to be made are based on the 7 presumption of trucks being overloaded and are plied in violation of Motor Vehicle Act. The whole thing vanishes when we find that till date the trucks have not even been weighted which only establishes that even the informant and the Investigating Officer are all aware that trucks were not overloaded still trucks were stopped unauthorizedly by the police for some other ulterior purposes and a story built up after illegally detaining the drivers and other persons and resorting to 3rd degree methods as noticed above in course police obtained confession to create evidence. No evidence having been found and no offence having been committed. It is well settled in view of the judgment of the Apex Court in the case of The Delhi Development Authority versus Sardari Lal and others since reported in AIR 1975 Supreme Court 495 and in particular paragraph-7 thereof that this Court is competent to interfere in such matters under Article 226 of the Constitution to protect persons from illegal and vexatious proceedings and/or prosecution. In the entire counter affidavit all that has been said is what offence if any has been committed is being investigated and it will be found out in course of investigation. I am afraid that is not the jurisdiction of the Police. Investigation is not a fishing enquiry but an enquiry based on definite information. Truthfulness and correctness 8 is to be ascertained in the investigation. The accused has to be found. It is not to be taken as a tool for discovery whether any offence at all is committed or not. If what is submitted in the counter affidavit is to be accepted, it would lead to disastrous consequence. Any police official can enter into any house and start any investigation into any matter what he likes, to discover whether any person has at any time committed any offence or not. Life and liberty would be at stake. That is not what the law is. At the cost of repetition the law is what has been noted by the Privy Council above. The whole case which the police wanted to build was conspiracy to avoid detection and punishment of a non cognizable offence by getting away with overloaded trucks. No overloading is found even after one years investigation. Under such circumstance where is the question of conspiring to evade law. It is only a malafide ploy to rope in people including the motor vehicle authorities. In that view of the matter, I find that there is no basis for registering the First Information Report and or implicating the petitioner in the case. Police are thus restrained from proceeding further in the matter and the F.I.R. as registered is quashed. The facts as noted above with regard to illegal detention and custodial violence will now be enquired into 9 by the State Human Rights Commission. Let a copy of this order be forwarded to the Bihar State Human Rights Commission immediately for enquiry and or order as it may deem fit and proper in the facts and circumstances as found by it. The writ application is thus allowed. Shageer (Navaniti Prasad Singh, J)