Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.611 of 2008 ====================================================== Mahendra Rai, Son of Late Shiv Narayan Rai, Assistant Engineer, Hajipur Municipality, presently known as Nagar Parishad, District- Vaishali. .... .... Petitioner/s Versus 1. The State of Bihar. 2. The Principal Secretary, Nagar Vikash and Awas Department, Govt. of Bihar, Patna. 3. The Joint Secretary, Nagar Vikash and Awas Department, Govt. of Bihar, Patna. 4. The Deputy Secretary, Nagar Vikash and Awas Department, Govt. of Bihar, Patna. 5. The District Magistrate, Vaishali at Hajipur. 6. The Superintendent of Police, Vaishali at Hajipur. 7. The Dy. S.P., Vaishali at Hajipur. 8. The Officer-In-Charge, of Town, P.S. Hajipur. 9. The Executive Officer, Nagar Parishad, Hajipur. ====================================================== CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA .... .... Respondent/s C.A.V. ORDER 12 20-09-2013
Facts
The petitioner has sought quashing of First Information Report bearing Hajipur Town P.S. Case No. 279 of 2008 lodged on 21st May, 2008 for the offence under Sections 7, 8 and 13 of the Prevention of Corruption Act, 1988. 2. The relevant fact in brief is that one Mahendra Prasad Mathur lodged a complaint in the year 1996 before Lokayukta against the petitioner and other officials. The Patna High Court CR. WJC No.611 of 2008 (12) dt.20-09-2013 2/8 Lokayukta issued notice to show cause against the persons complained, who filed their respective show causes independently, thereafter, inquiry was conducted by the agencies under the control i.e. Deputy Superintendent of Vigilance (Lokayukta), who submitted his report. The parties were finally heard on 11th June, 2003, ultimately, the Lokayukta through letter dated 26th September, 2013 addressed to Chairman-cum-Executive Officer, Hajipur Municipal Corporation, recommended for taking due actions also against the petitioner. 3. The petitioner thereafter sought review of such recommendation by the Lokayukta, but it appears turned down on 09th January, 2004, but action taken gave rise to C.W.J.C. No. 6643 of 2004 preferred by the petitioner which was disposed of on 14th March, 2005 with a direction to the Executive Officer, Nagar Parishad Hajipur to consider as to whether the act is applicable to Nagar Parishad employees and also the representation filed by the petitioner and disposed of the same by a reasoned order in accordance with law within a period of two months. In pursuance of the above order, the authority concerned disposed of the representation of the petitioner by a detailed reasoned order decide the issue as Patna High Court CR. WJC No.611 of 2008 (12) dt.20-09-2013 3/8 directed. 4. The petitioner preferred Civil Writ Jurisdiction Case No. 3350 of 2007 seeking quashing of the order of the authority holding Lokayukta was empowered to issue such recommendation, but the above writ application was never pursued in spite of its earlier restoration after dismissal for non- prosecution, but finally again it has been dismissed on same count vide order dated 13th December, 2012. 5. During the pendency of the aforesaid writ application, directions were given by the authorities to lodged a vigilance case against the petitioner, giving rise to CR. WJC No. 415 of 2008 at his instance seeking quashing of such order and direction, on basis whereof, Hajipur Town P.S. Case No. 279 of 2008 has been lodged, but without waiting for any order in writ application. The petitioner has preferred present writ application, but in spite of pleading, it was never placed during the course of argument. However, on going through the materials available, it is noticed that CR. WJC No. 415 of 2008 has been dismissed as withdrawn on 10th February, 2009. 6. As submitted during hearing and also as evident from the counter affidavit, the investigation of Hajipur Town P.S. Case No. 279 of 2008 was conducted by Deputy Patna High Court CR. WJC No.611 of 2008 (12) dt.20-09-2013 4/8 Superintendent of Police, who is empowered under Section 17 of the Prevention of Corruption Act, which reads as such:- “17. Persons authorised to investigate.– Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,– (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, Shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may Patna High Court CR. WJC No.611 of 2008 (12) dt.20-09-2013 5/8 be, or make arrest therefor without a warrant: Provided further that an offence referred to in clause (e) of sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.” And on conclusion of the investigation charge-sheet has been submitted against the petitioner before Chief Judicial Magistrate, Vaishali at Hajipur. 7. It was contended by learned counsel for the petitioner that at the instance of private individual no such complaint/case would have been lodged and neither the normal police station is competent to institute the case nor all courts are empowered to take cognizance and proceed with and on this ground alone the First Information Report needs to be
Legal Reasoning
quashed. Reliance is placed upon a decision of this Court in a case of “Manoj Kumar Beura vs. State of Bihar and Others” reported in “2009(3) PLJR 356”. 8. In the case aforesaid, the matter was quite different as private complaint was lodged before Chief Judicial Magistrate, who under exercise of powers under Section 156 sub-clause 3 of the Code of Criminal Procedure directed the concerned police station to institute the case. Subsequently, Patna High Court CR. WJC No.611 of 2008 (12) dt.20-09-2013 6/8 the matter was investigated by Deputy Superintendent of Police and on requisition of the Investigating Officer warrant of arrest was issued. Sometime, thereafter, the Chief Judicial Magistrate got the case transferred to the Special Judge competent to try the case with due permission of the District & Sessions Judge and this act appears approved by this Court. No doubt, entertaining the complaint and forwarding the same the police under Section 156 sub-clause 3 of the Code of Criminal Procedure issued warrant of arrest, on requisition, police was found without jurisdiction and quashed. 9. Whereas in the instant case, the matter is pending for seventeen odds years, wherein, initially enquiry was conducted and matter was thrashed before Lokayukta, Bihar, who after due enquiries and hearing recommended for action against the petitioner in accordance with law, which was also subjected to several writ applications, which also, as stated, never persuaded, but obtaining privilege of bail permitted the investigation to continue and concluded by competent authority followed by submission of charge-sheet. The instant application also appears delayed mainly due to latches on the part of the petitioner. 10. The law is very much clear that criminal Patna High Court CR. WJC No.611 of 2008 (12) dt.20-09-2013 7/8 actions against anyone may be brought into motion by any individual having knowledge of the wrong being committed. Moreover, in the instant case on such information furnished by individual the matter was thrashed before the Lokayukta. In view of the facts and circumstances stated above, it is needless to examine at this stage as to whether the Lokayukta was competent enough to get the matter with respect to the petitioner examined, specially, when in spite of getting the matter thoroughly inquired into, he simply recommended the competent authority to take actions in accordance with law, only, thereafter, the police was requested to institute the case. Consequently, Hajipur Town P.S. Case No. 279 of 2008 was registered and intimation was given by the police to the court of Chief Judicial Magistrate, Vaishali at Hajipur, in whose court, ultimately, charge-sheet appears to have been filed by the police after concluding the investigation. 11. True it is, the Chief Judicial Magistrate is not competent to proceed with the case rather under Sections 3, 4 and 5 of the Prevention of Corruption Act. It is the Special Judge duly appointed for the purpose is to proceed with the case in accordance with law. 12. Hence, it is now simply required, the entire Patna High Court CR. WJC No.611 of 2008 (12) dt.20-09-2013 8/8 file of Hajipur Town P.S. Case No. 279 of 2008 be taken of from the court of Chief Judicial Magistrate, Vaishali at Hajipur and the same shall be transferred to the court of Special Judge at Muzaffarpur duly constituted under the Prevention of Corruption Act and having jurisdiction to entertain and proceed with the case, who shall examine the matter and passed appropriate as required under law. 13. With the above observation, this writ
Decision
application is hereby disposed of. Praveen-II/- (Akhilesh Chandra, J)