State of Bihar Vs Ashok Kumar Singh .

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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1615 OF 2013

STATE OF BIHAR & ORS. … APPELLANTS

VERSUS

ASHOK KUMAR SINGH & ORS. … RESPONDENTS

J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

This appeal has been preferred by the State of Bihar and

others against the judgment dated 7th May, 2007 passed by the

High Court Judicature at Patna in Cr.W.J.C. No.352 of 2002.

By the impugned judgment the High Court giving reference to

the provisions of Bihar Reorganisation Act, 2000 held that

the impugned FIR instituted on 20th August, 2002 by State of

Bihar, much after the appointed day is not maintainable and

quashed the FIR.

2. The factual matrix of the case is as follows:

The 1st respondent – Ashok Kumar Singh belongs to Indian

Administrative Service. He was an officer for the cadre of

unified Bihar and was posted as the Managing Director of the

Bihar State Financial Corporation (hereinafter referred to as

"BSFC”) (between 12th May, 1994 and 19 June, 1998). On 1st

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June, 1996 complaints were received against the 1st respondent

and some others alleging that as the Managing Director of the

BSFC he and ten other persons including six public servants

floated two NGOs and received illegal gratification by

forcing the BSFC beneficiaries/loanees to deposit money in

the NGOs in return of financial favours shown to them by

waving off outstanding loan recoveries. They were also

alleged of tampering with records. The Vigilance Department,

Government of Bihar instituted an inquiry.

3. The 1st respondent at that stage filed a writ petition

bearing CWJC No.7680 of 1997 in the Patna High Court

challenging the inquiry. The same was disposed of with

certain observations. The observation made by the High Court

having not complied with, a contempt petition bearing

M.J.C.No.1498/1998 was filed by the 1st respondent in the

Patna High Court. It was disposed of with a peremptory order

to dispose of the inquiry within 8 months, subject to grant

of extension.

4. Meanwhile, the unified State of Bihar was bifurcated

into the State of Bihar and the State of Jharkhand through

the Bihar Reorganisation Act, 2000 (hereinafter referred to

as the “Reorganisation Act”). 15th November, 2000 was fixed to

be the appointed day for such bifurcation. The 1st respondent

was allotted/transferred to Jharkhand Cadre. In absence of

any progress in the Vigilance inquiry, the 1st respondent

filed writ petition bearing CWJC No.1573/2001 before the High

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Court of Jharkhand at Ranchi. He sought an order to restrain

the State of Bihar from proceeding with the inquiry against

him and from taking any coercive action against him. He also

sought to quash the notice dated 7th April, 2001 issued by the

Deputy Superintendent of Police, Vigilance (Investigation)

asking him to appear on 24th April, 2001 in the inquiry.

5. The High Court of Jharkhand by order dated 20th April,

2001 refused to interfere with the inquiry and dismissed the

writ petition. The Letters Patent Appeal filed by the 1st

respondent against the order dated 20th April, 2001 was also

dismissed by the Division Bench of the High Court of

Jharkhand by order dated 27th September, 2001.

6. Meanwhile, on the basis of a detailed inquiry, the

Vigilance Investigation Bureau instituted Vigilance P.S. Case

No.7/2002 dated 20th August, 2002 under Section

420/465/466/467/471/477(A)/201/109/120B I.P.C. and under

Section 13(1)(d) read with Section 13(2) of Prevention of

Corruption Act, 1988 against the 1st respondent and ten other

accused persons including six public servants. The FIR was

lodged by the Vigilance Investigation Bureau, Government of

Bihar at Patna.

7. The 1st respondent challenged the aforesaid FIR dated 20th

August, 2002 by filing a writ petition bearing Cr.W.J.C.

No.352 of 2002 before the Patna High Court with a prayer to

quash the FIR. Further prayer was made to direct the

Vigilance Department, Government of Bihar not to investigate

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or to proceed against him. The Vigilance Department filed its

counter affidavit thereto.

8. Later, another Vigilance P.S. Case No.05/2003 dated 31st

March, 2003 under Section 420/467/468/471/109/120(B) I.P.C.

and under Section 13(1)(d) read with Section 13(2) of

Prevention of Corruption Act, 1988 was also registered

against the 1st respondent and four other officers of the BFSC

for giving financial favours to M/s. Luxman Wire Industries,

Digha Ghat, Patna.

9. The writ petition was heard by a learned Single Judge of

the Patna High Court and by the impugned judgment and order

dated 7th May, 2007 the learned Single Judge quashed the FIR

bearing Vigilance P.S. Case No.7/2002 dared 20th August, 2002

lodged against the 1st respondent and restrained the

petitioner-State of Bihar from proceeding with the case.

10. Before the High Court on behalf of the 1st respondent, it

was contended that in view of the fact that he has been

allotted to the IAS Cadre of the Jharkhand State on 15th

November, 2000, i.e. the date on which the Jharkhand State

came into existence, the Vigilance Department of the State of

Bihar ceased to have jurisdiction to investigate the case

against him. Under law the investigation of any vigilance

case against him will stood vested in the State of Jharkhand

after its creation on 15th November, 2000. In that view of the

matter, it was contended on behalf of the 1st respondent that

the lodging of the FIR against him by Vigilance Investigation

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Bureau of the State of Bihar is completely without

jurisdiction and, therefore, it is liable to be quashed.

11. On behalf of the appellant-State of Bihar it was

submitted that since the alleged commission of offences by

the 1st respondent had taken place within the State of Bihar

while the 1st respondent was still serving State of Bihar it

will have jurisdiction to proceed against him and to lodge

FIR. It had been submitted that the subsequent allotment of

cadre of the 1st respondent to the State of Jharkhand will not

make any difference in as much as the offences as alleged

have been committed by him while he was serving in the State

of Bihar. On this ground it had been argued that there was no

merit in the submission of the 1st respondent.

12. Learned Judge referred to the provisions of the Bihar

Reorganisation Act which came into force with effect from 15th

November, 2000. Referring to provisions of the Reorganisation

Act and circulars issued by the Central Government the

learned Single Judge held that in the present case it is

Section 76 of the Reorganisation Act and not Section 89 of

the Reorganisation Act which is applicable and in that case

the Vigilance Department of the State of Bihar has no

jurisdiction to inquire into the matter or to lodge FIR.

13. Before this Court the parties have taken similar pleas

as was taken before the High Court.

14. On perusal of records and on careful consideration of

the rival submissions made on behalf of the parties, we are

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of the view that P.S. Case No.7 of 2002 dated 20th August,

2002 against the 1st respondent was maintainable and learned

Judge of the High Court was wrong in holding that the said

FIR lodged at Patna, Bihar was not maintainable.

15. So far as the provisions of Section 76 and Section 89 of

the Reorganisation Act and the circulars issued by the

Central Government, which were relied upon by the learned

Judge of the High Court is concerned, we are of the opinion

that they are not applicable in the facts and circumstances

of the present case. For coming to such finding it is

desirable to discuss the relevant provisions of the

Reorganisation Act and Circulars issued by Central Government

from time to time.

16. Section 76 of the Reorganisation Act deals with power of

Central Government to give directions to the State Government

which reads as follows:

“Section 76. Power of Central Government to give directions.- The Central Government may give such directions to the State Government of Bihar and the State Government of Jharkhand as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions.”

17. In exercise of power conferred under Section 76 the

Central Government issued a direction dated 28th March, 2002

in which it was provided that if any vigilance inquiry or

investigation is pending against any Officer of All India

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Services it will be completed by the authorities of the State

to which he has been allotted. In the aforesaid circular

dated 28th March, 2002 a reference has been made to Memorandum

No.13013/8/2000-AIS(I) which is an office memorandum issued by

the Government of India under the subject:- Personnel related

issues incident to bifurcation of States. Paragraph 2 of the

said memorandum reads as follows:

“2[a]:- The original service records as well as the CR dossiers of officers of the All India Services should be in the custody of the concerned State of which the individual officer stands allotted. Hence, the service records and CR dossiers of officers allotted to Jharkhand, Chhattisgarh and Uttaranchal should be transferred to these States.

[b] T he custody and conduct of pending disciplinary proceedings/inquiries in respect of IAS officers belonging to the new ‘residual States is to be regulated by the explanation below Rule 7[1][b] of the All India Services [Discipline and Appeal] Rules, 1969 which is as under:-

Explanation – For the purposes of clause [b] of sub rule [1] where the Government of a State is the authority competent to institute disciplinary proceedings against a member of the Service, in the event of a reorganization after such reorganization of the State. The Government on whose cadre he is borne after such reorganization shall be the authority competent to institute disciplinary proceedings and, subject to the provisions of sub-rule [2], to impose on him any penalty specified in rule 6.”

18. By another letter No.1 Misc.8038/2001 Karmik 241/01

clarification has been made regarding the pending proceedings

against the AIS Officers pursuant to bifurcation of the

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States. In the said letter a reference has been made to

letter No.11018/2/2001-AIS[III] dated 10th July, 2001 in which

the following clarifications have been given:-

“[i] The Government of Jharkhand would be the competent authority to complete pending vigilance enquiries against officers who stand allocated to the Jharkhand cadre as has already been clarified in this Department’s OM No.13013/8/2000-AIS[I] dated 20.12.2000 [Annexure-20] [ii] The Government of Jharkhand shall also be the competent authority to take a decision regarding initiation of disciplinary proceedings or any other action based on the final report of any vigilance inquiry which may have been initiated by the Government of Bihar in respect of an officer who now stands allocated to Jharkhand cadre.”

19. On behalf of the State of Bihar it was submitted before

the High Court that the dates of the alleged occurrence were

prior to the creation of the State of Jharkhand and,

therefore, Section 76 of the Reorganisation Act will make no

difference. Moreover, it was contended that the alleged

places of occurrence of the various offences said to have

been committed by the 1st respondent were within the State of

Bihar and, therefore, the Vigilance Department of the

Government of Bihar will not lose the jurisdiction to proceed

against the 1st respondent. In this connection counsel on

behalf of the State of Bihar drew attention of the Court to

Section 89 of the Reorganisation Act which reads as follows:-

“Section 89. Transfer of pending proceedings – [1] Every proceeding pending immediately before the appointed day before a court [other than the High Court], tribunal, authority or officer in any area which on that day falls within the State of Bihar

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shall, if it is a proceeding relating exclusively to the territory, which as from that day is the territory of Jharkhand State, stand transferred to the corresponding court, tribunal, authority or officer of that State.

xxx xxx xxx xxx”

20. Learned Judge having noticed the aforesaid provisions

and circulars issued by the Central Government observed as

follows:

“As stated above with the creation of State of Jharkhand the services of the petitioner stood transferred to this State with effect from 15.11.2000. It is clear that on this date the vigilance inquiry with respect to the Vigilance P.S. Case No.7 of 2002 was pending against the petitioner whose F.I.R. [Annexure 25] is dated 20.8.2002 filed against the petitioner and others. This shows that till then the investigation against the petitioner was pending and the F.I.R. in this regard was lodged on 20.08.2002 much after the creation of the State of Jharkhand. The important question that will arise in this connection would be whether any investigation by the State of Bihar would have been carried out against an officer of IAS cadre whose services were transferred/allotted to the State of Jharkhand with effect from 15.11.2000 culminating in lodging of the F.I.R. [Annexure – 25] on 20.08.2007 ? Form what has been noticed above it is clear that the law does not permit the Cabinet [Vigilance Department] Government of Bihar to lodge the F.I.R. against the petitioner on 20.08.2002 when he was already allotted to the State of Jharkhand with effect from 15.11.2000 and was born on the I.A.S. cadre of the State. Obviously the answer to this question would be in negative. From this it would appear that the F.I.R. lodged against the petitioner in Vigilance P.S. Case No.7 of 2002 [Annexure -25] was completely without jurisdiction in view of the letters and the different orders issued in this regard as noticed above.”

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21. Admittedly, the first respondent had not challenged the

vigilance inquiry in the writ petition in question before the

High Court of Judicature at Patna. What was challenged was

the FIR lodged against the 1st respondent as Vigilance P.S.

Case No.7 of 2002 dated 20th August, 2002 under Section

420/465/466/467/471/477(A)/201/109/120B I.P.C. and under

Section 13(1(d) read with Section 13(2) of Prevention of

Corruption Act, 1988 qua the 1st respondent.

22. The 1st respondent challenged the vigilance inquiry in

the earlier writ petition bearing Cr. W.J.C. No.7680/1997 in

the Patna High Court. That was disposed of on 25th November,

1997. There was no occasion for the 1st respondent to

challenge the said vigilance inquiry by filing another writ

petition.

23. Part VIII of the Reorganisation Act relates to

“provisions as to the services”. Under Section 76 the Central

Government has been empowered to give such directions to the

State Government of Bihar and State Government of Jharkhand

as may appear to it to be necessary for the purpose of giving

effect to the provisions of Part VIII and the State

Governments are made bound to comply with such directions. By

the clarifications issued from time to time, as referred to

above, State Government on whose cadre the accused officers

were posted after bifurcation was directed to institute

disciplinary proceedings against such officers. By letter

dated 10th July, 2001 it was clarified by the Central

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Government that the State of Jharkhand would be the competent

authority to complete pending vigilance inquires against

officers who stand allocated to the Jharkhand cadre as has

already been clarified in this Department’s Office Memorandum

dated 20th December, 2000.

24. From the aforesaid circulars issued from time to time it

is clear that the circulars aforesaid related to the

Departmental Inquiry and Vigilance Inquiry and none of the

circulars relate to lodging of FIR against an officer of

either State at one or other place. Section 89 of the

Reorganisation Act relates to pending proceedings. Lodging of

FIR after reorganization of the States (15th November, 2000)

herein has nothing to do with pending proceedings, therefore,

in the matter of challenge to an FIR (quashing of FIR),

neither provisions of Section 76 or Section 89 of the

Reorganisation Act nor circulars issued by the Central

Government, as noticed by the High Court and discussed above

are applicable. For the said reason we hold that the High

Court was wrong in referring to the provisions of the

Reorganisation Act and circulars issued by the Central

Government for holding the FIR to be not maintainable in the

State of Bihar.

25. The allegations are related to the period 12th May, 1994

to 1st June, 1996 when the 1st respondent was posted at Patna,

Bihar as Managing Director of the BSFC, therefore, on behalf

of the appellant it was rightly submitted that since the

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alleged commission of offences by the 1st respondent has taken

place in State of Bihar while he was serving the State, it

will have jurisdiction to proceed against the 1st respondent

and to lodge FIR at Patna.

26. Learned counsel for the 1st respondent also raised the

question of legality of the FIR, in view of the order passed

by the Patna High Court and Jharkhand High Court from time to

time.

27. Under Section 76, the Central Government is empowered to

give such directions to the State Government of Bihar and

State Government Jharkhand, for the purpose of giving effect

to the provisions of the Bihar Reorganisation Act, the State

Government is bound to comply with such directions. By letter

No.1 Misc. 8038/2001 Karmik 241/01 issued by the Central

Government clarification has been made regarding the pending

proceedings against the AIS officers pursuant to bifurcation

of States. In the said letter a reference has been made to

letter No.11018/2/2001-AIS[III] dated 10th July, 2001 in which

it was clarified by the Central Government that the

Government of Jharkhand would be the competent authority to

complete pending vigilance inquiries against the officers who

stand allocated to the Jharkhand cadre as has already

clarified by the Central Government OM NO.13013/8/2000-AIS[I]

dated 20th December, 2000. The Government of Jharkhand shall

also be the competent authority to take a decision regarding

initiation of disciplinary proceedings or any other action

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based on the final report for any vigilance inquiry which may

have been initiated by the Government of Bihar in respect of

an officer who now stands allocated to Jharkhand cadre.

28. In view of the aforesaid circular dated 20th December,

2000 and by letter dated 10th July, 2001 read with Section 76

of the Reorganisation Act, vigilance inquiry which was

initiated against the 1st respondent by the Vigilance

Department of the State of Bihar prior to reorganisation of

the State i.e. 15th November, 2000, should have been

transferred to the Vigilance Department of the State of

Jharkhand, as the 1st respondent was allocated cadre of

Jharkhand and was posted under the Government of Jharkhand.

Therefore, it is rightly contended on behalf of the 1st

respondent that in view of the fact that he has been

allocated to the IAS cadre of the Jharkhand State since 15th

November, 2000, i.e., the date on which Jharkhand State came

into existence, the Vigilance Department, Government of Bihar

ceases to have a jurisdiction to investigate against the 1st

respondent.

29. The 1st respondent had challenged the inquiry before the

Patna High Court by filing a writ petition bearing C.W.J.C.

No.7680 of 1997. The said case was disposed of with certain

observations. Having not complied with, a contempt petition

bearing M.J.C.No.1498 of 1998 was filed by the 1st respondent

in the Patna High Court. It was also disposed of on 29th

November, 1999 with a peremptory order to dispose of the

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inquiry within 8 months, subject to grant of extension. Order

dated 29th November, 1999 is quoted hereunder:

“In pursuance of Court’s order, Mr. Arvind Prasad, Secretary, Personnel and Administrative Reforms Department and Mr. N.K. Agrawal, Vigilance Commissioner are present in the Court with relevant file.

It appears that the Vigilance Department submitted report in favour of petitioner wherein the Chief Secretary ordered to obtain opinion from the Vigilance Commissioner; petitioner and thereafter from Law Department. After receiving the opinion of the Vigilance Commissioner; reply of petitioner, the matter was forwarded to the Law Department, which recommended to remand the matter to the Vigilance Department for further inquiry on certain facts. In view of such remand, the Vigilance Department is holding further inquiry in respect of allegations as were made against the petitioner.

The Vigilance Commissioner states that the further inquiry will be concluded within six months and report will be submitted to the Government within the aforesaid period.

On behalf of the State, the Secretary, Personnel and Administrative Reforms Department states that final decision would be taken by the State by Vigilance Department within two months thereof.

In the facts and circumstances, instead of processing against the opposite parties, I allow them further time to conclude the vigilance inquiry and to pass final order thereof within eight months from today, on failure the said proceeding will stand quashed on the ground of non-compliance of the Court’s order.

However, it will be open to the appropriate authority to ask for more time, on genuine ground. The appearance of Mr. Arvind Prasad, Secretary, Personnel and Administrative Reforms Department and Mr. N.K. Agrawal, Vigilance Commissioner are dispensed with.

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The M.J.C. application stands disposed of.”

30. Admittedly, vigilance inquiry against the 1st respondent

was not completed within 8 months as directed by the High

Court. Having not completed the inquiry within the stipulated

time, as per order of the High Court, the said proceedings

stood quashed on the ground of non-compliance of Court’s

order.

31. The impugned FIR was lodged against the 1st respondent

based on the Vigilance Inquiry which stood quashed.

Therefore, in view of finding recorded above, we hold that

FIR itself based on Vigilance Inquiry made by State of Bihar

was not maintainable. For the reasons aforesaid, we are not

inclined to interfere with the impugned order passed by the

Patna High Court.

32. The appeal is accordingly dismissed.

……………………………………………………………………………J. (SUDHANSU JYOTI MUKHOPADHAYA)

……………………………………………………………………………J. (V. GOPALA GOWDA)

NEW DELHI, JULY 9, 2014.

STATE OF BIHAR Vs ASHOK KUMAR SINGH .

STATE OF BIHAR Vs ASHOK KUMAR SINGH .