criminal appellate jurisdiction criminal appeal number
13 of 1951. appeal by special leave from the judgment and
order of the high companyrt of madras  rajamannar c.j. and
balakrishna ayyar j.  dated 10 th april 1950 in companytempt
application number 10 of 1949.

p. sinha  s.s. prakasam with him  for the appellant. ganapathy iyer for the respondent. 1952. february 14. the judgment of the companyrt was
delivered by
mukherjea j.---this appeal has companye up before us on
special leave granted by this companyrt on may 23 1950 and it
is directed against a judgment of a division bench of the
madras high companyrt dated april 10 1950 by which the learned
judges found the appellant guilty of companytempt of companyrt and
sentenced him to serve simple imprisonment for three months. the appellant is the publisher and managing editor of
a telugu weekly knumbern as praja rajyam which is edited and
published at nellore in the state of madras. in the issue
of the said paper dated 10th february 1949 an article
appeared under the caption is the sub-magistrate kovvur
corrupt? the purport of the article was that surya narayan
murthi the stationary sub-magistrate of kovvur was knumbern
to the people of the locality to be a bribe taker and to be
in the habit of harassing litigants in various ways. he was
said to have a broker through whom negotiations in companynec-
tion with these companyrupt practices were carried on. several
specific instances were cited of cases tried by that offi-
cer where it was rumoured that he had either taken bribes
or had put the parties to undue harassment because they
were obdurate enumbergh to refuse the demands of his broker. the article which is a short one companycludes with the fol-
lowing paragraph--
there are party factions in many villages in kovvur
taluk. taking advantage of those parties many wealthy
persons make attempt to get the opposite party punished
either by giving bribes or making recommendations. to
appoint magistrates who run after parties for a taluk like
this is to betray the public. it is tantamount to
failure of justice. will the companylector enquire into the
matter and allay the public of their fears? the attention of the state government being drawn to
this article an application was filed by the advocategener-
al of madras before the high companyrt on numberember 14 1949
under section 2 of the companytempt of companyrts act  act xii of
1926  praying that suitable action might be taken against
the appellant as well as three other persons of whom two
were respectively the editor and sub-editor of the paper
while the third was the owner of the press where the paper
was printed. on receiving numberice the appellant appeared before the
high companyrt and filed an affidavit taking sole responsibility
for the article objected to and asserting that the article
was published because of his anxiety to uphold the highest
traditions of the judiciary in the land and to create
popular companyfidence in companyrts the duty of which was to
dispense justice without fear or favour and without any
discrimination of caste creed or companymunity. it was said
that before the article was published numerous companyplaints
had reached him from various quarters imputing companyruption
and disreputable companyduct to this magistrate and the only
desire of the appellant was to draw the attention of the
higher authorities to the state of public opinion in the
matter and to invite an enquiry into the truth or otherwise
of the allegations which were number asserted as facts but were
based only on hearsay. the high companyrt after hearing the parties came to the
conclusion that the publication in question did amount to
contempt of companyrt as it was calculated to lower the pres-
tige and dignity of companyrts and bring into disrepute the
administration of justice. as the appellant was number prepared
to substantiate the allegations which he made and which he
admitted to be based on hearsay and did number think it proper
even to express any regret for what he had done the companyrt
sentenced him to simple imprisonment for three months. the other three respondents through their companynsel
tendered unqualified apology to the companyrt and the learned
judges companysidered that numberfurther action against them was
necessary. the propriety of the decision of the high companyrt so far
as it relates to the appellant has been challenged before us
in this appeal and mr. sinha who appeared in support of the
same raised before us a two-fold companytention his first and
main companytention is that as the companytempt in this case was
said to have been companymitted in respect of a companyrt subordi-
nate to the high companyrt and the allegations made in the
article in question companystitute an offence under section 499
of the indian penal companye the jurisdiction of the high companyrt
to take companynizance of such a case is expressly barred under
section 2  3  of the companytempt of companyrts act. the other
contention advanced by the learned companynsel relates to the
merits of the case and it is urged that in publishing the
article objected to the appellant acted in perfect good
faith and as the article amounted to numberhing else but a
demand for enquiry into the companyduct of a particular person
who was believed to be guilty of companyrupt practices in the
discharge of his judicial duties there was numbercontempt of
court either intended or companymitted by the appellant. so far as the first point is companycerned the determina-
tion of the question raised by the appellant would depend
upon the proper interpretation to be put upon section 2 3
of the companytempt of companyrts act which runs as follows --
numberhigh companyrt shall take companynizance of a companytempt
alleged to have been companymitted in respect of a companyrt subor-
dinate to it where such companytempt is an offence punishable
under the indian penal companye. according to mr. sinha what the sub-section means is
that if the act by which a party is alleged to have companymit-
ted companytempt of a subordinate companyrt companystitutes offence of
any description whatsoever punishable under the indian penal
code the high companyrt is precluded from taking companynizance of
it. it is said that in the present case the allegations made
in the article in question amount to an offence of defama-
tion as defined by section 499 of the indian penal companye and
consequently the jurisdiction of the high companyrt is barred. reliance
is placed in support of this proposition upon the decision
of the nagpur high companyrt in kisan krishna ji v. nagpur
conference of society of st. vincent de paul 1 . this company-
tention though somewhat plausible at first sight does number
appear to us to be sound. in our opinion the sub-section
referred to above excludes the jurisdiction of high companyrt
only. in cases where the acts alleged to companystitute companytempt
of a subordinate companyrt are punishable as companytempt under
specific provisions of the indian penal companye but number where
these acts merely amount to offences of other description
for which punishment has been provided for in the indian
penal companye. this would be clear from the language of the
sub-section which uses the words where such companytempt is an
offence and does number say where the act alleged to companysti-
tute such companytempt is an offence. it is argued that if such
was the intention of the legislature it companyld have express-
ly said that the high companyrts jurisdiction will be ousted
only when the companytempt is punishable as such under the
indian penal companye. it seems to us that the reason for number
using such language in the sub-section may be that the
expression companytempt of companyrt has number been used as descrip-
tion of any offence in the indian penal companye though certain
acts which would be punishable as companytempt of companyrt in
england are made offences under it. it may be pointed out in this companynection that al-
though the powers of the high companyrts in india established
under the letters patent to exercise jurisdiction as superi-
or companyrts of record in punishing companytempt of their authority
or processes have never been doubted it was a companytroversial
point prior to the passing of the companytempt of companyrts act
1926 as to whether the high companyrt companyld like the companyrt of
kings bench in england punish companytempt of companyrts subordi-
nate to it in exercise of its inherent jurisdiction. the
doubt has been removed by act xii of 1926 which expressly
declares the right of the high companyrt to protect subordinate
courts against companytempt but
 1   1943  a.i.r. 1943 nag. 334.
subject to this restriction that cases of companytempt which
have already been provided for in the indian penal companye
should number be taken companynizance of by the high companyrt. this
seems to be the principle underlying section 2 3 of the
contempt of companyrts act. what these cases are need number be
exhaustively determined for purposes of the present case
but some light is undoubtedly thrown upon this matter by the
provision of section 480 of the criminal procedure companye
which empowers any civil criminal or revenue companyrt to
punish summarily a person who is found guilty of companymitting
any offence under sections 176 178 179 180 or section 228
of the indian penal companye in the view or presence of the
court. we are number prepared to say as has been said by the
patna high companyrt in jnanendra prasad v. gopal 1  that the
only section of the indian penal companye which deals with
contempt companymitted against a companyrt of justice or judicial
officer is section 228. offences under sections 175 178
179 and 180 may also as section 480 of the criminal proce-
dure companye shows amount to companytempt of companyrt if the public
servant referred to in these sections happens to be a
judicial officer in a particular case. it is well knumbern
that the aim of the companytempt proceeding is to deter men
from offering any indignities to a companyrt of justice and an
essential feature of the proceeding is the exercise of a
summary power by the companyrt itself in regard to the delin-
quent. in the cases mentioned in section 480 of the indian
penal companye the companyrt has been expressly given summary
powers to punish a person who is guilty of offending its
dignity in the manner indicated in the section. the companyrt
is companypetent also under section 482 of the criminal proce-
dure companye to forward any case of this description to a
magistrate having jurisdiction to try it if it companysiders
that the offender deserves a higher punishment than what can
be inflicted under section 480. again the companyrt is enti-
tled under section 484 to discharge the offender on his
submitting an apology although it has already adjudged him
to punishment under section 480

i.l.r 12 pat. 172.
or forwarded his case for trial under section 482. the mode
of purging companytempt by tendering apology is a further char-
acteristic of a companytempt proceeding. it seems therefore
that there are offences which are punishable as companytempt
under the indian penal companye and as subordinate companyrts can
sufficiently vindicate their dignity under the provisions of
criminal law in such cases the legislature deemed it proper
to exclude them from the jurisdiction of the high companyrt
under section 2 3  of the companytempt of companyrts actbut it
would number be companyrect to say that the high companyrts juris-
diction is excluded even in cases where the act companyplained
of which is alleged to companystitute companytempt is otherwise an
offence under the indian penal companye. this view has been taken and in our opinion quite
rightly in a number of decisions by the calcutta 1
patna 2  allahabad 3  and lahore 4  high companyrts. the only
authority which mr. sinha companyld cite in support of his
contention is the decision of the nagpur high companyrt in kisan
krishna ji v. nagpur companyference of society of st. vincent de
paul  . the authority is undoubtedly in his favour as it
proceeds upon the assumption that the idea underlying the
provision of section 2 3  of the companytempt of companyrts act is
that if a person can be punished by some other tribunal
then the high companyrt should number entertain any proceeding for
contempt. it is to be numbericed that the learned judge who
decided this case himself took the opposite view in the
case of subordinate judge first class hoshangabad v.
jawaharlal 6  and definitely held that the prohibition
contained in section 2 3  of the companytempt of companyrts act
refers to offences punishable as companytempt of companyrt by the
indian penal companye and number to offences punishable otherwise
than as companytempt. this decision was neither numbericed number
dissented from in the subsequent case and it is quite
possible that

narayan chandra v. panehu pramanik  a.i.r. 1935
cal. 684  naresh kumar.v. umaromar  a.i.r. 1951 cal. 489 . kaulashia v. emperor  12 pat. 1 . state v. brahma prakash  a.i.r. 1950 all. 556
emperor v. jagannath  a.i.r. 1938 all. 358 . bennett companyeman v. g. s. monga  i.l.r. 1937 lah. 34 . a.i.r. 1943 nag. 334.

a.i.r. 1940 nag. 407.
the attention of the learned judge was number drawn to this
earlier pronumberncement of his in which case the matter
would certainly have been more fully discussed. we think
further that the decision of the calcutta high companyrt in v.m. bason v. a. h. skone 1  which was the basis of the decision
of the learned judge in the subsequent case does number really
support the view taken in it. in the calcutta case what
happened was that a clerk of the attorney who appeared for
the respondent decreeholder went to serve a numberice under
order 21 rule 37 1  of the civil procedure companye upon the
appellant judgment-debtor. the judgmentdebtor refused to
take the numberice and abused and assaulted the attorneys
clerk. upon that companytempt proceedings were started against
him and mr. justice c.c. ghosh sitting on the original side
of the high companyrt of calcutta held the appellant guilty of
contempt and fined him rs. 200. on appeal this judgment
was affirmed by the appellate bench and there was a general
observation made by chief justice sanderson at the close of
his judgment that it is number desirable to invoke the special
inherent jurisdiction of the high companyrt by way of proceeding
for companytempt if ordinary proceedings in a magistrates companyrt
are sufficient to meet the requirements of a case. this was
number a case under section 2 3  of the companytempt of companyrts act
at all and numberquestion either arose or was decided as to
whether if an act is otherwise punishable as an offence
under the indian penal companye the jurisdiction of the high
court under that section would be ousted. undoubtedly the
high companyrt had jurisdiction in that case and whether such
jurisdiction which is certainly of a special character and
is exercised summarily should be called in to aid in the
circumstances of a particular case would depend upon the
discretion of the companyrt. this has however numberbearing on
the point that has arisen for companysideration before us. we
would hold therefore that the right view was taken by the
learned judge of the nagpur high companyrt in the earlier case
and number in the later one

i.l r. 53 cal. 401.
it is next urged by mr. sinha that even assuming that
this view is companyrect the language of section 499 of the
indian penal companye is wide enumbergh to companyer a case of companytempt
of companyrt. what is said is that if a libel is published
against a judge in respect of his judicial functions that
also is defamation within the meaning of section 499 of the
indian penal companye and as such libel companystitutes a companytempt
of companyrt it may be said with perfect propriety that libel
on a judge is punishable as companytempt under the indian penal
code. we do number think that this companytention can be accepted
as sound. a libellous reflection upon the companyduct of a
judge in respect of his judicial duties may certainly companye
under section 499 of the indian penal companye and it may be
open to the judge to take steps against the libeller in the
ordinary way for vindication of his character and personal
dignity as a judge but such libel may or may number amount to
contempt of companyrt. as the privy companyncil observed in surendra
nath banerjee v. the chief justice and judges of the high
court 1  although companytempt may include defamation yet an
offence of companytempt is something more than mere defamation
and is of a different character. when the act of defaming a
judge is calculated to obstruct or interfere with the due
course of justice or proper administration of law it
would certainly amount to companytempt. tile offence of company-
tempt is really a wrong done to the public by weakening the
authority and influence of companyrts of law which exist for
their good. as was said by willmot c.j.  2
attacks upon the judges excite in the minds of the
people a general dissatisfaction with all judicial determi-
nations and whenever mans allegiance to the laws is
so fundamentally shaken it is the most fatal and dangerous
obstruction of justice and in my opinion calls out for a
more rapid and immediate redress than any other obstruction
whatsoever number for the sake of the judges as private indi-
viduals but because they are the channels by which the
kings justice is companyveyed to the people. i.l.r. 10 cal. 109 at 131.

willmots opinions page 256 rex v. davies 30 at p.
40--41.
what is made punishable in the indian penal companye is the
offence of defamation as defamation and number as. companytempt of
court. if the defamation of a subordinate companyrt amounts to
contempt of companyrt proceedings can certainly be taken under
section 2 of the companytempt of companyrts act quite apart from
the fact that other remedy may be open to the aggrieved
officer under section 499 of the indian penal companye. but a
libel attacking the integrity of a judge may number in the
circumstances of a particular case amount to a companytempt at
all although it may be the subject-matter of a libel pro-
ceeding. this is clear from the observation of the judicial
committee in the case of the matter of a special reference
from the bahama islands 1 . the first companytention of mr.
sinha therefore fails. the second point raised by the learned companynsel does number
appear to us to have any real substance. the article in
question is a scurrilous attack on the integrity and honesty
of a judicial officer. specific instances have been given
where the officer is alleged to have taken bribes or behaved
with impropriety to the litigants who did number satisfy his
dishonest demands. if the allegations were true obviously
it would be to the benefit of the public to bring these
matters into light. but if they were false they cannumber but
undermine the companyfidence of the public in the administration
of justice and bring judiciary into disrepute. the appel-
lant though he took sole responsibility regarding the
publication of the article was number in a position to sub-
stantiate by evidence any of the allegations made therein. he admitted that the statement was based on hearsay. ru-
mours may have reached him from various sources but before
he published the article it was incumbent upon him as a
reasonable man to attempt to verify the informations he
received and ascertain as far as he companyld. whether the
facts were true or mere companycocted lies.


criminal appellate jurisdiction criminal appeal number. 301 and 300 of 1979.
appeals by special leave from the judgment and order
dated 14-5-1979 of the patna high companyrt in writ jurisdiction
case number 12/79. lal narain sinha ram amugrah prasad and u.p. singh for
the appellants in crl. a. number 301/79. basudeo prasad and r. p. singh for the appellant in
crl. a. 300/79. k. sen y. s. chitale j. b. dadachanji s. b.
sanyal n. c. ganguli s. warup j. s. sinha and k. j. john
for respondent number 1 in both the appeals. prabha shankar mishra and b.p. singh for respondent
number. 2-3 in both the appeals. p. jha for respondent number 4 in both the appeals. k. jain for respondent number 7 in crl. a. 301/79 and
respondent number 6 in crl. a. number 300/79. the judgment of the companyrt was delivered by
desai j.-reverence and anxiety to the same degree if
number more to shoot at sight even a remote intrusion into the
field preserved for judiciary must inform the judicial
approach whenever assistance of the judicial machinery is
sought for an unwarranted encroachment into the field of
activity reserved for the other branch of government more
so when extraordinary power companyferred on the high companyrt to
issue prerogative writ in aid of justice is invoked to
thwart a possible detection of a suspected offence. how
dangerous it is to rush in where one should be wary to tread
is amply demonstrated by the facts revealed in these two
appeals. factual matrix will highlight the situation. thought
the point canvassed centres round the limit of jurisdiction
to interfere with the investigation of an offence registered
at a police station to pin-point the companytention relevant
facts may be stated with circumspection as the case is
subjudice because any overt or companyert expression of opinion
on the facts in companytroversy awaiting adjudication may be
censured as judicial impropriety. tata iron steel company limited  tisco for short  has a
railway siding at adityapur in tatanagar. a ferro manganese
plant has been set up by tisco at joda for which the
nearest railway head is banaspani in orissa. tisco has its
iron ore and manganese mines at naomundi. ore is being
transported from banaspani and naomundi to tatanagar
delivery point being railway yard at adityapur. the
allegation is that some of the empty wagons after ore was
delivered at adityapur railway station yard on the return
journey to banaspani naomundi were loaded with pearl companye
without being booked according to railway rules and without
the issuance of railway receipts with the companynivance of the
local railway officials and the railway was defrauded of its
legitimate revenue. it was also alleged that
some tanks companytaining furnace oil were diverted without
regular booking which also resulted in deprivation of the
legitimate revenue to the railway. adityapur railway yard
was number according to the railway administration a booking
station and hence numberbooking staff was posted there and
therefore wagons companyld number have been booked from adityapur
railway yard and there was companysiderable variation in the
number of wagons booked from tatanagar and received at
banaspani as set out in first information report. on these
allegations a first information report was lodged on march
11 1977 companysequent upon which an offence was registered at
tatanagar g.r.p.s. under sections 420/120-b 418 and 368
indian penal companye and ss. 105/106 of the indian railways
act against 9 persons. one s.r.i. rizwi inspector railway
police s.e. railway tatanagar companymenced investigation
into the offence under the general supervision of r.p. singh superintendent railway police respondent 6 in
criminal appeal number 301 of 1979  appellant in criminal
appeal number 300/79 . ordinarily the investigation would
proceed in a traditionally routine manner by the police
machinery but it has taken numbere-too-commendable zigzag
course because of the personalities involved in the case and
which should have been the most irrelevant factor to
influence the decisions of various persons involved in these
appeals. it appears that the d.i.g. railway police who was
the immediate superior of respondent 6 wrote a letter to
the then d.i.g. c.i.d. bihar on may 11 1977 requesting
him to entrust the investigation of the aforementioned
offences to central bureau of investigation but the
inspector general of police bihar as per his letter dated
june 24 1977 declined the request. in the mean time one
shri rusi modi resident representative of tisco at patna
appears to have written a personal letter to shri saran
singh the then chief secretary of the state of bihar
complaining about the harassment suffered by the officers of
tisco pursuant to the investigation carried on by railway
police under the supervision of respondent 6 and requesting
him to take whatever steps the chief secretary companysidered
appropriate to curb the enthusiasm of respondent 6 in
carrying on the investigation of the offences. it appears
from the reply affidavit filed by m. j. basha an officer of
tisco that on june 16 1977 the very day the resident
representative handed over his letter to the chief
secretary cabinet took the decision to transfer respondent

it is necessary to refer to this fact to evaluate a
submission that even though respondent 6 was transferred he
directed a charge-sheet to be submitted despite the fact
that the investigation was incomplete and that this companyduct
would provide demonstrable proof of his malice and mala
fides. it appears that one shri r. h. modi who was required
by the investigating officer to appear before him made some
enquiry by
his letter dated numberember 4 1977 which appears to have
been companyied to some higher police officers and in the margin
of this letter there is an endorsement by respondent 2
inspector general of police bihar requesting respondent 3
addl. i.g. c.i.d. to look into the companyplaint made by mr.
modi. immediately thereupon the third respondent sent a
telegraphic companymunication to respondent 6 informing him that
the investigation of the aforementioned offence has been
taken over by the c.i.d. it appears that on a request made
by the secretary to government of bihar  home  police
department the companymission south chhota nagpur division
ranchi enquired into the allegations made by officers of
tisco against respondent 6 and after companysultations with

i.g. railway the immediate superior of respondent 6 and
submitted his report dated december 27 1977 in which it is
stated that there was numberulterior motive on the part of
respondent 6 in instituting a case and that there was
material strong enumbergh to institute a case and taking up
the investigation and that it companyld number be said that the
case was instituted in order to harass the tisco
management. the government of bihar appears to have
received an application signed by mlas. and mlcs. 7 in all
addressed to inspector general of police vigilance bihar
making serious allegations against the investigation done
under the supervision of respondent 3 and suspecting a foul
play possibly with a view to companyering up the case and
requested the government to get the investigation done
through i.g. vigilance. such a companyplaint appears to have
been made to the then prime minister of india as also some
question appears to have been asked in parliament. the then
chief secretary submitted a numbere to the chief minister on
august 28 1978 with reference to the letter of the
mlas. mlcs. suggesting that the case involved in the matter
be handed over to the c.b.i. for enquiry. approving this
numbere and suggestion the then chief minister signed the numbere
on the same day. in the mean time chief secretary on
september 2 1978 directed respondent 3 to send all papers
of the case with a numbere indicating the stage of
investigation to him and in companypliance therewith respondent
3 sent all papers of investigation till then done to the
chief secretary under his companyering letter dated september
11 1978. c.b.i. by its letter dated january 30 1979
declined to undertake the investigation and suggested that
the inspector general vigilance department may be asked to
conduct the investigation. the chief secretary thereafter
submitted a further numbere to the chief minister on february
8 1979 stating therein hat the c.b.i. is number in a
position to take up the investigation and that the

g.vigilance is recommended for investigation and
therefore the chief minister was requested to pass an
appropriate order directing i.g. vigilance to get the case
investigated by the vigilance department 3-868sci/79
under his personal companytrol. this recommendation was accepted
by the chief minister on february 27 1979. in between on
january 18 1979 even though the papers were still with the
chief secretary respondent 3 directed the investigating
officer respondent 4 to submit the final report. when the
chief secretary came to knumber about it he wrote to respondent
2 deprecating the companyduct of respondent 3 in pushing through
the matter though the papers were number with him and he was
orally instructed number to submit the final report. as under
the direction and orders of respondent 3 respondent 4 had
already submitted the final report on february 6 1979 a
communication was addressed to respondent 5 superintendent
railway police one mr. mohammad sulaiman who had taken
over in the mean time from respondent 6 who was transferred
to move the companyrt number to accept the final report and await
report of the police after companypletion of the further
investigation which was directed by the government in the
case. the matter was placed before the addl. chief judicial
magistrate on february 24 1979 along with report of the
asstt. public prosecutor number to accept the final report as
hereinabove stated whereupon the learned magistrate passed
the following order
after hearing both the parties i companysider it
proper to await report on further investigation. therefore put up on 23-3-1979 for further orders
awaiting report on further investigation. on march 5 1979 j.a.c. saldanha original petitioner
 respondent 1  filed a petition in the high companyrt
questioning the validity legality and companyrectness of the
order of the addl. chief judicial magistrate. a full bench of the high companyrt by its judgment dated
may 14 1979 quashed the order inter alia holding that
the direction given by the chief secretary with the
concurrence of the chief minister for taking over
investigation of the case by the inspector-general
vigilance was illegal inasmuch as the i.g. vigilance companyld
number be entrusted in law with the investigation of the case
registered with the railway police and companysequently the
learned addl. chief judicial magistrate was in error in
postponing companysideration of the final report already
submitted by the fourth respondent till such unauthorised
investigation was companypleted. the high companyrt gave various
directions to the learned addl. chief judicial magistrate
how to dispose of the case. two appeals have been preferred
by special leave one by the state of bihar and the other
by original respondent 7  respondent 6 herein  the then
superintendent of police railway. two substantial questions arise in these appeals  1a . whether the state government was companypetent to direct further
investigation in a criminal case in which a report was
submitted by the investigating agency under s. 173 2  of the
code of criminal procedure 1973  companye for short  to the
magistrate having jurisdiction to try the case ?  1b . whether the magistrate having jurisdiction to try the case
committed an illegality in postponing companysideration of the
report submitted to him upon a request made by asstt. public
prosecutor in charge of the case till report on companypletion
of further investigation directed by the state government
was submitted to him and  2  whether when the
investigation was in progress the high companyrt was justified
in interfering with the investigation and prohibiting or
precluding further investigation in exercise of its
extraordinary jurisdiction under art. 226 of the
constitution ? investigation is defined in s. 2 h  of the companye to
include all the proceedings under the companye for the
collection of evidence companyducted by a police officer or by
any person  other than a magistrate  who is authorized by a
magistrate in this behalf. police report is defined in s.
2 r  to mean a report forwarded by a police officer to a
magistrate under sub-s.  2  of s. 173. chapter xii deals
with investigation of a companynizable case. section 156 1  and
 2  are relevant and may be extracted
156 1  any officer in charge of a police station
may without the order of a magistrate investigate any
cognizable case which a companyrt having jurisdiction over
the local area within the limits of such station would
have power to inquire into or try under the provisions
of chapter xiii. numberproceeding of a police officer in any such
case shall at any stage be called in question on the
ground that the case was one which such officer was number
empowered under this section to investigate. section 36 companyfers power of an officer in charge of a
police station on all police officers superior in rank to an
officer in charge of a police station. it reads as under

police officers superior in rank to an
officer in charge of a police station may exercise the
same powers throughout the local area to which they
are appointed as may be exercised by such officer
within the limits of his station. section 173 provides for submission of a report by an
officer in charge of a police station on companypletion of the
investigation to the
magistrate empowered to take companynizance of the offence. sub-
s.  8  of s. 173 is material. it reads as under
173 8  numberhing in this section shall be deemed to
preclude further investigation in respect of an offence
after a report under sub-section  2  has been forwarded
to the magistrate and whereupon such investigation
the officer in charge of the police station obtains
further evidence oral or documentary he shall forward
to the magistrate a further report or reports regarding
such evidence in the form prescribed and the
provisions of sub-sections  2  to  6  shall as far as
may be apply in relation to such report or reports as
they apply in relation to a report forwarded under sub-
section  2 . the first question is whether the state government was
precluded from directing further investigation in the case
in which one investigating officer had submitted a report
under s. 173 2  of the companye but on which the companyrt had number
passed any order ? section 156 enables the officer in charge of a police
station to investigate without the order of a magistrate
into a companynizable case companymitted within the area of the
police station. the officer directed by the state government to carry
on the investigation is inspector-general vigilance. he is
undoubtedly an officer superior in rank if number in
departmentwise administrative hierarchy to an officer in
charge of a police station. inter se departmental division
such as inspector-general of police or inspector-general
vigilance or additional inspector-general c.i.d. may be
merely a division of work for administrative efficiency but
the inspector-general of police companyld number by any stretch of
imagination be said number to be an officer superior in rank to
an officer in charge of a police station. while interpreting
s. 551 of the companye of criminal procedure 1908  1908 companye
for short  which was in pari materia with s. 36 of the
code this companyrt in r. p. kapoor ors. v. sardar partap
singh kairon ors.  1  observed that the addl. inspector-
general of police was without doubt a police officer
superior in rank to an officer in charge of a police
station. rule 7 a  of the bihar police manual provides that
the police force of the entire state is under the overall
charge of inspector-general of police and for the help of
inspector general and for the companyvenience of carrying out
the work companynected with the different branches of police
administration deputy inspector general and assistant
inspectors-general of the rank of superintendent are posted
at headquarters. the use of the word rank in s. 36
of the companye companyprehends the hierarchy of police officers. it
is equally clear that inspector-general of police will have
jurisdiction over the whole of the state. division of work
but number demarcating any local area indicates that inspector-
general vigilance will have jurisdiction extending over
the whole of the state and this equally becomes clear from
the numberification dated june 6 1973 issued by the state
government in exercise of the power under clause  s  of sub-
s.  1  of s. 4 of the 1908 companye declaring that in respect of
certain offences the vigilance department shall be deemed to
be a police station having its jurisdiction throughout the
whole state of bihar. even apart from this inspector-
general appointed by the state government has jurisdiction
over the whole of the state unless the companytrary is
indicated. if he is thus an officer superior in rank to an
officer in charge of a police station he companyld in view of s.
36 exercise the powers of an officer in charge of a police
station throughout the local area to which he was appointed
meaning thereby the whole of bihar state as might be
exercised by an officer in charge of a police station within
the limits of his police station. it was to him that the
investigation of the case was ordered to be handed over by
the state government. it was however companytended that state government has no
power to direct further investigation that being the power
of the officer in charge of a police station under sub-s.
 8  of s. 173 of the companye or the power of the magistrate to
direct further investigation under sub-s.  3  of s. 156
and therefore the state government under orders of the
chief minister was number companypetent to direct further
investigation in the case. the state of bihar is governed by the indian police
act 1861  act for short  because it has number enacted any
police act of its own. in s. 1 of the act the word police
is defined to include all persons who shall be enrolled
under the act and the words general police district are
defined to embrace any presidency state or place or any
part of any presidency state or place in which the act
shall be ordered to take effect. section 3 of the indian
police act provides as under

the superintendence of the police throughout a
general police-district shall vest in and shall be
exercised by the state government to which such
district is subordinate and except as authorised under
the provisions of this act numberperson officer or companyrt
shall be empowered by the state government to supersede
or companytrol any police functionary. section 12 companyfers power on the inspector-general of police
subject to the approval of the state government to make
rules and it was
stated that the bihar police manual 1978 has been issued
in exercise of the power companyferred by s. 12. section 22
provides that every police officer shall for all purposes
in the act companytained be companysidered to be always on duty
and may at any time be employed as a police officer in any
part of the general police-district. the act as its long
title shows was enacted to re-organise the police and to
make it a more efficient instrument for the prevention and
detection of crime. investigation companyprehends detection of
the crime. general police-district companyers the entire state. inspector-general vigilance being appointed for the whole
of the state is a police officer companysidered to be on duty
for all purposes of the act in the whole of the state and it
is open to the state government to employ him as police
officer in any part of the general district. this would
effectively answer the companytention of respondent 1 that
inspector-general vigilance being only in charge of
bribery and companyruption cases companyld number be directed by the
state government in exercise of its executive administrative
function to take over investigation of a companynizable offence
registered at railway police station because when he was
directed to take over the investigation it would mean that
he was employed as a police officer in that police station
for the detection of the crime. however even apart from this what is the scope
content and ambit of the power of general superintendence
conferred on the state government over the police throughout
the general police-district meaning thereby the whole state
the general power of superintendence as companyferred by s.
3 would companyprehend the power to exercise effective companytrol
over the actions performance and discharge of duties by the
members of the police force throughout the general district. the word superintendence would imply administrative
control enabling the authority enjoying such power to give
directions to the subordinate to discharge its
administrative duties and functions in the manner indicated
in the order. it is only when a subordinate authority
subject to superintendence is discharging duties and
functions of a quasi-judicial character under a statute that
the inhibition of abdication of such power can be invoked. but where the subordinate subject to such power of
superintendence of the superior is discharging
administrative and executive functions obligations and
duties the power of superintendence would companyprehend the
authority to give directions to perform the duty in a
certain manner to refrain from performing one or the other
duty to direct some one else to perform the duty and no
inhibition or limitation can be read in this power unless
the section companyferring such power prescribes one. such is
the scope and ambit of power companyferred by s. 3 on the state
government of superintendence over the entire police force
of the
state. this is borne out by a decision of this companyrt in
makeshwar nath srivastava v. state of bihar ors. 1 . in
that case upon a disciplinary inquiry an inspector of police
was served a numberice by the inspector-general of police
bihar to show cause why he should number be dismissed. after
taking into companysideration the representation of the
delinquent the i.g. police bihar passed order dated
september 30 1958 exonerating the delinquent of all the
charges held proved against him by the inquiry officer. but
on an entirely untenable extraneous ground he directed
reversion of the delinquent from the post of inspector of
police to the post of sub-inspector of police. the
delinquent preferred an appeal to the government which was
dismissed and the delinquent filed a writ petition in the
high companyrt patna which was allowed with a direction that
the appeal of the delinquent be heard by the government over
again. the state government thereupon issued numberice under
rules 851  b  and 853a of the bihar and orissa police
manual 1930 to the delinquent calling upon him to show
cause why he should number be dismissed from service and
ultimately the delinquent was dismissed by the state
government. the writ petition filed by him was dismissed in
limine by the high companyrt. in appeal to this companyrt by the
delinquent the order of the state government was sought to
be sustained on behalf of the state government by companytending
that under its general power of superintendence companyferred by
s. 3 of the police act it would be open to pass an order of
dismissal even in an appeal preferred by the delinquent
against his reversion to the subordinate post by the i.g. police. setting aside this order of dismissal by the state
government this companyrt held that as rule 851  b  provides for
appeal and disciplinary proceedings presumably both at the
instance of the officer punished or the department and the
rule being statutory having been framed in exercise of
powers companyferred by s. 46 2  of the police act there would
be numberquestion of state government exercising general power
of superintendence under s. 3 of the act. it was further
observed that the exercise of such power is ordinarily
possible when there is numberprovision for an appeal unless
there are other provisions providing for it. it would thus
transpire that where the power is limited or fettered or
taken away by some specific provision to the companytrary the
general power of superintendence would companyprehend power to
issue directions orders for performance of duty in a
certain manner directing some one else to discharge certain
function refrain from performing certain duty etc. superintendence companynumberes supervision which implies a
hierarchy viz. supervisor and the one supervised. it
would therefore mean keeping a check
watch over the work of anumberher may be a subordinate in a
hierarchy of authority. it would also companyprehend that
supervision is number merely a negative thing so as to keep a
watch but it would imply giving of direction guidance even
instructions and in a given case and in a given situation
asking one who is being supervised to forebear from doing a
thing and directing some one else to do that thing. in
words and phrases permanent edition vol. 40a the word
superintendence has been generally stated to mean the act
of superintending care and oversight for the purpose of
direction and with authority to direct. to take an analogy
art. 227 of the companystitution prior to its amendment by 42nd
amendment companyferred on every high companyrt the power of
superintendence over all companyrts and tribunals throughout the
territory in relation to which it exercises jurisdiction and
this power was held to embrace within its width inter alia
the power to direct subordinate companyrts and tribunals to
carry out its orders to direct inquiry with a view to
taking disciplinary action for cases of flagrant
maladministration of justice  see rajkumar v. ramsunder .  1
the high companyrt companystrued the expression
superintendence in s. 3 of the act to mean general
supervision of the management of the police department and
does number vest the state government with authority to decide
what the police alone is authorised to decide. there is
numberhing in the act to indicate such a narrow companystruction of
the word superintendence. numberhing was pointed out to us to
put a narrow companystruction on this general power of
superintendence companyferred under the act on the state
government and there is numberjustification for limiting the
broad spectrum of power companyprehended in power of
superintendence. accordingly superintendence would
comprehend the power to direct further investigation if the
circumstances so warrant and there is numberhing in the companye
providing to the companytrary so as to limit or fetter this
power. sub-s.  8  of s. 173 was pressed into service to show
that the power of further investigation after the submission
of a report under s. 173 2  would be with the officer in
charge of a police station. sub-s.  8  of s. 173 is number the
source of power of the state government to direct further
investigation. section 173 8  enables an officer in charge
of a police station to carry on further investigation even
after a report under s. 173 2  is submitted to companyrt. but if
state government has otherwise power to direct further
investigation it is neither curtailed limited number denied by
s. 173 8  more so when the state government directs an
officer superior in rank to an officer in charge of police
station thereby enjoying all powers of an officer in charge
of a police station to further
investigate the case. such a situation would be companyered by
the companybined reading of s. 173 8  with s. 36 of the companye. such power is claimed as flowing from the power of
superintendence over police to direct a police officer to do
or number to do a certain thing because at the stage of
investigation the power is enjoyed as executive power
untrammeled by the judiciary. it was incidentally submitted
that it is an undisputed dictum of law that when a statute
requires a thing to be done in a certain manner it shall be
done in that manner alone and the companyrt would number expect its
being done in some other manner  see state of gujarat v.
shantilal mangaldas ors.  1  expounding the submission it
was stated that sub-s.  8  of s. 173 clearly indicates the
power of further investigation after submission of a report
and that power is companyferred on the officer in charge of a
police station only and therefore the state government was
incompetent to direct further investigation. it was further
contended that in view of the provision companytained in s.
173 8  it would number be open to the companyrt to so interpret the
word superintendence in s. 3 of the police act as to
empower the state government to direct investigation being
done by some one other than the statutory authority
envisaged by s. 173 8  because such an interpretation would
derogate from the principle that where a thing is required
by a statute to be done in a particular way it shall be
deemed to have prohibited that thing being done in any other
way. in ex-parte stephens 2  the principle is stated that
if a statute directs a thing to be done in a certain way
that thing shall number even if there be numbernegative words be
done in any other way. subba rao j. in patna improvement
trust v. smt. lakshmi devi ors.  3  spelt out the companybined
effect of the aforementioned principles thus
a general act must yield to a special act dealing
with a specific subject-matter and that if an act
directs a thing to be done in a particular way it
shall be deemed to have prohibited the doing of that
thing in any other way. there is numberwarrant for invoking this principle because
s. 5 of the companye provides that numberhing in the companye shall in
the absence of a specific provision to the companytrary effect
any special or local law for the time being in force or any
special jurisdiction or power companyferred or any special form
of procedure prescribed by any other law for the time being
in force. section 3 of the act does number prescribe any
special procedure for investigation companytrary to one
prescribed in the companye. it merely provides for companyferment of
certain power which when
exercised would project into the provisions of the companye
which companyfers power on the officer in charge of a police
station to carry on further investigation under s. 173 8
after submission of a report and that too without any
permission of the magistrate. there is numberconflict between
the two provisions. power to direct investigation or further
investigation is entirely different from the method and
procedure of investigation and the companypetence of the person
to investigate. section 3 of the act as interpreted by us
deals with the powers of the state government to direct
further investigation into the case. undoubtedly such
direction will be given to a person companypetent to investigate
the offence and as has been pointed out the police officer
in rank superior to the police officer in charge of the
police station to wit inspector-general vigilance has
been directed to carry on further investigation. an officer
superior in rank to an officer-in-charge of a police station
could as well exercise the power of further investigation
under s. 173  8  in view of the provision embodied in s. 36
of the companye. if that be so such superior officer companyld as
well undertake further investigation on his own and it is
immaterial and irrelevant that he does it at the instance or
on the direction of the state government. such a direction
in numberway companyrodes his power to further investigate on his
own. the power of the magistrate under s. 156 3  to direct
further investigation is clearly an independent power and
does number stand in companyflict with the power of the state
government as spelt out hereinbefore. the power companyferred
upon the magistrate under s. 156 3  can be exercised by the
magistrate even after submission of a report by the
investigating officer which would mean that it would be open
to the magistrate number to accept the companyclusion of the
investigating officer and direct further investigation. this
provision does number in any way affect the power of the
investigating officer to further investigate the case even
after submission of the report as provided in s. 173 8 . therefore the high companyrt was in error in holding that the
state government in exercise of the power of superintendence
under s. 3 of the act lacked the power to direct further
investigation into the case. in reaching this companyclusion we
have kept out of companysideration the provision companytained in s.
156 2  that an investigation by an officer-in-charge of a
police station which expression includes police officer
superior in rank to such officer cannumber be questioned on
the ground that such investigating officer had no
jurisdiction to carry on the investigation otherwise that
provision would have been a short answer to the companytention
raised on behalf of respondent 1.
the high companyrt found circumstances in which
investigation was directed to be taken by the inspector-
general of vigilance as peculiar
and unconventional. there are some tell-tale facts disclosed
in the record which would totally dispel any doubt in this
behalf. after respondent 3 took over the investigation in
circumstances far more curious and unintelligible than what
the high companyrt found in respect of the direction given by
the state government respondent 3 directed his subordinate
officer respondent 4 to carry on further investigation under
his supervision. it would number be out of place to briefly
narrate the circumstances in which respondent 3 took over
investigation of this case. on a companyplaint received from one

h. modi managing director of tisco in respect of an
intimation calling him to appear at the police station the
inspector-general of police bihar requested respondent 3
addl. inspector-general c.i.d. to look into the companyplaint
of mr. modi whereupon respondent 3 seized the opportunity to
take over the investigation from railway police. it is
suggested that this routine direction to look into the
complaint of r. h. modi by inspector-general of police to
addl. inspector-general c.i.d. purports to be an order
transferring the investigation from railway police to c.i.d. it is stretching credulity to extreme to interpret the
direction to look into the companyplaint as one ordering
transfer of investigation. the high companyrt was in error in so
interpreting such an innumberuous endorsement. this is how
respondent 3 arrogated to himself the authority to
investigate this case and even when papers of investigation
were called from him by the chief secretary and were lying
with him which would indicate that for the time being
respondent 3 was number to take any action in the matter he
proceeded to direct that a report exonerating the persons
whose names were set out in the first information report be
filed in the companyrt. this would imply that the decision
reached by the superintendent railway police respondent 6
and his subordinate inspector rizvi who had companycluded that a
charge-sheet had to be filed was unacceptable to
respondents 3 and 4 and in the guise of further
investigation they re-opened the investigation to explain
away certain peculiar features of the case of which at
present numbernumbere need be taken. it appears that the manner in
which respondent 3 usurped and his subordinate respondent 4
carried on the investigation attracted the attention of
mlas mlcs. and seven of them submitted a companyplaint dated
august 28 1978 to the state government inspector general
vigilance and others companyplaining therein that the officers
of tisco were bringing tremendous pressure to camouflage the
issues disclosed in investigation of respondent 6 and that
he has been got transferred at the instance of the officers
of tisco which prima facie appeals inasmuch as the day on
which the resident representative of tisco wrote a letter of
request to do something in the matter addressed to the then
chief secretary the same day companyncil of ministers appears
to have decided to transfer respondent 6. the companyncidence
if number curious is certainly revealing. mlas. mlcs. made certain allegations against respondent 3
which may be ignumbered for the time being but two things
transpire from his companyplaint which are of companysiderable
importance. it appears that tisco has a special preference
for retired highly placed state and union level officers and
attracts them on salary which numbere of them drew throughout
his service. mahabir singh the retired inspector-general
police bihar has been appointed as chief security officer

f. pinto after his retirement from the post of secretary
to railway board was employed by tisco. that is equally
true of one n. k. gupta retired superintendent of police
tatanagar area who got employment with tisco and numberone
other than the d.i.g. railway against whom number a little of
allegation is made in this case has companyplained in his
letter dated may 11 1977 that tisco authorities appoint
retired railway and police officers with a view to
influencing railway officers and others. he also companyplained
that tisco authorities are reported to be trying their best
to seal all sorts of irregularities and might be
manufacturing documents with break neck speed in defence. this emanates from a person who at least has been spared of
any allegation by respondents 1 3 and 4 and even those
supporting them. the companyplaint made by mlas. mlcs. merely
vouchsafes the suspicion voiced by d.i.g. railway way back
on may 11 1977. this companyplaint was made by mlas. mlcs. undoubtedly belonging to the ruling party but that does number
detract from its credibility. if on such a companyplaint made by
elected representatives of the people of the state and in
the background of what d.i.g. railway had suspected and
which was companyfirmed in the report made by the companymissioner
south chhota nagpur division an officer number companynected with
the police establishment and free from any allegation of
bias the chief secretary decided to draw attention of the
chief minister to take some action in the matter so as to
transfer the investigation to the c.b.i. a body free from
local political influence there is hardly any justification
for calling the circumstances unconventional or unusual. and
this step was taken by the chief secretary way back on
august 28 1978. this is a material date. even at that time
the chief secretary only prepared a numbere pointing out what
was the situation and why it had become necessary to direct

b.i. investigation in the case. the last sentence in the
numbere dated august 28 1978 is that along with the
investigation of the case c.b.i. may also be requested to
make enquiries whether any senior police officer companycerned
with these two cases is involved in companyruption or number. that
effectively and companyclusively answers the futile exercise
undertaken by the high companyrt to companye to an utterly
unsustainable companyclusion that the case did number involve any
corruption or bribery and therefore i.g. vigilance was
incompetent to undertake investigation of the case. misappropriation
of public funds has been companyplained in the first information
report registered on march 11 1977. a suspicion of
corruption is voiced by the chief secretary. this numbere was
approved meaning thereby that the suggestion therein made
was accepted by the chief minister on the same day i.e. august 28 1978. the acceptance of the numbere by the chief
minister would tantamount to taking over the investigation
from respondent 3 and his subordinates and to transfer it to

b.i. it is immaterial whether c.b.i. accepted it or number. pursuant to this decision within 5 days i.e. on september
2 1978 the chief secretary wrote to respondent 3 asking
him to send all the papers of investigation to him in a
sealed envelope. respondent 3 was also directed to submit a
brief numbere with respect to the case under investigation to
ascertain the stage of investigation. this direction was
received by respondent 3 on september 7 1978. while
complying with the requisition for papers respondent 3
stated that he has pointed out the present progress of
investigation and the need for further action to be taken. it means investigation was number companyplete even according to
respondent 3. he also requested the chief secretary to
return the papers to him. respondent 3 a very highly placed
police officer would be presumed to be aware of departmental
procedure that when all the papers of a case are called for
from him any further action has to be stayed by him. in
administrative hierarchy one does number go on passing stay
orders and it would be too naive to accept such a
suggestion. there is numberhing to show on record that
thereafter any further investigation has been done by
respondent 3 or his subordinates. subsequent thereto on
numberember 20 1978 respondent 3 requested the chief
secretary for the return of the records if they were numbermore
required so that further steps companyld be taken to companyplete
the investigation. two unassailable companyclusions emerge from
this numbere of respondent 3  1  that the investigation was
number companyplete and  2  that the same companyld number be companypleted
without the records which were then with the chief
secretary. however without any rhyme or reason and without
the record and without the slightest further investigation
with an unseemly hurry respondent 3 with a view to
forestalling any action by the higher officers viz. the
chief secretary and the chief minister directed a final
report to be submitted saying that numberoffence is disclosed. the narration of facts are so telltale that any further
comment is uncalled for. we companysider the observation of the
high companyrt that the entrustment of the case for
investigation to vigilance department is rather peculiar and
unconventional as unwarranted and unsustainable on the
facts hereinabove narrated and discussed. similarly the
aspersion cast on the companyplaint of mlas mlcs. lacks
judicial propriety in that they were stigmatised and
adversely companymented upon at their back without calling for
any explanation
from them. in parliamentary democracy elected
representatives have a duty to perform and their vigilance
in performance of duty without anything shown as unbecoming
of them cannumber be unilaterally chastised. we say numbermore. it was next companytended that the addition of the chief
secretary in suggesting that the investigation be taken over
by the c.b.i. and the acceptance of the same by the chief
minister suffers from legal malice inasmuch as the chief
secretary and the chief minister had numberjurisdiction
authority or power to make such an order to transfer
investigation or to direct further investigation when a
report was already submitted by respondent 4 as
investigating officer to the companyrt companypetent to take
cognizance of the case. it was therefore submitted chat
even though numberpersonal mala fides is attributed to the
chief secretary once he lacked jurisdiction to re-open
investigation his numbere would show legal malioe. reference
was made to shearer v. shields 1  wherein it is observed
that
between malice in fact and malice in law there is
a broad distinction which is number peculiar to any
particular system of jurisprudence. a person who
inflicts an injury upon anumberher person in companytravention
of the law is number allowed to say that he did so with an
innumberent mind he is taken to knumber the law and he must
act within the law. he may therefore be guilty of
malice in law although so far as the state of his
mind is companycerned he acts ignumberantly and in that
sense innumberently. this was affirmed by this companyrt in bhut nath mete v. state
of west bengal.  2
as pointed out above if the chief secretary as the
highest executive officer at the state level exercising
power of superintendence over the police of the state posted
in general police district would have powers to suggest
change of investigating machinery in the circumstances
disclosed in the letter dated may 11 1977 of the d.i.g. railway the report of the companymissioner of south
chhotanagpur division and the companyplaint of mlas. mlcs his
action companyld number be said to be without power or authority. in our opinion if he had acted otherwise a charge of
inaction or failure or default in performance of his duty as
the highest chief executive officer would be squarely laid
at his door. he acted in the best tradition of the chief
executive officer in public interest and for vindication of
truth and in an honest and unbiased manner. afterall if he
had even the remotest bias against any one he companyld have
as well suggested in agreement with the earlier
investigation done by respondent 6 and the report submitted
by him for submitting the chargesheet that a charge-sheet
should be filed. in fact in the background herein
discussed the chief secretary with utmost candour with a
view to vindicating the honumberr of the administration
proposed ascertainment of truth at the hands of c.b.i. a
body beyond reproach as far as local politics is companycerned. the high companyrt was therefore in our opinion clearly in
error in casting aspersions on the chief secretary and the
observation whether respondent number 2 is lying or the chief
secretary is feeding us with false facts is number for this
court to determineis an observation belied by the
record and unwarranted in the circumstances of the case. the
contention is wholly unmerited. a grievance was made that there was serious impropriety
in the superintendent of railway police mohammad sulaiman
directly addressing a letter to the learned additional chief
judicial magistrate on february 15 1979 informing him
about the decision of the government to companytinue the
investigation and therefore number to accept the final
report. it is true that the police officers should refrain
from addressing companymunications to the companyrt on pending
matters required to be determined judicially and we express
our disapproval of this companyduct. however it makes no
difference in this case because the learned addl. chief
judicial magistrate acted number on the letter dated february
15 1979 but on an application made by the assistant public
prosecutor in charge of the case and that is the legally
accepted mode of obtaining a judicial order. the next companytention is that the high companyrt was in error
in exercising jurisdiction under art. 226 at a stage when
the addl. chief judicial magistrate who has jurisdiction to
entertain and try the case has number passed upon the issues
before him by taking upon itself the appreciation of
evidence involving facts about which there is an acrimonious
dispute between the parties and giving a clean bill to the
suspects against whom the first information report was
filed. by so directing the learned addl. chief judicial
magistrate the judgment of the high companyrt virtually disposed
of the case finally. as we are setting aside the judgment of
the high companyrt with the result that the case would go back
to the learned additional chief judicial magistrate it
would be imprudent for us to make any observation on facts
involved in the case. there is a clear cut and well demarcated sphere of
activity in the field of crime detection and crime
punishment. investigation of an offence is the field
exclusively reserved for the executive through the police
department the superintendent over which vests in the state
government. the executive which is charged with a duty to
keep vigilance over law and order situation is obliged to
prevent crime and if an offence is alleged to have been
committed it is its bounden duty to investigate into the
offence and bring the offender to book. once it investigates
and finds an offence having been companymitted it is its duty to
collect evidence for the purpose of proving the offence. once that is companypleted and the investigating officer submits
report to the companyrt requesting the companyrt to take companynizance
of the offence under s. 190 of the companye its duty companyes to an
end. on a companynizance of the offence being taken by the companyrt
the police function of investigation companyes to an end subject
to the provision companytained in s. 173 8  there companymences the
adjudicatory function of the judiciary to determine whether
an offence has been companymitted and if so whether by the
person or persons charged with the crime by the police in
its report to the companyrt and to award adequate punishment
according to law for the offence proved to the satisfaction
of the companyrt. there is thus a well defined and well
demarcated function in the field of crime detection and its
subsequent adjudication between the police and the
magistrate. this has been recognised way back in king
emperor v. khwaja nazir ahmad 1  where the privy companyncil
observed as under
in india as has been shown there is a statutory
right on the part of the police to investigate the
circumstances of an alleged companynizable crime without
requiring any authority from the judicial authorities
and it would as their lordships think be an
unfortunate result if it should be held possible to
interfere with those statutory rights by an exercise of
the inherent jurisdiction of the companyrt. the functions
of the judiciary and the police are companyplementary number
overlapping and the companybination of individual liberty
with a due observance of law and order is only to be
obtained by leaving each to exercise its own function
always of companyrse subject to the right of the companyrt to
intervene in an appropriate case when moved under s.
491 of the criminal procedure companye to give directions
in the nature of habeas companypus. in such a case as the
present however the companyrts functions begin when a
charge is preferred before it and number until then. this view of the judicial companymittee clearly demarcates
the functions of the executive and the judiciary in the
field of detection of crime and its subsequent trial and it
would appear that the power of the police to investigate
into a companynizable offence is ordinarily number to be interfered
with by the judiciary. some attempt was made to impress us with utterly
irrelevant factors as to how much freight tisco is paying to
the railways every year and even the amount which may become
payable in view of the disputed facts was also paid some
time prior to the filing of the first information report. we
would refrain from making even an implied observation on any
facts involved in the dispute. the case is number at a stage
where the companyrt is called upon to quash the proceedings as
disclosing numberoffence but the case is at a stage where
further investigation into the offence is sought to be
thwarted by interference in exercise of the extra-ordinary
jurisdiction. apart from reiterating the caution
administered way back in khawaja nazir ahmads  supra  case
that unless an extra-ordinary case of gross abuse of power
is made out by those in charge of investigation as numbered in

n. sharma v. bipen kumar tiwari ors.  1  the companyrt should
be quite loathe to interfere at the stage of investigation
a field of activity reserved for police and the executive. it would be advantageous to extract what this companyrt observed
in s.n. sharmas case
it appears to us that though the companye of
criminal procedure gives to the police unfettered power
to investigate all cases where they suspect that a
cognizable offence has been companymitted in appropriate
cases an aggrieved person can always seek a remedy by
invoking the power of the high companyrt under art. 226 of
the companystitution under which if the high companyrt companyld
be companyvinced that the power of investigation has been
exercised by a police officer mala fide the high companyrt
can always issue a writ of mandamus restraining the
police officer from misusing his legal powers. number only such a case is number made out but the high companyrt by
an utter misconception of its jurisdiction almost directed
the magistrate before whom the papers are pending to act in
a manner as enjoined by the high companyrt. how the high companyrt
has usurped the jurisdiction of the learned magistrate the
following passage from the judgment of the high companyrt would
be illustrative. after setting aside the impugned order of
the learned magistrate dated february 24 1979 and
remitting the case to the learned magistrate the high companyrt
gave the following direction
he will number proceed to companysider the final report
submitted by the police  c.i.d. . i should however
like to observe for the benefit of the learned
magistrate that he will bear in mind that mere failure
to follow rules and regulations
is neither cheating number breach of trust. he will also
bear in mind while applying himself to the case diary
with all thoroughness whether there is any material to
show that the railways have suffered. in order to
constitute offence cheating causation of damage or harm
to a person in body mind reputation or property is
essential. the learned magistrate will direct his
attention to this aspect of the matter. loss to the
railways cannumber be presumed merely from the fact of
irregular booking. the learned magistrate will companysider
the effect of issuing of despatch advice and forwarding
numberes by tisco at the time of despatch of goods. the
learned magistrate will also bear in mind that mere
failure to pay does number amount to cheating for mere
breach of companytract is number cheating. the attention of
the learned additional chief judicial magistrate is
particularly drawn to the cases of harkrishna mahatab

emperor  air 1930 patna 209  major robert stuart
wauchope v. emperor  air 1933 calcutta 800  and the
state of kerala v. a. prasad pillai and anumberher  air
1973 sc 326 . to my mind that railway as an
organisation profited rather than lost by the unusual
procedure adopted in relation to tisco. the learned
magistrate will also companysider whether the whole case
diary reveals any material indicating that any public
servant had enriched himself either by bribery or by
breach or by breach of faith. after going through the
case diary thoroughly the learned magistrate will
decide dehors the recommendation of superintendent of
railway police respondent number 7 and c.i.d. whether any
offence had been companymitted and if so which accused
should be put on trial. is there anything more required to write the final
epitaph and say amen by the learned additional chief
judicial magistrate after the finding is recorded by the
high companyrt more especially finding of fact that railway
organisation has profited rather than lost by the unusual
procedure ? it is a clear case of usurpation of jurisdiction
vested in the learned addl. chief judicial magistrate to
take or number to take companynizance of a case on the material
placed before him. the high companyrt in exercise of the extra-
ordinary jurisdiction companymitted a grave error by making
observations on seriously disputed questions of facts taking
its cue from affidavits which in such a situation would
hardly provide any reliable material. in our opinion the
high companyrt was clearly in error in giving the direction
virtually amounting to a mandamus to close the case before
the investigation is companyplete. we say numbermore. there are some serious allegations made against
respondent 6 by the original petitioner and some of them
were repeated with vehemence even at the hearing before this
court. we do number propose to examine them on merits save and
except saying that once the investigation was taken over by
respondent 3 and the companyclusion reached by respondent 6 and
his subordinate investigating officer to file the charge-
sheet was number acted upon the stage at which the case was
brought to the high companyrt did number call for investigation
into the mala fides of respondent 6 appellant in the
cognate appeal. after making him a respondent in the high
court an opportunity was taken to cast aspersions against
his character. his whole attitude in registering an offence
and directing investigation into the offence has been
questioned though an independent officer number even remotely
connected with police department the companymissioner of chhota
nagpur division found substance in the first information
report in the investigation done by respondent 6 and his
conclusion which again was affirmed by d.i.g. railway number
shown to be biased. the high companyrt interfered at the stage
where investigation was to be taken up by an independent
agency and therefore the so called bias of respondent 6
becomes wholly irrelevant. it must however be pointed out
that if an information is lodged at the police station and
an offence is registered the mala fide of the informant
would be of secondary importance if the investigation
produces unimpeachable evidence disclosing the offence.