IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Petition No.244 of 2011
In the matter of an application under Article 226
and 227 of the Constitution of India.
1. Balmiki Singh, Son of Late Ram Avtar Prasad
2. Smt. Indira Devi wife of Sri Balmiki Singh,
3. Amarjeet Kumar, Son of Sri Balmiki Singh &
4. Samarjeet Kumar, Son of Sri Balmiki Singh,
All residents of Besides Shiv Mandir Gali,
Sheikhpura, P.S.Hawai Adda, P.O.-B.V.College,
District-Patna ... .... Petitioners
Versus
1. The State Of Bihar,
2. The Chief Secretary, Govt. of Bihar, Patna.
3. The Director General of Police, Bihar, Patna.
4. Additional Director general of Police, Vigilance
Investigation Bureau, Bihar, Patna.
5. The Inspector General of Police, Vigilance
Investigation, Patna.
6. The Senior Superintendent of Police, Patna.
7. The District Magistrate, Patna District.
8. The Superintendent of Police, Vigilance
Investigation Bureau, Bihar,6, Circular Road, Patna.
9. Dy.Superintedent of Police Department of Vigilance,
Investigation Bureau, Bihar, 6, Circular Road, Patna.
10.Sri Prakash Nath Mishra, Son of Sri Amarnath
Mishra, Senior Dy.S.P.,Vigilance Investigation Bureau
6, Circular Road, Patna.
11. Sri Shekhar Kumar, Son of Shri Shiv Narayan
Prasad, Senior Dy.S.P.,Vigilance Investigation Bureau,
Patna.
12. Sri Srikant Rai S/O not known, Police Inspector of
Vigilance Investigation Bureau, Bihar, Patna.
13. Sri Shiv Chandra Singh, Dy.S.P.,Vigilance Bureau,
Bihar, Patna.
14. The Officer Incharge of Hawai Adda Police Station,
Patna.
15. Sri Anand Jain S/O Late Budhsain Jain, resident of
DU/52, First Floor, Uttari Pitampura, Delhi-88.
16. Smt. Mamta Jain, W/O Sri Anand Jain, resident of
DU/52, First Floor, Uttari Pitampura, Delhi-88.
17. Sanjay Kumar, Excise Superintendent, Office of the
Excise Deputy Commissioner, Patna Division, Patna. &
Ors
.... .... Respondents
2
With
CRIMINAL REVISION NO. 1196 OF 2010
Against the order dated 16.07.2010 passed by
Special Judge, Vigilance-Ist, Patna in
Special Case No.62 of 2009.
------
1. Smt. Indra Devi, W/O Balmiki Singh,
2. Sri Balmiki Singh, Son of Late Ramaudar Prasad Singh
&
3. Sri Samar jeet Kumar, S/O Balmiki Singh.
All resident of Mohalla-Shaikhpura beside Shiv Mandir
Gali, P.S. Hawai Adda, District-Patna.
.... .... Petitioners
Versus
State Of Bihar Through Vigilance.... .... Respondent
For the Petitioners: Sri Shakil Ahmad Khan,
Senior Advocate.
Sri Indu Bhushan, Advocate.
For the Respondent:- Sri Arvind Ujjwal, S.C.25.
Sri Sushil Kumar Mallik,
A.C. to S.C.25
For the Vigilance:- Sri Arvind Kumar,
Law Officer, Vigilance.
(In Cr.W.J.C.No.244 of 2011 &
Cr.Revision No.1196 of 2010, both)
P R E S E N T
THE HON‟BLE SHRI JUSTICE DHARNIDHAR JHA
Dharnidhar Jha,J. These two petitions arise out of Vigilance
P.S.Case No.62 of 2009 pending before Special Judge,
Patna. They have been heard together and are being
disposed of by this common order.
2. The Criminal Writ Petition has been filed
by Balmiki Singh, his wife and their two sons out of
whom Smt. Indra Devi wife of Balmiki Singh, Balmiki
Singh himself and his son Samarjeet Kumar, have
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preferred the Criminal Revision Petition also. The
Criminal Writ Petition has been filed for issuing the
writ in the nature either of certiorari or mandamus for
quashing the seizure list-cum-inventory dated
12.06.2009 under which cash amounting to rupees Twenty
lakhs and some important documents as also Tata Indica
vehicle bearing registration no.BR-IX-8245 were seized.
The further prayer is to issue suitable directions for
initiating appropriate legal action against the erring
respondents who were the officials of the Vigilance
Department, Bihar with further directions to the
Government of Bihar to provide suitable compensation to
petitioners as they had been unnecessarily agonized
mentally and had been put to economic loss besides
being abashed in the society.
3. The above reliefs have been sought for
under the facts that the officers of the Vigilance
Department who are respondents no.10 to 13 entered
inside the house of the petitioners and conducted a
search of it during which course rupees Twenty lakhs in
cash with some documents as per seizure memo were
recovered as per inventory-cum-seizure list(Annexure-
6). Other articles were also found there and they were
all seized and a copy of the seizure list was handed
over to petitioners Balmiki Singh and his two sons. Out
of the total seized amount, some part of it was
4
returned to the petitioner Balmiki Singh and the
remaining sum of money was kept by the Vigilance
Department.
4. As per replies of the respondents the sum
of money which had been kept in custody of the
petitioners belonged to Sanjay Kumar, accused of
Vigilance P.S. Case No.62 of 2009 who happens to be the
son-in-law of petitioner Balmiki Singh. On account of
recovery of the cash, etc. another case, vide P.S.Case
No.86 of 2009, was registered regarding the acquisition
of properties disproportionate to the known sources of
income of accused Sanjay Kumar.
5. It appears that the petitioners had moved
the learned Special Judge, Vigilance-I, Patna seeking
the release of Rs.4,63,458/- to the petitioners along
with the car and further cash amount of Rs.2,41,599/-.
6. The contention was that Section 102 Cr.P.C.
does empower any police officer to make a search of any
house or premises, etc. on suspicion that any property
which could have been obtained after commission of
theft or which was suspected to be subject matter of
commission of any offence may be seized by the police.
It was contended that as soon as the seizure had been
made, Section 102(3) requires that the report thereof
must be made, to the Magistrate having jurisdiction in
the matter forthwith. It was contended that the word
5
„forthwith‟ has been explained by various judgments in
different context and it has been held that there
should not be any unreasonable time lag in making the
report and as such delay of over two months in lodging
the case and showing the recovered properties and
articles as the subject matters of that case is not to
be countenanced as may be evident from the language of
Section 102(3)Cr.P.C. It was contended that the
inventory and seizure be quashed and the reliefs as
sought for including the direction to the investigating
agency to release the properties/documents seized from
the house of the petitioners be granted.
7. When the learned counsel rose up to make
submissions on the two petitions on 19.09.2011, the
court had pointed out to him the provision of Section
22 of the Bihar Special Courts Act, 2009 which creates
a bar in maintaining a „suit or other legal
proceedings‟ in respect of any money or property or
both ordered to be confiscated under Section 15 of the
said Act. The learned counsel for the petitioners in
the two petitions took time to examine the provision,
whereas the learned counsel appearing for the Vigilance
Department also sought adjournment for seeking
instructions. Affidavit has been filed by the Vigilance
Department indicating as if the confiscation proceeding
has now been initiated in respect of the subject matter
6
of the Vigilance P.S.Cases no.69 and 46 both of 2009
regarding the disproportionate assets acquired by the
accused Sanjay Kumar.
8. It was contended by Sri Shakil Ahmad Khan,
Senior Counsel for the petitioners that unless an order
had been passed the bar under Section 22 of the Act
shall not apply. Section 22 of the Act reads as under:-
“Bar to other Proceedings.-Save as provided in
Section 9 and 17 and notwithstanding anything contained
in any other law, no suit or other legal proceedings
shall be maintainable in any Court in respect of any
money or property or both ordered to be confiscated
under Section 15.”
9. The language of the Section indicates as if
the mere pendency of confiscation proceedings may not
operate as a bar to maintaining any suit or other legal
proceeding because the words „ordered to be confiscated
under Section 15‟, appearing in Section 22 of the Act,
clearly indicates that the bar may operate only when
the properties have been ordered to be confiscated.
However, if the proceedings for confiscation of the
proceedings has been initiated and that is pending
adjudication of the Authorized Officer, then in my
considered view, any Court, even acting under Article
226 or 227 of Constitution of India should refrain from
interfering with the special proceedings after an
application under Section 13 of the Act has been filed
as the very interference shall be obstructing the
7
exercise of a very special power of a special forum
and thus frustrate the object of the Act for which it
was enacted. Further, the confiscation proceeding to be
initiated or already initiated, in any case, has never
to end in a final order, it may be challenged under
Section 17 of the Act before this Court and in case any
instances of prejudice or other illegality was pointed
out, this Court may set the same right. Acting under
Article 226 or 227 of the Constitution may not allow an
appropriate lawful forum to exercise its jurisdiction
to adjudicate the proceedings and pass a final order
under Section 15 of the Act. In the present view of
mine, I am of the opinion that neither the writ
petition nor the criminal revision petition is
maintainable.
10. However, considering the importance of the
issue as to whether the officers of the Vigilance
Department were justified in making the search of the
house of the petitioners and seize the properties as
per inventory-cum-seizure memo (Annexure-6) without
registering the first information report, I have
decided to proceed to decide this particular question.
11. Police has a statutory, solemn power of
investigating a case after registering the FIR. The
power of the police to investigate a cognizable case
flows from the provisions of Sections 156 and 157
8
Cr.P.C. Section 156 empowers an officer-in-charge of a
police station to investigate any cognizable case
without the order of the Magistrate who may have the
jurisdiction over such local area. It may further
appear from sub-Section(2) to that Section that the
power of a police officer to investigate such
cognizable case could never be questioned through any
proceeding at any stage of the investigation on the
ground that such police officer was not enjoying the
power. On perusal of Section 157 Cr.P.C. what appears
is that the investigation of a cognizance case may be
initiated by any officer empowered under Section 156
Cr.P.C. if he has reason to suspect the commission of
an offence and if he starts the investigation he shall
have to send the report of the same to a Magistrate
empowered to take cognizance of such offences upon a
police report. What follows from the provision is that
there may not be any bar or prohibition in proceeding
to investigate any information, raising even a
suspicion of commission of any cognizable offence and
if the police stumbles upon material evidence showing
commission of such offence or offences, it may collect
them and later on register the First Information Report
and send the report to the Magistrate as soon as he has
drawn up the First Information Report. Collection of
evidence being the only purpose of an investigation,
9
there is no harm that the police prepared the documents
in respect of those steps of investigating the case.
However, this power of police is never qualified by the
fact that it should always first institute the FIR and
then proceed to investigate the case. If the provision
of Section 157 Cr.P.C. be construed that way, then the
whole purpose of empowering the police officer to
investigate a cognizable case merely on suspicion shall
be frustrated. It could best be illustrated by the very
facts of the present case. The police was investigating
the acquisition of disproportionate assets by accused
Sanjay Kumar who happened to be the son-in-law of the
petitioner Balmiki Singh. The police had information
that the said accused had stashed his illegally amassed
money or other properties at different places by
putting the same in custody of different persons. If
the police was to register the case first and then was
to go to search the places then there might have been a
very strong possibility that the persons in whose
custody the properties had been put could have removed
or concealed the properties to such an extent as to
making it inaccessible by the police officers. This is
the reason that in the cases of the present nature,
generally the police conducts the raids, searches the
premises or houses or even different banking or
financial institutions where the accused is suspected
10
to have stashed his properties either in the form of
money or in any other form and, thereafter sits down to
stitch up the facts to frame the FIR for filing the
report with the Magistrate with all copies of seizure
memoes, etc. If the above procedure is not followed,
then it could be almost in every case that no property
could be recovered or seized. It could be in the above
background that the word „forthwith‟ has to be
construed.
12. It is not that only this Court is taking
the present view and the same was never taken by any
other court that the police may, first, go to search a
premises or any place suspected to store the stolen
property or any other property which may be the subject
matter of commission of any offence and recover the
same and thereafter register the case. It is true that
generally the police registers the FIR in cases of
general nature involving general offences under the IPC
or any other law and thereafter proceeds to investigate
the case, but that is not always the rule. In cases in
which there could be suspicion of commission of any
other offence, it is always permissible for the police
that they go, first, to conduct the searches and
recover the properties and then file the report. This
question was considered, probably, for the first time
by the Privy Council in Emperor Vrs. Khwaja Nazir Ahmad
11
reported in AIR 1945 Privy Council 18. It was held by
their Lordships as follows:-
“But, in any case, the receipt and recording of
an information report is not a condition precedent to
the setting in motion of a criminal investigation. No
doubt in the great majority of cases, criminal
prosecutions are undertaken as a result of information
received and recorded in this way but their Lordships
see no reason why the police, if in possession through
their own knowledge or by means of credible though
informal intelligence which genuinely leads them to the
belief that a cognizable offence has been committed,
should not of their own motion undertake an
investigation into the truth of the matters alleged.
Section 157, Criminal P.C., when directing that a
police officer, who has reason to suspect from
information or otherwise that an offence which he is
empowered to investigate under S.156 has been committed
shall proceed to investigate the facts and
circumstances, supports this view. In truth the
provisions as to an information report (commonly called
a first information report) are enacted for other
reasons. Its object is to obtain early information of
alleged criminal activity, to record the circumstances
before there is time for them to be forgotten or
embellished, and it has to be remembered that the
report can be put in evidence when the informant is
examined if it is desired to do so.”
13. Thus, what may appear from the above
observations of the Privy Council, the police is duly
entitled to conduct the searches first on account of
some exigencies and seize properties/documents, etc.
and thereafter to register the report. It is true that
conducting a search and seizing a property are part of
investigation, but criminal law could not be put into a
straight jacket so as to be blinded by procedural
technicalities. It has always to be interpreted in such
a way as to permitting investigations, inquiries and
12
trials to eliminate commission of offence and further
the cause of justice by allowing proper collection of
evidence and then putting them together through
different reports or documents before the court of
justice for adjudication of the indictment.
14. In addition to the above reason what may
further be found, as I have noted also, conducting a
search and recovering or seizing any property, or a
document, etc. and preparing documents in that behalf
are all parts of investigation, or better put, steps in
investigation of a criminal offence. They are very much
part and parcel of investigation which is the
statutorily earmarked jurisdiction of police. Section
156(2)Cr.P.C. clearly prohibits questioning such
proceedings of a police officer on ground indicated
therein. Thus, there is a statutory bar also in
maintaining any petition seeking any part of
investigation like the search and seizure, to be
quashed as the same always has to be interpreted as
interfering with the statutory powers of the police to
investigate a cognizable offence. This position has
been clarified by innumerable decisions of various
Courts. The same decision in Khwaja Nazir
Ahmad(Supra)elucidates the law as follows:-
In their Lordships‟ opinion however, the more
serious aspect of the case is to be found in the
resultant interference by the Court with the duties of
the police. Just as it is essential that every one
13
accused of a crime should have free access to a Court
of justice so that he may be duly acquitted if found
not guilty of the offence with which he is charged, so
it is of the utmost importance that the judiciary
should not interfere with the police in matters which
are within their province and into which the law
imposes upon them the duty of enquiry. In India as has
been shown there is a statutory right on the part of
the police to investigate the circumstances of an
alleged cognizable 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 Court. The functions of the
judiciary and the police are complementary not
overlapping and the combination 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 course, subject to the right of the Court to
intervene in an appropriate case when moved under
S.491, Criminal P.C., to give directions in the nature
of habeas corpus. In such a case as the present,
however, the Court‟s functions begin when a charge is
preferred before it and not until then.
15. In the above views of the matter, it could
not be said that the search of the house of the
petitioners were without jurisdiction and was
completely arbitrarily or illegal which required the
issuance of the writs as was prayed for.
16. I find no merit in the writ petition and
Cr.Revision petition and the two petitions are hereby
dismissed.
( Dharnidhar Jha,J.)
Patna High Court,
Dated, the 26th day
of September, 2011,
Brajesh Kumar/AFR
