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Judgment
The petitioners are accused in Economic Offence Police
Station Case No.4 of 2012. They have invoked the writ jurisdiction
of this Court, under Articles 226 and 227 of the Constitution of India,
to quash the F.I.R. of aforesaid case registered under Sections
387 / 420 / 120B of the Indian Penal Code vide Annexure-4.
It appears that after investigation the police has
already submitted charge sheet in Economic Offence P.S. Case No.4
of 2012 against the petitioners. Hence, second prayer is for quashing
of the cognizance order, dated 25.07.2014, passed by the learned
Sub-Divisional Judicial Magistrate, Patna, vide Annexure-5. Further
prayer is for quashing the notification dated 25.03.2013 issued by
respondent No.3, Special Secretary, Home (Police Department),
Government of Bihar, whereby Economic and Cyber Crime Unit
has been changed into Economic Offence Police Station with
retrospective date from 15.12.2011 vide Annexure-2.
The challenge is on the ground that the government
cannot declare Economic Offence P.S. with retrospective date from
15.12.2011 vide Gazette Notification dated 26.03.2013 at Annexure-
In the circumstances, institution of the F.I.R. and investigation of
the case by Economic Offence Police Unit is without jurisdiction and
vitiated in law. Reliance has been placed on the case of Smt. Ram
Deni Devi v. State of Bihar reported in 2011(1) PLJR 1097.
Further challenge is on the ground that the F.I.R.
discloses no offence, which is fit to be investigated by Economic
Offence Police. Reliance has been placed on Annexure-1 for what
type of offences may be investigated by the Economic Offence
Police.
The respondents have filed a detailed counter affidavit
resisting the prayer of the petitioners inter alia on the ground that for
mere technicalities the executive act cannot be faulted. The issue
regarding creation of Economic Offence Unit especially with
retrospective effect was under consideration before a larger Bench of
this Court in Cr.W.J.C. No.563 of 2013, Md. Yunus V. The State of
Bihar and others along with other connected criminal writ
applications and the majority view of the Hon''ble Bench is that there
is no infirmity or lack of competency in creation of the Economic
Offence Unit. Respondents further asserted that the quashing of the
F.I.R. should only be resorted to when the F.I.R. discloses no offence
or the same suffers from malicious prosecution. In the present case
the F.I.R. discloses the criminal acts alleged against the petitioners
and after investigation charge sheet had already been submitted and,
accordingly, cognizance taken against the petitioners.
In Cr. W.J.C. No.563 of 2013, the majority view
came after opinion of the third Hon''ble Judge expressed in his
judgment dated 08.03.2017 wherein at para-3 the Court stated the
question involved for consideration as follows;
"The primal question involved in these group of writ petitions is, whether the exercise carried on by the State Government in establishing "Economic Offence Police Station" is an exercise in futility or not, because based thereon what would be the effect on the F.I.R. so registered, police investigation, charge-sheet, trial and conviction?"
After considering the different provisions of the
Cr.P.C ., the Police Act and the different notifications, (which are
under challenge in this writ application also), the Hon''ble Bench
concluded in paragraphs-28 and 29 as follows;
"28. The only issue left is, whether this exercise done by the State would amount to valid declaration within the meaning of Section 2 (s) of the Cr.P.C . I see no reason to hold otherwise. Section 2 (s) of the Cr.P.C . clearly confers jurisdiction upon the State to make a declaration either generally or specifically in relation to creation of a Police Station. It is purely an administrative act and the consequences which follow are stipulated in the Cr.P.C . itself. The order of the State Government dated 01.12.2011 read with that of 15.12.2011 is a clear declaration in terms of Section 2 (s) of the Cr.P.C . It is not denied that these decisions were taken by the Secretary, Department of Home (Police), Government of Bihar, who under the Rules of the Executive Business of the State of Bihar, was competent to take. Both these decisions were put on the website of the State Government and accessible to public at large. As already held that there is no requirement in law that such a Police Station can only be created by a gazette notification.
That being so, the requirements of Section 2 (s) of the Cr.P.C . having been complied, it is futile on the part of the writ petitioners to urge that Economic Offence Police Station was not legally established with effect from 15.12.2011, when the decision was communicated to other persons, departments and on the website, and once the order was sent out, it became a final order/decision of the government. No doubt, it would have been better if they were notified in the official gazette, but as already indicated that, not being requirement of law and the requirement of law being mere declaration and that having been complied with, the establishment of Economic Offence Police Station cannot be questioned.
Needless to say that it is not a rank illegality, for, in my view, it is not even an irregularity, for the compliance of law being there, no objections could be taken by the writ petitioners. Moreover, it is well settled even otherwise that an irregularity in investigation would not vitiate the trials unless serious prejudice is shown by the writ petitioners. The writ petitioners do not have the liberty of choice of investigating agency, which is the prerogative of the State, in its sovereign function to control and investigate criminal offences and ensure prosecution of the offenders."
Considering the aforesaid binding precedent, this
Court is of the view that there is no infirmity in creation of Economic
Offence Unit by the State-respondents with retrospective effect. In
view of the finding in para-29 of the judgment (supra) there is no
merit in the ground of in-competency of the investigation of the case
by Economic Offence Police. The Court has harmoniously
reconciled the notifications vide Annexures 1, 2 and 3 of this
application in the judgment aforesaid. Therefore, this writ application
has got no merit so far prayer for quashing of the aforesaid
notification vide Annexure-1 and Annexure-2 is concerned.
Now the second point for consideration is whether the
First Information Report of Economic Offence Police Station Case
No.4 of 2012 discloses any offence against the petitioners. In
paragraphs-8 and 9 of the writ application, the petitioner has
reproduced the contents of the F.I.R. and its institution as follows:
"8. That on 11.07.2012 Anand Kumar Sub-Inspector S.T.F. Bihar, Patna wrote to the Station House Officer, Economic Offence Unit Police Station Bihar Patna mentioning therein that he got secret information on 11.07.2012 at 12:30 PM about the tender of 10 crores for building construction is going to be finalized on 11.07.2012 itself same is going to be influenced by notorious Shambhu-Mantoo Group. It also came to know that Shambhu- Mantoo Group earns 5% of total contract amount in getting allotment of contract in favour of own contractor with the connivance of CPWD Patna High Court Cr. WJC No.399 of 2015 dt.30-05-2017
Officials and employees. The informant also got information that Shambhu-Mantoo Group have also threatened to kill to the contractors so that the contractor may not participate in order to hurdle to the contractor in whose favour.
Shambhu-Mantoo Group intended to allotment of tender. Shambhu-Mantoo Group has also created tense situation in order to see the tender be allotted in wrong person. For that work employee and official of CPWD directly or indirectly helps to the Shambhu-Mantoo Group resulting offence attracting to the economic offence indirectly which requires to enquire into the matter after going in deep so that the government money and government scheme be protected.
That on the basis of the aforesaid written complaint police registered Economic Offence P.S. Case No.04/12 dated 11.07.2012 for the offences under Sections 387, 420, 120B Indian Penal Code against the petitioners and official and employee of CPWD. After investigation police has submitted charge sheet against the petitioners also for the offences under Sections 387, 420, 120B and aforesaid case is pending in the Court of S.D.J.M., Patna Economic Offence Case No.04/12."
A bare perusal of Annexure-4, i.e., the F.I.R. of
Economic Offence P.S. Case No.4 of 2012, would reveal that
informant Anand Kumar, Sub-Inspector of Police, got confidential
information on 11.07.2012 that on the same day a tender of rupees
ten crores is going to be finally decided for construction of the
building by building construction department. The veteran criminal
group of Shambhu-Mantoo (petitioners) were likely to influence the
tender. It has also been alleged that the group of the petitioners in
collusion with the officers and employees of the Central Public
Works Department get tender accepted in favour of their favourable
contractors and the petitioners get 5% of the same as extortion
money. The informant further disclosed that there is definite
information that other contractors participating in the tender are
likely to be murdered by the group of the petitioners. Hence, others
are terrorized. In the circumstances, there is likelihood of the public
money going into the wrong hands and in the way a big economic
offence is likely to be committed.
A bare perusal of the aforesaid complaints as well as
the averment of the petitioners aforesaid, apparently discloses
commission of the cognizable offence against the petitioners
affecting the economy of the State. Hence, it cannot be argued that
the Economic Offence Unit of the police cannot institute and
investigate the case.
Moreover, as reproduced in para-29 of the referred
judgment above, the investigation already conducted by some police
authority cannot be faulted on the ground that he had no authority to
investigate as the State has prerogative to choose the Investigating
Agency and not the alleged offenders. The ratio decided in Ram
Deni Devi case (supra) is not helping the claim of the petitioners that
the impugned notifications cannot have retrospective operation. In
para-16 of Ram Deni Devi case (supra) a Division Bench of this
Court observed as follows:
"16. There is no gainsaying that the Parliament or a State Legislature has power to enact laws and also to specify the date from which such law shall become applicable. The operation of such law may be made retrospective by an express provision or by necessary implication. But how far such law can be made retrospective in operation has to be decided in the context of the matter." 11. Hence, there is no merit in this application and,
accordingly, it stands dismissed.