Paras Kumar And Ors vs State of Jharkhand And Ors

With consent of the parties, hearing of the matter was done through video conferencing and there was no complaint whatsoever regarding audio and visual quality.

Both these appeals are directed against the part of common order dated 19.12.2017 passed by the learned Single Judge of this Court in W.P.(S) No. 6314 of 2016 and W.P.(S) No. 4056 of 2016 whereby and whereunder the learned Single Judge has declined to interfere with the ex-parte enquiry report dated 02.09.2016 prepared and submitted under the joint signatures of Respondent Nos. 6 to 8 (in W.P.(S) No.6314 of 2016) so far as it relates to petitioners with respect to the construction of the road work in 2007 from "Kankhapra to Satpahari" in the District of Deoghar, whereby after more than 8-9 years of execution of the said Road work on mechanical and physical verification of the same, loss amount of Rs.8,23,728/- has been sought to be saddled on the concerned Executive Engineer, Assistant Engineer, Contractor including the petitioners, who were posted as the Junior Engineers and have contributed to the work as such, while posted in R.E.O., Division, Deoghar.

The brief facts which are necessary to be enumerated read hereunder as :-

Both the writ petitioners, appellants herein, were working in the Rural Engineering Organization by way of deputation and on bifurcation of the State, they finally have been allocated their cadre for the State of Jharkhand. While the writ petitioners/appellants were discharging their duties under the Rural Engineering Organization, a preliminary enquiry has been initiated being P.E. No. 03/09 by the Anti Corruption Bureau for conducting an enquiry against the alleged irregularity in the matter of construction of one of the roads in the district of Deoghar during the period from June, 2007 to February, 2009. The aforesaid preliminary enquiry has been concluded by submission of report on 02.09.2016 finding complicity of the writ petitioners/appellants in the matter of construction of the roads. The writ petitioners, being aggrieved with the finding recorded in the preliminary enquiry dated 02.09.2016, had approached to this Court by filing writ petitions being W.P.(S) No.6314 of 2016 and W.P.(S) No. 4056 of 2016.

The learned Single Judge of this Court after hearing the counsel for the writ petitioners as also the respondent State of Jharkhand, has refused to interfere with the aforesaid preliminary enquiry on the following grounds :-

"(i) Admittedly, the aforesaid writ applications have been filed for quashing the enquiry report, dated 02.09.2016, whereby some deficiencies and irregularities have been found in the said report, basing on which the respondents have moved to take coercive action by lodging F.I.R. as well as other consequential action. If on the basis of the said inquiry report, any F.I.R. is lodged , then the petitioners could have the remedy to challenge the same before the appropriate Forum. So far as the enquiry report dated 02.09.2016 is concerned, indisputably, no departmental proceeding has since been initiated basing on the impugned enquiry report and unless any disciplinary proceeding is initiated and the petitioners are subjected to any evil or civil consequences, this Court under apprehension/presumption of the petitioners ought not to interfere in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, because it is too early, rather premature to tinker with the enquiry report dated 02.09.2016, unless, the rights of the petitioners being Government servants are adversely affected by any evil or civil consequences. Though, this Court would not like to interfere with the consequential action on the impugned enquiry report, but, if any future action would be taken by the respondents on the basis of the Vigilance Circular No. 1623, dated 07.08.2015, annexed as Annexure-7 to the I.A. No. 2631 of 2017, the petitioners shall be afforded reasonable opportunity, as enshrined in the aforesaid Circular, therefore, in the fitness of things without dwelling upon the nitty-gritty of the factual and legal aspects on the impugned enquiry report, interest of justice would be met, if a direction is issued to the respondents to take action in the event any action would be proposed to be taken basing on the enquiry report, the same be done after affording reasonable opportunity of hearing to the petitioners and in accordance with law."

The aforesaid order is the subject matter of the instant intra-court appeal.

Mr. Anil Kumar Sinha, learned Senior counsel appearing for the writ petitioner/appellant in L.P.A. No.40 of 2019, assisted by Mr. Krishna Murari, has submitted that the aforesaid preliminary enquiry although has been initiated sometime in the year 2009 but its report has come in the year 2016 which is contrary to the guidelines issued by the Cabinet Secretariat and Vigilance Department of the State of Jharkhand as contained in Circular No.1623 dated 07.08.2015 which contains the guidelines to be followed by the Anti Corruption Bureau of the State of Jharkhand wherein specifically it has been provided under Clause No.21(4)(v) that before converting the finding recorded in the preliminary enquiry into a criminal case, an opportunity of hearing is required to be provided to the accused while Clause 21(4)(viii) clearly provides maximum period of three months for completion of preliminary enquiry and if the enquiry is not going to be completed within the period of three months, power to extend the aforesaid maximum period of three months will be upon the Chief of the Bureau.

According to Mr. Sinha, since the preliminary enquiry has already been completed, therefore, in pursuance to Clause 21(4)(v) as contained in Circular dated 07.08.2015, the writ petitioners/appellants are required to be provided an opportunity to defend themselves but such opportunity has not been provided.

Secondly, his submission is that admittedly the preliminary enquiry has been initiated sometime in the year 2009 but has been completed on 02.09.2016, therefore, it is beyond the maximum period of three months and the aforesaid period of three months has never been extended as required under the aforesaid provision and hence the preliminary enquiry is absolutely illegal and as such, fit to be quashed and set aside but the learned Single Judge has not appreciated this aspect of the matter.

Mr. Pushkar Narain Shahi, learned Senior counsel, assisted by Mr. Harsh Preet Singh, representing the appellant in L.P.A. No. 44 of 2018, in addition to the argument advanced on behalf of Mr. Anil Kumar Sinha, has submitted that if any condition has been provided in the circular, the same has to be followed in its strict sense but as has been submitted by Mr. Sinha that the condition stipulated in Clause 21(4)(v) and 21(4)(viii) has not been followed, therefore, the aforesaid preliminary enquiry will be said to be in the teeth of the aforesaid circular.

The Anti Corruption Bureau has been represented by Mr. T.N.Verma, who has been heard at length.

This Court, after taking into consideration the fact that even after submission of the preliminary enquiry report on 02.09.2016, the matter is kept pending by the Cabinet Vigilance Department and as such a report was sought for as would be evident from the order dated 17.09.2020. In pursuance thereto, report has been brought on record by the Anti Corruption Bureau.

This Court has perused the aforesaid report and found therefrom that in spite of repeated request/reminders being made by the Anti Corruption Bureau to the Cabinet Vigilance Department, permission to institute F.I.R. has not been accorded and as such, the F.I.R. has not yet been instituted.

This Court, thereafter, vide order dated 21.09.2020 has passed an order directing the State to be ready with the answer as to why the concerned department did not give any opinion regarding whether the First Information Report should be registered or not?

This Court, taking into consideration the nature of the lis, has passed an order warranting the learned Advocate General to appear in this case.

Learned Advocate General, in pursuance of the aforesaid order, has put his appearance on behalf of the State of Jharkhand and presented the case of the State Authority by filing a detailed counter affidavit dated 19.10.2020 wherein it has been stated that the delay has been caused in taking final decision on the preliminary enquiry report due to non-approval of the Administrative Department. The parent department of Anti Corruption Bureau is the Cabinet Vigilance Department which is to accord permission to the Anti Corruption Bureau to institute the F.I.R. but prior to that approval of the Administrative Department i.e. Rural Engineering Organization is required but the aforesaid approval since has not been received in the Cabinet Vigilance Department therefore, delay has been caused. However, he submits that finally the approval has been accorded on 25.09.2020 for instituting F.I.R. against the accused of Vigilance Enquiry being P.E. No.03/09.

On the issue of non-compliance of condition stipulated under Clause 21(4)(v) which contains a provision to provide an opportunity to put forth his defence prior to conversion of the aforesaid enquiry into a criminal case, submission has been made that approval/sanction has been accorded by the Administrative Department on 25.09.2020 but before converting the preliminary enquiry into a criminal case an opportunity of hearing shall be provided to the writ petitioners/appellants as per the direction passed by the learned Single Judge of this Court.

So far as the condition stipulated under Clause 21(4)(viii), it has been submitted by refuting the argument advanced on behalf of writ petitioners/appellants that since the extension for conducting the preliminary enquiry has not been granted by the Bureau Chief, only on that ground preliminary enquiry will not vitiate since according to him, the aforesaid condition is not mandatory rather, it is directory. In support of his argument, he has relied upon the judgment rendered in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Others reported in (2003) 2 SCC 111 and in the case of State of Telangana v. Managipet alias Mangipet Sarveshwar Reddy reported in 2019 SCC OnLine SC 1559.

He has further raised an issue about maintainability of the writ petition since according to him, if the pleading of the writ petition or the instant appeal would be scrutinized the same since pertains to the commission of offence attracting the provision of Indian Penal Code or the Prevention of Corruption Act and as such, the writ petition filed under Article 226 of the Constitution of India will be treated to be a criminal proceeding and it is settled that if in a criminal proceeding any order has been passed by the writ court, L.P.A. will not lie. To substantiate his argument, he has placed reliance on a judgment rendered in the case of Ram Kishan Fauji v. State of Haryana and Others reported in (2017) 5 SCC 533.

In response to the aforesaid argument advanced on behalf of learned Advocate General, Mr. Anil Kumar Sinha, learned Senior counsel has relied upon the judgment rendered in the case of Lalita Kumari v. Government of Uttar Pradesh and Others reported in (2014) 2 SCC 1, more particularly, relying upon the direction as contained under Paragraph 120.6 thereof wherein it has been laid down that as to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases Since reference of corruption case has been made in the aforesaid paragraph of the aforesaid judgment, therefore, a preliminary enquiry is required to be conducted and accordingly it has been conducted but the question is when it has not been concluded within a maximum period of three months as required under the provision of Clause 21(4)(viii) of the Circular, therefore, the preliminary enquiry will vitiate.

Mr. Sinha, refuting the argument advanced on behalf of learned Advocate General about nature of guidelines as to whether it is said to be directory or mandatory, has relied upon the judgment rendered by the Division Bench of this Court in the case of Uttam Kujur v. State of Jharkhand and Others reported in 2008 (2) JCR 306 (Jhr) while Mr. P.K.Shahi, learned Senior counsel appearing for one of the appellants has relied upon, in this regard, the judgment rendered by Hon'ble Apex Court in the case of B.S. Minhas v. Indian Statistical Institute and Others reported in (1983) 4 SCC 582.

We have heard the learned counsel for the parties at length, perused the documents available on record as also the finding recorded by the learned Single Judge.

Before proceeding further to consider the legality and propriety of the impugned order, it requires to refer herein that the instant appeals are against part of the judgment since the learned Single Judge has passed two fold directions, firstly to provide an opportunity of hearing to the writ petitioners/appellants if the occasion so arises so that the condition stipulated under Clause 21(4)(v) be complied with and secondly, refused to interfere with the preliminary enquiry report holding it as premature.

The second part i.e. interference with the preliminary enquiry is the subject matter of the present appeal.

This Court, in order to answer the issue, deems it fit and proper to first consider as to whether :-

(i) L.P.A. would be maintainable or not ?

(ii) The nature of the guideline stipulated under Clause 21(4)(viii) in the circular dated 07.08.2015 is directory or mandatory?

(iii) If any cognizable offence is made out, F.I.R. can be instituted without any preliminary enquiry or not ? Issue No.(i) "L.P.A. would be maintainable"

It has been emphatically agitated by the learned Advocate General that the L.P.A. will not be maintainable, however, no argument in rebuttal has been advanced on behalf of learned counsel appearing the writ petitioners/appellants.

Learned Advocate General has relied upon the judgment rendered in Ram Kishan Fauji v. State of Haryana and Others (Supra) wherein the fact of the case is that the Chief Secretary to the Government of Haryana made a reference to the Lokayukta, Haryana to enquire into the allegations, namely,

(i) whether the allegations of bribery levelled in the alleged compact disc (CD) were correct, (ii) whether change of land use/licence was granted in pursuance of these allegations, and

(iii) whether by such act, any illegality was committed.

Lokayukta, Haryana thought it appropriate to recommend for registration of FIR for the offences punishable under the provisions of the Prevention of Corruption Act, 1988. The appellant had preferred civil writ petition praying for issue of a writ in the nature of certiorari for quashing of the impugned orders dated 20-1-2014 and 11-2-2014 passed by the concerned authority whereby it had recommended registration of a case against the petitioner therein under the provisions of the 1988 Act and further for issue of a writ or direction in the nature of mandamus restraining Respondent No.1 from initiating any consequential proceeding on the basis of the impugned orders.

The learned Single Judge had opined that an FIR has been registered on 4-12-2014, that is, after the writ petition was filed, when the issue of the authenticity of the CD was very much open for consideration. If the investigation is purported to be taken by lodging an FIR, consequent on the directions given by the order which is now quashed, it shall also be quashed.

The aforesaid order came to be assailed and the Division Bench had stayed the operation of the judgment passed by the learned Single Judge, subsequent thereto the aforesaid interim order has been made absolute by the order dated 12-5-2016 which was assailed before the Hon'ble Apex Court.

The issue involved in the appeal was whether the jurisdiction exercised by the learned Single Judge of the High Court was criminal jurisdiction in nature and thereby Letters Patent Appeal against such order was maintainable?

Answering in affirmative, the Hon'ble Apex Court has been pleased to lay down that maintainability of a Letters Patent Appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context.

The test, thus, is whether criminal proceedings are pending or not and the petition under Article 226 of the Constitution is preferred concerning those criminal proceedings which could result in conviction and order of sentence. When viewed from this angle, it is clear that if the FIR is not quashed, it may lead to filing of challan by the investigating agency, framing of charge and can result in conviction of order of sentence. Writ of this nature filed under Article 226 of the Constitution seeking quashing of such an FIR would therefore be "criminal proceedings" and while dealing with such proceedings, the High Court exercises its "criminal jurisdiction".

It is settled position of law that applicability of a judgment is to be seen in the facts and circumstances governing the case and there cannot be any universal applicability of the judgment, rather, it is to be tested on the facts and circumstances of each case as has been decided by the Hon'ble Apex Court in the case of Dr. Subramanian Swamy v. State of Tamil Nadu and others reported in (2014) 5 SCC 75 wherein at paragraph 47 the Hon'ble Apex Court has held which reads hereunder as :-

"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."

The facts of the case (Ram Kishan Fauji's case), the writ petition was filed under Article 226 of the Constitution for quashing of the recommendation of the Lokayukta. The said recommendation would have led to launching of criminal prosecution, and, as such, FIR was registered and criminal investigation was initiated. The learned Single Judge analysed the report and the ultimate recommendation of the statutory authority and quashed the same, as he found that FIR had been registered, he annulled it treating the same as a natural consequence. Therefore, the effort of the writ petitioner was to avoid a criminal investigation and the final order of the writ court is quashment of the registration of FIR and the subsequent investigation. In such a situation, to hold that the learned Single Judge, in exercise of jurisdiction under Article 226 of the Constitution, has passed an order in a civil proceeding as the order that was challenged was that of the quasi-judicial authority, that is, the Lokayukta, would be conceptually fallacious.

In the case at hand, the writ petition was filed under Article 226 of the Constitution of India for quashing of the preliminary enquiry report dated 02.09.2016. Admitted position is, as would be evident from the stand of the respondent State as also the Anti Corruption Bureau in the counter affidavit, that the finding recorded in course of preliminary enquiry will only be converted into a criminal case if it is approved by the Administrative Department, herein, Rural Engineering Organization, Jharkhand, and duly been sanctioned by the Cabinet Vigilance Department of the State of Jharkhand.

The further admitted position is that the approval for instituting an F.I.R. has been accorded by the Administrative Department i.e., on 25.09.2020 and the said approval is still to be sanctioned by the Cabinet Vigilance Department and, as such, on the date of filing of the writ petition since there was no approval either by the Administrative Department or sanction by the Cabinet Vigilance Department, the nodal department of the Anti Corruption Bureau, as such, the proceeding by way of writ petition under Article 226 of the Constitution of India will be treated to be a civil proceeding and at that stage there might be chance of non-approval of the preliminary enquiry report and in that circumstances there will be no likelihood of institution of F.I.R. In that view of the matter, the proceeding filed under Article 226 of the Constitution of India being in the nature of civil proceeding, in which the order has been passed by the learned Single Judge and as such, applying the ratio laid down in the case of Ram Kishan Fauji v. State of Haryana (Supra) the very nature of the suit before the learned Single Judge being civil in nature, hence, the Letters Patent Appeal will be maintainable against the order passed by the learned Single Judge.

Accordingly, the instant issue is answered. Issue No.(ii) "The nature of the guideline stipulated under Clause 21(4)(viii) in the Circular dated 07.08.2015 is directory or mandatory?"

The Cabinet Secretariat and Vigilance Department, State of Jharkhand has come out with a circular dated 07.08.2015. It is evident from the aforesaid circular that the erstwhile Vigilance Bureau has been restructured as Anti Corruption Bureau along with its working, accountability and determination of powers. It is evident from the preamble of the aforesaid circular that the State Government has taken decision considering the complaints of corruption against the public servants as also delay in disposal in the enquiry and the cases registered under the Prevention of Corruption Act and hence decision was taken to strengthen and restructure the Vigilance Bureau to achieve the object and intent and to deal with the corruption cases. The relevant condition for the present case which is required to be discussed is under Clause 21 which stipulates about preliminary enquiry wherein it has been decided to conduct a preliminary enquiry for alleged commission of irregularities leveled against the public servants or criminal mis-utilization of the post.

It is evident that under Clause 21 (4) (i) to 21(4)(iv) the competent authority has been defined to recommend for preliminary enquiry. Under the aforesaid provision, the subject matter of preliminary enquiry as also the role of the department in extending co-operation has been discussed.

Under Clause 21(4)(v) it has been stipulated that after completion of the preliminary enquiry if any offence has been found committed and if the enquiry is required to be converted into a criminal case, an opportunity of hearing is required to be provided to the accused.

Clause 21(4)(viii) provides maximum period of three months for completion of the preliminary enquiry, however, the aforesaid period of three months may be extended by the Chief of the Bureau.

Learned counsel for the writ petitioners/appellants have raised the issue of non-compliance of the condition stipulated under Clause 21(4)(v) and 21(4)(viii).

So far as the compliance of condition stipulated under Clause 21(4)(v) is concerned, learned Advocate General has conceded that the said condition shall be complied with and before instituting F.I.R., opportunity of hearing shall be provided. He further submits that since the State has not challenged the part of the order passed by the learned Single Judge which contains a direction to provide an opportunity of hearing before conversion of the finding recorded in the preliminary enquiry into a criminal case, therefore, there is no dispute that the said condition will not be complied with.

In view of such submission, we thought it proper not to give any finding in this regard, moreover, the said part of the order passed by the learned Single Judge since is not the subject matter of the present appeals hence there is no reason to go into this issue.

Learned Senior counsel for the writ petitioners/appellants, however, have given emphasis upon the non-compliance of the condition stipulated under Clause 21(4)(viii) and according to them, since the preliminary enquiry has not been completed within the period of three months and as per the counter affidavit filed on behalf of the Anti Corruption Bureau, three months' period has never been extended by Bureau Chief, therefore, the preliminary enquiry is not sustainable in the eyes of law. Submission has also been made in this regard that the aforesaid condition is mandatory in nature and hence, it has to be complied with by the concerned authority and having not been done, the preliminary enquiry will be said to be without jurisdiction.

Learned Senior counsel representing the writ petitioners / appellants has relied upon the judgment rendered by the Division Bench of this Court in the case of Uttam Kujur v. State of Jharkhand and Others (Supra) and the judgment rendered by Hon'ble Apex Court in the case of B.S. Minhas v. Indian Statistical Institute and Others (Supra).

On the other hand, learned Advocate General has submitted that the said condition cannot be said to be mandatory, rather, it is directory as because it has not been referred in the said condition that if the enquiry will not be completed within the period of three months, what would be the consequence and in absence of consequence, the said condition will be said to be directory and in that view of the matter, even if the preliminary enquiry has not been completed within the period of three months, the same will not be vitiated.

We have considered it fit to scrutinize the aforesaid judgment. In the case of Uttam Kujur v. State of Jharkhand and Others (Supra), the issue fell for consideration was with respect to observance of Resolution dated 25.10.1980 published in Extra-ordinary Gazette of the State of Bihar, comprehensive transfer and posting policy for the Government servants was notified by the then State of Bihar. Some of the important features of this resolution are required to be referred hereunder :

"The 25th October, 1980 Subject--Policy and procedure regarding transfer and posting of Government servants.

The policy and procedure regarding transfer and posting of Government servants has been laid down by the State Government, from time to time. The policy and procedure as laid down in the Personnel and Administrative Reforms Departments Resolution No. 14747, dated the 6th September, 1979 and No. 16609, dated the 18th October, 1979 which is enforced at present has failed to fulfill the desired objective. The matter has, therefore, been reconsidered by the State Government and with a view to further streamlining the policy and procedure of transfer and postings, the State Government have been pleased to take the following decisions in supersession of all previous orders:

(A) General policy regarding transfer and posting.--(1) Transfer and postings will generally be done twice, i.e., in May-June and November- December of each year:

Provided that in special circumstances, e.g., death, illness, vacancy or other administrative reasons transfer and posting could be made at any other time subject to the following conditions

(i) In respect of officers whose transfer/posting is done with the approval of Minister or by Council of Ministers, specific prior approval of the Chief Minister has to be obtained; and

(ii) In respect of such officers and Government employees whose transfer and posting is done by subordinate officers under delegated power of transfer, specific prior approval of the immediate superior officers is obtained.

(2) The duration of posting on any post and at any particular place will generally be for a period of 3 years. For some posts of places, the period of posting may. however be kept for 2 years which should be specified by the departments by Standing Orders.

xxx xxx xxx (B) Procedure for transfer and posting.--(1) xxx xxx xxx (2) Proposals regarding transfer, posting and deputation of such officers whose maximum pay in the pay scale exceeds Rs. 810 but dose not exceed Rs. 1,200 should be placed before the Minister-in-charge for orders after the recommendation of the Establishment Committee. Proposals regarding transfer, posting and deputation of such officer whose maximum pay in the pay scales exceeds Rs. 1,200 shall be placed before the Cabinet after obtaining the recommendation of the Establishment Committee and approval of the Minister-in- charge.

xxx xxx xxx"

(C) Formation of Establishment Committee.--(1) An Establishment Committee should be formed for each Department with the approval of the Departmental Minister for recommending transfer/posting of such officers whose transfer and posting is made by Government. The Committee will consist of the following officers:

(i) Commissioner and Secretary,

(ii) Seniormost head of Department,

(iii) One Special Secretary/Additional Secretary,

(iv) Suitable senior most officer of the Scheduled Caste/Scheduled Tribe. xxx xxx xxx"

It is, thus, evident that the aforesaid resolution indicates that the State Government has laid down norms for transfer and posting of the Government servants which has been carved out considering the situation that no statutory rules framed under proviso to Article 309 of the Constitution of India regulating the transfer and posting of Government servants in the State of Jharkhand and in that circumstances, it has been observed therein that if the Government has laid down norms and policy, there must be valid reasons to deviate from that. Admittedly, in the aforesaid judgment which pertains to the subject matter of transfer having been formulated by the undivided State of Bihar in absence of a rule regulating the transfer and as such, the position of law as has been laid down therein that in order to fill up the gap and lacuna, if any policy decision is framed out, the same has to be complied with, therefore, the basic object of the resolution dated 25.10.1980 is to regulate the transfer policy of the State so that while transferring one or the other public servants, the principle of fairness and transparency may be observed.

The judgment rendered in the case of B.S. Minhas v. Indian Statistical Institute and Others (Supra), the same also pertains to observance of bye-laws wherein it has been laid down that if the bye-laws have been framed for the conduct of its affairs to avoid arbitrariness, the same has to be followed.

Therefore, according to our considered view, both the judgments deal with the fact that if any guidelines have been formulated, the same is strictly to be adhered to, i.e., to avoid any arbitrariness.

The paramount consideration in both the judgments is that if any policy has been framed and if it is not being followed, the authority will be said to have acted arbitrarily.

The question of applicability of these judgments in the facts and circumstances of this case, have been scrutinized by us, as discussed hereinafter.

Learned Advocate General has relied upon a judgment rendered in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Others (Supra), more particularly, he has referred paragraph 42 and 43 thereof. We have gone across the aforesaid judgment and found therefrom that basic principle of construction of statute has been dealt with and while dealing with the same, it has been laid down that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative. Further, it is evident that if no consequence of non-compliance is stated in the statute, is to be considered as a factor tending towards a directory construction. Paragraph 42 and 43 are required to be referred hereunder which read as under :-

"42. We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative.

In Sutherland's Statutory Construction, 3rd Edn., Vol. 3, at p. 102 the law is stated as follows:

"... unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered a limitation of the power of the officer".

At p. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non- compliance with the provision. At p. 111 it is stated as follows:

"As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive."

According to us, the aforesaid principle laid down by Hon'ble Apex Court in the judgment referred hereinabove stipulates by laying down law that if any law has been formulated for completion of certain thing in specified time, the same is ordinarily directory but if it is along with consequence for inaction, the same will be said to be mandatory.

The judgments rendered by the learned counsel for the writ petitioners/appellants in this regard in the case of Uttam Kujur v. State of Jharkhand and Others (Supra) and B.S. Minhas v. Indian Statistical Institute and Others (Supra) is with respect to observance of the policy/bye-laws in order to achieve the object and intent for the purpose for which the guidelines or bye-laws have been formulated.

The State of Bihar has formulated the transfer policy on 25.10.1980 in order to avoid arbitrariness and to observe transparency and fairness in the transfer policy but if it will be allowed to be deviated, the same will lead to the arbitrary action on the part of the authority as also it will be unfair and non- transparent and ultimately the object and intent for which the policy has been formulated, will not be achieved.

It is well known that an interpretation of the statute which harmonizes with its avowed object is always to be accepted than the one which dilutes it.

The Hon'ble Apex Court in the case of State of West Bengal v. Union of India reported in AIR 1963 SC 1241 at page 1245, emphasized the importance of construing the statute as a whole, the relevant paragraph is being referred hereunder as:

"The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire Statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs."

The Hon'ble Apex Court, further in the case of N.K.Jain and Others v. C.K.Shah and Others reported in (1991) 2 SCC 495 has decided that for construing the provision of an Act a purposive approach should be adopted, in the aforesaid judgment, their Lordships of the Hon'ble Apex Court at paragraph 13 thereof has been pleased to lay down :

"The legislative purpose must be noted and the statute must be read as a whole. In our view taking into consideration the object underlying the Act and on reading Sections 14 and 17 in full, it becomes clear that cancellation of the exemption granted does not amount to a penalty within the meaning of Section 14(2-A)."

In view of the aforesaid settled position of law and this Court after going across the judgment relied upon by the learned Senior counsel appearing for the writ petitioners/appellants rendered by this Court in the case of Uttam Kujur v. State of Jharkhand and Others (Supra) and Hon'ble Apex Court in the case of B.S. Minhas v. Indian Statistical Institute and Others (Supra) wherein also the consideration of Court is upon the purposive approach of the circular dated 25.10.1980, the subject matter of case in Uttam Kujur v. State of Jharkhand and Others (Supra) and the bye-laws subject matter of the case of B.S. Minhas v. Indian Statistical Institute and Others (Supra) i.e. to avoid arbitrariness and the method leading to fairness and arbitrariness, herein also the circular reflects its object to deals strictly with the rampant corruption cases rising in the State of Jharkhand and therefore, on the basis of the principle of purposive approach of the circular if we will read it in entirety and on the ground of non-extension of three months' period of time, if the preliminary enquiry report will be declared to be vitiated at the threshold, the very purpose and object of the circular will not be achieved.

We, on following the aforesaid principle and on scrutinizing the guidelines dated 07.08.2015, has found from the very preamble that such guidelines have been formulated to achieve the object and intent of rampant corruption prevalent amongst the public servants and in order to deal with such situation strictly, the Vigilance Bureau has been restructured and strengthened so that impartial and fair enquiry may be allowed to be conducted.

Thus, the object and intent of the circular dated 07.08.2015 is to deal with the corruption rampant amongst the public servants and for this certain guidelines have been formulated. One of it is for completion of the preliminary enquiry within a period of three months subject to extension by the Bureau Chief and if there is no extension what would be the effect.

The question is that Clause 21(4)(viii) does not contain any consequence and as such, it will be treated to be directory in nature as per law laid down by Hon'ble Apex Court in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Others (Supra). Further, if on technicality the preliminary enquiry will be said to be vitiated, then ultimately the object and intent of the circular dated 07.08.2015 will not be achieved and further, even the judgment relied upon by the learned counsel for the writ petitioners/appellants in this regard is equally applicable taking into consideration the object and intent of the circular which is for the purpose of regulating the action of the authorities so that the very object of circular/bye- laws may be achieved applying the ratio of both the judgments in the facts of the case since herein also the circular dated 07.08.2015 has been issued by way of policy decision to deal with corruption cases in the State, as such, if on technicality the preliminary enquiry containing prima facie allegation of corruption will be quashed at threshold, the same will lead to encouraging the corruption amongst the public servants and thereby the very object of circular dated 07.08.2015 will not be achieved.

In view of the aforesaid discussion, we are of the considered view that the condition stipulated under Clause 21(4)(viii) is not mandatory, rather it is directory in nature. Issue No.(iii) "If any cognizable offence is made out, F.I.R. can be instituted without preliminary enquiry or not?"

In order to answer this issue we have gone across the judgment rendered in the case of Lalita Kumari v. Government of Uttar Pradesh and Others (Supra) upon which learned Senior counsel appearing for the writ petitioners/appellants have given much emphasize since as per paragraph 120.6 even in corruption case preliminary enquiry is required to be made but it is settled that every judgment is to be read out in entirety and not in piecemeal.

We have gone across paragraph 119 of the aforesaid judgment and found therefrom that registration or non- registration of F.I.R., what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. Reference of paragraph 119 is required to be made which reads as under :-

"119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR."

Further, if we read paragraph 120.6 which stipulates that under Condition No.(e) that cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

Further, under paragraph 120.7 it has been referred that while ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry, meaning thereby that reference has been made under paragraph 120.6 if read together with 120.7, the same speaks about the action after instituting the F.I.R. by assigning the reason of delay, if any, in the case diary.

The judgment rendered in the case of Lalita Kumari v. Government of Uttar Pradesh and Others (Supra) has been taken into consideration in the judgment rendered in the case of State of Telangana v. Managipet alias Mangipet Sarveshwar Reddy (Supra) wherein it has been clarified by reiterating the observation made in the case of Lalita Kumari v. Government of Uttar Pradesh and Others (Supra) as under paragraph 199 to the effect that if an information in respect of prima facie allegation disclosing a cognizable offence, preliminary enquiry is not required to be made.

We have gone across the preliminary enquiry report and found prima facie therefrom that the allegation is in the nature of cognizable offence and as such, applying the principle laid down in the case of Lalita Kumari v. Government of Uttar Pradesh and Others (Supra) as also in the case of State of Telangana v. Managipet alias Mangipet Sarveshwar Reddy (Supra), we are of the view that in a cognizable offence, F.I.R. can directly be instituted without resorting to the preliminary enquiry.

Accordingly the issue has been answered.

In view of the fact that all the three issues have been answered, as such, we are of the considered view that the learned Single Judge while passing the order holding the stage at which the preliminary enquiry has been assailed, as premature, the same cannot be faulted with.

In that view of the matter, the appeals lack merit and are accordingly dismissed.