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Judgment
This case has been listed under the heading “To Be Mentioned†on the request of learned counsel representing the petitioner. The case was
earlier fixed for listing on 4th January, 2018. Since there was a judicial order to list the matter, learned counsel for the petitioner while mentioning the
matter insisted for listing of the case so that it may be heard on priority basis. This is how the matter has come up for final disposal.
The parties have exchanged their pleadings inasmuch as the Deputy Secretary, Home Department (Police Branch) and the S.H.O. have filed their
respective counter affidavits. There are many stages of this case, however, this Court is not required to record all those stages for the purpose of a
decision in this case.
The petitioner had filed a complaint case bearing no.2437 of 2015 in the court of learned Chief Judicial Magistrate, Katihar who is said to have
passed an order dated 02.09.2015 by which he took a view that the jurisdiction to try the offences alleged lies in the Patna Civil Court. The complaint
petition was returned to the complainant in order to file the same before the competent Civil Court having jurisdiction to try the offences and hence
according to the petitioner in compliance of the order dated 02.09.2015 passed in complaint case no.2437 of 2015 the present complaint case no.3165
of 2015 was filed in the court of learned Chief Judicial Magistrate, Patna. The allegations as contained in the complaint petition are briefly being taken
note of herein below:-
“That the complainant being a member of other backward caste pursuant to the advertisement published by the Bihar Public Service
Commission, Patna applied for Preliminary Test of 47th Combined (P.T.) Examination and appeared in the same examination alongwith
thousands of other candidates.
That the result of 47th Combined (P.T) Examination held by the Bihar Public Service Commission, Patna herein after referred as commission
for the sake of brevity was published on 26.01.2017 and the name of the complainant didn’t figure in the list of successful candidates.
That the complainant sensing foul play on the part of the commission as he has done fairly well in the examination has applied under R.T.I.
Act for supply of category wise cut off marks of successful candidates and which information was provided by the commission by letter
no.Lo.Su.Pra.-01- 044/2007. Khand-1/55 dated 25.04.2007 and the apprehension of the complainant proved prophetic as according to the
information provided by the commission it was found that the aforesaid result in question was published in utter violation of the provisions
as contained in Section 4 of the Bihar Reservation of Vacancies in the Post and Services (For scheduled caste, schedule tribe and other
backward classes) Act 1991 and Amended Act of 1994 as the cut of marks of both the category -5 i.e. other backward castes and the
general candidates were identical i.e. 99 meaning thereby that not even a single candidate of Backward Caste i.e. Cagegory-5 was
shortlisted from their own category which entails the penal provisions of the Bihar Reservation of Vacancies in the Post and Services (For
scheduled caste, schedule Tribe and other backward classes) Act 1991 and Amended Act of 1994.
That similarly situated persons who too were aggrieved by denial of reservation for their short listing on identical grounds moved before
Hon’ble High Court Patna vide CWJC No.5802 of 2007 for publication of additional result as well as for award of punishment to those
persons who were involved in denial of reservation in which the complainant too was an intervenor petitioner vide I.A. No.6736 of 2013
and which writ application was disposed of by order dated 13.07.2015 by Hon’ble Mr. Justice Mihir Kumar Jha as the mater has
become stale and the process of selection and appointment was already over but as far as prayer regarding punishment to those who were
responsible for denial of reservation was concerned it was held that since it was a penal provision then in that case it is only a court of
competent jurisdiction which can try and take a decision over the matter as the complainant alongwith the petitioners of the aforesaid writ
petition were in a hope to get he violators of the reservation to the reserved category specially the other backward castes will be punished
by the Hon’ble Court itself. Therefore after the decision of the Hon’ble Court passed in CWJC No.5802 of 2007 dated 13.07.2015
this instant complaint petition is being filed.
That same issue with regard to denial of reservation to the backward castes were raised for the 47th Combined (P.T.) Examination even in
the Legislative Assembly of the State by way of starred question against which a reply was given by the accused no.1 Sri Nitish Kumar the
Hon’ble Chief Minister as in-charge Minister of Department of Personnel, Govt. of Bihar on the advice and report of the accused no.2,
the then Secretary, Dept. of Personnel, Govt. of Bihar Patna by which they tried to mislead not only to the Hon’ble Legislative Assembly
of the State and the Hon’ble Members but the general public of the State of Bihar by their assertions that there was no violations of the
reservation policy of the State whereas the cutoff marks supplied by the commission itself to the complainant is self explanatory and
admittance of denial of reservation to the complainant as well as other similarly situated persons which entails the penal provisions of the
Bihar Reservation of Vacancies in the Post and Services (For scheduled caste, schedule Tribe and other backward classes) Act 1991 and
Amended Act of 1994.
That it is relevant here to submit that accused no.2 being the then Secretary, Dept. of Personnel prepared a false and fabricated report and
even mislead the Hon’ble the Chief Minister of the State of Bihar who was at the relevant time was in- charge of the Minister of Dept. of
Personnel, Govt. of Bihar who was duty bound by oath before the general public of the state of Bihar to uphold the constitution and its
provisions but was forced to made a misleading statement before the State assembly due to misleading report by the perpetrators of the
criminal acts in connivance and conspiracy with other accused persons.
That the accused nos 3 and 4 as secretary and controller of the commission, in contrary to the reservation policy of the State of Bihar,
formulated their own reservation policy and published the result entailing & attracting the penal provisions of the Bihar Reservation of
Vacancies in the Post and Services (For scheduled caste, schedule Tribe and other backward classes) Act 1991 and Amended Act of 1994
against themselves.
That it would further be relevant here to submit that before and after the present examination, no such violations of reservation rules of the
state of Bihar was seen. In no other examination conducted by the commission, the cut of marks of a reserved category as well as of
General category was or is same. Which fact too speaks about the denial of reservation to the backward castes in the examination in
question.â€
On 03.10.2015, the learned C.J.M., Patna had passed the following order:-
“ , । ।
। । 0 0 0 -
156(III) , ।
000 154 (I) (III)
। 000 154 (I)
(III) । ।
29.10.2015 ।â€
Thereafter the petitioner claims to have sent a requisition to the S.H.O., Sachiwalaya police station for lodging the FIR, when this FIR was not
lodged he sent a requisition to the S.S.P., Patna on 08.10.2015. Thereupon on 31.10.2015 the learned C.J.M., Patna passed the following order:-
“The complainant is in attendance. The learned lawyer filed a petition on behalf of the complaint prayed to send this complaint to the
concerned P.S. For investigation u/s 156(3) Cr.P.C.
Heard and perused the complaint petition. The facts, circumstances and the nature of the offence mentioned in the complaint petition, the
copy of the complaint petition is ordered to be send to the Sachiwalaya P.S. U/S 156(3) Cr.P.C. Through the S.S.P. Patna. the complainant
is directed to file six copy of the complaint petition with in fourteen days failing which it will be assumed that the complainant is not
interested to proceed with the case and the further proceeding of the case will be stopped automatically.â€
It is the case of the petitioner that despite their being an order passed by the learned C.J.M., Patna under Section 156(3) Cr.P.C., the FIR was not
registered. He moved this Court by filing the present writ application and a coordinate Bench of this Court had passed an order directing the State to
file a counter affidavit.
Counter affidavit has been filed by the Deputy Secretary Home Department ( Police Branch) in which besides the other grounds, the deponent of
the counter affidavit has stated as under:-
“In the present case the writ petitioner has approached the learned Chief Judicial Magistrate, Patna for registration of an FIR alleging
commission of an offence under Bihar Reservation of Vacancies in the post and Services (For Scheduled Caste, Scheduled Tribe and Other
Backward Classes) Act, 1991 and the learned Chief Judicial Magistrate, Patna in ignorance of the above provisions by order dated
30.10.2015 sent the complaint filed by the petitioner for investigation under 156(3) of Cr.P.C.1973. The order dated 30.10.2015 passed by
the learned Chief Judicial Magistrate, Patna is not sustainable in light of the above provisions of section 13 of the Act. Continuation of any
proceeding in defiance of the provisions of the aforesaid Act may be amount to abuse of process of law.
For the sake of argument, if the allegations of the petitioner made in his complaint case are taken at their face value, even then it is hit by
the provisions of section 468 of the Cr.P.C. read with section 12 of the Bihar Reservation of Vacancies in the post and Services (For
Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1991. Section 12 of the says that if any appointing authority makes an
appointment in contravention of any of the provisions of this Act shall be punishable with fine which may extend to one thousand rupees or
imprisonment for three months or both. Section 468 of the Code of Criminal Procedure, 1973 provides for period of limitation for taking
cognizance. The period of limitation is one year if the offence is punishable with imprisonment for a term not exceeding one year as
provided under section 468(2) (b) of the Cr.P.C. 1973. The writ petitioner did not approach the concerned authority authorized under
section 13 of the Act for redressal of his grievance within the specific period. Now, the filing of the complaint case no. 3165/2015 in the
Court of learned Chief Judicial Magistrate, Patna without any explanation of delay and the present writ application is nothing but a glaring
example of abuse of process of law. The continuation of any criminal proceeding may not only amount to wastage of precious time of the
courts but also would result in miscarriage of justice.
That it is humbly submitted that the selection of eligible candidate for appointment on various posts is made by a Constitutional body namely
Bihar Public Service Commission. The Bihar Public Service Commission determines the cut-off marks for screening of candidates for
examination conducted by it. The Government has no say in determining minimum cut-off marks for any competitive examination conducted
by the Bihar Public Service Commission. It is in the domain of the Bihar Public Service Commission. However, the Home Department vide
letter no.9208 dated 22.11.2017 requested the Bihar Public Service Commission to send the relevant facts with evidences related to the 47th
Combine Examination to enable the State Government to file effective reply in the present case. The Bihar Public Service Commission vide
letter no.205 dated 01.12.2017 sent the proceeding of the meeting of full bench of the commission held on 24.01.2007 in which minimum
cut-off marks for P.T. Exam of 47th combined examination was determined. The Bihar Public Service Commission has also annexed two
orders and judgments passed by the Hon’ble High court in the matter of CWJC No.4489/2008 and CWJC No.2404/2007 both were filed
by the writ petitioner himself and the both cases were dismissed by the Hon’ble High Court, which are annexed herewith for just
adjudication of this case.
That it is also apposite to mention that the writ petitioner did not produce any iota of evidence which make out any offence, even prima
facie, under IPC as alleged in complaint case no.3165(C)/2015. Since the investigation of the main offence i.e. under Bihar Reservation of
Vacancies in the post and services (For Scheduled Caste, Scheduled Tribe and other Backward Classes) Act, 1991 could not be permitted
under the Constitutional and legal provisions mentioned hereinabove, the allied issues raised by the petitioner either in the complaint
petition or in the present writ are not sustainable in the eye of law.
That under the facts and circumstances mentioned above it is humbly submitted that the present writ application is devoid of merit and is fit
to be dismissed. It is further submitted that the order dated 30.10.2015 passed by the learned Chief Judicial Magistrate, Patna in Complaint
Case No.1365©/2015 may be quashed as continuation of this proceeding may be considered as abuse of process of law.â€
The Station House Officer, Sachiwalaya police station has also filed counter affidavit. Paragraphs 6, 7, 8 and 9 of the counter affidavit filed by
S.H.O. are relevant for the purpose of the present case, therefore those are being extracted herein below:-
“6. That it is stated that after joining, the petitioner gathered that by a letter no.2345 dated 2.11.2015, the then SHO, Sachiwalaya P.S.
had already approached the Public Prosecutor Patna seeking his opinion in the matter.
That it is also gathered that by letter dated 26.06.2016 (No. 856) the then SHO of Sachiwalaya P.S. also approached the Learned Chief
Judicial Magistrate, Patna and apprised the fact that in view of the direction to institute an FIR, guidelines from the Learned Public
Prosecutor, Patna has been sought for which is awaited.
8.. That it is stated that the present Station House Officer of Sachiwalaya Police Station thereafter analyzed the matter and found that prior
sanction of prosecution is necessary under Section 197 of Cr.P.C. as the accused persons are public servants and the Offences allege
relate to discharge of public duty and accordingly, by Letter contained in Memo No.1440/2017 dated 14.12.2017, the learned Chief
Judicial Magistrate, Patna was approached and the Complaint Case No.3165©/2015 was returned to the Learned Court under Section
157(B)(2) of the Cr.P.C.
That it is stated that thereafter on 14.12.2017 the Learned Chief Judicial Magistrate, Patna passed an order issuing notice upon this petitioner and
fixed the date for hearing on 05.01.2018.â€
It is evident from the copy of the order-sheet (Annexure-D enclosed with the counter affidavit of the respondent no.4) that on an application filed
by the officer in-charge, Sachiwalaya police station in view of the provisions as contained in Section 157 Cr.P.C. the learned CJM has taken a view
that in the light of the stand taken by the officer in-charge-cum-police inspector, Sachiwalaya police station it would be necessary to hear the
complainant. A notice has been issued to the complainant (petitioner of the present case) fixing the date for hearing.
Learned counsel for the petitioner, on instructions, submits that the petitioner has already appeared before the learned C.J.M. pursuant to the
notice vide order dated 14.12.2017 passed by the learned C.J.M.
Despite this being the position, learned counsel for the petitioner insists that this Court must pass an order directing the S.H.O. Sachiwalaya police
station to register an FIR. He initially attempted to rely upon the judgments of the Hon’ble Supreme Court in the case of Mohd. Yousuf Vs. Afaq
Jahan (Smt.) & Anr. reported in (2006) 1 SCC 627, in the case of Hemant Yashwant Dhage Vs. State of Maharashtra & Ors. reported in (2016) 6
SCC 273 and yet another judgment of Hon’ble Apex Court in the case of State of Maharashtra Vs. Farook Mohammed Kasim Mapkar & Ors.
repoted in (2010) 8 SCC 582. However, on a specific query put to him as to whether the facts situation of the present case were the same in the
cases which were decided by the Hon’ble Apex Court, learned counsel for the petitioner is unable to demonstrate before this Court that the facts
situation of the present case were the same in those cases. In the case of Bharat Petroleum Corporation Ltd. and Anr. Vs. N.R. Vairamani & Others
reported in (2004) 8 SCC 579, the Hon’ble Apex Court has cautioned that the judgments/observations of the Court should not be cited like
euclid’s theorems as the slightest of change in the facts of the case would make a sea difference in the judgment of the court. I remind myself
with the judgment of the Hon’ble Apex Court particularly when the learned counsel is unable to show that the issues which have cropped up in the
present case had been the subject matter of consideration in those cases.
In the present case, the facts situation are totally different. The petitioner moved this Court complaining that the FIR is not being registered despite
an order under Section 156(3) passed by the learned CJM, Patna. In response, the S.H.O. has come with an affidavit that he has in exercise of his
power under Section 157 Cr.P.C. found that this case does not disclose any cognizable offence and there is no sufficient ground, therefore he is not
required to enter on an investigation, he has filed an application before the learned CJM, Patna and has returned the complaint. Application filed by the
S.H.O., Sachiwalaya police station is under consideration before the learned CJM, Patna where the petitioner has already appeared and has an
opportunity to impress upon the court with such plea which may be available to him.
The extraordinary writ jurisdiction of this Constitutional Court is not required to be exercised in the facts of the present case. There is a regular
court constituted under the code of criminal procedure and the learned C.J.M., Patna is in seisin of the matter as also the issues are pending
consideration.
Thus, The writ application has no merit. It is accordingly dismissed.