DHRUVA PRASAD OJHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner is a member of the Indian Police Service (IPS), and head of the Investigation Bureau, Cabinet (Vigilance) Department, in the rank of Inspector General (now Additional Director General). He seeks quashing of certain provisions of the resolution/circular/notification etc. contained in Annexure 2 to 5 and a declaration that the Minister Incharge Cabinet (Vigilance) Department alone is competent to act as the Reporting Authority for the purpose of recording confidential reports with regard to Inspector General of Police (Vigilance) under Rule 2(e) of the All India Services (Confidential Rolls) Rules 1970. He further seeks quashing of a notice contained in Annexure 10 asking him to submit an explanation on the points mentioned therein.

(2.) ANNEXURE 2 contains copy of the resolution of the State Government dated 26.2.91 by which the existing Vigilance System was re -organised and a separate department with the Vigilance Commissioner - cum -Principal Secretary as its head was created. Annexure 3 contains copies of letter/office order dated 17.1.83 and 7.2.83, respectively regarding the scope of powers and functions of the Investigation Bureau and the manner in which the enqiry and investigation are to be made by it. Annexure 4 contains copy of a letter of the Home Department, Government of Bihar dated 17.11.86 addressed to all Departmental heads and District Magistrates/Superintendent of Police communicating the details of the decision of the State Government regarding lodging of FIRs., arrest of Government servants and investigation of cases against them. Annexure 5 contains copy of notification dated 20.6.86 giving administrative control over the Investigation Bureau to the Vigilance Commissioner.

(3.) THE respondents have filed a detailed counter affidavit affirmed by Shri S.N.Biswas, Vigilance Commissioner, inter alia questioning the bona fide of the writ petition. In paragraph 26 it has been stated, "it is thus manifest that the application contains a clandestine motive for self aggrandisement". In paragraph 33, again, it has been stated, the petitioner has used the garb of the writ application in order to get an order determining his status vis -a - vis the Vigilance Commissioner". On merits, in paragraph 39, amongst other paragraphs, distinction is sought to be made between the general police stations and the Vigilance Police Station in the matter of institution of cases. It is said that while general police stations of the State are empowered to institute cases as per the provisions laid down in Section 154 Cr.P.C. but as the Vigilance Police station has been created specially for the Vigilance cases against public servants, permission of the Government for institution of the case is "mandatory in nature" and the same does not violate any provision of law. On the point of primacy, in paragraph 13 it has been stated that since Vigilance cases pertain to public servants, it is desirable that the Government reserves to itself the power to make an enquiry in the form of preliminary enquiry to be conducted by the functionaries of the Vigilance Department itself before formally instituting the cases in order to protect the public servants from unnecessary harassment. It may be mentioned here that the letter dated 17.1.83 and the office order dated 7.2.83 issued by the Chief Secretary, Government of Bihar (Annexure 3 to the petition) contain provisions to the effect that the Investigation Bureau shall not make enquiry with respect to the Non -Gazetted employees which shall be made by the concerned Administrative Department; and that with respect to Gazetted officers, the Bureau shall not be competent to either initiate any enquiry or close it on its own. This can be done only with the prior permission of