Holding

The State Government, exercising its superintendence power under the Indian Police Act and sections 2(h), 2(r), 36, 156 and 173(8) of the Criminal Procedure Code, may direct a police officer of superior rank to conduct further investigation, and the magistrate’s order to await such investigation was proper.

Summary

A First Information Report alleging fraud by TISCO against the railways led to a criminal case registered at Tatanagar. After the railway police filed a final report under section 173(2) of the CrPC, the State of Bihar, through the Chief Secretary and Chief Minister, directed the Inspector General (Vigilance) to conduct further investigation. The Additional Chief Judicial Magistrate adjourned the matter to await this further investigation, which the petitioners challenged before the High Court. The High Court quashed the magistrate’s order, holding that the State could not direct further investigation, but the Supreme Court reversed this, holding that the State’s power of superintendence under the Indian Police Act and sections 2(h), 2(r), 36, 156 and 173(8) of the CrPC permits it to direct a superior police officer to investigate further. Consequently, the magistrate’s order was upheld and the High Court’s interference was set aside. The State’s appeal was allowed, while the other appeal was dismissed.

Issues considered

Whether the State Government can direct further investigation in a criminal case after a police officer has submitted a report under section 173(2) of the CrPC.
Whether the Additional Chief Judicial Magistrate erred in postponing consideration of the final report pending the State‑directed further investigation.
Whether the High Court was justified in exercising its extraordinary jurisdiction under Article 226 to interfere with the investigation.

Legislation cited

Code of Criminal Procedure, 1973s. 156(1), s. 156(3), s. 173(2), s. 173(8), s. 2(h), s. 2(r), s. 36
Police Act, 1861s. 1, s. 12, s. 22, s. 3

Subjects

investigationsuperintendencepolice authorityCriminal Procedure CodeIndian Police Actmagistrate jurisdictionstate government powerfurther investigationsection 173section 156

Judgment

16

A STATE OF BIHAR AND ANR.
v.
J.A.C. SALDANHA AND ORS.
November 13, 1979

fR. S. SARKARL.\, D. A. DESAI AND 0. CHJNN\I'PA REDDY, JJ.]

Investigation by Police-Further investigation in case in which one investf.
patin~, of(:'ccr bud sul;n1ittnl a final r·cpon under section 172(2) of Crilninal
Procedure Code, 1973, but on which the Court had not passed any order-
Whether the State Government is precluded from directing further investigation
c in 1/ic case-Sections 2(h), 2(r), 36 156(1) and (2) and 193(8) of the Crimi-
nal Procedure Code, 1973 r /w Sectz'ons 1, 3, 12 and 22 of the Indian Police
Act, 1861-Wherher E.G. of Police Vigilance, a ~superior" officer in rank for
the purpose of section 36 of the Code-Power of Magistrate under s. 156 of
the Code.

D Words and pfi..-ases-"superintendcnce" in 11:ctio11 3 of Indian Police Act,
1861, meaning of.

Investigation-Court's duty in interfering in a Criminal matter at the stage
of h1vestigation.
f
A First Information Report alleging loss of legitimate revenues due .to the
E railway by defrauding it with the connivance of railway officials either by
loading pearl coke without being booked according to railway rules in the
empty wagons after the man_ganese ore in them were unloaded at Adityapur in
Tatanagar, a railway siding of the Tata Iron & Steel Co. Ltd. or by diverting
\vithout regular booking of tanks containing furnace oil. was lodged on March
11, 1977, consequent upon which a case was registered at Tatanagar G.R.P.S.
disclosing offences under sections 420/120B, 418 and 368 Indian Penal Code
F and sections 105 /106 of the Indian Railways Act, against 9 persons. One
S. R. I. Rizvi. Inspector of Railway Police, S. E. Railway Tatanagar con1menced
investigation into the offences under the general supervision of R. P. Singh S.P.
Railway Police appellant in Cr!. Appeal No. 300 /79 and Respondent 6 in Cr!.
Appeal No. 301 f79. The D.I.G. Railway Police who was the immediate
superior of Respondent 6, wrote a letter to the D.l.G., C.l.D., Bihar on May >
11, !977 requesting him to entrust the investigation to the Central Bureau of
G investigation. but the Inspector General of Police, Bihar, as per his letter dated
June 24, 1977, declined the request. In the meantime on June 16, 1977 on a
complaint from one Mr. Rusi 1\..Iodi representative of TISCO, at Patna· to the
Chief Secretary to the Government a1leging harassment of TISCO officials by
respondent 6 and requesting for appropriate steps, the cabinet took the decision
to transfer respondent 6. One Sbri R. H. Modi who was required to appear
before the Investigating Officer, made some enquiry by his Jetter dated
H '!'Iovi;-mber 4 1977 which was copied to some higher police officers including
Respondent 2, Inspector General of Police, Bihar, acting on the copy of that
letter requested Respondent 3, Add!. I.G., C.I.D. to look into the com~laint of
'

BIHAR V. J.A.C. SALDANHA 17

Mr. 1\-Iodi. The third respondent sent a telegraphic communication to RespoQ- A
dent. 6 informing him that the investigation of the aforesaid offences had been
taken over by the c·J.D. . The Com1nissioner, South Chhota Nagpur Division,
Ranchi, on a request made by the Secretary to Government of Bihar (Home)
Police departn1cnt enquired into the · allegations made by officers of TISCO
' dgainst respOndent 6 and, after consultations with D.l.G .. Railway, the irnrr1e-
t.Iiate su.perior of Respondent 6 submitted his report dated December 27, i977
giving a clean chit to Respondent 6. In the meantime, there was another appli- B
cation from M.L.As and M.L.Cs seven in all addressed to the Inspector General
of Police, Vigilance, Bibar making serious a.llegations against the inves~igation
• made by the C.I.D. under the supervision of respondent - 3, whereupon the
Chief' Secretary to Government of Bihar submitted a note to the Chief f\.Iinister
on August 28, 1978 suggesting that the case involved in the matter be handed
Over to the CBI for illquiry. This note Was approved and signed by the Chief
j ~finister on the same day. In the meantime, the Chief Secretary by his letter C
dated September 2, 1978 directed respondent 3 to send all papers of the case
with a note indicating the stage of investigation. to him and in compliance there~ ·
\\'ith respondent 3 sent all papers of investigation till then done ·to the Chief
Secretary with his covering letter dated September II, 1978. The CBI declined
to undertake the investigation and suggested that the Inspector General, Vigilance
Department may be asked to conduct the investigation. The recommendation
made accordingly by the Chief Secretary on February 8, 1979 was accepted D
by the 'Chief Minister on February 27, 1979. In·between -on January 18, 1979,
even though the papers were still with the· Chief Secretary respondent 3 directed
the investigating office·r respondent 4 to submit the final report. When .the
Chief Secretary came to know about it he wrote· to respondent 2 deprecating
the conduct of respondent 3 in pushing through the matter, though the papers
were not with him and he was orally instructed not to submit the final report.
As undef the direction and orders of respondent 3, respondent 4 had already E
submitted final report on February 6, 1979, a communication was addressed to
respondent 5. ' Superintendent of Railway Police who had taken over charge
from respondent 6 to move the court not to accept the final report and await
report of, Police after completion of the further investigation which was
directed by the Government in the case. The matter was placed before th\'.'!
Addi. Chief Judicial Magistrate on February 24, 1979 along with report of the
Assistaint Public Prosecutor not to ac.cept the final report of "no case" filed by F
respondent 4, whereupon the learned Magistrate passed an order to await
report on further investigation and adjourned the matter to 23~3-1979 for
further orders.

On March 5, 1979, J. A. C. Saldanha respondent I and one of the officials
named in the First Information Report filed a Writ Petition in the ITigh Court
questie•ing the validity, legality and correctness of the· order of the Additional G
Chief Judicial Magistrate.. A full Bench of the High Court by its Judgment
dated May 14, 1979 quashed the order inter alia holding that the direction
give• by the Chief Secretary with the concurrence of the Chief Minister for
handim: over investigation of the case to the Inspector General Vigilance WilS
iUegal in as much as the I.G., Vigilance could not be entrusted in law with the
investi,eation of the case registered with the railway police and consequently
the learned Additional Chief Judicial Magistrate was in error in postponing the H
cons~dcration of the .final report already submitted by respondent 4 till such
unauth.orisal investigation was completed.

I
[1980] 2 s.c.R.
SfY A
18 SUPREME COURT REPORTS

Allowing the appeal by the State, the Court

HELD: 1. A combined reading of sections 2(h), 2(r), 36, 156 and 173(8)
of the Criminal Procedure Code, 1973 read with sections 1, 3, 12, and 22 of
Indian Poiice Act, 1861 would indicate that the State Government was not
precluded from directing further investigation in the case in which one investi-
>:';- gating officer had submitted his 'final report' under section 173 (2) of the Code,
B but on which the Court had not passed any order. Section 156 en~bles the
officer incharge of a Police Station to investigate without the order of a Mag:s-
trate into a cognizable case committed within the area of the police st.1.tion.
Under section 36 police· officers superior in rank to an officer in cha-rge of a.
police station may exercise the same powers, throughout the local area to
which they are appointed as may be exercised by such officer within the limits
of his station. Section 173(8) enables an officer-in-charge of the Police Station
C to undertake for their investigation in a. case \Vh(:re be has already sub1nitte<l ii 1•
report under sub-section (2) of section 173 and if in course of such further
investigation he collects additional oral or documentary evidence, he has to
forward the same in the prescribed form to the l\lagistrate. [27 G, 28 A, C-D,
32 GJ
2. The officer directed by the State Government to carry on the inve'itiga-
tion is Inspector General Vigilance. He is und~ubtedly an ofticer superior in
D
rank, n1ay not be departmentwise administrative hierarchy, to an officer in
charge Of police station. Inter se departmental division such as Inspector
General of Police or Inspector General Vigilance, or Additional Inspector Gene-
ral C.l.D. n1ay be merely a division of work for administra<tive efficiqicy but
the Inspector General of Police cnnld not by any stretch of imaglnation be said
not to be an officer superior in rank to an officer in charge of :i police st::ttion.
E [28 D-F]
Rule 7(a) of the Bihar Police Manual provides that the police force of the
entire State is under the overall charge of Inspector General of Police and for
the help of Inspector General and for the convenience of carrying out the work
ccnnected with the different branches of police administration, Deputy Inspector·
General and Assistant Inspector-General of the rank of Superintendent are
post~d at headquarters. The use of the word 'rank' in s. 36 of the Code com- _J
F prehends the hierarchy of police officers. It is equally clear that Inspector
General of Police will. have jurisdiction over the whole of the State. Division
of work, but not demarcating any local area indicates that Inspector General,
Vigilance, \\'ill have jurisdiction extending over the whole of the State and
this equally becomes c!~1.r from the Notification dated June 6, 1973. ismed by
the State Government in exercise of the power under clause (s) of sub-section
(1) of s. 4 of the 1908 Code declaring that in respect of certai• oITencCs the
G Vigilance Department shall be deemed to ba· a police station having its juris-
diction throughout the whole State of Bihar. Even apart from this, Inspector
General appointed by the State Government has jurisdiction over the whole of
the State unless the contrary is indicated. If he is thus an officer superior in ·
rank to an officer in charge of a police station he could in view of s. 36 exer-
cise the po.vers of an officer in charge of a police station throughout tlie local
area to which he was appointed meaning thereby the \.\.·hole of Bihar State as
might be exercised by an officer in chagre of a polici.:- station within the limits
of his police station. It was to him that the investigation of the case was
ordered to be handed over by the State Government. [28 G-H, 29 A-41
B!HAR v. J.A.C. SALDANHA

R. P. Kapoor and Ors. v. Sardar Parlap Singh Kairon and 01.., [1961) 2 i\
SCR 143 at 153-154; applied.
3. The State of Bihar is governed by the Indian Police Act, 1861. ..<\. com·
bined reading of sections 1, 3, 12 and 22 of the 1).ct makes it clear that (a)
investigation comprehends detection of crime; (b) General pc;lice district
covers the entire State and (c) the superintendence of the police throughout a
general-police district shall vest in and shall be exercised by the State Govern- B
ment to which such district i's subordinate. ID.spector General, Vigil;tri.ce ·being
appointed for the whole of the State, is a police officer considered to be on
,duty for all purposes of the Act and it is open to the State Government to
employ him as polite officer in iny part of the general district. [29 F, 30 A-C.]

4. The general power of superintendence as conferred by section 3 of the
Police Act, 1861 would comprehend the power to exercise effec;tive control C
over the actions performance and discharge of duties by the members of the
police force throughout the general district. The word 'superintendence' "Would
imply administrative control enabling the authority enjoying such power to
give directions to the subordinate to discharge its administrative duties and func-
tions in the manner indicated· in the order. It is only when a subordinate
authority subject to superintendence· is discharging duties and functions of a·
quasi-judicial character under a statute that the inhibition of abdication ef D
such power can be invoked. But where the subordinate subject to such power
of supedntendence of the superior is discharging admini.strative ~nd executive
function, obligations and duties the power of .superintendence would compre-
hend the authority to give directions to perform the duty in a certain manner,
Jo refrain from performing one of the other duty, to direct some one else to
perform the duty and no inhibition or limitation can be read in thiS power
unless the section conferring such power prescribes one. Such is the scope anP E
ambit of power conferred by s. 3 on the State Government of superintendence
over the entire police force of the State. [30 E-Hl

Makeshwar Nath Srivastava v. State of Bihar & Ors. [1971] 3 S.C.R. 863
followed.
S. Unless the power is limited or fettered or taken away by some specific p
provision to the contrary, the general power of superintendence would compre-
hend power to issue directions, orders for performance of duty in a ce~ain
manner, directing some; one ·else to discharge certain function, refrain from
performing certain duty, etc. Superintendence· connotes supervision which
1

implies a hierarchy, viz. supervisor and the one supervised. It \Vould, there-
fore, mean keeping a check, watch over the work of another who may be a
subordinate in a hierarchy of authority. It would also comprehend that super- G
vision is not merely a negative thing so as to keep a watch but it would imply
giving of direction, guidance, even instructions, ?-nd in a given case and in a
given situation asking one who is being supervised to forbear from doing a
thing and directing someone else to do that thing. [31 G-H, 32 A-B]

Rajkumar v. Ramsundar AI.R. 1932 P.C. 69, referred to.

6. Superintendence would comprehend the power to direct further investi- H
gation if the circumstances so warrant. There is nothing in the police Act to
indicate the nanow construction of the word "superiniendence" in section 3 to
20 SUPREME COURT REPORTS [1980] 2 S.C.R.

A mean 'general supervision' of t~e managen1ent of the police Ucpart1nent and
does not vest lh::: State Government with authority to decid·.:: what the police
alone is authorised to dec:Je'. {32 D·EJ

7. 'Sub·section (8) of section 173 of the Code is not the source of power of
the State Government to direct further investigation. Section 173(8) enables
an officer in charge of a police station to carry on further investigation even
B after a report under s. 173(2) is submitted to Court. But if Slate Government
has othcn.vise power to direct further investigation it is neither curtailed, limited
nor denied by s. 173(8) IT:llrC so, \Vhcn th~ State Govcrnmi:nt J1ncts an officer
superior in rank to an officer in charge of police staticin thereby enjoying all
powers ot an officer in charge of a police station to further investigate the case.
Such a ~itnation would be CC\ered by the com.bi11_ed r~ading of.;. 173(8) \vith
s.' 36 of the Code. [32 F-I-f, 33 ,\] r
c
8. There is no warrant or invoking the principle, namely "if a statute directs
a thing to be done in a certain ·way that thing shall not, even if there be no
negative \Von.ls be done in :1ny other way" because section 5 of the code "j'lrovides
that nothing in the code shall, in the. absence of a specific provision to the con-
trary. affect any special or local law for the time being in force, or any special
form of procedure prescribed, by any other law for the time being in force.
D Section 3 of the Police Act does not prescribe any special procedure for investi-
gation contrary to one prescribed in the Code. It merely provides for confer-
ment of certain rower \Vhich. \\'hen exercised, v;ould project into the provisions
of the Code which confers power on the officer in charge of a police sta·tion to 1

carry on further investigation under s. 173(8) after submission of a report ahd
that too without any permission of the Magistrate. There is no conflict between
the two provisions. Power to direct investigation ·or further investigation is
E entirely different from the method and procedure. of investigation and the com-
petence of the person to investigate. Section 3 of the Act dea1s with the rowers
of the State Government to direct further investigation into the case. Un-
doubtedly, such direction will be given to a person competent to investigate the
offence and tLe police officer in rank superior to the police officer in charge of
the police station, Inspector General, Vigilance, has been directed to carry on
further investigation. An Officer superior to rank to an officer-in-charge of a
F police station could as well exercise the power of further investigation under
s. 173(8) in viev.· of the provision embodied in s. 36 of the Code. If that be
so, such superior officer could as well undertake further investigation on his
own and it is immaterial and irrelevant that he does it at the instance or on the
direction. of the State Government. Such a dire'ction in no way corrodes his
po\vcr to further investigate on his own. [33 G-H, 34 .i\.-D]
G State of Gujarat v. Shanti/al Mangaldas and Ors. [1969] 3 SCR 341 at 372,
ex-parte Stephens [1876] Ch.D., 659 and Patna ln1proven1c11t Trust v. Snit.
Lakshmi Devi and Ors., [1963] Suppl 2 SCR 812; referred to.

9. The power of the 1\-Iagistrate under s. 156(3) to direct further investiga·
tion is clearly an independent power and does not stand in conflict with the
pO¥/er of the Sratc Government. The power conferred upon the }.,fagistrate
II
under s. 156(3) can be exercised by the Magistrate even after submission of a
report by the investigating officer which would mean that it would be open to
the Magistrate not to accept the conclusion of the investigating omcer and direct
BIHAR 1'. J.A.C. SALDANHA 21

fUrther investigation. This provision does not in any way affect the power of A
the investigating officer to further investigate the case and even after subn1is-
sion of the report as provided in s. 173 (8). Therefore, the High Court was in
error in holding that the State Government in exercise of the power of superin-
tendence under s. 3 of the Act lacked the power ):o direct further investigation
into the case. [34 E-F]
10. The contention that the action of the Chief Secretary in suggesting that B
the investigation be taken over by the C.B.L and the acceptance of the same by
the Chief Minister Sllffered from legal malice in as much as both had no juris-
diction, authority or power to make such an order to transfer investigation or
to direct further investigation when a report was already submitted by the
investigating officer to the Court competent to take cognizance of the case is
not correct. [3 8 B~C]
· If the Chief Secre\ary as the highest executive officer at the State level C
exercising power of superintendence over the police of the State posted in
general police district would have powers to suggest change of investigating
machinery ill the circumstances disclosed in the letter dated May 11, 1977, of
the D.I.G., Railway, the report of the Commissioner of South Chhotanagpur
Division, a-nd the complaint of MI...As./MLCs., his action cou1d not be said to
be withont power or authority. If he had acted otherwise, a charge of inaction D
or failure or default in performance of his duty as tbe highest chief executive
officer would be squarely laid at his door. He acted in the best tradition of
the Chief .executive officer in public interest and for vindication of truth and in
an honest and unbiased manner. Afterall, if he had even the remotest bias
against any one, he could have as well suggested in agreement with the earlier
investigation done by respondent 6 and the report submitted by him for sub-
mitting the charge-sheet that a charge-s·heet should be filed. In fact, the Chief E
Secretary with utmost candour, with a view to vindicating the hono~ of the
administration, proposed ascertainment of triith at the hands of CBI, a body
beyond reproach as far as local politics is concerned, and that is unchallengeable.
[38 F-H, 39 A-Bl
11. The Police officers should refrain from addressing communications to
the Courts on pending n1atter.: required· tO be determined judicially. In the
instant case, though the conduct of the Superintendent of Police, in informing F
the learned Additional Judicial Magistrate about the decision of the Govern-
ment to continue the investigation, by the letter dated February 15, 1979 is
not proper. it makes no difference in the matter because:' the Magistrate acted
not on that letter, but on an application made by the Assistant Public Prose-
cutor in charge of 11\e case, and that is the legally accepted mode of obtaining
a judicial order. [39 C-E]
G
12. The power of the Police to investigate into a cognizable offence is
ordinarily not to be interfered with by the Judiciary. There is a clear cut and
;well den1arcated sphere of activity ·in the field of crime detection and crime
punishment. Investigation of an offence is the field exclusiveJy reserved for the
executive through tho police department, the superintendence over Which vests
in the State Government. The, executive which is charged with a duty to keep
vigil:mce over law and order situation is obliged to prevent crime and if an H
offence is alleged to have been committed it is its bounden duty to investigate
into the offence and bring the offender to book. Once it investigate• and finds
22 SUPREME COURT REPORTS [19811] 1 S.C.R.

A an offence having been committed it is its duty to collect evidence for the pur-
pose of proving the offence. Once that is completed ,and the investigating
officer submits report to the Court requesting the Court to take cognizance of
the offence under s. 190 of the Ccxte its duty comes to an end. On a cognizance
of the offence being taken by the. Court the police function of investigation
comes to an end subject to the provision contained in s. 173(8), there com-
mences the adjudicatory function of the judiciary to determine \vhcther an
B offence has been committed and if so-, whether by the person or persons charged
with the crime by the police in its report to the Court, and to av. ard adequate
1

punishment according to law for the offence proved to the Satisfaction of the
Court. There is thus a well defined and well demarcated function in the field
of crime detection and its subsequent adjudication between the police ~nd the
Magistrate. [39·G-H. 40 A-D]

C Kin;.: En1p~ror v. Khwaja AJ11nad, [1944] L.R. 71 I.A. 203 z..t 213; followed.

13. Court should be quite loathe to interfere at the stage of investi:ation,
a field of. activity reserved for Police and the executive. In· the instant case,
the High Court in exercise of the extraordinary jurisdiction committed a grave -
error by ·making observations on seriously disputed questions of fact~ tatia.g its
cue from affidavits which in such a situation would hardly pr&vide any reliable
D materi"al. The Hi:h Court was clearly in error in giving the direction virtually
a·mouRting: f'o a. nu1ndamus to c!me the case before. the investiiation is complete. ,
The Hi:h Court virtually h~ usurped the jurisdiction of tke Ma:istrate. The
casei i~ not a :.ta~~ where the Court is called up to quash the proceeding as dis~
closi•:: n@ offence, ltY.t the case. is at a ~tar;e where furtl.er iavesti::ati•a into
the tttfcnce is sou::ht te be thwarted by interference Jn exercise of the extra-
ordinary juri"ldiction. [41 B-D, 42 F-H]
E
S. lV. Sharnu1 v. lrisluiln Kun1ar Tiwari, [1'7~] 3 SCR. '4€9; applici.
1

14. If an informatiea. is lodged at the Police station ani au o:!'ience i! regis-
tered, the mala fiies of the informant would be of seco:atiary importaace if
the investigation prOOuces unimpeachable evidence disciosiRg tile evidence.
[43 D·El
F [The Court directei the rtlle~ations of n11tla fide made a:-ainst J{espo1ulent 6
be expunged for tile· purpose of t~is appeal.]
Ob8ervation

15. In Parlia11te•tary democr<1.cy elected representatives kave a duty to per-
form and their vi:ilas.ce in performance of duty without anytRing shewn as
unbecoming of them caanot he unilaterally chastised. [38 A]

CRIMINAt APPELLATE JURISDICTION : Criminal App~al Nos. 301
and 300 of 1979.
Appeals by Special Leave from the Judgment and Order dated
14-5-1979 of the Patna High Court in Writ Jurisdiction Case No.
H 12/79.
Lal Narain Sinha, Ram Amugn,h Prasad and U.l'. Singh for the
Appellants in Cr!. A. No. 301/79.
BIHAR v. J.A.C. SALDANHA (Desai, '1.) 23

Basudeo Prasad and R. P. Singh for the Appellant in Cr!. A. A
300/79.
A. K Se11, Y. S. Chitale, J. B. Dadacha11ji, S. B. Sanyal, N. C.
.
• Ganguli, S. Warup, J. S. Sinha and K. J. John for Respondent No. 1 in
bod1 the appeals.
Prabh"· Shwikar Mishra and B. P. Singh for Ilespondcnt Nos. 2-3 in B
• both the appeals .
M. P. Jha for Respondent No. 4 in both the appeais.
R. K . .laiu for Respondent No. 7 in Cr!. A. 301/79 and Respondent
_No. 6 in Crl. A. No. 300/79.
The Judgment of the Court was delivered by c
DESAI, J.--Reverence and anxiety to the same degree, if not more,
to shoot at eight even a remote intrusion into the field preserved for
judiciary must inform the judicial approach whenever assistance of the
judicial machinery is sought for an unwarranted encroachment into the
field of activity reserved for the other branch of Goverament, more so, D
when extraordinary flOWer conferred 011. tlte High Court to issue pre-
rogative writ in aid of justice is invoked to thwart a possible detection
of a suspected offence. How dan:;erous it is to rush in- where one
should be wary to tread is amply demonstrated by the facts revealed in
these two apf'Oals.
E
Factual matrix will highlight the situation. Though the point can-
-vassetl centres round the limit of jurisdiction to interfere with the in-
vestigation of an offence registered at a police station, to pin-point the
contention, rdevant facts may be stated with circumspection, as the
-case is suhjwiia because any overt or covert expression of opinion on
the facts i11 cm1troversy awaiting adjudication may be censured as: judi- F
Cial impropriety.
Tata Iron & Steel Co. Ltd., ('TISCO' for short), has a railway
siding at Adityapur ia Tatanagar. A ferro Manganese Plant has been
·set Ufl by TlSCO at fada, for which tfue nearest railway head is
Banaspani i• Orissa. TISCO has its iro11. ore and manganese mines at G
Naomundi. Ore is beia~ transported from Banaspani and Naomundi
·to Tatana:ar, oielivery point bein: railway yard at Adityapur. Thr;
allegation is that some of the emrty wa:;ons after ore was delivered
at Adityapur Railway Station Yard on the return journey to
Banaspani/Naomundi -were loaded with pearl coke without being
·booked accord in: to railway rules and without the issuance of railway H
receipts with the connivance of the local railway officials and the rail-
-way was defrauded of its legitimate revenue. It was also alieged that
24 SUPREME COURT REPORTS (1980] 2 S.C.R.

A
some tanks containing furnace oil were diverted without 1egular book.
ing .which also resulted in deprivation of the legitimate revenue to the
Railway. Adityapur railway yard was not, according to the railway
administration, a bOoking station and hence no booking staff was .1
posted there and, therefore, wagons could not have been booked from
B Adityapur railway yard and there was considerable variation in the
nun1ber of \Vagons booked fron1 Tatanagar and received at Banaspani
as set out in first information report. On these allegations a first in·
•
formation report was lodged on March 11, 1977, consequent upon
which an offence was registered at Tatanagar G.R.P.S. under sections
420/120-B, 418 and 368, Indian Penal Code, and ss. 105/106 of the
c Indian Railways Act against 9 persons. One S.R.I. Rizwi, Inspector
Railway Police, S.E. Railway, Tatanagar, commenccJ investigation
into the offence under the general supervision of R.P. Singh, Superin-
tendent, Railway Police, respondent 6 in Criminal Apocal No. 301 of
1979 (appellant in Criminal Appeal No. 300/79). Ordinarily, the
investigation would proceed in a traditionally routine manner by the
D police machinery but it has taken none-too-commendable zig-zag
course because of the personalities involved in the case and which
should have been the most irrelevant factor to influence the decisions
of various persons involved in these appeals. It appears that . the
D.I.G., Railway Police who was the immediate superior of respondent
6, wrot.e a letter to the then D.I.G., C.I.D. Bihar, on May 11, 1977 re·
E questing him to entrust the investigation of the aforementioned offences
to Central Bureau of Investigation but the Inspector General of Police,
Bihar, as per his letter dated June 24, 1977, declined the request. In
the mean time one Shri Rusi Modi, resident representative of TISCO
at Patna appears to have written a personal letter to Shri Saran Singh,
._,.
the then Chief Secretary of the State of Bihar, complaining about the ,r -
F
harassment suffered by the officers of TISCO pursuant to the investiga- ,,_
(

tion carried on by railway police under the supervision ef respondent
6 and requesting him to take whatever steps the Chief Secretary con-
sidered appropriate to curb the enthusiasm of respondeat 6 in carrying
on the investigation of the offences. It appears from the reply affidavit
G filed by M. J. Basha, an officer of TISCO, that on June 16, 1977,
the very day the resident representative handed over his letter to the
Chief Secretary, Cabinet took the decision to transfer respondent 6.
It is necessary to refer to this fact to evaluate a submission that even •
though respondent 6 was transferred he directed a charge-sheet to be
submitted despite the fact that the investigation was incomplete and
II that this conduct would provide demonstrable proof of his malice and
mala fides. It appears that one Shri R. H. Modi who was required by '
the investigating officer to appear before liim made some enquiry by
BIHAR v. J.A.C. SALDANHA (Desai, J.) 25

his letter dated November 4, 1977, which appears to have been copied A
to some higher police officers and in the margin of this letter there is
an endorsement by respohdent 2, Inspector General of Police, Bihar
requesting respondent 3, Addi. LG., C.l.D., to look into the complaint
made by Mr. Modi. Immediately thereupon the third respondent sent a
telegraphic communication to respondent 6 informing him that the
B
investigation of the aforementioned offence has been taken over by the
C.I.D. It appears that on a request made by the Secretary to Govern·
ment of Bihar (Home) Police Department, the Commission, South
Chhota Nagpur Division, Ranchi, enquired into the alleg:itions made
by officers of TISCO against respondent 6 and after consultations with
DJ.G., Rallway, the immediate superior of respondent 6, and sub- c
mitted his report dated December 27, 1977, in which it is stated that
there was no ulterior motive on the part of respondent 6 in instituting
a c"ase and that there was "material strong enough to institute a case
and taking up the investigation and that it could not be said that the
case was instituted in order to harass the TISCO management". The
Government of Bihar appears to have recieved an application signed D
by MLAs. and MLCs., 7 in all, addressed to Inspector General of
Police, Vigllance, Bihar, making serions allegations against the investi-
gation done under the supervision of respondent 3 and suspecting a
foul play possibly with a view to covering up the case and requested
. the Government to get the investigation done through LG., Vigilance.
Such a complaint appears to have been made to the then Prime Minister E
of India as also some question appears to have been asked in Parlia-
ment. The then Chief Secretary submitted a note to the Chief Minister
on August 28, 1978, with reference to the letter of the MLAs.jMLCs.
snggesting that the case involved in the matter be handed over to the
C.B.I. for enquiry. Approving this note and suggestion, the then
Chief Minister signed the note on the same day. IJ:i the mean lime F
Chief Secretary on September 2, 1978, directed respondent 3 to send
all papers of the case with a note indicating the stage of investigation
to him and in compliance therewith respondent 3 sent all papers of in-
vestigation till then done to the Chief Secretary under his covering letter
dated September 11, 1978. C.B.I. by its letter dated January 30, 1979,
G
declined to undertake the investigation and suggested that the Inspector
General, Vlgfilance Department, may be asked to conduct the investi·
gation. The Chief Secretary thereafter submitted a further .note to
the Chief Minister on February 8, 1979, stating therein 'hat the C.B.I.
is not in a position to take up the investigation and that the I.G.,
Vigilance, is recommended for investigation and, therefore, ihe Chief II
Minister was requested to pass an appropriate order directin• I.G.
Vigilance to get the case investigated by the Vigilance Depa"rtmen;
3-868SCI/79 '
26 SUPREME COURT REPORTS [ l 9 80] 2 S.C.R.

A under his personal control. This recommendation was accepted by the
Chief Minister on February 27, 1979. In between, on January 18, 1979,
even though the papers were still with the Chief Secretary, respondent
3 directed the investigating offi= respondent 4 to submit the final
report. When the Chief Secretary came to know abou: it he wrote to
respondent 2 deprecating the conduct of respondent 3 in pushing
B through the matter though the papers were not with him and he was
orally instructed not to submit the final report. As under the direction
and orders of respondent 3, respondent 4 had already submitted the
final report on February 6, 1979, a communication was addressed to
respondent 5, Superintendent, Railway Police, one Mr. Mohammad
Sulaiman, who had taken over in the mean time from respondent 6
c who was transferred, to move the Court not to accept the final report
and await report of the police after completion of the further investiga-
tion which was directed by the Government in the case. The matter
was placed before the Addi. Chief Judicial Magistrate on February 24,
1979, along with report of the Asst!. Public Prosecutor not to accept
the final report as hereinabove stated whercupcn the learned Magistrate
D
passed the following order :

"After hearing both the parties, I consider it proper to
await report on further investigation. Therefore, put up on
23-3-1979 for further orders awaiting report on further
investigation".
E
On March 5, 1979, J.A.C. Saldanha, original petitioner (respon-
dent 1) filed a petition in the High Court questioning the validity,
legality and correctness of the order of the Addi. Chief Judicial
Magistrate.
F
A full bench c;f the High Court by its judgment dated May 14, 1979,
quashed the order, inter alia, holding that the direction given by the
Chief Secretary with the concurrence of the Chief Minister for taking
over investigation of the case by the Inspector-General, Vigilanc was
illegal inasmuch as the I.G., Vigilance could not be entrusted in law
G with the investigation of the case registered with the raliway police
and consequently the learned Addi. Chief Judicial Magistrate was in
error in postponing consideration of the final report already submitted
by the fourth respondent till such unauthorised investigation was com-
pleted. The High Court gave various directions to the learned Addi.
Chief Judicial Magistrate how to dispose of the case. Two appeals
II have been preferred by special leave, one by the State of Bihar, and
the other by original respondent 7 (respondent 6 herein), the then
Superintendent of Police, Railway.
Bl!IAR v. J.A.C. SALDANHA (Desai, !.) 27

.; Two substantial questions arise in these appeals: (la). Whether A
the State Government was competent to direct further investigation
in a criminal case in which a report was submitted by the investigating
agency under s. 173(2) of the Code of Criminal Procedure, 1973
('Code' for short) to the Magistrate having jurisdiction to try the
cru;e ? (lb). Whether the Magistrate having jurisdiction to try the
case committed an illegality in postponing consideration of the report B
submitted to him upon a request made by Asstt. Public Prosecutor in
charge of the case till report on completion of further investigation
directed by the State Govermnent was submitted to him; and (2)
whether, when the investigation was in progress the High Court was
justified in interfering with the investigation and prohibiting or pre-
cluding further investigation in exercise of its extraordinary jurisdiction
c
under Art. 226 of the Constitution ? ·
'Investigation' is defined in s. 2(h) of the Code to include all the
proceedings under the Code for the collection of evidence conducted
by a police officer or by any person (other than a Magistrate) who is
authcrfaed by a Magistrate in this behalf. 'Police report' is defined in D
s. 2(r) to mean a report forwarded by a police officer to a Magistrate
under sub-s. (2) of s. 173. Chapter XII deals with investigation of
a cogmzable case. Section 156(1) and (2) are relNant and may be
extracted :

"156(1) Any officer in charge of a 'police station may, E
without the order of a Magistrate, investig:ite any cognizable
case which a Court having jurisdiction over the local area
within the limits of such station would have power to inquire
into or try under the provisions of Chapter XIII.
_ (2) No proceeding of a police officer in any such case F
shall at any stage be called in question on the ground that the
case was one which such officer was not empowered under
this section to investigate".

Section 36 confers power of an officer in charge of a police station
on all police officers superior in rank to an officer in charge of a police G
~tation. It reads as under : ·
"36. Police officers superior in rank.to an officer in charge
of a police station may exercise the same powers, through-
out the local area to whlch they are appointed, as may be
ex~rcised by such officer within the limits of his station".
H
Section 173 provides for submission of a report by an officer in
charge of a police station on completion of the investigation, to the
28 SUPREME COURT REPORTS [1980] 2 S.C.R.

A Magistrate empow&ed to take cognizance of the offence. Sul:>-s. (8) ' -
of s. 173 is material. It reads as under :
"173(8) Nothing in this section shall be deemed to pre-
ciude further investigation in respect of an offence after a
report under sub-section (2) has been forwarded to the
Mdgistrate and, whereupon such investigation, the officer in
8
cirnrgc of the police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a further
report or reports regarding such evidence in the form pres-
cnbr-0; and the provisions of sub-sections (2) to (6) shall, as
far as may be, apply in relation to such report or reports as
they apply in relation to a report forwarded under sub-section
(2)".
The fim question is whether the State Government was precluded
from directing further investigation in the case in which one investigat-
ing officer had submitted a report under s. 173(2) of the Code but on
which the Court had not passed any order ?
D
Section 156 enables the officer in charge of a police station to in-
vestigate without the order of a Magistrate into a cognizable case
commilted within the area of the police station.
The officer directed by the State Government to cany on the investi-
gation is Inspector-General, Vigilance. He is undoubtedly an officer
£ superior in rank, if not in departmentwise administrative hierarchy,
to an officer in charge of a police station. Inter ;e departmental
division such as Inspector-General of Police or Inspector-General,
Vigilance, or Additional Inspector-General, C.I.D. may be merely a
division of work for administrative efficiency, but the Inspector-Gene-
ral of Police could not by any stretch of imagination be said not to be
an officer superior in rank to an officer in charge of a police station.
While interpreting s. 551 of the Code of Criminal Procedure, 1908
('1908 Code' for short), which was in pori materia with s. 36 of the
Code, this Court in R. P. Kapoor & Ors. v. Sardar Partap Singh
Kairon & Ors.,(') observed that the Addi. Inspector-General of
Police was, without doubt, a police officer superior in rank to an officer
G
in charge of a police station. Rule 7 (a) of the Bihar Police Manual
provides that the police force of the entire State is under the overall
charge of Inspector-General of Police and for the help of Inspector-
General and for the convenience of carrying out the work connected
with the different branches of police administration, Deputy Inspector-
II General and Assistant Inspectors-General of the rank of Superinten-
dent are posted at headquarters. The use of the word 'rank' in s. 36
.' .
(1) [1961] 2 S.C.R. 143 at 153,154.
BIHAR v. J.A.C. SALDANHA (Desai, 1.) 29

of the Code comprehends the hierarchy of police officers. It is equaJly A
cl.ear that Inspector-General of Police will have jurisdiction over the
whole cf the State. Division of work, but not demarcating any local
area indicates that Inspector-General, Vigilance, will have jurisdiction
extending over the whole of the State and this equally becomes clear
from the Notification dated June 6, 1973,. issued by the State Govern-
ment in exercise of the power under clause (s) of sub-s. (1) of s. 4
of the 1908 Code declaring that in respect of certain offiences tho
Vigilance Department shall be deemed to be a police station having
its jurisdiction throughout the whole State of Bihar. Even apart from
this, Inspector-General appointed by the State Government has juris-
diction over the whole of the State unless the contrary is indicated.
If he is thus an officer superior in rank to an officer in charge of a c
police station he could in view of s. 36 exercise the powers of an officer
in charge of a police station throughout the local area to which he was
appointed meaning thereby the whole of Bihar State as might be
exercised by an officer in charge of a police station within the limits
of his police station. It· was to him that the investigation of the case
D
was ordered to be handed over by the State Government.

It was, however, contended that State Government has no power
to direct further investigation, that being the power of the officer in
charge of a police station under sub-s. (8) of s. 173 of the' Code, or
the power of the Magistrate to direct further investigation under sub-s.
(3) of s. 156, and, therefore, the State Government under orders of
the Chief Minister was not competent to direct further investigation
in the case.

The State of Bihar is governed by the Indian Police Act, 1861,
('Act' for short), because it has not enacted any Police Act of its own.
In s. 1 of the Act the word 'Police' is defined to include all persoDJ
r
>
who shall be enrolled under the Act and the words 'general police dis-
trict' are defined to embrace any presidency, State or place, or any
part of any presidency, State or place, in which the Act shall be ordered
to take effect. Section 3 of the Indian Police Act provides as under :
"3. The superintendence of the police throughout a general G
police-district shall vest in and, shall be exercised by the State
Government to which such district is subordinate; and except
as authorised under the provisions of this Act, no person,
officer or Court shall be empowered by the State Government
to supersede or control any police functionary".
H
''" Section 12 confers power on the Inspector-General of Police, subjCol
to the approval of the State Government, to make rules and it was
30 SUPREME COURT REPORTS [1980) 2 S.C.R.

A stated that the Bihar Police Manual, 1978, has been issued in exercise
of the power conferred by s. 12. Section 22 provides that every police
officer shall, for all purposes in the Act contained, be considered to
be always on duty, and may at any time be employed as a police offi-
cer in any part of the general police-district. The Act, as its long title·
shows, was enacted to re-organise the police and io make it a more
B efficient instrument for the prevention and detection of crime. Investi-
gation comprehends detection of the crime. General police-district
covers the entire State. Inspector-General, Vigilance, being appointed
for the whole of the State, is a police officer considered to be oli duty
for all purposes of the Act in the whole of the State and it is open to the
State Government to employ him as police officer in any part of the 1
c general district. This would effectively answer the contention of res-
pondent 1 that Inspector-General, Vigilan~, being o"nly in charge of
bribery and corruption cases, could not be directoo by the State Gov-
ernment in exercise of its executive administrative function to take over
investigation of a cognizable offence registered at railway police station
D because when he was directed to take over the inv~stigation it would
mean that he was employed as a police officer in that police station
for the detection of the crime.
However, even apart from this, what is the scope, content and
ambit of the power of general snperintendence conferred on the State
Government over the police throughont the general police-district
meaning thereby the whole State ?
The general power of superintendence as conferred by s. 3 would
comprehend the power to exercise effective control over the actions,
performance and discharge of duties by the members of the police force
throughout the general district. The word 'superintendence' would
imply administrative control enabling the authority enjoying such
F
power to give directions to the subordinate to discharge its administra-
tive duties and functions in the manner indicated in the order. It is •
only when a subordinate authority subject to superintendence is dis-
chargiug duties and functions of a quasi-judicial character under a
stB.tute that the inhibition of abdication of such power can be invoked.
G But where the subordinate subject to such ·power of superintendence of
the superior is discharging administrative and executive functions,
obligations and duties, the power of superintendence would comprehend
the authority to give directions to perfo1m the duty in a certain manner,
to refrain from performing one or the other duty, to direct some one
else to perform the duty and no inhibition or limitation can be read
H in this power unless the section conferring such power prescribes one.
·such is the scope and ambit of power conferred by s. 3 on the State
Government of superintendence over the entire police force of the
Dil!AR v. J.A.C. SALDANHA (Desai, !.) 31

State. This is borne out by a decision of this Court in Makeshwa1• A
Nath Srivastava v. State of Bihar & Ors. (I). In that case upon a dis-
ciplinary inquiry an Inspector of Police was served a notice by the
Inspector-General of Police, Bihar, to show cause why he should not
be dismissed. After taking into consideration the representation of the
delinquent, the LG. Police, Bihar, passed order dated September 30,
1958, exonerating the delinquent of all the charges held proved against B
him by the inquiry officer. But on an entirely untenable extraneous
ground he directed reversion of the delinquent from the post of Inspector
of Police to the post of Sub-Inspector of Police. The delin-
quent preferred an appeal to the Government which was dis-
missed and the delinquent filed a writ petition .in the High c
Court, Patna, which was allowed with a direction that the
appeal of the delinquent be heard by the Government over
again. The State Government thereupon issued notice under
rules 851(b) and 853A of the Biliar and Orissa Police Manual, 1930,
to the delinquent calling upon him to show cause why he should 11ot
be dismissed from service and ultimately the delinquent was dismissed D
by the State Government. The writ petition filed by him was dismissed
i11 limine by the High Court. In appeal to this Court by the delinquent,
the order of the State Government was sought to be sustained on behalf
of the State Government by contending that under its general power
of superintendence conferred by s. 3 of the Police Act it would be open
to pass an order of dismissal even in an appeal preferred by the delin- E
quent against his reversion to the subordinate post by the LG. Police.
Setting aside this order of dismissal by the State Government this Court
held that as rule 85l(b) provides for appeal and disciplinary proceed-
'ings, presumably both, at the instance of the officer punished or the
Department and the rule being statutory having been framed in exercise
F
of powers conferred by s. 46(2) of the Police Act, there would be no
question of State Government exercising general power of .superinten-
dence under s. 3 of the Act. It was further observed that the exercise
of such power is ordinarily possible when there is no provision for an
appeal unless there are other provisions providing for it. It would thus
transpire that where the power is ,limited or fettered or taken away by G
some specific provision to the contrary, the general power of superinten-
dence would comprehend power to issue directions, orders for perfor-
mance' of duty in a certain. manner, directing some one else to discharge
certain function, refrain from performing certain duty, etc. Superinten-
dence connotes supervision which implies a hierarchy, viz., supervisor
nnd the one supervised, It would, therefore, mean keeping a check, H

(I) [1971] 3 S. C.R. 863.

~-- --- -
32 SUPREME COURT REPORTS [1980] 2 S.C.R.

A watch over the work of another may be a subordinate in a hierarchy of
authority. It would also comprehend that supervision is not merely
11. negative thing so as to keep a watch but it would imply giving ot
direction, guidance, even instructions, and in a given case and in a given
1>ituation asking one who is being supervised to forebear from doing
a thing and directing some one else to do that thing. In 'Words and
• Phrases', Permanent Edition, Vol. 40A, the word 'superintendence'
has been generally stated to mean the act of superintending, care and
oversight for the purpose of direction and with authority to direct. To
take an analogy, Art. 227 of the Constitution prior to iii
amendment by 42nd Amendment conferred on every High Court the
c power of superintendence over all courts and tribunals throughout the J
territory in relation to which it exercises jurisdiction and this power
was held to embrace within its width, inter alia, the power to direct
1ubordinate courts and tribunals to carry out its orders, to direct inquiry
with a view to taking disciplinary action for cases of flagrant m:tladrnini-
•tration of justice (see Rajkumar v. Ramsunder) .(')
D
Tho High Court construed the expression 'superintendence' in s. 3
of. tho Act to mean 'general supervision of the management of the police
department and does not vest the State Government with authority to
decide what the police_ alone is authorised to decide'. There is nothing
in the Act to indicate such a narrow construction of the word 'superin-
tendence'. Nothing was pointed out to us to put a narrow construction
on this general power of superintendence conferred under the Act on
the State Government and there is no justification for limiting the broad
spectrum of power comprehended in power of superintendence. Accord-
ingly superintendence would comprehend the power to direct further
investigation if the circumstances so warrant and there is nothing in the
F
Code prO\iding to the contrary so as to limit or fetter this power. Sub-s.
(8) of s. 173 was pressed into service to show that the power of furthec
investigation after the submission of a report under s. 173 (2) would
bo with the officer in charge of a police station. Sub-s. (8) of s. 173
i1 not the source of power of the State Government to direct furthet'
G investigation. Section 173(8) enables an officer in charge of a police
litation to carry on further investigation even after a report under r.
173 (2) is submitted to Court. But if State Government has otherwiss
power to direct further investigation it is neither curtailed, limited nor
denied by s. 173 (8), more so, when the State Government directs an.
officer superior in rank to an officer in charge of police station thereby
H eojoying all poweni of an officcr in charge of 1 police station to furthec

(I) A.LR. 1932 P. C. 69. ...
BIHAR v. J.A.C. SALDANHA (Desai, J.) 33

investigate the case. Such a situation would be covered by the com- A
bined reading of s. 173(8) with s. 36 of the Code. Such power ia
claimed as flowing from the power of superintendence over police to
direct a police officer to do or not to do a certain thing because at the
stage of investigation the power is enjoyed as executive power untn.•
melled by the judiciary. It was incidentally submitted that it is an
undisputed dictum of law that when a statute requires a thing to be B
done in a certain manner it shall be done in that manner a.Jone and

,. the Conrt would not expect its being done in some other manner (su
State of Gujarat v. Shanti/al Mangaldas & Ors.(1) Expounding the
1mbmission it was stated that sub-s. (8) of s. 173 clearly indicates the
power of further investigation after submission of a report al)d that
l c
power is conferred on the officer in charge of a police station.only and,
therefore, the State Government was incompetent to direct further in-
ve11tigation. It was further contended that in view of the provision con-
tained in s. 173 (8) it would not be open to the Court to so interpret
the word 'superintendence' in s. 3 of the Police Act as to empower the
State Government to direct investigation beingi done by some> one other D
than the statutory authority envisaged by s. 173 (8) because su~h an
interpretation would derogate from the principle that where a thing i9
required by a statute to be done in a particular way it shall be deemed
to have prohibited that thing being done in any other way. In Ex-parte
Stephen's('), the principle is stated that if a statute directs a thing to
be done in a certain way that thing shall not, even if there be no negative
words, be done in any other way. Subba Rao, J. in Patna Improve-
ment Trust v. Smt. Lakshmi Devi & Ors.(•), spelt out the combined
effect of the aforementioned principles thus :
"A general Act must .yield to a special Act dealing with
( a specific subject-matter and that if an Act directs a thing to
be done in a particular way, it shall be deemed to have pro-
F

hibited the doing of that thing in any other way".
There is no warrant for invoking this principle because s. 5 of the
Code provides that nothing in the Code shall, in the absence of a
i;pecific provision to the contrary, effect any special or local law for G
the time being in force, or any special jurisdiction or power conferred,
.or any special form of procedure prescribed, by any other law for tho
time being in force. Section 3 of the Act does not prescribe any
special procedure for investigation contrary to one prescribed in tho
Code. It merely provides for conferment of certsin power which, whett
(I) (1969) 3 S.CR. 341 <t 372. TI
(2) (1876) 3 Ch. D. 659.
(3) [1963) Suppl. 2 S.C.R. 812 at S2J.
34 SUPREME COURT REPORTS [1980] 2 S.C.R.

A exercised, would project into the provisions of the Code which confers
power on the officer in charge of a-police station to carry on further in-
vestigatiom under s. 173 (8) after submission of a report and that too
without any permission of the Magistrate. There is n0 conflict between
the two provisions. Power lt> direct investigation or further investiga-
tion is entirely different from the method and procedure of investigation
B and the competence of the person to investigate. Section 3 of the Act
as interpreted by us deals with the powers of the State Government to
direct further investigation into the case. Undoubtedly, such direction ·
will be given to a person competent to investigate the offence and as bas '.

been pointed out, the police officer in rank superior to the police offi-
cer in charge of the police station, to wit, Inspector-General, Vigilance,
c has been directed to carry on further investigation. An ollicer superior
in rank to an officer-in-charge of a police station couid as well exercise
the power of further investigation under s. 173(8) in view of the provi-
sion embodied in s. 36 of the Code, If that be so, such superior officer
could as well undertake further investigation on his own and it is im-
D material and irrelevant that he does it at the instance or on the
direction of the State Government. Such a direction in no way corrodes
his power to further investigate on his own. ·

The power of the Magistrate under s. 156(3) to direct further in-
vestigation is clearly an independent power and does not stand in
conflict with the power of the State Government as spelt out herein-
E
beforc. The power conferred upon the Magistrate under s. 156(3) can
be exercised by the Magistrate even after submission of a report by
the investigating officer which would mean that it would be open to

F
the Magistrate not to accept the conclusion of the investigating officer
and direct further investigation. This provision docs not in any way
affect the power of the investigating officer to further investigate the
-
case even after submission of the report as provided in s. 173(8).
Therefore, the High Court was in error in holding that the State Govern-
ment in exercise of the power of superintendence under s. 3 of the Act
lacked the power to direct further investigation into the case. In reach-
ing this conclusion we have kept out of consideratioH the provision
contained in s. 156(2) that an investigation by an otlicer-iii-charge of
a police station, which expression includes police office? Superior in
rank to such officer, cannot be questioned on the ground that such in-
vestigating officer had no jurisdiction to carry on tho investigation;
otherwise that provision would have been a short answer to the conten-
tion raised on behalf of respondent I.
H
The High Court found circumstances in which investigatiO)l was
directed to be taken by the Inspector-General of Vigilance as peculiar
BIHAR v. J.A.C. SALDANHA (Desai, l.) 35

and unconventional. There are some tell-tale facts disclosed in the A.
record which would totally dispel any doubt in this behalf. After res-
pvndent 3 took over the investigation in circumstances far more curious
and unintelligible than what the High Court found in respect of the
direction given by the State' Government, respondent 3 directed his
subordinate officer respondent 4 to carry on further investigation under
his supervision. It would not be out of place to briefly narrate the cir- B
cumstances in which respondent 3 took over investigation of this case.
On a complaint received from one R. H. Modi, Managing Director of
TISCO in respect of an intimation calling him to appear at the police
station, the Inspector-General of Police, Bihar, requested respondent 3,
Addi. inspector-General, C.I.D., to look into the complaint of Mr.
Modi whereupon respondent 3 seized the opportunity to take over the c
investigation from railway police. It is suggested that this routine
direction to look into the complaint of R. H. Modi by Inspector-General
of Police to Addi. Inspector-General, C.I.D., purports to be an order
transferring the investigation from Railway Police to ·c.r.D. It is
stretching credulity to extreme to interpret the direction to look into
the complaint as one ordering transfer of investigation. The High Court D
was in error in so interpreting such an innocuous endorsement. This is
how respondent 3 arrogated to himself the authority to investigate this
case and even when papers of investigation were called from him by
the Chief Secretary and were lying with him which would indicate that
for the time being respondent 3 was not to fake any action in the
E
matter, he proceeded to direct that a report exonerating · the persons
whose names were set out in the first information report be filed in the
Court. This would imply that the decision reached by the Superinten-
dent, Railway Police, respondent 6 and his subordinate ln,pector Rizvi
whQ had concluded that a charge-sheet had to be filed, was unaccept-
able to respondents 3 and 4 and in the guise of further investigation,
they re-opened the investigation to explain away certain peculiar features
of the case of which at present no note need be taken. It appears that
the manner in which respondent 3 usurped and his subordinate respon-
dent 4 carried on the investigation, attracted the attention of MLAs/
MLCs. and seven of them submitted a complaint dated August 28,
1978, to the State Government, Inspector General, Vigilance, and G
others, complaining therein that the officers cf TISCO were bringing
tremendous pressure to camouflage the issues disclosed in investigation
of respondent 6 and that he has been got transferted a: :he instance of
the officers of TISCO which prima facie appeals inasmuch as the. day
on which the resident representative of TISCO wrote a letter of request
to do something in the matter addressed to the then Chief Secretary, H
the same day Council of Ministers appears to have decided to transfer
1cspondent 6. The coincidence, if not curious, is certainly revealing,

-T~---
36 SUPREME COURT REPORTS (1980] 2 S.C.R.

A (
MLAs./MLCs. made certain allegations against respondent 3 which '
may be ignored for the time being but two things cranspire from his
complaint which are of considerable imporance. It appears that TISCO
has a special preference for retired highly placed State and Union level
officers and attracts them on salary which none of them drew through-
B out his service. Mahabir Singh, the retired Inspector-General, Police,
Bihar, has been appointed as Chief Security Officer; H. F. Pinto, after
his retirement from the post of Secretary to Railway Board, was em-
ployed by TISCO. That is equally true of one N. K. Gupta, retired
Superintendent of Police, Tatanagar area who got employment with
TISCO and no one other than the D.I.G., Railway, against whom not a
c little of allegation is made in this case, has complained in his letter
dated May 11, 1977, that TISCO authorities appoint retired railway
and police officers with a view to influencing railway officers and others.
He also complained that TISCO authorities are reported to be trying
their best to seal all sorts of irregularities and might be manufacturing
documents with break neck speed in defence. This emanates from a
D person who at least has been spared of any allegation by respondent~
1, 3 and 4 and even those supporting them. The complaint made by
MLAs./MLCs. merely vouchsafes the suspicion voiced by D.I.G.,
Railway, way back on May 11, 1977. This complaint was made by
MLAs./MLCs. undoubtedly belonging to the ruling party but that
does not detract from its credibility. If on such a ~omplaint made by
E elected representatives of the people of the State, and in the background
of what n.r.G., Railway, had suspected and which was confirmed in
the report made by the Commissioner, South Chhota Nagpur Division,
an officer not connected with the police establishment and free from any
allegation of bias, the Chief Secretary, decided to draw altention of the
Chief Minister to take some action in the matter so as to transfer the
F
investigation to the C.B.I., a body free from local political influence,
there is. hardly any justification for calling the circumstances unconven-
tional or unusual. And this step was taken by the Chief Secretary way
back on August 28, 1978. This is a material date. Even at that time
the Chief Secretary only prepared a note pointing out what was the
G situation and why it had beconie necessary to direct C.B.I. investigation
in the case. The last sentence in the note dated August 28, 1978, i•
. that along with the investigation of the case "C.B.I. may also be ref.
quested to make enquiries whether any senior police officer concerned
with these two cases is involved in corruption or not". That effectively
and conclusively answers the futile exercise undertaicen by the High
H Court to come to an utterly unsustainable conclusion that the case did
not involve any corruption or bribery and, therefore, I.G. Vigilance was
incompetent to undertake investigation of the case. Misappropriation
BIHAR v. J.A.C. SALDANHA (Desai, J.) 37

of public funds has been complained in the first information report re- A
gistered on March 11, 1977. A suspicion of corruption is voiced by
the Chief Secretary. This note was approved meaning thereby that the
suggestion therein made was accepted by the Chief Minister on the same
day, i.e. August 28, 1978. The acceptance of the note by the Chief
Minister would tantamount to taking over the investigation from res- B
pondent 3 and his subordinates and to transfer it to C.B.I. It is im-
' material whether C.B.I. accepted it or. not. Pursuant to this decision
within 5 days, i.e. on September 2, 1978, the Chief Secretary wrote to
respondent 3 asking him to send all the papers of investigation to him
in a sealed envelope. Respondent 3 was also directed to submit a brief
l. note with respect to the case under investigation to ascertain the stage c
of investigation. This direction was received by respondent 3 on
September 7, 1978. While complying with the requisition for papers,
respondent 3 stated that he has pointed out the present progress of in-
vestigaticn and the need for further action to be taken. It means in-
vestigation was not complete even according to respondent 3. He aloo
requested the Chief Secretary to return the papers to him. Respondent D
3 a very highly placed police officer would be presumed to be aware of
departmental procedure that when all the papers of a case are called
for from him any further gction has to be stayed by h,im. In adminis-
trative hierarchy one does not go on passing stay orders and it would be
too naive to accept such a suggestion. There is nothing to show on
record that thereafter any further investigation has Leen done by res- E
pondent 3 or his subordinates. ·subsequent thereto, on November 20,
1978, respondent 3 requested the Chief Secretary for the return of the
records if they were no more required so that further steps could be
taken to complete the investigation. Two unassailable conclusions
emerge from this note of respondent 3 : ( 1) that the investigation was
not complete; and (2) thaV the same could not be completed without,
the records which were then with the Chief Secretary. However, with-
out any rhyme or reason and without the record and without the sligh-
test further investigation with an unseemly hurry respondent 3, with a
view to forestalling any action by the higher officers, viz., the Chief
Secretary and the Chief Minister, directed a final report to be submitted G
saying that no offence is disclosed. 'The narration of facts are so tell-
tale that any further comment is uncalled for. We consider the obser-
vation of the High Court that the entrustment of the case for investiga-
tion to Vigilance Department is rather peculiar and unconventional, as
unwarranted and unsustainable on the facts hereinabove narrated and
discussed. Similarly, the aspersion cast on the complaint of MLAs/ H
MLCs., lacks judicial propriety in that they were stigmatised and adver-
sely commented upon at their back without calling for any explanation
38 SUPREME COURT REPORTS (1980] 2 S.C.R.

A from them. In parliamentary democracy elected representatives have
a duly to perform and their vigilance in performance of duty without r.,.
anything shown as unbecoming of them cannot be unilaterally chastised.
We say no more.
It was next contended that the addition of the Chief Secretary in.
B suggesting that the investigation be taken over by the C.B.J. and the
acceptance of the same by the Chief Minister suffers from legal malice
inasmuch as the Chief SecretarY. and the Chief Minister had no jurisdic- '
tion, authority or power to make such an order to transfer investigation
or to direct further investigation when a report was already submitted
by respondent 4 as investigating officer to the Court competent to take
c cognizance of the case· It was, therefore, submitted that even though
no personal ma/a fides is attributed to the Chief Secretary, once be
lacked jurisdiction to re-open investigation his note would show legal
malioo, Reference was made to Shearer v. Shields('), wherein it is
observed that :
"Between malice in fact and malice in law there is a broad
D distinction which is not peculiar to any particular system of
jurispmdence. A person who inflicts an injury upon another
person in contravention of the law is not allowed io say that
he did so with an innocent mind; he is faken to know the law,
and he must act within the Jaw. He may, therefore, be guilty
of malice in law, although, so far as the state of his mind is
E
concerned, he acts ignorantly, and in that sense innocently".
This was affirmed by this Court in Bh11t Nath Mete v. State of West
Bengal.(2)
As pointed out above, if the Chief Secretary as the highest executive
F officer at the State level exercising power of superintendence over the
police of the State posted in general police district would have powers
to suggest change of investigating machinery in the circumstances dis-
closed in the letter dated May 11, 1977, of the D.LG., Railway, the
report of the Commissioner of South Chhotanagpur Division, and the
complaint of MLAs./MLCs, his action could not be said to be without
G power or authority. In our opinion, if he had acted otherwise, a charge
of inaction or failure or default in performance of his duty as the
highest chief executive officer would be squarely laid at his door. He
acted in the best tradition of the Chief executive officer ;_n public interest
and for vindication of tmth and in an honest and unbiaBed manner.
Afterall, if he had even the remotest bias against any one, he could have
. II •
(1) [1914] A.C. 808 at 813.
(2) [1974] 3 S.C.R. 315 at 321.
BIHAR v. J.A.C. SALDANHA (Desai, J.) 39

as well suggested in agreement with the earlier investigation done by A
respondent 6 and the report submitted by him for submitting the charge-
sheet that a charge-sheet should be filed. In fact, in tho
background herein discussed, the Chief Secretary with utmost
candour, with a view to vindicating the honour of the ad-
ministration, proposed ascertainment of truth at the hands of
C.B.I., a body beyond reproach as far as local politics is B
concerned. The High Court was, therefore, in our opinion, clearly
in error in casting aspersions on the Chief Secretary and the observation
"whether respondent No. 2 is lying or the Chief Secretary is feeding ns
with false facts is not for this Court to determine ... " is an observation
belied by the record and unwarranted in the circumstances of the case,
The contention is wholly unmerited.
c
A grievance was made that there was serious impropriety in the
Superintendent of Railway Police, Mohammad Sulaiman, directly
addressing a letter to the learned Additional Chief Judicial Magistrate
on February 15, 1979, informing him about the decision of the Govern-
ment to continue the investigation and, therefore, not co accept the final D
report. lt is true that the police officers should refrain from addressing
communications to the Court on pending matters required to be deter-
mined judicially and we express our disapproval of this conduct. How-
ever, it makes no difference in this case bec_ause the learned Addi. Chief
Judicial Magistrate acted not on the letter dated February 15, 1979,
but on an application made by the Assistant Public Prosecutor in charge
of the case and that is the legally accepted mode of obtaining a judicial
order.
The next contention is that the High Court was in error in exercis-
ing jurisdiction under Art. 226 at a stage when the Addi. Chief Judicial
Magistrale who has jurisdiction to entertain and try the case has not F
passed upon the issues before him, by taking upon itself the apprecia-
tion of evidence involving facts about which there is an acrimonious
dispute between the parties and giving a clean bill to the suspects
against whom the first information report was filed. By so directing the
' learned Addi. Chief Judicial Magistrate the judgment of the High Court
virtually disposed of the case finally. As we are setting aside the judg- G
ment of the High Court with the result that the case would go back to
the learned Additional Chief Judicial Magistrate, it would be imprudent
for us to make any observation on facts involved in the case.
There is a clear cut and well demarcated sphere of activity in tl1e
field of crime detection and crime punishment. Investigation of an II
·offence is the field exclusively reserved for the executive through the
police department, the superintendent over which ve~ts in the State
40 SUl'REME COURT REPORTS [1980] 2 S.C.R.

A Government. The executive which is charged with a duty to keep vigi-
lance over law and order situation is obliged to prevent crime and if an
offence is alleged to have been committed it is its bounden duty to in-
vestigate into the offence and bring the offender to book. Once it in-
vestigates and finds an offence having been committed it is its duty to
•
collect evidence for the purpose of proving the offence. Once that is
B completed and the investigating officer submits report to the Court re-
questing the Court to take cognizance of the offence under s. 190 of
the Code its duty comes to an end. On a cognizance of the offence be.
ing taken by the Court the police function of investigation comes to an
end subject to the provision contained in s. 173 (8), there commence!
the adjudicatory function of the judiciary to determine whether an
c offence has been committed and if so, whether by the person or persons
charged with the crime'by the police in its report to the Court, and to
award adequate punishment according to law for the offence proved to
the satisfaction of the Court. There is thus a well defined and well
demarcated function in the field of crime detection and its subsequent
adjudication between the police and the Magistrate. This has been
D
m:ognised way back in King Emperor v. Khwaja Nazir Ahmad('),
where the Privy Council observed as under :

"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
E the judicial authorities and it would, as their Lordships think,
be an unfortunate result if it should be held possible to inter-
fere 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 com-
bination of individual liberty with a due observance of law
F
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 of the Criminal Procedure Code to give directions in
the nature of habeas corpus. In such a case as the present, '
G however, the court's functions begin when a charge is preferr-
ed before it, and not until then".

This view of the Judicial Committee clearly demarcates the func-
tions of the executive and the judiciary in the field of detection of
crime and its subsequent trial and it would appear that the power ·of
H tbe police to investigate into a cognizable offence is ordinarily not to
be interfered with by the judiciary.
(1) [1944] L.R. 71 I.A. 20Jat 213.
lllHAR v. J.A.C. SAj,DANHA (Desai, J.) 41

Some attempt was made to impress us with utterly irrelevant A
factor!! as to bow much freight TISCO-is paying to the railways every
year and even the amount which may become payable in view of the
disputed facte "llW also paid some time prior to the filing of the first
information report. We would refrain from making even an implied
observation on any facts involved in the dispute, The case is not at
' a stage where the court is called upon to quash the proceedings as
disclosing no offence but the case is at a stage where further investi-
gation into the offence is sought to be thwarted by interference in
exercise of the extra-ordinary jurisdiction. Apart from reiterating
the caution administered way back in Khawaja Nazir Ahmad's (supra)
case that unless an extra-ordinary case af' gross abuse of power is
c
J made out by those in charge of iJ1vestigation as noted in S. N. Sharma
v. Bipen Kumar Tiwari & Ors.(') the Court should be ouite loathe
to int"erfere at the stage of investigation, a field of activity reserved
for police and the executive. It :would be advantageous to extract
what this Court observed in S. N. Sharma' s case :
"It app'ears to us that, though the Code of Criminal D
Procedure gives to the police unfettered power to investi-
gate all cases where they suspect that a cognizable offence
liM been committed, in apprOpriate cases an aggrieved
pCht.m can always seek a remedy by invoking the power of
tht: High Court under Art. 226 of the Constitution under
E
which, if the High Court could be convinced that the power
of in\festigation has been exercised by a police officer mala
fide, the High Court can always issue a writ of mandamus
restraining the police officer from misusing his legal powers".

Not only such a case is not made out but the High Court by an utter
.F
~onception of its jurisdiction almost directed the Magistrate before
whom the papers are pending to act in a manner as enjoined by the
High Court. How the High Court has usurped the jurisdiction of the
leamed Magistrate, the following passage from the judgment of the
High Court would be illustrativt. ·After setting aside the impugned
order of the learned Magistrate dated February 24, 1979, and remit- G
ting the CRS!' to the leamed Magistrate, the High Court gave the
following direction :
"He will now proceed to consider the final report sub-
mitted by the Police (C.I.D.). I should, however, like to
observe for the benefit of the learned Magistrate that he will
bear in mind that mere failure to follow rules and regulations H

· (1) [1970] 3 S.C.It. 946.
4-868SCl/79
42 SUPREME COURT REPORTS [1980) 2 S.C.R.

A is neither cheating nor breach of trust. He will also bear in
mind while applying himself to the case diary with all
thoroughness whether there is any materilil to show that the
Railways have suffered. In order to constitute offence of
cheating causation of damage or harm to a Person in body,
mind, reputation or property is essential. The learned
Magistrate will direct his attention to this aspect of the
matter. Loss to the Railways cannot be presumed merely
from the fact of irregular booking. The learned Magistrate
will consid~ the effect of issuing of despatch advice and
forwarding notes by Tisco at the time of despatch of goods.

c
The learned Magistrate will also bear in mind that mere
failure to pay does not amount to cheating for, mere breacll
-
of contract is not cheating. The attention of the learned
Additional Chief Judicial Magistrate is particularly drawn
to the cases of Harkrishna Mahatab v. Emperor (AIR 1930
Patna 209), Major Robert Stuart Wauchope v. Emperor
(AIR 1933 Calcutta 800) and the State of Kerala v. A.
D
Prasad Pillai and Another (AIR 1973 SC 326). To my
mind that Railway as an organisation profited rather .than
lost by the unusual procedure adopted in relation to Tisco.
The learned Magistrate will also consider whether the whole
case diary reveals any material· indicating that any P'riblic
servant had enriched himself either by bribery or by breach
or 1fy breach of faith. After going through the. ease diary
thoroughly the learned Magistrate will decide dehors the
recommendation of Superintendent of Railway Police, res-
pondent No. 7 and C.I.D. whether any offence had been
committed and if so which accused should be put on triaP'.
F
Is there anything more required to write the final epitaph and say
amen by the learned Additional Chief Judicial Magistra~ Bfter the
finding is recorded by the High Court, more especially finding of fact
that railway organisation has profited rather than lost by the nnusnal
procedure? It is a clear case of usurpation of jtµisdiction vested in
G the learned Addi. Chief Judicial Magistrate to take or not to take
cognizance of a case on the material placed before him. The High
Court in exercise of the extra-ordinary jurisdiction committed a grave
error by making observations on seriously disputed questions of facts
taking its cue from affidavits which in such a situation would hardly
provide any reliable material. In our opinion the High Court was
H clearly in error in giving the direction virtually amountiRg to a man-
damus to close the case before the investigation is complete. We say
no more.
BIHAR v. J.A.C. SALDANIIA (Desai, J.) 43

There are some serious allegations made against respondent 6 by A
the original petitioner and some of them were repeated with vellem•-
ence even at the Maring before this Court. We do not propose to
examine them on merits save and except saying that once the investi-
gation was taken over by respondent 3 and the conclusion reached
by respondent 6 and his subordinate investigating officer to file the
charge-sheet was not acted upoii, the stage at wjiieh the case was B
brought to t)le High Court did not call for investigation into the ma/a
fules of respondent 6, appellant in the cognate appeal. After making
him a respondent in the High Court an opportunity was taken to cast
aspersions against his character. His whole attitude in registering an
offence and directing invcitigation into the offence has been question-
ed though an independent officer not even remotely connected with
c
police department, the Commissioner of Chhota Nagpur Division
found snbstance in the first information report, in the investigation
done by respondent 6 and his conclusion, which again was affirmed
by D.I.G., Railway, not shown to be biased. The High Court inter-
fered at the stage where investigation was to be taken up by an
D ~
indepeadent agency and, therefore, the so called bias of respondeat
6 becomes wholly irrelevant. It must, however, be pointed out that
if an information is lodged at the rolice station and an offence is
registered, the ma/a fide of the informant w6uld be of secondary
importance if the investigation produces unimpeachable evideace dis-
closing the offence. We, therefore, consider the aspersioAs cast on E
the character of respondent 6 and the allegations of ma/a fides made
against him virtually accepted by the High Court in entirety as
nttery irrelevant and the same may be treated as expugned for the
c. purposes of thi~ appeal.
We accordingly allow Criminal Appeal 301/79, quash and set F
aside the order of the High Court and restore the order passed by
the learned Addi. Chief Judicial Magistrate, Jamshedpur, dated Feb-
ruary 24, 1979. In view of this order it is not necessary to pass· any
final order in the cognate appeal (Criminal Appeal 300/79) preferred
by respondent 6.

V.D.K. State Appeal allowed.