D. A. Desai, J. - (1.) Reverence and anxiety to the same degree, if not more, to shoot at sight 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 Government, more so, when extraordinary power conferred on the High Court to issue prerogative writ in aid of justice is invoked to thwart a possible detection of a suspected offence. How dangerous it is to rush in where one should be wary to tread is amply demonstrated by the facts revealed in these two appeals.
(2.) Factual matrix will highlight the situation. Though the point canvassed centres round the limit of jurisdiction to interfere with the investigation of an offence registered at a police station, to pin-point the contention, relevant facts may be stated with circumspection, as the case is sub judice because any overt or covert expression of opinion on the facts in controversy awaiting adjudication may be censured as judicial impropriety.
(3.) Tata Iron Steel Co. Ltd., ('TISCO' for short), has a railway siding at Adityapur in Tatanagar. A Ferro Manganese Plant has been set up by TISCO at Joda, for which the nearest railway head is Banaspani in Orissa. TISCO has its iron ore and manganese mines at Naomundi. Ore is being transported from Banaspani and Naomundi to Tatanagar, delivery point being railway yard at Adityapur. The allegation is that some of the empty wagons after ore was delivered at Adityapur Railway Station Yard on the return journey to Banaspani/Naomundi were loaded with pearl coke without being booked according to railway rules and without the issuance of railway receipts with the connivance of the local railway officials and the railway was defrauded of its legitimate revenue. It was also alleged that some tanks containing furnace oil were diverted without regular booking 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 posted there and, therefore, wagons could not have been booked from Adityapur railway yard and there was considerable variation in the number of wagons booked from Tatanagar and received at Banaspani as set out in first information report. On these allegations a first information report was lodged on March 11, 1977, consequent upon which an offence was registered at Tatanagar G.R.P.S. under Ss. 420/120-B, 418 and 368, Indian Penal Code, and Sections 105/106 of the Indian Railways Act against 9 persons. One S. R. I. Rizvi, Inspector Railway Police, S. E. Railway, Tatanagar, commenced investigation into the offence under the general supervision of R. P. Singh, Superintendent, Railway Police, respondent 6 in Criminal Appeal No. 301 of 1979 (appellant in Criminal Appeal No. 300/79). Ordinarily, the investigation would proceed in a traditionally routine manner by the 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, wrote a letter to the then D.I.G., C.I.D., Bihar, on May 11, 1977, requesting 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 harassment suffered by the officers of TISCO pursuant to the investigation carried on by railway police under the supervision of respondent 6 and requesting him to take whatever steps the Chief Secretary considered appropriate to curb the enthusiasm of respondent 6 in carrying on the investigation of the offences. It appears from the reply affidavit 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 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 him made some enquiry by his letter dated November 4, 1977, which appears to have been copied to some higher police officers and in the margin of this letter there is an endorsement by respondent 2, Inspector-General of Police, Bihar, requesting respondent 3, Addl. I.G., C.I.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 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 Government of Bihar (Home) Police Department, the Commissioner, South Chhota Nagpur Division, Ranchi, enquired into the allegations made by officers of TISCO against respondent 6 and after consultations with D.I.G., Railway, the immediate superior of respondent 6, submitted 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 case 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 received an application signed by MLAs. and MLCs., 7 in all, addressed to Inspector-General of Police, Vigilance, Bihar, making serious allegations against the investigation 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 I.G,. Vigilance. Such a complaint appears to have been made to the then Prime Minister of India as also some question appears to have been asked in Parliament. The then Chief Secretary submitted a note to the Chief Minister on August 28, 1978, with reference to the letter of the MLAs./MLCs. suggesting 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. In the meantime 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 investigation 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, declined to undertake the investigation and suggested that the Inspector-General, Vigilance Department, may be asked to conduct the investigation. The Chief Secretary thereafter submitted a further note to the Chief Minister on February 8, 1979, stating therein that 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, the Chief Minister was requested to pass an appropriate order directing I.G., Vigilance Department 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 officer 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 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 meantime from respondent 6 who was transferred, to move the Court not to accept the final report and await report of the police after completion of the further investigation which was directed by the Government in the case. The matter was placed before the Addl. Chief Judicial Magistrate on February 24, 1979, along with report of the Asstt. Public Prosecutor not to accept the final report as hereinabove stated whereupon the learned Magistrate 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.";