Pramod
Kumar & Anr Vs. Bihar Vyavasayik Sangharsh Morcha &
Ors [2007] Insc 860 (24
August 2007)
Dr.
Arijit Pasayat & Altamas Kabir
CIVIL
APPEAL NOS. 3886-3887 OF 2007 (Arising out of S.L.P. (C) Nos.191-192 of 2004)
Dr. ARIJIT PASAYAT, J.
1.
Leave granted.
2.
Challenge in these appeals is to the order passed by a Division Bench of the Patna
High Court giving certain directions in a Public Interest Litigation filed by
the respondent no.1. The prayer in the writ petition was essentially to direct
the officials "to stop criminal events against the shopkeepers, dealers,
artisans and industrial and industrial units and labourers and industrial units
and also to stop their exploitation by the officers and police personnel."
3. The
basic grievance was that officials in the police department were continued at
one particular station for long period which is undesirable. The High Court
disposed of the writ petition inter-alia with the following directions and
observations:
(a)
Let the Director General Police make out a list of officers from the station
House Officer up to the Additional Director General of Police, of whose who
have remained in their station for more than four years. This dossier is to be
supported with information from service record as to which officer throughout
their career has remained at which station and for how long.
Officers
who have remained at one station for over four years must see a posting out
within six weeks from today. These would be officers below the rank of
Inspector General of Police.
Staff
below the SHOs who have remained at a particular station beyond three years
will be identified by the District heads of police concerned and their movement
will be undertaken by the Director General of Police.
It
must be mentioned that the period of four years is set because in the normal
course of government service, transfers and postings are made for officers if
they have been at a particular posting for more than three years.
This
order obviously does not preclude the Director General of Police from making
any transfers should an officer have been at a posting for a lesser period,
which is within normal administrative powers.
(b) On
the monitoring of crime which the law obliges the state to register the court
suggests the following measure:- The State of Bihar will request the National
Informatics Centre, Government of India, State unit, to make out a blue print
for monitoring the recording of a First Information Report, whether it is
registered as an FIR or an entry in the General Diary. Every such record in
continuation of the orders of the court dated 5 August, 2003 will be
transmitted by the police stations concerned to the district police officer,
whether the Superintendent of Police or the Senior Superintendent of Police.
This will create a data-base at the district police headquarters. A summary of
the FIR or the General Diary containing the offences and the person's name will
be transmitted to the District Judgeships (District and Sessions Judge). A
periodical report, as the police regulations so require, will also be given on
the progress and action taken on a reported crime, whether it has culminated in
a final report to be filed or a charge sheet to be filed before the Magistrate
concerned.
If
common name is occurring of an accused in more than one district, this
information will be shared between the police officers who are heads of the
districts concerned and intimated to the police headquarters and in terms of
the order dated August
5, 2003, as also to
the district judgeship.
The
National Informatics Centre (NIC) will also draw up a plan (reference orders of
the Court dated August 5 and this order) how an FIR may be recorded by computer
by the SP/SSP/CJM on the failure of the police station to record it, and to
create a data base on crime and criminals in the State.
Report
to be submitted by the NIC to the Director General of Police for due action on
it by the State Government, and the High Court to be informed on the report and
progress on it."
4.
Learned counsel for the appellants submitted that the directions are contrary
to the statutory prescriptions i.e Rule 778 (vii) of the Bihar Police Manual.
The averments in the writ petition were extremely vague. Not even one instance
was given to substantiate the prayer to direct officials to stop "criminal
events" and "exploitations". The High Court instead of
dismissing the frivolous writ petition has given directions touching service
conditions of large number of officials who were not even parties not even in
representative capacity.
During
the course of hearing, learned counsel for the respondent-State brought to our
notice the Bihar Police Act, 2007. It appears that the Bihar Police Act, 2007
has been enacted to give effect to the directions of this Court in Prakash
Singh and Ors. V. Union of India and Ors.
(2006 (8) SCC 1). Several provisions of the Act need to be noted. They read as
follows:
"Chapter
III Superintendence and Administration of Police
23. State Police Board The Government shall, within six months of the
coming into force of this Act, establish a State Police Board to exercise the
functions assigned to it under the provisions of this Chapter.
24.
Composition of the State Police Board The State Police Board shall consist of:
(a)
Chief Secretary Chair person
(b)
Director General of Police member and
(c)
Secretary in charge of the Home Department - member-secretary.
25.
Functions of the State Police Board The State Police Board shall perform the
following functions:
(a) frame
broad policy guidelines for promoting efficient, effective, responsive and
accountable policies, in accordance with the law;
(b) identify
performance indicators to evaluate the functioning of the Police Service. These
indicators shall, inter alia, include: operational efficiency, public
satisfaction, victim satisfaction vis-`-vis police investigation and response,
accountability, optimum utilization of resources, and observance of human right
standards; and (c) review and evaluate organizational performance of the Police
Service in the State as a whole as well as district-wise against performance
indicators as identified and laid down and resources available with and
constraints of the police.
27.
Powers and responsibilities of the Director General of Police As head of the
State Police Service, it shall be the responsibility of the Director General of
Police to:
(a) operationalise
the policies, the strategic plan and the annual plan prepared by the
Government; and
(b) administer,
control and supervise the Police Service to ensure its efficiency,
effectiveness, responsiveness and accountability.
30.
Transfer & Postings
(i)
The transfers and postings of the Police officers and personnel of Supervisory
ranks shall be governed by the rules of Executive Business and such rules
framed by the Government from time to time.
(ii)
The officers shall ordinarily have a tenure of two years.
Provided
that any such officer may be transferred from his post before the expiry of the
tenure of two years consequent upon:
(a) promotion
to a higher post; or
(b) conviction,
or charges having been framed, by a court of law in a criminal offence; or
(c) incapacitation
by physical or mental illness or otherwise becoming unable to discharge his
functions and duties; or
(d) the
need to fill up a vacancy caused by promotion, transfer, or retirement; or
(e) any
other administrative reasons, which may be in the interest of efficient
discharge of duties."
5.
Chapter III relates to superintendence and administration of police.
6.
Section 10 of the Act deals with the transfer and posting of certain ranks. The
same reads as follows:
"(1)
The Police Officers ranging from the rank of Inspector to Constable will be
posted to a particular post within the jurisdiction of the District
Superintendent of Police by the District Superintendent of Police. They will
have a tenure of six years in a District, eight years in a Range and ten years
in a Zone.
Transfers
from one district to another within the Range will be done by a committee
consisting of the Range DIG and the District Superintendents of Police of the
Range.
Transfers
from one Range to another Range will be made by a committee consisting of the
Zonal IG and all the Range DIGs of the Zone.
Transfers
from one Zone to another Zone will be made by a committee consisting of the
Additional Director General of Police and all the Zonal IGs.
(2) An
officer posted as a Station House Officer in a Police Station or as an
officer-in- charge of a Police
Circle or
Sub-Division or as a Superintendent of Police of a district shall have a term
of minimum two years:
Provided
that any such officer may be transferred from his post before the expiry of the
tenure of two years or more consequent upon:
(a) promotion
to a higher post; or
(b) conviction,
or charges having been framed, by a court of law in a criminal offence; or
(c) incapacitation
by physical or mental illness or otherwise becoming unable to discharge his
functions and duties; or
(d) the
need to fill up a vacancy caused by promotion, transfer or retirement; or
(e) any
other administrative reasons, which may be in the interest of efficient
discharge of duties."
7.
Chapter V deals with effective investigation including use of science and
technology in investigation. Sections 36, 38, 42 and 45 read as follows:
"36.
Creation of Special Crime Investigations Units The Government may create, in
crime prone areas Special Crime Investigation units, each headed by an officer
not below the state cadre rank of Sub-Inspector of Police, with such strength
of officers and staff as may be deemed necessary for investigating economic and
heinous crimes. The personnel posted to this unit shall not be diverted to any
other duty, except under very special circumstances with the written permission
of the Director General of Police.
38. Tenure
of Posting in Special Crime Investigation Units Officers posted to Special
Crime Investigation Units will normally have tenure of three years after which
they will be rotated to law and order and other assignments.
42.
Posting of officers and staff to the Special Investigation Cell The officers
and staff to be posted to this Cell shall also be selected and specially
trained.
45.
Selection of officers for Crime Investigation Department The officers posted to
the Crime Investigation Department will be selected on the basis of their
aptitude, professional competence, experience and integrity. They will undergo
appropriate training upon induction, and their knowledge and skills will be
upgraded from time to time through appropriate refresher and specialized
courses."
8. In Prakash
Singh's case (supra), it was held in para 31, so far relevant, as follows:
"Minimum
tenure of IG of police and other officers (3) Police officers on operational
duties in the field like the Inspector General of Police in- charge Zone,
Deputy Inspector General of Police in-charge Range, Superintendent of Police
in-charge District and Station House Officer in-charge of a Police Station
shall also have a prescribed minimum tenure of two years unless it is found
necessary to remove them prematurely following disciplinary proceedings against
them or their conviction in a criminal offence or in a case of corruption or if
the incumbent is otherwise incapacitated from discharging his responsibilities.
This would be subject to promotion and retirement of the officer.
Separation
of investigation (4) the investigating police shall be separated from the law
and order police to ensure speedier investigation, better expertise and
improved rapport with the people. It must, however, be ensured that there is
full coordination between the two wings. The separation, to start with, may be
effected in towns/urban areas which have a population of ten lakhs or more, and
gradually extended to smaller towns/urban areas also.
Police
Establishment Board (5) There shall be a Police Establishment Board in each
State which shall decide all transfers, postings, promotions and other service
related matters of officers of and below the rank of Deputy Superintendent of
Police.
The
Establishment Board shall be a departmental body comprising the Director
General of Police and four other senior officers of the Department. The State
Government may interfere with the decision of the Board in exceptional cases
only after recording its reasons for doing so. The Board shall also be
authorized to make appropriate recommendations to the State Government
regarding the postings and transfers of officers of and above the rank of
Superintendent of Police, and the Government is expected to give due weight to
these recommendations and shall normally accept it. It shall also function as a
forum of appeal for disposing of representations from officers of the rank of
Superintendent of Police and above regarding their
promotions/transfers/disciplinary proceedings or their being subjected to
illegal or irregular orders and generally reviewing the functioning of the
police in the State."
9.
Above being the position, the High Court's directions are no longer relevant.
The appeals are accordingly disposed of.
No
costs.
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