Jharkhand High Court
Bivash Chandra Thakur vs The State Of Jharkhand ... ... Opposite ... on 17 February, 2020
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 2683 of 2018
Bivash Chandra Thakur ... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Anil Kr. Sinha, Senior Advocate
: Mr. A.K. Das, Advocate
For the State : Mr. T.N Verma, Spl. P.P., ACB
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13/17.02.2020 Heard Mr. Anil Kumar Sinha, learned Senior counsel
appearing on behalf of the petitioner.
2. Heard Mr. T.N. Verma, learned counsel appearing on behalf of the opposite party.
3. The learned counsel for the petitioner has submitted that the impugned order taking cognizance dated 02.07.2007, was passed by learned Special Judge, Vigilance, Patna under Section 420, 465, 467, 468, 471, 477A and 120B of Indian Penal Code against the petitioner. From the lower court records, it appears that vide order dated 25.02.2008, cognizance was taken under Section 13 (2) read with Section 13(1) (d) of Prevention of Corruption Act, 1988. The learned counsel submits that thereafter the case was transferred to the court of Special Judge, Ranchi vide order dated 21.01.2009 passed by the learned Special Judge, Vigilance I, Patna and it is specific case of the petitioner that the said Special Judge, Vigilance I, Patna had no jurisdiction to transfer the case to Special Judge, Vigilance, Ranchi and accordingly the order dated 21.01.2009 is wholly without jurisdiction.
4. The petitioner has also prayed for quashing the order dated 10.05.2018 whereby the learned Special Judge Anti- Corruption Bureau, Dhanbad has been pleased to issue process under Section 82 Cr.P.C against the petitioner. The learned counsel submits that earlier the case was transferred from Patna 2 to Ranchi and thereafter, the case was transferred from Ranchi to Dhanbad. The learned counsel for the petitioner also submits that the warrant was never served upon the petitioner from the courts in the State of Jharkhand. The learned counsel has also referred to the order dated 18.07.2018, whose certified copy has been filed at page no.88 and from corresponding record of the learned court below, he submits that Section 82 Cr.P.C has been made by way of overwriting in another ink as Section 83 Cr.P.C, but the fact remains that on 18.07.2018, process under Section 82 Cr.P.C was issued and their appears to be some interpolation in the order sheet of the learned court below. The learned counsel has also submitted that Section 89 (1) of Bihar Reorganization Act, has been interpreted by the Hon'ble Supreme Court in the case relied upon by the opposite party reported in (2001) 9 SCC 432 and in the said case, which related to transfer of fodder scam cases, the charge sheet was filed prior to 15.11.2000. He submits that in the present case, charge sheet was filed much after 15.11.2000 before the Special Court at Patna which goes to show that the Investigating Officer, who was conducting the investigation continued with the investigation even after 15.11.2000 and submitted his charge sheet at Patna on 02.07.2007 and accordingly, the judgment passed by the Hon'ble Supreme Court, has no applicability to the facts and circumstances of this case. The learned counsel has also submitted that in view of Section 89 (2) of Bihar Reorganization Act, 2000, no case could have been transferred from Bihar to Jharkhand by referring to Section 89, unless there is an endorsement by the Hon'ble Patna High Court. However, it is not in dispute that the impugned order of transfer of records from Patna to Ranchi dated 21.01.2009 does mention any provision of law much less Section 89 of Bihar Reorganisation Act, 2000.
35. Learned counsel for the opposite party, on the other hand, submits that on 12.02.2009, the entire file has been received from Patna to Ranchi vide registered post and thereafter, the case proceeded at Ranchi and subsequently the case was transferred to the jurisdictional court at Dhanbad. The learned counsel for the opposite party has submitted that vide order dated 11.04.2016, an order has been passed by the learned court below whereby the bailors of the petitioner were issued notice and accordingly impugned orders including order u/s 82 Cr.P.C do not call for any interference. Upon this, learned counsel for the petitioner submits that although a petition for anticipatory bail was filed before the learned court at Patna, but before the same could be taken up for adjudication, the case was directed to be transferred to the court at Ranchi and therefore, there was no question of any bailor or bail bond having been furnished by the petitioner. Learned counsel has also submitted that once the record was transferred from Patna to Ranchi and thereafter from Ranchi to Dhanbad, it was the duty of the court concerned to issue fresh notice to the petitioner and fresh notice having been not issued, one of the impugned orders issuing process under Section 82 Cr.P.C cannot be sustained in the eyes of law. Learned counsel submits that order itself mentions that the non bailable warrant or the notice under Section 82 Cr.P.C was never served upon the petitioner.
6. Judgment is reserved.
(Anubha Rawat Choudhary, J.) Saurav/