Jharkhand High Court
Radhey Shyam Pandey vs State Of Jharkhand on 17 June, 2011
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr.M.P. No. 761 of 2010
Radhey Shyam Pandey-- -- - - -- -- --Petitioner
Versus
The State of Jharkhand-- -- -- -- -- -- --Opposite Party
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CORAM : THE HON'BLE MR.JUSTICE D.K. SINHA
For the Petitioner : Mr. K.M. Verma & L.K. Singh, Advocates
For the State : Mr. V.S. Sahay, A.P.P.
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Reserved on: 21-04-2011 Pronounced on: 17 - 06-2011
D.K. Sinha, J. Petitioner has invoked the inherent jurisdiction of this Court under
Section 482, Code of Criminal Procedure for quashment of the order
dated 20.5.2010, passed by the SDJM, Seraikella in G.R. No.375 of 2000
by which the petition filed on behalf of the petitioner for dropping his
criminal proceedings for want of sanction required under Section 197,
Code of Criminal Procedure was rejected.
2. Criminal prosecution of the petitioner and two others was set
on motion on the basis of the written report, presented by the Executive
Engineer, Mechanical Division, Icha Chaliyama, P.S.-Rajnagar, District-
West Singhbhum, whereupon Rajnagar P.S. Case No.45 of 2000 was
registered on 15.7.2000 for the alleged offence under Sections 406/409,
Indian Penal Code against the petitioner Radhey Shyam Pandey and the
another Shradanand Singh, Junior Engineer on the allegation of missing
of three self starters, which were valued at Rs.60,000/- each, on account
of irresponsibility and negligence on the part of the petitioner and another,
which were in the custody of the petitioner, the then Sub Divisional Officer,
Mechanical Sub Division No.1, Icha Chaliyama and the another was the
Junior Engineer under him. Police after investigation submitted charge-
sheet on 17.5.2001 against both of them, whereupon the ACJM,
Seraikella took cognizance of the offence on 17.5.2001 (Annexure-2). It is
stated that CJM, Seraikella again took cognizance of the offence on
16.7.2003for the alleged offence under Sections 406/409, Indian Penal Code, though the cognizance of the offence was already taken by the ACJM on 17.5.2001 (Annexure-3).
3. Learned counsel Mr. Verma, appearing on behalf of the petitioner, submitted that it would be evident from perusal of the cognizance orders, referred to hereinbefore, that no reference of any sanction order under Section 197, Code of Criminal Procedure was mentioned therein though sanction was required as the petitioner was a public servant under Section 21, Indian Penal Code and therefore, he was protected under Section 197, Code of Criminal Procedure against any criminal prosecution without obtaining sanction from the appropriate government. While disposing of the petition of the petitioner for dropping his criminal prosecution, it was held in the impugned order dated 20.5.2010, passed by the SDJM, Seraikella has given reference to internal communication between the Deputy Commissioner and the S.P., Seraikella that sanction was accorded for prosecution of the petitioner Radhey Shyam Pandey by the Secretary, Law (Justice) Department, Govt. of Bihar through its memo No.S.P.14.3.03J Patna dated 30.6.2003 and deeming it to be a proper sanction without appreciating that so-called sanction was not brought before him, he rejected the petition of the petitioner.
4. Advancing his argument Mr. Verma submitted that if at all there was sanction under Section 197, Code of Criminal Procedure, it was issued by the Department of Law (Justice), Govt. of Bihar, Patna, which was not a competent authority for according sanction as the petitioner before re-organization of the State of Bihar and creation of Jharkhand on 15.11.2000 was posted within the territory of successor State of Jharkhand, whereas so-called sanction was granted in the year 2003 by the State of Bihar and he with the changing circumstances was no longer employee of the State of Bihar and therefore sanction, if at all, accorded by the State of Bihar could not be held to be a proper sanction within the definition of Section 197, Code of Criminal Procedure to proceed against the petitioner for the alleged charge.
5. Learned counsel added that it would be relevant to mention that State of Bihar had earlier dismissed the petitioner from his service on the ground of irregularities as mentioned in the FIR of the instant case, which was challenged by the petitioner before this Court in W.P.(S) No.2138 of 2003 and order of his dismissal was set aside by the order dated 25.8.2005 on the ground that after 15.11.2000 the State of Bihar was not authorized to pass any order against the petitioner , who was posted within the territory of State of Jharkhand before its creation on 15.11.2000. L.P.A. No.4 of 2006 was then preferred by the State of Jharkhand against the order dated 25.8.2005, passed in W.P.(S) No.2138 of 2003, which was dismissed by the Division Bench of this Court by the order dated 18.4.2006 and it was observed, "The 1st respondent- writ petitioner Radhesyam Pandey was suspended vide order no.127 dated 5th May 2000 by the erstwhile State of Bihar and his headquarter was fixed in the office of the Chief Engineer, Water Resources Department, Ranchi. During the pendency of the departmental proceeding the State of Bihar was reorganized in pursuance of the Re- organization Act 2000, the service of the 1st respondent-writ petitioner was placed under the successor State of Jharkhand. Though the 1st respondent-writ petitioner was posted within the territory of Jharkhand, he was dismissed by successor State of Bihar vide notification no.482 dated 29th March 2003.
The learned Single Judge having noticed the aforesaid fact held that the successor State of Bihar had no jurisdiction to dismiss him, he being posted successor State of Jharkhand.
In the case of "Arvind Vijay Bilung Vs. State of Bihar and others" reported in "JLJR 2001(2) page 227" similar decision was given by this Court, which was affirmed by the Division Bench. Thus, we find no illegality in the impugned order dated 25th August 2005 passed by the learned Single Judge in W.P. (S) No.2138 of 2003 and analogous cases."
6. A separate L.P.A. No.81 of 2005 was also preferred by the State of Bihar which was also dismissed.
7. Advancing his argument, the learned counsel, Mr. Verma relied upon the Notification No.28/10/2000-SR(S), issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, New Delhi, wherein it was ordered, "In exercise of the powers conferred by section 76 of the Bihar Reorganization Act, 2000, the Central Government hereby directs that in respect of sanction of prosecution under section 197 of the Code of Criminal Procedure, 1973 and section 19 of the Prevention of Corruption Act, 1988, the successor State Government of Bihar would be competent to exercise authority in respect of those employees only who are serving in connection with the affairs of the successor State of Bihar on and from 15.11.2000.
Provided further that the successor State Government of Jharkhand would be similarly competent to exercise authority in respect of those employees who are serving in connection with the affairs of the successor State of Jharkhand on and from 15.11.2000.
Provided further that any executive instruction issued earlier by the Central Government, which is inconsistent with the order, stands suitably modified to that extent."
8. Thus, it would be crystal clear that sanction, if at all, obtained from the State of Bihar under Section 197, Code of Criminal Procedure to proceed against the petitioner was not a proper sanction under the eyes of law and therefore, criminal prosecution of the petitioner without sanction, in the given facts and circumstances, would tantamount to miscarriage of justice.
9. Concluding his argument, Mr. Verma submitted that it was not the case of the prosecution that no sanction was required in view of alleged individual culpability of the petitioner and another, but in the given facts and circumstances, sanction under Section 197, Code of Criminal Procedure was sine qua non before proceeding against him in the instant criminal case.
10. Heard Mr. Sahay, the learned A.P.P. on behalf of the State, who did not dispute the legal position as asserted on behalf of the petitioner and fairly conceded that in the given facts and circumstances, State of Jharkhand was the competent to accord sanction under Section 197, Code of Criminal Procedure to the petitioner.
11. Having regard to the facts and circumstances of the case, I find substance in the argument, which has been advanced at length on behalf of the petitioner meeting out all the requirements of law and the decision rendered by the Division Bench of this Court in L.P.A. No.4 of 2006 in which it was held that successor State of Bihar had no jurisdiction to dismiss the petitioner as he was posted in successor State of Jharkhand and that similar principle is relevant in the instant case also in so far as it relates to obtaining sanction under Section 197, Code of Criminal Procedure to proceed against the petitioner and another is concerned for the charge alleged under Sections 406/409, Indian Penal Code. There appears merit in this case, accordingly, the petitioner Radhey Shyam Pandey, in the facts and circumstances, cannot be proceeded for want of sanction from competent authority under Section 197, Code of Criminal Procedure as it was not the case of the prosecution that no sanction was required since the offence was committed in his personal capacity, therefore, cognizance of the offence against the petitioner without proper sanction cannot be sustained under law, as such the petitioner is discharged in G.R. No.375 of 2000, arising out of Rajnagar P.S. Case No.45 of 2000, pending before the SDJM, Seraikella.
12. This petition is allowed accordingly.
(D.K. Sinha, J.) S.B./A.F.R.