Patna High Court - Orders
Priya Ranjan Kumar Mehta vs State Of Bihar Thro.Depa,Vigi. on 19 March, 2012
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.14063 of 2008
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Priya Ranjan Kumar Mehta , Son of Visnudeo Mehta, Resident of Village :-
Karanja, P.S. - Naubatpur, District - Patna presently posted at Police Line,
Vaishali, District - Vaishali
.... .... Petitioner
Versus
The State Of Bihar through Department of Vigilance
.... .... Opposite Party
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Appearance :
For the Petitioner : Mr. L.N. Das, Sr. Advocate
Mr. Akhilesh Dutta Verma, Advocate
For the Opposite Party : Mr. Arvind Kumar, Advocate for Vigilance
Department
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
CAV ORDER
10 19 -03-2012The sole petitioner, who is an accused in a trap case registered for the offence under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the „P.C. Act‟) has approached this court invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 27.11.2007 passed by the learned Special Judge, Vigilance (Trap), Patna, in Special Case No. 37 of 2007 arising 2 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 2 / 19 out of Vigilance P.S. Case No. 110 of 2007 registered on 04.10.2007. By the said order i.e. the order dated 27.11.2007 the learned Special Judge on perusal of F.I.R., charge sheet, case diary and sanction order has taken cognizance of offence under Sections 7/13(2) read with Section 13(1)(d) of the Prevention of Corruption Action, 1988 (hereinafter referred to as the „P.C. Act‟).
Short fact the case is that one Ram Surat Rai lodged a complain addressed to the Superintendent of Police cum Officer-in-charge of Vigilance P.S., Department of Vigilance, disclosing therein that he was a resident of village Bhairavpur falling under the territorial jurisdiction of Bidupur Police Station. It was further disclosed by the informant that during the course of construction of his house over his land some dispute arose with his agnate. Because of such dispute the local Officer-in-charge got a proceeding Under Section 144 of the Code of Criminal Procedure promulgated, as a result of which, construction work was stopped. Aggrieved by such an action of the local Officer-in-charge, the informant claims to have gone to Court from where he got justice and the proceeding Under Section 144 of the Code of Criminal Procedure was dropped. Thereafter, a further allegation in the 3 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 3 / 19 complaint is that the Officer-in-charge falsely implicated the brother of the informant namely Raj Kishore Rai in a case of Arms Act. The Deputy Superintendent of Police during the supervision found the case to be doubtful and issued certain directions to be carried out by the Investigating Officer of the case. It has been stated that thereafter the petitioner went to the house of the informant and demanded money for giving the favourable report. When the informant expressed his inability because of tight financial position no heed was paid by the petitioner. However, it has been stated that Rs. 5,000/= was demanded from the informant by the petitioner for writing favourable report. The informant had categorically stated that he did not wish to pay the bribe and the Investigating Officer (i.e. the petitioner) was not ready to work without accepting bribe. On the basis of the aforementioned complaint filed by Ram Surat Rai verification was done by one Sri Vinod Prasad, A.S.I., Department of Vigilance. In the verification note the Verifying Officer has stated that he met the petitioner on road where a demand of Rs. 3,000/= was made. Before that it was stated by the petitioner before the Verifying Officer that Rs. 2,000/= was given by the informant out of which Rs. 1,000/= was spent on procuring of report from the Superintendent of 4 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 4 / 19 Police. The petitioner has also been alleged to have told before the Verifying Officer that Rs. 4,000/= more would be required, but, ultimately, settled for Rs. 3,000/=. The Verifying Officer was introduced to the petitioner as a relative of the informant. As insisted by the informant to show the report issued from the office of the Superintendent of Police, the procurement of which had cost Rs. 1,000/=, the petitioner is said to have told them that it would be done at the Police Station. Finding the allegation to be true the Verifying Officer submitted its report and thereafter, a raiding team was constituted and pre-trap memorandum was prepared. One of the major statement in the pre-trap memorandum is that the informant was given direction to scratch his head at the time of handing over the tainted money so as to unable the demand to swoop down on the petitioner. Thereafter, the petitioner was apprehended with the tainted money found in the back of his pocket. Subsequently post-trap memorandum was prepared which included the seizure list. On the basis of the aforementioned raid and the petitioner being caught with the tainted money Vigilance P.S. No. 110 of 2007 dated 4/10/07 under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, was registered for investigation. 5 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012
5 / 19 Thereafter, the Vigilance Investigation Bureau conducted investigation and after obtaining sanction for prosecution charge sheet was submitted. On submission of charge sheet, the learned Special Judge, Vigilance (Trap) by the impugned order took cognizance of offences as mentioned hereinabove.
Sri L.N. Das, learned counsel, who was assisted by Sri Akhilesh Dutta Verma, learned counsel for the petitioner, has assailed the order of cognizance not on merit but on the ground that in the case prosecution sanction order was accorded by an incompetent authority, and secondly, the sanction order discloses non-application of mind by the sanctioning authority. It was argued that since in the present case sanction order was not issued by the competent authority and also it was issued without application of mind, the learned Special Judge under Section 19(1) of the Prevention of Corruption Act, 1988 was not authorized to take cognizance of offences as indicated above. Mr. Das, learned counsel for the petitioner, in support of his argument has heavily relied on number of judgments / orders passed by different Courts including the Apex Court. He has referred to (2006) 10 SCC 447 (K. DEVASSIA Versus STATE OF KERALA), (2006) 7 SCC 172 (STATE INSPECTOR OF POLICE, 6 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 6 / 19 VISHAKHAPATNAM Versus SURYA SANKARAM KARRI), (2003) 9 SCC 504 (P.A. MOHANDAS Versus STATE OF KERALA), (2005) 8 SCC 130 (STATE OF GOA Versus BABU THOMAS) and (2005) 8 SCC 370 (STATE OF KARNATAKA THROUGH CBI Versus C. NAGARAJASWAMY). Relying on aforesaid judgments it has been argued that at the time of taking cognizance prosecution sanction issued by the competent authority is sine qua non and in absence of such prosecution sanction the learned Special Judge was not authorized to take cognizance. Sri Das has further argued that perusal of the prosecution sanction order which is Annexure - „8‟ to the Supplementary Affidavit, makes it clear that the order of prosecution sanction was accorded without application of mind. He submits, that in case of granting prosecution sanction without application of mind, the order of cognizance on such sanction order is required to be set aside. Sri Das in support of his argument has relied upon a Supreme Court judgment reported in (2007) 11 SCC 273 (STATE OF KARNATAKA Versus AMEERJAN). While arguing, learned counsel for the petitioner has placed his reliance on Rule 656(b) of the Bihar Police Manual, 1978 (hereinafter referred to as the „Police 7 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 7 / 19 Manual‟) and it was submitted that the petitioner at the relevant time was Sub Inspector of Police and the competent authority for his appointment was Deputy Inspector-General of Police (Administration). In the present case it was submitted that prosecution sanction was accorded by Deputy Inspector- General of Police, Tirhut Range, Muzaffarpur, and as such, according to learned counsel for the petitioner the Deputy Inspector-General of Police, Tirhut Range, Muzaffarpur was not the appointing authority of the petitioner as prescribed under Rule 656(b) of the Bihar Police Manual, and as such, in the eye of law, it is not a sanction order, and accordingly, in absence of sanction order issued by the competent authority, the learned Special Judge has committed serious error while taking cognizance of offence under the provisions of the Prevention of Corruption Act, 1988. Only on aforesaid two grounds learned counsel for the petitioner has assailed the order of cognizance dated 27.11.2007 passed by the learned Special Judge.
In this case, Sri Arvind Kumar, learned counsel for Vigilance Department / Opposite Party has appeared and vehemently opposed the prayer of the petitioner. In this case Vigilance Department has also filed a counter affidavit and 8 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 8 / 19 disputed the claim of the petitioner. So far as competence of the sanctioning authority is concerned, it has been argued by Sri Kumar, learned counsel for the Opposite Party/ Department of Vigilance, that during investigation, sufficient materials were collected showing involvement of the petitioner, and thereafter, D.I.G. Tirhut Area, Muzaffarpur, accorded sanction for prosecution against the petitioner and after investigation charge sheet against the petitioner was submitted vide Charge Sheet No. 24 of 2007 dated 21.11.2007. In its counter affidavit the Vigilance Department has asserted that "Deputy Inspector- General is the appointing authority of Sub Inspector as per Rule 653 (Ka) and 656(Kh) of the Bihar Police Manual and Rule 825 (Ga) of the Police Manual provides power on D.I.G. about the dismissal of Sub Inspector. It has been indicated in the counter affidavit that in Rule 656 (Kh) of the Police Manual it has been stated about the D.I.G. (Administration) and the D.I.G. (Administration) is D.I.G. because the Sub Inspectors are recruited by Selection Board and appointment letter issued to them by D.I.G. (Administration). After appointment, they are posted and work under the Area D.I.G. Rule 825 (Ga) of the Police Manual empowers the Area D.I.G. to dismiss any Sub Inspector who are posted and working in 9 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 9 / 19 his area." The Vigilance Department has further asserted in its counter affidavit that the present application has been filed only for delaying the trial. Sri Arvind Kumar, learned counsel for the Department of Vigilance on the basis of aforesaid facts has argued that since in the present case prosecution sanction has been accorded by a duly competent authority, reliance placed by learned counsel for the petitioner on number of decisions of the Apex Court has got no relevance or application in the present case. He has also argued that question regarding application or non-application of mind by the sanctioning authority may not be examined at the initial stage of cognizance. Accordingly, it has been argued that the present petition has got no merit and is required to be dismissed.
Besides hearing learned counsel for the parties I have also perused the materials available on record.
Since in the present case the petitioner has assailed the order of cognizance taking the plea that the order of prosecution sanction has been issued by an authority who was not competent to accord sanction, it would be necessary for this Court to firstly examine certain provisions of the Bihar Police Manual on which learned counsel for both the parties 10 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 10 / 19 have placed reliance. For just decision, it would be necessary to quote the afore referred Rules i.e. Rule 653(a), Rule 656(b), Rule 824 and Rule 825(c) of the Bihar Police Manual, which are quoted hereinbelow:-
"653(a) In July, the Inspector-General will intimate to each Deputy Inspector-General the number of vacancies allotted to each district and the Criminal Investigation/Intelligence Departments and the number to be filled by direct recruitment and by promotion of Assistant Sub-Inspector [Rule 659(a)]. He will also indicate what limitations, if any, are to be observed as to the appointment of any particular sections of the community.
656(b). The Deputy Inspector-General (Administration) will ensure that verification Rolls in P.M. Form no. 101 are issued in respect of those for whom appointment letters are going to be issued. For this purpose, Superintendents may be directed to get in touch with the authorities concerned for getting it expedited. Thereafter, the candidates shall be referred for medical test before the Civil Surgeon or Deputy Superintendent of Sadar Subdivisional Hospital of the place where the candidate resides (see Rule 672). On being declared fit in P.M. Form no. 103 the Deputy Inspector-General will issue appointment letters to the selected candidates on advice of the Commission and will direct them to report to the Principal, Police Training College, on the date fixed generally in January. A detailed list of the candidates appointed will at the same time be sent to the Principal, Police Training College, together with their application forms verification rolls, medical and other certificates. These papers will form a part of the candidates' appointment papers and will be sent to the Superintendents of the districts to 11 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012
11 / 19 which they are subsequently posted [for period of probation (see Rule 668)].
824. Description of departmental punishments.- The following punishments which are sanctioned under section 7 of Act V of 1861 may be inflicted departmentally on a police officer of and below the rank of Inspector:-
(a) dismissal,
(b) removal,
(c) compulsory retirement,
(d) reduction in rank,
(e) forfeiture of last increment(s) or future increment(s),
(f) black mark or marks,
(g) censure,
(h) confinement to quarters for a period not exceeding 15 days,
(i) punishment drill,
(j) extra guard or fatigue duty.
Provided that the punishments mentioned in clauses (h) and (j) shall be imposed only on members of rank of constables / Havildars and that in clause (i) shall be imposed only on constables.
825(c) A Deputy Inspector-General may impose on any police officer subordinate to him and below the rank of Deputy Superintendent any of the punishments in rule 824 except dismissal, compulsory retirement and removal in the case of an Inspector."
At this juncture it would be also appropriate to quote Section 19(1)(c) of the P.C. Act, 1988, which is quoted hereinbelow:-
19(1)(c) in the case of any other person, of the authority competent to remove him from his office.12 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012
12 / 19 After going through the provisions contained in Section 19(1)(c) of the P.C. Act, 1988, as referred above, it is evident that prosecution sanction can be granted by an authority competent to remove the concerned public servant. It hardly matters as to who is the appointing authority. Nor while considering the prosecution sanction it is required to record finding on the point of appointing authority. The requirement is to see as to under Section 19(1)(c) of the P.C. Act, 1988, who is the competent authority to remove him from his Office.
Rule 824 describes regarding punishment which includes dismissal and removal. Rule 825(c) makes it clear that the Deputy Inspector- General of Police is competent to impose punishment(s) including dismissal, compulsory retirement or removal of an Officer below the rank of Inspector. Meaning thereby, that Deputy Inspector- General is fully empowered to pass an order of dismissal or removal of a Sub Inspector of Police. In the present case it is not in dispute that the petitioner at the relevant time was a Sub Inspector of Police, and as such, the sanction for prosecution accorded by Deputy Inspector- General can not be questioned on the ground of his competence. Since the prosecution sanction in the present case 13 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 13 / 19 was granted by a competent authority, there is no need to discuss the case laws cited by learned counsel for the petitioner.
The second ground which has been taken by learned counsel for the petitioner while assailing the order of cognizance was non-application of mind by the sanctioning authority. At initial stage of a criminal case, that too, at the time of cognizance, this point can not properly be examined and decided by this court, that too, while exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure. The plea whether the sanctioning authority at the time of according sanction had examined document/material/applied his mind or not, can only be tested during the trial when witnesses are produced, examined and cross examined. At the initial stage of cognizance, it is not desirable for this Court to delve on such aspect. In (2007) 11 SCC 273 (STATE OF KARNATAKA Versus AMEERJAN) the Apex Court was examining the sanction order in a case where trial had already terminated after examination of witnesses, and as such, the petitioner can not get any benefit from the law enunciated by the Apex Court in Ameerjan Case (Supra), and as such, on both the points, the 14 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 14 / 19 order of cognizance can not be doubted.
At the time of hearing of the petition, it was admitted at Bar, that till date, charges in the case has not been framed. Fact remains, that in this case, trap was laid and successful in the year 2007. After investigation, charge sheet was submitted in the year 2007 itself, and thereafter, the order of impugned cognizance was passed on 27.11.2007. The petitioner, in the month of March, 2008, filed the present petition assailing the order of cognizance. Thereafter, on number of dates, the present case was taken up. However, this Court never passed order of stay of proceeding pending before the Special Judge. It is surprising that, even though, there was no stay granted by this Court, what was the reason for non- framing of charge and non-commencement of the trial. Cases relating to offences under the Prevention of Corruption Act, 1988, are required to be expeditiously disposed of. For the purposes of early disposal of cases under the Prevention of Corruption Act, 1988, the framers of law had inserted certain provisions which were in addition to the provisions of the Code of Criminal Procedure. It appears that the learned Court below has completely failed to notice the provisions contained in Section 22 of the Prevention of Corruption Act, 1988 and 15 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 15 / 19 also Section 19(3) of the Prevention of Corruption Act, 1988. For just decision in the matter, it would be appropriate to quote Section 19(3) and Section 22 of the Prevention of Corruption Act, 1988, which are as follows:-
"19(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) no finding, sentence or order passed by a special Judge shall be reserved or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section(1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
22. The Code of Criminal Procedure, 1973 to apply subject to certain modifications.- The provisions of the Code of Criminal Procedure, 1973 ( 2 of 1974), shall in their application to any proceeding in relation to an offence punishable under this Act have effect as if,-
(a) in sub-section (1) of section 243, for the words "The accused shall then be called upon", the words " The accused shall then be required to give in writing at once or within such time as the Court may allow, a list of 16 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 16 / 19 persons (if any) whom he proposes to examine as his witnesses and of the documents (if any) on which he proposes to rely and he shall then be called upon" had been substituted;
(b) in sub-section (2) of section 309, after the third proviso, the following proviso had been inserted, namely:-
"Provided also that the proceeding shall not be adjourned or postponed merely on the ground that an application under section 397 had been made by the party to the proceeding.";
(c) after sub-section (2) of section 317, the following sub-section had been inserted, namely:-
"(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the Judge may, if he thinks fit and for reasons to be recorded by him, proceed with enquiry or trial in the absence of the accused or his pleader and record the evidence of any witness subject to the right of the accused to recall the witness for cross-examination.";
(d) in sub-section (1) of section 397, before the Explanation, the following proviso had been inserted, namely:-
"Provided that where the powers under this section are exercised by a Court on an application made by a party to such proceedings, the Court shall not ordinarily call for the record of the proceedings,-
(a) without giving the other party an opportunity of showing cause why the record should not be called for; or
(b) if it is satisfied that an examination of the record of the proceedings may be made from the certified copies.".
On perusal of the provisions contained in Section 19(3) of the Prevention of Corruption Act, 1988, it is evident 17 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 17 / 19 that on the ground of any error, omission or irregularity in the sanction granted by the authority, no Court shall stay the proceedings under this Act unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice. There is further bar in granting stay in the proceedings under the P.C. Act, 1988, on any other ground. The provisions contained in Section 19(3) of the Prevention of Corruption Act, 1988 has been elaborately discussed by the Apex Court in a case reported in (2001) 8 SCC 607 (SATYA NARAYAN SHARMA Versus STATE OF RAJASTHAN). The Apex Court has held that in cases under the Prevention of Corruption Act, 1988, there can be no stay of trials. It was further brought to the notice of the Apex Court that in number of cases stay was granted by High Courts in matters under the P.C. Act, 1988. Accordingly, the Apex Court in paragraph no. 20 held as follows:-
"20. It has been brought to our attention that in a large number of cases stays have been granted by the High Courts in matters under the Prevention of Corruption Act, even though there is a specific bar against the grant of any stay. We therefore direct the Registrars of all the High Courts to list all cases in which such stay is granted before the Court concerned so that appropriate action can be taken by that Court in the light of this decision. The Registrar of this Court is directed to send a copy of this order to the Registrars of all the 18 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012
18 / 19 High Courts."
In view of the law laid down by the Apex Court as well as the statutory provisions contained under Section 19(3) of the P.C. Act, 1988, it is clear that no Court whether it is Subordinate Court or Superior Court can pass an order of stay of proceeding in cases relating to Prevention of Corruption Act, 1988, on any ground, whatsoever may be. Fact remains, that in the present case, despite the fact that there was no order of stay and the order of cognizance was passed in the year 2007, till date, case has not proceeded to the charge stage.
In view of the facts and circumstances and law enunciated by the Apex Court, I do not find any substance in the present case and the petition stands dismissed.
Keeping in view the fact that occurrence is of the year 2007 and till date the case has not reached to the stage of charge, while dismissing the present petition, it is desirable to direct the Court below to decide the issue of charge within a period of one month from the date of receipt / production of a copy of this order, and if the Court is satisfied regarding the charge and charges are framed in the case, the Trial Court is further directed to proceed with the case at least twice in a week, so that, the case may come to its logical end within a 19 Patna High Court Cr.Misc. No.14063 of 2008 (10) dt.19-03-2012 19 / 19 period of six months from the date of framing of the charges. The Vigilance Department i.e. Additional Director, Vigilance Investigation Bureau and Commissioner/Secretary, Vigilance Department are required to ensure presence of witnesses and production of relevant documents as and when required by the Special Judge, Vigilance (Trap) Patna during the trial.
Let a copy of this order be communicated to Additional Director, Vigilance Investigation Bureau and Commissioner / Secretary, Department of Vigilance, Government of Bihar, for its compliance.
The Special Judge is required to proceed with the case in accordance with law particularly in view of the provisions contained in Section 22 of the Prevention of Corruption Act, 1988, as referred above.
(Rakesh Kumar, J) Praful/-