Patna High Court - Orders
Dr.Bikas Chandra Kumar vs State Of Bihar Thru.Vig. on 7 February, 2012
Author: Vikash Jain
Bench: Vikash Jain
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.18584 of 2010
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Dr. Bikas Chandra Kumar S/O Late Sadhu Sharan Yadav R/O
Vill. Lakhawar, P.S.-Ghosi, Dist.- Jehanabad, the then Deputy
Director (Computer), Department of Science & Technology,
Govt.of Bihar, Patna and Residing at above the Market of Mr.
Pramod Kumar Yadav,Mohanpur,Punaichak,Patna-23,P.S.-
Shastri Nagar, Dist.Patna.
.... .... Petitioner
Versus
1. The State of Bihar through Vigilance Department, Patna,
Bihar.
.... .... Opposite Party
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Appearance :
For the Petitioner: Mr. S.N.P.Sinha, Sr.Advocate
Mr.Ratan Kumar, Advocate
For the Opposite Party: Mr Arbind Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN
CAV ORDER
(Per: HONOURABLE MR. JUSTICE VIKASH JAIN.)
14 07.02.20121. The present petition has been filed for quashing of the order dated 03.05.2010 passed in Special Case No. 42/2007 arising out of Vigilance P.S.Case No. 64/2007 whereby the learned Court refused to discharge the petitioner for the offences under Section 7,8,13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 and Sections 409, 120B of the Indian Penal Code, 1860.
2. The documents on record reveal that a case was Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 2/10 instituted on the basis of certain allegations made by the complainant Md. Saleh before the Officer-in-charge of Vigilance P.S. It has been stated that the complainant had booked the airconditioned lobby (auditorium) of the Planetarium, Patna for three days namely 26.5.2007, 27.5.2007 and 28.5.2007 for Rs. 90,000/- for the purpose of holding Education and Career Fair 2007. It has been stated that the co-accused, Ramesh Kumar, was deputed by the petitioner as Incharge for this purpose. It is alleged that a demand of Rs.50,000/- was made at the instance of the petitioner for allowing booking for additional two days, but instead of granting receipt for the same on request being made, the petitioner had the airconditioner switched off. It has further been alleged that at the time of removal of the exhibition materials/articles a further demand of Rs.25,000/- was made. These allegations were verified and found correct in terms of the report dated 30.5.2007 submitted by the Deputy Superintendent of Police. Accordingly, a raiding team was constituted and the co-accused Ramesh Kumar was caught red handed while accepting the bribe money of Rs. 25,000/- which amount was also recovered from him. The hands of Ramesh Kumar were dipped in chemical Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 3/10 solution and the solution turned pink as also when his T- shirt was so tested. That the further facts on record are that a charge-sheet was filed on 24.7.2007 against Ramesh Kumar while investigation against others including the petitioner were kept pending. Thereafter, a supplementary charge sheet came to be filed against the petitioner on the basis of which cognizance was also taken against the petitioner under Sections 409 and 120B IPC by order dated 1.5.2008 by the learned Special Judge, Vigilance-I, Patna.(Annexure-18). It was, however, noted that the requisite sanction for prosecution being obtained and was likely to be submitted soon, in view of which the cognizance taken was limited to Sections 409 and 120B IPC while cognizance for the offences under the Prevention of Corruption Act was deferred until receipt of the sanction order.
3. It transpires that a sanction order dated 19.5.2008 was then issued by the Law Department (Annexure-19) stating therein that the documents contained in File No.Vi. Pra (1) Aa-08/07 of the Science and Technology Department were perused and satisfaction was reached that a prima facie case was made out against the petitioner and accordingly sanction Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 4/10 was accorded for prosecution of the petitioner in relation to offences under Sections 409/120B IPC and Sections 7/13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988.
4. On the strength of such sanction order the learned Special Judge, Vigilance-I, Patna passed an order dated 26.5.2008 taking cognizance under Sections 7, 8 and 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act against the petitioner.
5. A petition for discharge filed under Section 227 Cr. P.C. was however rejected by the learned Special Judge, Vigilance (Trap), Patna refusing to discharge the petitioner in respect of the offences for the reasons stated in the order dated 03.05.2010, which is the subject matter of challenge in the present petition.
6. Learned Senior Counsel for the petitioner Mr. S. N. P. Sinha has raised several contentions to support his stand that the prosecution against the petitioner is wholly illegal, unauthorized and unsustainable in law. The primary attack is on the footing that the cognizance having been taken in absence of any prior sanction order having been issued completely vitiated the proceeding as being in the teeth of Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 5/10 Section 197 Cr. P. C. as well as Section 19 of the Prevention of Corruption Act. In his submission, the sanction order has been issued by the Law Department, being not the competent authority for the purpose. If any sanction could be issued, it had to be issued by the Science and Technology Department, which alone had the power to remove the petitioner from his office.
7. Even otherwise, the sanction as issued has been assailed on the ground of non-application of mind in that the same is absolutely silent with regard to which documents exactly were perused and appraised and what were the materials collected therefrom to support a prima facie case being made out against the petitioner so as to justify sanctioning his prosecution. There is nothing to show that the Science and Technology Department had at all applied its mind on the question of issuing sanction for the petitioner's prosecution at any stage nor that it had recommended the petitioner's case to the Law Department for prosecution.
8. Learned Senior Counsel for the petitioner has taken objection on several other grounds as well, to wit -
(a) It is not permissible in law to take fractured cognizance under two separate orders for the offences Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 6/10 under different enactments as done in the present case.
(b) The Science and Technology Department after conducting an enquiry had itself informed the Vigilance Department by its letter dated 21.7.2007 (Annexure-8) that no prima facie irregularity had been found in the matter of receipts from Gate collection, auditorium rent and Cycle/Scooter stand and therefore, there would have been no occasion for this Department to have issued sanction for prosecuting the petitioner in view of the result of such enquiry.
(c) The entire prosecution is a malicious one as the petitioner had neither been searched nor any recovery had been made from him to support the allegations.
9. Learned counsel for the Vigilance Department, Mr. Arbind Kumar, on the other hand, submits that the sanction order is entirely valid in the eye of law as it is based on the documents available in the file of the parent Department namely the Science & Technology Department. He points out that the sanction order even though issued by the Law Department is in reality a decision of the State Government expressed as having been issued in the name of the Governor of Bihar under the signature of the Secretary to the Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 7/10 Government of Bihar. To buttress his submission that the sanction order as issued was a valid one, he adverts to Rule 53 (1) (c ) of the Rules of Executive Business and submits that it was the Law Department which was empowered to accord sanction for prosecution.
10. It has further been submitted that without prejudice to the above and in the facts and circumstances of the present case, no sanction at all was required as the offence of bribe taking as alleged had not been committed in discharge of official duties. He relied on the decisions reported in 2008 Cri. L. J. 2054 and 2008 Cri. L. J. 1961 in his support.
11. With regard to the finding pursuant to the enquiry conducted by the Science and Technology Department to the effect that no prima facie irregularity had been found in relation to auditorium rent receipts etc., it has been submitted on behalf of the Vigilance Department that the enquiry report is silent with regard to the extended period of booking and the amount charged in cash for the same, which constitutes the main allegation against the petitioner. Such enquiry had been conducted with reference to only to the accounts and receipt- books which naturally would not reflect the amount so charged over and above and defalcated and in respect of which the co- Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 8/10 accused Ramesh Kumar had been trapped.
12. After hearing the detailed submissions advanced on behalf of the learned counsels for the parties and after going through the materials on record. this Court is of the view that this matter can be disposed of on the jurisdictional issue whether or not there was a valid sanction upon which the prosecution could be founded.
13. This aspect has been dealt with in considerable detail in a decision of this Court rendered in Cr. Misc. No. 44151 of 2008 (Shankar Prasad vs. State of Bihar), the facts whereof, so far as they relate to the issue of sanction, are rather similar as those of the present case. In a detailed and well considered judgment dated 03.03.2011 taking note of all the relevant provisions of law including Rule 53(1) ( c ) of the Rules of Executive Business as also numerous decisions relevant to the issue this Court held as follows -
"The provisions of P.C.Act as well Cr.P.C. empower the parent department for granting of sanction which has a valid reason, as it is the employer department which knows in a better way the circumference of discharge of duty and unless the authority is in know of the circumference of discharge of duty of public servant it can not decide an act to be within the purport of duty or beyond that."
14. It was thus concluded that there was no valid sanction at Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 9/10 the time of passing of the cognizance order inasmuch as the same had been issued by the Law Department and not by the competent authority being the Social Welfare Department of which the petitioner was an employee.
15. In the opinion of this Court, the question of validity of the sanction order as arising in the present facts of the case stands clearly covered in principle by the decision rendered in Shankar Prasad's case aforesaid. It has rightly been contended by learned Senior Counsel for the petitioner that the sanction issued by the Law Department is not a valid sanction as the Law Department was not the competent authority in that regard.
16. Moreover, there is also considerable force in his submission that the sanction order even as issued is not a valid one, having been issued mechanically and without due application of mind. Nothing has been shown to suggest that the Science and Technology Department has applied its mind and requested the Law Department to issue sanction order.
17. In the aforesaid facts and circumstances therefore, I have no hesitation in holding that the absence of a valid sanction order has occasioned failure of justice in the present case and to allow the prosecution to continue against the Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 10/10 petitioner would be an abuse of process of the Court.
18. In the interest of justice therefore, the order dated 1.5.2008 taking cognizance against the petitioner for the offences under Section 409/120B IPC as also the order dated 26.5.2008 taking cognizance for offences under Sections 7, 8 and 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 as well as the impugned order dated 3.5.2010 passed b the learned Special Judge, Vigilance-I, Patna refusing to discharge the petitioner are hereby quashed as concerns the petitioner and the application stands allowed.
19. It is made clear that it is always open to the competent authority to issue a valid sanction order, if so advised in future, and nothing contained herein shall be deemed to limit the exercise of such power as may be available for this purpose in accordance with law.
Chandran (Vikash Jain, J)