Research › Browse › Judgment

Patna High Court · body

1999 DIGILAW 1081 (PAT)

Alok Kumar Verma v. State Of Bihar

1999-10-08

S.K.KATRIAR

body1999
Judgment S.K.Katriar, J. 1. This application under section 482 of the Code of Criminal Procedure, 1973, has been preferred by the sole petitioner to quash the investigation started in connection with Gandhi Maidan P.S.Case No.28/90 (GR 349 of 1990), dated 21.1.90. During the pendency of the present proceeding in this court, cognizance was taken by order dated 14.9.93, which has been brought on record by a supplementary affidavit, marked Annexure-3, and further prayer has been made to quash the impugned order of cognizance. This application was admitted for hearing on 17.2.94. 2. According to the First Information Report dated 21.1.90, lodged by one Baikunt Narain Singh, Regional Coal Officer, BISCO-Coal, Biscomaun, Patna, pursuant to a raid in the office chambers of the accused-petitioner on 22.1.90 at 4.30 P.M. he was found in possession of unaccounted money amounting to Rs. 10,572/-, which he had acquired by taking bribe from various coal dealers. The petitioner was then posted as Asstt. Depot Manager, Regional Coal Marketing Officer, BISCO Coal, Biscomaun, Patna. On these allegations, Gandhi Maidan P.S.Case No. 28, dated 22.1.90, was registered under section 161, IPC. A copy of the FIR is marked as Annexure 1 to the quashing petition. The petitioner was charge sheeted after investigation by the police, and the learned CJM was pleased to take cognizance of the alleged offence u/s 161 IPC in Gandhi Maidan P.S. Case No. 28, dated 21.1.90/GR No. 349/90. it is relevant to state that the impugned order of cognizance oh the face of it was barred by limitation. Learned CJM also considered the application in terms of section 473 Cr. PC, extended the period of limitation, and passed the impugned order of cognizance. 3. While assailing the validity of the impugned order of cognizance, learned counsel for the petitioner submitted that the same has been passed under section 161 IPC. Sections 161 to 165A IPC have been omitted by the Parliament by Act No. 49/88. In other words, in his submission, the cognizance has been taken under a provision of law which no longer exists on the statute book. He next submitted that the accused-petitioner was functioning as an Assistant Manager in the Biscomaun on the date of occurrence, and was not a public servant within the meaning of section 21 IPC and/or section 2(c) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 1988 Act). He next submitted that the accused-petitioner was functioning as an Assistant Manager in the Biscomaun on the date of occurrence, and was not a public servant within the meaning of section 21 IPC and/or section 2(c) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 1988 Act). In his submission, the provisions of the Act apply only to public servant. He next submitted that the prosecution is hit by delay. The occurrence is said to have taken place on 21.1.90, the last person to have made his statement before the police was on 31.7.90, and the impugned order of cognizance date 14.9.93 is on the face of it hit by the law of limitation. He fastly submitted that even on merits, taking into account the entire materials before the learned CJM, no case at all is made out against the petitioner under the quondam section 161 IPC or the corresponding provisions of the 1947 Act or the 1988 Act. 4. Learned counsel for the prosecution rebutted the contentions advanced on behalf of the petitioner. 5. I have carefully considered the rival submissions. Coming to the question of deletion of Section 161 IPC, I am of the view that the same shall have no effect either way on the present prosecution. It is manifest from the scheme of the 1947 Act, particularly Section 5, that the quondam sections 161 to 165A IPC only supplemented the same. Section 5 of the 1947 Act is capable of application even after deletion of the said provisions of the IPC. 5.1. The 1947 Act was in force on the date of the alleged occurrence. Subject to the finding in para 8 hereinbelow, it shall continue to apply in the present case in contradiction to the 1988 Act, because of the provisions of sections 30 and 31 of the 1988 Act, read with section 6 of the General Clauses Act, 1897 . The judgment of a learned Single Judge of the Bombay High Court, reported in 1992 Cr. L.J. 1860 (Asarani V/s. The State of Maharashtra), also illumines the position. 6. The alleged occurrence is said to have taken place on 22.1.90, the charge- sheet is dated 4.9.93. The judgment of a learned Single Judge of the Bombay High Court, reported in 1992 Cr. L.J. 1860 (Asarani V/s. The State of Maharashtra), also illumines the position. 6. The alleged occurrence is said to have taken place on 22.1.90, the charge- sheet is dated 4.9.93. Sections 161 to 165 IPC under Chapter 19 under the heading "All offences by or relating to public servants", was deleted from the statute book by Act No. 49 of 1988, with effect from 9.9.88, on which date the Prevention of Corruption Act, 1947 (Act 2 of 1947) was in force. The latter has been substituted by the Prevention of Corruption Act, 1988 (Act 49 of 1988), by section 30 of the latter Act. Section 5A of the 1947 Act provides that in a case like the present one, a police officer not below the rank of D.S.P. shall investigate any offence punishable under section 161 IPC. It is manifest from the records that the investigation was entrusted to one S.K.Singh, Dy.S.P. This contention is, therefore, satisfied in the present case. Section 7A of the 1947 Act provides that the Code of Criminal Procedure shall apply subject to certain modifications. Section 6 of the 1947 Act provides that no court shall take cognizance of an offence, in so far as the present case is concerned, under Section 161 IPC or under sub-section (2) or sub-section (3A) of section 5 of this Act, except with the previous sanction of the prescribed authority. Learned counsel for the petitioner very fairly conceded that previous sanction for prosecution has been accorded in the present case. In any case, previous sanction for prosecution is not needed if a prima facie case is made out under the remaining sub-sections of section 5 of the 1947 Act. 7. This application must fail on the question of limitation. A maximum imprisonment of seven years is provided under section 5 of the 1947 Act. Therefore, the petitioner cannot get the benefit of section 468 of the Code which provides different periods of limitation for offences punishable upto a maximum period of three years. No period of limitation is prescribed for offences punishable with imprisonment beyond three years. 8. Learned counsel for the petitioner is right in his submission that the 1947 Act applies to public servants alone, and the petitioner is not a public sevant. No period of limitation is prescribed for offences punishable with imprisonment beyond three years. 8. Learned counsel for the petitioner is right in his submission that the 1947 Act applies to public servants alone, and the petitioner is not a public sevant. Section 21 of the IPC defines public servant, clause 12(b) of which is relevant in the present context and is set out hereinbelow: "(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956" As has been held in Division Bench judgment of this Court, reported in 1985 PLJR 1078 (Harendra Narain Banker V/s. The State of Bihar), that Biscomaun is a society registered under the Bihar & Orissa Co-operative Societies Act, 1935, and not State within the meaning of Article 12 of the Constitution of India. It is thus manifest that Biscomaun is neither a local authority, nor a corporation established under an Act of the Legislature, nor is a Govt. Company within the meaning of section 617 Companies Act, 1956. In such circumstances, the petitioner is not a public servant within the meaning of section 21 IPC. Therefore, the 1947 Act does not apply to the petitioner, and no prosecution can be started or continued thereunder. 9 In the result, this application is allowed, the impugned order dated 14.9.95, passed by the learned CJM, Patna, in GR Case No. 349/90 (Tr. No. 734/93) (arising out of Gandhi Maidan PS Case No. 28/93) (State of Bihar vs. Alok Kumar Verma), is hereby set aside.