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1999 DIGILAW 745 (PAT)

Manoranjan Prasad Choudhary v. State Of Bihar

1999-08-10

M.Y.EQBAL

body1999
Judgment M.Y.Eqbal, J. 1. In this application filed under Section 482, Cr PC, the petitioner has prayed for quashing the order dated 11.11.1998 passed by the Special Judge, Vigilance, in Special Case No. 26/97 by which the application for discharge of the petitioner from the liability has been rejected, in the case instituted under Section 7/B(2) read with Section 13(l)(d) of the Prevention of Corruption Act and also for quashing the entire criminal proceeding as against the petitioner. 2. It appears that prosecution was launched against the petitioner on the basis of the statement of one Hira Prasad alleging, inter alia, that he applied for grant of a tender form for breaking up coal at High Tension Insulator Factory and for the purpose of giving the tender, the petitioner had demanded bribe of Rs. 1,000/-(one thousand) from him. It is alleged that on 21.12.1987 the petitioner accepted a sum of Rs. 1,000/- as bribe money which was recovered from him by the Vigilance and, thereafter, FIR was drawn up on the statement of Hira Prasad including the subsequent report of the Officer of the Vigilance department. The Vigilance, after completion of the investigation, wrote to the Government in the Industry Department, Government of Bihar for sanction of the prosecution of the petition as required under Section 19(1) of the Prevention of Corruption Act, 1988. The State Government, vide letter dated 4.11.1993 sanctioned prosecution of the petitioner in connection with the above case. 3. The petitioner earlier moved this Court in Cr Misc. No. 1067/94R for quashing the entire Criminal prosecution as also the order of cognizance on the ground, inter alia, that the State Government is not competent authority to grant sanction. It was further alleged that there was inordinate delay in loading the prosecution against the petitioner for the offence under the aforesaid section. That application was dismissed by this Court giving liberty to the petitioner to raise the question of validity of sanction before the trial Court and the trial Court, after giving proper weight to the submissions of the parties, was directed to pass a reasoned order. 4. Mr. A.K. Sinah, learned Sr. counsel firstly submitted that the petitioner is not an employee of the State Government, rather, he is the employee of the Bihar State Industrial Development Corporation Ltd., a limited company registered under the Companies Act having its separate entity. 4. Mr. A.K. Sinah, learned Sr. counsel firstly submitted that the petitioner is not an employee of the State Government, rather, he is the employee of the Bihar State Industrial Development Corporation Ltd., a limited company registered under the Companies Act having its separate entity. The petitioner was never appointed by the State Government and hence, the State Government has got nothing to do with the sanction of prosecution of the petitioner as the occurrence is alleged to have taken place while he was in High Tension Insulator Factory which is an unit of Bihar State Industrial Development Corporation Ltd. Learned Counsel further submitted that the petitioner was initially appointed by Bihar Scooters Ltd. which is a limited company having its Board of Directors who are the appointing authorities. The petitioner was deputed in the year 1984 in Bihar State Food and Civil Supply Ltd. for three years and pursuant to that the petitioner joined Bihar State Food and Civil Supplies Corporation Ltd. on deputation. It is contended that the petitioner was relieved from the Corporation in 1985 and joined the Headquarters of the Corporation and then he was posted in the Bihar High Tension Insulator Factory at Namkum. Learned counsel further submitted that the petitioner was not holding a civil post inasmuch as the State Government cannot remove or dismiss the employee of the Insulator Factory and, therefore, the State Government is not the competent authority to grant sanction. Learned counsel then submitted that there is nothing in the letter granting sanction to show that the department in question had applied its mind to the facts and circumstances of the case before according sanction and the matter was treated in a routine manner. Hence, on that account also the prosecution of the petitioner is fit to be quashed. 5. On the other hand, Mr. Delip Jerath, learned counsel appearing on behalf of the Vigilance, submitted that High Tension Insulator Factory is an unit of Bihar State Insdustrial Development Corporation which runs various units in the State of Bihar including the Bihar Scooters Ltd., Fatuah and the same has been cerated through the Department of Industries Development under the Industries Department of the State of Bihar. Learned counsel further submitted that the petitioner is a public servant under the Bihar Industrial Development Corportion Ltd. and, as such, the power to grant sanction for prosecution is vested with the Department of Industries, Bihar. Learned counsel further submitted that there is no infirmity in the grant of sanction because the Bihar Industrial Development Corporation Ltd. is totally under the control of the Government of Bihar. Learned counsel lastly submitted that it is only the workers and the majdoors who are the employees of the Company and all the employees in the officers rank including the petitioner are transferred and posted from different units of the Industry department by the order of the State Government. 6. Before appreciating the rival contentions of the parties it would be useful to look into the provision of Section 19 of the Prevention of Corruption Act, 1988, which reads as under : "19. Previous sanction necessary for prosecution. (i) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction: (a) In the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his officer save by or with the sanction of the State Government, of that Government. (c) In the case of any other persons, of the authority competent to remove him from his office. 7. Form bare perusal of the aforesaid provision it is manifest that before prosecuting a public servant for the offence punishable under Sections 7,10,11, 13 and 15 of the Prevention of Corruption Act, sanction of the Government has to be obtained. It provides that if the concerned public servant is employed in connection with the affairs of the Union, then sanction shall be obtained from the Central Government; of that Government and in case where the public servant is employed in connection with the affairs of the State; then sanction has to be obtained from the State Government; of that Government. It provides that if the concerned public servant is employed in connection with the affairs of the Union, then sanction shall be obtained from the Central Government; of that Government and in case where the public servant is employed in connection with the affairs of the State; then sanction has to be obtained from the State Government; of that Government. The term public servant has been defined in Section 2(c) of the said Act which includes any person in the service or pay-scale of the local authority. 8. In the instant case, it has not been disputed by the petitioner that the Bihar High Tension Insulator Factory, Ranchi is a unit of Bihar State Industrial Development Corporation which runs various units in the State of Bihar including the Bihar Scooters Ltd., Fatuah. It is also not disputed that the Bihar State Industrial Development Corporation has been created through the Department of Industry Development under the Industries Department of the State of Bihar. The control of Bihar State Industrial Development Corporation is vested in the Industries Deptt. of the State of Bihar. The petitioner is a public servant under the Bihar State Industrial Development Corporation Ltd., which, admittedly, a subsidiary of the Department of Industries, Government of Bihar. The Bihar State Industrial Development Corporation is totally under the control of the Government of Bihar. The power has been vested in the Managing Director of the particular unit of the Corporation by the State of Bihar through the Industries Depart, regarding appointment and doing other affairs of the unit. It is, therefore, clear that the petitioner was employed in connection with the affairs of the State Government. In other words, the State Government through its Industries Deptt. created the Corporation, namely, Bihar State Industrial Development Corporation for the development and growth of the industries in the State of Bihar. The Corporation accordingly set up various industries including the Bihar Scooters Ltd. and Bihar High Tension Insulator Factory, Ranchi. All these activities are, therefore, the affairs of the State Government. 9. In that view of the matter, I am of the opinion that the State Government is the competent authority to grant sanction for the prosecution of any of the employees of the Corporation and its other subsidiaries. 10. All these activities are, therefore, the affairs of the State Government. 9. In that view of the matter, I am of the opinion that the State Government is the competent authority to grant sanction for the prosecution of any of the employees of the Corporation and its other subsidiaries. 10. Besides the above, it is not disputed that the Managing Director of the Corporation or its other industries are appointed directly by the State Government and the power has been vested in them to discharge the functions of the employer. Even if there is any error, ommission or irregularity in granting sanction by the Government in my opinion, such error, ommission or irregularity will not result in failure of justice inasmuch as the petitioner cannot be held guilty of the offence unless the prosecution proves the allegation beyond all reasonable doubts. In that view of the matter also, I do not find any reason to quash the prosecution on the ground that sanction was granted not by the Managing Director but by the State Government. 11. Having regard to the facts and circumstances of the case I do not find any merit in this application which is, accordingly, dismissed.