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2004 DIGILAW 1264 (PAT)

Vijay Prakash v. State Of Bihar

2004-12-21

V.N.SINHA

body2004
Judgment V. N. Sinha, J. 1. Heard learned counsel for the petitioner and the opposite parties. 2. Petitioner, who was the Secretary, Human Resources Development Department (Higher Education), Government of Bihar at the time of filing of the Complaint Case No.922 (C) of 1999 and was arraigned as Accused No.5 in the said complaint, has assailed the order dated 21.8.1999, passed in the said complaint case by Sri Anil Kumar Singh, Judicial Magistrate Ist Class, Patna, whereunder the learned Magistrate being prima facie satisfied about the allegations set out in the complaint petition that the offences under Sections 406, 420 and 120-B of the Indian Penal Code is made out against the accused persons, including the petitioner, has taken cognizance of the aforesaid offences against the petitioner and other accused persons. 3. Perusal of the complaint petition, as contained in Annexure-1 to this application indicates that Sri Guru Govind Singh College a minority institution while remained affiliated to the Magadh University, Balbir Singh, Principal of the said college appointed his wife Jasbir Kaur as a Lecturer with effect from 1.7.1976. During the period said college had the affiliated status Jasbir Kaur drew her salary from two institutions, namely, Notre Dame School Patliputra Colony, Patna as also from Sri Guru Govind Singh College. It further appears from the perusal of the complaint that in 1985 the State Government announced the take over of 40 affiliated colleges, including that of Sri Guru Govind Singh College, Patna City. Pursuant to the aforesaid announcement, an agreement was signed between the Magadh University and the governing body of those 40 colleges, including the governing body of Sri Guru Govind Singh College, Patna City on 12.6.1986, which is contained in Annexure-2 to this application. It also appears from the said complaint that Magadh University later notified the take over of the aforesaid 40 colleges, including that of Sri Guru Govind Singh College, Patna City, vide Notification of the Magadh University dated 13.6.1986. Annexure-3 to this application. Under instructions, bearing Memo. It also appears from the said complaint that Magadh University later notified the take over of the aforesaid 40 colleges, including that of Sri Guru Govind Singh College, Patna City, vide Notification of the Magadh University dated 13.6.1986. Annexure-3 to this application. Under instructions, bearing Memo. No.181/c dated 18th December, 1989 issued by the Principal Secretary and Commissioner, Human Resources Development Department Bihar State Government granted approval to the take over of the teaching and non-teaching employees of the aforesaid 40 colleges, including that of Guru Govind Singh College Perusal of the instructions dated 18th December, 1989 further indicates that take over of the services of Balbir Singh and Jasbir Kaur was also approved by the State Government. Later, Vigilance Department of the State of Bihar made enquiry into the take over of the aforesaid 40 colleges, including that of Sri Guru Govind Singh College as also in regard to the take over of the teaching and non-teaching staffs of those colleges, including that of Balbir Singh and Jasbir Kaur and found the take over of the colleges, including that of the teaching and non-teaching employees to be contrary to law and submitted a report giving reasons, in support of its said conclusion. It further appears from the complaint that the complainant questioned the appointment and payment of salary to both Balbir Singh and Jasbir Kaur and in support of the said challenge has relied on the findings recorded by the Vigilance Department of the State of Bihar. 4. Counsel for the petitioner states and submits that while action remained contemplated at the level of the State Government in terms of the findings recorded by the Vigilance Department, the affected persons moved this Court and this Court directed for grant of status quo and vide final orders passed in the case of Bihar Rajya Mahavidyalays Shikahak Avam Shiksheketar Karamchari Kalyan Mahasangh V/s. The State of Bihar and Ors. , reported in 1997 (1) PLJR 533 , held that Vigilance Department had no jurisdiction to make enquiry into the question of take over of the colleges/teaching and non-teaching employees. , reported in 1997 (1) PLJR 533 , held that Vigilance Department had no jurisdiction to make enquiry into the question of take over of the colleges/teaching and non-teaching employees. The matter travelled to the Hon ble Supreme Court at the instance of the State of Bihar, vide Civil Appeal No.6098 of 1997 as the State of Bihar questioned the findings of this Court that the Vigilance Department of the State of Bihar had no jurisdiction to make enquiries into the take over of the 40 colleges as also approval granted to the teaching and non teaching staffs of the taken over colleges. The Hon ble Supreme Court under orders dated 12.10.2001 passed in the said appeal, appointed Hon ble Mr. Justice S. C. Agrawal, a retired Judge of the Hon ble Supreme Court as Enquiry Commission to go into the legality and otherwise of the take over of the colleges, including teaching and non-teaching employees thereof. Hon ble Mr. Justice S. C. Agrawal submitted his report, whereunder he not only considered the take over of the 40 colleges, but his Lordship approved the take over of Shri Guru Govind Singh College and its teaching and non-teaching staffs including that of Balbir Singh and Jasbir Kaur. Later finding recorded by the Hon ble Mr. Justice S. C. Agrawal Commission was considered by a Bench of the Honbie Supreme Court in the aforesaid Civil Appeal No.6098 of 1997 and Hon ble Supreme Court under orders dated 12.10.2004 accepted the report submitted by the Hon ble Mr. Justice S. C. Agrawal and rejected all the objections filed against them and thereby granted its seal of validity to the take over of both Shri Guru Govind Singh College and the services of Balbir Singh and Jasbir Kaur. 5. Petitioner assails the impugned order taking cognizance in the light of the findings recorded by Hon ble Mr. Justice S. C. Agrawal in his report which has already been accepted by the Hon ble Supreme Court under orders dated 12.10.2004. 5. Petitioner assails the impugned order taking cognizance in the light of the findings recorded by Hon ble Mr. Justice S. C. Agrawal in his report which has already been accepted by the Hon ble Supreme Court under orders dated 12.10.2004. He further contends that the State of Bihar having not accorded sanction as required under Sec.197 of the Code of Criminal Procedure the trial cannot proceed as regards the petitioner who being the Secretary of the Human Resource Development Department with effect from 18.6.1998 as would appear from Annexure-5, was duty bound to obey and ensure compliance of the orders of the High Court granting status quo to continue with the take over of 40 colleges, including Sri Guru Govind Singh College together with its teaching and non-teaching staffs comprising Sri Balbir Singh and Jasbir Kaur. 6. On the other hand, learned counsel for the State and the opposite party No.2 has submitted that the impugned order taking cognizance should be upheld as the same has already been upheld under orders dated 15.5.2001, passed by this Court, in Cr. Misc. No.7011 of 2000 filed by Balbir Singh and Jasbir Kaur and the Brijnandan Rout the then Vice Chancellor of the Magadh University. He further contends that sanction can be accorded during the pendency of the trial and as such at this early stage order taking cognizance should not be quashed on the ground that sanction has not been accorded. In support of his submission, learned counsel has relied on the case of P. K. Pradhan V/s. The State of Sikkim, reported in AIR 2001 Supreme Court 2547 to submit that sanction can be accorded at any stage until the conclusion of the trial. 7. Having heard counsel for the parties and having considered their rival submissions, I am of the view that the offences alleged against the petitioner is required to be compartmentalized into two compartments, one prior to take over of the college and other after its take over i. e.13.6.1986. The allegations with regard to the affairs of the college including its take over together with the approval of the services of teaching/non-teaching employee, including that or Balbir Singh and Jasbir Kaur has already been gone into by Hon ble Mr. The allegations with regard to the affairs of the college including its take over together with the approval of the services of teaching/non-teaching employee, including that or Balbir Singh and Jasbir Kaur has already been gone into by Hon ble Mr. Justice S. C. Agrawal Commission and is concluded by the orders of the Hon ble Supreme Court dated 12.10.2004, passed in Civil Appeal No.6098 of 1997, but as regards the allegations prior to take over of the college that Smt. Jasbir Kaur drew her salary from two institutions, namely, Netro Dame School, Patliputra Colony, Patna as also from Sri Guru Govind Singh College is concerned, the same is required to be considered by the trial Court in accordance with law. It, however, appears from perusal of the impugned order that cognizance has been taken only under Sections 406, 420 and 120-B of the Indian Penal Code and not under Sec.409 of the Indian Penal Code and in my opinion unless cognizance of offence under Sec.409 of the Indian Penal Code is also taken, the petitioner cannot be roped into to face the trial alongwith the other accused persons. As such, I set aside the impugned order dated 21.8.1999 so far it concerns the petitioner and remit the matter back to the trial Court to consider the matter afresh in accordance with law. This application is, accordingly, disposed of.