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2004 DIGILAW 226 (PAT)

Rama Shankar Tiwary v. State Of Bihar

2004-02-25

B.N.P.SINGH

body2004
Judgment B.N.P.Singh, J. 1. The petitioner is sought to be put on trial with accusations of making illegal appointments of 77 Grade III and Grade IV employees in the Bihar Intermediate Council while acting as Education Secretary, Government of Bihar and also Incharge of Bihar Intermediate Council during its supersession in the year 1988. Allegedly these appointments were made on the recommendation made by the subordinate officers, which were not legally sanctioned by the Government, and even guidelines and instructions issued by the Government from time to time for observing them in making appointment to Government posts were grossly violated by the petitioner. 2. Appointments so made are sought to be justified by the petitioner on excuses that since Government had taken a decision for holding of intermediate standard examinations by the Intermediate Council, Intermediate Council had to be equipped with necessary infrastructure to cope with the load of work and that had necessitated appointment of staff to meet exigency of the situation. Defence was that apart from these exigencies, appointments so made by the petitioner against posts were eventually sanctioned by the Chief Minister vide order dated 12th November, 1998. 3. It seems that after conclusion of investigation when cognizance of the offence both under Secs. 120(B) and 109 of the Indian Penal Code and also under the Prevention of Corruption Act (P.C. Act) was taken by the Special Judge, Vigilance, Bihar, since there was neither valid sanction u/s. 19 of the P.C. Act, by competent authority nor the Central Vigilance Commission had accorded its consent for prosecution of the petitioner under the P.C. Act, petitioner invoked jurisdiction of this Court challenging the order dated 28.5.1994 passed in Special Case No. 87 of 1990 by Special Judge, Vigilance, Patna in Cr. Misc. No. 11841 of 1996. The aforesaid Criminal Miscellaneous was admitted and proceeding in the court below was stayed. However, since there did not appear to be valid sanction accorded by the competent authority as enjoined under sec. 19 of the P.C. Act and also that Central Vigilance Commission had not accorded consent for prosecution of the petitioner under the P.C. Act, while that part of the cognizance was set aside by the Bench. No conclusive finding could be recorded so far prosecution of the petitioner under Secs. 19 of the P.C. Act and also that Central Vigilance Commission had not accorded consent for prosecution of the petitioner under the P.C. Act, while that part of the cognizance was set aside by the Bench. No conclusive finding could be recorded so far prosecution of the petitioner under Secs. 120B and 109 of the Indian Penal Code was concerned and the matter was left before the Court below for reconsideration. Again after the ball came in the courtyard of the court below, the learned Special Judge finding no bar in taking cognizance of the offence under the P.C. Act, reaffirmed his previous order so far as prosecution of the petitioner under Secs. 120B and 109 of Indian Penal Code, 1860 Act was concerned. Aggrieved petitioner again took recourse to judicial authority and moved this Court in Cr. Misc. No. 5598 of 2002 for quashing of the order dated 15.1.2002 passed by the Special Judge in which cognizance under two Sections of Indian Penal Code, 1860 had been affirmed and the court below had held that since cognizance had already been taken under those sections, no fresh order of cognizance was required to be taken. This time too the order of Special Judge was set aside by Bench of this Court and the matter was remitted back to the court below for disposal with some observation as the impugned order was found wanting on the evidence, that were collected by the vigilance during investigation. 4. It is reiterated with all stress by the learned counsel for the petitioner that the sanction accorded against the petitioner for his prosecution under different sections of the I.PC. by the State Government was not only illegal but also against the mandate of the legislation, particularly, when the government of India considering the view of the Central Vigilance Commission had not accorded sanction for prosecution of the petitioner under the provisions of the P.C. Act. Reiterating submission, contentions are raised that appointments were made against the sanctioned posts which were duly approved by the Chief Minister in anticipation of issuance" of formal sanction order. 5. Reiterating submission, contentions are raised that appointments were made against the sanctioned posts which were duly approved by the Chief Minister in anticipation of issuance" of formal sanction order. 5. The accusations attributed to the petitioner are prima facie writ large, in view of illegal appointments having been made during his tenure as Incharge of the Bihar Intermediate Council, in anticipation of issuance of formal order sanctioning the posts, when guidelines and instructions issued by the Government for monitoring these appointments were grossly violated, since there is a finding by a Bench of this Court about there being legal bar in prosecuting the petitioner under the P.C. Act, for want of legal sanction, as enjoined under Sec. 19 of the P.C. Act, I say no more to make any comment. Be that as it is, so far prosecution of the petitioner under different Sections of the Indian Penal Code was concerned, that yet survives on the record on meticulous appreciation made by the court below. This need not be reiterated that the offence under the P.C. Act and those under the provisions of the Indian Penal Code are distinct offences, latter being not offshoot of the former one hence, cannot be clubbed together to strive that since cognizance under the P.C. Act was quashed by the High Court, the cognizance under different sections of the Indian Penal Code too would not survive for consideration, and that apart, this Court at this stage, would not give the course of proceedings to be of a mini trial. Even there cannot be appreciation of evidence at this stage which is largely the function of the trial court and I am afraid that, if this Court at this stage is to embark into an inquiry about genuineness of accusation attributed to the petitioner, that would be usurping functions of the trial court which had not been the intent of the legislature. 6. Though submission was also made that for want of sanction from the Central Government for prosecution of the petitioner under the P.C. Act, there was no occasion for drawing a departmental proceeding against the petitioner, I find that hardly there is occasion for this Bench to make comment to prejudge all these matters at this stage, and in view of these deliberations, I find that the petition did not bear merit which is accordingly dismissed. However, any comment made by this Court at this stage would not prejudice the trial as these observations have been made simply to appreciate the contentions raised on behalf of the parties and to find out whether a prima facie case has been made out for prosecution of the petitioner and the question is accordingly answered in affirmative.