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2006 DIGILAW 1138 (PAT)

Atul Krishna Biswas v. State Of Bihar

2006-11-28

GHANSHYAM PRASAD

body2006
Judgment 1. Heard learned counsel for the petitioner as well as the State. 2. This application under Sec. 482 of the Cr.P.C. has been filed to quash the order dated 30.6.2003 passed by Special Judge, Economic Offence, Patna thereby and thereunder the cognizance under Sec.220(3) of the Companies Act, 1956 has been taken against this petitioner and two others. 3. The learned counsel for the petitioner has challenged the impugned order of cognizance mainly on two grounds. It has been submitted that the petitioner was a Government servant and at the relevant time he was a Director in Bihar State Food and Civil Supplies Corporation Limited. The court below has taken cognizance in violation of Sec.197 of the Cr.P.C. Sec.197 of the Cr.RC. postulates that no courts shall take cognizance without prior sanction of the State Government but the court below has taken cognizance without obtaining sanction order. In support of it the learned lawyer for the petitioner relies upon a decision of the Supreme Court reported in 2006(1) SCC page 557. 4. The other submission of the learned counsel for the petitioner is that the cognizance taken against the petitioner is barred under Sec. 468 of the Cr.RC. It is submitted that under Sec.220(3) read with Sec.162(1) of the Companies Act, 1956 the punishment is only fine up to Rs. 50.00 per day in which the limitation is only six months. It is submitted that according to the prosecution report, which is Annexure-1 of the supplementary affidavit, the petitioner alongwith other has been prosecuted for non-submission of a balance-sheet for the year 1998-99 but the prosecution report was submitted before the court below after lapse of four years in the year 2003. It is further submitted that learned lower court without hearing the petitioner and assigning any valid reason condoned the delay and took cognizance under the above section. 5. In the above case reported in 2006(1) SCC page 557 the matter regarding applicability of Sec.197 of the Cr.P.C has been dealt with and in paragraph 9 of the judgment it has been held as follows: "So far public servants are concerned, the cognizance of any offence, by any court, is barred by Sec.197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression "no court shall take cognizance of such offence except with the previous sanction". Use of the words "no" and "shall" make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is, the complaint cannot be taken notice of. According to Blacks Law Dictionary the word "cognizance" means "jurisdiction" or "the exercise of jurisdiction" or "power to try and determine causes". In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during the discharge of his official duty." 6. Thus, from the above decision of the Hon ble Supreme Court, it is quite clear that so far public servant is concerned the cognizance of the offence is barred by Sec.197 of the Cr.P.C. unless sanction is obtained from the appropriate authority. It is needless to say that the offence alleged was committed by the petitioner as a Government servant in due discharge of his duty and on the alleged date of the occurrence he was in service and working as a Managing Director of the Bihar State Food & Civil Supplies Corporation. 7. In view of that apparently the cognizance taken by the court below without prior sanction of the appropriate authority as required under Sec.197 of the Cr.P.C. is illegal and bad. 8. So far the other point is concerned, it is apparent that the court below has taken cognizance much after the expiry of the limitation period without hearing the petitioner on the matter of condonation of delay. The offence is of petty nature and complaint petition has been filed after lapse of four years of the alleged occurrence. Apparently, the cognizance is also hit by Sec. 468 of the Cr.P.C. 9. The offence is of petty nature and complaint petition has been filed after lapse of four years of the alleged occurrence. Apparently, the cognizance is also hit by Sec. 468 of the Cr.P.C. 9. Thus, having regard to the facts and circumstances of the case, this application is allowed and the order in question as well as the entire criminal proceeding of Complaint Case No. 54(c) 2003 is hereby quashed but only in relation to the petitioner.