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2006 DIGILAW 1141 (PAT)

Ramesh Prasad Singh v. State Of Bihar

2006-11-29

SHEEMA ALI KHAN

body2006
Judgment 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. Vide order dated 12.4.2006, a notice was issued to O.P. No. 2 which has been served on him but nobody appears on behalf of the O.P. No. 2. 3. The petitioner has challenged the order of cognizance passed by the Judicial Magistrate, 1st Class, Gaya on 5.11.2004 by which he has taken cognizance of the offence under Sections 31, 32, 49(1)(F)(J) Part-I of the Bihar Finance Act, 1981 . 4. The petitioner is presently working as a Manager of M/s Dhillon Transport Agency, having its office and godown situated at Peer Mansoor Road, Gaya. It is alleged that on 6.4.2004 an inspection was conducted by the officials of Commercial Taxes Department, Gaya Circle in the office and godown premises of M/s Dhillon Transport Agency and it was found that there was violation of Sections 31 and 32 of the Bihar Finance Act, 1981 . At the time of inspection, it is alleged that Form Nos. 28, 28A and 28E of the goods were not available as per the guidelines contained in Notification No. S.O. 602 dated 10.11.2003 and registers in form nos. I and II were also not maintained in the Agency. 5. The only point raised on behalf of the petitioner is that the court could not have taken cognizance of the offence as there was no order of sanction as required under Sec. 49(5) of the Bihar Finance Act to prosecute the petitioner. 6. Sec. 49(5) of the Bihar Finance Act reads as follows: Section 49(5): "No court shall take cognizance of any offence under this part or the rules made thereunder, except with the previous sanction of the Commissioner and no court inferior to that of a Magistrate of the 1st Class shall try any such offence." 7. Annexure-1 is the order of taking cognizance. On perusal of Annexure-1 dated 26.5.2004, it shows that the Commissioner-cum-Secretary, Department of Commercial Taxes has granted sanction for M/s Dhillon Transport Agency alongwith Bokaro Transport and Azad Transport. The name of the petitioner who is a Manager of the Company has not been included in the order of sanction, and as such, the contention is that without fulfilling the requirements of Sec. 49(5) of the Bihar Finance Act cognizance could not have taken against the petitioner. 8. The name of the petitioner who is a Manager of the Company has not been included in the order of sanction, and as such, the contention is that without fulfilling the requirements of Sec. 49(5) of the Bihar Finance Act cognizance could not have taken against the petitioner. 8. Learned Counsel for the petitioner has referred to certain judgments. One of them is Broker Brothers vs. The State of Bihar reported in 1974 B.L.J.R. page 461. The court while referring to the relevant provisions under the Bihar Agricultural Produce Market Act has held that there was no valid sanction with respect to the partners of the firm as the order of sanction did not mention the names of the partners, it simply stated that the firm has committed offence under various sections of the Act, and thus it was held that the sanction for prosecution of a firm did not amount to sanction for prosecution of any individual partner of the firm and the court quashed the order taking cognizance. In a Division Bench judgment by this court in the case of Satya Narayan Agarwal vs. The State of Bihar while dealing Clause 6 of the Bihar Essential Articles Display of Prices and Stocks order it has been held that the prosecution cannot be launched against the Proprietor of the firm, if no separate sanction for prosecution against him has been obtained and sanction, against a firm cannot be treated as sanction for prosecution of its owner and on this principal the order of taking cognizance has been quashed. As discussed above, the order of cognizance in the present case is granting prosecution against the Agency. There is no order of granting prosecution against the petitioner, who is the Managing Director of the Agency, and as such, without grant of prosecution the entire trial would be vitiated. It is, well settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed under the Bihar Finance Act as required under Sec. 49 (5) is the date on which the court is called upon to take cognizance of the offence of which the person is an accused. 9. 9. It is also clear on perusal of the order of taking cognizance against the petitioner it has been made without application of mind since the provisions as contained in Sec. 49(5) of the Bihar Finance Act have not been considered and the sanction order does not contain the name of the petitioner. The order dated 5.11.2004 is hereby quashed. 10. In the result, the application is allowed.