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2006 DIGILAW 213 (PAT)

Devendra Prakash Maheshwari v. State Of Bihar

2006-03-02

CHANDRAMAULI KR.PRASAD

body2006
Judgment CHANDRAMAULI KR.PRASAD, J. 1. This application has been filed for issuance of a writ in the nature of certiorari for quashing the order as contained in memo dated 13.5.2005, whereby the State Government, in exercise of its power under Section 197(1)(b) of the Code of Criminal Procedure accorded sanction for prosecution of the petitioner under Sections 120-B, 407, 411, 420, 467, 468, 471 and 477 of the Indian Penal Code and Section 13(2) read with Section 13 (1)(d) of the Prevention of Corruption Act. 2. Shorn of unnecessary details, the facts giving rise to the present application are that the petitioner is an accused in Special Case No. 17/97, R.C. 32(A)/97 registered under Sections 120-B, 407, 420, 467, 468, 471 and 477-A of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, Case relates to a scandal in purchase of bitumen. Petitioner, at the relevant time, was Commissioner-cum-Secretary of the Road Construction Department. The Central Bureau of Investigation submitted charge-sheet against him and the Special Judge, by order dated 14.12.2004, took cognizance of the offence against the petitioner besides other accused persons. Petitioner challenged the order taking cognizance by filing application under Section 482 of the Code of Criminal Procedure, which was registered as Cr. Misc. No. 24266 of 2005 Devendra Prakash Maheshwari V/s. The Central Bureau of Investigation and others. This Court, by order dated 17.8.2005, disposed of the aforesaid application in the following words : xxx xxx xxx "It appears that the State Government has accorded sanction in terms of the provisions contained under Section 197 of the Code of Criminal Procedure under order dated 13.5.2005 and the ground of challenge raised against the impugned order dated 14.12.2004 that the same is violative of the provisions contained in Section 197 of the Code of Criminal Procedure has now disappeared, as such, other ground of challenge that there is no evidence collected during investigation to connect the petitioner with the case should be raised by him at the appropriate stage i.e., when the charges are framed in terms of Section 239 of the Code of Criminal Procedure. It, however, goes without saying that the petitioner is always at liberty to assail the order granting sanction dated 13.5.2005 either before the trial Court or before any other appropriate Court. The application stands disposed of with the aforesaid observations and directions." 3. It, however, goes without saying that the petitioner is always at liberty to assail the order granting sanction dated 13.5.2005 either before the trial Court or before any other appropriate Court. The application stands disposed of with the aforesaid observations and directions." 3. It is relevant here to state that the Governor of the State, in exercise of its power under Section 136 of the Bihar Panchayat Raj Act, 1993 appointed the petitioner as the State Election Commissioner for a period of three years or till he attains the age of 64 years whichever is earlier. Thus, at the time when the State Government accorded sanction for prosecution of the petitioner, he was working as the State Election Commissioner. 4. It is the stand of the petitioner that on the date the State Government accorded sanction for his prosecution, he was holding the office of the State Election Commissioner and therefore, the order impugned according sanction for his prosecution, is clearly illegal and completely without jurisdiction. It has been pointed out that the State Election Commissioner cannot be removed from his office except in like manner and on the like grounds, as a Judge of the High Court and hence, the sanction for his prosecution is clearly illegal. 5. Mr. Rana Pratap Singh, Senior Advocate, appearing on behalf of the petitioner, contends that undisputedly, on the date the State Government accorded sanction for prosecution of the petitioner, he was holding the office of the State Election Commissioner and, therefore, the State Government has no jurisdiction to accord sanction for his prosecution. He points out that in view of Proviso to Section 136(2) of the Bihar Panchayat Raj Act. the State Election Commissioner cannot be removed from his office except in the" like manner and on the like grounds as a Judge of the Court. He draws my attention to proviso (b) of Article 217 of the Constitution of India and points out that a Judge of the High Court can be removed from his office by the President in the manner provided in clause (4) of Article 124 of the Constitution of India. Article 124(4) of the Constitution of India provides for removal of a Judge of the Supreme Court and by incorporation, said provision shall apply for removal of a Judge of the High Court and the State Election Commissioner. Article 124(4) of the Constitution of India provides for removal of a Judge of the Supreme Court and by incorporation, said provision shall apply for removal of a Judge of the High Court and the State Election Commissioner. According to the aforesaid provision, a Judge of the High Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. Accordingly, Mr. Singh contends that sanction in the case of the petitioner ought to have been accorded by the Speaker of the Lok Sabha. 6. Mr. Rakesh Kumar, Standing Counsel appearing on behalf of the Central Bureau of Investigation, however, contends that the petitioner is being prosecuted for an act which he has done as a Commissioner-cum-Secretary of the Road Construction Department and not as the State Election Commissioner and said protection available to the State Election Commissioner shall not be available to the petitioner. He also points out that the petitioner earlier approached this Court for quashing the order taking cognizance on the ground that the order of sanction has not been granted by the competent authority but said application having failed, petitioner cannot be permitted to agitate the same point again. 7. Section 136 of the Bihar Panchayat Raj Act, hereinafter referred to as the Act, provides for constitution of a State Election Commission for superintendence, direction and control of elections. Section 136(2) of the said section which is relevant for the purpose, reads as follows : 136. Election Commissioner of Panchayat: "(2) The conditions of services and tenures of office of the State Election Commissioner shall be such as the Governor may by rule determine : Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment." 8. From a plain reading of proviso to Section 136(2) of the Act, it is evident that the State Election Commissioner cannot be removed from his office except in like manner and on the like grounds as a Judge of the High Court. Proviso (b) to Article 217 (1) of the Constitution of India contemplates removal of a Judge of the High Court which reads as follows : 217. Appointment and conditions of the office of a Judge of a High Court. (1) xxx xxx xxx "(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court." 9. Proviso (b) to Article 217(1) of the Constitution of India provides the manner of removal of the Judge of the High Court, which would be same as provided in the case of a Judge of the Supreme Court under Article 124(4) of the Constitution of India. Article 124(4) of the Constitution which is relevant for the purpose reads as follows : "124 (4). A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that house present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity." 10. In view of incorporation of Article 124(4) in the proviso to Article 217(1) of the Constitution of India and Section 136 of the Act, the State Election Commissioner cannot be removed from his office except by an order of the Governor passed after an address by each House of Parliament supported by a majority of total membership of that House and by majority of not less than two-thirds members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. 11. In my opinion, manner of removal and the authority to remove, cannot be equated. 11. In my opinion, manner of removal and the authority to remove, cannot be equated. As in the case of the Judges of the High Court and Supreme Court, the motion to remove is to precede before the order for removal can be passed by the President. Similarly, in the case of State Election Commissioner, the Governor, before removing him, is to be satisfied that motion for removal has been passed by the required majority. The action impugned in the present application is not of removal of the petitioner from the office of the State Election Commissioner but sanction for his prosecution and therefore, the whole exercise on part of the petitioner in regard to the manner of his removal, has no bearing at all in the present case. All these issues may be relevant when he is removed from the office of the State Election Commissioner. 12. Here is the case in which the petitioner was appointed as the State Election Commissioner by a notification duly authenticated by the order of the Governor and the order granting sanction for his prosecution has been issued in the same manner. Petitioner was appointed by the order of the Governor and therefore, the power of removal also lies with him. From what has been stated above, it is evident that the whole argument advanced on behalf of the petitioner assailing the order of sanction is absolutely misconceived. 13. In the result, I do not find any merit In this application and it is dismissed accordingly, but without any order as to costs.