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2006 DIGILAW 800 (JHR)

State of Jharkhand v. Ajay Kumar Mishra

2006-07-05

D.K.SINHA, SUDHANSU JYOTI MUKHOPADHAYA

body2006
Judgment D.K. Sinha, J.- These two appeals have been preferred by State of Jharkhand and State of Bihar against the judgment dated June 21, 2004 passed by the learned single Judge in W.P.(S) No. 864/2004, whereby and whereunder, the writ petition preferred by the petitioner/1st respondent was allowed and the letter No. 6112 dated December 10, 2003 issued by the Government of Jharkhand according sanction under Section 197, Cr. PC to prosecute the writ petitioner 1st respondent has been set aside. The consequential letter No. 6814, dated 15th December, 2003 issued by Government of Jharkhand was also set aside by learned single Judge whereby and whereunder, the Director, Vigilance, D.O.P.I., Government of India, New Delhi was informed that the State Government has accorded sanction to prosecute the petitioner/1st respondent and requested the Government of India to accord sanction for the offence under Prevention of Corruption Act. 2. As both the appeals can be disposed of on short point it is not necessary to discuss all the facts except the relevant one, as stated hereunder. The 1st respondent is an I.A.S. officer of 1970 batch and at the relevant time he was holding the post of Managing Director, Bihar State Credit and Investment Corporation (in short 'BICICO') between 1980-82. In the year 1983, a complaint was lodged against one C. Singh, Financial Advisor and Chief Accounts Officer, BICICO and others alleging financial irregularities. On the basis of the aforesaid complaint, F.I.R. was lodged under Sections 120B, 109, 409, 420, 467, 468, 471 IPC read with Sections 5(2), 5(1)(c) and (d) of the Prevention of Corruption Act and a case was registered on January 22, 1985 in the Vigilance Police Station being Case No. 05/85. In the said F.I.R. many of the officers of the BICICO including the 1st respondent, who was the Managing Director, BICICO were made accused. It was alleged that the 1st respondent sanctioned a loan amount of Rs. 5 lakhs to a firm, M/s Biscay Data Products (P) Ltd. and later on the said firm was closed. It was alleged that the 1st respondent alongwith other officers in criminal conspiracy have misused their official position for their financial gain. It was further alleged that in spite of objection raised, the 1st respondent without inviting any tender had allotted work to one Advertising Agency and put the BICICO to financial loss. 3. It was alleged that the 1st respondent alongwith other officers in criminal conspiracy have misused their official position for their financial gain. It was further alleged that in spite of objection raised, the 1st respondent without inviting any tender had allotted work to one Advertising Agency and put the BICICO to financial loss. 3. It appears that a charge-sheet was filed by the I.B. on December 12, 1987 but it recommended to initiate a departmental proceeding against the 1st respondent. A draft charge and a list of evidence were also forwarded to the department. For some reason the matter remain pending for years together and after reorganisation of the State the 1st respondent was allotted the Jharkhand cadre he was also made Chief Secretary, Government of Jharkhand during April 1, 2003 to November 1, 2003. Thereafter, the Government of Bihar requested the State of Jharkhand to accord sanction under Section 197, Cr. PC to prosecute the 1st respondent. On their request the State of Jharkhand accorded sanction under Section 197, Cr.PC vide letter No. 6112, dated December 10, 2003. The Director (Vigilance), D.O.P.I., Government of India, New Delhi was requested to grant sanction for the offence under Prevention of Corruption Act to prosecute the petitioner/1st respondent vide a letter No. 6814, dated December 15, 2003. 4. The learned single Judge having noticed the fact as was pleaded by the writ petitioner/1st respondent and the decision of the Supreme Court in the case d Mansukhlal Vithaldas Chauhan vs. State of Gujarat, (1997) SCC 622 held that the respondents (State of Jharkhand and Bihar) failed to bring on record any document to suggest that they were considered by the sanctioning authority and after application of mind independently, the authority issued the order of sanction. It was held that the sanctioning authority without application of mind and without any basis had accorded sanction and thereby set aside the impugned order. 5. These two appeals were running in the daily cause list since long as a regular case. When the case was taken up no body appeared on behalf of the 1st respondent. When the argument was closed by the counsel for the appellants, Mr. Ajit Kumar Ojha appeared and sought for time, on the ground that a lawyer will come from outside, but as the hearing was on the verge of conclusion we rejected the prayer for adjournment. We allowed Mr. When the argument was closed by the counsel for the appellants, Mr. Ajit Kumar Ojha appeared and sought for time, on the ground that a lawyer will come from outside, but as the hearing was on the verge of conclusion we rejected the prayer for adjournment. We allowed Mr. Ajit Kumar Ojha to assist the Court but he has shown his inability to assist in absence of senior. 6. From the enclosure to the writ petition [W.P.(S) No. 864/2004] it appears that the Joint Secretary, Personnel and Administrative Reforms Department, State of . Bihar by letter No. 15098, dated December 4, 1990 informed the Government of India that the State of Bihar initially decided to close the file. But later on the matter was reopened and 'after reorganisation of the State, the Joint Secretary, Cabinet (Vigilance) Department, Government of Bihar vide letter No. 3192, dated September 26, 2002 requested the Chief Secretary, Government of Jharkhand to accord sanction under Section 197 CrPC in connection with Vigilance P.S. Case No. 005/85 dated February 7, 1985 for the offence under Sections 120B/109/489/420/467/471 IPC read with Sections 5(2), 5(1)(c) and (d) of the Prevention of Corruption Act. It was informed that only on receipt of the information relating to sanction, the matter will be forwarded with all records to the Government of India for sanction under Section 197, CrPC. The Government Jharkhand by their letter No. 3256 dated September 14, 2001 asked the Vigilance Commissioner, Cabinet (Vigilance) Department, Government of Bihar as to what were the documents on the basis of which the file which was closed was again reopened. Thereafter, a letter No. 3192, dated September 26, 2002 was sent by the Government of Bihar to the Government of Jharkhand forwarding the case diary and other records. The State of Jharkhand vide its letter No. 949, dated February 19, 2002 initially informed that the case diary and records sent therewith were illegible and requested the State of Bihar to forward legible copies of such documents. Thereafter, the Vigilance Commissioner, Cabinet (Vigilance) Department, Government of Bihar vide letter No. 276, dated May 27, 2003 forwarded the legible copies of the case diary and other documents and also asked as to whether they require any other records. Thereafter, the Vigilance Commissioner, Cabinet (Vigilance) Department, Government of Bihar vide letter No. 276, dated May 27, 2003 forwarded the legible copies of the case diary and other documents and also asked as to whether they require any other records. Only after receipt of legible copies of the case diary and all other records which were forwarded therewith and going through them the competent authority of the Government of Jharkhand accorded sanction under Section 197, CrPC vide letter No. 6712, dated December 10, 2003. 7. From the aforesaid facts it will be evident that apart from the FIR, which is the part of the case diary, the statement of the witnesses under Section 161, CrPC were available with the case diary and other records related to the case were also forwarded by the Government of Bihar. All those records were before the competent authority of the State of Jharkhand who, after going through the records, issued the impugned order of sanction as contained in the letter No. 6112, dated December 10, 2003. 8. From the progress report dated April 21, 1986 submitted by the Deputy Superintendent of Police, Cabinet (Vigilance) Department, Patna it appears that Sri AK Mishra (1st respondent) while functioning as Managing Director, BICICO allowed release of amount of the sanctioned loan without undertaking the requisite paraphernalia to the loanee units and the loan accounts run bad. One objection was raised by one Sri D.K Verma in respect to pre-disbursement inspection prior to the release of installments of loan amount but Sri Mishra (1st Respondent) did not pay heed to it and allowed the loan. The objections whatever were raised by some officers of BICICO in disbursing the loan was ruled out by Mr. Mishra (1st respondent). Though the Deputy Superintendent of Police in his report accepted that irregularities were committed by Mr. Mishra (1st respondent) but recommended to submit charge-sheet only against some of the officers, and in regard to Mr. Mishra (1st respondent) he recommended to initiate departmental proceeding. Mishra (1st respondent). Though the Deputy Superintendent of Police in his report accepted that irregularities were committed by Mr. Mishra (1st respondent) but recommended to submit charge-sheet only against some of the officers, and in regard to Mr. Mishra (1st respondent) he recommended to initiate departmental proceeding. From the letter No. 3192 dated September 26, 2002 issued from Cabinet (Vigilance) Department, Government of Bihar, it appears that the Investigating Officer in his progress report dated December 15, 1992 had shown that prima facie charges are made out against Sri A.K. Mishra and 16 other accused, out of which against three of the accused charge-sheet were submitted on October 12, 1987 the said officer recommended to grant sanction against 13 of the accused. The sanction orders were issued on January 13, 1993 against all the persons, except Sri Mishra (1st respondent), in respect to whom it was recommended to close the file. 9. From the impugned judgment we find that the learned single Judge has failed to notice the aforesaid facts and thereby erred in holding that nothing was brought on record by the respondents to suggest that the authority after application of mind independently accorded sanction. The judgment of the learned single Judge is based on presumption since all the records/documents related to the case were available with the writ petition. Therefore, we are of the view that interference with the impugned order of sanction was uncalled for. We accordingly, set aside the impugned judgment/order of the learned single Judge dated 21.6.2004 passed in W.P. (S) No. 864/2004 with liberty to the authorities to proceed in accordance with law. The 1st respondent may take appropriate defence before the Court below. 10. Both the appeals are allowed. However, in the facts circumstances, there shall be no order as to costs.