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2007 DIGILAW 1734 (PAT)

Surendra Prasad v. State Of Bihar

2007-11-06

RAMESH KUMAR DATTA

body2007
Judgment 1. Both these applications have been filed by the petitioner who is an accused in connection with Vigilance P.S. Case No. 53/2007 registered under Sections 7,13, 27 read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. In the Criminal Miscellaneous application the petitioner has applied for bail in the said case. In Criminal writ application the petitioner seeks a declaration that the remand of the petitioner in the said case after the submission of the charge-sheet on 18.6.2007 without taking cognizance is violative of the provisions of Section 309(2) of the Code of Criminal Procedure and for the said reasons he is entitled for release on bail. 2. Since the issues involved therein are common, hence both the matters have been taken up and heard together and are being disposed of by this common order. 3. Heard learned counsel for the parties. 4. The allegation against the petitioner is that of having received a bribe of Rs. 10,000/ - from the informant and he was caught red handed while doing so by a raiding party duly constituted by the Vigilance Department. He has also tested positive in the phenolphthalein test. 5. Learned counsel for the petitioner however, has sought to argue his case on the basis of illegal remand of the petitioner contrary to the provisions of Section 309(2) of the Code of Criminal Procedure. It is pointed out that the petitioner was arrested on the spot on 20.4.2007 and remanded on 21.4.2007. Thereafter the investigation was made and charge-sheet was submitted on 18.6.2007. Since no sanction had been accorded as per the requirement of law by the competent authority the cognizance of the case could not be and was not taken but even without taking cognizance the petitioner was continued to be remanded on various dates after the submission of the charge-sheet. It is submitted by the learned counsel for the petitioner that once the charge-sheet is submitted then there is no power in the criminal Courts to remand the accused persons unless cognizance is taken of the offence as clearly provided in Section 309(2) Cr.P.C. In support of the said proposi-tion, learned counsel relies upon a Division Bench judgment of this Court in the case of Shri S.K. Lal, Special Judge, CBI (AHD) Patna vs. Lalu Prasad and Others: 1998(1) PLJR 782. The relevant part of the decision as laid down in paragraph nos. The relevant part of the decision as laid down in paragraph nos. 9 and 22 is quoted below: "9........sub-section (2) of Section 309 in clear terms provides that if the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same for such time as it considers reasonable, and may by a warrant remand the accused, if in custody. A mere reading of the Section makes it abundantly clear that power of remand can be exercised by the Court after taking cognizance in a pending enquiry or trial. If the trial has commenced and the Court finds it necessary or advisable to adjourn the same it may record its reasons for doing so and remand the accused, if in custody. This power can be exercised by a Court before which the trial has commenced or is pending. 22.......The case, with which we are concerned, is not a sessions case, but a case triable as a warrant case. In such a case also the moment a police report is received, the Special Judge must take cognizance of the offence and then proceed to consider the matters relevant to Sections 238 to 240 of the Code. If he does not take cognizance, even if the next stage of the proceeding be an enquiry, he cannot, in the absence of taking cognizance, remand an accused under sub-section (2) of Section 309 of the Code. The second question formulated by the Special Judge assumes as a fact that cognizance has not been taken by the Court. If such be the position, the Court cannot remand an accused to custody under Section 309(2) of the Code without taking cognizance of the offence on the basis of police report submitted after completion of investigation." 6. Learned counsel also relies upon another Division Bench decision of this Court . in the case of Pawan Kumar Jaiswal vs. The State of Bihar: 1999 (2) PLJR 364, in which similar proposition has been laid down following the decision of this Court in S.K. Lals case (supra). 7. Learned counsel for the Vigilance is unable to oppose the said issue so far as the legal propositions are concerned. in the case of Pawan Kumar Jaiswal vs. The State of Bihar: 1999 (2) PLJR 364, in which similar proposition has been laid down following the decision of this Court in S.K. Lals case (supra). 7. Learned counsel for the Vigilance is unable to oppose the said issue so far as the legal propositions are concerned. However, he points out that in the present matter, the proposal for sanction was sent by the Vigilance Bureau to the Excise Commissioner on 23.5.2007. On 23.7.2007 the Excise Commissioner sent the proposal with his recommendation to the Law Department but the same was received in the Law Department on 9.9.2007. Ultimately, the sanction order was issu id by the Law Department on 16.10.2007 and the file was sent to the Excise Department which in turn sent it to the Vigilance Department on 1.11.2007 and the same has now been sent by the Vigilance Department on 5.11.2007 to the Court of the Special Judge, Vigilance. It is thus, the admitted position that after the charge-sheet was submitted on 18.6.2007, the accused has been remanded several times without the Court below having taken cognizance of the offence which he could not have done in the absence of the sanction for prosecution being accorded by the competent authority of the State of Bihar. 8. It is obvious from the aforesaid factual position coupled with the law laid down by this Court in S.K. Lals case (supra) that the petitioner has continued to be remanded illegally by the Court below after 18.6.2007. 9. In the aforesaid circumstances, both the applications are allowed and the petitioner, Surendra Prasad, is directed to be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each in connection with Special Case No. 25/2007 arising out of Vigilance P.S. Case No. 53/2007 to the satisfaction of Sri A.K. Sharan, Special Judge (Vigilance), North Bihar, Muzaffarpur. 10. This Court is constrained to observe that on account of gross laches on the part of the officials of the State, an accused person who has been caught red handed accepting bribe of a sum of Rs. 10,000/- has to be released on bail. It is evident that the file has not moved with the expedition which is required in such cases. 10,000/- has to be released on bail. It is evident that the file has not moved with the expedition which is required in such cases. In the matters of the present nature where an accused is arrested on the spot after the commission of the offence of taking bribe by the raiding party duly constituted by the Vigilance Department, there can be a little occasion for the refusal of sanction by the competent authorities with due expedition. The proposal having been received by the Excise Department as early as on 23.5.2007, there was no reason why the sanction could not have been issued forthwith while the file being moved from one Department to the other with reasonable expedition and the sanction order could have been easily filed alongwith the charge-sheet within 90 days statutory period as required by the Code of Criminal Procedure. It is only on account of the gross laches in the official duties on the part of the officials of the State that it took 2 months for the proposal to be considered in the Excise Department and even after it was sought to be sent to the Law Department, it took more than one and half months for the file to reach the Law Department. In such circumstances, it would not be out of the way to presume that certain persons have acted in collusion with the accused person to enable him to escape the rigors of law by delaying the according of sanction. 11. The Excise Commissioner and the Special Secretary, Law Department, who are personally present in Court, assure the Court that appropriate action will be taken against the concerned officers and employees who are responsible for causing the delay in ac- cording sanction and movement of files. 12. Let the action be taken expeditiously and the persons guilty of causing unreasonable delay be meted out their just punishment. 13. The personal appearance of the Excise Commissioner and the Special Secretary, Law Department is dispensed with.