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2007 DIGILAW 243 (PAT)

Rama Nand Jha Raman v. State Of Bihar

2007-02-02

M.SARAN

body2007
Judgment 1. This is an application for quashing the order dated 21.4.2002/24.6.2002 passed by learned Chief Judicial Magistrate, Saharsa in G.R. No. 1314/99 corresponding to Saharsa P.S. Case No. 380/99 whereby and whereunder he has taken cognizance against the petitioner under Sections 165, 409 and 420/34 of the Indian penal Code (in short as IPC) on the basis of the charge sheet submitted by the Police. 2. The prosecution case in short is that on the basis of written report filed by Ram Narayan Prasad, Section Officer, Division no. 16, Water Resources (Irrigation) Department, Government of Bihar, Patna before the Officer Incharge of Saharsa Town Police Station the Police registered Saharsa P.S. Case No. 380/ 99 and took up investigation. It has been alleged in the written report that compensation money was paid to the villagers of village Bakhri in between 2.1.96 and 9.9.96. As per Sec.18 of Land Acquisition Act if the award is not satisfied with the compensation paid, he would file objection before the Land Acquisition Officer within six weeks and the Land Acquisition Officer after examining the matter would send the same to the concerned Court for determination of legal/proper amount of compensation. It has further been alleged that the petitioner Rama Nand Jha Raman and Awdhesh Kumar Sinha who were then Special Land Acquisition Officer and Clerk respectively sent the objection petition to the concerned Court of Saharsa on 20.9.97 i.e. much after six weeks and when a report was called for in this regard from the Head Clerk and the Land Acquisition Officer, objection papers were produced showing the column of receiving date not filled up. Thus it is said that the accused persons tried to cause financial loss to the State Government. It appears that the Police after investigation, submitted charge sheet twice in this case. Second charge sheet was in respect of the petitioner and the same was submitted under Sections 165, 409 and 420/34 IPC. 3. The submission of learned counsel for the petitioner is that in the first charge sheet no. 151/01 dated 11.8.2001 it was mentioned that the investigation against the petitioner is continuing awaiting sanction order. Subsequently supplementary charge sheet vide charge sheet no. 3. The submission of learned counsel for the petitioner is that in the first charge sheet no. 151/01 dated 11.8.2001 it was mentioned that the investigation against the petitioner is continuing awaiting sanction order. Subsequently supplementary charge sheet vide charge sheet no. 351/01 dated 31.12.2001 was submitted without any sanction and it was mentioned that on receipt of sanction order, the same shall be produced in Court but the learned Court below without waiting for the sanction vide impugned order dated 21.4.02/24.6.02 has taken cognizance against the petitioner under Sections 165, 409 and 420/34 IPC. Further submission is that the impugned order indicates total non-application of judicial mind as cognizance under Sec.165 IPC is completely without jurisdiction. Learned counsel pointed out that Sec.165 IPC has been repealed by Prevention of Corruption Act, 1988. He also pointed out that for taking cognizance under Sec.165 IPC the power is vested in Special Court duly constituted by the State Government but the learned Chief Judicial Magistrate without taking into consideration this legal aspect, has taken cognizance under Sec.165 IPC against the petitioner. Learned counsel lastly pointed out that in a similarly situated matter this Court in Cri. Misc. No. 38500 of 2005 by order dated 3.11.2006 has quashed the order of cognizance. 4. On the other hand, it has been submitted on behalf of the State that when the case was still under investigation, the State of Bihar was bifurcated and the petitioners services was provisionally allocated to Jharkhand State. Finally the petitioner has been allocated the same cadre in the State of Jharkhand. Since the services of the petitioner was allocated to the State of Jharkhand and therefore, the Government of Bihar sent the file regarding sanction of prosecution of the petitioner to Jharkhand Government and the State of Jharkhand has accorded sanction for prosecution of the petitioner vide Law (Judicial Department) Letter no. 34 dated 6.7.2004 which is annexed to the counter affidavit filed in Cri. Misc. No. 38500/2005. 5. Counsel for the petitioner in reply submitted that the cognizance has been taken under Sections 165, 409 and 420/34 IPC but so far as sanction order is concerned there is no sanction for prosecution under Section 165 IPC. 6. Thus the position is that sanction has been accorded for prosecution under Sections 409 and 420/34 IPC. There is no sanction for prosecution under Sec.165 IPC. 6. Thus the position is that sanction has been accorded for prosecution under Sections 409 and 420/34 IPC. There is no sanction for prosecution under Sec.165 IPC. As pointed out above by learned counsel for the petitioner Sec.165 IPC has been repealed and only Special Court now can take cognizance of offence under Sec.165 IPC under the Prevention of Corruption Act. It is settled view that in all cases it is not necessary that at the initial stage of the proceeding itself there should be sanction for prosecution by the concerned Government. It varies from the fact of each case. It is also settled view that even if sanction is accorded at subsequent stage it cannot be said that the entire prosecution is bad. 7. Considering all these facts the impugned order dated 21.4.2002/24.6.2002 passed by Chief Judicial Magistrate, Saharsa is quashed. The matter is remanded to Chief Judicial Magistrate, Saharsa for passing fresh order in accordance with law on the basis of the order of sanction accorded by the competent authority for the petitioners prosecution. 8. This application accordingly stands allowed.