Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 758 (JHR)

Jit Narain Prasad v. State of Bihar

2009-05-13

R.R.PRASAD

body2009
JUDGMENT : Through this writ application, extraordinary jurisdiction of this Court has been sought to be invoked for quashing an order, as contained in Memo No. 3542/J dated 26.9.2006, issued by the Secretary, Law Department, Bihar, Patna (respondent no. 1), whereby sanction for prosecution of the petitioner in Jharia P.S. Case No. 75 of 1991 was accorded. Learned counsel appearing for the petitioner submits that while the petitioner and one Shankar Prasad Kedia were posted as Assistant Commissioner, Commercial Taxes at Jharia Circle and one Motilal Vidyarthi was posted as in- charge Deputy Commissioner, Commercial Taxes, Jharia Circle, 53 pages of Form-F and 25 pages of Form-E-1 (one booklet) of Commercial Tax Department at Jharia Circle, Dhanbad were found missing, for which a case was lodged under Section 409 of Indian Penal Code against Bachu Prasad Rajak, Head clerk, and Shiv Shankar Ram, Clerk, posted in the said Circle. In course of investigation, Deputy Superintendent of Police, Sindri, who was the Supervising Authority, suspected the hands of Motilal Vidyarthi, Deputy Commissioner, Commercial Taxes, as well as one Dharmendra Kumar Sinha, a peon, and, therefore, directed the Investigating Officer to investigate the case as to whether those persons had had any connivance with the other accused. However, investigation was taken up by the Deputy Superintendent of Police, C.I.D (Food) Bihar, Patna. In course of investigation, Deputy Superintendent of Police, C.I.D (Food), Bihar, Patna, found complicity of said Motilal Vidyarthi and Dharmendra Kumar Sinha along with other two named accused persons. Accordingly, supplementary charge-sheet was submitted on 3.2.1999, wherein nothing was reported against the petitioner, still D.I.G., C.I.D (Food) vide its letter dated 4.4.2000 (Annexure-5) wrote a letter to the Administrative Department of the petitioner for according sanction against this petitioner and other accused persons. When the said proposal for sanction was placed for consideration before the Commissioner-cum-Secretary, Commercial Tax Department, Bihar, Patna (respondent no. 2), it was noted that the custodian of those Forms was Mr. Motilal Vidyarthi, Deputy Commissioner, Commercial Taxes, still sanction has been sought against the petitioner and, therefore, opinion was given to have advice of the Department of Law in the matter of granting/refusing sanction against the petitioner. The matter on being placed before the Law Department, it opined that merely on raising doubt, no criminal proceeding can be started, rather the Department, if so likes, may take decision for departmental proceeding. The matter on being placed before the Law Department, it opined that merely on raising doubt, no criminal proceeding can be started, rather the Department, if so likes, may take decision for departmental proceeding. On receipt of the said opinion of the Law Department, the Commissioner-cum-Secretary, Commercial Tax Department, Bihar, Patna (respondent no. 2) made recommendation on 7.10.2004 before the Minister, Commercial Taxes, State of Bihar, for refusal of the sanction, which stood concluded but after two years of the said decision, the Secretary, Law Department, Bihar, Patna (respondent no. 1) accorded sanction for prosecution against the petitioner vide its order, as contained in Letter No. 3542/J dated 26.9.2006 (Annexure-8), which has been sought to be quashed. Learned counsel further submits that from the facts as stated above, it would appear that the Commercial Tax Department never made recommendation for grant of sanction for prosecution against the petitioner even then Secretary, Law Department, Bihar, Patna accorded sanction for prosecution against the petitioner, in contravention of the provision as contained in Rule 53 (1)(c) of the Rules of Executive Business and that the order granting sanction is otherwise bad in view of the fact that respondent no. 1 without having regard to the entire facts and circumstances and without application of mind, has granted sanction. Impugned order was sought to be quashed also on the plea that, according of sanction after 16 years of lodgment of the case, can be said to be quite stale and as such, it is fit to be quashed in view of the ratio laid down in the case of Mahendra Lal Das Vs. State of Bihar and others reported in 2002 (1) S.C.C. 149 and also in the case of Ramanand Chaudhary Vs. State of Bihar and others reported in 2002(1) S.C.C. 153. Learned counsel in support of his submission, has also placed his reliance on a decision rendered by the Patna High Court in the case of Rama Nand Jha Vs. State of Bihar and others in Criminal Writ No. 412 2006. State of Bihar and others reported in 2002(1) S.C.C. 153. Learned counsel in support of his submission, has also placed his reliance on a decision rendered by the Patna High Court in the case of Rama Nand Jha Vs. State of Bihar and others in Criminal Writ No. 412 2006. The stand of State of Bihar, as has been made in the counter affidavit, is that on 16.8.2004 the Administrative Department had simply sought an opinion on grant of sanction without furnishing the case diary and on that basis, opinion was given by the Secretary, Law Department, Government of Bihar, for taking steps for departmental proceeding, but on 29.10.2004, the then Chief Minister of Bihar directed the Law Department, Bihar to take final decision under Rule 53 (c) of Rule of Executive Business. The Administrative Department then referred the file to Law Department for taking final decision. Upon it, the Secretary, Law Department, Government of Bihar, sought an opinion from the Advocate General, Bihar, who opined that there are incriminating evidences available against the accused persons, which are required to be looked into by the Authority competent to grant sanction and when said opinion was communicated to the Administrative Department, the file was sent on 4.1.2006 to the Law Department, Bihar, for taking decision in the matter of grant/refusal of sanction for prosecution. Thereafter, on due consideration of the material available in the case diary, order was passed, wherein sanction for prosecution against the petitioner and one Shankar Prasad Kedia was accorded after due approval of the Hon’ble the Chief Minister of Bihar. Having heard learned counsel appearing for the parties and regard being had to the respective submissions, I do not find any substance in the submissions advanced on behalf of the petitioner that respondent no. 1 granted sanction against the petitioner, in absence of satisfactory evidence against the petitioner showing his involvement in the alleged offence and that respondent no. 1, without having any proposal from the Administrative Department, passed the impugned order granting sanction for prosecution against the petitioner, rather it appears that the respondent no. 1, after getting proposal from the administrative department granted sanction for prosecution against the petitioner after taking into consideration the material collected in course of investigation showing prima facie involvement of the petitioner in the alleged offence. It would be worthwhile to note here that earlier to granting sanction, respondent no. 1, after getting proposal from the administrative department granted sanction for prosecution against the petitioner after taking into consideration the material collected in course of investigation showing prima facie involvement of the petitioner in the alleged offence. It would be worthwhile to note here that earlier to granting sanction, respondent no. 1 had expressed his opinion about deficiency of the material warranting sanction for prosecution against the petitioner only on the basis of noting made in the relevant file placed by the Administrative Department, whereas when the entire materials were placed by the Administrative Department for according/refusal of the sanction, respondent no. 1, on consideration of the relevant record, did find prima facie case against the petitioner and in this view of the matter, the decision referred to on behalf of the petitioner in the case of Rama Nand Jha in Criminal Writ No. 412 2006 (supra) does not appear to be applicable in the facts and circumstances of the case, as in that case, there was absolutely no material against the petitioner of that case showing his involvement in the case, rather sanction had been accorded on the direction of A.D.G.,Vigilance and in that circumstance, order granting sanction was quashed. Further order granting sanction has also been sought to be quashed on the plea that it has been granted after 16 years of lodgment of the case, whereas Hon’ble Supreme Court in a case of RamaNand Choudhary (supra), quashed the order granting sanction for the reason that it had been granted after 11 years of initiation of the prosecution, but on perusal of that decision, order granting sanction never seems to have been quashed simply on the ground of delay of granting of sanction, rather it was quashed for the reason that sanction had been accorded after 11 years, in spite of the fact that the State Authority was not satisfied with the merit of the case, whereas in the present case, respondent no. 1, having been satisfied with the materials disclosing prima facie case against the petitioner, accorded sanction of prosecution against the petitioner. Thus, I do not find any merit in this writ application. Accordingly, this writ application stands dismissed.