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2011 DIGILAW 2197 (PAT)

Hridaya Chaudhary v. State of Bihar

2011-10-21

RAJENDRA KUMAR MISHRA

body2011
ORDER The petitioner has filed this application, under Section 482 of the Code of Criminal Procedure, for quashing the entire proceeding of Vigilance Case No.12 of 1999, registered on the basis of the written report of Parmanand Singh, Police Inspector, Vigilance Investigation Bureau, Patna, under Sections 409, 419, 420, 467, 468, 471, 477-A and 120-B of the Indian Penal Code and Sections 13(1)(d) and Sections 13(2) of the Prevention of Corruption Act, 1988 against the accused persons including the petitioner and also the orders dated 5.12.2007 and 3.1.2008 passed by the Special Judge, Vigilance-1, Patna, in Special Case No.14 of 1999, whereby the Special Judge, Vigilance-I, Patna, vide order dated 5.12.2007, took the cognizance of the offence under Sections 409, 419, 420, 467, 468, 471, 477-A and 120-B of the Indian Penal Code against all the accused including the petitioner, whereas vide order dated 3.1.2008, took the cognizance of the offence under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, against the accused - petitioner. 2. The brief fact, leading to this application, is that on the basis of the written report of the opposite party no.2, Sri Parmanand Singh, Police Inspector, Vigilance Investigation Bureau, Patna, Vigilance Case No.12 of 1999 dated 3.6.1999 was instituted under Sections 409, 419, 420, 467, 468, 471, 477-A and 120-B of the Indian Penal Code and Sections 13(2) read with Sections 13(1)(d) of the Prevention of Corruption Act, 1988 against the ten officials of Block Level including the petitioner, Hridaya Chaudhary, Block Agriculture Officer, Islampur, Nalanda and some unknown persons. It has been alleged in the report that in course of inquiry by the Vigilance Investigation Bureau, it has come in the light that in collusion with Block Development Officers, Block Agriculture Officers, Junior Engineers and Staffs of the concerned Block, the government money, meant for “Jaldhara Yojana, 1996-97” has been misappropriated for their personal benefits, ignoring the directions and guidelines issued by the Deputy Development Commissioner, Nalanda. It has further been alleged that on the block level proceeding regarding the identification of signature, the Block Agriculture Officer, the petitioner, Hridaya Chaudhary, was sent, who admitted that the records relating to “Jaldhara Yojana” are to be maintained by him and the Block Development Officer. It has further been alleged that on the block level proceeding regarding the identification of signature, the Block Agriculture Officer, the petitioner, Hridaya Chaudhary, was sent, who admitted that the records relating to “Jaldhara Yojana” are to be maintained by him and the Block Development Officer. Before handing over the records to the Investigating Officer relating to Yojana Nos.111, 116, 94, 57, 114, 2, 5, 96, 86, 90, 36, 68, 69, 106, 10, 29, 76, 157, 34, 19, 6, 44, 112, 120, 11, 34 and 36 of 1996-97, in the records, the signature of the petitioner, Hridaya Chaudhary, was found cutting, which itself disclose that attempt was made to destroy the records. 3. On investigation, the Deputy Superintendent of Police-cum-Investigating Officer, Vigilance Investigation Bureau, Patna, submitted the chargesheet against the accused, Suryanath Prasad, Hridaya Chaudhary (petitioner), Hridya Narain Singh, Biseshwar Prasad, Ajay Kumar Verma, Arun Kumar, Sahjanand Singh, Manoj Kumar, Md. Samim, Sunil Kumar, Kishori Prasad and Bangali Prasad, under Sections 409, 419, 420, 467, 468, 471, 477-A and 120-B of the Indian Penal Code and Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 through Charesheet No.265 of 2007 dated 30.11.2007, whereas submitted final form against the accused, Mundrika Prasad and Rajendra Rai, due to their death and against the accused, Wahizad Raj, Md. Shamim, Mithilesh Prasad, Sahabuddin, Tarkeshwar Prasad, Permeshwar Prasad, Krishna Prasad, Shankar Dayal and Santosh Kumar, due to lack of evidence. On perusal of the case diary, the Special Judge, Vigilance-I, Patna, vide order dated 5.12.2007 took the cognizance of the offence under Sections 409, 419, 420, 467, 468, 471, 477-A and 120-B of the Indian Penal Code against the accused, Hridaya Chaudhary (petitioner), Hridya Narain Singh, Biseshwar Prasad, Ajay Kumar Verma, Arun Kumar, Sahjanand Singh, Manoj Kumar, Md. Samim, Sunil Kumar, Kishori Prasad and Bangali Prasad and under Sections 409, 419, 420, 467, 468, 471, 477-A and 120-B of the Indian Penal Code and Sections 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988, against the accused, Suryanath Prasad with further order to take the cognizance under Sections 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 against the accused Hridaya Chaudhary (petitioner), Hridya Narain Singh, Biseshwar Prasad, Ajay Kumar Verma, Arun Kumar, Sahjanand Singh, Manoj Kumar, Md. Samim, Sunil Kumar, Kishori Prasad and Bangali Prasad, after receiving the sanction order for prosecution. Samim, Sunil Kumar, Kishori Prasad and Bangali Prasad, after receiving the sanction order for prosecution. Later on, vide order dated 3.1.2008, on receiving the sanction order for prosecution from the Government in respect of the petitioner, the Special Judge, Vigilance-I, Patna, took the cognizance of the offence under Sections 13(2) read with Sections 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused-petitioner, Hridaya Chaudhary. 4. Learned counsel for the petitioner submits that during the pendency of the present application, the petitioner faced departmental proceeding and has been exonerated from the charges levelled against him, which has been communicated to him through Memo No.1256 dated 22.4.2010, Annexure-‘6’ to the supplementary affidavit, filed on behalf of the petitioner in this case. As such, the criminal proceeding initiated against the petitioner is not advisable and is bad in law. It has also been submitted that the cognizance of the offence under Sections 13(2) read with Sections 13(1)(d) of the Prevention of Corruption Act, 1988, has been taken against the petitioner on 3.1.2008 after about 11 years of the alleged occurrence, while the punishment for the said offence is only one year. Hence, the cognizance order is barred by Section 468(2) of the Code of Criminal Procedure. Learned Senior counsel appearing on behalf of the Vigilance Department submitted that departmental proceeding and criminal case regarding the occurrence are independent and exoneration in departmental proceeding could not be ground to drop the criminal proceeding. It is further submitted that offence under Sections 13(1)(d) is punishable upto 7 years, hence, bar of period of limitation as provided under Section 468 of the Code of Criminal Procedure will not be applicable. 5. The exenoration in departmental proceeding does not create the ground to not proceed with criminal case nor having been held guilty in departmental proceeding creates ground to proceed in criminal case. The criminal case could be proceeded on being satisfied by the Magistrate/court on perusal of the evidence collected by the investigating agency on investigation. The order impugned in this petition has been passed by the learned Special Judge, Vigilance-I, Patna, on perusal of the materials available in the case diary. Therefore, on the ground of exoneration of accused/petitioner in departmental proceeding, impugned order could not be said to be illegal. The order impugned in this petition has been passed by the learned Special Judge, Vigilance-I, Patna, on perusal of the materials available in the case diary. Therefore, on the ground of exoneration of accused/petitioner in departmental proceeding, impugned order could not be said to be illegal. The offence under Sections 13(1)(d), regarding the misconduct by a public servant, is punishable for imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also with fine. The provision of Section 468 of the Code of Criminal Procedure indicates about bar of taking cognizance of the offence punishable upto 3 years and not for the offence punishable more than 3 years, hence, Section 468(2) of the Code of Criminal Procedure, will not be attracted in this case. Moreover, in the case of Japani Sahoo Vs. Chandrashekhar Mohanti, AIR 2007 (SC) 2762 ), the Hon’ble Apex Court has held that for the purpose of commuting the period of limitation, regarding bar, to take cognizance of the offence, under Section 468 of the Code of Criminal Procedure, the date must be considered as the date of filing the complaint or initiating the criminal proceeding and not the date of taking the cognizance by the Magistrate or issuing the process by the court. As such, the limitation period, specified under Section 468 of the Code of Criminal Procedure, for taking cognizance of the offence is to be read with reference to the lodging of the complaint or F.I.R. and not the date when the cognizance is taken. 6. Due regard being had to the facts and the circumstances of the case, I find no merit in this application and it is, accordingly dismissed.