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Jharkhand High Court · body

2012 DIGILAW 327 (JHR)

Anwar Prasad Jaiswal v. State of Bihar

2012-03-02

PRASHANT KUMAR

body2012
JUDGMENT Prashant Kumar, J. This application has been filed for quashing entire criminal proceeding in connection with Hazaribagh Sadar P.S. case no.379/99 corresponding to T.R.No. 258/99 under section 409/419/420 and 120B of the I.P.C. pending in the court of S.D.J.M. Hazaribagh. 2. It is alleged that petitioner no.2 namely, Shamsher Prasad Singh purchased clothes from M/s S.P.Gupta and Company, Ranchi in violation of various circulars issued by State Government and guidelines issued by the competent authority. It is further alleged that petitioner no.1, being Deputy Director of Welfare Department had approved aforesaid acts and omissions of petitioner no.2 and thereby cause loss to the State exchequer. 3. It appears that on the aforesaid allegation Hazaribagh P.S. case no. 379/99 instituted and police after investigation submitted charge- sheet under section 409/419/420 and 120B of the I.P.C. It appears that learned C.J.M. Hazaribagh vide order dated 30.05.1995 took cognizance of the offences and transferred the case in the file of S.D.J.M. Hazaribagh for trial. 4. Mr. Delip Jerath, learned counsel for the petitioners submits that it is an admitted position that petitioners are gazetted officers of Welfare Department and they can be removed by the State Government. It is submitted that the prosecuting agency had not obtained prior sanction of the State Government as contemplated under section 197 of the Cr. P.C. before prosecuting the petitioners. Therefore, order of cognizance is bad. Therefore, entire subsequent proceeding as against petitioners is also liable to be quashed. 5. Having heard the submissions, I have gone through the lower court records as also case diary of the case. 6. From perusal of Col. no.7 of the charge-sheet, I find that before submission of charge, the Investigating officer has not obtained sanction of the State Government for prosecution of petitioners, who were gazetted officer of the State Government. From perusal of case diary, I find that Investigating Officer had not obtained sanction. Thus, it is apparent that learned C.J.M. took cognizance against petitioner without previous sanction of the State Government. Section 197(1) of the Code of Criminal Procedure runs as follows : 197. Prosecution of Judges and public servants. From perusal of case diary, I find that Investigating Officer had not obtained sanction. Thus, it is apparent that learned C.J.M. took cognizance against petitioner without previous sanction of the State Government. Section 197(1) of the Code of Criminal Procedure runs as follows : 197. Prosecution of Judges and public servants. - 1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty no court shall take cognizance of such offence except with the previous sanction- (a) In the case of it person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: [Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted. 7. From plain reading of aforesaid provision, it is clear that the section put an embargo on the power of court of taking cognizance against officers who are removable by the State Government without previous sanction of the State Government. Admittedly, allegation against them is that they purchased clothes in their official capacity in violation of government circulars and guidelines. Under the said circumstance, learned C.J.M. is prevented from taking cognizance in absence of sanction order issued by the State Government. Thus, I find that order taking cognizance is bas in law. Accordingly, I find that entire subsequent proceeding against petitioner in connection with Hazaribagh Sadar P.S. case no.379/99 corresponding to T.R.No.258/99 pending in the court of S.D.J.M. Hazaribagh is bad. 8. Hence, entire proceeding against the petitioner in connection with Hazaribagh Sadar P.S. case no. Thus, I find that order taking cognizance is bas in law. Accordingly, I find that entire subsequent proceeding against petitioner in connection with Hazaribagh Sadar P.S. case no.379/99 corresponding to T.R.No.258/99 pending in the court of S.D.J.M. Hazaribagh is bad. 8. Hence, entire proceeding against the petitioner in connection with Hazaribagh Sadar P.S. case no. 379/99 corresponding to T.R.No.258/99 pending in the court of S.D.J.M. Hazaribagh is hereby quashed.