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2012 DIGILAW 43 (PAT)

Nathuni Sah v. State of Bihar

2012-01-10

VIKASH JAIN

body2012
ORDER The present writ petition has been filed, inter alia, for quashing the proceedings of Special Case No. 23 of 2009 arising out of Vigilance P.S. Case No. 61 of 2009 dated 29.5.2009 as also the order taking cognizance dated 8.4.2010 by the Special Judge, Vigilance-II, Patna as being based on an invalid report of the Forensic Science Laboratory (FSL) as well as on an invalid sanction order. 2. A written complaint was filed by one Devendra Kumar Singh, Respondent no.9 alleging therein that the petitioner who was posted as Electrical Executive Engineer (Rural), Bhagalpur and his accountant were demanding 4% as bribe for the purpose of forwarding his bill for Rs.3,20,000/-. It is further alleged that when a constable of the Vigilance Investigation Bureau, Patna along with the complainant met the accountant they were asked to pay commission @ 2% each to him and to the petitioner, whereupon a raiding party was constituted. The complainant handed over 24 currency notes of Rs.500/- each for being paid as bribe money to the petitioner and to the accountant. Upon payment being made and signal being given, the raiding party apprehended the accountant as well as the petitioner. Even though no money was recovered it is alleged that the petitioner handed over the bribe money to his son, who in turn handed it over to the petitioner’s wife. The hands of both the accused persons were dipped in Sodium Carbonate solution which became pink by reason of the chemical which had been applied on the currency notes, on the basis of which it was inferred that the petitioner had accepted the bribe money. The lady members could not be searched owing to absence of lady constables and in the result the money was not recovered. 3. The aforesaid facts led to Vigilance P.S. Case no. 61 of 2009 being registered and investigation was accordingly taken up. 4. It is also stated that within a few days of the alleged occurrence the petitioner superannuated from service. 5. Learned counsel for the petitioner has, in essence, raised a two pronged submission as follows : (a) The prosecution has been founded upon an invalid sanction order from an incompetent officer of the Bihar State Electricity Board, Patna and (b) An invalid F.S.L. report has been obtained from an incompetent officer Mr. 5. Learned counsel for the petitioner has, in essence, raised a two pronged submission as follows : (a) The prosecution has been founded upon an invalid sanction order from an incompetent officer of the Bihar State Electricity Board, Patna and (b) An invalid F.S.L. report has been obtained from an incompetent officer Mr. Suresh Paswan of the Department of Poison in F.S.L, Patna for examination of the Sodium Carbonate solution. 6. Learned counsel for the petitioner has adverted to Annexure-5/1 of this writ petition containing Standing Order No. 1/Misc.9151/84-646/EB dated 23.4.1984 in which inter alia it was decided in pursuance of Board’s Resolution No.5572 dated 14.4.1984 to delegate to the Member (Administration) the power of the Board as appointing authority to sanction criminal prosecution against officers upto Electrical Executive Engineer and equivalent ranks. 7. Learned counsel for the petitioner questions the validity of such Standing Order and submits that the Board has no authority to delegate its power to sanction criminal prosecution in favour of any one Member as done. He relies on the decision rendered in 1980 Cr.LJ 243 (State of Gujarat Vs. Shyam Santdas Ambani) in support of his proposition. He also refers to an order dated 3.3.2011 passed by this Court in Cr.Misc.No.44151 of 2008 (Shankar Prasad Vs. State of Bihar) where sanction was accorded by the Law Department rather than by the Social Welfare Department being the parent Department. 8. On the issue of validity of the FSL report it has been submitted that Mr.Suresh Paswan, who has issued the FSL report in the capacity of Technical Officer was incompetent in this regard being a person connected with the Department of Poison. Learned Counsel further invites attention to two orders of this Court one passed on 28.01.2011 passed in CWJC No.16020 of 2009 and the other dated 04.07.2011 passed in CWJC No.2450 of 2008 as contained in Annexures 6 and 6/1 respectively, wherein it has been observed that admittedly wrong reports or even fake reports professed to be emanating from Forensic Science Laboratory, Patna have seen the light of the day. He therefore, contends that the FSL report under reference is incapable of being relied upon. 9. Learned counsel for the Vigilance Department on the other hand appears and submits that the criminal proceedings ought not to be quashed against the petitioner. He therefore, contends that the FSL report under reference is incapable of being relied upon. 9. Learned counsel for the Vigilance Department on the other hand appears and submits that the criminal proceedings ought not to be quashed against the petitioner. He files a copy of the counter affidavit said to have been sworn and filed before this Court earlier and a copy of which had already been served on the petitioner. 10. On the question of sanction of criminal prosecution he points out that whether or not the Board has power to delegate its authority to sanction criminal prosecution as contained in Annexure 5/1 aforesaid, the matter is wholly irrelevant. He points out that the sanction order in the instant case (Annexure-3 to the writ petition) has been passed by the order of the Board itself and not by any one person exercising power by reason of delegation by the Board. The sanction for criminal prosecution cannot thus be faulted. 11. With regard to the validity of the FSL report it is submitted that the same is a matter of appraisal of evidence which can more appropriately be decided in course of trial rather than being gone into at this stage. 12. The respondent nos. 2 to 5 have also appeared and a counter affidavit has been filed on their behalf. 13. After hearing the learned counsels appearing for the parties and upon consideration of the materials on record this Court is of the view that relief cannot be granted to the petitioner as prayed for. 14. On a perusal of the sanction order vide memo no.72 dated 21.01.2010 (Annexure-3) it is apparent that power has been exercised by the Board itself while according sanction for prosecution against the petitioner. It has specifically been stated as follows: “the Bihar State Electricity Board in exercise of power conferred u/s 197 of Cr.P.C. and u/s 19 of P.C. Act, 1988 is hereby according the sanction of prosecution against Sri Nathuni Sah, Elecl. Executive Engineer (Retd.) under Section 7/13(2) read with Section 13(1) (d) of P.C. Act,1988 and Section 201 of I.P.C. and accordingly the same is being communicated. By order of the Bihar State Electricity Board, Sd/- A.K.Sinha, Joint Secretary”. 15. Executive Engineer (Retd.) under Section 7/13(2) read with Section 13(1) (d) of P.C. Act,1988 and Section 201 of I.P.C. and accordingly the same is being communicated. By order of the Bihar State Electricity Board, Sd/- A.K.Sinha, Joint Secretary”. 15. The decision relied upon by the learned Counsel for the petitioner are clearly distinguishable on facts and do not aid his submission in the present context being not a situation where the authority to accord sanction for prosecution has been delegated by the Board at all. 16. In this view of the matter, the contention of the petitioner on this point cannot be accepted and is accordingly hereby rejected. 17. On the other issue relating to validity of the F.S.L. report learned counsel for the Vigilance Department is right in his submission that the validity or otherwise of the FSL report is a matter of appraisal of facts and evidence which can best be looked into by the learned Trial Court. No interference is called for at this stage by this Court exercising powers under its writ jurisdiction. 18. In the result, the writ petition stands dismissed. There will be no order as to costs. ?