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2012 DIGILAW 557 (PAT)

Kallu v. State of Bihar

2012-04-03

RAKESH KUMAR

body2012
ORAL ORDER Heard Shri D.N. Tiwary, learned counsel for the petitioner and Shri Hirday Prasad Singh, learned Additional Public Prosecutor. 2. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of entire proceeding arising out of Kadamkuan P.S. Case No.954 of 2004 including order of cognizance dated 2.1.2008 passed by learned Chief Judicial Magistrate, Patna under Section 49 of the Bihar Finance Act and Section 420 of the Indian Penal Code. 3. In this case, a supplementary affidavit has been filed on behalf of the petitioner and order sheet of the court below has been brought on record. It has been indicated that till date charges have not been framed. 4. Short fact of the case is that the petitioner, who was a driver of Truck bearing Registration No.UP-78AN5665, while moving the truck was intercepted by Sub Inspector of Police and on allegation of commission of offence under Section 49 of the Bihar Finance Act as well as Section 420 of the Indian Penal Code, F.I.R. was lodged vide Kadamkuan P.S. Case No.954 of 2004 and he was also arrested. While arresting the petitioner, the Investigating Officer has also seized the articles loaded on the truck. However, at subsequent stage, by order dated 2.2.2005, the learned Chief Judicial Magistrate, Patna directed for release of the seized goods in favour of one Rakesh Sharma, resident of Morena (M.P.), representative of M/S Awadhesh Trade Company, Morena. The plea was taken by the petitioner that he was carrying the goods on the basis of valid documents and the goods were to be transported from M.P. to Silliguri. However, after conducting investigation, police submitted charge sheet and thereafter, the learned Magistrate, by the impugned order, has taken cognizance of offence under Section 420 of the Indian Penal Code as well as Section 49 of the Bihar Finance Act. 5. Learned counsel for the petitioner submits that order of cognizance for offence under Section 49 of the Bihar Finance Act without sanction issued by the competent authority under Section 49(5) of the Bihar Finance Act is bad in law and fit to be set aside. In support of his argument, he has referred to an order passed by this Court reported in 2011(4)PLJR 193 (Naresh Kumar Vrs. In support of his argument, he has referred to an order passed by this Court reported in 2011(4)PLJR 193 (Naresh Kumar Vrs. State of Bihar and another), wherein similar question was raised and this Court held that in absence of sanction accorded by the Commissioner under Section 49(5) of the Bihar Finance Act, order of cognizance under the provisions of Section 49 of the Bihar Finance Act was not valid. 6. Learned Additional Public Prosecutor appearing on behalf of the State does not dispute the proposition of law. 7. In view of the fact and circumstances, particularly the law settled by this Court, there is no option but to set aside the order of cognizance as well as entire proceeding in Kadamkuan P.S. Case No.954 of 2004 pending in the court of Judicial Magistrate, Ist Class, Patna. 8. The petition stands allowed.