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2012 DIGILAW 839 (PAT)

Uma Shankar Prasad v. State of Bihar

2012-06-20

HEMANT KUMAR SRIVASTAVA

body2012
ORDER Both the above petitions were heard analogously and a common order is being passed in both the above stated petitions. 2. The above stated petitions have been filed against the orders passed in Special case no 30/2006 arising out of Vigilance P.S. case no. 89/2006. 3. Cr. Misc. no. 1146/2012 has been filed against the order dated 1.10.2007 passed by learned Special Judge, Vigilance II, Patna in the above stated Special case no 30/2006 arising out of Vigilance P.S. case no. 89/2006 by which and whereunder learned Special Judge, Vigilance II, Patna took cognizance for the offence punishable under section 13(2) read with section 13(i) (d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘Act’). 4. Cr. Misc. no. 1746/2012 has been filed against the order dated 23.11.2011 passed by learned Special Judge, Vigilance II, Patna in the above stated Special case no 30/2006 arising out of Vigilance P.S. case no. 89/2006 by which and whereunder he rejected the discharge petition dated 16.11.2011 filed under section 239 of the Cr. P. C. 5. The brief fact, which lies to file both the above stated petitions, is that Vigilance P. S. case no.89/2006 was registered against Sri Asish Kumar Sinha, Assistant Engineer, Rural Development department, Sri B.K. Nag, Assistant Engineer, Rural Development department, Sri Kedar Prasad Suman, Junior Engineer, Rural Development department and some unknown persons for the offences punishable under sections 409, 420, 465, 467, 468, 471, 477(A), 379, 120B of the Indian Penal Code and section 13(2) read with section 13(i) (d) of the Prevention of Corruption Act, 1988 on the allegation that they along with some unknown persons embezzled government fund to the tune of Rs 16, 68,185/-, which was meant for construction of link roads, by making illegal mining and false entries in measurement book. 6. The aforesaid case was investigated and after investigation, charge sheet was submitted against the petitioner and several others persons for the above stated offences which is evident from perusal of annexure 2 to these petitions. 7. Annexure 3/1 to these petitions reveals that learned Special Judge, Vigilance II, Patna took cognizance for the offences punishable under sections 409, 420, 465, 467, 468, 471, 477(A), 379, 120B of the Indian Penal Code vide order dated 11.5.2007 but kept the matter pending for taking cognizance of the provision of Prevention of Corruption Act in want of sanction order. Annexure 3/1 to these petitions reveals that learned Special Judge, Vigilance II, Patna took cognizance for the offences punishable under sections 409, 420, 465, 467, 468, 471, 477(A), 379, 120B of the Indian Penal Code vide order dated 11.5.2007 but kept the matter pending for taking cognizance of the provision of Prevention of Corruption Act in want of sanction order. Later on, sanction order for prosecuting the petitioner for the offence of the Act was filed before the learned Special Judge, Vigilance II, Patna who vide his order dated 1.10.2007 took the cognizance for the offence punishable under section 13(2) read with section 13(i) (d) of the Act against the petitioner against which Cr. Misc. no. 1146/2012 has been filed on behalf of the petitioner. 8. It would further appear that a petition under section 239 of the Cr.P.C was filed on behalf of the petitioner on 16.11.2011 which was rejected by learned Special Judge, Vigilance II, Patna vide order dated 23.11.2011 after considering the materials available on the case diary against the petitioner. The aforesaid impugned order dated 23.11.2011 has been challenged by the petitioner in Cr. Misc. no. 1746/2012. 9. Learned counsel appearing for the petitioner challenged the validity of order dated 1.10.2007 on the ground that at the time of taking cognizance of the offence, there was no valid sanction order and in absence of valid sanction order, learned Special Judge, Vigilance II, Patna had got no power to take cognizance in view of sanction 19(1) of the Act. It was contended on behalf of the petitioner that admittedly, at the time of taking cognizance for the offences under the Indian Penal Code, there was no sanction order for taking cognizance for the offence punishable under the Act and learned court below took cognizance only for the offences of the Indian Penal Code but later on, investigating agency filed sanction order said to be issued by the Law department and on the basis of the aforesaid sanction order, learned Special Judge, Vigilance II, Patna passed the impugned order dated 1.10.2007 which is not in accordance with law. It is further contended by him that Law department of Bihar government had got no jurisdiction to grant sanction for prosecution against the petitioner because Law department of State of Bihar had got no power to remove the petitioner from his post. It is further contended by him that Law department of Bihar government had got no jurisdiction to grant sanction for prosecution against the petitioner because Law department of State of Bihar had got no power to remove the petitioner from his post. It is further contended by him that petitioner was initially appointed in Minor Irrigation department which is evident from annexure 6/1 to these petitions and later on, his services were handed over to Rural Development department. So, only Minor Irrigation department had got power to remove the petitioner from his service and moreover, no request for starting prosecution against the petitioner was made by Minor Irrigation department that is the parents department of the petitioner and request for initiating prosecution has been granted by Law department of Bihar government on the basis of file initiated by the Rural Development department which is evident from perusal of annexure 4 to these petitions. Learned counsel for the petitioner drew my attention towards annexure 9/1 to petition of Cr. Misc. no. 1146/2012 which is photo stat copy of order dated 3.3.2011 passed by another bench of this court in Cr. Misc. no. 44151/2008 and submitted that another bench of this court has already held in the above stated unreported decision of Shankar Prasad vs. State of Bihar through the department of Cabinet Vigilance that Law department of Bihar government had got no power to grant sanction for prosecution and order of sanction for prosecution granted by Law department of Bihar government is without jurisdiction and on the basis of the above stated sanction, no prosecution can be launched. 10. Learned counsel for the petitioner submitted that the above stated unreported decision of another bench of this court is based on the decision of State of Goa Vs. Babu Thomas reported in 2005(8) Supreme court cases 130, State of Karnataka through CBI Vs. C. Nagarajaswamy reported in 2005(8) Supreme court cases 370, State of Inspector of Police, Visakhapatnam Vs. Surya Sankaram Karri reported in 2006(7) Supreme court cases 172 and P.A. Mohandas Vs. State of Kerela reported in (2003) 9 Supreme court cases 504. 11. He also drew my attention towards annexure 9 series to the petition of Cr. Misc. no. 1146/2012 and submitted that in several cases, another bench of this court quashed cognizance orders in absence of valid sanction order. 12. State of Kerela reported in (2003) 9 Supreme court cases 504. 11. He also drew my attention towards annexure 9 series to the petition of Cr. Misc. no. 1146/2012 and submitted that in several cases, another bench of this court quashed cognizance orders in absence of valid sanction order. 12. It was further contended by him that admittedly, when the charge sheet was filed against the petitioner, there was no sanction order against the petitioner and learned Special Judge, Vigilance II, Patna took cognizance for the offences punishable only under the provisions of the Indian Penal Code but later on, investigating agency filed sanction order for prosecution granted by Law department of Bihar government and on the basis of the aforesaid sanction order, learned Special Judge, Vigilance II, Patna took cognizance for the offences punishable under the Act. It was further contended by him that learned Special Judge, Vigilance II, Patna had got no power to take cognizance twice in one case and he was not authorized to take cognizance on the basis of fractured charge sheet. 13. It was contended by learned counsel for the petitioner that admittedly, Special court was constituted to try the offences registered under the provisions of the Act and, therefore, the learned Special Judge, Vigilance II, Patna had got no jurisdiction to consider fractured charge sheet and took cognizance only for the offences punishable for the offence under the Indian Penal Code and, therefore, learned Special Judge, Vigilance II, Patna committed an error in taking cognizance not only for the offences punishable under the provisions of the Indian Penal Code but also under the provisions of the Act. 14. It was further contended by him that in the present case, matter has been investigated by the Police Inspector which is a clear violence of section 17 of the Act and, therefore, on the basis of the aforesaid illegality, the prosecution against the petitioner can not sustain. 15. It was further contended by him that admittedly, one Bijay Kumar Singh investigated the case and it is also an admitted position that the aforesaid Investigating officer had participated in preliminary enquiry and, therefore, the aforesaid Investigating officer is not an independent person and the aforesaid Bijay Kumar Singh being informant had no jurisdiction to conduct the investigation. 15. It was further contended by him that admittedly, one Bijay Kumar Singh investigated the case and it is also an admitted position that the aforesaid Investigating officer had participated in preliminary enquiry and, therefore, the aforesaid Investigating officer is not an independent person and the aforesaid Bijay Kumar Singh being informant had no jurisdiction to conduct the investigation. It was further contended by him that admittedly, petitioner granted only technical sanction in respect of schemes in question and passed only two vouchers and, therefore, on the basis of the above stated fact also, the prosecution against the petitioner can not sustain but learned Special Judge, Vigilance II, Patna not only took cognizance against the petitioner but also refused to discharge him from the above stated proceeding. 16. It was further contended by him that even if the prosecution case assumed to be true, then also, only section 5 of the Bihar Prevention of Specified Corruption Act, 1983 is made out against the petitioner and admittedly, no cognizance on the above stated offence has been taken against the petitioner. It was further contended by him that Government of Bihar made certain rules to prosecute its officials and according to that rules a preliminary enquiry is needed before prosecution of any official of the State. 17. It was further contended by him that sanction for the prosecution granted against the petitioner is also bad in law because the aforesaid sanction was granted in routine manner without perusing the materials as well as without application of mind. So, on this ground also, the prosecution of the petitioner can not stand in the eye of law. 18. On the basis of the aforesaid submissions, learned counsel for the petitioner sought quashing of the prosecution of the petitioner in the above stated Special case no. 30/2006. 19. On the other hand, learned counsel for the Vigilance submitted that the order dated 3.3.2011 passed by another bench of this court in Dinesh Prasad Vs. State of Bihar through Commissioner (Cabinet Vigilance), Bihar reported in 2011 (3) PLJR 566 has held that even in want of legal sanction the prosecution of a public servant can go ahead unless the court concludes that failure of justice has occasioned thereby. 20. State of Bihar through Commissioner (Cabinet Vigilance), Bihar reported in 2011 (3) PLJR 566 has held that even in want of legal sanction the prosecution of a public servant can go ahead unless the court concludes that failure of justice has occasioned thereby. 20. It was further contended by him that the State of Bihar has already authorized all the officers having the rank of Inspector of police to investigate the cases of Vigilance. So, even if the present case has been investigated by Inspector of police, there is no illegality. 21. It was further contended by him that in course of investigation sufficient materials were collected against the petitioner to prosecute him and, therefore, learned Special Judge, Vigilance II, Patna has rightly took cognizance as well as refused to discharge the petitioner from the aforesaid proceeding. 22. Having heard the rival contentions of both the parties, I have gone through the record as well as decisions citied on behalf of the parties. 23. It is an admitted position that at the relevant time, petitioner was working as an Executive Engineer in Rural development department and being Executive Engineer he granted technical sanction and passed certain bills. 24. It would appear from the record that one Sri Autosh of village Ghost under the jurisdiction of Piri Bazar police station district Lakhisarai gave written report to Vigilance department making certain allegations in respect of certain schemes of the government and on the basis of the aforesaid complaint petition, an enquiry was conducted by one Dy. S. P as well as one Bijay Kumar Singh, Inspector of Police and after completion of enquiry, they submitted their report on 6.12.2006 and after that Vigilance P.S. Case no. 89/2006 was registered against one Ashish Kumar Sinha and others. 25. Petitioner has challenged his prosecution on the ground of alleged illegal sanction order as well as several other grounds. So, it would be proper to refer section 19 of the Prevention of Corruption Act, 1988 which runs as follows:– “19. 89/2006 was registered against one Ashish Kumar Sinha and others. 25. Petitioner has challenged his prosecution on the ground of alleged illegal sanction order as well as several other grounds. So, it would be proper to refer section 19 of the Prevention of Corruption Act, 1988 which runs as follows:– “19. Previous sanction necessary for prosecution.–(1) No court shall take cognizance of an offence punishable under sections 7,10,11,13 and 15 alleged to have been committed by a public servant, except with the previous sanction,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removal from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of the State and is not removal from his office save by or with the sanction of the State Government, of that Government; (c) in case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of absence of, or any error omission or irregularity, in sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub- section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.–For the purposes of this section, - (a) an error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.” 26. From perusal of the aforesaid provision, it is clear that for taking cognizance of offences punishable under sections 7,10,11,13 and 15 alleged to have been committed by a government servant, there must be a previous sanction for prosecution and in case of employee of Union Government, who can not be removed from service save and except with the prior sanction of the Central Government, the sanctioning authority would be the Central government and similarly, in case of employee of the State government, who can not be removed from his office save and except with the prior sanction of the State Government, the sanctioning authority would be the State government, and in the case of any other person, the competent authority to grant sanction is authority who has got power to remove him from his office. Furthermore, the aforesaid provision makes it clear that no fine, sentence or order passed by the Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, failure of justice has, in fact, occasioned thereby. Therefore, it is clear that before reversing or altering the order of lower court the higher court must satisfy that a failure of justice has occasioned on account of absence of any sanction order or any error, omission or irregularity in sanction order. Therefore, it is clear that before reversing or altering the order of lower court the higher court must satisfy that a failure of justice has occasioned on account of absence of any sanction order or any error, omission or irregularity in sanction order. Furthermore, sub-section (4) of section 19 of the Act says that to determine failure of justice in absence of sanction order or any error, omission or irregularity in such sanction order, the aforesaid grievance raised at any early stage in the proceeding and the explanation of the aforesaid sub-section (4) of section 19 of the Act says that an error includes competency of the authority to grant sanction. 27. Admittedly, sub- sections 3 and 4 of section 19 of the Act were added in new Act, 1988 and before introduction of the aforesaid provision, there was no such provision in old Prevention of Corruption Act, 1947 and in sub-sections (3) and (4) of section 19 of the Act, 1988, the emphasis has been given on the word “failure of justice”. Therefore, it is clear that after introduction of sub-sections (3) and (4) of section 19 of the Act, sanction order for prosecution cannot be set aside only on the ground of absence, error, omission or irregularity unless the court comes to a definite finding that a failure of justice has been occasioned on account of absence of valid sanction order or error, omission or irregularity in sanction order. 28. In Dinesh Prasad Vs. State of Bihar through Commissioner (Cabinet Vigilance), Bihar reported in 2011 (3) PLJR 566 , a detailed discussion has been made by another bench of this court on the above stated point after distinguishing the case of State of Goa Vs. Babu Thomas and furthermore, the aforesaid decision is based on a decision of Apex court of this country reported in 2011(4) Supreme court cases 402 (Ashok Tshering Bhutia Vs. State of Sikkim) in which it was held by the Apex court of this country that mere omission/error or irregularity in sanction is not considered to be fatal unless it has resulted in failure of justice. 29. Petitioner has challenged the present sanction order on the ground of in-competency of law department of State of Bihar to grant sanction against the petitioner. The explanation of section 19 (4) says that the competency of the authority to grant sanction comes under the definition of error. 29. Petitioner has challenged the present sanction order on the ground of in-competency of law department of State of Bihar to grant sanction against the petitioner. The explanation of section 19 (4) says that the competency of the authority to grant sanction comes under the definition of error. So, even if an incompetent authority grants sanction order, then also, the aforesaid sanction order cannot be set aside unless the court comes to the conclusion that there was a failure of justice on account of grant of the aforesaid sanction order. 30. The decision of Ashok Tshering Bhutia Vs. State of Sikkim (supra) has not been considered by the another bench of this court in case of Shankar Prasad (supra) while passing order dated 3.3.2011 in Cr. Misc. no. 44151/2008 and furthermore, the decision of this court reported in Dinesh Singh (supra) was also not considered by another bench of this court at the time of passing order in the above stated Shankar Prasad case. So, in my view, the aforesaid decision of Shankar Prasad case does not come in the way of this court to hold that even if an incompetent authority has granted sanction order for prosecution, then also, the aforesaid sanction order cannot be set aside unless only failure of justice has occasioned thereby. 31. Petitioner has also challenged the impugned order on the ground that learned Special Judge, Vigilance II, Patna has taken cognizance on the basis of fractured charge sheet which is not in accordance with law but I am not at all convinced with the aforesaid submission because admittedly, when the charge sheet was filed, there was no sanction order for prosecution of the petitioner for the offence punishable under the Act and the learned Special Judge, Vigilance II, Patna took cognizance only for the offences punishable under the provision of the Indian Penal Code and in my view, the learned Special Judge, Vigilance II, Patna rightly took the cognizance only for the offences punishable under the provisions of Prevention of Indian Penal Code and kept the matter pending for production of sanction order for prosecution of the offence punishable under the Act and later on, when the sanction order was produced before him, he rightly took cognizance for the offence punishable under the provision of the Act and, therefore, there is no illegality, irregularity or impropriety in the impugned order. 32. 32. It has also been argued on behalf of the petitioner that the I.O. Bijay Kumar Singh, who was Inspector of Police at the relevant time, had got no jurisdiction to investigate the matter as he was not only officer of below the rank of Dy.S.P but also he was informant of the case. I am again unable to accept the aforesaid contention because no prosecution can be quashed on account of irregular investigation. Moreover, learned counsel for the Vigilance has pointed out that the State Government has already authorized all the officers having the rank of Inspector of police to investigate the cases of vigilance. 33. So far as fact of the case is concerned, it is not in dispute that petitioner was working as Assistant Engineer at the relevant time and he not only sanctioned technical schemes but also passed several bills. The learned Special Judge, Vigilance II, Patna has referred several paragraphs of the case diary showing involvement of the petitioner in the present case while rejecting discharge petition of the petitioner. 34. As I have already stated above that even an illegal sanction order cannot be set aside unless it is proved that there was failure of justice. Now, question arose as to whether any failure of justice has occasioned in this case or not. To adjudicate the aforesaid point, it is necessary to go through the fact of the case and without deeper investigation, it is not possible to say as to whether any failure of justice has been occasioned or not and in my view, deeper investigation is only possible in course of trial and therefore, I am of the opinion that it is not a proper stage to say that failure of justice has been occasioned due to so-called illegal sanction order. 35. On the basis of the aforesaid discussions, I feel no hesitation to dismiss both the above stated petitions on admission stage itself and accordingly, both the above stated petitions are being dismissed on admission stage itself.