Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.12396 of 2011 ====================================================== Alim Jang Khan, son of late Md. Yunus Jung Kha, resident of Village- Juakher, P.S. Shahkund, District-Bhagalpur at present residing at Mohalla- Haroon Nagar, Sector-2, P.S. Phulwari Sharif, District- Patna. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Principal Secretary, Cabinet (Vigilance) Department, Patna, Suchna Bhawan, Patna 3. Director-General (Investigation Bureau), Bihar Patna-6, Kautilya Marg, Patna 4. Sri Ajit Kumar Roy, Deputy Superintendent of Police-cum-Investigating Officer, (Investigation Bureau) 6, Kautiliya Marg, Patna. 5. Sri Hari Shankar Singh, Inspector, Vigilance (Investigation Bureau), 6, Kautilya Marg, Patna. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Alim Jang Khan For the Vigilance : Mr. Arvind Kuamr For the State : Mr. Binod Kumar No.3, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 4 17-10-2012 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the Vigilance. This application has been filed for quashing the order dated 3.8.2007 passed in Vigilance P.S. Case No.7 of 1993 by the learned Special Judge, Vigilance, Patna by which he has taken cognizance against the petitioner under [STATUTE] and sections 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947 now changed 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, Patna High Court Cr.Misc. No.12396 of 2011 (4) dt.17-10-2012 2 1988. Learned counsel for the petitioner submits that though the petitioner has been dismissed from service in 2002, the court has taken cognizance vide order dated 3.8.2007, he is claiming protection of Section 197 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) as well as under Prevention of Corruption Act raising that the court could not have taken cognizance without proper sanction from the authorities and in support of his contention he has relied on the judgment of the Hon’ble Supreme Court Rakesh Kumar Mishra Vs. State of Bihar, reported in (2006)1 SCC 557 . He further submits that sanction is required even in case of a retired Government servant and also submitted that the police before filing the charge-sheet was required to place material before sanctioning authority and after approval of the sanctioning authority, the police could have filed charge-sheet. He further submits that the court below has taken cognizance under Prevention of Corruption Act, 1947 as well as Prevention of Corruption Act, 1988 and the offence had allegedly been committed before coming to Prevention of Corruption Act, 1988 this error in the order of cognizance Patna High Court Cr.Misc. No.12396 of 2011 (4) dt.17-10-2012 3 itself shows non-application of mind. It is an admitted fact that on the day of taking cognizance the petitioner was no longer in service and was not a public servant. The Hon’ble Supreme Court in the case of Rakesh Kumar Mishra Vs. State of Bihar & Others, reported in (2006)1 SCC 557. In paragraph 17 the Hon’ble Supreme Court has held that the accused facing prosecution for offences under the Old Act or new Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. But the position is different in cases where Section 197 of the Code has application. Here admittedly the petitioner was no longer in Government service on the day of taking cognizance and as such there was no need to get sanction under the Prevention of Corruption Act. So far sanction under Section 197 of the Code is concerned that can be considered at any stage of trial in view of the judgment of the Hon’ble Supreme court in the case of Prakash Singh Badal and another Vs. State of Punjab and others, reported in (2007)1 SCC 1 where the court has held that sanction under section 197 of the Code may be considered from stage to stage. Patna High Court Cr.Misc. No.12396 of 2011 (4) dt.17-10-2012 4 Learned counsel for the petitioner has argued that the court below has taken cognizance under Prevention of Corruption Act, 1947 as well as Prevention of Corruption Act 1988 and he has submitted that the alleged offence has been committed before coming to 1988 Act and as such the order of cognizance itself shows for non-application of mind The court should not proceed with the case under Prevention of Corruption Act, 1988 as offence allegedly was committed prior to 1988 Act and as such he is required to proceed with case under the Prevention of Corruption Act, 1947. So far factual aspect of the matter is concerned, it can not be seen at this stage rather it can only be seen at trial stage and for the purposes of prima facie case the court is not required to go deep into the matter and to meticulously examine the facts of the case. This Court does not find any error in the impugned order. It is accordingly dismissed. Vinay/- (Shivaji Pandey, J)

Applicable IPC Section: 471

Statute Text:
Section 471 of the Indian Penal Code. Using as genuine a forged document which is known to be forged. Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.