Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.18584 of 2010 ============================================== Dr. Bikas Chandra Kumar S/O Late Sadhu Sharan Yadav R/O Vill. Lakhawar, P.S.-Ghosi, Dist.- Jehanabad, the then Deputy Director (Computer), Department of Science & Technology, Govt.of Bihar, Patna and Residing at above the Market of Mr. Pramod Kumar Yadav,Mohanpur,Punaichak,Patna-23,P.S.- Shastri Nagar, Dist.Patna. .... .... Petitioner Versus 1. The State of Bihar through Vigilance Department, Patna, Bihar. .... .... Opposite Party ============================================== Appearance : For the Petitioner: Mr. S.N.P.Sinha, Sr.Advocate Mr.Ratan Kumar, Advocate For the Opposite Party: Mr Arbind Kumar, Advocate ============================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN CAV ORDER (Per: HONOURABLE MR. JUSTICE VIKASH JAIN.) 14 07.02.2012 1. The present petition has been filed for quashing of the order dated 03.05.2010 passed in Special Case No. 42/2007 arising out of Vigilance P.S.Case No. 64/2007 whereby the learned Court refused to discharge the petitioner for the offences under Section 7,8,13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 and [STATUTE] , 1860. 2. The documents on record reveal that a case was Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 2/10 instituted on the basis of certain allegations made by the complainant Md. Saleh before the Officer-in-charge of Vigilance P.S. It has been stated that the complainant had booked the airconditioned lobby (auditorium) of the Planetarium, Patna for three days namely 26.5.2007, 27.5.2007 and 28.5.2007 for Rs. 90,000/- for the purpose of holding Education and Career Fair 2007. It has been stated that the co-accused, Ramesh Kumar, was deputed by the petitioner as Incharge for this purpose. It is alleged that a demand of Rs.50,000/- was made at the instance of the petitioner for allowing booking for additional two days, but instead of granting receipt for the same on request being made, the petitioner had the airconditioner switched off. It has further been alleged that at the time of removal of the exhibition materials/articles a further demand of Rs.25,000/- was made. These allegations were verified and found correct in terms of the report dated 30.5.2007 submitted by the Deputy Superintendent of Police. Accordingly, a raiding team was constituted and the co-accused Ramesh Kumar was caught red handed while accepting the bribe money of Rs. 25,000/- which amount was also recovered from him. The hands of Ramesh Kumar were dipped in chemical Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 3/10 solution and the solution turned pink as also when his T- shirt was so tested. That the further facts on record are that a charge-sheet was filed on 24.7.2007 against Ramesh Kumar while investigation against others including the petitioner were kept pending. Thereafter, a supplementary charge sheet came to be filed against the petitioner on the basis of which cognizance was also taken against the petitioner under [STATUTE] by order dated 1.5.2008 by the learned Special Judge, Vigilance-I, Patna.(Annexure-18). It was, however, noted that the requisite sanction for prosecution being obtained and was likely to be submitted soon, in view of which the cognizance taken was limited to [STATUTE] while cognizance for the offences under the Prevention of Corruption Act was deferred until receipt of the sanction order. 3. It transpires that a sanction order dated 19.5.2008 was then issued by the Law Department (Annexure-19) stating therein that the documents contained in File No.Vi. Pra (1) Aa-08/07 of the Science and Technology Department were perused and satisfaction was reached that a prima facie case was made out against the petitioner and accordingly sanction Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 4/10 was accorded for prosecution of the petitioner in relation to offences under [STATUTE] and Sections 7/13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. 4. On the strength of such sanction order the learned Special Judge, Vigilance-I, Patna passed an order dated 26.5.2008 taking cognizance under Sections 7, 8 and 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act against the petitioner. 5. A petition for discharge filed under Section 227 Cr. P.C. was however rejected by the learned Special Judge, Vigilance (Trap), Patna refusing to discharge the petitioner in respect of the offences for the reasons stated in the order dated 03.05.2010, which is the subject matter of challenge in the present petition. 6. Learned Senior Counsel for the petitioner Mr. S. N. P. Sinha has raised several contentions to support his stand that the prosecution against the petitioner is wholly illegal, unauthorized and unsustainable in law. The primary attack is on the footing that the cognizance having been taken in absence of any prior sanction order having been issued completely vitiated the proceeding as being in the teeth of Patna High Court Cr.Misc. No.18584 of 2010 (14) dt. 07.02.2012 5/10 Section 197 Cr. P. C. as well as Section 19 of the Prevention of Corruption Act. In his submission, the sanction order has been issued by the Law Department, being not the competent authority for the purpose. If any sanction could be issued, it had to be issued by the Science and Technology Department, which alone had the power to remove the petitioner from his office. 7. Even otherwise, the sanction as issued has been assailed on the ground of non-application of mind in that the same is absolutely silent with regard to which documents exactly were perused and appraised and what were the materials collected therefrom to support a prima facie case being made out against the petitioner so as to justify sanctioning his prosecution. There is

Applicable IPC Section: 409

Statute Text:
Section 409 of the Indian Penal Code. Criminal breach of trust by public servant or by banker, merchant or agent, etc. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.