IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35997 of 2002 KISHORI MOHAN SINGH, son of late Rajpati Singh, resident of Mohalla, L-68, Housing Board Colony, Police Station, Rampur, District- Gaya… Petitioner Versus STATE OF BIHAR… Opposite Party. ----------- For the petitioner: Mr. Ashwani Kumar Singh, Senior Advocate Mr. Pankaj Kumar Singh, Advocate For the State: Mr. Pramod Kumar Pandey, A.P.P. -------- 5. 19.8.2010 Heard learned Senior Counsel for the petitioner and learned A.P.P. for the State. The petitioner seeks quashing of an order refusing to discharge him, which was passed on 16.7.2002 by Shri M.K. Tiwary, Judicial Magistrate Ist Class, Danapur. The petitioner’s name did not appear in the F.I.R. but because he had audited the accounts of the Co-operative Society in respect of whose accounts the F.I.R. of Danapur P.S. Case No.273 of 1992 was drawn up against one Rameshwar Jha, the petitioner was subsequently summoned, as it was reported that the petitioner had manipulated some facts by suppressing them in league with the said Rameshwar Jha. Similarly situated accused, Janardan Thakur, who had also audited the accounts of the Co-operative Society was also summoned and put on trial but - 2 - he challenged the summoning order and the order taking cognizance before this Court in Cr. Misc. No.17511 of 2000 and while disposing of that petition the summoning of the said Janardan Thakur was quashed considering the fact that he was a Government servant and undisputedly the audit work was done by him while discharging his official duty. What the Court wanted to point out in the case of Janardan Thakur was that in the absence of an order sanctioning prosecution of the accused like Janardan Thakur, the proceedings could not proceed further. Coming to the case of the present petitioner, the learned Magistrate has referred to some of the paragraphs of the case diary, as may appear from paragraph No.8 of the impugned order and has come to the conclusion that there was sufficient ground for framing charges against the petitioner and also for committing offences as indicated in that particular paragraph but it requires to be pointed out that any question, which could have a final bearing upon the proceedings, could be agitated at any stage of the proceedings and that could - 3 - be considered by this Court under its inherent power under Section 482 of the Code of Criminal Procedure and if the Court comes to a conclusion that the whole exercise of prosecuting an accused could be suffering from some major legal defects, then there could be no bar in quashing the proceedings as against that particular accused. The petitioner was a Senior Auditor and a Government servant, who could be removed by the Government. He was performing the duty of auditing the accounts of the Co-operative Society in discharge of his official duties as appears recorded by this Court while passing the order on a petition of similar nature preferred by co-accused Janardan Thakur. Undisputedly, there was no order sanctioning the prosecution of the petitioner produced before the Court, which summoned the petitioner and put him on trial. Thus, the very prosecution of the petitioner could be said to be completely in lack of the compliance of the provisions of law. The petitioner ought not have been put on trial by summoning in absence of the compliance of the provisions of Section - 4 - 197 of the Code of Criminal Procedure. That being the position, the order directing framing of charges against the petitioner suffers from that legal vice and the same is, accordingly, quashed by allowing the present petition. VPS ( Dharnidhar Jha, J. )