IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.32917 OF 2009 SANJAY KUMAR, SON OF FOOL DEB PRASAD, RESIDENT OF VILLAGE MALDAHA POLICE STATION BARBIGHA, POST BARBIGHA. AT PRESENT MACHALI GALI, GOBARDHAN LANE RAJA BAZAR, POLICE STATION SHASTRI NAGAR, TOWN AND DISTRICT PATNA, POSTED AS EXCISE SUPERINTENDENT, MUZAFFARPUR VERSUS THE STATE OF BIHAR THROUGH VIGILANCE ********* 3 18/09/2009 The only question that has to be decided in this case is whether the petitioner could be remanded without the order of cognizance in a case instituted under the provisions of the Prevention of Corruption Act. There is no dispute with respect to the facts of this case i.e. the First Information Report was instituted against the petitioner and that he was taken into judicial custody on 13.06.2009 and the charge sheet was submitted on 31.07.2009. It is also admitted fact that cognizance has not been taken in this case as the sanctioning authority has not accorded the sanction for the prosecution of the petitioner. Section 19 of the Prevention of Corruption Act envisages that “no Court shall take cognizance of an offence punishable under Section 7, 10, 11 and 15 of the Act alleged to have been committed by a public servant, except with the previous sanction of the State or the Central Government”. 2 Learned Counsel referring to the judgments in the case of Shri S. K. Lal, Special Judge, C.B.I., (A.H.D.), Patna vs. Lalu Prasad and Others, reported in 1998 (1) PLJR 782 and the case of 1999 (2) PLJR 364 submits that this Court in both the cases found that the detention was not warranted without an order of sanction. Learned Counsel appearing on behalf of the Vigilance has referred to a judgment reported in 1984 Cr.L.J. 1412. In that case, the Court had remanded the petitioner under Section 309(2) of the Code of Criminal Procedure and proceeded with the case accordingly. The Division Bench of this Court in the case of S.K. Lal, has distinguished this case and said that the Full Bench Judgment of the Court proceeded on the assumption that the moment, a police report is received under Section 170 of the Code in a case exclusively triable by a Court of Sessions, the next stage of enquiry under Section 207 and 209 is reached, and the Magistrate must proceed to enquiry whether Section 207 has been complied with and then proceed to commit the accused to the Court of Sessions. Pending this enquiry, he is authorized to remand the accused to custody under sub-section (2) of Section 309 of the Code. The decision proceeds on the basis that there is no need for 3 the Magistrate to pass an express order taking cognizance, and the moment the Court proceeds to the next stage in the proceeding, cognizance is deemed to have been taken. This also becomes clear from the observation of the Court in paragraph no. 9 of the Full Bench judgment, which need not be quoted here. Considering the rival contention of the parties in this case, I am of the firm view that since there is a specific bar under Section 19 of the Prevention of Corruption Act. The detention of the petitioner is unwarranted and therefore, the order dated 25.08.2009 passed by the Special Judge (Vigilance), Muzaffarpur in Vigilance Case No. 69 of 2009, Special Case No. 22 of 2009 is hereby quashed and the above named petitioner ought to be released from custody as the detention is bad under the provisions of law. In the result, this application is allowed. Let this order be communicated to the Court of the Special Judge (Vigilance), Muzaffarpur in connection with Vigilance Case No. 69 of 2009 through fax at the cost of the petitioner. Anand ( Sheema Ali Khan, J.)