CRIMINAL MISCELLANEOUS No.36391 OF 2000 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- MAJEEBUR RAHMAN, SON OF LATE M. HUSSAIN, JUNIOR ENGINEER, P.H.E.D. MASRAKH, POLICE STATION MASRAKH, DISTRICT SARAN. ... ... PETITIONER. Versus THE STATE OF BIHAR ... OPPOSITE PARTY. ---- For the Petitioner : M/S Vikram Deo Singh, Adv. Dharmendra Kumar Singh, Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner, who was at the relevant time Junior Engineer in the P.H.E.D. Department and Incharge of Store, has come before this Court, while invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 26.9.2000 passed by Shri R.C. Srivastava, Judicial Magistrate, Ist Class, Bikramganj, Rohtas at Sasaram in G.R. No.775 of 1991, Tr. No.227 of 2000 arising out of Surajpur P.S. Case No.55 of 1991. By the said order, the learned Magistrate has rejected the petition for discharge filed on behalf of the petitioner. 2. Short fact of the case is that an allegation was levelled against the petitioner that 2 in the capacity of Junior Engineer-cum-Incharge of the Store, he had mis-appropriated amount of 9 filter pipes, which was kept in the Government store. After filing of the F.I.R., police investigated the same and thereafter, charge sheet was submitted against the petitioner under Section 409 of the Indian Penal Code. At the stage of charge, petition was filed on behalf of the petitioner to discharge him on the ground that in the case sanction for his prosecution was not brought on record at the time of cognizance. However, the learned Magistrate, by the impugned order, has rejected the same. 3. Aggrieved with the order dated 26.9.2000 passed by Shri R.C. Srivastava, Judicial Magistrate, Ist Class, Bikramganj at Sasaram, the petitioner approached this Court by filing the present petition. 4. While challenging the order of rejection of discharge petition, Shri Bikramdeo Singh, learned counsel appearing on behalf of the petitioner, submits that it was not only a case of non availability of the order of prosecution sanction but in the instant case, sanction for prosecution was refused by the competent authority and as such in this case, the learned Magistrate 3 was not required to proceed against the petitioner. It was submitted by Shri Singh that allegation was in relation to discharge of official duty of the petitioner and as such under Section 197 of the Code of Criminal Procedure, it was condition precedent to see as to whether the order of sanction was on record or not before taking cognizance. However, in this case, without sanction order of cognizance was passed. 5. In support of his contention, learned counsel has heavily relied on a judgment of this Court reported in 1991(1) PLJR 132 (Arjun Das Vs. The State of Bihar and 4 others), particularly paragraph-12 of the judgment, which sis as follows : “12. On the facts and in the circumstances of the case, it is evident that section 197 applies and as such, sanction was necessary. As there is no sanction, the order taking cognizance of the offence against the petitioner is bad in law.” 6. Learned counsel for the petitioner has also referred to a case reported in 2006(4) PLJR 445 (Dr. Ram Singhasan Singh & anr. Vs. State of Bihar). 4 7. On the sole ground of non availability of the prosecution sanction rather rejection on prosecution sanction, the learned counsel has prayed for quashing of order of rejection of discharge petition. 8. Smt. Indu Bala Pandey, learned Additional Public Prosecutor, appearing on behalf of the State, has opposed the prayer of the petitioner. It was submitted that it was a case of mis- appropriation of the government fund by committing criminal breach of trust and as such the petitioner is not entitled to get any relief from this Court. 9. Besides hearing learned counsel for the parties, I have also perused the materials available on record. The present petition was filed for quashing of order of rejection of discharge petition dated 26.9.2000. It appears that at the time of admission, it was specifically argued, while referring paragraph-7 of the petition that without sanction order of cognizance was illegal. Subsequently, the petitioner filed a supplementary affidavit and by way of filing supplementary affidavit, he brought on record the order of cognizance dated 12.5.1997. 10. While filing the petition, the petitioner had not even bothered to bring on record 5 the copy of F.I.R. In absence of any such material, it would be difficult for this Court to come to a conclusion that the allegation against the petitioner was solely in relation to discharge of his official duty. The court is of the opinion as to whether an offence is related directly to discharge of official duty or not can be examined well during the trial not at the stage of hearing a petition under Section 482 of the Code of Criminal Procedure. The Hon’ble Supreme Court in a case reported in (2001)6 SCC 704 (P.K. Pradhan Vs. State of Sikkim) has held that question as to whether act alleged was in relation to discharge of official duty can be left open to be raised during the trial. In paragraph no.15, it has been held as follows : “15. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left 6 open to be decided in the main judgment which may be delivered upon conclusion of the trial.” 11. The Hon’ble Supreme Court in a case reported in 1999(5) SCC 690 (State of Kerala Vs. V. Padmanabhan Nair) has also considered the similar point. In absence of any material on record showing the fact that the allegation was solely in relation to discharge of official duty, this Court is not persuaded to interfere with the order. The order of rejection of discharge petition categorically speaks that during investigation sufficient materials were brought on record showing commission of offence under Section 409 of the Code of Criminal Procedure against the petitioner. 12. In view of the facts and circumstances of the present case, this Court is not persuaded to interfere with the order of rejection of discharge petition. Accordingly, the petition stands rejected. 13. In view of rejection of this petition, interim order of stay dated 15.4.2002 stands automatically vacated. 14. Keeping in view the fact that the case is an old one, it is necessary to direct the court below to proceed with the case expeditiously and 7 conclude the same without any delay. 15. Let a copy of this order be sent to the court below forthwith. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 19.8.2010 N.A.F.R./N.H.