IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.252 of 2009 AWADHESH MISHRA & ORS Versus THE STATE OF BIHAR & ORS 3 24.6.2010 Heard counsel for the petitioners and the State as well as learned counsel appearing on behalf of the Vigilance. The petitioners pray for quashing the prosecution case of Vigilance P.S.Case No.86 of 2008, Special Case No.30 of 2008. Learned counsel for the petitioner submits that the very institution of the case by the Vigilance is in teeth of the circular of the State Government contained in Annexures-5 and 6 issued by the Chief Secretary, Cabinet (Vigilance) Department and Principal Secretary, Home Department, respectively. The petitioner in paragraph 18 and 19 has stated that the Vigilance department cannot suo moto indulge into any enquiry against government employee on the basis of a complaint without consent of the respective department. Further more as per Government circular dated 9.6.2008 no criminal cases can be lodged against a Government employee without prior concurrence of Head of the department or the appointing authority. It would appear from perusal of Annexure-5, dated 17.1.1993 issued by the Chief Secretary, Cabinet (Vigilance) department that the delinquent must be given an opportunity to respond to the materials collected against him in course of the enquiry. Further, from perusal of Annexure-6, dated 9.6.2008 issued by the Principal Secretary, Home department, it would appear that in case, if any department/organisation has suffered any loss then concerned employer would have the jurisdiction to take appropriate steps in the - 2 - matter. Learned counsel submits that the instant criminal prosecution has been launched by the Vigilance without approval of the concerned department. He further submits that in the instant case counter affidavit of the State Government would be necessary. A counter affidavit has been filed on behalf of the Vigilance on 14.5.2009, wherein in paragraph 6 it has been stated that the Vigilance Investigation Bureau, Vigilance Department has conducted the preliminary enquiry into allegations of black marketing of the allotted foodgrains under different government schemes, by corrupt Government officials in connivance with the employees of the Bihar State Food Corporation, dealer of Public Distribution System and Supply department of Bahadurganj and Terhagachha Block of Kishanganj District. It has been further stated that the Hon’ble Apex Court in the case of D.P.Ojha vs The State of Bihar, by order dated 20.2.2003, passed in Cr.Appeal No.26 of 2001 have struck down certain portions of resolutions dated 26.2.1981 and 17.1.1983 of the Government of Bihar, by which the powers of the Vigilance Department to investigate complaints against the public servants were curbed. The Vigilance Investigation Bureau, Vigilance Department, Patna had already issued a letter no. 154 dated 28.1.2009 in response to circular no.EB-01-425/07-6211, dated 9.6.2008 addressed to the Under Secretary, Home(Police) Department, Government of Bihar, Patna for institution of the F.I.R. In the aforesaid letter dated 28.1.2009 issued by the - 3 - Superintendent of Police, Vigilance Department, Investigation Bureau, the order dated 2.11.1999, passed by this court in Cr.W.J.C.No.244 of 1997 has been quoted which is reproduced herein below: “ In the above premises, it must be held that the Investigation Bureau is competent to hold preliminary enquiry on its own and at the end of such enquiry if it bonafide comes to the conclusion that a prima facie case disclosing the commission of cognizable offence is made out against an officer, to lodge First Information Report against him and proceed with the investigation without taking any prior permission for doing so from the Vigilance Commissioner or Chief Secretary or any other authority. Any provision to the contrary contained in impugned resolution/notification/circular etc. either expressly or by implication- must be held to be ultra vires section 154/156/157/ Cr.P.C.” Chapter III of the Prevention of Corruption Act, 1988 deals with offences and penalties. Section 7 of the Act refers to public servant taking gratification other than legal remuneration in respect of an official act. Sections 9 and 11 refer to other modes of taking gratification. Section 10 refers to punishment for abetment by public servant of offences, defined in section 8 or 9. Section 13 refers to criminal misconduct by a public servant. Section 17 details the authorities who are authorized to make investigation. Nothing in the provisions of P.C.Act, limit the power of the Vigilance or the C.B.I. to make an enquiry in respect of offences - 4 - KHAN covered under Chapter III of the Act. Further more the circular contained in Annexures-5 and 6 merely emphasizes that the appointing authorities would be competent to take action against the officers who are causing wrongful loss to the government. The circulars in no way limit the power of the Vigilance to make an enquiry into the complaints made in respect of subject matter coming under the purview of sections 7, 8, 9,10 and 11 of the Act. Learned counsel for the petitioners submit that the instant case has been filed at the instance of the accused, who have been made an accused in a case by them. The F.I.R. lodged by one of the petitioners in this connection is contained in Annexure-2 in which allegations have been made against the local MLA and others on whose instance subsequently they have been roped in this false case. Having heard counsel for the parties, this court finds that it would be improper to hold at this stage that the accused of Kishanganj P.S. Case No.187 of 2008 dated 9.7.2008 registered under sections 448, 341, 342, 419, 420, 386, 504, 506/34 of the Penal Code have prevailed upon the authorities concerned to rope the petitioners also in this case. For the aforesaid reasons, I do not find any merit in this application. It is accordingly dismissed. However, dismissal of this case would not come in the way of the petitioners to raise all these points at any subsequent stage. (S.P.Singh,J) - 5 -