IN THE HIGH COURT OF JUDICATURE AT PATNA CR. W.J.C No.899 of 2009 NAGENDRA PATHAK @ N.N.PATHAK, SON OF LATE LAKHAN PATHAK, RESIDENT OF BARA PATHAK BIGHA, P.S. SHERGHATI, DISTRICT GAYA…………….PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH C.B.I. 2. THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY, LAW DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. PRINCIPAL SECRETARY, DEPARTMENT OF PERSONNEL & ADMINISTRATIVE REFORMS, GOVERNMENT OF BIHAR, PATNA ………………RESPONDENTS *** For Petitioner: Mr. Y.V. Giri, Sr. Advocate With Mr. Ashok Kumar, Advocate For the State : Mr. N.K.Singh, S.C. No.6 with Mr. Jay Prakash Sharma, A.C. to S.C. No.6 For the C.B.I.: Mr. Bipin Kumar Sinha, Standing Counsel, C.B.I. *** P R E S E N T HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J. Heard learned senior counsel for the petitioner and learned counsel for the State. 2. This case is an offshoot of infamous animal husbandry scam. Petitioner is also one of the accused in Special Case No.64/96 arising out of RC 63(A)/96-Patna. After investigation, certain materials came against culpability of the petitioner. Therefore, Central Bureau of Investigation applied for sanction to the Government which was granted vide Annexure-2 on 17.01.2002. Charge sheet was submitted thereafter and cognizance - 2 - was taken against the petitioner vide Annexure-3 on 21.04.2003. 3. Petitioner has challenged the sanction order for his prosecution and cognizance order and has also prayed for quashing of the entire criminal prosecution launched against him. 4. As per facts of the case, petitioner was Executive Magistrate, Banka in 1995. On 29.3.1995, he was deputed to act as Treasury Officer in the Treasury of Banka. In course of his deputation, he cleared four bills of a total sum of Rs.2,62,658/-. When the scam surfaced, an enquiry was made with regard to the false invoices and payment made in their respect through different Treasuries. Records of the Banka Treasury Office were also inspected and it was found that in two days i.e. 30.03.1995 and 31.03.1995, petitioner had cleared four bills. It was also detected that said four bills were passed in respect of a single invoice. Normally, against one invoice, one bill should have been prepared and passed but it was deliberately split up to avoid detection. Connivance of the petitioner was suspected and, therefore, he was made one of the accused. 5. Learned senior counsel for the - 3 - petitioner submits that there was no bar in law in clearing four bills in two days. He submits that in terms of provisions of the Bihar Treasury Code, a bill has to be prepared by the scrutiny clerk and thereafter it has to pass through the accountant and the Drawing & Disbursing officer and then it is placed before the Treasury Officer for clearing the bill. He submits that after the verifications are made by the scrutiny clerk and the accounts clerk and, if after verification the same has been signed by the Drawing & Disbursing Officer, the Treasury Officer has no option but to pass the bill. Therefore, he submits that since bills have been cleared by the Drawing & Disbursing Officer, petitioner had no option but to pass the bills. Therefore, according to his submission, no criminal liability was made out against the petitioner. 6. Learned senior counsel for the petitioner has also submitted that other treasury officers, namely, Anil Kumar Sinha, Shivanand Jha, Sachchidanand Sinha, Umesh Prasad Singh, B.N. Sharma, K.K. Srivastava, Md. Imtiyaz, Shiva Swamy and Nagendra Prasad Singh, had also passed the bills in the capacity of the Treasury Officer but no prosecution has been launched against them and - 4 - sanction for prosecution has not been granted by the department against them, whereas petitioner has been singled out for sanction against him. He submits that petitioner has been meted out with hostile discrimination by being picked up for sanction for prosecution. 7. It is well settled that right of equality does not operate negatively. Therefore, if the other treasury officers have been wrongly left out, that can be of no advantage to the petitioner. So far as case of the petitioner is concerned, it is specifically stated in the report of the S.P. that the amount of one invoice was split up in four bills which the petitioner passed. This makes the case of the petitioner distinguishable from the case of other accused persons. 8. As per submissions of the learned counsels for the C.B.I. and the State, it was a duty cast upon the petitioner as a Treasury Officer to make enquiry as to why the amount of one invoice has been split up in four bills. This creates suspicion with regard to the mens rea of the petitioner. 9. Learned counsel for the petitioner thereafter submitted that sanctioning authority has accorded sanction for prosecution of the petitioner - 5 - mechanically and without applying his mind. In support of this contention, learned counsel for the petitioner has relied upon a judgment of the Apex Court in the Mansukhlal Vithaldas Chauhan Versus State of Gujarat reported in (1997) 7 Supreme Court Cases 622 and has referred to paragraphs 6, 7, 8, 9 and 10 of the judgment. In paragraphs 6 and 7, facts of the case were noticed by the Apex Court and in paragraphs 8 & 9, the provision of Section 197 of the Code of Criminal Procedure and provisions of Prevention of Corruption Act, 1947 were considered by reproducing Section 6 thereof and the bar contained therein. In paragraph 10, the definition of ‘Public servant’ as contained in Section 21 of I.P.C. has been noticed. These paragraphs of the judgment are of no help to the petitioner. However, paragraph 18 of the judgment has some relevance for the purpose of the present case which is quoted herein below :- “The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other materials placed before it. This fact can also be established by extrinsic - 6 - evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority.“ 10. As per the observation of the Apex Court, it is clear that grant of sanction is an application of mind by the sanctioning authority and the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other materials placed before it. The Apex Court has also observed that this fact can also be established by extrinsic evidence by placing the relevant files before the court to show that all relevant facts were considered by the sanctioning authority. 11. In view of the this observation of the Apex Court, this Court had directed the learned counsel for the State to produce the relevant files in which the matter with regard to sanction of the petitioner was dealt with and the order of sanction was passed. In compliance to the orders of this Court, relevant files have been produced by the learned counsel for the State. From perusal of the files it appears that entire materials which surfaced during investigation along with the report of the S.P., C.B.I. were placed before the - 7 - sanctioning authority. The sanctioning authority considered the same and thereafter accorded sanction for prosecution of the petitioner. Therefore, it cannot be held that there was no material before the sanctioning authority to accord sanction for prosecution of the petitioner. 12. In the circumstances, this Court does not find any merit in the submissions of the learned counsel for the petitioner. The writ application is, accordingly, dismissed. (Jayanandan Singh, J.) Patna High Court, Patna The 26th March, 2010 N.A.F.R. (B.T.)