IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.24596 of 2009 Rajendra Prasad Singh Versus The State Of Bihar Thru. Vigilance. ---------------------------------- For the petitioner : Mr B. P. Pandey, Sr. Advocate Mr P.K.Sinha, Advocate For the Vigilance : Mr Arvind Prasad, Advocate ------------ 08 29.09.2011 The petitioner, namely, Rajendra Prasad Singh, while invoking the inherent jurisdiction of this court under section 482 of the Cr. P.C, has prayed for quashing the order dated 12.6.2007 passed by the learned Special Vigilance Judge I, Patna in Vigilance P.S. case no. 28/1996 corresponding to Special case no. 27/1996 by which and whereunder the learned Special Vigilance Judge I, Patna has taken cognizance for the offences under sections 109, 120B, 201, 409, 420, 465, 467, 468, 471, 477A of the IPC and 13(2) read with section 13(1) ( c )(d) of the Prevention of Corruption Act, 1988. 2. The brief fact, which lies to file this quashing petition, is that one Indranand Mishra, Dy. S.P. Vigilance Investigation Bureau, Patna, the informant of the case, filed written report before the Officer Incharge, Vigilance Police station, Patna on 10.9.1996 mentioning therein that after preliminary enquiry illegal withdrawal of 2 huge amount from government treasury for the period of 1992 to 1995 came to light. The specific allegation in respect of the petitioner is that on 18.11.1993, four bills of Jiwak Enterprises amounting to Rs 19,930, Rs 19,990, Rs 19,900 and Rs 19,980 were withdrawn from the Secretariat treasury and the aforesaid bills contained the signature of the petitioner as treasury officer. It is the case of the prosecution that after preparing forged and fabricated bills huge amount was withdrawn from the treasury by the accused persons including the petitioner. 3. On the basis of above stated written report Vigilance P.S. case no.28/1996 under sections 109, 120B, 201, 409, 420, 465, 467, 468, 471, 477A of the IPC and 13(2) read with section 13(1) ( c )(d) of the Prevention of Corruption Act, 1988 was registered against several persons and some unknown persons. After investigation, charge sheet was submitted against some accused persons whereas supplementary charge sheet against the petitioner and co- accused Bijendra Kumar Singh vide supplementary charge sheet no. 23/2007 dated 8.6.2007 for the offences under sections 109, 120B, 201, 409, 420, 465, 467, 468, 471, 477A 3 of the IPC and 13(2) read with section 13(1) (c) (d) of the Prevention of Corruption Act, 1988 was submitted before Special Judge on 12.6.2007. 4. The State of Jharkhand granted sanction to prosecute the petitioner and co-accused Bijendra Kumar Singh in Vigilance P.S. case no.28/1996 for the above stated offences on 4.11.2006 which is annexure 2 to this petition. The aforesaid sanction order had been signed by the then Law Secretary, Law Department, Jharkhand State. After submission of the charge sheet as well as sanction order learned Special Judge I, Patna took cognizance of the above stated offences vide order dated 12.6.2007 which has been challenged by the petitioner in the present petition. 5. Learned senior counsel Sri B.P. Pandey appearing for the petitioner challenged the impugned order dated 12.6.2007 on the ground that the learned Special Judge I, Patna has taken cognizance for the offences on the basis of invalid sanction order. It is contended by him that according to the prosecution case, the alleged occurrence took place in State of Bihar while the petitioner was working as treasury officer in secretariat treasury at Patna but the sanction order 4 has been given by the State of Jharkhand which is not in accordance with law. In this connection, he drew my attention towards section 19(2) of the Prevention of Corruption Act, 1988 which says that where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central government or the State government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. 6. In the light of the aforesaid provision, learned counsel for the petitioner submitted that at the time of alleged occurrence, the State of Bihar was competent to remove the petitioner from his office and, therefore, State of Bihar is only competent authority to give sanction order for prosecution of the petitioner in the alleged crime and, so far as State of Jharkhand is concerned, the said government has got no power to grant sanction order in respect of the offence which has taken place in the State of Bihar and, therefore, sanction order dated 4.11.2006 (annexure 2) is an illegal 5 order and, therefore, on the basis of illegal sanction order, the learned court below had got no jurisdiction to take cognizance against the petitioner. 7. It is further contended by him that no legal and valid procedure was adopted for obtaining the order of sanction for prosecution and no relevant document was sent to authority concerned, at the time of passing sanction order and in a very mechanical and routine manner the sanction order was passed. 8. It is further contended by him that allegedly, petitioner put his signature only on four Bills/vouchers for a total sum of Rs 79,800/- on a single day when the petitioner was posted in Secretariat treasury between the period June, 1993 to September,1996 and during that period except the complained act, nothing has been brought against the petitioner and, therefore, if the petitioner had any intention, he must have repeated the complained act during the course of his tenure and so the aforesaid fact clearly suggests innocence of the petitioner. 9. It is also pointed out by him that the petitioner was not a regular staff of the treasury rather he was 6 only deputed in the aforesaid treasury for a certain period in absence of regular treasury staff. 10. It is further contended by him that at the time of alleged occurrence, it was the practice in the treasury office to pass bills/vouchers without ascertaining allotment order and practice of passing of bills/vouchers after obtaining allotment order was started from 30.1.1996 when famous fodder scam case came to light in the State of Bihar and, therefore, petitioner was not aware about this fact that excess amount was being withdrawn from treasury. 11. It is also contended by him that it was the duty of the concerned clerk to prepare bills/vouchers after scrutinizing materials and so far petitioner is concerned, he had only to put signature on the bills/vouchers. It is further contended by him that in a routine manner the alleged bills/vouchers were put up before the petitioner and in routine manner, he signed the aforesaid bills/vouchers without any malafide intention and, therefore, the petitioner can not be made responsible for the above stated excess withdrawal from the treasury. In support of his contention, he drew my attention towards several rules of Bihar Treasury 7 Code. 12. On the other hand, learned counsel appearing for the Vigilance supported the impugned order arguing that the defence of the petitioner would be considered at the time of trial and so far as sanction order is concerned, admittedly, after passing of Bihar Re- organization Act, 2000, a new State, namely, Jharkkhand came in existence and service of the petitioner was allotted to the aforesaid State and, therefore, the State of Jharkhand was competent to give sanction order in respect of the offence which had taken place in the undivided State of Bihar before coming into existence of Jharkhand State. 13. Having heard the contentions of the parties, I have gone through the record. Certain facts are admitted in this case. It is an admitted position that on the alleged date of the occurrence, petitioner was working as treasury officer in Secretariat treasury, Patna and four bills/vouchers amounting to Rs 79,800/- were passed with the signature of the petitioner and in course of preliminary enquiry, it was found that the aforesaid withdrawal was made on the basis of forged and fabricated documents. It is also 8 admitted position that after coming into existence of Bihar Re-organization Act, 2000, the services of the petitioner was handed over to Jharkhand State. It is also admitted position that the alleged occurrence took place when the division of State of Bihar had not taken place and after division of the State of Bihar the State of Jharkhand granted sanction order to prosecute the petitioner in respect of an offence which had taken place in undivided State of Bihar. 14. Before coming into existence the Prevention of Corruption Act, 1988, there was Prevention of Corruption Act, 1947. The provision of Prevention of Corruption Act, 1947 was framed with an object to check bribery and corruption of public servants. After passage of time, it was felt that the aforesaid Prevention of Corruption Act, 1947 was inadequate for dealing with the problems which had arisen in recent year and thereafter Prevention of Corruption Act, 1988 was enacted to run the criminal law more effective in dealing with the cases of bribery and corruption of public servants. 15. Before coming into existence of Prevention of Corruption Act, 1988, there was almost a 9 similar provision in section 6 of Prevention of Corruption Act, 1947 but when Prevention of Corruption Act, 1988 enacted, sections 3 and 4 with explanation were added in section 19 of the Prevention of Corruption Act, 1988. 16. Here, I would like to refer sections 19(3) and 19(4) of the Prevention of Corruption Act, 1988 which run as follows:- 19(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).- a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanctioned required under sub-section(I), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. 19(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction 10 has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. 17. Sub- section (3) of section 19 of the Prevention of Corruption Act, 1988 says in clear terms that no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of the court failure of justice has, in fact, been occasioned thereby. Explanation of the aforesaid section says that error includes competency of the authority to grant sanction. 18. It is manifest from the aforesaid provision that if failure of justice occurred in absence of or any error, irregularity of sanction order, then the court can interfere into the finding sentence and order of a Special Judge and the fact of failure of justice would be seen at early stage of the proceeding. So, even if, there is a failure of justice, the court would not take into account the above 11 stated fact at belated stage. 19. Now, avert to the present case, admittedly, the petitioner was appointed in undivided State of Bihar and the alleged occurrence took place in undivided State of Bihar but subsequently, after creation of a new Jharkhand State services of the petitioner was handed over to the aforesaid State and therefore, if the sanction order has been granted by State of Jharkhand in respect of offence which had taken place in undivided State of Bihar, there is nothing illegal in granting sanction order as services of the petitioner was legally handed over to the State of Jharkhand and the Sate of Jharkhand was legally substituted authority to grant sanction order in respect of the offence which had been committed by the petitioner while posted in undivided State of Bihar. 20. No doubt, section 19 (2) of the Prevention of Corruption Act, 1988 says that if the doubt arises about this fact as to who is competent authority to grant sanction order, the government or authority, which would have been competent to remove the public servant from the office at the time when offence is alleged to have 12 been committed, would be competent authority to grant sanction but in the present case, there is no dispute about this fact as to who is competent sanctioning authority because admittedly, services of the petitioner was legally handed over to the State of Jharkhand and furthermore, the State of Jharkhand legally substituted authority who is only competent to remove the petitioner from his office. 21. Now, it has already been set at rest that even if there is no sanction order, a court can take cognizance if absence of sanction order does not cause any prejudice to the accused. 22. In the present case, perusal of annexure 2, the sanction order, reveals that all relevant documents were put up at the time of grant of sanction order. So, in my view, there is nothing on record to presume or to come to this conclusion that a prejudice has been caused to the petitioner. 23. It has also been argued on behalf of the petitioner that he had only signed four bills /vouchers on the alleged date of the occurrence and he was not a regular staff of the Treasury and furthermore, he signed the aforesaid bills/vouchers in good faith but, in my view, it 13 would not be proper to consider the above stated contention at this stage and the petitioner may raise the aforesaid plea in course of his trial and, furthermore, I am of the opinion that on the basis of aforesaid plea, it would not be proper to quash the cognizance order. 24. In view of the aforesaid discussions, I am of the opinion that this petition is devoid of merit and should be dismissed on admission stage itself. 25. Accordingly, this petition is dismissed on the admission stage itself. Shahid ( Hemant Kumar Srivastava,J)