IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.6867 of 2011 ====================================================== 1. Ram Avtar Vatsayan S/O Late Jeetan Singh Resident Of Ajit Niketan, East Boring Canal Road, P.S.- Buddha Colony, District- Patna. .... .... Petitioner/s Versus 1. The State Of Bihar Thru.Vigilance Dept. Bihar, Patna .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Abhinav Srivastava, Adv. For the Opposite Party/s : Mr. Dilip Kumar Sinha, APP. For Vigilance : Mrt. Patanjali Rishi, Adv. AC to Mr.Ramakant Sharma, Sr. Adv. L.O I/c Vigilance. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 9 14-09-2012 Heard learned counsel for the petitioner, for the State and for the Vigilance Department. In this case, petitioner is challenging the order dated 24th February 2009 passed by the Special Judge, Vigilance, Patna in Special Case No. 25 of 2006, arising out of Vigilance Case No. 31 of 2006 whereby cognizance has been taken against the petitioner under Sections 420, 406, 465, 467, 471, 477(A) IPC and 13(1)(c), (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. From the record it appears that a complaint petition was filed by one Smt. Arachana Jamaiyar before the Hon’ble Lokayukta, Bihar, wherein some allegations were made against the petitioner. Said Smt. Arachana Jamaiyar was a teacher in a Patna High Court Cr.Misc. No.6867 of 2011 (9) dt.14-09-2012 2 / 6 2 Girls Middle School, Patna of which the petitioner was the Secretary in which she alleged that the Secretary of the School had informed her that her appointment had not been approved by the Education Department. It has been alleged that the Secretary had opened a forged Bank Account in her name at Indian Overseas Bank, Maurya Hotel, Gandhi Maidan, Patna where her salaries were deposited and money from the said account was withdrawn without her knowledge. The said forged Bank account contained the name of his daughter, aged 28 years, whereas she was married in the year 1988 only and she had no daughter. Upon such complaint, the Hon’ble Lokayukta ordered for an enquiry by the Vigilance Department. During the enquiry, it came to light that the petitioner had requested the District Superintendent of Education for approval of her appointment on the said post which was done by the District Superintendent of Education, vide Memo No. 2987 dated 15th March 1991. Despite said approval, it has been alleged, the petitioner had always informed her that her appointment had not been approved. The enquiry also revealed that the petitioner had opened a forged Bank Account in the name of Smt. Arachana Jamaiyar and her salary was deposited in the said account from which the petitioner had withdrawn the money. In this way, petitioner had opened a forged Bank Account in her Patna High Court Cr.Misc. No.6867 of 2011 (9) dt.14-09-2012 3 / 6 3 name and misappropriated lacs of rupees belonging to the complainant and thereby committed offences under various sections of the Indian Penal Code as well as of P.C.Act, as aforesaid. It appears that the court below has taken cognizance vide order dated 24th February 2009 for the offences under the aforesaid Sections including under the P.C.Act on the basis of sanction granted by the competent authority. Counsel for the petitioner has argued that by letter dated 21st November 2006, the Director, Primary Education had opined that the petitioner did not come within the definition of ’pubic servant’ and, as such, granting sanction for his prosecution did not arise. Thereafter the Joint Secretary, Govt. of Bihar vide letter dated 5th February 2007 granted sanction. Counsel for the petitioner has raised the following points for consideration: i) Once the authority has taken decision that the petitioner did not come within the purview of public servant, then there was no occasion for the another authority, i.e. Joint Secretary to take a reverse view and grant sanction, without \considering the objection raised by the Director. ii) He has raised another point that the letter of Patna High Court Cr.Misc. No.6867 of 2011 (9) dt.14-09-2012 4 / 6 4 sanction does not show any application of mind as sanctioning authority while granting sanction did not apply his mind or judicial mind as the order does not disclose deliberation of facts involved in the present case. It has further been argued that granting of sanction is a very serious matter and the authority should not take it lightly. iii) He has raised the third point that the person who has granted sanction is not the competent authority under Section 19 of the P.C.Act as he is neither the appointing authority nor the dismissing authority, as the fact, the petitioner was not appointed, rather he was elected as Secretary by the members of managing Committee of School. Counsel for the petitioner has developed his argument submitting that the order by which the sanction has been granted does not show least application of mind by the sanctioning authority before granting sanction. He has further submitted that granting of sanction is a very serious matter and it is required under the law that the competent authority, while granting sanction must show that he has applied his mind to the facts and the law. He has further submitted that the petitioner was elected as Secretary of the School in question. The election of Secretary cannot be said to be an appointment and as such, the authority Patna High Court Cr.Misc. No.6867 of 2011 (9) dt.14-09-2012 5 / 6 5 could not have granted sanction . On the direction of this Court, counsel for the State has produced the concerned file for perusal of this Court. It appears from the movement of records that an objection was raised about the status of the petitioner as a public servant where the authorities were of the view that petitioner did not come under the definition of ‘public servant’ and there was no question of granting sanction. The objection raised was approved by the Director and accordingly, a letter dated 21st November 2006, Annexure-21 was issued in his favour. Ultimately, when the objection of vigilance department was brought to the notice of the Joint Secretary, Govt. of Bihar he vide order dated 5th February 2007 has granted the sanction. On perusal of the order and the record, produced before this Court, it does not appear that before granting sanction, the competent authority i.e. Joint Secretary has deliberated the matter or applied his judicial mind and only thereafter he passed the order of sanction. Granting sanction leads to serious repercussion to the person concerned but the competent authority while granting sanction did not apply his mind as he did not take any pain to deliberate the matter either in the file or in the order. This Court finds that the sanction has not been granted without due application of mind by the competent authority and, Patna High Court Cr.Misc. No.6867 of 2011 (9) dt.14-09-2012 6 / 6 6 as such, the order of sanction under the P.C.Act is not sustainable in law. Accordingly, the order of cognizance is quashed so far it relates to the offences under the P.C.Act. With regards to the proceeding under the Indian Penal Code, the court below will proceed with the matter in accordance with law. The file which was placed before this Court, is being handed over to the counsel for the State. Accordingly, this petition is partly allowed. Jay/- (Shivaji Pandey, J)