IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30990 of 2006 KARTIK KUMAR, S/o Chandra Bhushan Singh, Director, Vishal Builtech (1) Pvt. Ltd. office at 202, Lavkush Tower, Exhibition Road, P.S. Gandhi Maidan, District Patna residing At 153 Patliputra Colony, P.S. Patliputra, District – Patna. …. Petitioner. Versus 1. THE STATE OF BIHAR 2. MR. RAM PRASAD, S/o not known, Superintending Engineer, N.H. Circle, Purnea. …. Opp. Parties. For the petitioner : - Sri Chandra Shekhar, Sr. Advocate Sri L.B. Singh, Advocate Sri A.K. Upadhyay, Advocate For the O.P. : - Sri Mayanand Jha, APP ----------- 11/ 22.04.2009 Heard learned counsel for the petitioner and the learned APP for the State. Petitioner a registered contractor of Class I category has been sought to be prosecuted by institution of an FIR filed by the Superintending Engineer, National Highway Circle, Purnea for the so called offence under Section 4 of the Bihar Prevention of Specified Corrupt Practices Act, 11983 (Bihar Act 1 of 1989) (hereinafter referred to as the Act) based on the written information Khazanchi Hat (Maranga) P.S. Case No. 215 of 2006 came to be registered and investigated. The allegations and the details are there in the FIR but it primarily relates to construction of national highway for which the contract was awarded to the petitioner. The details of the allegations are not very relevant keeping in mind the limited question of law, which has been urged at the bar by learned Senior counsel representing the petitioner. - 2 - Submission of learned Senior counsel is that the institution of the FIR and investigation will have to be seen in light of the provision of the Act as provided under Section 39. Section 39 is quoted hereinbelow for ready reference:- “No Court shall take cognizance under this Act against any person unless a report in writing is made by such an officer of the State Government as it may, by a notification , specify: Provided that no such report shall be made against a member of Judicial Service of State except with the prior concurrence of the High Court.” Based on the above legal provision a categorical stand has been taken by the petitioner that though the Act relates to the year 1989 but to the best of his knowledge no notification as required under Section 39 has ever come to be issued till date or at best till the filing of the FIR in question. It was in this background that counsel representing the State of Bihar was directed by this Court to file a categorical affidavit stating the position and to make their stand. In terms of the direction of the Court a counter affidavit on behalf of Chief Engineer, National Highway (Wing), Road Construction Department, Government of Bihar has come to be filed. They have given the background to the institution of the case but they have also categorically stated in paragraph 5 that a notification no. 11014(s) dated 20.8.2008 under Section 39 of the Act. But that is only in 2008. The same paragraph also lists the category of officers, who are authorized under Section 39 of the Act. Though the notification in question has not been brought on record with the said affidavit. With the stand and the statement made by the State of Bihar, - 3 - it is evident that since no notification was in existence under Section 39 prior to 20.8.2008 then the filing of the FIR for violation of Section 4 of the Act was a misplaced exercise if not ill adviced in the year 2006. The petitioner has made out a case for interference. In view of the reasons and the factual matrix having been noted above, the FIR of Khazanchi Hat (Maranga) P.S. Case No.215 of 2006 stands quashed and the application is allowed. DKS/ (Ajay Kumar Tripathi, J.)