IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36723 of 2009 1. NAND KISHORE VERMA S/O LATE KRISHNA NAND VERMA MOH- PRAKASHPURI, TOWN-ARA, P.S. NAWADA, DISTT. BHOJPUR AT ARA, PRESENTLY RESIDING AT HOUSE NO. 3, ROAD NO. 5, INDRAPURI, P.O. KESHARI NAGAR, P.S. RAJIV NAGAR (PATLIPUTRA), DISTT. PATNA Versus 1. THE STATE OF BIHAR THROUGH THE VIGILANCE For the petitioner :- Mr. Laxmi Narayan Das, Advocate Mr. Akhilesh Dutta Verma, Advocate For the opposite party:- Mr. C.M. Chaurasia, Advocate ----------- 2 15.12.2009 The petitioner has challenged the order of cognizance dated 13.3.2007, passed by learned Special Judge, Vigilance-II, Patna, in Special Case No. 25/2006 arising out of Vigilance P.S. Case No. 76/2006 by which cognizance has been taken under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. The only question that has been raised in this application is whether the Court could have taken cognizance of the offences aforesaid without sanction of the competent authority under Section 19 of the Prevention of Corruption Act. The facts are that the petitioner was posted as the Circle Officer at Bhagwanpur Block in the district of Begusarai and allegation was levelled against him by two illiterate ladies who got the complaint scribed by one Sonu Kumar dated 10.11.2006 alleging therein that the ladies had applied for the benefit of Rashtriya Pariwarik Labh Yojna before the petitioner-Circle Officer. The Circle Officer had demanded a sum of Rs. 1,000/- to give them the said benefit. On the basis of the aforesaid allegation, the trap was set up and it is said that the petitioner was caught red handed taking bribe. Annexure-4 is the order passed by the State of Bihar 2 taking according to sanction for prosecution of the of the petitioner. The order reads as follows: vkSj vc blfy;s jkT; ljdkj ,rn~ }kjk naM izfØ;k lafgrk] 1973 (1974 dk vf/kfu;e la[;k&2) dh /kkjk& 197 ds vUrxZr iznRr ’kfDr;ksa dk iz;ksx djrs gq, /kkjk& 7@13(2) lg ifBr /kkjk 13 (1) (Mh) HkzIVkpkj fujks/k vf/kfu;e] 1988 ds v/khu vijk/kksa ds fy, muds fo:n~/k vfHk;kstu dh Lohd`fr iznku djrh gSA It is apparent from the order of sanction that the sanction has been granted under Section 197 of the Code of Criminal Procedure. The facts also reveal that in fact the petitioner has not been charged under any of the provisions of the Indian Penal Code and the offence for which he has been charged is under Section 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. The law on this issue is well settled by several judgments of this Court as well as the Supreme Court where the Courts have distinguished between the order of sanction under Section 197 of the Indian Penal Code and under order of sanction under Section 19 of the Prevention of Corruption Act. The petitioner has relied on several judgments to substantiate the question raised by him. In the case of Ramashankar Tiwary Vs. The Union of India & Ors. reported in 1998(3)PLJR 584, the petitioner of that case was charged for offences under the Indian Penal Code as well as for offences under the Prevention of Corruption Act. The competent Government refused to grant sanction for the offences under the Prevention of Corruption Act yet the Court passed an order taking cognizance with respect to offences under the Prevention of 3 Corruption Act. The High Court held that since there is a legal bar for taking cognizance under the Prevention of Corruption Act, the Court could not have taken cognizance for offence under the prevention of Corruption Act. Counsel for the petitioner also relies on a case of the Kerala High Court, R. Balakrishna Pillai Vs. State reported in 1996 Cri.L.J. 757(Kerala). Several questions arose in that case. One of the questions that had come up for consideration before the Kerala High Court was that the Government servant had been charged for offences under Section 161 of the Indian Penal Code and section 5 of the Prevention of Corruption Act, however sanction was not obtained for proceeding under Section 5 of the Prevention of Corruption Act. The Court quashed the order framing charges under Section 5 of the Prevention of Corruption Act. This issue has also been settled by a judgment delivered by the Apex Court in the case of Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh & Anr. reported in 2006(1)PLJR 401(SC). The Supreme Court while dealing with this issue has held that where there is special provision made with respect to a particular subject matter, the general provisions under the Indian Penal Code will be excluded. It is obvious in the facts of this case that the petitioner has been charge sheeted for offences only under the Prevention of Corruption Act and this order of sanction has been obtained under Section 197 of the Code of Criminal Procedure. On the basis of the findings in the cases aforesaid is that the Court has the power to take 4 cognizance of the offence only when the competent authority grant sanction for prosecution therefore, the law on the subject is apparently quite clear. The counsel appearing on behalf of the Vigilance Department had relied on the decision passed in the case of Parkash Singh Badal & Anr. Vs. State of Punjab and Ors. reported in (2007)1 SCC 1 and Lalu Prasad @ Lalu Prasad Yadav Vs. State of Bihar through C.B.I. (AHD) Patna reported in (2007)1 SCC 49. In both these cases the question that was raised was whether the sanction was necessary for the purposes of taking cognizance against the petitioners of the aforesaid case. Both the petitioners who were Chief Ministers. At the time of taking of the cognizance, the Supreme Court has held that sanction was not required in cases where the person concerned ceased to act in his official capacity but were guilty of acts which were not within the purview of their official duties. The facts of the two aforesaid cases do not apply to the facts of this case and cannot help the prosecution in advancing an argument that no sanction was in fact required under Section 19 of the Prevention of Corruption Act. In view of settled law referred to cases above the order taking cognizance dated 13.3.2007 is without jurisdiction and is therefore, quashed. This application is thus allowed. The State would always have the liberty to take any legal steps in this matter. Sanjay/A.F.R. (Sheema Ali Khan, J.)