IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.90 of 2009 Kamala Prasad, son of Late Sewak Lal, resident of village and P.O. Narkatiaganj, P.S. Sikarpur, District West Champaran………………………….Petitioner Versus 1. THE STATE OF BIHAR , through the Collector, Muzaffarpur 2. The Superintendent of Police, Co-operative Vigilance Cell, Bihar, Patna 3. The Police Inspector, Co-operative Police Officer, Police Cooperative Vigilance Cell, Muzaffarpur 4. The District Audit Officer, Co-operative Societies, Muzaffarpur (The Informant) 5. The officer Incharge, Muzaffarpur Town Police station, Muzaffarpur 6. the Investigating Officer (I.O.) of Muzaffarpur Town, P.S. Case No.346/94, Muzaffarpur………………………………………….………………Respondents *** For the Petitioner: Mr.Yogesh Chandra Verma, Sr. Advocate with Mr.Vivek Prasad, Advocate For the Respondents: Mr. K.P. Gupta, S.C. IV Mr. Prasoon Sinha, G.A. No. III *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh, J. Petitioner has prayed in this writ application for quashing of the first information report of Muzaffarpur Town P.S. Case No.346 dated 16.11.1994 (Annexure-1) as also for quashing of accusation application dated 28.4.2008 (Annexure- 2) filed by Sri Manju Pandey, the Police Inspector of Co-operative Police Cell, - 2 - Muzaffarpur, requesting the learned Chief Judicial Magistrate to issue warrant of arrest against the petitioner and three others. 2. The said F.I.R. was registered on 16.11.1994 under section 409 of the Indian Penal Code on the basis of a written report submitted by the District Audit Officer, Co-operative Societies, Muzaffarpur against two accused persons, namely, Secretary-cum-Branch Manager of Madrana Branch and Secretary-cum-Branch Manager of Dumra Branch of Central Bank of India Staff Co-operative Credit Society Limited (in short, „the Society‟). The said case was instituted on the basis of audit report of the Society in respect of financial years 1991-92 and 1992-93. Various illegalities and financial irregularities were detected in the audit which was reported to the then Registrar of the Co-operative Societies, Bihar, Patna, who ordered for institution of the case. Accordingly, the F.I.R. was instituted on the written report of the District Audit Officer, Co-operative Societies, Muzaffarpur, along with which the reports and orders were annexed. Petitioner at that time was Additional Registrar, Cooperative Societies in the Co-operation - 3 - Department, Government of Bihar. In the audit report, no allegation was levelled against the petitioner of having any involvement in the said illegalities and financial irregularities committed by the said Co-operative Society. The observations in the audit report in respect of the petitioner were only to the extent that in the capacity of the Additional Registrar, by letter no.631 dated 29.05.1993, he had approved one illegal appointment and by letter no.24 dated 08.01.1993, he had ordered for payment of salary in respect of some other illegal appointees. Certain other acts were alleged in the audit report on account of which it was said that he had put himself into a controversy. However, charges of financial irregularities were only against the said two persons and, therefore, the said written report was submitted by the District Audit Officer in respect of only those two Secretaries-cum-Branch Managers with allegation of misappropriation and cheating etc. Accordingly, the said F.I.R. was registered citing them as accused. 3. Petitioner superannuated from service in 1994 and thereafter for the next - 4 - almost 12 years he did not hear anything about the case. However, sometime in 2007 he came to know that there was some action in the department to implicate him also in the case. Therefore, he filed an application dated 02.04.2007 (Annexure- 8) to the I.G. (Economic Offences Wing), Co- operation Department, Bihar, Patna pointing out that in no way, he was connected with the case and involved therein. On receipt of the application, the matter was examined by the Investigating Officer who submitted his report vide letter dated 07.06.2007 (Annrxure-9) to the Superintendent of Police, Cooperative Police Vigilance Cell, Bihar, Patna in which he explained the circumstances under which petitioner had issued the said letters and opined that the petitioner was not found involved or guilty in the alleged defalcation. 4. However, it appears that the matter did not die down and, on the orders of the S.P., Police Co-operative Vigilance Cell, accusation application dated 28.4.2008 (Annexure- 2) was submitted in the court of the learned Chief Judicial Magistrate, Muzaffarpur, with a prayer for issue of warrant of arrest against - 5 - named accused persons. Petitioner coming to know about the same applied for and was granted anticipatory bail by this Court. In the meanwhile, the S.P. also passed orders for submission of charge sheet against the petitioner and others. 5. Petitioner has annexed documents with the writ application to show that in the capacity of Additional Registrar, Co-operative at Muzaffarpur, he had received an application dated 25.05.1992 from the Honorary Secretary of the Society by which he was informed that in the annual general meeting of the Society dated 29.12.1991, a decision had been taken to appoint one Sri Kamal Kishore Prasad for Bettiah Branch and accordingly, petitioner was requested to accord approval to the said decision which he did by the said letter no.631 dated 29.05.1992. Similarly, it has also be explained in the writ petition that the petitioner had received another letter dated 08.01.1993 from the Administrator of the said Society whereby it was informed that 18 employees had been working and getting their salary from before joining of the present Administrator and upon his joining he had stopped - 6 - their salary whereupon great resentment amongst the employees and depositors had erupted and banking works were getting hampered. Accordingly, petitioner, being the Additional Registrar was requested for his instructions, and, considering the circumstances as disclosed in the letter of the Administrator, petitioner, through the said letter no.24 dated 08.01.1993, allowed the Administrator to release payment of salary to the said employees for the present. 6. Learned senior counsel for the petitioner submitted that except for these two instances of having passed orders in the matter of the said Society, there was no material available on record to show that the petitioner was in any way involved in the functioning of the Society or in its financial matters. He submitted that in fact, the respondents had sat over the matter for 15 long years and it was only by way of face saving device that S.P. had directed for submission of the charge sheet against this petitioner and other accused persons on the basis of which the said accusation petition was filed. He submitted that charges are stale and the petitioner was not involved in the matter in any - 7 - way. Therefore, it is a fit case where F.I.R. and the prosecution against the petitioner initiated on the basis of the said accusation petition should be quashed. 7. A counter affidavit has been filed in which it has been stated that now charge sheet has also been submitted against the petitioner bearing no.84/2009 dated 13.03.2009 under Section 409 of the Indian Penal Code, a copy of which has also been annexed as Annexure-A with the counter affidavit. 8. A supplementary affidavit has been filed by the petitioner in which stand has been taken that no prosecution has been launched under Section 47 of the Co-operative Societies Act as no show cause notice has ever been served on the petitioner and no sanction has been obtained from the competent authority before launching of the present prosecution against him after 16 years of his retirement. 9. Learned senior counsel for the petitioner submitted that, for the prosecution of the petitioner, a sanction order was essential from the Registrar, Cooperative Societies in terms of Section 47 of the Act which lays down - 8 - that the Registrar shall not accord sanction unless an opportunity has been given to the person concerned of being heard. He submitted that in the present case, no opportunity has been given to the petitioner and no sanction of the Registrar has been obtained and, therefore, prosecution against the petitioner is illegal and fit to be quashed. 10. Section 47 of the Act has also been reproduced in the said supplementary affidavit and the same reads as follows :- “47. Cognizance of offences. - (1) No Court inferior to that of a Magistrate of the second class shall try any offence under this Act. (2) Every offence under this Act shall, for the purpose of the Code of Criminal Procedure, 1898 (5 of 1898) be deemed to be non- cognizable. (3) No prosecution for an offence under this Act shall be instituted without the previous sanction of the Registrar, and the Registrar shall not sanction the prosecution of any person unless he has given such person an opportunity of being heard.” 11. This section deals with the cognizance of offences and provides that no court inferior to that of a Magistrate of the second class shall try any offence under this Act and every offence under the Act shall be deemed to be - 9 - non-cognizable. Sub-section (3) puts a bar on the institution of a prosecution for any offence under the Act without prior sanction of the Registrar, who is prevented from granting sanction without giving any opportunity of being heard to the person concerned. From a bare reading of the section it is clear that it deals with the prosecution for an offence under the Act only. Therefore, if any offence is alleged to have been committed which is punishable under the Bihar Co-operative Societies Act, 1935, a sanction is required for initiation of a prosecution. However, as apparent from the said accusation application and the charge-sheet as annexed as Annexure-A with the counter affidavit, it is clear that the petitioner has not been charged of any offence committed under any of the provisions of the said Act. The accusation application as well as charge sheet shows that the petitioner has been charged for an offence under Section 409 of the Indian Penal Code. For a charge under this section, no sanction is required under the Act and apparently, section 47 of the Act does not come into play in any manner. The submission of the learned senior counsel for - 10 - the petitioner in this regard is, therefore, highly misconceived and is rejected. 12. However, the application has to be allowed on a different ground. The accusation application as well as charge sheet levels a charge under Section 409 of the Indian Penal Code against the petitioner. For sustaining a charge under the said section, three essential ingredients are required to be shown to exist. Firstly, the accused should be a public servant as mentioned in Section 409 of the Indian Penal Code; secondly, he must be alleged to be entrusted with property or must have dominion over the property in his capacity of a public servant and thirdly, he must be alleged to have committed breach of trust in respect of that property. 13. Petitioner was, no doubt, a public servant. But the act alleged to have been committed by him was only to the extent of having granted approval to an illegal appointment and to have allowed payment to illegal appointees. By any stretch of imagination, these acts cannot be termed as entrustment of property to petitioner or his having dominion over the property or - 11 - having committed criminal breach of trust in respect of that property. The acts of the petitioner may be termed as misconduct, of having exceeded his powers or having deliberately caused undue advantage to the beneficiaries for which petitioner could be prosecuted separately or proceeded with departmentally. But by no stretch of imagination the charge of having committed an offence under Section 409 of the I.P.C. can be said to be prima facie made out in any way against the petitioner on account of those acts. The submission of the accusation application and the charge sheet against the petitioner after almost 13 years of his retirement and 14 years of institution of the case clearly shows that the respondents have taken this measure against the petitioner without any application of mind at all and just by way of face saving device for the prosecution. 14. In the circumstances, this Court is of the opinion that the prosecution against the petitioner on the basis of the charge sheet as contained in Annexure A shall be an abuse of process of the court and wastage of court‟s time and public money. Therefore, the same should be - 12 - stopped at this stage itself. 15. As a result, the said accusation application as contained in Annexure-2 and the charge sheet issued, as annexed as Annexure-A to the counter affidavit, are quashed so far as petitioner is concerned. 16. This writ application is, accordingly, allowed. (Jayanandan Singh, J.) Patna High Court, Patna The 7th July, 2010 N.A.F.R. (B.T.)