IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16980 of 2001 SURESH KUMAR SINHA Versus STATE OF BIHAR & ANR with Cr.Misc. No.18466 of 2001 PHOOL SINGH Versus STATE OF BIHAR & ANR ----------- For the Petitioners: Shri Bipin Bihari Singh, Advocate For the State : Shri Braj Kishore Prasad, APP For the O.P. No. 2 : Shri Indra Deo Prasad, Advocate ----------- 8/ .9.2010 Heard learned counsel for the parties. The two petitions are directed against the order dated 26.5.2001, passed by the Additional Sessions Judge – II, Jehanabad in Cr. Revision No. 24 of 2001 / 22 of 2001. Through the above revision petition, the petitioner Phool Singh and others had questioned the propriety of the order dated 17.3.2001, by which Shri Anil Kumar, Judicial Magistrate, Ist Class, Jehanabad disposed of the petition filed before him on behalf of the accused persons of that case, i.e., the petitioners to stay the proceedings of Complaint Case no. 13 of 1992 (TR 807 of 2001). The learned magistrate does not appear expressing any opinion about the prayer made by the petitioners before him as regards the stay of the proceedings but, directed his office to write a letter to the District and Sessions Judge for transferring the case to the Special Judge created for trying the offence under Prevention of Corruption Act. It appears from the order of the revisional court that while prosecuting their revision, the petitioners had raised the question of 2 initiation of their prosecution by taking cognizance of offences under sections 161, 162, 504, 420, 216(A) and 219 of the IPC without previous sanction of the competent authority or the government, as the case may be, who could have removed the petitioners from service. It was contended during the course of hearing of the revision petition before the Additional Sessions Judge by citing a couple of decisions, as may appear from paragraph 8 of the order, that the very proceeding was illegal and no proceeding could be carried out further without previous sanction. The learned Judge, while dismissing the revision petition, held that the Judicial Magistrate who passed the order dated 17.3.2001 in the Complaint Case no. 13 of 1992 was merely deciding the question of forum of trial and not proceeding with the trial of the case and, as such, his order was interlocutory in nature, which was not revisable. In the present set of petitions, the petitioners have referred to the order passed by the Judicial Magistrate on 17.3.2001 by which he recorded a finding that an offence punishable under section 7 of the Prevention of Corruption Act was also made out and, as such, he did not have jurisdiction to try the offence and the same required to be tried by the Special Judge. While hearing the two petitions, the prayer was resisted by the learned counsel appearing for the O.P. No. 2 on the ground that the order of cognizance was ratified by all superior courts and the same could not be questioned by raising the plea of lack of sanction 3 for taking cognizance. It is not that an accused may not challenge the jurisdiction of a court to try himself. While so doing, an accused may raise a plea that no offence was made out and as such, the court did not have jurisdiction to try him for committing a particular offence. This was the background in which the Supreme Court decision in Madhulimaye Vs. The State of Maharashtra, reported in AIR 1987 Supreme Court 47 was passed. In that case also, the appellant before the Supreme Court had challenged the very jurisdiction of the court to proceed with the trial as no offence of defamation was, as submitted, made out and that petition was dismissed by the learned trial judge which, ultimately, propelled the case up to the Supreme Court. In that particular decision, it was held that an accused has every right to challenge the jurisdiction on account of the non- constitution of an offence and a court has to decide it and that order, even if it may not be final, cannot be said to be interlocutory. In that view of the matter and in view of the law laid down by the Supreme Court , the finding of the learned Additional Sessions Judge recorded in Cr. Revision No. 24 of 2001 that the impugned order passed by the learned Magistrate Ist Class, Jehanabad on 17.3.2001 was interlocutory in nature, appears completely erroneous. Simply because the order of cognizance had been ratified by the superior courts, including the Supreme Court, it could not be creating any impediment in the jurisdiction of a court to examine the matter from the angle of constitution of offence so as to creating the 4 jurisdiction to try a particular offence by a court. This is naturally coming out of the decision in the case of Madhulimaye (supra). The accused could agitate the issue even at the preliminary stage when he has to appear in response to the summons or even at the stage of framing of charges. There could not be any bar when the accused is raising the above plea and bar of jurisdiction of a court to try him for committing a particular offence. While raising that plea, the accused may be within his rights to legitimately point out to the court that on account of any legal defect, like, the absence of any order sanctioning the prosecution of the accused or on account of any legal defect, like, the offence being time barred from being tried or also that the facts did not constitute an offence, could be agitated and the court has to examine those questions under the facts of the case to decide them. The issue being very much related to the jurisdiction of a court to try a particular offence on account of any legal infirmities in the trial, any order passed by the superior court upholding the order of cognizance may not be an impediment in such decisions to be made by a competent court. The petitioners were raising a plea that the magistrate did not have any jurisdiction to try the offence. The magistrate partially appears adjudicating upon the plea when he was observing in his order, after having discussed the provision of section 7 of the Prevention of Corruption Act, that when the order taking cognizance was passed by a court, offences under sections 161 and 162 of the IPC were not on the statute book. This clearly indicated that the 5 magistrate was partly allowing the prayer of the accused that some or the other offences were not constituted on facts of the case or a particular offence was constituted by the facts of the case; as such, his reference to the Sessions Judge for sending the case to the appropriate court as the facts constituted commission of an offence under section 7 of the Prevention of Corruption Act. That finding of the magistrate, may be illegal, but in effect it was recorded to note that he did not have the jurisdiction to try that offence and, as such, the case. Two questions have been raised by the petitioners through the present set of petitions. The first is that the petitioners being public servant, could never be prosecuted without the previous sanction in that behalf granted by the competent authority. The other was that on the facts of the case the offences for which the petitioners were put on trial were never made out. For examining the above question, it is pertinent to have a glance of the facts which are alleged in the petition of complaint and supported by the evidence of a witness who was examined as P.W. 1 under section 244 of the Code of Criminal Procedure. The complaint petition states that the complainant had filed Title Suits No. 19 of 1981, 21 of 1982 and 69 of 1981 and by the judgment and decree passed in those suits, the Munsif, Jehanabad ordered the accused persons, i.e., the petitioners and others named in the array of the accused to take over the five schools described in the petition of complaint and pay salaries to 6 them. The judgment and decree was transmitted to the accused persons who were the then Education Commissioner, Government of Bihar, Patna, Director, Primary Education-cum-Additional Secretary, Government of Bihar, Patna, Director, Primary Education-cum- Joint Secretary, Government of Bihar, Patna, Education Commissioner, Government of Bihar, Patna, Special Secretary, Primary Education, Government of Bihar, Patna, Director, Primary Education, Bihar, Patna, the then District Education Superintendent, Jehanabad to present the order of the Government before the court of Munsif along with the relevant records created in that behalf showing taking over the schools by the government. It is alleged that the government had also directed the petitioners and the aforesaid officials to present the relevant government file before the Cabinet on 16.1.1990 but that was not done and, as such, the schools could not be taken over by the government. The complainant and others filed writ petitions before this Court vide C.W.J.C. Nos. 5959, 5965 and 5812 all of 1990 which were heard by a Division Bench of the Court and it was held by one of its orders passed on 16.12.1991 that the decree passed by the Munsif, Jehanabad had become final but did not issue any direction for payment of salaries to the complainant and other teachers of those schools as the state was yet to take over those schools. It was alleged that the petitioners and other officials, indicated above, had thereby disobeyed the judgment and decree passed by the Munsif, Jehanabad and other letters of the 7 Government of Bihar and, as such, salary was not being paid to them and as such, the judgment and decree passed by the Munsif was disobeyed. It appears that the cognizance of offences under sections 161, 162, 504, 420, 216(A) and 219 of the Indian Penal Code was taken by the magistrate and summons were issued, whereafter the petitioners had challenged the order of cognizance. The solitary witness P.W. 1 Rajdeo Prasad Verma has also stated the same facts as have been alleged by the complainant in his complaint petition. On perusal of the above facts, no reasonable person could come to a conclusion that an offence under section 420 of the IPC was made out. Section 420 of the IPC punishes any act of cheating and thereby dishonestly inducing any person so cheated to deliver any property or anything which could be converted into a valuable security. There is no act alleged that the complainant or any of the teachers of those schools were cheated with some dishonest intent and thereby were induced to deliver any property to any of the officers who were holding different posts in the Education Department of the Government of Bihar. Thus, no offence under section 420 of the IPC could be constituted on facts of the case. As regards section 504 of the IPC, it relates to intentional insult being heaped by a person on another as a result of which the person so insulted may be provoked to committing the breach of the peace. As may appear from the very facts of the case, neither there 8 was any insult heaped by any officer of the State of Bihar either on the complainant or any of the teachers nor there was any allegation that the complainant or any of his colleagues was so provoked as to feeling to breach the peace. So far as section 219 of the IPC is concerned, it relates to offence of corruptly or maliciously making or pronouncing, in any stage of a judicial proceeding, any report, order, verdict or decision which the person so doing knows to be contrary to law. The act must be committed by a public servant. Thus, what may appear from the very facts of the case, the offence punishable under section 219 of the IPC was also not made out. So far as the offence under section 216A of the IPC is concerned, it relates to harbouring of robbers and dacoits. I do not want to say much about the ingredients of the offence. The high ranking officers of the Government of Bihar are being alleged of committing that offence without there being any ingredients of the offence being constituted on facts. As I have already pointed out, the Judicial Magistrate Ist Class, Jehanabad has himself held that the offence under sections 161 and 162 of the IPC were not on the statute book on the day the cognizance of those offences was taken. Thus, what appears from the reading of the facts and consideration thereof is that no offence for which the petitioners were being tried, were really made out on facts of the case. Besides, the petitioner Phool Singh raised the viability of the prosecution before the Supreme Court in SLP (Cri) No. 3964/3965 of 2000 which were dismissed by order passed on 9 24.11.2000 with the following observations: “We do not find any infirmity with the impugned order so as to be interfered with by this Court. Mr. Jain says that a question of sanction had also been raised whereas the impugned judgment does not indicate as to whether the petitioner had raised this question. If such a question is permissible to be raised in law, it would be open for the petitioner to raise the same. The Special Leave Petitions stand dismissed.” As may appear from the above order of the Supreme Court, a liberty was given to the petitioner Phool Singh for raising the question of sanction before the appropriate court. Accordingly, the petition was filed before the Magistrate. I do not want to say much about the legitimacy of the plea of lack of sanction which was raised by the petitioners before the court below upon which order dated 17.3.2001 was passed by the Judicial Magistrate and which resulted in order dated 26.5.2001 in Cr. Revision No. 24 of 2001 / 22 of 2001, which was dismissed by the Additional Sessions Judge – II, Jehanabad. I have already noted down that an accused has a right at the very threshold of the proceedings on receiving summons to challenge the jurisdiction of a court on various grounds including that the trial could not be proceeded with on account of some legal impediment. The accused could point out the legal impediment, 10 like, lack of sanction to prosecute him. When a public servant is being prosecuted and it is alleged that they were simply not ready to perform their duties in complying/executing the decree passed by the Munsif, Jehanabad, then those acts which were complained of, were necessarily the parts of their official duties and, therefore, non- performance thereof even if it had constituted an offence, could never be prosecuted without the previous sanction of the government competent to remove them from their employment as per the provision of section 197 of the Code of Criminal Procedure. It is, by now, a well settled principle of law that when there is a necessity of producing sanction to prosecute a public servant, then it has to be produced at the time of taking of cognizance. As such, it was necessary that sanction order ought to have been produced before the order of cognizance was passed. The non production of the same, to me, appears rendering the whole prosecution of the petitioners illegal. I have already noted down that the facts do not constitute any offence. I have considered the facts of the case and those stated by the solitary witness examined under section 244 of the Code of Criminal Procedure. There is no statement contained in the two documents, i.e. the complaint and the deposition sheet of the witness indicating that there was any instance of indulging into any corrupt practices by any of the accused persons. But, still the Judicial Magistrate, Ist Class, Jehanabad was dwelling upon the provision of section 7 of the Prevention of Corruption Act and was holding that 11 that particular offence was made out on facts which required the case to be tried by the court of Special Judge. The Magistrate was simply showing his infirm mind and incompetence in appreciating facts so as to finding as to what offence was made out. On account of the above reasons which I have just recorded, I find that the whole prosecution which has been initiated against the officers of the Government of Bihar who were working in different capacities in the Department of Education, was not only untenable and baseless but appears flowing from a sense of malafide and maliciousness. It was out and out a malicious prosecution of the officers of the State to pressure them to act in a particular manner. The Division Bench of this court might have observed that the decree passed by the Munsif, Jehanabad had become final. But that observation has always to be appreciated keeping in mind that the very suit could not have been maintained by the Munsif, as the reliefs which were sought by the complainant and other teachers of the schools related to taking a policy decision about taking over the five schools by the government. On the above reasons, I allow the two petitions, quash the whole of the prosecution against the petitioners as of no jurisdiction on account of non constitution of any offence and further on account of absence of sanction to prosecute the petitioners, even if it was not necessary on account of the non constitution of the offence. Anil/ ( Dharnidhar Jha, J.)