IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1165 of 2008 CHANDESHWARI PRASAD SUMAN Versus STATE OF BIHAR & ORS ----------- For the Petitioner: - Mr. N. K. Agrawal, Sr. Adv. Mr. D.N. Tiwary, Adv. Mr. Saket Tiwary For the State:- Mr. Shailendra Kr. Jha, A.C. to S.C. 9 ----------------- 8. 7.9.2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is a Halka Karamchari, at the relevant time posted at the “Barh Rahat Sivir, Madhya Vidhyalaya, Dewari Ka Sivir Prabhari” at the Barhara Prakhand, aggrieved by the institution of Barhara P.S. Case No. 135/2008 under Sections 409 and 34 of the Penal Code and Section 51(B) of the Disaster Management Act (hereinafter called the Disaster Act) pending in the Court of the Chief Judicial Magistrate, Purnea. Learned counsel submits that the petitioner was allegedly found wanting in discharge of his duties at the Flood Relief Camp which may be an offence under the Disaster Act, 2005 as amended in 2007. Even if the actions of the petitioner constituted an offence under Section 51(B) thereof, he can be prosecuted only under Section 60 of the same which specifically provides that no Court shall take cognizance of an offence under the Disaster Act except on a complaint made in the manner prescribed. The submission therefore is that the institution of the First Information Report in respect of alleged offences under the Disaster Act was not sustainable. If the statute provides a procedure, the 2 authorities are permitted to act only in accordance with the procedure and other mode of performance are necessary forbidden and for which reliance is placed upon a judgment of the Supreme Court in the case of Jeewan Kumar Raut & Anr. Vs. Central Bureau of Investigation reported in 2009(9) Scale Page 381. Learned counsel for the State submits that the allegations are not only under the Disaster Act but also that the petitioner had allegedly shown expenditure of relief money without incurring the necessary expenses actually thus constituting an offence of misappropriation by breach of trust under Section 409 of the Indian Penal Code and that the rest would be a matter for Police investigation. The law stands settled that if the Disaster Management Act provides that any offences thereunder are required to be initiated in the form of a complaint, the institution of a First Informant Report in respect of the same cannot be sustained. In the case of Jeewan Kumar Raut (supra) relied upon by the petitioner, the Supreme Court at Paragraph 19 of the judgment held as follows:- “Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein. Respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It could file a complaint petition only as an appropriate authority so as to comply with the requirements contained in Section 22 of TOHO. If by reason of the provisions of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its 3 submitting a report in terms of Sub Section (2) of Section 173 of the Code did not and could not arise. In other words, if no police report could be filed, Sub-section (2) of Section 167 of the Code was not attracted.” This Court, therefore, holds that the First Information Report lodged against the petitioner in so far as his prosecution under the Disaster Act is concerned, is not sustainable. The First Information Report is quashed to that extent. At this stage, the Court is only concerned with the allegations in the First Information Report as to whether a prima offence which can be the subject matter of investigation. It is trite law that an act can constitute an offence simultaneously under two separate laws. In the facts and circumstances of the present case and the nature of the allegations against the petitioner under the Penal Code, this Court finds it difficult to interfere with the First Information Report in so far as the allegations under the Penal Code are concerned. If so advised, the petitioner may have his remedies thereunder at the appropriate stage after the investigation. The writ application is allowed to the extent that the prosecution under the Disaster Act is hereby quashed. This shall be without prejudice to the rights of the respondents under Section 60 of the said Act. P. Kumar (Navin Sinha, J.)