IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.631 of 2008 SATYA NARAYAN JHA Versus THE STATE OF BIHAR & ORS ----------- 9 13.4.2009 The petitioner has prayed for quashing the order contained in memo no.5401 dated 10.12.1999, issued under the signature of Secretary, Department of Law, Government of Bihar, by which sanctioned has been accorded for prosecution of the petitioner in R.C.Case No.49A of 1996 registered by the C.B.I. The petitioner has challenged the sanctioned order on the ground that though there was no material on record against him, still the sanctioning authority accorded sanction. Before I take up the various issues raised during the course of hearing, the facts of the case is being noticed in brief. On 10.2.1996, Sahebganj Town P.S. Case No.11 of 1996 was instituted against one Washimuddin and nine others. The Hon’ble Apex Court vide its judgment dated 19.3.1996 modified order and judgment dated 14.3.1996, in CWJC No. 1617 of 1996 and ordered C.B.I. to take up and investigate all criminal case registered by the State Police in the State of Bihar in respect of fraudulent withdrawal/encashment of government money from Animal Husbandry Department. Pursuant to the aforesaid order, the Sahebganj Town P.S.Case No.11 of 1996 was taken over by the C.B.I. and registered as R.C.Case No. 41A/96. The petitioner was not named in the F.I.R., rather he 2 helped in sealing and making seizure of the document of the Animal Husbandry office. The petitioner even opened the seal and made inventory of the papers relating to fraudulent withdrawal as per direction of the S.D.O. vide his letter no.377 dated 4.2.1996 and letter no.441 dated 8.2.1996. The C.B.I. submitted charge sheet on 7.3.2000 naming him as accused no.29. The cognizance was taken on 8.3.2000. The petitioner was arrested on 31.5.2000 from his Punaichak residence and was released on bail subsequently by this court. The gist of the allegation in the F.I.R. was that Md. Washimuddin, Incharge of Daho Sahebganj in conspiracy with other persons manufactured and passed fake bills worth more than Rs.77 lakhs during 1990-91, 1991-92 to 1995-96. The allegation against the petitioner is that as Incharge Treasury Officer, Sahebganj, he passed 21 bills amounting to Rs. 4 lakhs on one day. The case of the petitioner is that he was not a regular Treasury Officer, rather he functioned only on five dates, as Casual Treasury Officer under order of Deputy Director, Sahebganj when the regular Treasury Officer was on casual leave. Thus, the petitioner asserts that there cannot be any element of conspiracy as he performed random discharge of duties as casual Treasury officer on orders of D.C., Sahebganj. The five dates on which the petitioner discharged his duty as Treasury Officer are 4.3.1992, 7.3.1992, 24.3.1992, 17.8.1994 and 22.11.1995. The petitioner states that no bill relating to A.H.D. 3 has been passed by him save and except on 7.3.1992. The petitioner further states that neither charge sheet nor material in the case diary disclosed any specific evidence of irregularity or discrepancy or violation of Treasury Code or any other Rules committed by him. Further more there is no provision of physical verification of the bills by the Treasury Officer and this is done by Drawing and Disbursing Officer and/or Controlling Officer vide Rule 305A and Rule 306 of Bihar Treasury Code. Though in charge sheet it has been stated that the officers are required to pass bills according to Rule 189 of Bihar Treasury Code, no allegation of violation of aforesaid rules has been specifically alleged against the petitioner. The petitioner has mentioned in paragraph 22 of this application that earlier he had challenged the rejection of discharge petition in the High Court of Judicature at Ranchi which was dismissed on 3.2.2005. In the aforesaid application, he had not raised the issue that sanction was granted without there being any material worth the name before the sanctioning authority. The petitioner has recently come to learn that though the notice on the concerned file was in his favour, still in absence of any incriminating material, sanctioned was accorded. He stated that in fact, the notings in the file did not recommend sanction against the petitioner. A copy of the notings has been annexed as Annexure-5 series to this petition. He submits that the Secretary and other officers of Government of Bihar specifically stated in their 4 notes that the C.B.I. has not been able to clarify its allegations against the petitioner and as such they did not recommend for according sanctioned against him. However, the then Chief Minister, Bihar granted approval for granting sanction against the petitioner though there was recommendation for granting sanction against only Laxmi Narayan Singh and Sutgan Hansda. Thus the case of the petitioner in short is that sanctioned has been granted for his prosecution in most casual manner and without any consideration of the materials collected by the C.B.I. In support of his contention the learned counsel for the petitioner has relied upon decisions in the case of Mansukh Lal Vithaldas Chauhan Vs State of Gujrat, A.I.R. 1997 SC 3400 as well as in the case of Md. Ekbal Ahmad Vs State of A.P., 1979 SC 677. Both the State and the C.B.I. filed their respective counter affidavits. The State submitted that criminal cases has been instituted as improper and forged bills have been passed by the accused persons including the petitioner which is now subject of trial before the Special Judge, Vigilance, in the State of Jharkhand. The C.B.I. in paragraph 6 stated that the charges have been framed against the petitioner and others on 19.1.1994 by Special Judge, C.B.I., Ranchi, and more than 93 witnesses have already been examined and the prosecution evidence is on verge of completion. The respondents also challenged the maintainability of this writ petition before this court as trial is going on at Jharkhand. It would be useful to quote the relevant extract of 5 paragraph 7 of the counter affidavit filed by the C.B.I. on 6.1.2009. “7. That the answering respondent no.5 is filling this short counter affidavit to decide the preliminary objection regarding territorial jurisdiction of this Hon’ble Court because, after bifurcation of State of Bihar and subsequent creation of the State of Jharkhand which is in existence with effect from 15.11.2000, all the cases relating to treasuries which fall in the jurisdiction of Jharkhand State, stand transferred to the Jharkhand State. Moreover 93 prosecution witnesses have already been examined by the Special Judge at Ranchi and the prosecution evidence is on the verge of completion”. There cannot be any dispute to the proposition that the grant of sanction is not an ideal formality or acrimonious exercise but a solemn and sacrosanct act which affords protection to Govt servant against frivolous prosecution. It must strictly conform to requirements necessary for according a valid sanction and there has to be some material basis for according grant of sanction. A sanction granted in absence of any material cannot be said to be a valid sanction and the consequent prosecution could be an abuse of process of court. The Apex court in case of M.V.Chauhan verses State of Gujarat, reported in AIR 1997 SC 3400 held in para 19 of the judgment as follows:- 19. “Since the validity of Section depends on 6 Shashi/KHAN the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not.” Coming back to the instant case it appears order of sanction was granted on 10.12.1999 under the signature of Secretary, Department of Law, Govt of Bihar. In its affidavit dated 6.1.200, contained in para 7, the CBI has stated that as many as 93 witnesses have been examined and the prosecution evidence is on the verge of completion. This Court does not think it appropriate to interfere with the order of sanction at this belated stage as the explanation given for challenging the order of sanction after long nine years do not appear convincing. The petitioner can take all these points in the trial itself. As this court has declined to quash the order granting sanction, I do not find it expedient to go into the issue of maintainability. With the aforesaid observations, this writ application is disposed of. (Samarendra Pratap Singh,J)