IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.26691 OF 2009 MAHARSHI RAM, SON OF SHRI RAM NARESH RAM, RESIDENT OF VILLAGE SAREYA RAMPUR, POLICE STATION DARAULI, DISTRICT SIWAN VERSUS THE STATE OF BIHAR THROUGH VIGILANCE ********** FOR THE PETITIONER :- MR. LAXMI NARAYAN DAS, ADVOCATE MR. AKHILESH DUTTA VERMA, ADVOCATE FOR THE S T A T E :- MR. JHARKHANDI UPADHYAY, A.P.P. *********** 3 18/01/2010 Heard learned Counsel for the petitioner and the A.P.P. appearing on behalf of the State. This application is directed against the order taking cognizance dated 26.11.2007 for offences under Sections 467, 468, 571, 420, 120B of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act (hereinafter referred to as the Act) against nine named accused persons. The petitioner’s name finds place as accused no. 5 in the complaint petition and accused no. 7 in the order taking cognizance. The short facts of this case are that one Zarina Khatoon filed a complaint on 09.06.2005 in the Court of Special Judge, Vigilance, Muzaffarpur which is numbered as Complaint Case No. 85 of 2005. The Special Judge sent it to the Vigilance Department for enquiry and institution under Section 156 (3) of the 2 Code of Criminal Procedure. The allegations in the complaint/FIR as per the complainant are that she is the daughter of one Md. Qurban and Zulekha Khatoon, and that her father possessed a number of plots of lands which have been described in the complaint petition. After the death of her father, some persons in connivance with Sita Bai @ Fatima Mansoori, wife of Badlor Mallava, resident of Shivajee Nagar 1, Bombay described Sita Bai as the wife of Md. Qurban and in connivance with accused nos. 4 and 5-petitioner, they have mutated the name of Sita Bai on the plots of lands described in the complaint petition. It is specifically alleged that Sita Bai is a farzi lady and that the petitioner who was the Sub Divisional Magistrate, East, Muzaffarpur at the relevant time has illegally purchased 2 kathas of land. It has also been alleged that this petitioner has passed an order under Section 144 of the Code of Criminal Procedure restraining the complainant from going on the said lands. Several issues have been raised by the petitioner. The first issue which is sufficient for the purpose of quashing part of the order of cognizance is that although cognizance has been taken under Section 13 (2) read with 13 (1) (d) of the Act, there is no corresponding order of sanction under Section 19 of the 3 Act. It is well settled law that in order to take cognizance under the provisions of the Act, it is essential that sanction should be obtained under Section 19 of the Act. Section 19 of the Act specifically provides that no Court shall take cognizance under Section 7, 10, 11, 13 and 15 of the Act against a public servant without a previous order of sanction. On this ground alone, this Court quashes the order dated 26.11.2007. The petitioner, however, has raised several other points which ought to have been considered by the Special Judge before taking cognizance under the various provisions of the Indian Penal Code. Admittedly, the petitioner is the Sub Divisional Magistrate and the order of mutation obviously cannot be passed by him and must have been passed by the Circle Officer or the Land Reforms Deputy Collector, if there was an appeal. It is also apparent that the Zarina Khatoon has filed Title Suit No. 300 of 2005 for setting aside the sale deed in which the petitioner is a vendor. It is specifically pleaded on behalf of the petitioner that he is the second purchaser of the said 2 kathas of land. Another suit being Title Suit No. 460 of 2006 has been filed by Sita Bai in which Zarina Khatoon is one of the defendants. The relationship between the parties is that Md. Qurban was married to one Zulekha and the 4 petitioner Zarina Khatoon is the daughter of Md. Qurban and Zulekha. Sita Bai @ Fatima Mansoori who claims to be the second wife of Md. Qurban. Sita Bai claims that Md. Qurban married her in Bombay and they were living together at Bombay after the marriage. There appears to be a dispute with respect to the relationship of Sita Bai with Md. Qurban set up by Zarina Khatoon. Therefore, it appears that there seems to be several disputed questions with respect to the title over the lands in question. It has also been submitted that the Vigilance Department has found that Sita Bai is a fictious lady. In this context, Counsel for the petitioner submits that the lady who has been declared as fictious is fighting two civil litigations and has also filed a case in the Patna High Court, and as such this aspect ought to have been considered by the Vigilance Department while investigating the case and the Court below. Perhaps, these aspects can be verified from the diary considering the nature of the dispute. The role of the petitioner is limited. There is an allegation in the complaint/FIR that the petitioner has misused his position and passed an order dated under Section 144 of the Code of Criminal Procedure. The said order is annexed as Annexure-6, dated 26.04.2005, which has allegedly been passed by the Sub Divisional 5 Magistrate, East, Muzaffarpur in M 228/2005. It is apparent that this order has not been passed by the Sub Divisional Magistrate rather by the Executive Magistrate on behalf of the Sub Divisional Officer, East, Muzaffarpur who at the relevant time, according to the petitioner, was Shri Ramesh Kumar. Therefore, according to the petitioner, it is submitted that the allegations against the petitioner do not appear to be correct on the face of the records for the reason that the petitioner has not passed any order under Section 144 of the Code of Criminal Procedure and therefore, it cannot be said that he has misutilized his official position in helping the said Sita Bai. The second allegation that the petitioner had purchased a piece of land in the name of his wife as second vendor is the subject matter of Title Suit No. 300 of 2005 and counsel for the petitioner submits that this would come under the purview of a civil dispute rather than within the purview of a criminal case. I find that these aspects of the matter can only be dealt with by considering the case diary and the materials available on the records. I, therefore, remand this matter back to the Special Judge, Vigilance, Muzaffarpur in Vigilance Police Station Case No. 23 of 2006 giving rise to Special Case No. 17 of 2006 for 6 considering the case diary after taking into account the observations and submissions made on behalf of the petitioner before this Court and if necessary, after hearing the complainant and Counsel for the Vigilance Department for the purpose of deciding whether cognizance should be taken under Sections 467, 468, 471, 420 and 120 B of the Indian Penal Code. . The order dated 26.11.2007 is quashed as far as it concerns the petitioner with respect to the offences alleged under Sections 467, 468, 471, 420, 120B of the Indian Penal Code as well. This application is allowed with the aforesaid observations. Anand ( Sheema Ali Khan, J.)