IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42930 of 2007 SURESH PRASAD SON OF LATE LAXMI SINHA, JUNIOR ENGINEER, AT PRESENT POSTED AT SUGAULI BLOCK, POLICE STATION SUGAULI, DISTRICT EAST CHAMPARAN. ... ... PETITIONER. Versus THE STATE OF BIHAR ... OPPOSITE PARTY. ----------- 4. 30.9.2010. Heard Shri Raghav Prasad, learned counsel appearing on behalf of the petitioner and Shri Nand Kumar, learned Additional Public Prosecutor appearing on behalf of the State. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 18.7.2007 passed by the Chief Judicial Magistrate, Motihari in Chakia P.S. Case No.199 of 2005. By the said order, the learned Magistrate has taken cognizance of offence under Sections 409 and 420 of the Indian Penal Code. Short fact of the case is that an F.I.R. was lodged on an allegation that government fund was mis-appropriated by one agent, namely, Sohan Ram and at the relevant time, the petitioner was posted as Junior 2 Engineer. Allegation against the petitioner was that he had sanctioned the amount. The petitioner and Sohan Ram were F.I.R. named accused. The F.I.R. was registered on 16.9.2005 vide Chakia P.S. Case No.199 of 2005. After investigation, police exonerated the petitioner. However, the police recommended for prosecution of co-accused Sohan Ram. After submission of charge sheet, the learned Magistrate perused the case diary and materials available on record and differing with the recommendation of the police, has taken cognizance of offence against this petitioner also, while he had also taken cognizance against Sohan Ram, who was recommended for being prosecuted by the police. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. It has been submitted by Shri Raghav Prasad that subsequently, scheme was cancelled and the accused Sohan Ram had also refunded 50% of the defalcated money. Learned counsel for the petitioner has referred to Annexure-6 to the supplementary affidavit to show that while 3 granting bail to accused Sohan Ram, the learned Additional Sessions Judge had noticed that Sohan Ram had deposited 50% of the amount and thereafter, he was granted bail. Learned counsel for the petitioner submitted that despite the fact that there were no material on record and even no prosecution sanction was available on record against the petitioner, who was a Government servant, the learned Magistrate has taken cognizance of the offence. It has been submitted that in absence of prosecution sanction, the learned Magistrate was not authorized to take cognizance. In support of his stand, learned counsel for the petitioner has referred to judgment of this Court reported in 1989 PLJR 638 (Ram Eqbal Singh Vs. State of Bihar) and 1997(2) PLJR 754 (Shri N.C. Dhondyal Vs. State of Bihar). It has further been submitted that even the F.I.R. was lodged at a belated stage. It has been submitted that occurrence had taken place in the year 2001 whereas F.I.R. was lodged in the year 2005. On aforesaid ground, it has been prayed to quash the order of cognizance. Shri Nand Kumar, learned Additional 4 Public Prosecutor appearing on behalf of the State, has opposed the prayer of the petitioner. Besides hearing learned counsel for the parties, I have also perused the impugned order as well as the F.I.R. In the present case, the petitioner was named as an accused in the F.I.R. along with accused Sohan Ram. However, after investigation, the police did not forward the petitioner to face trial and final report, so far as petitioner is concerned, was submitted by the police. The learned Magistrate, while taking cognizance, had examined the case diary and he had referred several paragraphs of the case diary and thereafter, he came to a conclusion that there were material even against the petitioner and had taken cognizance. At the stage of hearing a petition under Section 482 of the Code of Criminal Procedure, that too, against the order of cognizance, it is not required for this Court to go in detail. Prima facie, it appears that the learned Magistrate was satisfied with the material on record and thereafter, he had passed the order of cognizance. So far as the ground for 5 sanction, which has been taken by Shri Raghav Prasad is concerned, it need not to be elaborate that question of sanction can be considered during the trial. On this very point, it would be appropriate to refer to a judgment of Hon’ble Supreme Court reported in 2001 SCC 704 (P.K. Pradhan Vs. State of Sikkim), particularly paragraph-15 of the judgment, which is as follows : “ 15. ..........In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.” Moreover, for the offence under Sections 409 and 420 of the Indian Penal 6 Code, it has been held that for prosecuting a public servant for offence under Section 420 and 409 of the Indian Penal Code, there is no requirement for obtaining sanction for prosecution. Keeping in view the fact that the case is at the initial stage, the court is refraining from recording any finding on the case. It is look out of the concerned court where the matter is pending. In the present case, order of cognizance was passed on 18.7.2007. What has happened in between 2007, till date, the court is not aware. However, Shri Raghav Prasad, learned counsel for the petitioner has informed that till date, no progress has taken place in the case. In view of the facts and circumstances as indicated above, the court is of the opinion that it is not a fit case for exercising inherent jurisdiction in favour of the petitioner that too in a situation where the learned court below has only taken cognizance of the offence. Whatever points, which have been raised by learned counsel for the petitioner before this Court can be raised at the appropriate 7 N.H./ stage of the case before the court below particularly at the stage of charge. It is expected that if such a plea is taken, the learned court below, without being prejudiced with this order, will examine the same and pass order in accordance with law. With above observation and direction, the petition stands rejected. ( Rakesh Kumar,J.)