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Judgment
The writ petitioners are accused in Complaint Case
No. 45 of 2013 filed on 10.04.2013 by respondent no. 2 Murari Singh
in the Court of learned Special Judge, Vigilance, North Bihar,
Muzaffarpur for the offences, allegedly, committed by the petitioners
under Sections 467, 468, 406, 120B of the Indian Penal Code as well
as under Sections 7, 8, 9 and 13 of the Prevention of Corruption Act.
The learned Special Judge called for a preliminary
inquiry report from the Station House Officer, Vigilance,
Investigation Bureau, Bihar, Patna. The preliminary report was
submitted that the offences alleged against the petitioners are, prima
facie, established and an FIR requires to be instituted. Accordingly,
FIR was lodged and registered as Vigilance P.S. Case No. 77 of 2015
on 11.09.2015 under Sections 420, 467, 471, 477A / 120B of the Indian
Penal Code as well as under Sections 7, 10, 13(2) read with Sections
13(1) (d) of the Prevention of Corruption Act, 1988. All the aforesaid
documents i.e. the complaint petition, preliminary enquiry report and
FIR are at Annexure-1 series.
According to the prosecution allegation petitioner
no. 1, at the time of occurrence, was posted as Circle Officer,
Musahari and petitioner no. 2 was Revenue Karmchari posted in the
Anchal Musahari in the district of Muzaffarpur. In the matter of
mutation proceeding relating to the referred land, the petitioners had
demanded bribe from the respondent no. 2 and on non-payment of the
same mutation was refused in spite of supporting document that the
complainant was having title and possession over the referred land.
The petitioners have invoked the writ jurisdiction
of this Court to quash the FIR as well as order of the learned Special
Judge directing institution of the FIR on two grounds; i.e. (i) once the
learned Special Judge who, undisputedly, exercises the power of a
Judicial Magistrate-1st Class, took cognizance on the basis of
complaint case, he could not have directed institution of the FIR as the
FIR could have been lodged at the pre-cognizance stage only i.e. soon
after receipt of the complaint petition. (ii) secondly without prior
sanction under Section 19(1) of the Prevention of Corruption Act, the
petitioners, who are, admittedly, public servants, could not have been
prosecuted rather cognizance should not have been taken. Reliance
has been placed on the judgment of the Hon''ble Apex Court in Anil
Kumar & Ors. vs. M.K. Aiyappa & Anr . reported in 2013(10) SCC
705 and judgment of a coordinate Bench of this Court dated
10.12.2015 passed in Cr.W.J.C. No. 181 of 2015 (Ashok Kumar
Sinha & Anr. Versus The State of Bihar & Ors. along with
connected writ applications).
No one appeared on behalf of respondent no. 2 in
spite of service of notice. However, the State-respondents have filed
their counter affidavit resisting the prayer of the petitioners on the
ground that during investigation of the case sufficient evidence have
been found against the writ petitioners and the investigation is still
going on in impartial manner. Moreover, the refusal of mutation vide
order dated 06.11.2012 by the petitioners is based on the material not
supported by the record, rather suffers from perversity i.e. against the
material available on the record. Therefore, the petitioners deserve
prosecution.
However, during course of argument, learned
counsel for the State-respondent does not dispute that the present case
is squarely covered by the judgment of the Hon''ble Apex Court in
Anil Kumar''s case and of this Court (supra). In Anil Kumar''s case
(supra) the Hon''ble Apex Court categorically examined the issues
involved, referred earlier judgments of the Hon''ble Apex Court and
held that the Special Judge, Vigilance, who exercises power of a
Magistrate, could not act in a mechanical and casual manner while
considering the complaint case. The Magistrate takes cognizance of
the case on the complaint under Section 190(1) a of the Cr.P.C . on
receipt of the complaint as soon as he decides to proceed with the
case.
In the present case, the learned Special Judge on
receipt of the complaint decided to proceed further by calling for
preliminary inquiry report, therefore, he would be deemed to have
taken cognizance of the complaint case and in the light of judgment in
Anil Kumar''s case (supra), he could not have sent the complaint case
for registration of the FIR.
Furthermore, in the present case, the required
previous sanction under Section 19(1) of the Prevention of Corruption
Act is not there. Since, the learned Magistrate took cognizance of the
offence on private complaint without prior sanction, the same is not
sustainable in law in view of the ratio decided in the referred cases.
Therefore, for both the aforesaid counts, the impugned order and the
FIR are not sustainable in law, hence, the same are quashed hereby
and this writ application stands allowed.