Md. Islam Mian vs State of Bihar

Narayan Roy, J.—Heard Mr. Shakil Ahmad Khan, learned Counsel appearing on behalf of Petitioner and learned Counsel for the State.

This revision application is directed against judgment and order of conviction and sentence dated 9.9.1993 passed by the First Additional Sessions Judge, Gaya, in Criminal Appeal No. 85 of 1990/51 of 1991 confirming the judgment and order of conviction and sentence passed by the learned Magistrate dated 23.5.1990 in G.O. Case No. 3422 of 1985 appertaining to Trial No. 195 of 1990 convicting the Petitioner u/s 52(1) of the Bihar Regional Development Authority Act (hereinafter referred to as the Act) and sentencing him to undergo simple imprisonment for six months.

It appears that the prosecution report (Exhibit-4) u/s 52(1) of the Act was filed against the Petitioner in the court of Chief Judicial Magistrate alleging therein violation of Section 35 of the Act. The learned Chief Judicial Magistrate, after taking cognizance of the offence on the basis of the prosecution report, transferred the case to the court of Judicial Magistrate, on the basis of evidence, found the Petitioner guilty punishable u/s 52(1) of the Act and, accordingly, the Petitioner was convicted and sentenced.

Learned Counsel appearing on behalf of the Petitioner submitted that for the prosecution of the Petitioner u/s 52(1) of the Act the same must be sanctioned by the Sanctioning Authorities as required u/s 73 of the Act. Learned Counsel further contended that the prosecution of the Petitioner was not sanctioned and, therefore, the prosecution launched against the Petitioner itself was not maintainable and the impugned judgments of conviction and. sentence are liable to be set aside.

Section 73 of the Act reads as under.

Sanction of prosecution: No prosecution for any offence punishable under this Act, shall be instituted except with the previous sanction of the Authority or the Chairman or any Officer Authorised by the Authority or the Chairman in this behalf.

I have perused the impugned judgments. The courts below have referred Exhibit-4 as the sanction order, as required u/s 73 of the Act. On perusal of Exhibit-4 it. would appear that this is the Notification issued by the Chairman of the Bihar Regional Development Authority authorising the Vice-Chairman of the Authority to be the Sanctioning Authority. It appears that besides Exhibit-4 other documents were also filed by the prosecution in support of its case. Exhibit-1 is the notice u/s 39 of the Act stopping construction whereas Exhibit-2 is the sketch map, Exhibit-3 is the prosecution report u/s 52(1) of the Act and Exhibit-5(1) is the direction of the Authority for demolition of the construction made by the Petitioner. Besides these documents there is no other documents on record showing that the prosecution of the Petitioner has duly been sanctioned as required u/s 73 of the Act. I have carefully examined the impugned judgments and it appears that the learned courts below have referred Exhibit-4 as the sanction, order which, in fact, is the Notification issued by the Chairman of the Authority authorising the Vice-Chairman of the Authority to be the Sanctioning Authority for prosecution for violation of Section 35 of the Act. Section 73 of the Act envisages that no prosecution for any offence punishable under this Act shall be instituted except with the previous sanction of the Authority or the Chairman or any Officer authorised by the Authority or the Chairman in this behalf. On careful examination of the records it appears to me that the prosecution of the Petitioner has not been sanctioned either by the Chairman or any officer authorised by the Authority. In this view of the matter, the prosecution launched against the Petitioner is wholly without jurisdiction and consequently thereof, the impugned, judgments and orders of conviction and sentence passed against the Petitioner are unwarranted in law and are liable to be set aside.

In the result, therefore, I allow this application and set aside the impugned judgments and orders of conviction and sentence passed against the Petitioner and the Petitioner is acquitted of the charges levelled against him.