P.R.S. Panicker And Ors vs State Of Bihar And Anr

Challenging the prosecution initiated against the petitioners by the learned Chief Judicial Magistrate, Gopalganj in G.C. Case No.24 of 2013, Trial

No.1124/2014 vide order dated 15.12.2013 for offences under Section 13(8) and (9) of the Bihar Sugarcane (Regulation of Supply and Purchase) Act,

1981, this application has been filed by the four applicants who are officers of M/s. Vishnu Sugar Mill Pvt. Ltd., a Company registered under the

Companies Act, 1956. Challenge to the said prosecution is made primarily on two counts. It is pointed out that the prosecution is launched on account

of the fact that in accordance to certain guidelines issued, price and variety of the sugarcane is not mentioned in the receipt issued to the sugarcane

growers. This amounts to violation of Section 13(8) and (9) of the Act and, therefore, the prosecution has been lodged. However, while doing so, Mr.

Giri argues that two statutory provisions have been violated. The offence, if any, has been committed by the Company through its officers, who are

the applicants and, therefore, in view of the law laid down by the Hon’ble Supreme Court in the case of Sharad Kumar Sanghi Versus Sangita

Rane, (2015) 12 SCC 781, any prosecution without impleading the Company, a juristic person, is not maintainable. The second ground canvassed is

that before granting approval for prosecution, the statutory authority, namely the Cane Commissioner, has not passed a speaking order sanctioning the

prosecution. Inviting my attention to page 2 of the complaint and para 8 thereof, it is stated that only the following words are mentioned before

according sanction “Prosecution is hereby sanctionedâ€. It is stated that in view of the well settled principle of law this is not permissible. A

sanction to be granted under Section 53 of the Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 has to be by a speaking order and as a

speaking order has not been passed in the present case, the prosecution is unsustainable and in support thereof my attention is invited to a judgment of

this Court in the case of Md. Iqbal Ahmad & Ors. Vs. The State of Bihar, 1988 B.B.C.J. 611, followed by another Bench of this Court in the case of

Vishnu Kumar Surekha @ B.K. Surekha & Ors. Vs. The State of Bihar & Ors., 2017 (3) P.L.J.R. 958. Accordingly, contending that on both these

counts the prosecution is unsustainable under law and the same is sufficient ground for exercising the jurisdiction available to this Court under Section

482 of Cr.P.C., learned Counsel prays for indulgence of this Court into the matter.

Refuting the aforesaid contention, learned Counsel for the State invites my attention to the counter affidavit, photo copy of the receipt issued by the

Sugar Company available at Annexure A and the fact that neither the price of the sugarcane nor the variety of the sugarcane has been mentioned.

This amounts to violation of the Circulars issued in this regard, being Circular No.27 dated 27.1.2013 and, therefore, the ingredients necessary for

constituting an offence under Section 13 (8) and (9) of the Act is made out and at this stage exercising jurisdiction in a proceeding under Section 482

of Cr.P.C. indulgence into the matter is not called for.

As far as the sanction of prosecution is concerned, learned Counsel argues that sanction accorded in Column 8, Annexure 2 is sufficient sanction

meeting the requirements of law.

I have heard learned counsel for the parties and propose to consider ground No.2 first. The Bihar Sugarcane (Regulation of Supply and Purchase)

Act, 1981 and Section 13 (8) and (9) thereof contemplate a provision for following the guidelines and instructions issued by the competent authority

from time to time and it is the case of the prosecution that in spite of issuance of guidelines and instructions for mentioning the price and variety of the

sugarcane, the same are not indicated in the receipt. However, for proceeding to register an offence and prosecution under Section 13 (8) and (9) of

the Act, sanction as contemplated under Section 53 by the competent authority is to be accorded and it is an admitted position that the competent

authority to accord sanction is the Cane Commissioner for the State of Bihar. The sanction accorded by the Cane Commissioner on 16.5.2013, which

is available at Column 8 of the complaint as Annexure 2 is to the effect that “Prosecution is hereby sanctionedâ€. The question as to how and in

what manner the sanction for prosecution has to be accorded meeting the requirements of Section 53 of the Act was subject-matter of consideration

by a Co-ordinate Bench of this Court in the case of Md. Iqbal Ahmad (supra) wherein, after considering the provisions of Section 53, it has been held

in the aforesaid case that sanction has to be accorded by a speaking order showing application of mind and if the sanction is accorded simply by

mentioning the words “Sanction approvedâ€, the same does not meet the requirement of law. This judgment in the case of Md. Iqbal (supra) is

again followed in the case of Vishnu Kumar (supra) and in para Nos.7 and 8, the legal principle has been crystallized by the Bench in the following

terms:

“7. In an identically similar circumstances, in Md. Iqbal Ahmad (supra), this Court held that prior approval of the Cane Commissioner must be

speaking one. It observed as under:--

“It is expected that the Cane Commissioner will go through the proposal for the prosecution and will exercise his discretion in the matter. If after

going through the proposal he feels that the prosecution should be launched he should pass a speaking order approving the proposal of the Cane

Officer for filing the complaint petition.â€​

In Ganga Prasad Dhurke & Ors. vs. State of Bihar & Anr. (Cr. Misc. No.8177 of 1991) vide order dated 26.11.1996, Hon’ble Justice B.N.

Agrawal as he then was observed:--

“… prosecution report indictes that the Cane Commissioner merely put his signature on the bottom of the report after endorsement that

prosecution sanctioned. It is not clear from the prosecution report as to whether Cane Commissioner was authorized under Section 53 of the Act to

launch prosecution. Learned counsel appearing on behalf of the petitioners has placed reliance upon earlier order of this Court by which in similar

cases prosecution of the accused was quashed. This being the position, I am of the view that prosecution of the petitioners is fit to be quashed.â€​

From the aforesaid, it is clear that approval for prosecution to be granted by the Cane Commissioner must be a speaking order and in the case of Md.

Iqbal (supra) and Vishnu Kumar (supra) so also in the case of Ganga Prasad Dhurke Vs. State of Bihar, Cr. Misc. No.8177 of 1991, decided vide

order dated 26.11.1996, it has been held that the Cane Commissioner merely by putting his signature on the bottom of the report and making an

endorsement that prosecution is sanctioned, does not meet the requirement of Section 53 of the Act and prosecution based on such sanction have been

quashed in these cases. In the present case also, identical factual situation exists and if the law laid down in the cases referred to hereinabove are

applied, I have no iota of doubt or hesitation in holding that sanction for prosecution in the present case has not been granted by a speaking order and,

therefore, following the principle laid down in the cases referred to hereinabove, I have no option but to allow this application and quash the

prosecution against the present petitioners in G.C. Case No.24 of 2013, Trial No.1124/2014 vide order dated 15.12.2013.

Having answered the second question in favour of the petitioners, it is not necessary to go into the first one and prosecution of the petitioner for the

offence under Section 13 (8) and (9) of the Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 in G.C. Case No.24 of 2013, Trial

No.1124/2014 vide order dated 15.12.2013 stands quashed.

The application is allowed and disposed of.