Rama Shanker Tiwari @ R.S. Tiwari vs The State of Bihar

Narayan Roy, J.—Heard Mr. J.P. Shukla, learned Senior Counsel for the Petitioner and Mr. B. P. Pandey learned Senior Counsel for the Vigilance-opposite party.

By this application u/s 482 of the Code of Criminal Procedure, the Petitioner has prayed for quashing the order dated 15.1.2002 passed by the learned Special Judge, Vigilance, Patna in Special Case No. 87/1990 whereby and whereunder the learned court below has held that the offence under Sections 120B and 109 of the Indian Penal Code is made out against the Petitioner and directed for issuance of summons against him.

it appears that the learned Special Judge, vide order dated 28.5.1994 took cognizance of the offence against the Petitioner for the offence under Sections 13(2), 13(1)(d) read with Section 15 of the Prevention of Corruption Act, 1988 and Sections 120B and 109 of the Indian Penal Code in Special Case No. and processes were issued against him. However, the order taking cognizance against the Petitioner was challenged before this Court in Cr. Misc. No. 11841 of 1996 basical on the ground that no offence whatsoever was made out against the Petitioner. The aforesaid criminal miscellaneous application, however, was disposed of on 9.7.1998 by this Court whereby and where under this Court set aside the order taking cognizance against the Petitioner under the provisions of the Prevention of Corruption Act for want of previous sanction and remitted back the matter for fresh consideration by the court below. So far as the question of cognizance under the provisions of the Penal Code was concerned, while remitting back the matter, this Court directed the court below to examine the question of cognizance under the provisions of the Indian Penal Code in the light of the materials on record including the case diary. It was further directed that the court below will decide as to whether prima facie case under Sections 120B and 109 and other sections of the Indian Penal Code is made out and in case it would be satisfied that prima facie case is made out then it should decide as to whether cognizance of the offence under the aforesaid sections could be taken even after non-prosecution of the Petitioner under the provisions of the Prevention of Corruption Act for want of valid sanction.

On remand, the learned Spacial Judge has passed the order impugned holding that the offence under Sections 120B and 109 of the Indian Penal Code is prima facie made out against the Petitioner as these are distinct offences and for which prior sanction is not required.

Mr. J.P. Shukla, learned Counsel appearing on behalf of the Petitioner assails the impugned order mainly on the ground that the order impugned is not in consonance with the direction of this Court and the learned Special Judge without applying his judicial mind to the materials collected in course of investigation has held that prima facie offence under Sections 120B and 109 of the Indian Penal Code is made out against the Petitioner. Learned Counsel submitted that the learned court below has not referred the relevant paragraphs of the case diary showing that prima facie materials were collected in course of investigation to proceed against the Petitioner for the offence under Sections 120B and 109 of the Indian Penal Code, therefore, the order impugned is not sustainable in law.

From the order as contained in Annexure-10 passed by this Court in Cr. Misc No. 11841 of 1996, it appears that this Court after setting aside the order taking cognizance against the Petitioner under the provisions of the Prevention of Corruption Act remitted back the matter to the court below to decide after considering the materials on record including the case diary as to whether prima facie case under Sections 120B and 109 of the Indian Penal Code and other sections of the I.P.C. is made out and in case he comes to the conclusion that prima facie case is made out then he should decide as to whether cognizance of the offence under the aforesaid sections could be taken even after non-prosecution of the Petitioner under the provisions of the Prevention of Corruption Act for want of valid sanction.

From the order impugned, it appears that the learned Special Judge has discussed the facts of the case and has held that the offences under Sections 120B and 109 of the Indian Penal Code are distinct offences. However, it appears from the order impugned that the learned court below has not discussed in detail as to what were the materials in the case diary prima facie disclosing an offence under Sections 120B and 109 of the Indian Penal Code. In view of the specific direction of this Court, as referred to above, the learned Special Judge was required to scrutinise the materials on record including the case diary. The learned court below, as it appears, has discussed the legal questions for taking cognizance under Sections 120B and 109 of the Indian Penal Code in case the accused is not facing trial for the substantive offence under me provisions of the Prevention of Corruption Act but he has not discussed the relevant paragraphs of the case diary prima facie disclosing an offence against the Petitioner under the Indian Penal Code. In this view of the matter, I find substance in the submission of the learned Counsel for the Petitioner inasmuch as the court below has not applied judicial mind in scrutinising the materials on record including the case diary.

For the reasons aforementioned, the order impugned is not sustainable and the matter requires fresh consideration by the court below. As the learned court be- low has not carried out direction of this Court as referred to above, in stricto sensu, I do not consider it appropriate and proper to undertake this talk of deciding the question which could have been decided by the learned court below who was seized with the relevant records and the case diary.

In the result, this application is allowed and the order impugned is set aside and the matter is remitted back to the learned court below for its disposal in ac- cordance with law in the light of the obser- vations made above.