Ran Vijay Kumar vs State of Bihar and Another

Mridula Mishra, J.—The petitioner, a Senior Professor and Principal of Patna College has filed this application for quashing the entire criminal proceeding as well as the F.I.R. of Vigilance P.S. Case No. 007 of 2002 registered for offence under sections 480, 465, 466, 467, 471, 427(A), 201, 109, 120B of the Indian Penal Code and Section 13(l)(ll) read with Section 13(2) of the Prevention of Corruption Act, 1988 so far it relates to him only. Petitioner''s case is that the institution of vigilance case under the Prevention of Corruption Act, against the honorary president of non-governmental organisation is beyond the scope and ambit of Vigilance enquiry specially when the sanction for prosecution has not been accorded by the syndicate of Patna University for his prosecution.

One Ashok Kumar Singh, I.A.S., M.D., Bihar State Financial Corporation was the founder president of two N.G.O''s Green Earth and "Sambedna". Misusing his official position he compelled the industrialists and the applicant for loan, to donate and deposit heavy amount in the account of these two N.G.O.''s. Subsequently in connivance with the officials of the registration department the name of Ran Vijay Kumar (petitioner) was substituted as President of these two organisation in place of Ashok Kumar Singh. Ran Vijay Kumar (petitioner) is alleged to have conspired with Ashok Kumar Singh. The F.I.R. was instituted against eleven persons including the petitioner, who is presently posted as Principal, Patna College.

Counsel for the petitioner submits that the entire investigation revolves around Ashok Kumar Singh. So far the petitioner is concerned he is alleged to have not cooperated with the investigating agency due to which and investigation has been delayed.

From the counter affidavit of the Dy. S.P. Cabinet Vigilance and the submissions of the counsel for the opposite party it transpires that only allegation against the petitioner is that he created obstacle in investigation and thus conspired with Ashok Kumar Singh, I.A.S.

The Deputy Registrar, Patna University in its counter affidavit has stated that the syndicate by resolution has refused to give sanction for prosecution of the petitioner as the charges are not relating to the discharge of official duty of the petitioner. Since the petitioner is the Senior Professor of Patna University the syndicate has refused to sanction for his prosecution. This information has been sent to the Vigilance Department as well as Higher Education Department.

Section 19 of the Prevention of Corruption Act deals with the sanction for prosecution and other miscellaneous provisions which provides that "(i) No court shall take cognizance of an offence punishable under sections 7,10,11,13 and 15 alleged to have been committed by a public servant, except with the previous sanction. In the case of a persons who are is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government of that Government; in the case of any other person, the authority competent to remove him from his office.

The petitioner comes in the category of any other person, and the authority competent to remove him from his office is the syndicate of the University.

Section 2 of the Prevention of Corruption Act, 1988 contains the definition part. Under 2(c) public servant coming under this category has been defined. The post which is held by the petitioner comes u/s 2(c)(ix). Any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations.

Petitioner being the Senior Professor and Principal of Patna College is admittedly the public servant u/s 2(c)(ix) of the Prevention of Corruption Act. Authority competent to remove him from his office is the syndicate of the University. Since the syndicate has refused to concur sanction for prosecution by passing a resolution, he cannot be prosecuted. Grant of proper sanction by a competent authority is sine Qua non for taking cognizance of the offence, it is desirable that the question as regards sanction should be determined at early stage, specially when offence comes under Prevention of Corruption Act. According to Black''s Laws Dictionary the word cognizance means "jurisdiction" or "exercise of jurisdiction" or "power to try and determine cases". If sanction is not there the court cannot exercise jurisdiction in case of a public servant, who is an accused of an offence alleged to have been committed in discharge of his official duty.

The above position has been highlighted in 2006(1) S.C.C (Crl.) 47 and K. Kalimuthu Vs. State by D.S.P., . Therefore, I find that in absence of sanction as provided u/s 19(c) of the Act petitioner cannot be prosecuted.

One of the offence alleged in the F.I.R. is u/s 13(1)(d) of Prevention of Corruption Act. To attract the provisions of Section 13(1)(d) of the Prevention of Corruption Act. There must be some evidence to show that the public servant by corrupt or illegal means has, obtained for himself or for any other person any valuable thing or pecuniary advantage or by abusing his position as a public servant, obtained for himself or for any other person any valuable thing or pecuniary advantage or while holding office as a public servant, obtained for any person any valuable thing or pecuniary advantage without any public interest. There must be evidence on record that the accused has obtained for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as public servant.

In the entire prosecution story there is no such allegation or prima facie evidence for prosecution u/s 13(1)(c) of the Prevention of Corruption Act against the petitioner. Whatever evidence is there it is only against Ashok Kumar Singh. Against this petitioner simply it has been mentioned that his name was substituted as president of both the organisations after the registration of the organisation, by Ashok Kumar Singh, committing forgery in the records. There is nothing to show that any pecuniary advantage or valuable thing was accepted by the petitioner for himself or any other person misusing his position as public servant. For these reasons stated above the proceeding of Vigilance P.S. Case No. 007 of 2002 so far it relates to petitioner is quashed. This application is accordingly allowed.