Criminal Miscellaneous No. 10414 of 2016. Case: Panchanand Prasad Vs State of Bihar. Patna High Court

Case Number:Criminal Miscellaneous No. 10414 of 2016
Party Name:Panchanand Prasad Vs State of Bihar
Counsel:For Appellant: Bindhya Kesri Kumar, Sr. Adv. and Arun Kumar, Advs. and For Respondents: Ramakant Sharma and Kedar Singh, Advs.
Judges:Aditya Kumar Trivedi, J.
Issue:Code of Criminal Procedure, 1973 (CrPC) - Sections 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, ...
Citation:2016 CriLJ 4749
Judgement Date:August 03, 2016
Court:Patna High Court
 
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Order:

Aditya Kumar Trivedi, J.

  1. Heard learned Senior Counsel for the petitioner as well as learned Senior Counsel of the Vigilance. At an earlier occasion while the petitioner/accused had approached the Hon'ble Apex Court under SLP (Criminal) No. 9300/2012, the same was dismissed on 24-02-2015, however, the question with regard to sanction was directed to be remained open and under the guise of aforesaid latitude, petitioner has prayed for discharge before the learned lower court advancing his plea that the Law Department, which had issued the sanction, is not at all competent one, no material was available before the concerned authority which could have justified the process of sanction and further, the Law Department neither happens to be Appointing Authority nor Dismissing Authority. Therefore, sanction is defective one whereupon no prosecution could survive as proper sanction is sine qua non for pro valid prosecution. To substantiate such plea, the learned counsel for the petitioner also relied upon principle laid down by this Court under Cr. Misc. No. 44151/2008 as well as Cr. Misc. No. 18584/2010, though the orders of aforesaid Cr. Miscellaneous neither being annexed with brief nor have been placed during course of argument.

  2. Learned Senior Counsel for the petitioner, during course of argument has also placed short notes which substantiates his plea whatever been advanced during course of his argument. It has also been pleaded as is evident from the notes of argument that the defect so pointed out at an earlier occasion could be rectified and followed with issuance of fresh sanction and on account thereof, subsequent prosecution is permissible. However, till subsistence of aforesaid defect, further proceeding is forbidden which ultimately should be directed to conclude by way of discharge of the accused.

  3. At the other end, learned senior counsel representing Vigilance while controverting the submissions made on behalf of petitioner, has submitted that from the sanction order, it is apparent that the same was accorded after perusal of the File No. 9/AA-03-03-2008 belonging the Health Department which contains the relevant materials and that being so, it could not be said that the State Government was not at all versed with the materials with regard to the facts and circumstances of the case. That being so, the Sanctioning Authority had an opportunity to go through the relevant materials whereupon found justified in granting sanction. Furthermore, it has also been submitted that Sanctioning Authority is the State Government and not the Secretary, Law Department which is itself evident from the sanction order (Annexure 7). The Secretary, Law Department was only entrusted to issue the same in obedience to the order of the State Government which he issued and so, it could not be said that the Secretary, Law Department happens to be the Sanctioning Authority and further would question his propriety as being Sanctioning Authority.

  4. It has further been submitted that though, the law speaks with regard to the obligation on the aforesaid score to be raised at an earliest but, that does not mean that on that very score, the petitioner should be discharged rather, the objection is to be seen in the background of the evidence having been adduced during course of trial and so, before conduction of the trial it will be premature to adjudicate the same. As such, it has been submitted that the petition under reference sans merit whereupon, is fit to be dismissed.

  5. In CBI v. Ashok Kumar Aggarwal, reported in 2014 Cr LJ 930, the aforesaid issue along with other issues were raised before the Hon'ble Apex Court while challenging the validity of the prosecution...

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