ORDER
Abhijit Sinha, J.
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1. The Union of India through the Registrar of the Companies Bihar and Jharkhand filed three complaint cases bearing complaint Case No. 51(C)/03, Complaint Case No. 52(C)/03 and Complaint Case No. 53(C)/03 impleading Bihar State Food & civil Supplies Corporation Ltd. Its Managing Director Jagjit Kumar Datta alias J.K. Datta and the company Secretary Rameshwar Prasad Das for Commission of offences under Section 220(3) of the Companies Act, 1956. The Managing Director, J.K. Datta has preferred these three criminal Misc. petitions for quashing of the entire proceedings and with the parties being the same in all three cases they have been taken up together and are being disposed of by this common order.
2. Through Cr. Misc. No. 87/05 the petitioner has sought for quashing of the entire proceeding of complaint Case No. 51(C)/03 pending before the Special Judge, Economic offences, Patna including the order dated 30.6.2003 whereby cognizance has been taken. Through Cr. Misc. No. 545/05 the petitioner has sought for quashing of the entire proceeding of Complaint Case No. 52(C)/03 pending in the same court including order dated 30.6.2003 wherein cognizance has been taken and through Cri. Misc. No. 369/05 quashing of the Complaint Case No. 53(C)/03 including order dated 30.6.2003 whereby cognizance has been taken is sought to be quashed.
3. The order of cognizance has been challenged in all three cases on two primary grounds. In the first instance it was sought to be submitted that the petitioner was a Government servant and at the relevant time he being the Managing Director of Bihar State Food and Civil Supplies Corporation Ltd. (hereinafter to be referred to as ‘the Corporation’), the court below had taken cognizance in contravention of Section 197 of the Code of Criminal Procedure. As he is a government servant and discharging or purporting to discharge his official duty prior sanction was required for prosecution. In support of his submission the learned Counsel for the petitioner relied upon a decision of the Supreme Court reported in 2006 (1) SCC 557 and as such according to the learned Counsel for the petitioner taking of cognizance is barred under Section 468 of Cr.P.C. It has been submitted that under Section 220(3) of the Companies Act read with Section 162(1) of the Companies Act the punishment is only fine up to Rs. 50/- per day in which the limitation is only sis months.
4. Secondly it was submitted that the learned Magistrate without hearing the petitioner and assigning any valid and cogent reasons has condoned the delay whereafter he took cognizance.
5. It will be gainful to point out one paragraph from the decision reported in 2006 (1) SCC regarding the applicability of Section 197 of Cr.P.C. and paragraph 9 of the said Judgment reads as follows:
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So far public servants ere concerned, the cognizance of any offence, by any court, is barred by Section 197 of the code unless sanctioned is obtained from the appropriate authority, if the offence alleged to have been committed, was in discharge of the official duty. The Section not only specified the person to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afford to a public servant is brought out by the expression “no court shall take cognizance of such offence except with the previous sanction”. Use of the words “no” and “shall” make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is, the complain cannot be taken notice of. According to Black’s Law dictionary the word “cognizance” means “jurisdiction” of “the exercise of jurisdiction” or “power to try and determine causes”. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during the discharge of his official duty.
6. It would, thus, appear from the aforesaid decision of the Apex Court that so far as public servant is concerned he is entitled to the benefit of Section 197 of Cr.P.C. unless sanction is obtained from the appropriate authority. In the instant case the alleged offence was committed by the petitioner while functioning as a government servant in due discharge of his duty and on the alleged date of the occurrence he was in service and was working as the Managing Director of the Bihar State Food and Civil Supplies Corporation Ltd. The real test to be applied to attract the applicability of Section 197 is whether the act which is done by a public servant and is alleged to constitute an offence was done by the public servant while acting in his official capacity. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of duty, if the act complained of is done by acting as a public officer and in course of the same transaction in which the official duty was performed or purported to be performed the public servant would be protected.
7. In the instant case the act constituting an offence alleged to have been committed by the petitioner in all the three cases was certainly done by him in his official capacity. On the totality of the facts and circumstances of the case in my opinion the learned Special Judge, Economic Offices, Patna has erred in taking cognizance without the prior sanction of the appropriate authority.
8. Accordingly, all the three applications are allowed and the orders in question as also the entire criminal proceedings so far as the petitioner is concerned of Complaint Case Nos. 51(c)/03, 52(C)/03 and 53(C)/03 are hereby quashed.