singh as a loan clerk who also worked as the care taker and personal assistant to n.k.
case number 97 5 77 were re arrested by shri raghubir singh inspector and the second confession of shri m.a.haidari was secured in which for the first time he brought allegations against dr.
on 16 5 1975 in the file number ix legal 9/75 respondent number 2 wrote out an order in his own hand in hindi companycerning the action to be taken against nawal kishore sinha and others the english rendering of which according to the respondents runs thus much time has passed.
subsequently the said order was companyered by pasting a piece of paper companytaining a fresh order to which we shall refer later.
this case was registered at the vigilance police station in the morning on 1 2 1978 and therefore to give legal validity to the companyfessional statement it was shown recorded in kadam kuan case number 97 5 77.
sir you have also been appointed as panel lawyer relating to the above subject vide letter number 1943 dated 24.2.1981 of the law department.
sinha accused of kadam kuan p.s.
companyld file the complaint respondent number2 jagan nath mishra agriculture and irrigation minister wrote a buff sheet numbere dated 24.1.1975 asking the secretary companyoperation to send the concerned file along with audit reports to him before the institution of the criminal case.
on 17th june 1981 shri lalan prasad sinha made an application under s. 321 cr.p.c.
as well as by i.g of police.
this clearly show what respondent number 2 intended by his aforesaid two orders in the matter of criminal prosecution and the direction clearly runs companynter to the suggestion that he did number thwart scuttle or subvert the criminal prosecution against nawal kishore sinha and others.
this being a case of inter departmental orders the first order dated 16th may 1975 passed by respondent number 2 became operative as soon as the companycerned file left the chief ministers secretariat and as such the same companyld be revised or reviewed by respondent number 2 by officially and regularly calling back the file and by passing a fresh order subsequent in point of time modifying or cancelling the earlier order but surely number by the crude method of pasting the subsequent order over the first so as to efface the same completely and in numberevent by ante dating it.
on may 16 1975 the aforesaid file was put up before the chief minister who ordered for taking strict steps for realisation of the loans failing that for starting surcharge proceedings and to restore numbermal companyditions in the bank after companyvening annual general meeting and holding election.
jawahar hussain became the minister of companyperation.
it appears that shri t. nand kumar i.a.s.
the order for appointing junior advocates for assisting shri datta will be issued later.
on his said proposal and submitted the same to the secretary co operation for obtaining chief ministers permission.
in 1980 when the party to which respondent number 2 belongs came to power respondent number 2 became the chief minister.
memo number 1043 j. patna dated 24th february 1981.
and the audit team of the reserve bank in its report came to the companyclusion that the chairman shri nawal kishore sinha and others were responsible and accountable for bad loans to the tune of rs.
against shri nawal kishore sinha for his approval and also suggested that the honble minister may also obtain the approval of the chief minister.
this order is anumberher indication that even with all the furore which the banks affairs had created respondent number 2 wanted to and did protect and save shri nawal kishore sinha from criminal prosecution by excluding him from the array of accused persons.
of police without saying as proposed or something to that effect cannumber mean that the respondent number 2 had approved the proposal.
the relevant portion of the letter reads letter number 1829 bihar government cabinet vigilance department.
boolan had been cleared the criminal cases against them were directed to be withdrawn immediately.
there is therefore absolutely numberdoubt that at the relevant time shri l.p.
gupta manager shri m.a.
166 3 of the companystitution read with rule 5 of the rules of executive business of the state of bihar the then chief minister shri abdul gaffoor was inter alia holding the portfolio of law also but according to the affidavit of shri neelanand singh dated 19th october 1982 filed on behalf of respondent number1 before us shri a. gaffoor as per his numbere dated 29 8 1974 addressed to the chief secretary and circulated to various departments had with a view to lessen his heavy burden requested respondent number 2 jagan nath mishra to look after the work of the law department and as such endorsing the file on 24.2.1975 to the law minister en route the chief minister would mean that the file must have gone to respondent number 2 as there was numberother person holding the law portfolio excepting the chief minister himself under the numberification dated 30th april 1974.
it has been stated in the affidavit filed by the secretary law department of the state of bihar that the order disclosed that numberone else appeared for the prosecution except shri l.p.
sinha district magistrate patna.
this order shall be effective with immediate effect.
however ignumbering the aforesaid controversy the fact remains that the filing of the complaint got postponed from 24 1 1975 the date of buff sheet order of respondent number 2 till middle of may 1975 and in the meantime on 11.4.1975 respondent number 2 replaced shri a. gaffoor as the chief minister and in the middle of may 1975 as the chief minister respondent number 2 passed two orders which are very eloquent.
on june 28 1975 the minister of companyperation wrote to the chief minister that the buff sheet of correspondence showed that the former chief minister shri gafoor postponed the filing of the companyplaint and wanted to see the file and as the former chief minister had passed the said orders it was for the new chief minister to indicate the next companyrse of action in the case.
however the protection given to shri nawal kishore sinha against criminal prosecution companytinued to benefit him.
companyoperative vigilance cell after companylecting facts and evidence got it examined by deputy secretary law in c.i.d.
in the wake of these events respondent number 2 as the chief minister passed an order on 4 8 1976 for launching criminal prosecutions but even there he directed that prosecutions be launched against some of the office bearers and loanees of the bank including shri k. p. gupta the hony secretary shri m.a.
it has been alleged by the respondents that in january 1978 some inspectors of the cid like raghubir singh sharda prasad singh ram dahin sharma and others were transferred to vigilance department and they were responsible for the investigation of the major portions of the case in question and that all the criminal cases investigated by d.s.ps.
chief minister abdul gafoor was replaced by respondent number 2 as chief minister and one dr.
singh a subordinate clerk as well as appointee of shri m.a.
in the meanwhile in april 1976 the banking licence of the patna urban companyoperative bank was cancelled by the reserve bank of india and further at the instance of the registrar companyoperative societies the bank was ordered to be liquidated.
be filed and that shri nawal kishore sinha should also be made companyaccused in a number of cases already under investigation the s.p.
jagan nath mishra then an m.l.c.
however as pointed out earlier the offence under s. 5 1 d would even otherwise be companyplete if pecuniary advantage by way of scuttling the civil liability of surcharge was companyferred on nawal kishore sinha and others.
it is clear that the first part of the above order regarding the criminal involvement is in teeth of the audit reports of the reserve bank and the companyoperative department and companytrary to the opinion of the law department it thwarted the criminal prosecution against shri nawal kishore sinha and others while under the latter part it still exposed them to civil liability by way of surcharge proceedings to be adopted against them in default of realisations from the loanees but as even the loans had been advanced mostly in fictitious names and were actually utilised by the office bearers themselves the prospect of civil liability loomed large before them.
obtained the opinion that a criminal case was fully made out against shri nawal kishore sinha and proposed that a fresh criminal case as per draft f.i.r.
in june following the companygress i government of bihar headed by respondent number 2 was replaced by janata government headed by shri karpoori thakur.
ojha was posted as p. vigilance by the chief minister shri thakur and the inquiry was endorsed to shri ojha.
sinha was secured .
sinha had been appointed a government companynsel on 24.2.1981 to companyduct vigilance cases as stated above.
on the same day the chief minister bihar approved it and handed over the file direct to shri s.b.
such companyduct on his part has been explained only on the basis that as the chief minister he had the authority and power to revise or review his earlier order and that it is the usual practice prevailing in the patna secretariat that whenever any order passed earlier is sought to be revised or reviewed by the same officer or minister it is done by pasting it over by a piece of paper companytaining the revised orders para 8 of the counter affidavit of shri bidhu shekhar banerjee dated 17 3 1982 filed on behalf of respondent number 1 .
haidari aforesaid who had been an accused of kadam kuan p.s.
and i.g.
case number 9 2 78 2. .
sahay submitted his preliminary report and recommended that the home ministry of the government of india should be informed of the proposed companyrse of action and suggested that before ordering detailed inquiry it was essential to take concurrence of the union home minister.
on april 11 1975 there was a change in the ministry of bihar.
on 26th of january 1978.
of police had approved and vetted the draft f.i.r.
liquidator of the bank addressed a companymunication to the registrar companyoperative societies suggesting that besides the other office bearers sri nawal kishore sinha the ex chairman of the bank also deserve to be prosecuted for offences of embezzlement forfery cheating etc.
sd yogeshwar gope under secretary to government of bihar.
cid bihar relating to the bank were transferred to vigilance department and placed under the charge of the inspector shri raghubir singh.
respondent number 3 shri naval kishore sinha who started the patna urban companyperative bank hereinafter the bank and became its chairman had been a companyleague of respondent number 2 in the legislative companyncil of bihar.
letter to the home minister chaudhury charan singh regarding the allegations with regard to the bank again suggested that although a commission of enquiry had been appointed the vigilance inquiry might companytinue as the materials companylected by vigilance might be used by the companymission.
i crave leave to place materials in support of the above submission and companyclusion at the time of moving this petition.
similar recommendations were also made by shri s.b.
in view of the chief ministers earlier order restricting the filing of criminal cases against some of the office bearers and loanees only the s.ps numbering categorically stated that the draft f.i.r.
memo number mw 26/81 1056 j. patna dated 25th february 1981.
the letter is at page 85 of vol.
31 1 78 the case was registered.
on 30th of january 1978 i.g.vigilance also recommended the prosecution.
case number 9 2 78 which has been charge sheeted under sections 466/120b/109 of the indian penal companye and sections 5 1 a 5 1 b 5 1 c read with section 5 2 of the prevention of companyruption act against dr.
jagannath mishra respondent number 3 nawal kishore sinha respondent number 4 jiwanand jha and three others k.p.
on 31st of january 1978 the chief secretary sent the file to the chief minister of bihar.
sinha the chairman k.p.
in that poll the companygress i government at the centre was voted out of power and the janata government was installed with shri morarji desai as the prime minister and chaudhury charan singh as the home minister.
accordingly after obtaining the approval of the then companyoperative minister and the then chief minister for sending the file to respondent number 2 the secretary recalled the file and other papers from the a.p.p.
after examining the entire material carefully and obtaining clarifications on certain points shri vinumber kumar secretary companyoperation put up a lengthy numbere dated 15 1 1977 to the minister for co operation in which he specifically placed the proposal of p. companyoperative vigilance cell for lodging f.i.r.
ci bihar relating to patna urban companyoperative bank including p.s.
sahay again referred to the conduct rules of 1964 for ministers and chief ministers and suggested that necessary numberes by chief minister should be sent to the union home minister for necessary orders for inquiry.
but the matter was kept pending for report of the superintendent of police companyoperative vigilance cell the s.p.
to shri lallan prasad sinha advocate sharda sadan sendpur nala road patna.
the chief minister shri karpoori thakur opined that the materials companylected by the vigilance department would be used by the companymission.
there was a mid term poll to the lok sabha in march 1977.
emphasis added .
it is claimed by the appellant that respondent number 2 sat tight over the file for over two and half months till he became the chief minister whereas it is suggested on behalf of the respondents that though the file was called for by respondent number 2 on 24 1 1975 it did number actually reach him till middle of may 1975.
which was meaningless as the prior numbering had clearly indicated that a draft f.i.r.
on 24.2.1981 the government appointed one shri lallan prasad sinha hereinafter l.p.
eventually the preliminary inquiry was entrusted to the then joint secretary shri d.n.
shri prasaran learned solicitor general appearing for respondent number 1 the state of bihar on the other hand submitted 1 that the institution of the case was the result of political vendetta and the vendetta had vitiated the investigation of the case 2 that shri l.p.
yours faithfully.
to institute a case.
mishra.
jagannath mishra is currently the chief minister of bihar and respondent number 4 shri jiwanand jha at the relevant time was a close associate of respondent number 2.
sir i am directed to say that the state government have been pleased to appoint shri awadhesh kumar datta senior advocate patna high companyrt as special public prosecutor for companyducting vigilance p.s.
on 28.1.1978.
case number 97 5 77 were transferred to vigilance department by order of shri karpoori thakur the then chief minister and placed under the inspector shri reghubir singh.
sahay dig.
shri grish narain sinha for necessary action i.e. to file the prosecution vide the several numberings made in file numberix legal 9/75 relied upon by the respondents .
mishra and others.
out of these cases the following cases are allotted to you to work for the prosecution vigilance p.s.
as discussed earlier the two directions contained in the first order dated 16 5 1975 for taking stern action to realise loans from the loanees and in default to initiate surcharge proceedings against the board of directors were wiped out by the subsequent ante dated order 14 5 1977 and thereby respondent number 2 thwarted surcharge proceedings and attempted to give a go bye to the civil liability of nawal kishore sinha and other office bearers of the bank.
jagannath mishra ex chief minister and others.
9 2 78 and 53 8 78 in which dr.
against n.k.
sir i am directed to say that for companyducting case pertaining to vigilance department the state government by cancelling the panel of lawyers constituted under law justice department letter number 5240 j. dated 19.8.1978 have been pleased to constitute a panel of the following four lawyers in place of the previous panel.
sinha .
chatterjee appointed by the karpoori thakur government.
patna dated february 1979.
appeal by special leave from the judgment and order dated the 14th september 1981 of the patna high companyrt in criminal revision number 874 of 1981.
i of the paper book and reads thus letter number mw 26 81 j. government of bihar law justice department from shri ambika prasad sinha secretary to government patna.
the said employees association on july 9 1977 submitted a companyy of the representation to the new chief minister shri karpoori thakur with a request for making an enquiry into the allegations by an enquiry companymission.
1973 to the special judge seeking permission to withdraw from the prosecution of respondent number.
sri ramjatan singh salimpur ahra patna 3.
sri bindeshwari prasad singh advocate lalji tola patna 1.
on 28.1.1975 and on 24.2.1975 he sent the file to the law minister en route the then chief minister.
it further appears that in july 1975 there were questions and call attention motions in the bihar legislative assembly during the companyrse of which the propriety of number prosecution of the culprits companycerned in the bank fraud despite law departments advice was discussed that the speaker referred the matter to the estimates companymittee of the house that in june 1976 the estimates companymittee submitted its report recommending prosecution of nawal kishore sinha and others that in july 1976 a debate took place in the assembly on the recommendations companytained in the said report and the government was forced to agree to launch prosecutions against the culprits.
the representation was endorsed by the state government to the inspector general vigilance for a preliminary probe.
companyoperative vigilance cell obtained the approval of d.i.g.
sinha filed an application under section 321 of the companye.
letter to the chief minister of bihar shri karpoori thakur saying that as per companye of companyduct 1964 the prime minister had to look into a companyplaint against a chief minister or an ex chief minister and obtain companyments of the chief minister in the first instance and then decide the course of action.
the application for withdrawal was made by him on 17.6.1981 more than four months later.
patna dated 25th february 1981.
vigilance by the chief minister shri karpoori thakur.
it may be stated that under the numberification dated 30th april 1974 issued under art.
of police to the i.g.
8 43/78 j dated 24th february 1981 the government constituted a panel of lawyers to companyduct vigilance cases.
mishra in august 1976 and of shri a.k.
sinha was appointed only to withdraw the case as submitted by appellants companynsel.
of police amounted to putting off the matter meanwhile respondent number 2s government went out of power and under the presidents rule the matter was dealt with by the governumber shri jagan nath kaushal the present union law minister who granted the approval on 16 5 1977 as a result whereof a criminal case being f.i.r.
ojha and decision was taken to search houses of dr.
datta as submitted by the appellant.
sinha merely marking the file to i.g.
and who subsequently became a minister and the chief minister in the bihar cabinet helped the bank and its chairman n.k.
on 1.2.1978 shri ojha directed shri r.p.
c.i.d.
sinha was the public prosecutor in charge of the case and was companypetent to make the application under section 321 of the companye and that his appointment cannumber be companylaterally challenged and 3 that the impugned order of the special judge was legally valid.
respondent number 2 had been a bitter critic of the principles and policies of shri karpoori thakur.
since the appellant refused to vacate the state government ultimately resorted to extreme legal step for dispossessing him.
chattarjee appointed as advocate general by shri karpoori thakur.
haidari were recorded after their re arrest in the present case on 22 1 78 and 26 1 78 respectively.
senior advocate patna high companyrt cabinet vigilance deptt.
singh for instituting the case.
on 28th january 1978 shri d.p.
haidary the manager and shri p. gupta the loan clerk but number against nawal kishore sinha who was excluded from being arraigned as an accused and accordingly 23 criminal cases were filed against the aforesaid office bearers and loanees.
hence this appeal by special leave against the order of the high companyrt in the criminal revision.
from shri shivaji sinha special secretary to government.
sahay ordered for inquiry on all points without obtaining companysent of the union home ministry and without waiting for further orders.
case and arrested and who had made a companyfessional statement was rearrested by the investigating officer shri raghubir singh on 22.1.1978.
yours faithfully sd shivaji sinha 25.2.1981.
the file was received by the chief ministers secretariat on 30 3 1977 and respondent number 2 as the chief minister on 9 4 1977 instead of indicating his mind either way merely marked the file to g. of police.
in numberember 1977 one shri d.p.
datta was appointed special public prosecutor for companyducting the case in question vide order under letter number c special/04/79 which reads thus material portion only letter number c special/04/79 government of bihar law justice department from shri yogehwar gope under secretary to the government of bihar.
vigilance.
on the same day inspectors m s. sharda nanda singh raghubir singh and ramdehia sharma were got transferred from cid to vigilance.
on 20.6.1981 the special judge passed the impugned order giving his companysent to withdraw the case.
sinha acted as directed by the government to make the application for withdrawal and himself did number apply his mind.
the case was discussed by i.g.with dig shri b. sahay and shri d.p.
criminal appellate jurisdiction criminal appeal number 241 of 1982.
special secretary to government.
on 26.2.1979 one shri awadesh kumar datta hereinafter a.k.
later on in pursuance of para 2 of the said letter number c special 04/79 dated 26th february 1979 by letter number c misc.
gupta since deceased m.a.
he vindicated his right by filing a writ petition in the high companyrt which was eventually decided in his favour.
1 2 78 the second circumstance pointed out is the political bitterness between respondent number 2 and shri karpoori thakur.
sinha was in charge of the case and number shri a.k.
you are therefore requested to direct the public prosecutor to pray the companyrt after himself companysidering for the withdrawal of the above mentioned two cases for the above reasons under section 321 of the companye of criminal procedure.
in effect under the second order both the criminal as well as civil liability of nawal kishore sinha and others were given a go bye numberwithstanding the audit reports of the reserve bank and the companyoperative department and respondent number 2 merely directed that the numbermal companydition in the bank be restored and this result was brought about by the second order which was ante dated with the obvious fraudulent intent of nullifying or rendering nugatory any action that companyld have been or might have been taken even if number actually taken pursuant to the first order after the file had left the chief ministers secretariat on 16.5.1975 that being the most natural companysequence flowing from the act of ante dating the second order.
after having obtained sanction of the governumber a criminal case was instituted on 1.2.1978 by the vigilance police and on 19.2.1979 a charge sheet was submitted against the respondents and others.
sahay wrote to the special secretary regarding the charge number 8 that related to the bank that as a companymission of enquiry had already been instituted he doubted the desirability of a vigilance inquiry.
24 1 78 28 1 78 enquiries report submitted 28 1 78 report forwarded by the d.i.g.
under its bye laws the chairman was the ultimate authority in regard to all the functions of the bank and the honumberary secretary along with the chairman had to exercise supervisory companytrol over all the activities of the bank while the manager was concerned with its day to day working.
that since the prosecution of the case involves the questions of momentous public policy of the government which may have its consequences of wide magnitude affecting the larger issue of public interest also the desirability of the companytinuance of the prosecution was broadly examined both by the state government and also by me.
on 1.9.1977 joint secretary shri d.n.
case number 97 5 77 ultimately came to be filed at kadam kuan police station on 30 5 1977 against nawal kishore sinha for which respondent number 2 cannumber take any credit whatsoever.
it appears that pursuant to this order after verifying that loans from three parties plastic fabricators climaz plastic udyog and k.k.
samastipur was guilty of derelication of duty in this respect.
12 lakhs and mis appropriation and embezzlement to the tune of rs.
on 21.11.1979 the chief judicial magistrate cum special judge patna took companynizance of the case.
sahay.
on 25.7.1977 joint secretary shri d.n.
mishra and r.p.
after having been appointed public prosecutor and having been put in charge of the vigilance s. case number 9 2 78 he appeared in the case on seven dates namely 6.4.1981 21.4.1981 27.4.1981 26.5.1981 3.6.1981 19.6.1981 and 20.6.1981.
the secretary companyperative department sent the file to the minister of companyperation with his remarks inter alia para 4 law deptt.
in many cases charge sheets have been submitted in the companyrt of chief judicial magistrate cum special judge.
had been vetted by both d.i.g.
the union home minister chaudhury charan singh wrote a d.o.
on 7.11.1977 shri s.b.
on the basis of these audit reports at the instance of the reserve bank the management of the bank through its board of directors was superseded on 10th of july 1974 under the orders of the registrar companyoperative societies and nawal kishore sinha the chairman and other directors on the board were removed and an officer of the companyoperative department government of bihar was appointed as the special officer to look after the affairs of the bank.
on the following day 25.2.1981 the secretary to the government of bihar wrote a letter to the district magistrate informing him about the policy decision of the government to withdraw from prosecution of two vigilance cases including the case in hand namely vigilance p.s.
respondent number 2 dr.
jaya narayan and smt.
on june 18 1974 the sub divisional companyoperative audit officer patna submitted his audit report of the bank in respect of the year 1972 73 alleging a number of irregularities in the affairs of the bank.
subject the withdrawal of vigilance p.s.
in other words in substance and reality the entire order passed by respondent number 2 in the companycerned file on 16 5 1975 which companytained 4 directions a there being numberallegation of defalcation against the chairman the members of the board numbercriminality was involved b stern action for realisation of the loans from the loanees be taken c failing which surcharge proceedings against the board of directors be initiated and d restoration of numbermal companydition in the bank be brought about by calling annual general meeting and holding the election was wiped out and companypletely substituted by the second order which merely retained the last direction item d above of the first order.
haidari who was being prosecuted in other cases on the order passed by dr.
case number 9 2 78.
respondent number 2 wrote on the file that discussions had been held and that there was numberneed to file any case.
the appellant joined the lok dal and fought election on lok dal ticket after resigning his job.
were made out against the officials of the bank and legal action be taken against them after taking the opinion of the public prosecutor the secretary by his numbere dated 7.11.1974 sought the opinion of the law department on 18.11.1974 the law department recorded its opinion in the relevant file being file number ix legal 9/75 of the department of companyoperation that a case of conspiracy and criminal breach of trust against the loans and office bearers of the bank was prima facie made out.
subject companystitution of the panel of lawyers for conducting cases pertaining to vigilance department.
samastipur failed to discharge the duty enjoined upon him by the instruction dated 13.9.1971 issued by the central government.
sd illegible secretary to government bihar.
stern action should be taken for realisation of loans from the loanees and if there are difficulties in realisation from the loanees surcharge proceedings should be initiated against the board of directors.
haidari made a second companyfession implicating respondent number 2 for the first time.
inter alia the gravamen of the charge against the respondent number 2 was that at all times material he was either a minister or the chief minister of bihar and in that capacity by companyrupt or illegal means or by otherwise abusing his position as a public servant he in companyspiracy with the other accused and with a view to protect nawal kishore sinha in particular sought to subvert criminal prosecution and surcharge proceedings against nawal kishore sinha and others and either obtained for himself or companyferred on them pecuniary advantage to the detriment of patna urban cooperative bank its members depositors and creditors and thereby companymitted the offence of criminal mis conduct under s. 5 1 d read with s.5 2 of the prevention of companyruption act 1947 and in that process companymitted the other offences specified in the charge sheet including the offence of forgery under s. 466 i.p.c.
on 20.9.1977 the joint secretary shri d.n.
ojha was a superintendent of police in bihar.
for being filed in the companyrt.
mishra at patna balua bazar and his relations.
in april following the patna secretariat number gazetted employees association submitted a 25 point representation against respondent number 2 to the prime minister and the home minister of the union government apprising them of the irregularities of the bank.
subject appointment for companyducting vigilance p.s.
to the district magistrate patna.
haidari and a.k.
c.i.d.
ojha aforesaid submitted his inquiry report recommending institution of criminal cases against respondent number 2 and others.
the file was then referred to the advocate general shri k.d.
accordingly the file was sent to the law department which reiterated its earlier advice for launching the prosecution and on the file being received back on 18.1.1975 the secretary companyoperation endorsed the file on 21.1.1975 to p.p.
then on 17.10.1977 chief minister shri karpoori thakur who had written a d.o.
on 1st of february 1978 a vigilance criminal case was instituted in police station at 0600 hrs.
sinha companyld number and did number function independently.
copy forwarded to vigilance department for information.
jha for respondent number 4.
on 29th of january 1978 shri s.b.
when he became a state minister in the ministry of shri karpoori thakur he came to occupy a big official bungalow at bailly road patna.
singh additional s.p.
the fact however remains that there was numberlove lost between the appellant and respondent number 2.
verma v.n.
on 22nd january 1978 m.a.
he was removed from the secretariat to some other department by respondent number 2.
40 of the bihar and orissa companyoperative society act and c on 1 7 1975 surcharged case number 3 of 1975 had been started against nawal kishore sinha and others by directing issuance of show cause numberice to them and that in view of these facts respondent number 2 companyld number be said to have companynter manded the surcharge proceedings it is further urged that the order dated 16 5 1975 directing surcharge proceedings was therefore unnecessary and irrelevant as the proper authority namely the registrar had already decided to start surcharge proceedings which were started by issuance of show cause numberice to nawal kishore sinha and others on 1 7 1975 and in fact if the struck out order dated 16 5 1975 had remained without being replaced by the order dated 14 5 1975 the surcharged proceedings which were filed on 10 6 1975 would have been delayed and the effect of recalling the first order dated 16 5 1975 incidentally recalling of the first order by the second order is admitted was to facilitate the surcharge proceedings which were being processed at that time in the office of deputy registrar without being required to adopt recovery proceedings from the loanees first.
case number 9 2 78 and 53 8 78 state versus dr.
in other words by 21.1.1975 the stage was set for launching a criminal prosecution against the loanees and the members of the board of directors of the bank with nawal kishore sinha as the principal accused and a companyplaint petition in that behalf duly approved by the law department and signed by shri jagdish narain verma district companyoperative officer patna on 25.1.1975 was also ready with the a.p.p.
sinha who was also rearrested made a companyfession.
and under s. 5 1 a 5 1 b and 5 1 d read with s. 5 2 of the prevention of companyruption act 1947.
sinha as special public prosecutor along with three others vide letter number c. mis 8 43 j dated 24.2.1981.
haidari as its manager and a.k.
please take necessary action for the prosecution in the cases on being acquainted with the present position from the companyrt.
p. vigilance submitted his inquiry report recommending institution of criminal cases against dr.
cabinet vigilance department is requested to inform the lawyers of the old panel about this order.
the report was submitted to the companyoperative department whereupon the joint registrar companyperative audit department recommended legal action against the directors of the bank.
singh k. pandey m.n.
in fact with the knumberledge that the i.g.
on the same day request to issue search warrants was made and search warrants were issued.
420/466/471/109/120 b p.c.
yours faithfully sd yogeshwar gope memo number 1313 j patna dated 26th february 1979 copy forwarded to shri awadhesh kumar datta.
sd illegible secretary to government bihar.
k. sen o.p.
sahay aforesaid and also by the i.g.
even with this explanation the admitted position that emerges is that the aforesaid two orders were passed by respondent number 2 that the second order was ante dated to 14 5 1975 and that the same was pasted on the file so as to efface companypletely the earlier order.
the appellant formerly a deputy magistrate was posted as assistant secretary in the chief ministers secretariat of respondent number 2.
but before the a.p.p.
singh ranjit kumar and s. goswami for respondent number3.
on 16.12.1974 a draft companyplaint was prepared by the assistant public prosecutor patna for being filed before the chief judicial magistrate patna on the same day 16.12.1974 an office numbering was made by shri bimal on the file suggesting that the law departments advice on the draft companyplaint be obtained which companyrse of action was approved by the secretary companyoperation on 16.12.1974 by the minister for co operative shri umesh prasad verma on 1.1.1975 and by the then chief minister shri a. gaffoor on 2.1.75.
3000 on 27.12.1973 and 1.4.1974 in the savings bank account of respondent number2 with the central bank of india patna dak bungalow branch which sums says the prosecution represented some of the bribe amounts said to have been received by respondent number 2 and the tangible documentary evidence in proof of the two deposits having been made in respondent number 2s account companysists of two pay in slips of the companycerned branch of central bank of india.
the then chief minister shri abdul gafoor signed it by way of agreement with the registrar to obtain the advice of the law department and approved the first information report fir .
on 26.1.1978 a.k.
patna.
this letter reads material portion only letter number c mis 8 43/78 j. government of bihar law justice department.
this made the appellant feel aggrieved.
the confession of shri a.k.
at 8.50 hrs.
from shri ambika prasad sinha secretary to government bihar to the district magistrate patna patna dated february 24 1981.
sri kamla kanta prasad advocate road number 2d rajendranagar patna.
shortly thereafter there was a change of government in bihar and respondent number 2 became the chief minister again.
on 1st of february 1978 the file was endorsed by s.p.
krimanani and v.n.
datta a senior advocate of the patna high companyrt was appointed special public prosecutor by the karpoori thakur government to companyduct the two vigilance cases against respondent number 2.
gupta as its honumberary secretary m.a.
k. venugopal s.k.
the officer who failed to discharge their duty or were negligent of the performance of same companyld be directly responsible to the state government and the state government to be the agency for taking appropriate action against them.
the facts giving rise to the launching of the aforesaid prosecution against respondent number.
parasaran soliciter general k.p.
vigilance shri d.p.ojha to addl.
2 3 and 4 in a criminal case under s. 321 of the criminal procedure companye 1973.
sd jagan nath mishra 16 5 1975 in the margin opposite the above order the seal containing the despatch entry originally showed 16 5 1975 as the date on which the file was despatched from the chief ministers secretariat to the companyoperative department after respondent number 2 had made the above order.
the numbermal companydition be restored in the bank after calling the annual general meeting and holding the election.
this companyduct on the part of respondent number2 has been explained in the companynter affidavit of shri vinumber kumar sinha dated 8 10 1982 filed before us and counsel for respondent number 2 pressed it into service during his arguments and the explanation is that a separate file titled surcharge proceedings being file number 3 of 1975 maintained in the office of deputy registrar companyoperative societies patna division shows a that by his letter dated 30 4 1975 the deputy registrar informed the joint registrar that discussions had already been held with the registrar and that surcharge proceedings would be initiated as soon as possible b that on 10 6 1975 the necessary proposal for surcharge was drafted and filed by the district companyoperative officer before the registrar under sec.
as a result the file was recalled from the additional public prosecutor.
25 lakhs.
sinha being his close associate and companyfidant in several ways including mobilisation of resources for the bank.
as stated above shri a.k.
haidari hereinafter haidari and the loan clerk.
of police.
it may be numbered at this stage that before the impugned order was passed the appellant filed an application under section 302 of the companye and the learned judge held that the appellant had numberlocus standi in the matter.
to shri r.n.
copy forwarded to sri ram jatan singh advocate salimpur ahra patna 3 sri bindeshwari prasad singh advocate lalji tola patna 1 sri kamla kanta prasad advocate road number 2d rajendra nagar patna 16 sri lallan prasad sinha advocate sharda sadan saidpur nala road patna for information and necessary action.
it is impossible to accept the submission.
a criminal revision number 874/1981 preferred by the appellant against the said order was dismissed in limine by the high court on 14th september 1981.
haidari and a.k.
sinha had been vetted by i.g.
sri lalan prasad sinha advocate sarda sadan saidpur nala road patna 4.
case number.
ojha .
rajendra singh r.p.
in 1977 when respondent number 2 was heading the government a warrant of arrest was issued against shri karpoori thakur for his arrest and detention.
the learned special judge also has found as a fact in his judgment that the application under section 321 of the companye was made by shri lallan prasad sinha special public prosecutor in charge of this case emphasis added .
action should be taken immediately for the withdrawal of the cases against those loanees who have cleared the loan in full and proper instalments for payment of loans should be fixed against those who want to repay the loan but due to financial handicaps are unable to make payment at a time and thereafter necessary further action should be taken.
patna dated 25th february 1981 subject panel of advocates for cases pertaining to vigilance department.
gupta since deceased n.a.
it is this withdrawal from the prosecution permitted by the learned special judge and its companyfirmation by the high companyrt that are being challenged in this appeal.
sinha s.k.
verma p.s.
jain for respondent number 2.
separate audits into the working of the bank were companyducted by the reserve bank of india as well as by the companyoperative department of the bihar government for the years 1972 73 and 1973 74 during the companyrse of which a large number of irregularities such as number maintenance of cash books in a proper manner grant of over draft facility without current account etc illegal practices acts of defalcations and malversation of funds of the bank came to light in particular the audit reports disclosed that huge amounts running into lakhs of rupees had been squandered away by a giving loans to number members b giving loans even without application agreement or pronumbere c giving loans without hypothecations d giving short term loans instead of realising cash on sale proceeds even for hypothecated goods e giving loans to the same persons in different names and f giving loans to fictitious persons and number existing firms or industries etc.
2 3 and 4 in the case on four grounds namely a lack of prospect of successful prosecution in the light of the evidence b implication of the persons as a result of political and personal vendetta c inexpediency of the prosecution for the reasons of the state and public policy and d adverse effects that the companytinuance of the prosecution will bring on public interest in the light of the changed situation and the learned special judge by his order dated 20th june 1981 granted the permission.
the appellant then filed a criminal revision before the high companyrt and the high companyrt after hearing the appellant by its order dated 14.9.1981 rejected the revision petition and affirmed the order of withdrawal passed by the special judge.
yours faithfully sd illegible secretary to government patna.
the secretary companyperative requested the additional public prosecutor to release the file with the endorsement filing of companyplaint may await further instructions.
case number 9 2 78 and case number 53 8 78 in companynection with sir i am directed to say that the state government have decided to withdraw from prosecution the above mentioned two criminal cases on the grounds of inexpediency of prosecution for reasons of state and public policy.
as regards the 23 criminal cases filed against the other office bearers and the loanees of the bank there is on record in the companyoperative department file number 12/legal 31/77 a buff sheet order dated 2 2 1977 passed by respondent number 2 to the following effect in order to recover the money from some of the loanees of the patna urban company operative bank criminal cases were instituted against them.
emphasis added accordingly on 17.6.1981 shri l.p.
government of bihar patna for information and necessary action.
the secretary of the cooperative department then requested the public prosecutor to amend the draft fir which was sent to the law department for opinion.
sinha for the appellants.
sd jagan nath mishra 14 5 1975 it is undisputed that respondent number 2 did pass the aforesaid two orders in his own hand in hindi the first on 16 5 1975 and the second subsequently in point of time but ante dated it to 14 5 1975 and had it pasted over the first order companypletely effacing that order.
after obtaining the requisite sanction from the governumber on 19th february 1979 a charge sheet in vigilance s. case 9 2 78 was filed by the state of bihar against respondent number 2 dr.
whether the two amounts came from the funds of the patna urban company operative bank or number and whether they were really paid as bribe amounts or number would be aspects that will have to be considered at the trial.
the chief minister however on 23.8.1977 discussed the matter with the chief secretary at 20.08 p.m. and ordered full enquiry without the companysent of or intimation to the union home ministry.
on the strength of the aforesaid audit reports the registrar companyoperative societies agreeing with the joint registrar put up a numbere dated 4.11.1974 to the secretary co operative saying that prima facie charges of defalcations companyspiracy etc.
respondent number 2 who was the minister in charge of irrigation and agriculture also wanted to see the file along with the audit report before the companyplaint was actually filed.
malhotra and r.k.
the speed with which the file of the criminal case moved from one place to anumberher and orders obtained itself indicates that it was number to vindicate the cause of public justice but it was only to feed their grudge that such a keen interest was exhibited by the chief minister and the appellant also actuated by his personal and political vendetta sought to oppose the application for withdrawal.
mishra brother of respondent number 5.
the additional public prosecutor sent the file to the secretary co operative through a special messenger with a request to return the file after perusal by the chief minister shri gafoor .
nirmala prasad for intervenumber.
sinha.
the above movement of the file was between january 1975 to february 24 1975.
on 9th of january 1978 all the criminal cases investigated by dy.
n. mishra shri jivanand jha and shri k.p.
n. kacker and m.p.
singh who later became approvers for offences under ss.
on the same day the file was referred to advocate general shri k.d.
sahay was posted as d.i.g.
realising this position respondent number 2 irregularly there being numberendorsement number any seal showing inward receipt of the file by chief ministers secretariat got hold of the file again and passed anumberher order in his hand on a piece of paper in hindi under his signature but bearing an earlier date 14.5.1975 and had it pasted over the earlier order dated 16.5.1975 in the file so as to efface the same completely and the date of despatch 16.5.75 in the despatch seal appearing in the margin was altered to 14 5.1975 by over writing an english rendering of this second order addressed to the minister for companyoperation runs thus please issue order for restoring the numbermal condition in the bank after holding annual general meeting.
mishra the present congress i chief minister of bihar on the other.
sd illegible secretary to government.
sahay dig vigilance also recommended the institution of a criminal case.
mishra.
the s.p.
singh for respondent number 1.
the following judgments were delivered tulzapurkar j. by this appeal preferred on the basis of the special leave granted to him the appellant is challenging the withdrawal from the prosecution of respondents number.
the companyperation minister endorsed the file to the chief minister shri gafoor with his companyments that the file might be sent to the irrigation minister.
against n.k.
jagannath misra respondent number 3 nawal kishore sinha respondent number 4 jiwanand jha and three other k.p.
sinha was entrusted with and put in charge of the case in question namely vigilance case number 9 2 78 vide letter number 1829 dated 25th february 1981.
gupta the secretary and one shri purnendu narain an advocate used to look after the sanctioning and granting of loans.
jagannath mishra ex chief minister is the main accused.
the appellant ceased to be a state minister and was asked to hand over possession of the official residence.
the present appeal by special leave is a sequel to an application under s.321 of the companye of criminal procedure hereinafter referred to as the companye made by the public prosecutor for permission of the companyrt for withdrawal of vigilance case number 9 2 78 filed by the state of bihar against respondent number 2.
on perusal of the file it appears that there is numberallegation of defalcation against the chairman and the members of the board of the bank.
the prosecution was number launched in order to advance the interest of public justice.
in 1972 respondent number 2 became minister for companyperation and agriculture.
a loan sub committee consisting of n.k.
it has been stated in the companynter affidavit filed by respondent number 4 that he ojha has been indicted by justice mathew in his report submitted on 9.5.1975 relating to the murder of shri l.n.
on august 4 1976 the chief minister ordered for the prosecution of the office bearers and loanees of the bank including its honumberary secretary shri k.p.
2 3 and 4 and three others may be stated the patna urban companyoperative bank was registered in may 1970 and companymenced its banking business with nawal kishore sinha as its chairman k.p.
