S P KORI Vs. STATE

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure for quashing the proceedings in Special Case No. 74/2000 pending in the Court of Special Judge, Khurai, District Sagar.

(2.) The applicant was Sub-Divisional Officer in Department of Water Resources, Khurai, The applicant along with one M. L. Rawla (since deceased) who was working as Sub-Engineer were charged with an offence punishable under Section 5 of M.P. Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982 (for shot "the Adhiniyam") as also under Section 409/34 of IPC. The job of present applicant and co-accused M.L.Rawla was to supervise the construction of stop-dam constructed at Guryana, Sagar. After the construction of dam was concluded on 8-12-95, the Executive Engineer under whom the present applicant was working, sent the completion report to the Chief Engineer. Thereafter the fully commissioned stop-dam was handed over to District Rural Development Authority. On 16-1-96 the Asstt. Collector found that the stop-dam was not in order. She made a report to the Collector, Sagar. Thereupon the Collector made some enquiries and found that there was a prima facie case against the applicant and co-accused M. L. Rawla and directed that an F.I.R. be lodged. Consequently at the behest of the Collector on 10-4-96, the Project Officer, District Rural Development Authority, Sagar made a report regarding the fact that material employed for the construction of the stop-dam was below standard and this act was done under the supervision of applicant and M.L. Rawla. On the report made by the Project Officer, the police registered an offence under Section 409 read with Section 34, IPC as well as under Section 5 of the Adhiniyam. It appears from the F.I.R. registered as Crime No. 50/96 that inferior material was used for construction of the stop-dam contrary to the standards prescribed in the PWD Manual. Section 5 of the Adhiniyam makes a person liable if the person who supervises a works contract does not fulfil his duties as laid down in the section whereby the quality, workmanship, strength or life of the work or part of it, is affected. In short the charge was to the effect that the applicant and co-accused allowed the inferior material to be used in the construction of the stop-dam which was below the standard of classification, as per PWD Manual. The quality of the stop-dam was, therefore, found to be defective.

(3.) It is being argued now that an offence punishable under Section 5 of the Adhiniyam is a cognizable offence. However, no investigation can be done by the police officer of the offence under the Adhiniyam in case of an officer upto the and of the rank of a District Level Officer, except on the direction of the prescribed authority not below the rank of Commissioner of Division on a report submitted by him to such authority. In other words, prior to investigation of an offence under the Adhiniyam, sanction of the authority not below the rank of Commissiner of the Division has to be obtained. The State Government had issued a notification on 23rd September, 1987 under Section 44(1) read with Section 39 of the Adhiniyam and has specified the prescribed authority under whose direction the investigation has to be made to be the Commissioner of a Division in which the offence is committed in case of an officer up to the and of the rank of a District Level Officer. It cannot be disputed that the S.D.O. was of the level of District Officer, therefore, it is being urged that mandatory procedure under Section 39 of the Adhiniyam was not followed and the prosecution is liable to be quashed on this short ground alone. It is pointed out that it was the Collector, Sagar who had ordered the investigation, but not the Commissioner and the matter was never sent to the Commissioner for giving a direction to prosecute the applicant.