Judgment:
Sheema Ali Khan, J.
1. Heard learned Counsel for the petitioner and the counsel appearing on behalf of the State.
2. This application has been filed for quashing the order, dated 4.4.2007 passed by the Special Judge Vigilance, North Bihar, Muzaffarpur in Special Case No. 45/2006, arising out of Vigilance PS Case No. 103/2006, by which cognizance has been taken against the petitioner for the offences under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act').
3. The only contention that has been raised in this case is that the court has no power to take cognizance for the offences aforesaid and there is no proper order of sanction under Section 19 of the Act.
4. The facts are that the petitioner was working as Divisional Forest Officer and had refused to renew the licence of the complainant who was owner of a saw mill. On die other hand, the complaint is that a demand of Rs. 5000/- was made by the petitioner for renewing the licence. A trap was set up and the petitioner was allegedly caught red handed taking bribe of Rs. 5000/-.
5. As indicated the only argument that has been advanced is that the sanction order reveals that sanction has been taken under Section 197 of the Code of Criminal Procedure ('hereinafter referred to as 'the Code') whereas the F.I.R. and the investigation does not disclose any offence under the Penal Code.
6. I may quote here the relevant part of the order granting sanction which reads as under:
aura ab is liye Rajya Sarkar itad dwara dand parkirya sanhita, 1973 (1974 ka adhiniyam sankhya 2) ki dhara 197 ke antargat pardat shaktiyon ka prayog karte hue dhara 7/13(2) sah pathit dhara 13(1)(e) Bharastachar Nirodh Adhiniyan, 1988 ke adhin apradhon ke liye oon ke virudh abhiyojan ki swikirti pardan karti hai.
7. Learned Counsel appearing on behalf of Vigilance Department has firstly referred to the order of sanction and submits that the entire order indicates that the competent authority had applied its mind to consider that the petitioner was charged taking bribe for renewing a licence and then passed the order granting sanction. It is submitted that the mention of Section 197 of the Code is a mere formality as the order of sanction indicates that in fact the sanctioning authority was very well aware of the contents of the offences before passing the sanction order. Learned Counsel also submits that as per Section 19 of the Act, the competent authority has granted sanction and further submits with reference to Sub-section (3) of Section 19 submits that the section envisages that no findings, sentence or order passed by the Special Judge shall be reversed or altered by a court in appeal, confirmation on revision on the ground of absence of, or any error, omission or irregularity in the sanction required under Sub-section (1) of Section 19 unless in the opinion of the court a failure of justice has in fact been occasioned. Sub-section (3) refers to such case where the trial has commenced and the court has come to a decision with respect to the offences for which a person may be charged. It is further envisaged that because of error, omission or irregularity, the court should not interfere with the order or sentence in the trial.
8. In this case the absence of sanction under Section 19 of the Act, cannot be said to be an omission, irregularity or error. However, at this stage this Court cannot state that the authority would not have the power to pass an appropriate order granting sanction under Section 19 of the act. The grant of sanction under the particular section goes to the root of the matter and as such this Court cannot hold that it is merely an irregularity or omission.
9. It has been submitted that in fact the Government had intended to grant sanction 19 of the Act. This Court cannot accept the submission of counsel for Vigilance Department that the intention was there to grant sanction under Section 19 of the Act.
10. Section 19 of the Act reads as follows:
19. Previous sanction necessary for prosecution.- (1) 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.-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who 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;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).-
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
11. This section has been interpreted in the case of Dilawar Singh v. Parvinder Singh 2006 (1) PLJR 401 (SC) wherein the apex court has held that this section creates a complete bar on the power of a court to 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 of the competent authority enumerated in Clauses (a) to (c) of this sub-section.
12. The Patna High court also in the case of Ramashankar Tiwari v. Union of India 1998 (3) PLJR 584 has held that the court could not have taken cognizance for offences under Sections 5(2), 5(1)(d) of the 1947 Act corresponding to Section 13(1)(d) and 15 of the 1988 Act without an order of sanction. In this case the petitioner was an officer of the Indian Administrative Service. There was a sanction order under Sections 120B and 109 of the Penal Code. However, the Government had refused to grant sanction under Section 19 of the Act. The court held that in absence of order of cognizance under the Prevention of Corruption Act, the court below could not have taken cognizance for the offences under the Act.
13. This Court, therefore, finds that the order taking cognizance is barred by Section 19(1) of the Act and as such the order impugned taking cognizance is hereby quashed.
14. This application is, thus, allowed.
15. However, while parting with this order, I may state that this Court has not entered into the merit of the allegations in this case. The State Government would have the option to grant sanction if it thinks fit and proper.