Full Judgment
Amal Kumar Chatterjee, J.
1. A charge has been framed against the petitioner by a learned Judge, Calcutta, 3rd Special Court, on three counts: under Section 5(2) of the Prevention of Corruption Act, under Section 136(1) of the Customs Act and under Section 477A of the IPC.
2. It has been urged on behalf of the petitioner that under Section 6 of the Prevention of Corruption Act, no Court can take cognizance of an offence punishable under Section 5(2) of the Act alleged to have been committed by a public servant except with the previous sanction of the appropriate Government, while under Section 137 of the Customs Acts, no court can take cognizance of any offence under Section 136 of this Act except with the previous sanction of the appropriate authority who is the Collector of Customs in this case. Thus it has been argued that the petitioner could not be charged under these two sections except with previous sanction of the appropriate authority for taking cogniznace and it has been pointed out that what was accorded was sanction for prosecution and not for taking cognizance as evident from the sanction itself, Exhibit 1. The learned Advocate for the petitioner further argues that there is a good deal of difference between a sanction for taking cognizance and a sanction for prosecution as pointed out by the Supreme Court in the case of Ram Kumar v. State of Haryana : 1987 CriLJ703 . Their Lordships have held in unmistakable terms that sanction for prosecution is quite different from sanction for taking cognizance and the one cannot be a substitute for the other. In view of this legal position it must be held that the sanction accorded by the Collector of Customs for the prosecution of the petitioner cannot be regarded as a sanction for taking cognizance by the Court. It is no doubt true that in the sanction, Ext. 1, the sanctioning authority has stated that he was the competent authority to accord sanction for taking cognizance of the offence but while actually according the sanction he did it for the prosecution as found in the last paragraph and not for taking cognizance. In the circumstances, taking cognizance of the alleged offence under Section 5(2) of the Prevention of Corruption Act and the Customs Act must be held to be bad for lack of proper sanction and the charge on these two counts are liable to be quashed.
In view of the finding above the charge framed against the petitioner under Section 5(2) of the Prevention of Corruption Act and Section 136(1) of the customs Act are set aside. The charge framed under Section 477A, IPC remains undisturbed and the learned Judge will consider whether the petitioner can be tried before him for such a charge and if so shall proceed with the trial with utmost expedition.
This rule is thus disposed of. Let the records go down immediately.