IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44151 of 2008 Shankar Prasad, son of Shri Baijnath Prasad, resident of Narkatiya ganj, Purani Bazar, District-West Champaran, at present residing at Jawahar Nursary Lane, Sanjay Cinema Road, Brahmpura, P.O. M.I.T., District- Muzaffarpur……………………………………………………………………..…..Petitioner. Versus The State of Bihar through the Department of Cabinet Vigilance…Opposite Party. With Cr. Misc. No. 20164 of 2008 Shankar Prasad, son of Baid Nath Prasad, resident of Village- Purani Bazar, P.S.Narkoliaganj, District- West Champaran, Child Development Project Officer, Motipur(Baruraj), District- Muzaffarpur………………….…………………Petitioner. Versus The State of Bihar………………………………………….………………Opposite Party. ----------- For the petitioner: Mr. Rana Pratap Singh, Senior Advocate. For the Vigilance: Mr. Rama Kant Sharma, Senior Advocate. ---------- 03. 03.03.2011 Heard Mr. Rana Pratap Singh, learned senior counsel for the petitioner and Mr. Rama Kant Sharma, learned senior counsel for the Vigilance Department. The petitioner initially challenged the order dated 29.06.2007 passed by the learned Special Judge, Vigilance, Muzaffarpur, in Special Case No. 29 of 2006 arising out of Vigilance P.S. Case No. 45 of 2006 vide Cr. Misc. No. 20164 of 2008, whereby cognizance was taken under Sections 467, 468, 477A, 420, 409 and 511 of the Indian Penal Code and Sections 7/13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Subsequently, the petitioner also challenged the order dated 10.09.2008 through Cr. Misc. No. 44151 of 2 2008, whereby the learned Special Judge, Vigilance(Trap), Bihar, Patna, rejected the application of discharge of petitioner. Mr. Rana Pratap Singh, learned senior counsel appearing for the petitioner has confined his argument with regard to the irregularity in the sanction order dated 06.12.2006, whereby the Secretary, Law Department, Government of Bihar, Patna, accorded sanction for prosecution against the petitioner under Sections 7/13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Sections 467, 468, 477A, 420, 409 and 511 of the Indian Penal Code, who was not competent to accord sanction, hence, it resulted into failure of justice. It is submitted that the petitioner was appointed as the Child Development Project Officer(hereinafter referred to as „the C.D.P.O.‟)under the Social Welfare Department, Government of Bihar, Patna, vide Memo No. 1301 dated 25.02.1986 issued by the Social Welfare Department, Government of Bihar, Patna. The Vigilance P.S. Case No. 45 of 2006 was registered against the petitioner on being trapped while taking Rs. 1500/- as illegal gratification. In the circumstances, it is submitted that the sanctioning authority was the Social Welfare Department not the Law Department. 3 It is further submitted that the sanction order was issued during pendency of investigation without considering the materials on record. Moreover the mechanical approach of the sanctioning authority would be apparent from the fact that the sanction order as contained in Annexure-16 reflects that it was accorded, on the basis of Social Welfare File No. 1-05-55-06 on 05.12.2006, under Section 7/13(2) read with Section 13(1)(d) of the Prevention of Corruption Act as well as under Sections 467, 468, 477A, 420, 409 and 511 of the Indian Penal Code whereas the provisions of the Indian Penal Code were added by the learned court below on 11.09.2006 as the Investigating Officer sent the letter to the learned Special Judge for adding the Provisions of the Indian Penal Code on 08.09.2006. The Forensic Science Laboratory‟s report was made available on 12.01.2007 which reflects that the sanction order was passed with complete non application of mind. Mr. Rama Kant Sharma, learned senior counsel appearing for the Vigilance Department submits that the Law Department accorded sanction on the basis of file being processed by the Social Welfare Department and under the orders of the State Government which gets reflected from the information supplied by the Law Department as contained in Annexure-19. 4 Considering the rival submissions of the parties, it is relevant to consider the relevant provisions requiring sanction under Section 19 of the Prevention of Corruption Act as well as Section 197 of Cr. P.C. Section 19 of the Prevention of Corruption Act, 1988 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 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 5 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,- (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 or any other ground and no Court 6 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” Explanation.-For the purpose of this section,- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.” Section 197 of the Cr.P.C. reads as follows:- “197. Prosecution of Judges and public servants-(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him 7 while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.” A combined reading of Section 19(3) and (4) of the Prevention of Corruption Act makes the provision clear that notwithstanding anything contained in the Code, no finding, sentence or order passed by the 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. From reading the explanation appended to Section 19 of the Prevention of Corruption Act “error” 8 includes the competency of the authority to grant sanction. For appreciating the provision of Section 197 of Cr. P.C. it has to be read in reference to the provisions of Section 465 Cr. P. C. which reads as follows: “465. Finding or sentence when reversible by reason of error, omission or irregularity-(1) Subject to the provisions hereinbefore contained, no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.” Hence, a conjoint reading of provisions under the Prevention of Corruption Act as well as the Cr. P.C. demonstrate that an error with regard to sanction order has to be treated as an irregularity and any such order 9 can be unsettled only if it has occasioned in failure of justice. This view was upheld by the Apex Court in the case of State by Police Inspector Vs. T. Venkatesh Murthy reported in 2004(7) S.C.C. page 763. Admittedly, the petitioner was appointed by the Social Welfare Department, Government of Bihar, Patna, and he could be removed by the Social Welfare Department, Government of Bihar, Patna. The provisions of P.C. Act as well Cr.P.C. empower the parent department for granting of sanction which has a valid reason, as it is the employer department which knows in a better way the circumference of discharge of duty and unless the authority is in know of the circumference of discharge of duty of public servant it can not decide an act to be within the purport of duty or beyond that. On 19.09.2006, vide Annexure-28, the D.I.G., Vigilance, requested the Secretary, Social Welfare Department, Bihar, Patna, for according sanction which only incorporated the proposal for according sanction submitted by the Investigating Officer to the D.I.G. and the reason for such prayer was that the petitioner may not get the benefit of release on bail under Section 167 Cr. P. C., which reads as follows:- “mi;qZDr foi;d dkaM ds vuqla/kkudrkZ Jh vEcjs’k dqekj flag] vkj{kh fujh{kd }kjk lefiZr vfHk;kstu Lohd`r izLrko vuqyXud 10 lfgr ( ewy :i esa layXu) esa fufgr rF;ksa ls lger gksrs gq, funs’kkuqlkj dguk gS fd l{ke Lrj ls okafNr vfH;kstu LohdR;kns’k ’kh?kz djkus ,oa mls fuxjkuh vUosi.k C;qjks] iVuk dks ;Fkk’kh?kz miyC./k djkus dh dik dh tk;sA mYys[kuh; gS fd vfHk;qDr Jh izlkn dks fnukad 27&8&06 dks fxjQrkj dj U;k;ky; esa vxzlkfjr fd;k x;k Fkk tks vHkh U;kf;d fgjklr esa gSA vr% vuqjks/k gS fd okafNr vfHk;kstu LohdR;kns’k ;Fkk’kh?kz fuxZr djus dh dik dh tk;s rkfd vfHk;qDr dks /kkjk 167 n0 iz0 l0 dk ykHk ugha fey ldsA But it appears that the sanction was granted by the Law Department vide order no. 4604 dated 06.12.2006 only on the basis of File No. 05-55-06 of the Social Welfare Department. The sanction order does not stipulate the consideration of accusation nor the consideration of materials collected during investigation. Moreover the request for sanction was made in the midst of investigation. Mr. Rama Kant Sharma, learned senior counsel appearing for the Vigilance Department relied upon Annexure-19, the information supplied by the Deputy Secretary-cum- Public Information Officer of the Law Department dated 05.11.2009 whereby the Law Department admitted that it has no power to appoint or remove any public servant but under Rule 53(1)(C)of 11 Rules of Executive Business as well as under Section 197 Cr. P. C. on the orders of the Government, the Law Department used to accord sanction. It is true that Rule 53(1(C) stipulates the issuance of sanction for prosecution order by the Law Department but there is nothing on record to suggest that any government order was issued to that effect with regard to the petitioner. Hence, in view of this Court, the sanction order was issued not only by an incompetent authority but it was also mechanically issued by the Law Department without considering any materials on the record, hence, on the date of cognizance i.e., 29.06.2007 there was no valid sanction authorizing the learned court below to take cognizance which is fundamental error which invalidates the cognizance as without jurisdiction as has been held in the case of the State of Goa Vs. Babu Thomas reported in 2005(8) S.C.C. 130. The grant of proper sanction by a competent authority was also considered in the case of the State of Karnataka through C.B.I. Vs. C. Nagarajswamy reported in 2005(8) S.C.C.370 where in paragraph no. 15 it has been held:- “15. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regards sanction may be determined at an early stage.” 12 Similar view was taken by the Apex Court in the case of State Inspector of Police, Vishakhapatanam Vs. Surya Karri reported in (2006) 7 SCC 172. Paragraph no. 26, of which, reads as follows: “26. When sanction is granted by a person not authorized in law, the same being without jurisdiction, would be a nullity.” The same view was taken in the case of P.A. Mohan Das Vs. State of Kerala reported in 2003(9) S.C.C.504. Hence, in view of the aforesaid discussions, this Court is of the view that the Law Department was not competent to issue the sanction order and the same was issued without any proper authorization by the Government, without considering the relevant materials on record even without completing the investigation as the Forensic Science Laboratory‟s report was made available on 12.01.2007. It appears from Annexure-8 that in another case the Law Department asked for case diary, Statement of witnesses under Section 161 Cr. P.C., Forensic Science Laboratory‟s report but in the case of petitioner it appears that the same was not even called for probably because Vigilance Department was in hurry not to allow the petitioner to be released under the provisions of Section 167 Cr. P. C. 13 Various sanction orders of different accused of different Departments have been brought on record as Annexure-8 series, to show that in other cases the parent departments have accorded sanction. Hence, in view of this Court there was no valid sanction when the order of cognizance was passed and it has occasioned the failure of justice. Hence, allowing the prosecution to continue will be an abuse of process of the court. The petitioner has immediately after taking cognizance, filed the quashing application hence, it can not also be said that the petitioner has raised the issue at a belated stage. Accordingly, the order of cognizance dated 29.06.2007 passed by the learned Special Judge, Vigilance, Muzaffarpur in Special Case No. 45 of 2006 as well as the order dated 10.09.2008 whereby the petitioner‟s application of discharge was rejected by the learned Special Judge, Vigilance(Trap), Bihar, Patna, are hereby quashed. Accordingly both the quashing applications are allowed. However, the present order will not preclude the prosecuting agency to obtain a valid sanction order from the competent authority and to proceed in the matter in accordance with law. Shageer (Dinesh Kumar Singh, J)