IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.44049 OF 2008 BRIJ BHUSHAN SAHAY @ BRAJ BHUSHAN SAHAY, SON OF LATE C. B. SAHAY, RESIDENT OF VASANT KUNJ, POLICE STATION VASANT KUNJ, NEW DELHI VERSUS THE STATE OF BIHAR THROUGH VIGILANCE ********** 2 14.01.2010 Heard learned Counsel for the petitioner and the Spl. P. P. appearing on behalf of the Vigilance. The petitioner has filed this application against the order dated 24.09.2008 by which the Court below has refused to discharge the petitioner in Special Case No. 90 of 1990 (Vigilance Police Station Case No. 50 of 1990). In this case, a reference has been made by the Court below whether sanction was necessary in a case of a public servant who at the relevant time of the offence was in service and had retired or ceased to hold the post of a public servant at the stage of taking of cognizance. This reference had been sent to the High Court in this very case. The High court disposed of the matter vide the decision reported in 2000 (1) PLJR 855 holding that “for the prosecution of a person who was a public servant at the relevant time, for commission of offences under P.C. Act, 1947 (now P. C. Act, 1988) as also under Indian Penal Code if such person has ceased to be a public servant on the date of taking cognizance no previous sanction under Section 197 (1) Cr.P.C. will be required in respect of offences under P. C. Act, 1947 (now P. C. Act, 1988) but such sanction will be required for offences 2 under Indian Penal Code”. Counsel in the Court below had raised the following points in the discharge application. (a) It has been submitted that without the sanction, prosecution of the petitioner is not legal. (b) It has been held that the petitioner cannot be prosecuted for offences under the Indian Penal Code in the absence of a valid sanction. (c) There is no evidence of illegal gain to the petitioner and as such no case is made out under Section 3 (1) (d) of the Prevention of Corruption Act against the petitioner. The Court below while passing the impugned order has held that the petitioner cannot be prosecuted under the Indian Penal Code as there is no sanction for prosecution under the Indian Penal Code. As far as the submission of the petitioner regarding the sufficiency of materials to prosecute him under the prevention of Corruption Act, it has been held that this question will be considered at the stage of the trial of the case. I find that there is no anomaly in the impugned order. This application is accordingly dismissed. Anand ( Sheema Ali Khan, J.)