IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.1269 OF 2010 BIJENDRA PRASAD, SON OF SHRI SHORAI PASWAN, RESIDENT OF SHRI TOLA, POLICE STATION NAWADA, DISTRICT BHOJPUR VERSUS THE STATE OF BIHAR THROUGH VIGILANCE ********** FOR THE PETITIONER :- MR. LAXMI NARAYAN DAS, ADVOCATE MR. AKHILESH DUTTA VERMA, ADVOCATE FOR THE VIGILANCE :- MR. ARVIND KUMAR, I/C Sp.P.P., VIGILANCE MR. PRASHANT PRATAP, JC TO I/C VIGILANCE *************** 2 28/01/2010 Heard learned Counsel for the petitioner and the A.P.P. appearing on behalf of the State. This application is restricted to a single point which is that the order of sanction as contained in Annexure-3 has been granted under Section 197 of the Code of Criminal Procedure whereas cognizance has been taken against the petitioner under Section 7/13(2) read with 13(1) (d) of the Prevention of Corruption Act. Learned Counsel appearing for the Vigilance Department submits that infact no prejudice has been caused to the petitioner as the issuance of the order of sanction is the mere irregularity which may subsequently be cured during the proceedings. For this purpose, Counsel for the Vigilance Department relies on a decision rendered in the case of State vs. T. Venkatesh Murty, reported in (2004) 7 SCC 763. Counsel for the petitioner, on the other 2 hand, submits that the order of sanction under Section 197 of the Code of Criminal Procedure relates to offence under the provisions of the of the Indian Penal Code and does not relate to the offences under the provisions of the Prevention of Corruption Act. I may also point out that the Court had set aside the High Court’s order quashing the order of cognizance in the facts of the case which were that the order of sanction obtained under Section 19 of the Prevention of Corruption act was issued by an authority who had no power to issue such an order. In those circumstances, the Supreme Court held that it was an irregularity and quashed the order and remanded the matter back to the Chief Judicial Magistrate to consider whether the order of sanction had caused any prejudiced to the petitioner of that case considering the provisions of Sections 19 (3) and 19 (4) of the Prevention of Corruption Act. In the present case, infact there is no order under Section 19 of the Prevention of Corruption Act and as such the fact of the present case are distinguishable to the facts of the case referred aforesaid. Section 19 of the Prevention of Corruption Act specifically envisages that “no court shall take cognizance of offences punishable under Sections 7, 10, 3 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the Central Government or the State Government as provided under sub-clause (a) and (b) of Section 19 of the Prevention of Corruption Act. Counsel for the petitioner refers to the case of State of Goa vs. Babu Thomas, reported in (2005) 8 SCC 130, wherein the Court has quashed the order of cognizance on the ground that the cognizance taken by the Special Judge suffered from the fundamental error which invalidates the cognizance as being without jurisdiction. In the circumstances, the order of cognizance dated 31.01.2008 passed in Special Case No. 32 of 2007 (Vigilance Police Station Case No. 105 of 2007) is quashed. However, liberty is granted to be Vigilance Department to take fresh steps for obtaining sanction under Section 19 of the Prevention of Corruption Act and proceed in the matter, if so advised. This application is allowed. Anand ( Sheema Ali Khan, J.)