IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.55822 of 2007 1. YOGENDRA PRASAD RAY @ YOGENDRA PD.YADAV SON OF LATE BASUDEO PD. YADAV 2. JITENDRA KUMAR SINGH, SON OF LATE JANGO PD. YADAV. BOTH RESIDENT OF VILLAGE- BARI LAGAMA, P.S.- DHARHARA, DISTRICT- MUNGER. Versus THE STATE OF BIHAR For the petitioners : Mr. Nasrul Huda Khan, Advocate For the State : Mr. Nawal Kishore Prasad, APP ----------- 5 08.10.2010 Heard both sides. Initially the application was filed challenging institution of F.I.R. being G.R.P. Jamalpur P.S. case no. 27 of 2005 under Sections 244, 225 and 120B of the Indian Penal Code. During the pendency of this application, the investigation was carried out and chargesheet was submitted whereon learned Magistrate, by order dated 11.5.2009, has taken cognizance under Section 224, 225 and 120B and Section 13(1)(d) of the Prevention of Corruption Act(for short the Act). Learned counsel for the petitioners submits that in absence of sanction granted under Section 19 of the Act, the order taking cognizance under Section 13(1) (d) of the Act is bad in law. He relies on a judgment of this Court rendered in the case of Nawal Kishore Singh versus State of Bihar and Anr. since reported in 2007 (2) P.L.J.R. 116 (paragraphs 10 and 11). Petitioners by filing an application seeking amendment prayed for quashment of the cognizance order as well. By order dated 29.3.2010, this Court had directed the State counsel to seek instruction in the matter. It is submitted by the petitioners 2 that in absence of sanction granted under Section 19 of the Act, the order taking cognizance is bad in law. Learned counsel appearing on behalf of the State, on perusal of the case diary submits that admittedly no sanction was obtained prior to filing of the charge-sheet which gave rise to the impugned order whereby cognizance has been taken under different sections of the Indian Penal Code as well as under Section 13(1)(d) of the Act. I have considered the submissions advanced on behalf of the parties. Case on which reliance has been placed by learned counsel for the petitioners deals with Section 197 of the Code of Criminal Procedure. This Court has taken a view that a government servant if found purporting to act in exercise of his public duty, then in that event, sanction under section 197 of Cr.P.C. was a condition precedent. This proposition of law is now well established. Section 19 of the Act reads as under: “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)xxxx 3 (3)xxxxx” Admittedly no sanction for prosecution has been procured and filed in the case. In that view of the matter, this Court is inclined to interfere with that part of the order only whereby cognizance has been taken under Section 13(1)(d) of the Act. The order dated 11.5.2009 in so far as it relates to taking cognizance under Section 13 (1)(d) of the Prevention of Corruption Act is quashed and set aside. This Court, however, clarifies that the court below shall not be precluded from taking cognizance under the aforesaid section of the Act if sanction is granted in terms of Section 19 of the Act and is produced before the Court. The application is allowed in the aforesaid terms. pkj ( Kishore K. Mandal, J. )