Bijendra Prasad vs The State of Bihar

Sheema Ali Khan, J.—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 Anncxure-3 has been granted u/s 197 of the Code of Criminal Procedure whereas cognizance has been taken against, the petitioner u/s 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 petitioner as the issuance of the order of sanction is the mere irregularity which may subsequently be cured during the proceeding. For this purpose, Counsel for the Vigilance Department relies on a decision rendered in the case of State by Police Inspector Vs. Sri T. Venkatesh Murthy, .

Counsel for the petitioner, on the other hand, submits that the order of sanction u/s 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 u/s 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 u/s 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, 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, , 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 u/s 19 of the Prevention of Corruption Act and proceed in the matter, if so advised.

This application is allowed.