1. All these four Criminal Revision Petitions arise out of the same First Information Report No. 17 of 1990 registered at Police Station, Anti-Corruption Zone. Shimla. As such I proceed to decide them by a common order. The crucial point involved for determination in these revision petitions is:

“Whether cognizance of the offence under Section 13 of the Prevention of Corruption Act, 1988 (New) corresponding to Section 5(2) of the Prevention of Corruption Act, 1947, could be taken by Special Judge, Shimla when sanction in relation to the prosecution of the petitioner had been refused by the competent authority?”

2. As a corollary thereto another important question for the consideration of this Court arises in case Special Judge, Shimla is held to be empowered to take cognizance of the offence without sanction of the competent authority, could such a Court take cognizance of the offences committed by a public servant under Penal Code during the discharge of his official duties as envisaged under Section 197 of the Code of Criminal Procedure?

3. A prefatory note containing essential details of the facts and circumstances regarding the initiation of the proceedings against the accused is absolutely essential to be detailed hereunder:—

Vinod Lal, petitioner, an IAS Officer, was posted as Special Representative/Special Secretary at New Delhi to the Govt. of Himachal Pradesh during the period 1-4-1980 to 30-6-1983. An audit of the office of the Resident Commissioner, New Delhi w.e.f 1-4-1976 to 31-3-1983 was got conducted during which period certain irregularities with regard to the use of vehicles, medcal re-imbursement and entertainment etc. were found. During his tenure at Delhi, the petitioner had also served in that capacity. Thus, on the basis of the said irregularities so found, a criminal case vide FIR No. 17/90 was got registered in the Police Station, Anti-Corruption Unit, Shimla by the Commissioner-cum-Secretary (Vigilance) to the Govt. of Himachal Pradesh against the petitioner for the commission of the offences under Sections 409, 420, 467, 468, 471 read with Section 120-B, IPC and under Section 5(2) (Old) corresponding to Section 13(New) of the Prevention of Corruption Act, 1988. As the abovesaid offences pertained to the period consisting of four years, the Investigating Agency bifurcated the case into four challans as under:—

Challan No. 1 from 1-4-1980 to 31-3-1981.

Challan No. 2 from 1-4-1981 to 31-3-1982.

Challan No. 3 from 1-4-1982 to 31-3-1983.

Challan No. 4 from 1-4-1983 to 30-6-1983.

4. After completion of investigation, the Investigating Officer found the existence of a prima facie case. Accordingly, the Investigating Agency submitted the entire papers to the competent authority for according sanction for the prosecution of the petitioner both under Section 6(old) corresponding to Section 19(New) of the Prevention of Corruption Act 1988, and under Section 197 of the Code of Criminal Procedure (hereinafter shortly referred to as the ‘Act of 1988’ and the ‘Code’, respectively). The competent authority after consideration of the entire material so placed before it, refused to accord sanction. Resultantly, a cancellation report was put up before the Special Judge, Shimla.

5. On consideration of the cancellation report, detailing the brief history of the case, the Court below found that the Investigating Agency had detailed the existence of a prima facie case under the abovesaid Sections in relation to all the four challans. Thus, the Court below after interpreting Section 19 of the Act of 1988, expressed the view that there was no bar for the Court to take cognizance of the offence if prima facie case is found to exist against the petitioner from the material collected by the Police which was put up before the Court along with the cancellation report, notwithstanding the grant or refusal of the prosecution sanction. Consequently, the Court below took cognizance of the offences in the abovesaid four challans and directed the issuance of the processes against the petitioner and one another for the commission of the abovesaid offences.

6. Aggrieved with the aforesaid order so passed, the petitioner has approached this Court by way of this revision petition with a prayer to set aside the same.

7. Shri M.S Chandel, learned counsel appearing for the petitioner has very ably argued that the Court below gravely erred in law in having taken cognizance of the aforesaid offences against the petitioner in the absence of sanction from the appropriate authority and such action of the Court below is without jurisdiction and contrary to the mandatory requirement of law. In order to substantiate his submission, learned counsel has drawn my attention to Section 19 of the Act of 1988 and Section 197 of the Code. It is urged that the underlying object of Section 19(New) corresponding to Section 6 of the Old Act is to afford a reasonable protection to the public servant in the discharge of his official functions. It is not the object of the Section that the public servant, who is guilty of particular offence mentioned in that section, should escape the consequences of his criminal act by raising the technical plea of invalidity of sanction. It is further submitted that sub-section (1) of Section 19 puts a bar to take cognizance of the offence mentioned therein and an objection under sub-section (4) thereof can be taken by the offender at an early stage of the proceedings. Further it is pointed out that provisions of Section 19(1) of the New Act are in pari materia to Section 6(1) of the Old Act. It is then pointed out that under Section 30 of the Prevention of Corruption Act, no doubt, Act No. 2 of 1947 and the Criminal (Amendment) Act, 1952, have been repealed, but Section 6 of the General Clauses Act, 1897, continues to be applicable in the case of the petitioner in the peculiar circumstances of the instant case. He has categorically submitted that in case the interpretation put up by the Special Judge under sub-section (3) of Section 19 of the Act of 1988 is taken at its face value, sub-section (1) of Section 19 becomes redundant. According to him, sub-section (3) applies only after the termination of trial, wherein no finding, sentence or order passed by a Special Judge on the ground of absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), can be challenged except when the concerned Court is of the opinion that a failure of justice has, in fact, been occasioned thereby to the petitioner.

8. While assisting this Court in interpreting Section 19 of the Act of 1988, Pt. Om Prakash, learned Additional Advocate General has vehemently contended that sub-section (3) of Section 19 of the Act of 1988, is applicable during the pendency of the trial at all stages commencing with the issuance of the process against the accused by Special Judge, who takes cognizance of the offence notwithstanding the grant or refusal of the sanction for prosecution.

9. The prime question for the consideration of the Court in order to interpret Section 19 of the Act of 1988, read with Section 197 of the Code arises as to when a Court can take cognizance of an offence. It is well-established that cognizance ‘is taken of offence and not of the offender’. The expression ‘cognizance’ has not been defined in the Code to indicate the point when a Magistrate or a Judge takes judicial notice of an offence. In fact, taking cognizance does not involve any formal action or an action of any kind, but it accrues as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence on the basis of a police report filed under Section 173 of the Code or a complaint filed by a private party.

10. A Magistrate takes cognizance of an offence under sub-section (1) of Section 190 of the Code:

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

11. When a Magistrate applies his mind not for the purpose of proceedings under the subsequent section, but for taking action of some other kind, for example, directing investigation under Section 156(3) or issuing such a direction for the purpose of such investigation, he cannot be said to have taken cognizance of the offence. But the moment he exercises his judicial discretion to the facts emerging from the material placed before him during inquiry or on the basis of the police report under Section 173 of the Code for the purpose of taking proceedings, he is said to have taken cognizance of the offence. The point of time at which the legality of the cognizance has to be judged is the time when cognizance is actually taken under Section 190 of the Code. Under the Code which applies to the trial of such cases, the only provision for taking cognizance is contained in Section 190. Section 195 of the Code which follows that section is, in fact, a limitation on the unfettered power of a Magistrate to take congnizance under the earlier provision, namely, under Section 190 of the Code. Under the latter section, cognizance of any offence can be taken by any Magistrate of the First Class and any Magistrate of the First Class specially empowered in this behalf on the basis of the considerations given in Section 190(New).

12. If a general power to take cognizance of an offence is vested in a Court, any prohibition to the exercise of that power, by any provision of law, must be confined to the terms of the prohibition. The Court is primarily concerned to see that the prosecution for offences in cases covered by the prohibition, shall not commence without complying that condition contained therein, such as previous sanction of the competent authority in the case of a public servant and any other case with the consent of the party or the party interested for the prosecution or aggrieved by the offence.

13. In view of the above, now it would be appropriate to detail Section 19 of the Act of 1988:—

“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 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 the 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 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 (2 of 1974):—

(a) no finding, sentence or order passed by a speical Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absnece 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 on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining 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 included 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.”

14. The close scrutiny of the abovesaid provision provides for previous sanction for prosecution in case of a person employed in connection with the affairs of the Union of State Government or other authority and, as already observed, it is analogous to Section 6 of Prevention of Corruption Act (Old) except Clause 19(3) which provides that on the ground of irregularity of sanction, no finding of the Court can be reversed. Simultaneously, it has also been provided that no Court can stay the proceedings in these cases because of irregularity in sanction or on any other ground. In catina of cases, the Apex Court has held that the burden of proof is on the prosecution to show that the sanction granted for prosecution of an offender is valid. Such burden includes proof that the sanctioning authority had given sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority. The fact that the sanctioning authority signed the sanction for the prosecution on the file and not the formal sanction produced in the Court makes no material difference. I am supported in taking this view by the observations made by their Lordships of the Supreme Court in State of Rajasthan v. Tarachand Jain, 1973 SCC (Cri) 774 : 1973 Cri LJ 1396. The policy underlying Section 6 corresponding to Section 19(New) of the Act of 1988 and similar sections like Section 197 of the Code is that there should not be unnecessary harassment of the Public servant. The object as indicated above is to save the public servant from frivolous and unsubstantiated allegations. Existence of valid sanction is a pre-requisite to the taking of cognizance of the enumerated offences alleged to have been committed by the public servant. In the absence of such sanction, the Court would have no jurisdiction to lake cognizance of the offences. Thus, a trial without a sanction renders the proceedings ab initio void. A trial without a valid sanction where one is necessary under the abovesaid provisions, is a trial without jurisdiction by the Court. The said observations have been made in para 19 in the case of R.S Naik v. A.R Antulay. (1984) 2 SCC 183 : AIR 1984 SC 684 : 1984 Cri LJ 613.

15. The trial Court, while taking cognizance of the offences in question, has categorically stated that sub-section (3) of Section 19 empowers the Court even to take cognizance of such cases in the absence of a sanction granted or refused by a competent authority. No doubt, it is a newly added sub-section to that of the old section and it restrains a Court of appeal in reversing any finding, sentence or order passed by a special Judge on the ground of absence of or any error or omission or irregularity in the sanction required under sub-section (1) yet it does not place an obsolete bar. In case the appellate Court or revisional Court is of the opinion that the failure of justice has been occasioned thereby, such findings. sentence or order passed by a Special Judge can be reversed. Now, as in the instant case, the stage of the case before the Special Judge was that of inquiry before it took cognizance of the same suo motu and directed the issuance of process. It is also well-established that an accused cannot be heard during inquiry. He can watch the proceedings and see as to what material has been collected against him by the police in a police case or what primary evidence has been led in an inquiry against him. However, he can neither participate nor take part in the proceedings. In that view of the matter, in case cognizance is taken by a Special Judge, against an offender, such an offender cannot agitate before the Court below nor can show to the higher Court i.e appellate or revisional Court as to what prejudice has been caused to him during inquiry. However, once a direction for the issuance of process is given by a Special Judge, it puts a restraint upon his liberty and he is prejudiced by the mere passing of such an order, as it touches his fundamental right of life and liberty as contained in Article 21 of the Constitution of India. Thus, the only interpretation which can be placed on subsection (3) is that it applies to proceedings at a stage subsequent to the issuance of process at all stages and not to the proceedings before that stage. In other words, sub-section (3) of Section 19 aforesaid is applicable after the commencement of the trial and not before. In that view of the matter sub-sections (1) and (3) of Section 19 appear to be independent of each other. In case the interpretation put forth by the Special Judge in the instant case is taken at its face value, sub-section (1) of Section 19 becomes redundant in as much as cognizance of an offence can only be taken at the stage of inquiry by the Special Judge under the provisions of Act of 1988 and by a Magistrate under the provisions of the Code. In this view of the matter, sub-section (1) has to be read in isolation of sub-section (3) which puts a bar upon the powers of the Court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Act of 1988, alleged to have been committed by a public servant except with the previous sanction of the appropriate authority. In case of Section 197 of the Code, there is no similar provision to that of subsection (3) of Section 19. Rather the very provision puts the bar upon the Court to take cognizance of an offence alleged to have been committed by a public servant in the discharge of his official duties mentioned therein except with the previous sanction of the competent authority, which makes it clear that the sanction is to be seen vis-a-vis the status of the offender at the material time as to whether he is or was a public servant of the categories in that section.

16. Thus, from whatsoever angle, sub-section (1) of Section 19 of the Act of 1988, or Section 197 of the Code is viewed, no Court of a Special Judge under the former Act and Magistrate under the latter, can take cognizance of an offence except with the previous sanction of the appropriate authority. Both the questions involved in the abovesaid case are answered accordingly, In view of the discussion made above, the revision petitions are accepted. The impugned order dated 3-3-1994 passed by the Special Judge, Shimla in the cancellation report by the police pursuant to FIR No. 17/90 in all the four challans pertaining to the period commencing from 1-4-1980 to 30-6-1983 are set aside. Let copy of this judgment be placed in all other connected revision petitions.

17. Revisison allowed.