JUDGMENT

Dr. Arijit Pasayat, J. - Leave granted.

2. In both these appeals the basic question raised relates to the validity of sanction to prosecute the appellants for offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short the ‘Act’). Sanction has been accorded both under the provisions of Section 19(1)(b) of the Act and Section 197 of the Code of Criminal Procedure, 1973 (in short the ‘Code’).

3. Plea relating to cognizance of the offence is that previous sanction is necessary under the Act if the public servant does not hold the same office which he allegedly abused on the date when the cognizance was taken by the Court. Stand of the appellants is that even though a public servant does not hold the same office and holds some other office, then also sanction is necessary. It is stated in that context that the decision in R.S. Nayak v A.R. Antulay (1984 (2) SCC 183) is per incuriam because the effect of Section 19(2) of the Act had not been considered. It is also submitted that the effect of the recommendations made by the Law Commission in its 41st report which necessitated sanction in terms of Section 197 of the Code ext