JUDGMENT

N.G. Nandi, J. - This is a petition under section 482 of the Criminal Procedure Code for quashing the proceedings pending before Special Judge. Delhi in C.C. No. 49(A)/88/DLI dated 28-9-1988 mainly on the ground that the prosecution has not obtained the sanction to prosecute this petitioner / accused and that the proceedings under section 120B. IPC and sections 7/13(l)(d) read with section 13(2) of the Prevention of Corruption Act are liable to be quashed for want of sanction to prosecute.

2. It has been submitted by learned Counsel for respondent/CBI that the challan had been filed against one Ishwar Chand on 3- 7 -1989 for the aforesaid offences and the order issuing summons against him was passed on 3-7 -1989. It is suggested that at that point of time, this petitioner was not arrayed as the accused and his name was shown in Column-2 of the charge-sheet alongwith two other public servants. Subsequently, this accused came on the scene and by order dated 21-9-1993 summons were ordered to be issued against this accused.

3. It is further suggested that the prosecution prayed for sanction thereafter against this accused as well as two other persons who were shown in Column NO.2 of charge-sheet. The sanction to prosecute against two other public servants was refused by the Competent Authority whereas sanction to prosecution as against this petitioner / accused was considered not necessary in view of his retirement from Government service with effect from 31-12-1992.

4. It is the stand of the respondent - State/Cm against this petitioner that there was no sufficient evidence to prosecute this petitioner. [t is also revealed that it is against this petitioner accused and Ishwar Chand that the Special Judge framed charge for, the offences alleged vide order dated 25-5-1996. As far as these proceedings under section 482 of the Code are concerned, the position that emerges is that when the challan was filed on 3rd July, 1989 and the Special Judge took cognizance of the offence by issuing summons vide order dated 3-7-1989, this petitioner /accused was very much a public servant. The name of this petitioner along With two other public servants was shown in Column-2 of the charge-sheet, as pointed out above, whereas in Column-I, the name of only one accused Ishwar Chand was shown.

5. It need hardly be said that when the cognizance of the offences alleged is taken by the Special Judge, the sanction to prosecute a public servant would be a must a condition precedent. In the instant case, when the cognizance of the offence has been taken by the Special Judge on 3-7-1989, the petitioner/ accused was admittedly in Government employment a public servant-since he superannuated w.e.f. 31-12-1992 and as such the sanction to prosecute the petitioner / accused on the date of the taking of the cognizance of offence on 3rd July, 1989 was necessary. Simply because the petitioner/accused retired from Government service w.e.f. 31-12-1992, i.e., after taking of the cognizance of the offence by the Special Judge on 3-7-1989, it cannot be said that the sanction to prosecute, as far as petitioner/accused is concerned, is not necessary, looking to the fact that no supplementary charge-sheet has been filed against this petitioner/accused nor any order section 319 of the Criminal Procedure Code has been passed against this particular accused and the summons have been issued on 21-9-1993 by the Special Judge.

6. Under these circumstances, as far as the cognizance of the offence is concerned, it can be said to have been taken by the Special Judge on 3-7-1989 because it is the cognizance of the offence and not of the offender, taken by the Court.

7. In the instant case, the stand of the respondent all throughout is that there is no evidence against this petitioner / accused as well as against the two other public servants who were shown in Column-2 in the charge-sheet alongwith this petitioner and as stated by learned Counsel for respondent, the responde