R.N.Prasad, J.

1. The case was initially Disted before a single bench of this Court, learned Judge at the admission stage itself referred the matter to the division bench and as such the case was placed before us.

2. The petition has been filed for quashing the order dated 19.10.2001 whereby cognizance was taken against the petitioner by Special Judge, C.B.I., North Bihar, Patna in Special case no. 23/ 97/R.C. No. 43/97 for the offence under sections 120 B, 420, 468, 471, 201 & 204 of Indian Penal Code and Section 13(2)/ 13(1)(d) of the Prevention of Corruption Act, 1988.

3. The relevant facts of the case are that at the relevant time in the year 1996 the petitioner was Principal of Regional Institute of Technology, Jamshedpur. The State Government constituted examination committee consisting of Principal, Regional Institute of Technology, Jamshedpur, Bihar Institute of Technology, Sindri, Bihar College of Engineering, Patna, Bihar College of Engineering, Bhagalpur and Muzaffarpur Institute of Technology, Muzaffarpur for conducting examination of Combined Engineering Entrance Examination, here-in- after referred to as C.E.E.E for brevity. Kameshwar Prasad of Muzaffarpur Institute of Technology was appointed convenor by the State Government. The examination was to be held on 30.6.1986. On the same day Kameshwar Prasad was to retire, thus the State Government appointed R.C. Das Vikal as co-convenor. The examination was held and result was published. Students were admitted on the basis of said result. There was a complaint of manipulation in C.E.E.E. and as such writ petitions were filed before the High Court which were disposed of directing Central Bureau of Investigation, here-in- after referred to as C.B.I., to investigate the matter and as such first information report i.e. R.C. Case No. 43(A)/97 was registered against four persons in which petitioner was not figured as an accused. However, after completion of investigation, charge sheet was submitted and the petitioner was made accused in the charge-sheet. Cognizance was taken on 19.10.2001 as indicated above which has been impugned in this petition on the ground that no case is made out against the petitioner and that sanction was accorded by the Chairman who was not competent to accord sanction in the case of the petitioner.

4. A counter-affidavit has been filed on behalf of C.B.I. wherein stand has been taken that there was sufficient material on the record against the petitioner and sanction has been accorded by the Chairman who was competent to accord sanction in the case of the petitioner.

5. Section 197 of the Code of Criminal Procedure as well as Section 19 of the Prevention of Corruption Act, 1988 both say that no court shall take cognizance except with the previous sanction. It appears that petitioner had raised the question that sanction for prosecution was not granted by the competent authority before the Special Judge, C.B.I. but ignoring the question raised by the petitioner the Special Judge, C.B.I., took cognizance of the offences as stated above. Similar question was raised before the Single bench of the Court. However, it referred the matter to a Division Bench. Learned single bench has considered the decision in the case of P.K. Pradhan vs. State of Sikkim, (2001) 6 S.C.C. 714 and quoted its para 15 which says that there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In such cases in order to come to a conclusion whether the claim of the accused that the act that he did was in course of performance of official duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it.

6. In the instant case during course of argument learned counsel for the petitioner and the Opposite party, however, confined their argument o