ORDER :

1. This petition has been filed under Section 482 of the CrPC challenging the order dated 16.2.2022 passed by the Special Judge of Special Court for trial of CBI cases, Raipur, Chhattisgarh whereby the application preferred by the petitioner under Section 19 (4) of the Prevention of Corruption Act, 1988 (for short ‘the Act’) has been dismissed.

2. Facts of the case are that the petitioner was posted as AFO in the South Eastern Central Railway, Bilaspur Division. He was charged that he has accepted the bribe from the contractor and trapped by the CBI. A charge sheet was filed under Section 7, 13(1)(d) read with Section 13 (2) of the Act. A sanction for prosecution was issued by the Joint Secretary (E) II of the Railway Board vide letter dated 9.11.2016 and the order of removal from service was passed by the Director/E(O) I, Railway Board, vide order dated 29.6.2020. The petitioner has moved an application under Section 19 (4) of the Act and has raised an objection that the sanction was not issued by the competent authority. The said application has been dismissed by the impugned order.

3. Shri Swain, learned counsel for the petitioner would submit that according to the Indian Railways Vigilance Manual, 2018, clause 312.14, sanction for prosecution of Group-B Officers is within the competence of the concerned Board Member. In the instant case, sanction was accorded by (PW-1) B. Majumdar, who was posted as Joint Secretary in the Ministry of Railways, Railway Board and was not a competent person to accord sanction. Therefore, the sanction is bad in law. He further submits that during examination of (PW-1) B. Majumdar, the prosecution has not filed any document which shows that (PW-1) B. Majumdar was duly authorized to issue sanction order. Placing reliance on the judgment of the Hon’ble Supreme Court in the matter of CBI Vs. Ashok Kumar Agrawal {(2014) 14 SCC 295} he submits that the said issue can be raised at any stage during trial. He finally submits that the impugned sanction order was not accorded after due application of mind and material documents were not considered, and that (PW-1) B. Majumdar was also not competent to remove the petitioner from service. Considering all the aspects of the matter, the impugned order is not sustainable and the matter may be relegated back to the State where the authorities can obtain fresh sanction.

4. On the other hand, Shri B. Gopakumar, learned counsel for the respondent would submit that during examination of (PW-1) B. Majumdar, no question was put up by the defence that he was not competent to issue sanction order. In his statement, he has categorically stated that in the instant case, the sanction order which was issued for and on behalf of the Railway Board on 9.11.2016 is valid and according to law, and he is authorized to sign and issue such letter. Learned counsel further submits that the matter has already been reached at the final stage and fixed for final arguments. It is well settled in a catena of judgments that if the trial Court has taken cognizance of the offence, then only, the trial Court is bound to consider the said question at an appropriate stage. He would place reliance on the judgment of the Hon’ble Supreme Court in the matter of Dinesh Kumar Vs. Chairman, Airport Authority of India & Another {(2012) 1 SCC 532, wherein after referring its earlier judgment in the matter of Prakash Singh Badal Vs. State of Punjab & Others{(2007) 1 SCC 1}, the following has been observed at para-9 & 10:-

“9. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal expressed in no uncertain terms that the question of absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal, this Court referred to invalidity of