( 1 ) THIS is a petition for setting aside the order dated 30. 9. 1985 and for quashing charge dated 16. 10. 85 framed under Sec. 120-B Indian Penal Code read with Sec. 420 Indian Penal Code passed by Metropolitan Magistrate, New Delhi.

( 2 ) MR. MATHUR, learned Senior Counsel for the petitioner at the outset has contended that R. C. 34/83 DLI on the basis of which FIR was filed was under Sec. 120- B Indian Penal Code read with Sec. 5 (2) read with Sec. 5 (1) (d) of the Prevention of Corruption Act (hereinafter referred as the Act) and no investigation was conducted by the respondent under Sec. 420 Indian Penal Code. Mr. Mathur has contended that if the FIR was under the provisions of Prevention of Corruption Act the forum for such trial is before a Special Judge appointed under the Act and prosecution cannot camouflage by choosing not to file and pursue the complaint under the provisions of the Act and file the same under Sec. 420 Indian Penal Code. In support of his arguments he has cited Basir-ul-Haq and others Vs. The State of West Bengal AIR 1953 SC 293 which reads as under:-

"though, in our judgment, S. 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in S. 195, Cr. P. C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of S. 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it. "

( 3 ) ON the aforesaid authority Mr. Mathur has argued that in the present case the FIR was filed before the Special Judge who was invested with the jurisdiction to try offences under the Act and the charge sheet which has been filed is the same and verbatim it has been taken from the FIR. Though the FIR was filed under the provisions of the Act but the charge sheet has been filed under Sec. 420 Indian Penal Code read with Sec. 120-B Indian Penal Code and on this basis he has assailed the impugned order of the learned MM on the ground that the prosecution has charged a person first with the provisions of Prevention of Corruption Act and later on the same has been changed to Sec. 420 Indian Penal Code which is not sustainable in the eye of law. He has cited Raghunath Raj Kumar. Bombay Vs. B. N. khanna, Delhi 1983 Cr. L. J. NOC 154 and on the basis of this authority Mr. Mathur has canvassed before me that in the absence of sanction or determination of the fact that whether the petitioner was a public servant or not, the respondent could not have maintained the present prosecution. The main thrust of the argument of Mr. Mathur is that for purposes of alleged offence committed by the petitioner under the provisions of Sec. 5 (2) read with Sec. 5 (1) (d) of the Act sanction was necessary and as no sanction was taken, the whole case of the prosecution on this ground would have failed and to plug the loop-hole instead of filing the charge sheet under the provisions of the Act the prosecution has filed the charge sheet under Sec. 420 Indian Penal Code. He has cited Kurian V. State of Kerala 1982 Crl. L. J. 780 in support of