( 1 ) THE learned Special judge, Bharuch, by his order dated 22. 10. 1996, while refusing to grant b summary, has taken cognizance of Sec. 191 (b) of Crpc read with Sec. 5 of the Prevention of Corruptions Act, 1988. The learned Judge has also directed for further investigation of the case in exercise of powers under Sec. 156 (3) read with Sec. 173 (8)-Crpc.

( 2 ) IT is contended by the learned counsel that the learned Judge, once having taken cognizance, could not invoke the pavers under Sec. 156 (3) Crpc or under Sec. 173 (8), directing the further investigation. Mr. M. R. Shah, learned counsel place reliance on the decision of 1997 SCC (Cri.) 88 (Central Bureau of Investigation vs. Rajesh gandhi ). It is held in the said case that the Magistrate of his own cannot order further investigation afterhaving taken cognizance of the offence.

( 3 ) MR. B. P. Munshi, learned counsel for the respondent-No. 2 submits that, from the reading of the impugned order, it does not appear that, prior to giving direction for further investigation, the cognizance has been taken. He further submits that, in the matter of investigations, the accused has no say. He further relies on the decision of the Apex Court reported in 1997 (1) Crimes 58 (SC) (Randhir Singh Rana vs. The State being The Delhi administration ).

( 4 ) IN my view; there is no substance in the contention raised by the learned counsel for die respondent No. 2. A bare leading of the impugned order shows that the direction for further investigation has been given after taking the cognizance. The Supreme Court case cited by the learned counsel is not attracted in the facts of the present case, as the petitioner has challenged the order with respect to further investigation after congizance is taken. The contention raised by the petitioner is squarely covered by the decision of the apex Court in Randhir Singh Ranas case (Supra ).

( 5 ) MR. M. R. Shah, learned counsel further submits that the learned Judge has committed an error in refusing the b summary and taking cognizance without proper sanction either under the Prevention of Corruption Act or under Sec. 197 of the Crpc he submits that the petitioner was holding the office in the State Government prior to his retirement and as such, he is a public servant as per the amended, definition. The petitioner cannot be permitted to raised this ground as the same has not been raised before the learned Judge. "

( 6 ) IN view of the aforesaid, this Criminal Misc. Application is allowed. The impugned order of the learned Special Judge, Bharuch dated 22. 10. 1996, so far as it pertains to giving direction for further investigation is concerned, the same is quashed and set aside. It will be open for the petitioner to raise the contention before the learned special Judge with respect to the validity of the prosecution in absence of the sanction. Rule made absolute to the aforesaid extent.

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