Important Point
No Court of Special Judge can take cognizance of an offence except with previous sanction of appropriate authority.

1. By this application under Article 227 of the Constitution of India, the petitioner – original accused calls in question the legality and validity of the order dated 9th December, 2013 passed by the 5th Additional Sessions Judge, Nadiad rejecting the report filed by the A.C.B. under Sections 169 of the Code of Criminal Procedure, 1973, and taking cognizance against the petitioner for the offence punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

2. The facts giving rise to this application may be summarized as under:

2.1 The petitioner was serving as a Police Inspector. A First Information Report came to be registered against him at the A.C.B. Police Station, Ahmedabad bearing C.R. No.4 of 2006 for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act, 1988.

2.2 The complainant alleged that the petitioner herein, in his capacity as the Police Inspector, demanded illegal gratification in connection with an offence which was registered at the Balasinor Police Station vide C.R. No.I24 of 2006 for the offence punishable under Sections 498A, 506(1) read with 114 of the Indian Penal Code. In the said F.I.R. i.e. C.R. No.I24 of 2006, the parents and brother of the complainant were accused.

2.3 At the end of the investigation, the police reached to the conclusion that no case was made out against the petitioner.

2.4 The 5th Additional Sessions Judge, Nadiad, after hearing the complainant, passed an order rejecting the report of the police filed under Section 169 of the Cr. P.C. and thought fit to take cognizance under Section 190(1)(b) of the Cr. P.C. for the offence punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Act, 1988. The Additional Sessions Judge ordered issue of process against the petitioner herein. Simultaneously, the learned Additional Sessions Judge also passed an order directing the Director General of Police, State of Gujarat, Gandhinagar to reconsider according of sanction to prosecute the petitioner under Section 19 of the Act, 1988.

2.5 Being dissatisfied, the petitioner has come up with this application under Article 227 of the Constitution of India.

3. Mr. Choksi, the learned counsel appearing for the petitioner submitted that in the case in hand, there is no sanction under Section 19 of the Act, 1988 and in the absence of the same, the Additional Sessions Judge could not have taken cognizance of the offence under the Act, 1988. He submitted that sanction under Section 19 of the Act, 1988 is a condition precedent for taking cognizance of the offence under the Act, 1988. He, therefore, submitted that the impugned order deserves to be quashed.

4. On the other hand, this application has been vehemently opposed by the learned Additional Public Prosecutor appearing for the respondent – State of Gujarat. The learned Additional Public Prosecutor submitted that no error, not to speak of any error of law could be said to have been committed by the learned Judge in passing the impugned order.

5. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Additional Sessions Judge committed any error in passing the impugned order.

6. The following facts are not in dispute:

(a) Sanction under Section 19 of the Act, 1988 was prayed for by the Investigating Officer before the Director General of Police, State of Gujarat, to prosecute the petitioner for the offence under the Act, 1988, but by an order dated 26th May, 2008, the proposal was rejected and the Director General of Police declined to accord the necessary sanction under Section 19 of the Act, 1988.

(b) As the sanction was not accorded, the Investigating Officer was unable to file chargesheet against the petitioner herein.

(c) As the chargesheet could not be filed in the absence of the order of sanction, the Investigating Officer filed a report under Section 169 of the Cr.P.C. t