This is an application under section 397 (1) read with section 401 of the Code of Criminal Procedure, 1973 and Article 227 of Constitution praying for quashing the order dated 18.8.1998 of the learned Special Judge, Assam at a Guwahati in Special Case No. 16(C)/98 taking cognizance of the offences under the Indian Penal Code and the Prevention of Corruption Act, 1988 against the petitioner.

2. The relevant facts briefly are that on or about 3.7.1993, FIR No. 12/93 was registered under sections 409, 468, 420 and 120B, Indian Penal Code (for short, IPC) and section 13 (2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988 (for short, PC Act, 1988) by the Anti-Corruption Branch, Assam, Guwahati. The case was thereafter transferred by the Govt of Assam to the Central Bureau of Investigation (for short, CBI) for further investigation and registered afresh as RC 3(A)/94ACU(II). After further investigation, the CBI filed a charge sheet dated 15.7.1998 in the Court of Special Judge, Assam, at Guwahati against 39 accused persons including Sri PK Mahanta, Chief Minister of Assam and the petitioner. So far as the allegations against the petitioner are concerned, it is stated in the said charge sheet that as per the investigation of the CBI, the petitioner was Minister, Veterinary, Govt of Assam during 1986 to 1990 and he knew very well that Sri RP Borah was withdrawing money from ICDP, Demow on the basis of bogus and fictitious bills and he conspired with Sri RP Borah and others and took large sums of money from the defrauded funds of ICDP, Demow from Sri RP Borah. He took two flats in Jewel House, Andheri (West), Bombay and one Ice Cream Parlour in Varsova, Bombay in his name, in the name of his wife and in the name of Sri Pranjal Choudhury, his brother-in-law, from the funds illegally withdrawn by Sri RP Borah from ICDP, Demow. He took Cl sheets amounting to Rs.8 lacs approximately and also Demand Drafts amounting to Rs.13 lacs from these funds which were distributed in various schools, institutions, clubs, namghars in the constituency of Dhemaji from where he fought election during 1986 and 1991. He abetted Sri RP Borah to commit the offence of cheating by giving protection to him. He, therefore, committed offences punishable under section 120B read with section 420, IPC and section 13 (2) read with section 13 (1) (d), PC Act, 1988. After perusing the said charge sheet and the materials filed along with the charge sheet, the learned Special Judge, Assam at Guwahati took cognizance against the accused persons including the petitioner by the impugned order dated 18.8.1998. But by the said order dated 18.8.1998, the learned Special Judge did not take cognizance against Sri PK Mahanta, the present Chief Minister of Assam as the authority had not accorded sanction. The petitioner's case is that since he was the Minister, Veterinary Department, Govt of Assam and is presently a Member of Legislative Assembly, the learned Special Judge had no jurisdiction to take cognizance against the petitioner without sanction by the competent authority under section 19 of the PC Act, 1988 and under section 197, Code of Criminal Procedure (for short, CrPC).

3. Mr. DK Mishra, learned counsel appearing for the petitioner, submitted that section 19 of the PC Act, 1988, provided that no Court would take cognizance of an offence punishable under section 13 alleged to have been committed by a public servant, except with the previous sanction of the competent authority, and in a long line of cases, the Courts have held that previous sanction of the competent authority would be required under section 19 of the PC Act, 1988 if the person sought to be prosecuted was a public servant at the time of commission of the offence and was a public servant at the time when the cognizance of the offence was taken by the Court. He explained that the petitioner was the Minister, Veterinary Department, Govt of Assam at the time when the offence under section 13

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