Two questions of some importance arise in this criminal revision petition. They are :

(i) Whether sanction in terms of Section 197(1) of the Code of Criminal Procedure is required for prosecution under the Prevention of Corruption Act 1947 ?

(ii) Whether sanction under Section 6 of that Act is prerequisite for the prosecution of an accused public servant under Section 5 of that Act even when such accused person had ceased to be a public servant on the date of the taking cognizance of the offence by the Special Judge ?

2. The first accused in C.C. 27 of 1989 on the file of Enquiry Commissioner and Special Judge, Thiruvananthapuram is the petitioner herein. He had been a Minister of the Kerala Government during the relevant period and the Department of Electricity was one of the portfolio under his charge. The second accused, the second respondent was the Chairman of the Kerala State Electricity Board. The allegation against them is that during the period from October 1984 to May 1985 they conspired along with the then Power Secretary Sri. G. Gopalakrishna Pillai and in pursuance to the conspiracy sold 1, 22, 41, 440 units of electric current to M/s. Graphite India Ltd., Bangalore. The further allegation is that the accused had made a profit of Rs. 19,58,630/- in the said sale which is against the provisions of the Electricity Supply Act and the Kerala State Electricity Board Rules. At the time when the impugned transaction took place the first accused was the Minister in charge of Electricity. He ceased to be a Minister and continued as a Member of the Legislative Assembly. Finding that the above mentioned acts constituted offences under Sections 109 and 102-B of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act 1947 Government decided to prosecute the above mentioned individuals. Since first accused was not a Minister at the time the complaint was laid and cognizance taken by the Court it was not necessary to obtain sanction for prosecution under the provisions of the Prevention of Corruption Act. A sanction order was issued by the Government on 21-7-1989 as per G.O.(Ms) 127/89/VIG. under Section 197 of the Code of Criminal Procedure.

3. After obtaining sanction a complaint was preferred against petitioner and the other two accused as C.C. 27/89 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. Subsequently the prosecution withdrew the complaint against Sri. Gopalakrishna Pillai and he was acquitted. Before the Court started recording evidence a petition was moved on behalf of the petitioner as Crl.M.P. 218/94 requesting dismissal of the complaint on the ground that no proper sanction was obtained before prosecution. The Special Judge while holding that Ext. P. 50, the sanction order issued by the Government was not a valid sanction rejected the request on the ground that Section 197 Criminal Procedure Code is not attracted to a case tried by the Special Court and that the prosecution is not bad for want of sanction under that section. That order is challenged in this revision.

4. Heard counsel for petitioner and Director General of Prosecutions for the first respondent.

5. On the second question the answer can only be that no sanction is required under Section 6 for prosecuting an accused public servant before a Special Judge when he has ceased to be a public servant on the date of taking cognizance of the offence by the said court. Section 6 of the Prevention of Corruption Act 1947 say that no court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code or under sub-section (2) of Section 5 of that Act alleged to have been committed by a public servant except with the previous sanction in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government. As early as 1958