No sanction is required to prosecute a public servant under the Prevention of Corruption Act if the accused has ceased to be a public servant at the time of taking cognizance of the offence.

Order :- The petitioner stands accused of offences under Section 409, IPC and Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947 in Special C.C.No. 4/90 in the Court of the Special Judge (Principal Sessions Judge) at Pondicherry. The petitioner filed a Cri. M. P. No. 974 of 1999 before the learned Sessions Judge to discharge him from the case on the ground that there was no sanction for prosecuting him. The learned Special Judge dismissed the petition holding that the accused is a public servant and as per the decision reported in 1995 Cri LJ 963 (Kerala) rendered in the case of R. Balakrishna Pillai v. State, no sanction is necessary inasmuch as he ceases to be a public servant on the date of taking cognizance of the offence against him by the said Court. Aggrieved by the order of the Special Judge, he has filed this revision, which has come up for admission.

2. The petitioner was a Government Pleader at the time of the alleged commission of offence, but subsequently he ceased to be so. Even in the petition filed before the trial Court, the petitioner has stated that this Court has decided that the Government Pleader is a public servant and, therefore, he confined his argument only with reference to the non-accordance of sanction to prosecute him. It appears that he filed an application earlier to discharge him from the case on the ground that he was not a public servant; but subsequent to the decision of this Court that Government Pleader is also a public servant, he has contended that no sanction was accorded.

3. Learned counsel appearing for the petitioner relies on a ruling of the Supreme Court reported in (1996) 1 SCC 478 : (AIR 1996 SC 901) rendered in the case of R. Balakrishna Pillai v. State of Kerala, for the proposition that sanction for prosecution of public servant is necessary even if the public servant sought to be prosecuted has ceased to be a public servant on the date of taking cognizance of the offence. By relying on this ruling, the learned counsel argues that the ruling cited by the trial Court has been overruled by the Supreme Court in the aforesaid ruling.

4. The ruling in the above case was rendered under Section 197, Cr. P.C. Section 197, Cr. P.C. not only speaks about the public servant in office but also speaks about the public servant, who has demitted the office or retired. The beginning words are "when any person who is or was a Judge or Magistrate or a public Servant. . . . . . ." That means, sanction is necessary while prosecuting a public servant whether at the time of launching the prosecution, he continues to be a public servant or ceases to be a public servant. The presence of the words "is" or "was" distinguished Section 197 from Section 19 as well as Section 2(c) of the Prevention of Corruption Act as it stands today. Section 30 of the present Act repeals the Prevention of Corruption Act, 1947 and notwithstanding such repeal, there is a saving clause also which says that anything done or any action taken in pursuance of the Act repealed insofar as it is not inconsistent with the provisions of the present Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act. Under the Prevention in of Corruption Act, 1947, Section 6 which speaks about previous sanction for prosecution does not speak about the public servant, who ceases to be in office at the time of launching the prosecution. As per Section 6 of the old Act as in Section 19 of the new one, no Court shall take cognizance of the offence punishable. . . . . alleged to have been committed by a public servant, except with the previous sanction. There is no inconsistency between the old Act and the new Act, insofar as the provision for sanction is concerned.

5. The Supreme Court in the case of Kalicharan Mahapatra v. State of Orissa, reported in 1998 SCC (Cri) 1455 : (1998 Cri LJ 4003) has in detail discussed the distinction between Section 197, Cr. P.C. and