JUDGMENT

B.P. Routray, J. - The petitioner has challenged the order dated 13.01.2020 of the learned Special Judge, Vigilance, Berhampur passed in G.R.No.28 of 2013(V), wherein his prayer for discharge from the offences under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act (in short 'P.C.Act') and Sections 409/471/120-B of the Indian Penal Code (in short 'I.P.C.') has been rejected.

2. It is the case of the petitioner that he is presently working as A.B.D.O. of Dharakote Block in the district of Ganjam. He was remained Incharge Executive Officer of Chikiti N.A.C. from 1.3.2008 to 6.8.2009. It is alleged that during the said period of his incumbency in Chikiti N.A.C., he, by committing irregularity in tender process issued the work order to a nonexistent farm run by the co-accused-Priyabrata Biswal to procure the Cesspool Emptier resulting wrongful loss to the public fund and unlawful pecuniary advantage to the accused persons. Concerning manipulation of tender papers and use of forged document in the transaction, the chargsheet was filed by Vigilance Police in Berhampur Vigilance P.S.Case No.28 dated 30.9.2013 for the aforestated offences. Consequently cognizance for the offences was taken on 29.11.2016 and subsequently the charge was framed in the impugned order by refusing his prayer for discharge.

3. It is submitted that, the Director of P.R. Department, Government of Odisha, who is the sanctioning authority, has declined to issue sanction of prosecution against the petitioner and despite such refusal of sanction, the learned court below has committed illegality in taking cognizance of the offences against the petitioner as well as refusing his prayer for discharge.

It is argued on behalf of the petitioner that sanction of prosecution in respect of a public servant is the mandate of law for his prosecution of the penal offences either under the P.C. Act or under the I.P.C. When the prayer for sanction by the prosecuting agency has been refused by the competent authority, the court cannot take cognizance of the offences as barred under Section 19 of the P.C. Act as well as 197 of the Cr.P.C. It is also submitted that since the public servant is protected through sanction from facing the prosecution, in absence of such approval from the competent authority, the proceeding is vitiated against him. Accordingly, the petitioner prays for his protection.

4. The petitioner in support of his contention has relied on the decisions of the Hon'ble Supreme Court in the case of State of Himachal vs. Nishant Sareen, reported in (2010) 14 SCC 527, Nanjappa vs. State of Karnataka, reported in (2015) 14 SCC 186 and Anil Kumar and others vs. M.K. Aiyappa, reported in (2013) 10 SCC 705.

5. On the contrary, it is submitted by the learned counsel for the Vigilance that admittedly the sanction sought for under Section 19 of the P.C.Act against the petitioner has been refused by the competent authority. But the sanction for prosecution of the petitioner for the offences under the I.P.C. is not at all required and as such was never sought for. Learned counsel further submits that since the offences under the I.P.C. have been alleged in addition to the offences under the P.C.Act, the order taking cognizance and consequent prosecution against the petitioner is never vitiated as the law has been settled in catena of decisions that no sanction is required for prosecution of the public servant in such matters where he has misutilised his official position to commit the offences as the same is not a part of his official duty. To support of his contention, he mainly relies on the ratio decided in the case of Prakash Singh Badal and another vs. State of Punjab and others, reported in AIR 2007 SC 1274 and additionally in other cases Viz. Rajib Ranjan and others vs. R.Vijaykumar, reported in (2015) 1 SCC 513, P.K.Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation, reported in (2001) 6 SCC 704 and State, CB