Prosecution against a public servant requires prior sanction under the Prevention of Corruption Act; lack of such sanction vitiates the cognizance order.

JUDGMENT :

B.P. ROUTRAY, J.

By way of this revision petition, petitioner has assailed the order dated 11.07.2019, passed by the learned Special Judge, Vigilance, Cuttack in T.R. Case No. 17/2019, taking cognizance against petitioner and prays to quash the criminal proceedings in question in respect of the present petitioner.

2. The petitioner is presently serving as Deputy Secretary to Government of Odisha in the Department of Industries and at the time of commission of offence he was serving as Assistant Manager (Project) in the District Industries Centre (DIC), Jagatpur, Cuttack, and thus is a public servant within the meaning of Section 2 (c) of the Prevention of Corruption Act,1988.

3. An FIR was lodged on 30.06.2010 by the Inspector of Vigilance, Cuttack and registered as Cuttack Vigilance P.S. Case No.45 dated 30.06.2010. Initially the petitioner was not named in the FIR, but his name was reflected subsequently in the charge-sheet dated 21.12.2018. It is alleged in the FIR that the accused persons have illegally shown distribution of coal in favour of six fake MSME Units to derive pecuniary advantage to their personal benefit violating the coal distribution policy. The Odisha Small Industries Corporation Ltd. (OSIC) and the District Industries Centers were required to distribute coal as per the guidelines, to different MSME in a realistic manner. It has come to the light during physical verification by the Vigilance Department on 19.05.2010 that linkage coal has been sold in favour of fake firms, as named in the FIR, though there was no existence of said firms. However, the distribution of coal to those firms has been shown on record. Further, certain irregularities in the sale price of coal, comparing to the market rate were also seen. The total amount of pecuniary advantage gained by the accused persons has been computed to the tune of Rs. 22,38,609/- (rupees twenty two lakhs thirty eight thousand six hundred nine) in the charge sheet and total 12 accused persons have been named therein including the present petitioner. The specific accusation made in the charge sheet in respect of the petitioner is that, he, during his tenure as Assistant Manager (Project) had forwarded the file to submit the same to the higher authorities by abusing his official position and was involved in the criminal conspiracy for illegal gain with other official accused persons and non-existent firms’ proprietors. Thus the offences alleged against the present petitioner are under Sections 13 (2)/13(1)(b) of the Prevention of Corruption Act, 1988 (PC Act) and Sections 420 /120B of the Indian Penal Code.

4. Petitioner’s main challenge is that the impugned order taking cognizance is not sustainable due to absence of sanction, as required under Section 19 of the PC Act. It is submitted that the alleged illegal distribution of coal was pertaining to the period 1999 to 2009 when this petitioner was serving as the Assistant Manager (Project) in DIC, Jagatpur. It is further argued by the learned counsel for the petitioner that as stated in the charge sheet, the Government in its order dated 23.07.2018 has declined to accord sanction against the present petitioner and other co-accused, namely, Sitikanta Sarangi. When the Government has refused to grant sanction of prosecution against the petitioner, the learned Vigilance Judge, Cuttack is not correct in taking cognizance against the petitioner with a misconception that the petitioner has already retired from service, though the fact remains that he is still in Government Service and presently serving as Deputy Secretary to Government of Odisha in the Industries Department. It is also submitted that in respect of other two co-accused persons, nam