( 1 ) THE petitioner is being prosecuted for an offence under S. 7 read with 5. 13 (1) (d) and 13 (2) of the Prevention of Corruption Act 1988 and he seeks to thwart it on the ground that there is absence of valid sanction for this prosecution.

( 2 ) THE allegation against the petitioner is that one Surendra Kumar Chauhan was the President of Ratnakar Girh Nirma Cooperative Society which was superceded by the Registrar on 19. 7. 1990 and the petitioner was appointed its administrator. He took charge of the records of the society. According to the petition, there was discrepancy in the cash-book and the informant was accordingly noticed and in pursuance whereof, he along with one Shankar Naik met the petitioner in his office on 3. 8. 1990. The petitioner alleged that the, informant has defalcated the amount and he will set it right, provided he is paid a sum of Rs. 5000/- as illegal gratification. The informant was asked to come with the said amount on4. 8. 1990at 11:00 a. m. The informant reported the matter to the Special Police Establishment. A trap was laid and the petitioner received the said sum at Chikmanglur crossing and was caught at the spot.

( 3 ) AFTER investigation, the police submitted charge-sheet after obtaining sanction from the Law and Legislative Affairs Department of the State of Madhya Pradesh.

( 4 ) SHRI S. H. Agarwal learned counsel for the petitioner submitted that sanction granted by Law and Legislative Affairs Department and authenticated by the Additional Secretary of the Government, is not a valid sanction and as such, the petitioners prosecution is without valid sanction.

( 5 ) LEARNED counsel for the petitioner submitted that power of sanction of prosecution under 5. 6 of the Prevention of Corruption Act 1947 has been expressly taken away from the legal advice wing. Counsel for the petitioner required me to read the word except probation of offender and sanction of prosecution under S. 6 of the Prevention of Corruption Act 1947t in continuity. Necessary corollary of the same with submission of the learned counsel is that legal advice wing of Law and Legislative Affairs Department should not be competent to grant sanction of prosecution of the petitioner. 5a. Learned counsel for the petitioner, during the course of argument, showed his inability to produce the Business (Allocation) Rules and required me to refer to the same as reproduced in the judgment of Full Bench of this Court in the case of Sunderlal v. State, which read as follows: Criminal Procedure, including all matters included in the Code of Criminal Procedure except probation of offenders, sanction of prosecution under S. 197 of the Code of Criminal Procedure 1973 and under S. 6 of the Prevention of Corruption Act 1947.

( 6 ) STRONG reliance has been placed on the following passage from the Full Bench judgment of this Court in Sunderlals case (supra): Now, the position has been changed by the amended Business (Allocation) Rules. Now, sanction has to be given by the respective departments to which the members of services belong. per paragraph 6.

( 7 ) SHRI G. Desai learned Deputy Government Advocate, counsel for the opposite party submitted that the question of legality or otherwise of the order of sanction cannot be gone into by this Court in view of S. 19 (3) of the Prevention of Corruption Act 1988. Sec. 19 (3) (a) of the Act reads as follows: 5. 19 (3): Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974): (a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence, or any error, omission or irregularity in, the sanction required under sub-section (1) unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

( 8 ) BEFORE I proceed to answer the petitioners contention, I must answer Shri Desaits aforesaid contention which is in the form of a preli