Sanction is not required for filing a final report under S. 173, Cr. P.C. when no evidence is present to warrant prosecution.

1. Central Bureau of Investigation (hereinafter called the appellant) registered corruption cases against the present four respondents under S. 120 - B, I.P.C. and S. 5(2) read with S.5(1)(d) of the Prevention of Corruption Act . During the investigation the appellant could not collect sufficient evidence to establish criminal conspiracy and abuse of official position by the respondents. In view of lack of evidence the appellant submitted a report under S. 173, Cr. P.C. before the Special Judge, Delhi for closure of the case.

2. The Special Judge, Delhi by the impugned order rejected the request of the appellant and directed that at the first instance the prosecution should approach the concerned sanctioning authority before coming to the Court and further held that the report under S.173, Cr. P.C. was premature and therefore not acceptable.

3. It is against the impugned order dated August 16, 1991 that the present criminal revision has been preferred by the appellant inter alia on the ground that for filing a report under S.173, Cr. P.C. for closure of the case, no sanction of the sanctioning authority is required.

4. In order to appreciate the contention of the appellant, it is worthwhile to refer to some of the relevant provisions. The Prevention of Corruption Act , 1947 has been amended by Act No. 49 of 1988. The Act was amended to make it more effective by widening the coverage and by strengthening the object. But so far as the scheme of the Act is concerned, there is infact no change and that has almost remained intact. S.6(1) of the , 1947 (hereinafter called the Act) reads as under:
S.6(1): -
"No Court shall take cognizance of an offence punishable under S.161 (or S.164) or S.165 of the Indian Penal Code or under sub-section (2) (or sub-section (3A)) of S.5 of this Act, alleged to have been committed by a public servant except with the previous sanction".

5. The Prevention of Corruption Act , 1988, S.19(1) also provides previous section for prosecution in the case of a person employed in connection with the affairs of the Union, State Government or other authority and is analogous to S.6(1) of the , 1947 except clause 19(3) which provides that on the ground of irregularity of sanction, no finding of the Court can be reversed.

6. The policy underlying S.6 or under S.19 and similar sections, is that there should not be unnecessary harassment of public servants. The object is to save the public servant from harassment of malicious prosecution. Valid sanction is a prerequisite to the taking of cognizance of the offences. In the case of R. S. Nayak v. A. R. Antulay , 1984 SCC (Cri) page 172 : 1984 CriLJ 613, Supreme Court held that a trial without a valid sanction where one is necessary under S. 6 is a trial without jurisdiction by the Court. The question for determination in this Criminal Revision is not the validity or invalidity of the sanction. The question raised by the appellant is whether the sanction from the sanctioning authority is a prerequisite for filing a final report under S.173, Cr. P.C. even when the prosecution on account of lack of evidence is not in a position to charge the respondents with the offence? Can the Special Judge force the appellant to obtain sanction particularly when appellant is not asking the Court to take cognizance of the offence as there is no sufficient material to link the respondent with the offence. In the case of Abhinandan Jha v. Dinesh Mishra , reported in AIR 1968 SC l17 : 1968 CriLJ 97, Supreme Court was dealing with the power of the Magistrate under S.173 of the Code of Criminal Procedure . In that case Dinesh Mishra