JUDGMENT

CHANDRAMAULI KR. PRASAD, J. — Bereft of unnecessary details the facts giving rise to the present appeal are that the appellant, a member of the Orissa Administrative Service, at the relevant time was serving as a Deputy Secretary to Government of Orissa in the Irrigation Department. The officers of the Vigilance Department searched his house after obtaining a search warrant from the Court, on 17th March, 1992.

It led to registration of a first information report against the appellant. During the investigation, it was found that the appellant possessed disproportionate assets of Rs.5,58,752.40. As the appellant was removable from service by the State Government, the Vigilance Department sought its sanction for prosecution of the appellant. The State Government by its letter dated 13th May, 1997, declined to grant sanction and advised that the proposal for prosecuting the appellant be dropped. The appellant superannuated from service on 30th June, 1997. It seems that even after the retirement of the appellant, the Vigilance Department wrote on 25th of March, 1998 for reconsideration of the earlier order refusing the sanction for prosecution of the appellant. The State Government by its letter dated 31st July, 1998 wrote back to the Vigilance Department and declined to grant sanction for prosecution, as in its opinion there was no prima facie case against the appellant and the assets held by him were not disproportionate to the known sources of his income. Accordingly, the State Government reiterated that there is “no justification for reconsideration of the earlier orders refusing the sanction of prosecution” of the appellant. Notwithstanding the aforesaid refusal of the Government, the Vigilance Department on 10th September, 1998 filed charge-sheet against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 alleging acquisition of disproportionate assets of Rs.1,44,234.78 between 1st January, 1980 and 31st December, 1985. The charge-sheet was laid before the Special Judge (Vig.), Bhubaneswar who by its order dated 2nd August, 1999 took cognizance of the aforesaid offence and issued non-bailable warrant against the appellant.

2.Appellant, aggrieved by the above order taking Cognizance of offence and issuance of the non-bailable warrant of arrest, filed petition under Section 482 of the Code of Criminal Procedure seeking quashing of the aforesaid order inter alia on the ground that his prosecution without sanction of the State Government is bad in law but the High Court by its Order dated 22nd September, 2003 disposed of the application with liberty to the appellant to raise this contention before Special Judge (Vig.) at the time of the framing of the charge.

3.Appellant, thereafter filed an application for discharge before the trial Court which dismissed the same by order dated 9th June, 2004 inter alia on the ground that the appellant having retired from service, prior sanction is not necessary. Appellant challenged the aforesaid order before the High Court which by the impugned order rejected the challenge and while doing so observed as follows :

“6. On a conspectus of the facts and circumstances involved in the case and the position of law in the matter of sanction vis-vis impugned order, this Court does not find any illegality in that order so as to invoke the inherent power with a view to quash the impugned order. Be that is it may, it is made clear that the disputed question as to whether in the present case a sanction order is necessary and whether that was refused by the State Government and what is the consequence thereof, may be gone into at the time of trial if raised by the accused-petitioner notwithstanding rejection of his application by the impugned order inasmuch as the foregoing discussion by this Court in any manner does not interfere with that right of the accused to be pursued, if so legally advised at the time of trial.”

4.Mr. Vinoo Bhagat appearing on beha