- (1.) This batch of criminal petitions under Section 482 read with section 401 and 397 of the Code of Criminal Procedure, pertaining to prosecution sanction as envisaged under Section 197 of the Cr.P.C., 1973 and Section 19 of the Prevention of Corruption Act (P.C. Act), 1988 have been heard analogously and are being disposed of by this common judgment and order. It will be appropriate at this stage to refer to the said provisions: "197.Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. 19. Previous sanction necessary for prosecution (1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the code of Criminal Procedure, 1973,- (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 of, 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; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.-For the purposes of this section,- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
(2.) The petitions have been filed against the orders passed by the learned Special Judge, Assam, Guwahati in taking cognizance of the offences either deeming prosecution sanction in absence of any order pertaining to the same from the competent authority for several years (even to the extent of 11 years in some cases), or taking cognizance where there is refusal to grant sanction as per the advice of the Judicial Department and the learned Advocate General of the State. In some cases, prosecution sanction itself is under challenge while in some other cases, plea of non-maintainability of the proceedings in the Court of the learned Special Judge in absence of prosecution sanction has been raised. In some other cases, referring to the above categories of cases, challenge is to the proceedings and orders / charge sheet pertaining to the same itself, although no prosecution sanction is required. In all the petitions the prayer is to set aside those orders and to quash the criminal proceedings.
(3.) The offences alleged against the petitioners are that of alleged misappropriation of huge amounts by preparing false bills/diverting funds from one scheme to another; misappropriation of Govt. money by not entering the particular amount in the receipt book and thereafter removing the pages (original and duplicate) from the receipt books; misappropriation of Govt. money by preparing falls bills showing payments to Muster Roll Workers; misappropriation of huge Govt. money under the scheme called Operation Black Board (OBB); defrauding of poor farmers by placing supply orders with the particular firm and receiving substandard materials (came to be known as Green House Scam); fraudulent selection as Member/Chairman of Assam Public Service Commission (APSC) for pecuniary gains; acquiring of huge movable and immovable properties disproportionate to known source of income; taking bribe and recovery of signed currency notes from the possession of the accused; releasing of loan installments on the basis of progress report of works without any assessment and certification of the same in collusion with the loanee etc.;