Arijit Pasayat, J. - (1.) Leave granted.
(2.) In both these appeals the basic question raised relates to the validity of sanction to prosecute the appellants for offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short the Act). Sanction has been accorded both under the provisions of Section 19(1)(b) of the Act and Section 197 of the Code of Criminal Procedure, 1973 (in short the Code).
(3.) Plea relating to cognizance of the offence is that previous sanction is necessary under the Act if the public servant does not hold the same office which he allegedly abused on the date when the cognizance was taken by the Court. Stand of the appellants is that even though a public servant does not hold the same office and holds some other office, then also sanction is necessary. It is stated in that context that the decision in R.S. Nayak v. A.R. Antulay (1992) 1 SCC 279 is per incuriam because the effect of Section 19(2) of the Act had not been considered. It is also submitted that the effect of the recommendations made by the Law Commission in its 41st report which necessitated sanction in terms of Section 197 of the Code extending the protection of sanction for a retired public servant as well should have been also extended under Section 6(1) of the Prevention of Corruption Act, 1947 (in short the 1947 Act) corresponding to Section 19(1) of the Act. This according to us is a case of causus omissus. The decision in R. S. Nayaks case (supra) cannot be regarded as a binding precedent in respect of the issues which did not relate to the three questions which were required to be decided in that case. The order rejecting the plea of lack of sanction and the jurisdiction is required to be passed by a speaking order. The Secretary to the Government had no jurisdiction to sign the sanction order on the instructions of the Governor. Therefore, the so-called sanction of the Governor has no sanctity in the eye of law. There is no material to show that the alleged dis-proportionate assets were relatable to a period when Smt. Rabri Devi was the Chief Minister. At that time she was also either holding the office of MLC or MLA and, therefore, the sanction granted has no validity.;