- (1.) The writ petition has been filed against the judgment and order dated 28.03.1990 passed by IInd Additional Sessions Judge, Ghaziabad by which the opposite party no. 2 rejecting the application of the petitioner that Section under Section 6 of the Prevention of Corruption Act, 1947 granted for his pros- ecution in Special Trial No. 02 of 1988 State Versus Hari Mohan Agarwal un- der Section 191 I.P.C. and Section 5 (2) of Prevention of Corruption Act, 1947 with request that sanction against the petitioner is not proper because it is not given by the removing authority as such the Court cannot take cognizance of the offence allegedly committed by him.
(2.) Brief facts of this case are as follows:- A case was registered against the applicant under Section 161 I.P.C. and 52(C) of the Prevention of Corruption Act on 31.07.1987. After taking the prosecution sanction on 18.08.1988 by the Chief Executive Officer, Charge sheet was submitted against the petitioner under Section 161 I.P.C. and 52(C) of the Prevention of Corruption Act. An application on behalf of petitioner-accused, Hari Mohan Agarwal, that the sanction granted for his prosecution is not proper and the Sessions Court (Special Court) cannot take cognizance of the offence allegedly committed by him.
(3.) Section 6 of the Prevention of Corruption Act, 1947 says that:- "(1) No court shall take cognizance of an offence punishable under Section 161 (or Section 164) or Section 165 of the Indian Penal Code (45 of 1860) or under sub-section (2) (or sub-section) (3A) of Section 5 of this Act, 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 offence save by or with the sanction of the Central Government (of the) Central Government, (b) in the case of a person who is employed in connected with the affairs of (a State) and is not removable from his office save by or with the sanction of the State Government (of the) State 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 whether the previous sanction as required under sub-section (I) should be given by the Central or 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. Wherein under section 6(1)(c) it is provided that no court shall take cognizance of an offence publishable under section 161 or 164 or 165 I.P.C. or under sub section (2) or (3A) of section 5 of the Prevention of Corruption Act, 1947 without sanction of the prosecution by theRemoving Authority. ";