- (1.) Petitioner Sandeep Kumar Sharma, who has been named as accused in case FIR No. 86 dated 12.9.2002 under Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as `the Act') and Sections 323/342 IPC, registered at Police Station Nihal Singh Wala, District Moga, has filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as `the Code') for setting aside the order dated 10.12.2004, passed by Special Judge, Moga, whereby while while not accepting the untraced/cancellation report submitted by the police in the aforesaid FIR, cognizance of the offence against the petitioner has been taken under Section 190 (1) of the Code and he has been summoned through non-bailable warrants.
(2.) In this case, during investigation in the aforesaid FIR, the allegations against the petitioner were not established, therefore, cancellation report was submitted to the court. The trial court did not accept the report and ordered re-investigation. After re-investigation, the police again submitted untraced/cancellation report, which has not been accepted by the trial court and cognizance of the matter has been taken.
(3.) Counsel for the petitioner contends that in this case, the Special Judge could not take cognizance of the matter even under Section 190 (1) of the Code, while rejecting the cancellation report, as there was no valid sanction granted by the appropriate authority under Section 19 of the Act for prosecution of the petitioner. He further contends that for taking cognizance of the offence under the provisions of the Act, prior sanction is sine qua non and the Special Court cannot take cognizance against the accused even under Section 190 (1) of the Code, when there is no valid sanction against the accused. Counsel for the petitioner further contends that case of the petitioner is squarely covered by the decision of this Court in Criminal Revision No. 790 of 2006, Dr. Jaswant Singh versus State of Punjab and another, decided on September 6, 2006, wherein while following the decision of the Supreme Court in Dilawar Singh v. Parvinder Singh alias Iqbal Singh and another, (2006) 1 SCC (Cri) 727, it was held as under :- "14. It has been held that a prior sanction is sine qua non for taking cognizance of the offence under the provisions of PC Act. No cognizance against an accused can be taken even under Section 190 of the Code when there is no valid sanction against the said accused. This authority covers both the situations where the cancellation report is submitted by the investigating agency on the ground that during the investigation nothing was found against the accused, therefore, the investigating agency without seeking the sanction submitted the cancellation report. This authority also covers the situation where the investigating agency after the investigation came to the conclusion that there is sufficient material or evidence against the accused for presentation of challan against him and on that information applied for sanction before the sanctioning authority, who in its discretion after considering the material declined to grant the sanction, thereafter, the investigating agency submitted the untraced report. In my opinion, whether the investigating agency submitted the cancellation report or the untraced report, as indicated above, it will make no difference and in both the situations, the Special Judge has no jurisdiction to take cognizance of the offence while not agreeing with the report submitted by the investigating agency on the ground that there is sufficient material/evidence against the accused. 15. In State v. Raj Kumar Jain, (1998) 6 SCC 551, the orders of the Special Judge and the High Court came up for consideration where the CBI was directed to obtain a sanction from the competent authority before approaching the Court for accepting the final report submitted by the investigating agency under Section 173(2) of the Code for discharge of the accused. In the said case, it was held that while considering the report submitted by the investigating agency for discharge of the accused, the Court can direct for further investigation if it is found that the information of the Investigating Officer is not based on full and complete investigation. However the Court has no power to pass an order requiring the investigating agency to obtain the sanction from the competent authority before approaching the Court for acceptance of the report. It was held that the investigating agency is under no obligation to apply and obtain the sanction from the competent authority when it found that no case has been made out against the accused. For filing a cancellation report or untraced report, no sanction is required. The sanction is required only if the investigating agency decides to file challan against the accused. It is well settled that a Court cannot take cognizance of the offence under the PC Act without there being any sanction by the competent authority. 16. In Ashok Mehta's case (supra) a complaint was filed for prosecution of the accused under Sections 467,468, 471 read with Section 120-B IPC and Sections 13(2) and 13(1) (d) of the PC Act. The Special Judge ordered that the said complaint will be considered for taking cognizance only after sanction is obtained. The said order was set aside by the High Court while observing that the Special Judge can take cognizance of the complaint and proceed with the trial even without obtaining prior sanction as the same can be obtained later on. While setting aside the judgment of the High Court, the Supreme Court has observed that the reasoning given by the High Court was not only fallacious, but wholly unknown to law and it was not at all justified in interfering with the order passed by the trial Court. This judgment also clearly indicates that even on a complaint, no cognizance can be taken by the Special Judge without there being a previous sanction against the alleged accused.";