- (1.) Heard the Learned Counsel for the petitioner the Learned Counsel for the C.B.I. The petitioner has filed this application for quashing the Entire Criminal Proceeding including the order dated 10.07.2002 passed in R.C. Case No. 2A of. 1998-R by the Special Judge, CBI, Ranchi, whereby cognizance has been taken against the petitioner under Sections 409, 419, 420, 467, 468, 471, 477-A of the Indian Penal Code as well under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988.
(2.) The Learned Counsel for the petitioner has submitted that the Court below has taken cognizance vide order dated 10.7.2002 against the petitioner without applying his Judicial mind as in the aforesaid order taking cognizance, the Court below has mentioned:-- The charge sheet is also accompanied by sanction order obtained from the competent Authority for the prosecution of the accused under the above referred sections of Law based on several grounds. But admittedly in the charge sheet submitted by C.B.I. has very specifically mentioned that no sanction order for prosecution of the petitioner is required in this case as the petitioner namely Sharad Akhouri has already been dismissed from his service in the year 1998. This clearly shows that the Court below did not apply his judicial mind in to the contents of the charge sheet submitted by the C.B.I. against the petitioner. It is also contended that when there is no sanction order how the Court below has mentioned in his aforesaid order dated 10.07.2002 that the charge sheet Is also accompanied by the sanction order. Therefore, for non-application of the judicial mind, the order taking cognizance is wholly illegal and fit to be set aside.
(3.) The Learned Counsel for the petitioner has further submitted that from the charge sheet it is quite clear that no sanction has been taken for the prosecution from the authority concerned according to the allegation made in the F.I.R. against the petitioner for the commission of the offence under Section 409/420/467/468 read with 471 of the I.P.C. and admittedly the petitioner was a public servant, no Court shall take cognizance of such offence except with a previous sanction from the appropriate authority. Therefore, the order taking cognizance is absolutely bad in law and the same is fit to be set aside, To support his contention, the counsel of the petitioner has referred two decisions of the Hon'ble Apex Court which are:- (i) State of Orissa and others v. Ganesh Chandra Jew,, 2004 AIR(SC) 2179 (ii) S.K. Zutshi and another v. Bimal Debnath and another, 2004 8 SCC 31. It is submitted that the aforesaid cases the Hon'ble Apex Court has held that under Section 197 of the Cr. P. Code protection is available to the public servant even he has retired from the service and when the alleged Act done by the public servant is reasonably connected with the discharge of the official duty.;