A. K. BANERJEE, J. ( 1 ) PETITIONER has been implicated in a CBI, Calcutta Unit registered Case No. 2397 along with several officials of Andaman and Nicobar Administration under sections 120b, 420, 468 and 471 of IPC and section 13 (2) read with section 13 (1) (b) and (d) of Prevention and Corruption Act. 1988. ( 2 ) THE facts of the case are briefly stated hereinafter. The accused-officials of the Administration verbally awarded a contract to the petitioner for illumination of Aberdeen jetty for an estimated cost of Rs. 5 lakhs which was enhanced to Rs. 17,30,470/- without having any proper sanction from the appropriate authority. It is alleged that there had been neither any public tender called for the said work nor any appropriate procedure in relation to awarding of contract had been followed. It has been further alleged that subsequently the petitioner along with the co-accused manufactured and or fabricated documents defending the administration. The records of the administration had been allegedly interpolated and or tampered with by the said co-accused officials to favour the petitioner. A sum of Rs. 14 lakhs and odd had already been paid to the petitioner from the till of administration although the estimated contract value was Rs. 5 lakhs. On the basis of the First Information Report, an investigation was carried on by the CBI Authority and ultimately all the accused have been charge-sheeted by an order dated 12th June. 2001 which has been impugned in this revisional application. ( 3 ) THE petitioner has prayed for quashing of the said order dated 12th June, 2001 and the proceedings, inter alia, on the following grounds: (I)there has been no appropriate sanction given by the concerned authority to implicate the co-accused officials which is required under section 197 of the Criminal Procedure Code. (II)since the charge-sheet is a comprehensive one under several provisions of the IPC as well as under the Prevention of Corruption Act, 1988, Special Judge under the said Act 1988 was the appropriate authority to take cognizance thereof hence taking of cognizance by the Magistrate vitiated the entire proceedings. (III) There was no proper matertal on the basis on which the charges could have been framed under section 420. (IV) The requisites under section 468 had not been fulfilled on the basis of which the charges could have been framed. (III) There was no proper matertal on the basis on which the charges could have been framed under section 420. (IV) The requisites under section 468 had not been fulfilled on the basis of which the charges could have been framed. (V)as the framing of charges under sections 420 and 468 were not backed by proper materials, as a consequence whereof there could not have been any charge framed under section 120b. ( 4 ) MR. Haradhan Banerjee, learned counsel appearing for the accused-petitioner submitted that on factual score there was no materials to implicate the petitioner and or the other co-accused and the entire case is based upon a non-issue. ( 5 ) TO elaborate his contentions he has drawn my attention to various documents to show that the estimate costs was Rs. 17 lakhs and not Rs. 5 lakhs. He further submitted that the petitioner was an enlisted contractor under the administration. There was no public tender called and the enlisted contractor were asked to submit their quotations. Four tenderers submitted their tenders and ultimately the petitioner was selected. The work was completed. There had been a joint survey. The administration in phases paid a substantial sum to the extent of Rs. 14 lakhs and odd. To evade payment of the balance sum, the present case has been initiated by the administration. ( 6 ) ON the question of sanction, Mr. Banerjee has drawn my attention to section 197 of the Cr. PC. According to him although the co-accused. Mr. Hayat Singh was a retired official, on the date of framing of charges, sanction was necessary under section 197 of the Cr. PC. In support of his contentions, he has cited the following apex Court decisions. (1999)5 Supreme Court Cases 738 (1998)5 Supreme Court Cases 411 (1991)3 Supreme Court Cases page 655 all India Reporter 1992 Supreme Court 604 1990 (Suppl.) Supreme Court Cases 41 2000 7 Supreme 177 (1997)1 Supreme Court Cases 478. ( 7 ) CITING the aforesaid decisions of the apex Court, Mr. Banerjee submitted since there was no sanction obtained by the CBI authority in implicating the said Shri Hayat Singh, the entire proceeding was vitiated by illegality and as a consequence thereof, there could not have been any framing of charges and the entire proceedings and the orders passed therein including the charge-sheet are liable to be quashed and set aside. Banerjee submitted since there was no sanction obtained by the CBI authority in implicating the said Shri Hayat Singh, the entire proceeding was vitiated by illegality and as a consequence thereof, there could not have been any framing of charges and the entire proceedings and the orders passed therein including the charge-sheet are liable to be quashed and set aside. ( 8 ) ON the question of cognizance, Mr. Banerjee submitted that the learned Magistrate initially took cognizance and thereafter referred the matter to the Special Court as the case was to be tried by the Special Court under the said Act, 1988. The Special Court proceeded with the case on the basis of taking up of cognizance by the Magistrate, hence this proceeding was vitiated by irregularity and or illegality and is liable to be quashed. In support of his contention he has cited decision of this Court reported in 1998 Vol. I Calcutta High Court Notes page 174. ( 9 ) WITH regard to framing of charges, Mr. Banerjee has cited the apex Court decision reported in 2000 Vol. III Supreme Court Cases page 269. Paragraph 11 of the said judgment has been relied upon by Mr. Banerjee and is quoted below:"while section 415 is an offence of cheating. Section 18 deals with cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect and section 420 is cheating and dishonestly inducing delivery of property. In order to attract the provisions of sections 418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfil the promise by itself would not attract the provisions of section 418 or section 420. Mens rea is one of the essential ingredients of the offence of cheating under section 420. As a matter of fact Illustration (g) to section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract and it is this concept which obviously has weighed with the learned single Judge. As a matter of fact Illustration (g) to section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract and it is this concept which obviously has weighed with the learned single Judge. But can the factual situation as narrated above in the longish reproduction of the complaint lend support to the observations of the learned judge, the answer is a pivotal one but before so doing one other aspect as regards the powers under section 482 Cr. PC ought to be noticed. As noted hereinbefore this power is to be exercised with due care and caution and rather sparingly and has been so held on more occasions that one. " ( 10 ) MR. Ranjan Roy, Advocate appearing for the CBI submitted that this is a case to be investigated under the powers conferred under section 154 of the Cr. PC and the normal procedure laid down in the code would not follow. He further submitted that under section 197, protection has been given to the Government officials for the offence alleged to have been committed in course of discharging official duties. According to him the present case can not be termed as an offence alleged to have been committed while discharging official duties and as such section 197 has no application. ( 11 ) TO elaborate his contention, Mr. Roy submitted that defrauding the administration by hatching a criminal conspiracy and cheating the administration by manufacturing and or fabricating the records to favour the petitioner is not within official duty. In support of his contention, he has cited two apex Court decisions reported in 2001 Supreme Court Cases (Cri) page 1234 and 1999 Criminal Law Journal (SC) 3996. ( 12 ) WITH regard to taking up of congnizance by the Magistrate, Mr. Roy submitted that the Magistrate by mistake had taken cognizance of the offence. However, as and when he found that the case should be tried by the Special Court he at once sent it to the Special Court. The Special Court upon receipt of the said case considered the matter and approved the act of the Magistrate whereby he had taken cognizance of and thereby the irregularity, if any, had been cured by the subsequent orders of the Special Court. The Special Court upon receipt of the said case considered the matter and approved the act of the Magistrate whereby he had taken cognizance of and thereby the irregularity, if any, had been cured by the subsequent orders of the Special Court. Moreover, those orders for taking up cognizance by the Magistrate and subsequent orders of the Special Court approving such order of taking up cognizance have not been challenged by any of the accused and the accused-petitioner is now precluded from challenging the same. ( 13 ) MR. Roy further submitted that section 460 (e) of the Cr. PC provides that, if any Magistrate, not empowered by law, takes cognizance of an offence under clause (a) or clause (b) under section 190 (1), such irregularities do not vitiate the proceedings. He further submitted that under section 461 of the Cr. PC eventualities have been prescribed under which the irregularities committed by the Magistrate would vitiate the proceedings, none of the eventualities prescribed under section 461 do apply in the instant case. In support of his contention, Mr. Roy has referred to the apex Court decision reported in 2001 SCC (Cri) 1373. ( 14 ) LASTLY, Mr. Roy contended that the charges have been framed and the case is now ready for trial, at this stage High Court should not interfere with the said proceedings in revisional jurisdiction. In support of the said contention, Mr. Roy has referred to two apex Court decisions reported in 2001 SCC (Cri) page 685 and 2000 SCC (Cri) page 1486. ( 15 ) WITH regard to the question that no sanction was obtained under section 197, in my considered view, the said ground is not available to the petitioner as the concerned officer against whom sanction was required to be obtained has not challenged the proceedings. ( 16 ) ASSUMING that sanction was necessary under section 197, the concerned officer could have approached this Court challenging the proceeding. Having not done so the irregularity, if any, is waived by the said official. ( 17 ) ON a plain reading of section 197, it appears to me that protection has been given to certain Government Officials against the mistakes, if any, committed by them while discharging their official duty. If any officer chooses not to take such plea, a co-accused cannot ask for quashing of the proceedings on such ground. ( 17 ) ON a plain reading of section 197, it appears to me that protection has been given to certain Government Officials against the mistakes, if any, committed by them while discharging their official duty. If any officer chooses not to take such plea, a co-accused cannot ask for quashing of the proceedings on such ground. ( 18 ) MOREOVER, I am in full agreement with Mr. Roy that the nature of the allegation as appears from the charge-sheet does not suggest that the action on the part of the concerned officials was in discharge of his official duty. The said Mr. Hayat Singh is a retired officer. He is no longer in employment of the administration. The allegations of manufacturing and fabrication of the documents, tampering and interpolation of government documents, in my view, cannot be termed as an act while discharging official duty. In this regard, latest apex Court decision in the Case of P. K. Pradhan v. State of Sikkim reported in 2001 SCC (Cri) page 1234 is relevant. Paragraph 15 of the said judgment is quoted below:-"thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under section 197 of the Code. the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. It is well settled that question of sanction under section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventually, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. " ( 19 ) ACCORDING to apex Court the acts of the accused complained must be such that the same cannot be separated from the discharge of official duty. Same is not the case here. The allegation is that the entire records have been manufactured, fabricated and or tampered and or interpolated to favour the accused-petitioner. As such relying on the apex Court decision, I hold that no sanction in fact was necessary in respect of Shri Hayat Singh. Such position had been accepted by Shri Hayat Singh and as such he did not move this Court for quashing. Hence, petitioner is precluded from taking such plea. ( 20 ) WITH regard to taken up of cognizance in my considered view, it was a mere irregularity and in any event has been cured by the subsequent orders of Special Court. The mistake, if any, committed by the Magistrate cannot vitiate the entire proceedings under section 461 of the Criminal Procedure Code. Hence, I hold that this contention of the petitioner is not tenable and as such is rejected. ( 21 ) WITH regard to appropriate material being absent in framing of charges under sections 420 and 468, I feel that appropriate stage has not come to comment on the same. Hence, I hold that this contention of the petitioner is not tenable and as such is rejected. ( 21 ) WITH regard to appropriate material being absent in framing of charges under sections 420 and 468, I feel that appropriate stage has not come to comment on the same. The documents produced by the accused petitioner in course of hearing would show discrepancies and it is too early to comment as to whether those discrepancies are creation of the accused as a result of interpolation and or tampering and until and unless the case is allowed to be tried and evidences are gone into it would not be wise to quash the proceeding on the said ground. Accused is entitled in law to point out the inadequate documentary evidence to implicate him at the time of trial and would be entitled to have an order of acquittal if the changes are not proved. Law further provides entitling the accused for appropriate damage being awarded in his favour if he is ultimately found to have been implicated on wrong charges. Those are in my view, cannot be grounds for quashing the criminal proceeding at this stage when charges have been framed and the case is ready for trial. ( 22 ) THE other cases cited by the parties are, in my view, do not call for any detailed discussion as they do not have any relevance in the instant case and as such, I refrain from dealing with the same. In the result, the application fails and is hereby dismissed. The Special Court is directed to proceed with the trial as expeditiously possible. In the facts and circumstances of the case, there would be no order as to cost. Application dismissed.