JUDGMENT 1. - By way of instant petition under Section 482 of the Code of Criminal Procedure petitioners seek to quash the order of the Judicial Magistrate, Sirohi dated 15.2.2003 dismissing the petitioners' application under section 67(2) of the Rajasthan Excise Act, 1973 (sic ?) (hereinafter referred to as the Act of 1973). 2. Shorn of unnecessary details the factual back ground giving rise to the instant petition are that on 10.7.97 police seized excisable articles from the possession of the petitioners and two others and registered a case against them. After investigation police laid charge-sheet against the petitioners for offence under section 19/54 and 65/54 of the Act of 1973 on 4.1.99. Apparently the prosecution was barred by limitation in view of Section 7 of the Act of 1973 having filed beyond one year. The petitioners by way of an application dated 30th March, 2001 sought discharge on the ground that the order of taking cognizance was ex facie illegal as the charge-sheet was filed beyond the statutory limitation provided under Section 67(2) of the Act of 1973. During the pendency of the application the State Government granted special sanction for the prosecution by order dated 3rd April, 2002. The prosecution contested the application on the ground that in a case where State has granted special sanction for the prosecution the provision of limitation is not attracted. The learned Magistrate accepted the contention of the prosecution and dismissed the application filed by the petitioners by the impugned order. 3. It is contended by the learned counsel that Division Bench of this Court (1) Gurcharan Singh V/s State of Rajasthan reported in 2001(3) Rajasthan Cri. Decisions page 1 has held that the provisions of Section 67 of the Act of 1973 will prevail over section 468 Cr.P.C. It is submitted by the learned counsel that the learned Magistrate has committed error in not considering that at the time the court considered the police papers for taking cognizance the special sanction of the State did not exist as such there was statutory bar of taking cognizance. On the other hand it is contended by the learned Public Prosecutor that once a special sanction has been granted by the State Government the limitation of prosecution provided under sub-section (2) of Section 67 is completely wiped out. 4. On the other hand it is contended by the learned Public Prosecutor that once a special sanction has been granted by the State Government the limitation of prosecution provided under sub-section (2) of Section 67 is completely wiped out. 4. In order to better appreciate the contentions it would be apt to acquaint with Section 67 of the Act of 1973 which reads as follows : "67. Cognizance of offences.- (1) No Magistrate shall take cognizance of an offence punishable: (a) under Section 54 or Section 7 of Section 9 or Section 3 except on his own knowledge or suspicion or on a complaint or the report of an Excise Officer; or (b) under Section 55 or Section 6 or Section 8 or Section 0 or Section 1 or Section 2 except on a complaint or the report of an officer not below the rank of the Excise Commissioner or an Excise Officer duly empowered in that behalf. Explanation -The report of an Excise Officer under this sub-section shall be treated for all purposes of trial to be a report made by a police officer within the meaning of clause (b) of sub-section (1) of Section 90 of the Code of Criminal Procedure, 1973, (Central Act 2 of 1974). (2) Except with the special sanction of the State Government no Magistrate shall take cognizance of any offence punishable under this Act, unless the prosecution is instituted within a year after the date on which the offence is alleged to have been committed." Thus, it is seen from Section 67 that the limitation for taking cognizance of an offence under Section 19/54 is one year. Sub-section (2) of Section 67 place a statutory obligation upon the court not to take cognizance of any offence punishable under the Act unless it is instituted within one year after the date on which the offence is alleged to have been committed. The exception to the prohibition is the special sanction of the State Government. Thus, when a charge-sheet is presented the court id duty bound to consider the question of limitation. When the complaint or challan is filed which is prime facie barred by time and it is not accompanied by an order of the State Government granting special sanction for the prosecution the court is prohibited by virtue of sub-section (2) of Section 67 to take cognizance. When the complaint or challan is filed which is prime facie barred by time and it is not accompanied by an order of the State Government granting special sanction for the prosecution the court is prohibited by virtue of sub-section (2) of Section 67 to take cognizance. The grant of special sanction by the State is not a matter of routine as is evident from the fact the legislature has suffixed "special" before the word sanction. State would be granting special sanction only in exceptional case where it forms an opinion that there existed special reasons which prevented the persons responsible for prosecution to abide by law of filing challan or complaint within limitation. There is nothing wrong to construe the provision as putting pressure on lethargic or corrupt officer, to be vigilant and make every effort to ensure detection and punishment of crime quickly. The Apex Court in (2) State V/s Sarwan Singh reported in A.I.R. 1981 SC page 1054 dealing with the provisions of limitation under Cr.P.C. has observed that in putting of bar of limitation on prosecution was clearly to prevent the parties from filing cases after long time, as a result of which material evidence may disappear and also to prevent the abuse of the process of court by vexatious and belated prosecution after long time of the offence. The object which the statute seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. It is, therefore, necessary that officers responsible for filing of prosecution remain vigilant and takes no chance of prosecution falling on the ground of limitation. 5. Under general law of limitation, the power to condone the delay is vested in the court, but under the Act of 1973, the State has kept this power with itself, by providing exception clause of special sanction. Whether the power is to be exercised by the court or the State, it has to be exercised before the cognizance is taken. Thus, a decision to grant special sanction must be taken by the State before matter reaches to court for adjudication on the point of taking cognizance. Whether the power is to be exercised by the court or the State, it has to be exercised before the cognizance is taken. Thus, a decision to grant special sanction must be taken by the State before matter reaches to court for adjudication on the point of taking cognizance. If an officer fail in discharge of his duty in not completing the investigation within a period of one year, it is obligatory for him to report the matter to the State Government and seek permission by way of special sanction to file challan or complaint after the expiry of limitation. It is for the higher authorities in the State Government to fix responsibility on the person responsible for not filing the charge-sheet or complaint in time. In case there exists really good reasons the State Government in an appropriate case may consider to grant special sanction. Thus, it cannot be other way round that the police or the Excise Officer files the complaint or the charge-sheet on his own and then move to the State Government for grant of special sanction. In such a case the decision of granting special sanction will be of the police or the Excise Officer and not of the State Government. Sub-section (2) of Section 67 clearly contemplates that such decision is to be taken by the State Government. A cognizance taken on a complaint filed after statutory period of one year is ex facie illegal being in disregard to the mandate of the legislative provisions of Section 67(2). Such an illegality committed by the court cannot be cured by an executive order i.e. special sanction for prosecution. 6. In the instant case as the incident took place on 10.7.97 the charge-sheet could be filed on or before 9.7.98. The charge-sheet was laid on 4.1.99. The learned Magistrate in taking cognizance against the petitioners on 4.1.99 has acted in complete disregard to the statutory provisions of sub-section (2) of Section 67. He failed to discharge his statutory obligation in considering if the charge-sheet was filed within limitation. Apparently it was time barred and it was not accompanied by a special sanction of the State. As such he had no jurisdiction to take cognizance against the petitioners for offence under the Act of 1973. He failed to discharge his statutory obligation in considering if the charge-sheet was filed within limitation. Apparently it was time barred and it was not accompanied by a special sanction of the State. As such he had no jurisdiction to take cognizance against the petitioners for offence under the Act of 1973. Irrespective of the fact that the accused invited the attention of the learned Magistrate towards gross illegality committed, he kept the application pending and gave full opportunity to the prosecution to obtain sanction from the State Government. Thus, the ex post facto sanction can not validate the illegal order of taking cognizance dated 4.1.99. As to whether the case falls under the proviso of Section 67(2) i.e. there exists a special sanction granted by the State must be considered before the order of taking cognizance. By a subsequent special sanction a Magistrate cannot rectify his own illegal order. 7. Consequently, the Misc. Petition is allowed. The order of the Judicial Magistrate, Sirohi dated 15.2.2003 is quashed and set aside. The application filed by the accused petitioners under Section 67(2) of the Act of 1973 is allowed. The proceeding against the petitioners in the court of Judicial Magistrate, Sirohi being Cr. case No. 7/99 is quashed and set aside.Petition allowed. *******