Judgment 1. The two revisions are directed against the order dated 24.9.2003 of the Special Judge, Vigilance, Patna, passed in special case no. 94 of 1992 whereby the prayer of the two petitioners for discharging them has been refused and the learned Special Judge has ordered for framing charges against the two petitioners. 2. Petitioner Umesh Kumar Sinha was the Managing Director of the Bihar State Chemical and Pharmaceutical Development Corporation Ltd. and Nageshwam Prasad Singh being a public servant was a senior consultant of BITCO. The allegation based on material set forth in the charge sheet against the two petitioners is that petitioner Nageshwar Pd. Sinha being a senior consultant in BITCO which was appointed as consultant by the Bihar State Chemical and Pharmaceutical Development Corporation, Bihar was a member of the purchase committee and without inviting any tender or quotation he advanced for purchase of machinery from a fake and nonexistent firm M/s Sunrise Hydraulic Industries, U.Z-383 Lajwantigarden, New Delhi. The machineries were not supplied for four months and all the letter sent to M/s Sunrise Hydraulic Industries were returned by the postal department with the endorsement that the addressee was non existent. That an advance of Rs. 29333/- was also paid to the said non existent firm without receiving of machinery. 3. About the petitioner Umesh Kr. Sinha, who was the Managing Director of the Chemical and Pharmaceutical Development Corporation of Bihar, the allegation is that he also being in conspiracy and in collusion with others made the payment of remaining balance of Rs. 72383/- to the said fake and non-existent firm as final payment without receiving any machinery. 4. During hearing nothing substantial was argued on behalf of the petitioners as to the allegations on these two petitioners. The learned counsel for the petitioners argued mainly on the point of sanction and also on some others points that petitioner Umresh Kumar Sinha subsequently filed criminal case against the firm for supply of machinery and that subsequently the machinery was supplied. 5. The learned counsel for the petitioner argued that the petitioner U.K. Sinha had filed first information report against Anil Kumar Singh the proprietor of the said M/s Sunrise Hydraulic Industries under S.K. Puri. P.S. case no. 834 of 1985 dated 24.8.1985. 5. The learned counsel for the petitioner argued that the petitioner U.K. Sinha had filed first information report against Anil Kumar Singh the proprietor of the said M/s Sunrise Hydraulic Industries under S.K. Puri. P.S. case no. 834 of 1985 dated 24.8.1985. The learned counsel for the Vigilance replied that the first information report was lodged as a defence measure to save the skin of the petitioners from the liabilities under the instant case. It was argued by the vigilance counsel that during investigation of the case it has been indicated on the basis of the material in the charge sheet that the said firm to whom orders were placed without inviting any tender or quotation and to whom payments were made without receiving the machinery was a nonexistent firm and there is allegation that the two petitioners alongwith others had acted in collusion and conspiracy with others in placing orders for the machinery and also making payments without receipt of any machinery in order to cause loss to the Bihar State Chemical and Pharmaceutical Development Corporation, Bihar. Further that the petitioner had filed the first information report in an attempt to cover up the scam and to help the real culprit and to save him from punishment. Thus under the circumstances the filing of the first information report does not help the petitioner at this stage. The petitioners counsel argued that in this case the petitioner was departmen-tally proceeded but he has been exonerated from the departmental proceeding. The learned counsel for the vigilance replied that the departmental proceeding are entirely a different proceeding and rules of evidence is not applicable to it and the same is not a trial and the petitioners being exonerated in the departmental proceeding is not a ground to absolve him from putting him in the trial in this case. 6. As to the petitioner Nageshwar Prasad Sinha the learned counsel for the petitioner submitted that there is no proper sanction for the prosecution hence he argued that prosecution cannot be proceeded against him. The learned counsel for the vigilance pointed out from the lower court records at page 23-24 the sanction for the prosecution of the two petitioners for offences under section 159 of the I.P.C. and section 5(2) read with 5(1 )(d) and section 13(ii) and 13(i)(d) of the Prevention of Corruption Act. The learned counsel for the vigilance pointed out from the lower court records at page 23-24 the sanction for the prosecution of the two petitioners for offences under section 159 of the I.P.C. and section 5(2) read with 5(1 )(d) and section 13(ii) and 13(i)(d) of the Prevention of Corruption Act. The sanction has been given by the Government of Bihar under order no. SP-3/97/847/J, Patna dated 5.3.1997 of the Law Department, Government of Bihar. The sanction order mentions that the two petitioners were public servant who could not be removed without prior approval of the Government of Bihar. Hence sanction was accorded by the Government. Thus considering the above sanction order as contained in the lower court records there is a sanction duly granted by the Government of Bihar for prosecution of the two petitioners who were public servant who could not be removed without prior approval of the Government. 7. During the hearing learned counsel for the petitioner argued that the petitioner at the relevant time was an officer working under BITCO and hence sanction for prosecution by Chairman BITCO was a must. He also argued that the Deputy Superintendent of Police who was the I.O. of the case has also entered into correspondence in this context with the Secretary of the Industry Department, Government of Bihar for obtaining such sanction as mentioned in para 21 to 26 of the supplementary affidavit. The learned counsel for the vigilance replied that may be there was some correspondence between the I.O. and some officers of the Government of Bihar regarding some discussions on the point of sanction for prosecution but the final sanction order has already been granted by the Government of Bihar for the prosecution of the petitioners hence the question of sanction cannot be challenged at this stage. It was further argued that when sanction has already been granted by a competent authority i.e. Government of Bihar any question about the validity or the competency of the sanctioning authority can only be a question to be raised in defence which can be raised during the trial. It was further argued that when sanction has already been granted by a competent authority i.e. Government of Bihar any question about the validity or the competency of the sanctioning authority can only be a question to be raised in defence which can be raised during the trial. The learned counsel for the vigilance referred to the case of P.K. Pradhan V/s. The State of Sikkim represented by C.B.I, reported in (2001)6 SC 704 wherein it has been held by the Apex court that no sanction is required where there is no such connection between the Act done and in performance of the official duty and the official status as only various act action and particular for the acts done. It was argued that the petitioners entered into a collusion and conspiracy for placing order with a non-existent firm and making payments without receiving any machinery under the orders and that these acts of collusion and conspiracy as never a part of or had any bearing with the performance of the official duty of the two petitioners and that the petitioners utilised their official position only as an action and particular for the performance and fulfilment of their collusion and conspiracy, hence what of a proper sanction no sanction at all is required in this case. In view of the allegations on the petitioners and the principle of law as laid down in the above cited case the submission of the learned counsel for the vigilance appears to be substantial and acceptable. 8. In the above cited case it has also been held "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 the trial and after conviction as well. But there must be certain cases where it may not be possible to decide the question effectively without giving an opportunity to the defence to establish what he did so in discharge of official duty in order to come to the conclusion whether claim of the accused within the act he did was in course of 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 eventuality the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. In the instant case the petitioners counsel argued that what they did was done in performance of official duty. Whereas the O.P. has pleaded that whatever the petitioners did was done in furtherance off in collusion and conspiracy with the intention of causing loss to the O.P. which was never a part of performance of official duty. Hence any kind of sanction is not required for the prosecution. Thus it is a controversial matter whether the act done by the petitioners was an act done in furtherance of performance of official duty and this can be decided only in course of trial by giving opportunity to the petitioners to prove it by way of their defence. Hence in such view of the matter in view of the principle of law as laid down by the Apex Court the question of sanction should be left open to be decided in the main judgment which may be delivered on conclusion of the trial. The learned counsel for the petitioners cited one decision reported in the case of Abdul Wahab Ansari V/s. The State of Bihar and others reported in A.I.R. 2000 SC 3187. The facts under the above cited case is that the appellant was a public servant and on 26.9.1993 the Sub-divisional Magistrate asked for an explanation from him as to why the encroachment in question was not being removed notwithstanding the direction of the High Court. The said Subdivisional Magistrate by his order dated 25th of June 1993 appointed the appellant as Magistrate and one Binod Pal Singh as Senior Incharge Magistrate of the police force who were required to remove the encroachment in question. The said appellant visited the encroachment site and requested the encroachers for removal of encroachment and on 16.7.1993 was able to remove the encroachment partially and reported the said fact to his senior officers on 17.7.1993 when the appellant alongwith the armed forces reached the encroachment site, several miscreants armed with weapon, started hurling stones and as the situation became out of control, after giving due warning the appellant was compelled to give order for opening fire and disperse the mob. On account of such firing one of the persons died and two others were injured and the appellant sent a report to his senior officer about the incident. The son of the deceased filed a complaint before the Chief Judicial Magistrate alleging commission of offence by the appellant under sections 302, 307, 380, 427, 504, 147, 148 and 149 of the Indian Penal Code and as well as section 27 of the Arms Act. The Chief Judicial Magistrate by his order dated 24.11.1995 come to the conclusion that there was sufficient evidence available to establish that prima facie case under sections 302, 307, 147, 148, 149 and 380 was made out against the accused and therefore, he directed issuance of non bailable warrant against appellant and other accused persons. The Chief Judicial Magistrate was also of the opinion that the provisions of section 197 of the Code of Criminal Procedure had no application to the facts of the case. The appellant then moved the High Court under section 482 of the Code of Criminal Procedure praying inter alia that no cognizance can be taken without sanction of appropriate Government as required under sub-section 2 of section 197 of the Code of Criminal Procedure when the appellant was discharging his official duty pursuant to the order of the competent authority. The High Court however, without going into the merits of the matter and being of the opinion that all the question may be raised at the time of framing of the charge disposed of the application filed by the applicant, hence the application filed before the Apex Court. In view of these facts the Apex Court held the view that whatever the appellant had done was done in performance of his official duty hence sanction of Government was necessary and the prosecution of the appellant was set aside due to being without sanction. 9. Referring the above decision the learned counsel for the petitioners argued that in the instant case whatever the petitioners had done in performance of official duty. It has already been discussed above that the acts performed by the petitioners constituting the offence as alleged was not undisputed question of performance of official duty but it was done in collusion and conspiracy with intent to cause loss to the Government which had no bearing with the performance of official duty. It has already been discussed above that the acts performed by the petitioners constituting the offence as alleged was not undisputed question of performance of official duty but it was done in collusion and conspiracy with intent to cause loss to the Government which had no bearing with the performance of official duty. Moreover the question of performing official duty is a disputed question which can be raised by the petitioners and decided during the trial. Therefore, the question can be decided only during the trial. Moreover a sanction granted by the Government of Bihar is already on the record of the case at present. 10. Under the circumstances, I do not find any merit in the revision applications which are accordingly dismissed.