ORDER A case in Crime No. 1 of 2003 is registered in Belgaum Lokayukta Station for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 as against Mallikarjun Mallur-accused-petitioner and Chandrakant Sateri Gurav-accused 2. The complainant is one Vajra Kumar of H. Ugar, Athani Taluk. On 20-1-2003, he lodged a complaint as against two accused persons. The complainant has alleged that him self and few persons belonging to his community intended to register an association in the name of Sri Bhagawan Mahaveer Alpasankhyatara Vividodeshagala Sahakara Sangha. They wanted to get it registered. On 5-10-2002 along with the necessary documents, they went to the office of the Assistant Registrar of Co-operative Societies, Chikkodi and through the said office, requisition was made for registration in the office of Deputy Registrar of Co-operative Societies, Belgaum. The papers were forwarded by the Assistant Registrar with his recommendation for registration. That on 10-12-2002,' when the complainant met the petitioner herein, the petitioner said that mere making of such an application is of no use that they will have to collect the shares, inform the Deputy Registrar the share details and there afterwards the registration could be done provided the complainant pays a sum of Rs. 20,000/- to the petitioner. The complainant agreed for the same and on the very day, he paid a sum of Rs. 8,000/- and agreed to pay balance amount of Rs. 12,000/- at a later point of time and informed the petitioner that it would be paid after the registration of the association. Permission was accorded for collecting the share amount. The complainant collected the share amount from 211 persons. Another application was forwarded from the Assistant Registrar, Chikkodi on 10-1-2002 to the office of the petitioner herein. In the said regard, the complainant met the petitioner herein on 18-1-2003. The petitioner demanded the balance amount ofRs. 12,000/- which was promised to be paid. The complainant said that a sum ofRs. 8,000/- is already paid and that he would be paying only Rs. 10,000/-. The petitioner agreed for the same. The petitioner stated that the amount will have to be paid on 20-1-2003 and only then the job of the complainant will be attended to The complainant agreed for the same. As the complainant was not willing to pay the amount of Rs. 10,000/-. The petitioner agreed for the same. The petitioner stated that the amount will have to be paid on 20-1-2003 and only then the job of the complainant will be attended to The complainant agreed for the same. As the complainant was not willing to pay the amount of Rs. 10,000/- as demanded and wanted to take action against the petitioner, he went to the Lokayukta Police and reported. Trap was organised. Pre-trap formalities were completed. On 20-1-2003 the trap was laid. The complainant as per the instructions of the reading officers was asked to go over to the office of the petitioner herein and ~ay the money of Rs. 10,000/- on demand. The petitioner called Chandrakant Sateri Gurav and informed that the complainant will give Rs. 10,000/- and that he should receive and the certificate should be issued. The second accused-Chandrakant Sateri Gurav, Senior Inspector of Co-operative Societies collected Rs. 10,000/- with his right hand, counted the money with both his hands. The events were keenly observed by the shadow witnesses. The complainant gave a prearranged signal to the riding party. The riding party entered the chamber of the petitioner and co-accused Chandrakant Sateri Gurav. The tainted money was found in the possession of Chandrakant Sateri Gurav. Sodium Carbonate solution wash was given to the hands of Chandrakant Sateri Gurav. The solution turned into pink. Mahazar was drawn. Explanation was called from both the accused, they gave their explanation. The petitioner herein denied his involvement in the commission of the offence. The second accused-Chandrakant Sater Gurav also denied of he having anything to do with the transaction in question. The Investigating Agency after completion of the investigation filed a charge-sheet. The case was set down for arguments before charge and amongst other grounds, the petitioner contended that he is entitled for a discharge on the ground that there was no sanction accorded and the sanction sought by the prosecuting agency was refused. Under the Government Order dated 14-5-2004 bearing No. SalE/55 NSa/Se/2003, the Trial Court held that as the petitioner was not a public servant as on the date of taking of the cognizance, as such no sanction was required and the prosecuting agency could prosecute the petitioner without even a sanction order and as such the order refusing to accord sanction is of no consequence. 2. 2. I have heard learned Counsel for the petitioner and Smt. T.M. Gayathri, learned State Public Prosecutor and also Senior Counsel appearing for the respondent-Lokayuktha. 3. Coming to the merits of the case, the points that arise for consideration in the present case are: (a) Whether sanction is required under Section 19 of the Prevention of Corruption Act, 1988 in the present case? (b) Whether cognizance can be taken after the delinquent had ceased to hold the office abused though he continues to be a public servant in any other capacity at the time of taking cognizance, Section 19( 1) being time and offence related? 4. The Trial Court relying upon the judgment in R.S. Nayak v A.R. Antulay1, has held that sanction is a precondition and the same would be mandatory only if the accused continues to be a public servant as on the date of the taking of cognizance by the Court,- It has also relied upon the judgment of the Hon'ble Supreme Court in the case of Parkash Singh Badal and Another v State of Punjab and Others2 and has held that if the accused is a public servant who has ceased to be public servant and/or is public- servant of different category, n~ sanction in terns of Section 19(1) of the Act corresponding to Section 6(1) of the old Act is necessary. It has also relied upon the judgment in the case of Lalu Prasad Yadav v State of Bihar3 and has held that offences contemplated under the Prevention of Corruption Act, by there very nature cannot be treated as offences committed by a public servant while acting or purporting to act in discharge of his official duty. It has further held that the finding in R.S. Nayak's case is not per incuriam, that sanction under Section 197 of the Criminal Procedure Code, 1973 is different from sanction under Section 19 of the Prevention of Corruption Act. 5. Learned Counsel for the petitioner has produced Annexure-D, dated 20-9-2007 where under it is indicated in para 2 that he has to wait for the posting for the period between 1-11-2006 to 13-3-2007. He has produced Annexure-J detailed acquaintance role of permanent/temporary establishment. In third line of column (3), it is found that even during January 2007, he had drawn salary of a Deputy Registrar of Cooperative Societies. He has produced Annexure-J detailed acquaintance role of permanent/temporary establishment. In third line of column (3), it is found that even during January 2007, he had drawn salary of a Deputy Registrar of Cooperative Societies. He has produced Annexure-G which indicates the salary drawn by him between 19-3-1997 to 1-8-2007. The petitioner is deputed as a Secretary to Malaprabha Sugar Factory since 24-4-2007. In the instant case, the prosecuting agency applied for grant of sanction to the sanctioning authority, the Secretary, Government of Karnataka and the sanctioning authority vide its order dated 14-5-2004 for the reasons assigned in detail, refused to accord sanction. The said order reads as under: 6. It is pertinent to note that as of now the validity of this order has not been challenged by anyone concerned much less Lokayuktha. In the instant case, on placement of the charge-sheet, the Trial Court took cognizance for the aforesaid offences punishable under Section 13(1)(d) and Section 7 of the Prevention of Corruption Act, 1988 on 27-1-2007. As regards Point No. 1 raised by me whether sanction would be required in respect of these offences, the said point need not detail 'me for long since as long as Section 19 is in the statute book, sanction would be a requirement. It is only the next point which requires elaborate consideration. 7. The learned Counsel for the petitioner-accused submitted that as the petitioner continues to be a public servant and as sanctioning authority for the post he holds now and the posts he awaited during the period between 1-11-2006 to 13-3-2007 and 26-6-2007 to 15-11-2007 and also the post of Deputy Registrar of Co-operative Societies he held, which is alleged to have been abused and also the subsequent posts to which he is appointed i.e., Secretary, Malaprabha Co-operative Sugar Factory Limited, the pointing authority is same and the Disciplinary Authority is also the same. As such the sanctioning authority is Government and this is a case wherein the petitioner has not been shifted from one category to another. He continues to be in the same category in respect of which the Disciplinary Authority is only one. As such he submits that even as on the date of taking cognizance sanction as provided under Section 19 of Prevention of Corruption Act was mandatory. He too relies upon the judgment rendered by the Hon'ble Supreme Court in Parkash Singh Badal's case. As such he submits that even as on the date of taking cognizance sanction as provided under Section 19 of Prevention of Corruption Act was mandatory. He too relies upon the judgment rendered by the Hon'ble Supreme Court in Parkash Singh Badal's case. In the decision sanction it is held Section 19 is time and offence related. But however contends that petitioner herein 'continues to be a public servant in the same category and as he has not ceased to hold the office where the alleged offence was committed and as such sanction is a must. In the said judgment at page 19 it is observed by the Hon'ble Supreme Court: "Therefore, it unquestionably' follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider". 8. The sanctioning authority in the instant case at all the three stages i.e., when the petitioner was holding the office of the Deputy Registrar of Co-operative Societies, Belgaum, during the period during which he was made to compulsorily wait for posting and also the subsequent posting as Secretary, Malaprabha Co-operative Sugar Factory Limited, are all under the authority of the Secretary to the Government. As such the Secretary to Government alone would be able to know whether there has been a misuse or abuse of office by the petitioner. The question of some other authority ascertaining about the fact of misuse or abuse of office does not arise in the present case at all. "Therefore, upon a true construction of Section 6, it is implicit therein that sanction of that Competent Authority alone would be necessary which is competent to remove the public servant from the office which he is alleged to have been misused or abused for corrupt motive and for which a prosecution is intended to be launched against him". In para 20 of the same judgment it is observed by the Hon'ble Supreme Court: "The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. In para 20 of the same judgment it is observed by the Hon'ble Supreme Court: "The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity". The Hon'ble Supreme Court has distinguished Section 197 of the Cr.P.C. and Section 19 of the Prevention of Corruption Act. Only in cases which attracts Section 197 of the Cr. P.C. colour of duty would get attracted but in cases under Sections 7, 13(1) and (2) of the Prevention of Corruption Act, Section 19 automatically applies. 10. The learned Counsel appearing for Lokayuktha submitted that as on the date of taking cognizance i.e., on 27-1-2007, the petitioner was not holding the office which was alleged to have been abused by him and the offence was committed on 20-1-2003. As on the date of taking cognizance on 27-1-2007 he was on compulsory waiting. As such .in view of the law laid down by the Supreme Court as referred to above i.e., in Parkash Singh Badal's case no sanction was required under Section 19 of the Prevention of Corruption Act. 11. The learned Counsel relied upon paragraph 39 which states: "So far as the question about the non-application of mind in the sanction or absence of sanction is concerned, this has been answered in the first question, i.e., where the public servant has ceased to be a public servant since he has ceased to hold the office where the alleged offence is supposed to have been taken place, the other question really becomes academic". This virtually is the Head Note A of the said judgment. 12. This virtually is the Head Note A of the said judgment. 12. In the background of the observations in the said case, a perusal of Section 19(3) of the Prevention of Corruption Act, which reads: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).- (a) no finding, sentence, or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact being occasioned thereby". 13. It would mean that order of Special Court should not be interfered with except for the reason stated in the provision. In the present case the sanctioning authority has refused to accord sanction as such the same analogy will have to be applied as regards the accused is concerned and the Special Court cannot substitute the satisfaction of the sanctioning authority. 14. Here in the instant case, a peculiar circumstance has arisen. This is not a case wherein this Court is trying to probe into the irregularity or the absence of mind or any error in the order of sanction. Here the prosecuting agency applied for sanction and the sanctioning authority refused to accord sanction on 14-5-2004 and till now the prosecuting agency has not challenged the validity of the said order. The prosecuting agency after refusal of sanction again applied to the sanctioning authority for according sanction and the same again came to be refused. As such the refusal order has reached finality and the same has also not been challenged till now by the prosecuting agency. Absence of sanction and want of sanction are two different issues. But here is a case where the sanctioning authority after application of mind has refused to accord sanction, not once but twice. As such, as I have already held, as long as Section 19 is on the statute book sanction is a must and in the instant case as the sanctioning authority has refused to accord sanction I hold that the order passed by the Trial Court is an apparent error. 15. As such, as I have already held, as long as Section 19 is on the statute book sanction is a must and in the instant case as the sanctioning authority has refused to accord sanction I hold that the order passed by the Trial Court is an apparent error. 15. Further, even in the case of Lalu Prasad Yadav, the Hon'ble Supreme Court making a distinction between Section 19 of the Prevention of Corruption Act and Section 197 of the Cr. P.C. has held that, colour of offence and course of duty get attracted in respect of cases where Section 197 of the Cr. P.C. is applicable. But as regards Section 19, it is automatic in nature and thus factual aspects are of little or of no consequence, thereby giving a clear indication that sanction under Section 19 is a must in respect of offences punishable under Sections 7, 13(1) and 13(2) of the Act. 16. Thus, the findings of the Trial Court that as the petitioner was on compulsory waiting as on the date of taking of cognizance on 27-1-2007 as such he was not at all a public servant is an apparent error and the same is liable to be set aside. Hence, in view of the circumstances narrated above, I hold that the order dated 13-9-2007 passed by the Special Judge, Belgaum, in Special Case No. CC 12 of 2007 is liable to be set aside. As the Court is precluded from taking cognizance without a sanction order and in the instant case since the sanctioning authority has refused to accord sanction, no purpose would be served to continue the proceedings in the Trial Court. As such I hold that the Trial Court has no powers to take cognizance of the alleged offences insofar as the petitioner is concerned and this order of taking cognizance of offence dated 27-1-2007 is set aside and the accused is discharged of the offences levelled against him.