JUDGMENT P.K. Musahary, J. 1. This application filed under Section 482 of the Cr.P.C. is directed against the order dated 27.8.2010 passed by the learned Special Judge, Assam, Guwahati, in Special Case No. 13 of 2006, whereby the Special PP's application for acceptance of 2nd prosecution sanction order of the Govt. in modified form was allowed and also the order dated 16.09.2011 whereby the petitioner's application for recalling the former order aforesaid was rejected. The genesis of passing the aforesaid impugned orders are as follows: The petitioner, while serving as Sub-Registrar at Hojai, was implicated in a criminal case, which was registered on the basis of an FIR lodged by one Shri Lalbihari Pashi, as Hojai P.S. Case No. 242/2002 u/s. 7 of the Prevention of Corruption Act, 1998 (P.C. Act in short). The prosecution sanction order was granted and conveyed by the Deputy Secretary to the Govt. of Assam, Revenue (Registration) Department vide No. REGN.89/2002/55 dated 17.05.2005. On completion of investigation, charge-sheet was submitted by the Officer-in-Charge on 27.042006, on the basis of which the learned Special Judge, Assam, Guwahati, (trial Court in short), registered the Special Case No. 13/2006. The charge was also framed against the present petitioner under Section 7 of the P.C. Act. As many as 7 witnesses have been examined and cross-examined and the evidence of witnesses by the prosecution has been closed on 22.02.2010. One CW was also examined to prove the prosecution sanction which was accorded by the then Deputy Secretary to the Govt. of Assam in Revenue (Registration) Department. The following facts are relevant for disposal of this petition:- (i) During pendency of the said special case, the Principal Secretary, Revenue and Disaster Management Department, issued notification dated 15.05.2010 according the fresh prosecution sanction against the petitioner u/s. 197(1)(b) of the Cr.P.C. and in exercise of power conferred u/s. 19 of the P.C. Act. The aforesaid new prosecution sanction order dated 15.05.2010 was communicated by the Under Secretary to the Govt. of Assam in the Revenue and Disaster Management Department along with the letter dated 15.05.2010 in which it is categorically stated that the modified prosecution order aforesaid was issued in supersession of earlier prosecution sanction order dated 17.05.2005. (ii) The learned Special Public Prosecutor filed a petition being 153/2010 on 18.05.2010 before the learned trial Court with a prayer for accepting the said modified prosecution sanction order dated 15.05.2010. (ii) The learned Special Public Prosecutor filed a petition being 153/2010 on 18.05.2010 before the learned trial Court with a prayer for accepting the said modified prosecution sanction order dated 15.05.2010. The learned trial Court upon hearing the parties allowed the aforesaid prayer of the learned Spl. P.P. vide order dated 27.08.2010 and directed to keep the same on record for judicial notice. (iii) The prosecution again filed another application on 01.08.2011 before the learned trial Court praying for issuance of summons to the prosecution witness, Shri V.K. Pipersenia, Principal Revenue Secretary to the Govt. of Assam, who accorded the new prosecution sanction order dated 15.05.2010. The learned trial Court allowed the said prayer vide order dated 01.08.2011 and issued summons to the aforesaid prosecution witness. (iv) The aforesaid witness Shri V.K. Pipersenia appeared before the learned trial Court on 16.09.2011 for evidence. (v) The petitioner filed a petition No. 374 of 2011 on the said order (16.9.2011) for recalling the order dated 01.08.2011. The learned trial Court, upon hearing the parties, rejected the said petition No. 374/2011 filed by the petitioner and on the same day recorded the evidence of aforesaid witness, V.K. Pipersenia as PW8. (vi) The petitioner then filed another petition being 376 of 2011 for expunging the evidence of PW 8 recorded on 16.09.2011. The said application was also rejected by the learned trial Court vide order dated 16.09.2011. 2. The petitioner has stated that he is highly aggrieved by and dissatisfied with the impugned orders:- (a) dated 27.08.2010 by which the learned trial court accepted the modified sanction order and directed to keep it on record for judicial notice by allowing the petition filed by the learned Spl. PP. (b) dated 01.08.2011 by which the learned trial Court issued summons to Shri V.K. Pipersenia allowing the petition filed by the Spl. Public Prosecutor. (c) dated 16.09.2011 passed by the learned trial Court rejecting the petition No. 374/2011 filed by the petitioner and allowing the prosecution to examine Shri Pipersenia as PW 8 and also (d) dated 16.09.2011 rejecting the 2nd petition of the present petitioner. 3. The main challenge in this petition is directed against the 2nd/modified prosecution sanction dated 15.05.2010 which has been accepted by the learned trial court vide order dated 27.08.2010. The learned trial Court accepted the said sanction order of the Govt. 3. The main challenge in this petition is directed against the 2nd/modified prosecution sanction dated 15.05.2010 which has been accepted by the learned trial court vide order dated 27.08.2010. The learned trial Court accepted the said sanction order of the Govt. issued under the signature of Shri V.K. Pipersenia, Principal Secretary to the Govt. of Assam, Revenue and Disaster Management Department, in a modified form relying upon the decision of the Apex Court in Lalu Prasad Yadav Vs. State of Bihar through CBI (AHD), Patna; 2007 1 SCC 49 , wherein it has been held that: sanction in respect of cases covered under the P.C. Act is of automatic nature and factual aspects of the case are of little and of no consequence. Conversely, in case relatable to Section 197 Cr.P.C. the sub-stratum and basic features of the case have to be considered to find out whether the alleged act has any nexus with discharge of duties. 4. The subsequent orders dated 1.8.2011 and 16.09.2011 are consequential in nature inasmuch as by order dated 01.08.2011 the learned trial Court rejected the petitioner's prayer for expunging the evidence of witness, Shri V.K. Pipersenia. The fate of the subsequent orders aforesaid is dependent on the sustainability of the modified prosecution order dated 15.05.2010. The sole legal issue involved in this case is whether the modified or 2nd prosecution order issued by the Principal Secretary to the Govt. of Assam, Revenue and Disaster Management Department, in supersession of earlier prosecution sanction order dated 17.05.2005 conveyed by the Deputy Secretary to the Govt. of Assam, Revenue (Registration) Department, is sustainable under the law at the stage when the recording of evidence of prosecution witnesses has been closed and a court witness (CW 1) has also been examined. 5. Before examining the aforesaid issue, it is noteworthy that the present petitioner, as an accused person, did not raise any objection to the first prosecution sanction accorded by the Govt. on 17.05.2005 under the signature of the Deputy Secretary to the department concerned and he, after the charge was framed, stood the trial without raising any question until the said modified prosecution order was accorded and accepted in modified form by the learned trial Court vide order dated 27.08.2010 on application made by the learned Spl. PP. 6. on 17.05.2005 under the signature of the Deputy Secretary to the department concerned and he, after the charge was framed, stood the trial without raising any question until the said modified prosecution order was accorded and accepted in modified form by the learned trial Court vide order dated 27.08.2010 on application made by the learned Spl. PP. 6. It is also noteworthy that as per settled position of law the question of sanction can be raised and considered at any stage of the criminal proceeding. As stated earlier, it is also an admitted position that the accused-petitioner did not question the prosecution sanction as was initially accorded by the Govt. vide order dated 17.05.2005. The first prosecution sanction order dated 17.05.2005 conveyed under the Deputy Secretary to the Govt. of Assam, Revenue (Registration) Department reads as under:-- Government of Assam Assam (CIVIL) SECRETARIAT REVENUE (REGISTRATION) DEPARTMENT DISPUR: GUWAHATI-6. No. REGN, 89/2002/05 dated Dispur, the 17th May, 2005. From:- Shri P.C. Bhagawati, ACS. Deputy Secretary to the Govt. of Assam. To:- The Deputy Inspector General of Police, (CWR), Assam, Guwahati. Sub:- Prosecution sanction in Hojai P.S. C./No. 242/02 under Section 161 IPC R/W Sec 7 of the Prevention of Corruption Act, 1983. Ref:- Your letter No. DR/V/IV/F. 36/(B0 2003/6071, dt 16.3.03. Sir, In inviting a reference to your letter cited above, I am directed to send herewith the prosecution in Hojai P.S. C/No. 242/02 under Section 161 IPC read with Section 7 of the Prevention of Corruption Act, 1988 as sought for. Yours faithfully, Sd/- Deputy Secy. To the Govt. of Assam, Revenue (Registration) Department. 7. The Govt. of Assam issued notification dated 15.05.2010 under the signature of Principal Secretary to the Govt. of Assam, Revenue and Disaster Management Department according prosecution sanction u/s. 197(1)(b) Cr.P.C. and in exercise of power conferred under Section 19(1) of the P.C. Act, This prosecution sanction order has been challenged and as such the same is reproduced hereunder:- GOVERNMENT OF ASSAM REVENUE & DISASTER MANAGEMENT DEPARTMENT, ASSAM SECRETARIAT (CIVIL) DISPUR ORDERS BY THE GOVERNOR NOTIFICATION Dated Dispur, the 15th May, 2010. No. REGN. 89/2002/pt./3: Whereas, it is alleged that Sri Apurba Kumar Nath while functioning as Sub-registrar, Hojai (now posted as Sub-Registrar, Rangia) was arrested on 18.11.2002 by the Hojai Police and forwarded to Judicial Custody on 19.11.2002 on bribery case after having sufficient evidences. No. REGN. 89/2002/pt./3: Whereas, it is alleged that Sri Apurba Kumar Nath while functioning as Sub-registrar, Hojai (now posted as Sub-Registrar, Rangia) was arrested on 18.11.2002 by the Hojai Police and forwarded to Judicial Custody on 19.11.2002 on bribery case after having sufficient evidences. That on 18.11.02 complainant Shri Pulak Patgiri, Executive Magistrate, Hojai lodged an ejahar to the Hojai Police to the effect that Shri Apurba Kumar Nath, Sub-Registrar, Hojai demanded Rs. 850.00 from one Shri Lalbihari Pashi of Uttar Vidyanagar, Hojai with a view to transfer a plot of land to his wife's name. On the basis of the information Shri Ghana Kanta Hazarika, APS, Sub- Divisional Police Officer, Hojai alongwith Shri Pulak Patgiri, Executive Magistrate, Hojai and with staff conducted search in the Office Chamber of Apurba Kumar Nath, Sub-Registrar, Hojai on 18.11.2002 at 11.3-AM. During the search an envelope was found in the pocket of Apurba Kumar Nath's shirt containing cash amount of Rs. 850.00 of fifty rupees denomination of Indian currency notes totaling 17 numbers, of which four numbers of notes were previously signed by Sub-Divisional Magistrate, Hojai. Accordingly, the said currency notes were seized from the possession of Apurba Kumar Nath, Sub-Registrar, Hojai by Sri Ghana Kanta Hazarika, APS, Sub-Divisional Officer, Hojai, and thereafter the accused Shri Apurba Kumar Nath, Sub-Registrar was arrested on the spot on 18.11.2002 and forwarded to Sub-Divisional Judicial Magistrate's Court, Hojai, on 19.11.2002. That during the investigation, the Police Officer examined the seizure witnesses (1) Shri Lalbihari Pashi, (2) Shri Adhan Das, (3) Shri Ranjan Sarma, (4) Shri Pulak Patgiri, the Executive Magistrate. That under the above facts and circumstances, prima-facie case has been found well established against the arrested accused Apurba Kumar Nath, Sub-Registrar under Section 161 of the Indian Penal Code read with Section 7 of the Prevention of Corruption Act, 1988. And whereas, the said acts constitute an offence punishable under Section 161 of the Indian Penal Code, 1860 (Act 45 of 1960) read with Section 7 of the Prevention of Corruption Act, 1988. And whereas, the Govt. of Assam after fully and carefully examining the materials/documents placed before it in regard to the said allegations and circumstances of the case is satisfied that the said Shri Apurba Kumar Nath, Sub-Registrar should be prosecuted in a Court of law for the said offence/offences. And whereas, the Govt. of Assam after fully and carefully examining the materials/documents placed before it in regard to the said allegations and circumstances of the case is satisfied that the said Shri Apurba Kumar Nath, Sub-Registrar should be prosecuted in a Court of law for the said offence/offences. Now, therefore, the Governor of Assam is hereby pleased to accord prosecution sanction under Section 197(1)(b) of the Criminal Procedure Code, 1973 and in exercise of power under Section 19(1) of the Prevention of Corruption Act, 1988 against the said Apurba Kumar Nath, the then Sub-Registrar, Hojai, for the said offence and any other offences punishable under other provisions of law in respect of the acts aforesaid and for taking of cognizance of the said offences by a Court of competent jurisdiction. By orders and in the name of the Governor, Principal Secretary to the Govt. of Assam, Revenue and Disaster Management Deptt. 8. By a letter dated 15.05.2010 issued under the signature of Under Secretary to the Govt. of Assam, Revenue and Disaster Management Department, clarified that the aforesaid modified sanction order vide above notification dated 15.05.2010 under the signature of Principal Secretary has been issued in supersession of earlier prosecution sanction order dated 17.05.2005. 9. The admitted position is that the 1st/initial prosecution sanction order was replaced by the 2nd/modified order. The plain dictionary meaning of supersession is to sit above/refrain from. The legal meaning as given in State of Orissa Vs. Titaghur Paper Mills Co. Ltd., reported in 1985 supp. SC 280, is that the word 'supersession' is used in the same sense as the word "repeal" or rather the words "repeal and replacement". In the notifications the expression "in supersession of all previous notifications" is used to mean that all that was done was to repeal and replace the previous notifications by new notifications. By repealing and replacing the previous notifications by other notifications, the result was not to wipe out any liability accrued under the previous notifications. In the context of the present case the word "in supersession" used in the notification dated 15.05.2010 would mean to repeal and replace the earlier prosecution sanction order dated 17.05.2005 by the new notification dated 15.05.2010. 10. There cannot be any dispute that the prosecution sanction should be granted by the authority competent to do so at the time of taking cognizance of the offence. 10. There cannot be any dispute that the prosecution sanction should be granted by the authority competent to do so at the time of taking cognizance of the offence. It is not clearly stated in the modified sanction order as to whether the Deputy secretary of the department concerned was or was not a competent authority at the relevant point of time. But the 1st sanction order has been replaced by the notification dated 15.05.2010 in supersession of the earlier order. Although nothing has been stated that the earlier notification has been superceded, it can be understood that the earlier sanction order was not issued by a competent authority in as much as the accused-petitioner is a gazetted officer who can be appointed by an officer of the rank of Principal Secretary with the approval of the Governor. An officer of the rank of Deputy Secretary can not be an appointing authority of the Sub-Registrar which is a gazetted post held by the petitioner. There is no difficulty in appreciating the fact that the earlier prosecution sanction order was issued by an officer/authority who was not competent to do so. From such order it can easily be understood that there was no application of mind by the authorities concerned in issuing the prosecution sanction and the trial proceeded with an order on the basis of which trial could not have been commenced. The authorities concerned in the Govt. have realized at the late stage of the proceeding that there is an inherent defect in the initial prosecution sanction inasmuch as it was issued by an incompetent officer/authority without any application of mind and in such a case, if the trial ended with conviction and sentence, it would be unsustainable under the law for want of a valid prosecution sanction. The prosecution has also realized that the petitioner, if convicted by the learned trial Court, would challenge such order in the higher forum for setting aside the conviction and sentence and the appellate court would allow such appeal on ground of absence of proper prosecution sanction. 11. With the supersession of the earlier prosecution sanction order dated 15.05.2005 by a fresh sanction order accorded vide communication dated 15.05.2010, the proceeding in the criminal case became invalid. 11. With the supersession of the earlier prosecution sanction order dated 15.05.2005 by a fresh sanction order accorded vide communication dated 15.05.2010, the proceeding in the criminal case became invalid. Legally speaking with the supersession of the 1st prosecution sanction there existed no prosecution sanction as on 15.05.2010 and the entire proceeding in the aforesaid case must be declared illegal and quashed. 12. I have perused the evidence of prosecution witnesses recorded by the learned trial Court on which I refrain from making any observation. The evidence of Shri V.K. Pipersenia, Principal Secretary to the Govt. of Assam, Revenue and Disaster Management Department who was examined as PW-8, is very significant. He has stated that after submission of charge-sheet he had gone through all the papers submitted by the S.P., Nagaon and the whole matter was processed in the Revenue Department. He further stated that one Mr. P.C. Bhagabati, the then Deputy Secretary processed the file and submitted before the Additional Chief Secretary to the Govt. of Assam on 23.2.2005 and on 23.3.05 the Addl. Chief Secretary placed the file before the Revenue Minister including the draft prosecution sanction order for his approval. On 25.3.05 the Revenue Minister approved the draft prosecution sanction order and thereafter the Deputy Secretary Sri Bhagabati signed the draft sanction order on 12.5.05. The prosecution sanction order was issued by the said Deputy Secretary on 17.5.05. PW-8 also stated that on 19.3.2010, Smti Salma Ahmed Hussain, Deputy Secretary to the Govt. of Assam, Revenue Department placed a file before him soon after she received a letter dated 15.3.2010 from the Political (Vigilance) Cell of Political Department forwarding a letter dated 5.3.2010 received from S.P., Nagaon, addressed to the Secretary to the Govt. of Assam, Home Department requesting him to issue a fresh sanction order as the earlier order was signed by the Deputy Secretary which was deemed not to have been signed by the competent authority. Thereafter, he (PW-8) had gone through the whole file and signed the fresh prosecution sanction order on 15.5.2010. The said prosecution sanction signed by him was forwarded by the Under Secretary Mr. M.R. Laskar. 13. Apart from the evidence of PW-8, the learned trial Court also examined the said Deputy Secretary Smti Salma Ahmed Hussain as CW-1. She stated that she was working as Deputy Secretary to the Govt. of Assam Revenue Registration Department during the year 2005. The said prosecution sanction signed by him was forwarded by the Under Secretary Mr. M.R. Laskar. 13. Apart from the evidence of PW-8, the learned trial Court also examined the said Deputy Secretary Smti Salma Ahmed Hussain as CW-1. She stated that she was working as Deputy Secretary to the Govt. of Assam Revenue Registration Department during the year 2005. On the date of deposition (10.5.2010) during the year one Sri Paresh Ch. Bhagabati was working as Deputy Secretary, Revenue Registration Department and during that period he accorded the sanction order for launching prosecution against the petitioner. In cross-examination, she stated that during 2005 she was not working as Deputy Secretary to the Govt, of Assam, Revenue Registration Department, and as such she was not connected with the issuance of sanction order and she has no personal knowledge about the facts of the case and contents of Ext.A i.e. the first prosecution sanction order signed by the Deputy Secretary, Revenue Registration Department. 14. At the time of hearing Mr. P.K. Roychoudhury, learned counsel for the petitioner placed a copy of the "Assam Registration Service Rules, 2010" as published in the Assam Gazette dated 19.11.2010. I have gone through the said rules and found that the post of Sub-Registrar which was held by the petitioner is included in the Grade-II of the Class-II cadre as provided under Rule 3 of the said Service Rules. The Governor of Assam is the appointing authority as defined under Rule 2 of the said Rules. The Deputy Secretary is not the appointing authority of the post of Grade-II Sub-Registrar and as such he is not the competent authority to issue the sanction order for prosecuting the petitioner who was holding the post of Sub-Registrar. This position is found admitted in the evidence of PW-8 also. It has also been found from the evidence of PW-8 that the first prosecution order was not brought to his notice and it was issued by the Deputy Secretary without his knowledge and approval. The evidence of PW-8 has made the position clear that at the subsequent stage only, on 19.3.2010, the file was placed before him and accordingly, after going through the old file signed the fresh prosecution sanction order on 15.05.2010. 15. The evidence of PW-8 has made the position clear that at the subsequent stage only, on 19.3.2010, the file was placed before him and accordingly, after going through the old file signed the fresh prosecution sanction order on 15.05.2010. 15. The fresh prosecution sanction order dated 15.5.2010 which is under challenge has no mention as to whether it was made effective from a retrospective date or from the date of issue of the sanction order. But it has been clarified by the communication dated 15.5.2010 issued by the under Secretary, Revenue and Disaster Management Department that the fresh prosecution sanction order was issued in supersession of earlier sanction dated 17.5.2005. There is nothing on record that the modified prosecution sanction order has been given retrospective or prospective effect. In my considered view the prosecution sanction order cannot be given retrospective effect in view of the language used under Section 19 of the P.C. Act which speaks about the necessity of previous sanction for prosecution. Section 19 of the P.C. Act reads: 19. Previous sanction necessary for prosecution:- (1) No court shall take cognisance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous, sanction. (a).... (b).... (c) In the case of any other person, of the authority competent to remove him from his office. 16. It is an indisputable position that there was no sanction order authorising the learned trial court to take cognizance of the case. The absence of sanction order has vitiated the entire proceeding inasmuch as the modified sanction order was not given effect from retrospective date. Even if the said modified sanction order was given effect from retrospective date it would not be sustainable under the law if such sanction order causes or has caused prejudice to the accused or caused failure of justice. A similar position was found and discussed in State of Goa Vs. Babu Thomas, reported in (2005) 8 SCC 130 . That was a case where the first sanction order was issued by an incompetent authority and then a second sanction order was issued by yet another incompetent authority with retrospective effect after the cognizance was taken by the Court. A similar position was found and discussed in State of Goa Vs. Babu Thomas, reported in (2005) 8 SCC 130 . That was a case where the first sanction order was issued by an incompetent authority and then a second sanction order was issued by yet another incompetent authority with retrospective effect after the cognizance was taken by the Court. In the said case it was held that when the special Judge took cognizance of offence under Section 6 of the P.C. Act, there was no sanction order under the law authorising him to take cognizance and that was a fundamental error which invalidated the cognizance as being without jurisdiction. In the present case the prosecution sanction was not given retrospective effect but since the first prosecution sanction was not issued by a competent authority, there was no prosecution sanction at the time of taking cognizance of the case by the learned trial Court. There is no doubt that in the present case the second prosecution sanction order was accorded by a competent authority but that was received by the trial Court at the stage of closure of evidence of prosecution witnesses. 17. Now the question arises as to whether prejudice has been caused to the accused petitioner. It is noticed in Thomas' case (supra) that the second prosecution sanction order was issued before recording of the evidence of prosecution witnesses and yet it was held by the Apex Court that it was not a case where there has been mere irregularities, error or omission in the order of sanction but also a fundamental error which has invalidated the cognizance as being without jurisdiction. Such serious error, as held in the said case, goes to the root of the prosecution case inasmuch as Sub-section (1) of Section 19 clearly prohibits that the court shall not take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 against a public servant except with the previous sanction as stated in clauses (a), (b), and (c). On perusal of the record, I have found that the learned Special Court vide order dated 27.11.2006, directed to register a case and issued summons to the accused for appearance on 5.1.2007. The first witness, PW 1, was examined on 17.9.2008 and PW 7 was examined on 22.2.2010, whereas the fresh sanction order was issued by the competent authority only on 15.5.2010. The first witness, PW 1, was examined on 17.9.2008 and PW 7 was examined on 22.2.2010, whereas the fresh sanction order was issued by the competent authority only on 15.5.2010. Present is a case where the recording of evidence of prosecution witnesses including a court witness has been closed. At this stage of trial the judicial conscience would not allow to hold that no prejudice and/or failure of justice has been caused to the accused petitioner. This position would not be changed even if the second/modified sanction order in question is accepted as a valid/legal sanction and allow the learned trial Court to proceed with the proceeding. 18. Having considered the entire facts and circumstances of the case, I am of the considered view that the learned trial court committed grave error of law in accepting the second modified prosecution sanction at the late stage of the proceeding when the recording of evidence of prosecution witness has been completed and rejected the petitioner's application/prayer for expunging the evidence of PW-8. I am totally convinced that the learned trial Court by proceeding further with the trial of the case on the strength of modified sanction order, has caused not only prejudice to the petitioner but also failure of justice, justifying quashment of the entire proceeding as totally illegal and untenable under the law. 19. Consequently, the orders dated 27.8.2010 and 16.9.2011 passed by the learned trial Court which are under challenge in this petition, are, hereby set aside and quashed. The entire criminal proceeding in question also stands quashed. 20. This petition stands allowed and disposed of. Return the LCRs. Petition allowed