JUDGMENT Sheared of unnecessary details, the facts giving rise to the present pe­tition are that the petitioner, a mem­ber of Indian Police Service, was serv­ing as Director General of Prisons to the Government of Jammu and Kash­mir. Vigilance Organization registered a case, FIR No. 77/1993, against the petitioner and other accused persons alleging that medicines for Jail in­mates for the year 1991-92 were pro­cured from ineligible firms at excessive and exorbitant rates in violation of terms and conditions of NIT, thereby, causing undue pecuniary advantage to the tune of Rs. 2, 92, 922. 52 to accused No. 3 to 9 (Suppliers) and correspond­ing loss to the State exchequer. 2. As the petitioner was removable from service by the Central Govern­ment, the Vigilance Department sought sanction to prosecute the peti­tioner from the Central Government through the State Government. The Government declined to grant sanction and advised that the proposal for pros­ecuting the petitioner be dropped. 3. Final report was filed before the Court of Special Judge, Anti corruption, Jammu on 5th June, 1999, which did not include the petitioner in the array of accused. 4. Trial court in terms of order dated 20.12.2002 arrayed petitioner as an accused and summoned him for trial. Feeling aggrieved of this order peti­tioner filed Revision petition bearing Cr. Revision No. 96/2002, which stands decided by this Court in terms of order dated 10.02.2003 with direction to the trial court to rehear the matter on merits and pass fresh order. Matter seems to have been again decided by trial court in terms of order dated 26.04.2003. The order dated 26.04.2003 was challenged by the petitioner in Criminal revision No. 44/2003 which, too, stands dismissed on 29.08.2003. Since no charge was framed against the petitioner till the decision in criminal revision No. 44/2003 by this Court, so matter could not be consid­ered on the grounds taken in the present petition. 5. The trial Court in terms of order dated 20.11.2006, framed charge against the petitioner, the trial of petitioner is, thus, pending for the al­leged offences in the Court of Addi­tional Sessions Judge, Anti Corruption, Jammu. 6. Petitioner is aggrieved of pendency of the entire proceedings, includ­ing the order whereby and whereunder charge has been framed against him, and challenges the same on numerous grounds taken in the present petition. 7. 6. Petitioner is aggrieved of pendency of the entire proceedings, includ­ing the order whereby and whereunder charge has been framed against him, and challenges the same on numerous grounds taken in the present petition. 7. Respondents filed their objections, wherein they questioned the main­tainability of present petition on the ground that this Court has already de­cided these issues in earlier revision petitions filed by the petitioner. 8. Heard learned counsel for parties and considered the matter. 9. Though the petitioner has raised several issues in the petition, but in my view the following two issues need to be dealt with by this Court: "(i) Whether, in view of the fact that the Government refused to grant sanction for prosecution of the petitioner, his prosecution is ille­gal and an abuse of the process of the court? and (ii) Whether the trial court has the power to launch prosecution against a Government servant after refusal of the Government to grant sanction to prosecute, especially so, when the Govern­ment servant has retired from Government service?" 10. Mr. P.N. Raina, learned senior counsel appearing for the petitioner, submitted that the trial Court ar­raigned the petitioner in the aforesaid case after the Government had refused to grant sanction for prosecution of the petitioner. It was submitted that the trial Court had. no jurisdiction to ar­raign the petitioner and/or to proceed against him. Mr. Raina further submit­ted that such a course adopted-by the learned trial court is wholly against the provisions of law and dehors the settled position of law on this count. 11. There is no denying the fact that, after completion of the investiga­tion in the case, the Vigilance Depart­ment had sought sanction for prosecu­tion of the petitioner and the Govern­ment declined to grant the same and instead advised that the proposal for prosecuting the petitioner be dropped. Thereafter, the petitioner superannu­ated from service in November 1993. The Vigilance Department, adhering to the advice of the Government, as also being satisfied on the basis of the ma­terial available with them, dropped the proceedings against the petitioner and filed Challan against other accused alone. Thereafter, the petitioner superannu­ated from service in November 1993. The Vigilance Department, adhering to the advice of the Government, as also being satisfied on the basis of the ma­terial available with them, dropped the proceedings against the petitioner and filed Challan against other accused alone. In these circumstances, the trial Court could not have arraigned the petitioner in the case and, in fact, the trial court had no power to array him as accused, much less to proceed to charge sheet him, without accord of sanction to prosecute by the competent authority in terms of the provisions of law. 12. On examination of records, it transpires that trial Court at the time of arraying the petitioner as accused in terms of order passed on 20.12.2002 has not considered this important le­gal issue and the prosecution had also failed to bring it to the notice of the Court. The trial Court had also failed to provide opportunity of being heard to the petitioner before arraying him as an accused. The petitioner has also failed to raise this issue while chal­lenging the order dated 20.12.02 and 26.04.2003 in Revision petitions before this court. 13. Be that as it may, the fact of the matter is that this legal issue having not been considered at any stage, re­quires consideration on the strength of the facts projected and supported by law. 14. The contention of respondents that instant petition is not maintain­able for the relief claimed as the is­sues stand settled by this Court in the earlier round of litigation when the petitioner had challenged order of trial court arraying him as accused, is fac­tually incorrect and legally unsustain­able. At no stage the trial Court or this Court had an occasion to decide these issues as the same were not raised by the petitioner or prosecution; there­fore, contention of the respondents has no substance. 15. Reverting back to the issue raised by petitioner, this Court is of the con­sidered view that, in the facts of the case, the Government having refused to grant sanction for prosecution and the Vigilance Organization having ac­cepted the advice and being otherwise satisfied on the basis of the material available with it, dropped the proceed­ings and prosecution against the peti­tioner, there was no occasion for the trial Court to launch prosecution against the petitioner. The course adopted by the trial court is, therefore, illegal and abuse of the process of the Court. 16. The contention of the respon­dents is that the charge sheet was filed after the retirement of petitioner. Ac­cording to the respondents, since on the date when the trial court took cog­nizance of the offences and issued pro­cess against the petitioner, the peti­tioner had ceased to be a public ser­vant, no sanction for prosecuting the petitioner was required. 17. I do not have the slightest hesi­tation in accepting the broad submis­sion of learned counsel for respondents that once the public servant ceases to be so on the date when the Court takes cognizance of the offence, there is no requirement of sanction under the Pre­vention of Corruption Act. However, the position is different in a case where Section 197 of the Code of Criminal Procedure has application. 18. In the present case, I am faced with the situation in which Vigilance Department asked the Government to grant sanction which it refused and Vigilance Department was advised to drop the proceedings against petitioner. In fact the Government reiterated that there is no prima facie case against the petitioner. Sanction is a devise provided by law to safeguard public servants from vexatious and frivolous prosecution. It is to give them freedom and liberty to perform their duty without fear or favour and not succumb to the pressure of unscrupulous elements. It is a weapon at the hands of the sanction­ing authority to protect the innocent public servants from uncalled for pros­ecution but not intended to shield the guilty. Here in the case in hand, while the petitioner was in service, sanction sought for his prosecution, was de­clined by the State Government. 19. I am of the opinion that in case in which sanction sought is refused by the competent authority, he cannot be prosecuted, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is nec­essary after the retirement of Public Servant. Any other view will render the protection illusory. 20. In my aforesaid view, I am forti­fied by the judgment of the Hon'ble Su­preme Court in Chittaranjan Das v. State of Orrisa, 2011 CRI.L.J 4306. 21. This court also, while deciding petitions under Section 561 -- A No. 129/10 and Cr. Rev. Any other view will render the protection illusory. 20. In my aforesaid view, I am forti­fied by the judgment of the Hon'ble Su­preme Court in Chittaranjan Das v. State of Orrisa, 2011 CRI.L.J 4306. 21. This court also, while deciding petitions under Section 561 -- A No. 129/10 and Cr. Rev. 38/10 titled Abdul Rashid Mubarki v. State and ors, de­cided on 29.04.2011, on identical facts, has taken a similar view, relevant por­tion of the judgment is reproduced as under : "...The trial court on 10.1.2008 ex­amined the matter and found that besides the accused named by the Vigilance Organization in the Challan the present petitioner namely Ab. Rashid Mubarki and Mumtaz u Nisa were also accused in the matter. The court found that there were sufficient grounds for proceed­ings against these persons. It was observed by the Court that prima fa­cie it appears that all of them have committed offences under sections 5(2) read with 5 (1) (d) of P. C Act and Section 120-B RFC. The Court di­rected all the accused persons in­cluding the present petitioners to be charged under the said offences. The court while doing so directed array­ing the petitioners as accused and issued summons to them so that they can also be charged for the crime committed by them and be put to trial. The petitioners are aggrieved of this order. They state that the court has impleaded the petitioners as ac­cused in the case and directed fram­ing of charge against them, without providing an opportunity of hearing to them. It is stated that in terms of Section 319 where in the course of trial of an offence it appears from the evidence that any person not be­ing the accused has committed any offences the court may proceed against such persons for the of­fences which he appears to have com­mitted, where the Court proceeds against persons under section 319 the proceedings in respect of such persons have to be commenced a fresh if such person was an accused person at the time of taking cogni­zance. The petitioners state that the charge sheet under section 173 Cr. P.C established the fact that prosecu­tion was fully satisfied that no of­fence has been committed by the pe­titioners which fact is also evident from the evidence recorded and other material on record. The observation made by the court is therefore, con­trary to the record. The petitioners state that the charge sheet under section 173 Cr. P.C established the fact that prosecu­tion was fully satisfied that no of­fence has been committed by the pe­titioners which fact is also evident from the evidence recorded and other material on record. The observation made by the court is therefore, con­trary to the record. The petitioners further state that on consideration of the total material on record no offence is made out under the provisions of Prevention of Corruption Act against the petitioners. In the circumstances they have prayed for setting aside the order impugned so far as it relates to the petitioners. The order impugned would show that the learned trial court has not proceeded in the matter fairly. He has reproduced the facts and has with­out any just reason come to the con­clusion that there was sufficient evi­dence to proceed against the petition­ers and charge them under the of­fences shown in the charge sheet. While doing so the court has made observations regarding the present petitioners only which do not get sub­stantiated by the material placed before it under Section 173 Cr. P.C. The Court has expressed surprises as why the investigating officer has left out these two petitioners. In para 9 of the order of the Court observed as under: 'One does not understand as to why the investigating officer has left out two SLPC member Mr. Mumtaz u Nisa and Shri A.R Mubarki. They were members of SLPC alongwith accused No. 1 and 2 and Shri A.K. Mehta, Di­rector School Education, Jammu Shri Mehta was not apart of the decision making body. He raised some objections, which were un­ceremoniously rejected by ac­cused No. 1,2 and other SLPC members though for no genuine reason. The SLPC member's Smt. Mumtaz u Nisa and A.R Mubarki, actively participated in the crucial meetings of 18.09.1997 and 8.10.1997, when as per prosecution the conspiracy started. Their acts are quite identical to that of accused No. 1 and 2 but still they have not been arrayed as ac­cused. There is every reason to believe that they were the con­spirators, and they actively con­nived with accused 1 and 2 and became a party to unfair process of allotment of contract to ac­cused No. 4, who was otherwise not entitled to such allotment and the decision ultimately led to a huge loss to State exchequer. There is every reason to believe that they were the con­spirators, and they actively con­nived with accused 1 and 2 and became a party to unfair process of allotment of contract to ac­cused No. 4, who was otherwise not entitled to such allotment and the decision ultimately led to a huge loss to State exchequer. They also abused their official positions to confer a favour on the supplier i.e. accused No. 4 they also flouted the terms and condi­tions of the NIT breached the codal formalities, rejected the ob­jections of Shri A.K. Mehta and concurred with accused No. I and 2 simply to favour accused No. 4 and they succeeded in doing so. So it appears form evidence on record that Smt. Mumtaz-u-Nisa and Shri A.R Mubarki members of State Level Purchase Commit­tee for the year 1997-98 being particeps criminis with other ac­cused have also committed the same offences as accused No. 1 and 2 have individuals who are similarly placed cannot be treated differently but VOJ appears to have done it for the reasons which do not sound well. Inves­tigator is always expected to be fair to the system but it appears that I. O has not demonstrated the highest traditions of fair and equal treatment to similarly placed officers, and has left out some of them without reason.' On examination of these observations I find the learned trial court has considered the charge sheet properly only. There was a sufficient-explanation given by the Vigilance Organization why they have not impleaded the present petitioners in the case but the learned trial court has given vague rea­sons why he does not agree with the investigating officer on the findings in respect of the present petitioners. The matter has been dealt with by the learned trial court in a most casual manner. The petitioners have been arrayed as accused and charges have been directed and the court has de­cided to frame charges against them and summon them for this purpose without affording an opportunity to them to explain their position. The code of Criminal Procedure makes it mandatory to hear the accused per­sons before proceeding to frame charge against the accused in a case. The code of Criminal Procedure makes it mandatory to hear the accused per­sons before proceeding to frame charge against the accused in a case. Since the present petitioners were not arrayed as accused in the matter and were not therefore, before the court at the time it examined the case for fram­ing charge against other accused per­son the Court should not have straight­way proceeded to frame charge against the petitioners and summon them for this purpose. The Court should have in the circumstances looked into the circumstances why the investigating officer has not found the petitioners guilty of commission of the offence. The proper way in such cir­cumstances was to examine the inves­tigating officer on the issue before pro­ceeding further in the matter." 22. The proposition of law enunci­ated by this Court in the aforesaid case for guidance of trial Court has not at all been followed in the present case. The instant case is squarely covered by the aforesaid decision. Arraignment of the petitioner in the case and the act of charge sheeting him definitely amounts to abuse of process of the court. 23. In the result, I allow this peti­tion, set aside the order of the trial court dated 20.11.2008 qua petitioner and quash the petitioner's prosecution in Challan No. 68/53/13 titled State (VOJ) v. J.S Kotwal, pending in the court of Additional Sessions, Judge Anticorruption, Jammu. _