JUDGMENT : 1. Heard Ms. J. Mazumdar, learned counsel appearing on behalf of the petitioner along with Mr. Kumar Basant, Advocate. 2. Heard Mr. Rajiv Nandan Prasad, learned counsel appearing on behalf of the opposite parties-C.B.I. 3. This petition has been filed for quashing the entire criminal proceedings including the First Information Report in connection with R.C. 4(A)/10(D), dated 25.01.2010 registered under Sections 420, 120(B) of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, which is said to be pending in the court of learned Special Judge, C.B.I.-cum-Additional District Judge, Dhanbad. 4. During the pendency of the present case, the investigation was completed and charge-sheet was submitted against other persons and no charge-sheet was submitted as against the present petitioner and in the charge-sheet, the reason for not submitting the charge-sheet against the petitioner has also been mentioned as follows: - “The criminality on the part of V. P. Singh, the then GM (S&M), BCCL, Head Quarter, Dhanbad could not be found/established hence he is not being charge sheeted. Udayan Bhattacharya, retired GM (S&M), BCCL, Head Quarter, Dhanbad has been found having committed lapses in ensuring compliance of the terms and conditions of the agreement vis-a-vis his failure to check diversion of coal. For this he is liable to be dealt departmentally, hence charge sheet is not being filed against Udayan Bhattacharya and V.P. Singh, aforesaid.” 5. It appears that the learned court below vide order dated 17.10.2011 took cognizance of offence against other co-accused as well as the present petitioner by recording that from the case-diary and charge-sheet, it is clear that the aforesaid private companies are totally non-existent though some of them are existing at the given premises, but they do not have any manufacturing activity and they have got their project approved in connivance with the officer of CMPDIL and managed to get their case for execution for Fuel Supply Agreement with BCCL recommended by V. P. Singh and Udayan Bhattacharya by abuse of their official position. It has also been mentioned that investigation established that verification of the documents was the sole responsibility of CGM/GM (S&M) of subsidiary company i.e. BCCL as mentioned at Para-E of SI. No. 05 of the Minutes of coordination, the meeting of CVOs of CIL and its subsidiary companies held on 05.02.2005 at Varanasi. It has also been mentioned that investigation established that verification of the documents was the sole responsibility of CGM/GM (S&M) of subsidiary company i.e. BCCL as mentioned at Para-E of SI. No. 05 of the Minutes of coordination, the meeting of CVOs of CIL and its subsidiary companies held on 05.02.2005 at Varanasi. Udayan Bhattacharya was the GM (S&M), BCCL, Dhanbad during the relevant period, whose acts and omissions resulted in wrongful loss to BCCL to the tune of Rs. 16 to 24 crores approximately and corresponding wrongful gain to the said parties or the public servants. The learned court below found sufficient material available on record to proceed ahead against the accused persons who were charge-sheeted as well as the present petitioner and took cognizance of offence by mentioning that the present petitioner has already retired, hence sanction for prosecution is not required against him. The cognizance has been taken under Sections 420, 468, 471, 120-B and Section 13(2) read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988. 6. This Court finds that one interlocutory application being I.A. (Cr.) No. 2035 of 2011 has been filed by the petitioner in the present case, seeking amendment of the main petition and challenging the order taking cognizance. This petition for amendment was allowed by this Court vide order dated 01.03.2012. Accordingly, in the present case, the entire criminal proceedings including order taking cognizance against the petitioner, is under challenge. Arguments of the petitioner 7. The learned counsel for the petitioner while assailing the entire criminal proceedings against the petitioner including order taking cognizance submits that the investigating officer found during investigation that there has been lapses on the part of the present petitioner in ensuring compliance of the terms and conditions of the agreement vis-a-vis his failure to check diversion of coal and recommended only for departmental proceeding, but in spite of that the learned court below has taken cognizance of offence against the present petitioner. She submits that the cognizance has been taken under the various provisions of Indian Penal Code as well as the provisions of Prevention of Corruption Act, 1988. She submits that the cognizance has been taken under the various provisions of Indian Penal Code as well as the provisions of Prevention of Corruption Act, 1988. She has submitted that so far as the cognizance under the provisions of aforesaid Act of 1988 is concerned, there is no doubt that the law is well-settled that for the purpose of taking cognizance of offence under the provisions of Prevention of Corruption Act, 1988, once the person retires, the prosecution sanction is not required. But, so far as the cognizance under various Sections of Indian Penal Code is concerned, the requirement of sanction is still there under the provisions of Section 197 of Code of Criminal Procedure. The learned counsel submits that in the main petition, the point regarding sanction was not taken, and accordingly, the petitioner has filed a supplementary affidavit which is dated 02.12.2019 and the point regarding sanction has been taken. The petitioner has referred to the judgment passed by the Hon’ble Supreme Court which is reported in (2014) 16 SCC 807 (State of Punjab vs. Labh Singh). The learned counsel submits that in view of the settled principle of law, the order taking cognizance as against the petitioner under the provisions of Indian Penal Code, is fit to be set-aside for want of prosecution sanction. 8. The learned counsel has also submitted that so far as the impugned order taking cognizance is concerned, the learned court below has not discussed the specific materials which have come up against the petitioner during investigation, so as to differ from the opinion of the investigating officer. Accordingly, she submits that on this aspect of the matter also, the impugned order taking cognizance, is fit to be set-aside. Submission of the opposite parties 9. The learned counsel appearing on behalf of the State-C.B.I., on the other hand, while opposing the prayer has submitted that in a recent judgment passed by the Hon’ble Supreme Court reported in (2019) AIR (SC) 3929, it has been held that the protection of Section 197 of Cr.P.C. is not available to the employee of public sector undertaking like the petitioner, as no sanction is required by the Central or State Government to remove such persons. He submits that an Officer of the public sector who is not removable by the sanction of the State Government or the Central government, is not entitled to protection under Section 197 of Cr.P.C. The learned counsel has also referred to another judgment passed by the Hon’ble Supreme Court in Cr. Appeal No. 1837 of 2019 in the case of Station House Officer, C.B.I. vs. B. A. Srinivash and submits that in the said case also the cognizance was taken under the various provisions of Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and the Hon’ble Supreme Court considering the various judgments on the point of sanction has ultimately, considering the nature of allegations involved in the said case held that no sanction was required for prosecuting to concerned accused. 10. The learned counsel further submits that otherwise also from the impugned order, the summary of the materials which is available on record has been mentioned and the very fact that the unit was totally non-functional, and in spite of that the Fuel Supply Agreement was ultimately executed, and it was the petitioner who had the responsibility of inspection of the unit and this itself indicates that the acts and omissions on the part of the petitioner was not in discharge of his official duty. It is submitted that under the aforesaid facts and circumstances, the petitioner is not entitled to protection under Section 197 of Cr.P.C. He also submits that from the supplementary affidavit which has been filed by the petitioner, it has been wrongly mentioned that the acts and omissions which have been alleged against the present petitioner amounts to discharge of his official duty. Accordingly, he submits that no interference is called for in the impugned order taking cognizance. Findings of the Court 11. After hearing the counsel for the parties and considering the facts and circumstances of this case, this Court finds that upon investigation, charge-sheet was submitted against the various accused persons and it has been found that the units involved in this case, were totally non-existent or non-functional. It has also been found during investigation that as per NCDP (New Coal Distribution Policy), approved by the Ministry of Coal, Fuel Supply Agreement (FSA) was to be executed upon verification of the status of the units, who were to be granted coal through FSA. It has also been found during investigation that as per NCDP (New Coal Distribution Policy), approved by the Ministry of Coal, Fuel Supply Agreement (FSA) was to be executed upon verification of the status of the units, who were to be granted coal through FSA. The coal through FSA was to be supplied at the notified price and the condition imposed as per the agreement was that the coal was to be used only for the purposes of manufacturing activity. 12. In the judgment passed by the Hon’ble Supreme Court in the case of M/s. Ashoka Smokeless Fuels, Coal India Ltd. vs. Union of India, which has been referred to in the charge-sheet, the supply of coal was subject to verification of the documents relating to the consumer units and also physical verification of such units, and accordingly, certain check list was also prepared to verify the genuine consumer units. 13. As per the allegations, the present petitioner has been found to have committed lapses in ensuring compliance of the terms and conditions of the agreement and there was failure on his part to inspect the units physically during the period in question. There is no dispute that the petitioner was posted as General Manager (Sales & Marketing), BCCL, Head Quarter, Dhanbad at the relevant point of time. 14. This Court finds that the charge-sheet was submitted by the investigating officer against the other accused persons under Sections 420, 468 and 471 of the Indian Penal Code and the learned court below has taken cognizance under Sections 420, 468, 471 and 120-B of the Indian Penal Code and also Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the petitioner along with other co-accused. It has been recorded by the learned court below in the impugned order taking cognizance dated 17.10.2011 that from the case-diary and charge-sheet, it is clear that the private companies are totally non-existent and some of them are existing at the given premises, but they do not have any manufacturing activity and they have got their project approved in connivance with the Officer of CMPDIL and the verification of documents was the sole responsibility of the Chief General Manager/General Manager (Sales and Marketing) of subsidiary company i.e. BCCL. The learned court below found that the petitioner had abused his official position to cause unlawful gain to the private person and unlawful loss to the BCCL, the coal company. In the impugned order taking cognizance dated 17.10.2011 it has been mentioned that since the petitioner has retired, no sanction for prosecuting the petitioner is required. 2. In the judgment passed by Hon’ble Supreme Court reported in (2014) 16 SCC 807 (State of Punjab Vs. Labh Singh) it has been held by the Hon’ble Supreme Court that so far as Prevention of Corruption Act, 1988 is concerned, sanction for prosecution may not be required once a public servant retires from service, but so far as Indian Penal Code is concerned, sanction for prosecution would be required even after his retirement. Para 9 and 10 of the aforesaid judgement are quoted herein below for ready reference: “9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13-9-2000 and later on 24-9-2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A. Venkataraman Vs. State while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A. Venkataraman was adopted by this Court in C.R. Bansi Vs. State of Maharashtra and in Kalicharan Mahapatra Vs. State of Orissa and by the Constitution Bench of this Court in K. Veeraswami V. Union of India. The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned. 10. However as regards charges for the offences punishable under the Penal Code, the High Court was absolutely right in setting aside the order of the Special Judge. The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned. 10. However as regards charges for the offences punishable under the Penal Code, the High Court was absolutely right in setting aside the order of the Special Judge. Unlike Section 19 of the PC Act, the protection under Section 197 Cr.P.C is available to the public servant concerned even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13-9-2000 and secondly on 24-9-2003, the Court could not have taken cognizance insofar as the offences punishable under the Penal Code are concerned, as laid down by this Court in State of H.P. V. Nishant Sareen, the recourse in such cases is either to challenge the order of the sanctioning authority or to approach it again if there is any fresh material.” 3. So far as the judgment reported in (2014) 16 SCC 807 (Supra) is concerned, the facts of the said case clearly indicates that the matter was placed before the concerned authority for grant of sanction for prosecution which was rejected twice and after the retirement of the accused, cognizance was taken by the court under the provisions of Prevention of Corruption Act, 1988 as well as under the provisions of Indian Penal Code. The Hon’ble Supreme Court held that so far as cognizance under the provision of Prevention of Corruption Act, 1988 is concerned, if the incumbent has retired from service and after his retirement, the court is asked to take cognizance, there is no such bar from taking cognizance in absence of sanction for prosecution. Further, the Hon’ble Supreme Court in the aforesaid case held that unlike Section 19 of the Prevention of Corruption Act, 1988, the protection under Section 197 of Cr.P.C is available to the public servant concerned even after retirement and held that the concerned High Court was absolutely right in setting aside the order of the Special Judge taking cognizance for the alleged offence under Indian Penal Code. The allegation made against the person involved in the case reported in (2014) 16 SCC 807 (supra) has been mentioned in Para-4 of the aforesaid judgment and it was found that the allegation established that the suspected officer did not get prepared the cross sections and estimates for embezzling the Government Treasury at a large scale and in the said works, due to starting/finishing of the repair works without preparing estimates, the officers were found responsible. This Court also finds that in the said case, there was no dispute as to whether the petitioner was a Government Servant or not as he was directly employed under the State Government. 15. This Court is of the considered view that in order to quash the order taking cognizance under the provisions of Indian Penal Code on the ground of absence of sanction for prosecution, the same can be done in connection with the services of public servants who have committed acts or omissions in discharge of their official duties. There is a distinction between acts or omissions in discharge of official duty and acts or omissions which are outside the ambit of the official duty. The Hon’ble Supreme Court in Criminal Appeal No. 1837 of 2019 decided on 05.12.2019 has clearly held that the issue as to whether the alleged act is intricately connected with the discharge of official function and whether the matter would come within the expression while acting or purporting to act in discharge of the official duty would get crystalized only after evidences led and the issue of sanction can be agitated at a later stage as well. The Hon’ble Supreme Court has followed the judgment reported in (2001) 6 SCC 704 (P. K. Pradhan vs. State of Sikkim), wherein it has been held in Para-15 that for protection under Section 197 of the Code of Criminal Procedure, the acts of the accused complained of must be such for the same cannot be separated from discharge of official duty. But, if there was no reasonable connection between them, and the official status furnishes only the occasion or opportunities for the acts, then no prosecution sanction would be required to proceed against such persons. Para-15 of the aforesaid judgment reported in (2001) 6 SCC 704 , is quoted hereinbelow for ready reference. But, if there was no reasonable connection between them, and the official status furnishes only the occasion or opportunities for the acts, then no prosecution sanction would be required to proceed against such persons. Para-15 of the aforesaid judgment reported in (2001) 6 SCC 704 , is quoted hereinbelow for ready reference. “Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. 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 trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the 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.” (emphasis supplied) 16. There is no doubt that protection under Section 197 of Cr.P.C. is available to a public servant, even after his retirement. 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.” (emphasis supplied) 16. There is no doubt that protection under Section 197 of Cr.P.C. is available to a public servant, even after his retirement. But the point is whether the petitioner was a public servant or not and whether the acts or omissions which are alleged against the petitioner can be said to have been done in discharge of his official duty. It has been argued by the learned counsel appearing on behalf of the State-C.B.I. that the protection under Section 197 of Cr.P.C. is available only to those officers of the Government undertaking who can be removed by proper approval of the Central Government or the State Government. It has also been submitted by the learned counsel for the CBI that there is nothing on record as to how the petitioner could be removed and whether any prior approval from the Central Government or the State Government was at all required to remove the petitioner of the present case from service. Therefore, this Court is of the considered view that this aspect of the matter, as to whether the petitioner was a public servant or not and accordingly whether he was entitled to protection under Section 197 of the Cr. P.C. or not, is also a matter of evidence and cannot be appreciated at this stage. This Court is of the view that sufficient evidence is not available on record, at this stage, with regard to the status of the petitioner, in all aspects, to unhesitatingly hold that the protection under Section 197 Cr. P.C. shall be available to him. These matters are to be considered by the trial court on the basis of evidence placed during trial. 17. P.C. shall be available to him. These matters are to be considered by the trial court on the basis of evidence placed during trial. 17. So far as the point regarding alleged acts being in discharge of official duty of the petitioner is concerned, this Court finds that in view of the materials collected during investigation, the learned court below has found that the Fuel Supply Agreement was executed with those units which were either non-existing or having no manufacturing activity and the involvement of the petitioner has been reflected in the order taking cognizance and the learned court below has prima-facie found that the petitioner had abused his official position to cause unlawful gain to the private person and unlawful loss to the BCCL, the coal company. In such circumstances, this Court is of the considered view at this stage that the protection under Section 197 of Cr.P.C. would not be available to the petitioner, as his acts or omissions cannot be said to be strictly in discharge of his official duties. Further, the point as to what were the duties of the petitioner and to what extent the petitioner was involved in commission of offence will certainly depend upon the evidence that will be led at the stage of trial. At this stage, this Court is of the considered view that the learned court below has committed no illegality in taking cognizance of offence against the petitioner under the provisions of Indian Penal Code, 1860 as well as under the provisions of Prevention of Corruption Act, 1988. In the main petition challenging the order taking cognizance, the petitioner has not challenged the order on the ground of absence of sanction for prosecution. In the supplementary affidavit, the petitioner has just raised a technical ground that there is no sanction for prosecution under Section 197 of Cr.P.C. and there is no whisper that the entire allegation against the petitioner was strictly in discharge of his official duty. 18. Considering the nature of allegation levelled against the petitioner, this Court is of the considered view, at this stage, that said allegations cannot be said to be done in discharge of official duty and accordingly protection under Section 197 of the Indian Penal Code would not be available to the petitioner. 18. Considering the nature of allegation levelled against the petitioner, this Court is of the considered view, at this stage, that said allegations cannot be said to be done in discharge of official duty and accordingly protection under Section 197 of the Indian Penal Code would not be available to the petitioner. In such circumstances, this Court is not inclined to quash the order taking cognizance on the sole ground which has been raised by the petitioner i.e., absence of sanction for prosecution under Section 197 of Cr.P.C in view of the judgment passed by the Hon’ble Supreme Court which has been decided on 05.12.2019 in Criminal Appeal No.1837 of 2019 in the case of Station House Officer, CBI/ACB/Bangalore Vs. B.A Srinivasan and Another. Considering the nature of allegations, this Court prima facie finds that the allegations against the petitioner reflect abuse of his official position for the commission of alleged offence. Thus, the impugned order taking cognizance does not call for any interference by this Court. 19. Considering the judgement reported in (2016) 8 SCC 722 , there is no doubt about the legal proposition that sanction for prosecution under Section 197 Cr.P.C and/or sanction mandated under special statute as postulated under Section 19 of the Prevention of Corruption Act, 1988 would be required in appropriate case before taking cognizance of offence against a public servant. But at the same time, it has also been held in the said judgement that such protection of obtaining prosecution sanction is available only when the alleged offence, attributed to the accused, has been committed by the accused “while acting or purporting to act in the discharge of his official duty”. This Court is of the considered view, at this stage, that the alleged offence cannot be said to have been done by the petitioner while acting or purporting to act in the discharge of his official duty. 20. The Hon’ble Supreme Court has also held in para 12 of another judgment passed in Criminal Appeal No.1837 of 2019 as follows: “12. 20. The Hon’ble Supreme Court has also held in para 12 of another judgment passed in Criminal Appeal No.1837 of 2019 as follows: “12. It has also been observed by this Court that, at times, the issue whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression ‘while acting or purporting to act in discharge of their official duty’, would get crystalized only after evidence is led and the issue of sanction can be agitated at a later stage as well. In P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation, this Court stated: “15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the 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.” 21. In view of the aforesaid judicial pronouncement and considering the nature of allegation involved in this case, at this stage, it cannot be said that the alleged action/non-action of the petitioner was while acting or purporting to act in discharge of his official duty so as to entitle him for any protection under Section 197 of Indian Penal Code. Admittedly, there is no dispute that petitioner has retired and accordingly no sanction will be required for prosecuting the petitioner for the alleged offence under Prevention of Corruption Act, 1988. Consequently, this Court does not find any illegality in the impugned order taking cognizance against the petitioner. However, during trial and upon consideration of evidence, it is found that the action/non-action of the petitioner was in discharge of his official duty, it will still be open to the petitioner to agitate the point of sanction. 22. Considering the aforesaid facts and circumstances of this case, the petitioner is not entitled for any relief by this Court and the impugned order taking cognizance against the petitioner does not call for any interference. Accordingly, the present petition is hereby dismissed. 23. Interim order, if any, stands vacated. 24. Pending interlocutory applications, if any, are dismissed as not pressed. 25. Let a copy of this order be communicated to the learned court below through FAX.