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2020 DIGILAW 450 (ALL)

Vijay Kumar Pandey v. Union of India

2020-02-10

RAJEEV MISRA, SUDHIR AGARWAL

body2020
ORDER : 1. Heard Sri Raj Kumar Sharma, Advocate for petitioner and Sri Udit Chandra, learned A.G.A. as well as Sri R.P.S. Chauhan, Advocate for respondents. 2. Petitioner has assailed constitutional validity of Section 197(1) of Criminal Procedure Code, 1973 (hereinafter referred to as "Cr.P.C.") as violative of Articles 14 and 16 of Constitution of India to the extent those public servants are excluded who are not removable by State Government. It has also sought a mandamus commanding Respondents-1 and 2 to amend Section 197(1) so as to include petitioner as well as those public servants who are not removable by State Government or Central Government. Petitioner has further sought a writ of certiorari to quash entire criminal proceedings in Criminal Case No. 5375 of 2005 as also order dated 10.12.2015 passed by Chief Judicial Magistrate, Ghazipur taking cognizance upon charge sheet No. 41A/14 dated 30.08.2014, arising out of Case Crime No. 244 of 2014, under Sections 323, 504, 325, 302 IPC, Police Station Kotwali Ghazipur, District Ghazipur. Petitioner has also sought a writ of mandamus commanding respondents to obtain sanction from appropriate authority before prosecuting petitioner. 3. Facts, in brief, giving rise to present writ petition are that petitioner was appointed as Deputy Jailer in 2001 and initially posted at District Jail, Pratapgarh wherefrom he was transferred to different District Jails and in 2014 posted at District Jail Ghazipur. On 14.02.2014 petitioner was discharging his duties as Deputy Jailer as also Jailer Incharge of District Jail, Ghazipur since the post of Jailer was vacant and Jail Superintendent was on leave. On the said day petitioner alongwith other Jail Officials made search operations to find out use of illegal means for communication, i.e., Mobile Phones etc., when some inmates resisted and even attacked petitioner and his colleagues in planned manner so as to escape from Jail. They also started pelting stones forcing petitioner and his team to return to barracks. Aforesaid inmates while causing violence on petitioner and his team also caused destruction of Government property in order to break main gate of Jail. In respect of above destruction of public property and violence caused by some prisoners, petitioner lodged First Information Report (hereinafter referred to as "FIR") dated 14.02.2014 as Case Crime No. 243 of 2014 for the offences under Sections 353, 332, 147, 148, 149, 307, 336, 436, 436, 427 IPC at Police Station Kotwali Ghazipur. In respect of above destruction of public property and violence caused by some prisoners, petitioner lodged First Information Report (hereinafter referred to as "FIR") dated 14.02.2014 as Case Crime No. 243 of 2014 for the offences under Sections 353, 332, 147, 148, 149, 307, 336, 436, 436, 427 IPC at Police Station Kotwali Ghazipur. The violence also caused injury to petitioner and his colleagues. Petitioner sustained injury in his left hand leading to fracture of second metacarpal bone of left index finger, besides other injuries. The miscreants in Jail also attacked jail vehicles parked in jail campus. The said incident caused death of one, Vishwanath Prajapati, a prisoner, due to gun shot injury, he sustained on his left thigh, and later succumbed due to excessive bleeding. 4. Prisoners in Jail also lodged FIR against petitioner and five other Jail Warders, registered as Case Crime No. 244 of 2014, under Sections 147, 323, 504, 307 IPC, Police Station Kotwali Ghazipur, District Ghazipur. During investigation, Sections 148, 149, 109, 120B IPC were added and Section 307 IPC was converted into Section 302 IPC. 5. Petitioner also moved a Criminal Misc. Bail Application No. 10730 of 2014, which was allowed by this Court on 17.04.2014. 6. Police after making investigation submitted charge sheet No. 41A/14 dated 30.08.2014 and another charge sheet No. 41/14 dated 11.05.2014 in Case Crime No. 244 of 2014. Charge sheet No. 41/14 was filed against 11 prisoners and charge sheet No. 41A/14 was filed against petitioner and other jail officials. 7. Respondent-5 before filing charge sheet against petitioner opined that sanction from Government under Section 197 Cr.P.C. be obtained whereupon Respondent-4, i.e., Inspector General, Prison Administration and Reforms, U.P., Lucknow opined, vide letter dated 26.08.2014, that petitioner is a "Deputy Jailer" and for his removal sanction of State Government is not required, therefore, he is not a public servant, who is within the ambit of Section 197(1) Cr.P.C., hence no sanction under Section 197 is admissible. 8. Learned counsel for petitioner contended that making Section 197 Cr.P.C. inapplicable to petitioner is arbitrary. Statutory duties of petitioner as Deputy Jailer are at par with that of Jailer and for this purpose he placed reliance on Paras 838 to 840 of U.P. Jail Manual, which read as under: "838. 8. Learned counsel for petitioner contended that making Section 197 Cr.P.C. inapplicable to petitioner is arbitrary. Statutory duties of petitioner as Deputy Jailer are at par with that of Jailer and for this purpose he placed reliance on Paras 838 to 840 of U.P. Jail Manual, which read as under: "838. Duties of Jailors or Deputy Jailors before arrival of Superintendent:-Pending the arrival of the Superintendent, the jailor or the deputy jailor shall act in accordance with the following instructions: (1) He shall post sentries above the main gate to observe and report the movement of the prisoners and detail a parity of warders of duty around the main wall of the jail. (2) If the sentries on the main gate roof report that the main gate is clear, he shall take the remainder of the guard inside the jail, and in the event of an outbreak proceed to the scene, and if the circumstances are such as a necessitate immediate action, he shall warn the prisoners three times in a loud voice that if they do not at once submit and peacefully disperse, they shall be fired upon. If the circumstances are such delay the warning need not be repeated. If upon being warned, the prisoners do not submit and disperse, and if there appear to be no other immediate means of quelling the disturbance, he shall order the guard to fire upon them. But the firing shall cease the moment the prisoners disperse or yield. 839. Superintendent to assume charge of operations.--The Superintendent shall on arrival assume charge of the operations. 840. Use of arms at outbreaks or attempted escape-The following rules have been made under clause (6), Section 59 of the Prisons Act, 1894 (Act IX of 1894), regulating the use of arms against any prisoners or body of prisoners in the case of an outbreak of attempt to escape: (1) Any officer of the prison may use a sword, bayonet, firearm or any other weapon against any prisoner escaping or attempting to escape; provided that resort shall not be had to the use of any such weapon unless such officer has reasonable ground to believe that he cannot otherwise prevent the escape. (2) Any officer of the prison may use a sword, bayonet, firearm or any other weapon on any prisoner engaged in any combined outbreak or any attempt to force or break open the outer gate or enclosure wall of the prison, and may continue to use such weapon so long as such combined outbreak or attempt is being actually prosecuted. (3) Any officer of the prison may use a sword, bayonet, firearm or any other weapon against any prisoner using violence to any office of the prisoner or other person; provided that the such officer of the prison or other person is in danger of life or limb, or that other grievous hurt is likely to be caused to him. (4) Before using firearm against a prisoner under this paragraph, the officer of the prison shall, except where circumstances make such course impossible, give a warning to the prisoner that he is about to fire on him. (5) No officer of the prison shall, when a superior officer is present, use any arms against a prisoner under this paragraph except under the orders of such superior officer." 9. It is contended that confining the scope of sanction under Section 197 Cr.P.C. only to such public servants who are not removable except by sanction of State Government and thereby creating two classes of public servants, i.e., those who are removable and those who are not so, is arbitrary creating an artificial discrimination, hence violative of Articles 14 and 16 of the Constitution of India. Reliance is placed by petitioner in this regard on State of Orissa through Kumar Raghvendra Singh and Ors. vs. Ganesh Chandra Jew, 2004 (8) SCC 40 ; D.T. Virupakshappa vs. C. Subhash, 2015 (12) SCC 231 ; R.S. Nayak vs. A.R. Antulay, AIR 1984 SC 684 ; Ram Krishna Dalmia vs. Shri Justice S.R. Tendolkar and Ors., 1959 SCR 279 ; The State of West Bengal vs. Anwar Ali Sarkar, 1952 SCR 284 ; and, Western M.P. Electric Power and Supply Company Ltd. vs. State of U.P. and Anr., 1969 (3) SCR 865 . He further submits that under Section 6 of Prevention of Corruption Act, 1947 (hereinafter referred to as "Act, 1947") there is no such classification in respect of public servants as has been carved out in Section 197 Cr.P.C. and this also shows that classification under Section 197 Cr.P.C. is artificial and illegal, has no rationale with object sought to be achieved. 10. On the contrary, learned A.G.A. submitted that petitioner is basically challenging entire proceedings on the ground of lack of sanction under Section 197 Cr.P.C. but this is in accordance with law since Section 197 Cr.P.C. is not attracted in the case of petitioner. Validity of Section 197 Cr.P.C. has already been upheld by Supreme Court and, therefore, it is not open to petitioner to re-agitate the same issue, hence writ petition is liable to be dismissed. 11. Learned counsel for petitioner submitted that validity of Section 197 Cr.P.C. is upheld when it was challenged on the classification of treating public servants as one class vis-a-vis other common offenders but he submits that it has never been examined that Section 197 Cr.P.C. is creating two classes of public servants, i.e., those who are removable with sanction of State Government and those who are not so and this classification made is illogical and arbitrary, hence this Court can examine validity of Section 197 Cr.P.C. in the light of aforesaid ground. 12. The submissions advanced by learned counsel for petitioner, in fact, raise following issues: (i) Whether exclusion of petitioner or alike public servants is a reasonable classification founded on an intelligible differentia which distinguishes the public servants that are grouped together on the basis of "removable by State Government" from the others left-out of the group, "who are not removable by State Government". (ii) Whether the above differentia/classification created by law has a rational relation to the object of Section 197 Cr.P.C. (safeguard from unnecessary harassment of public servant). (iii) Whether petitioner be treated equally to those public servants, who avail protection under Section 197(1) Cr.P.C. and does he stand in equal circumstance to those public servants, who avail protection under Section 197(1) Cr.P.C. 13. Though we have noted the submission by framing three issues but we find that all the issues are interconnected and can be examined collectively. 14. Since entire controversy is centered around Section 197 Cr.P.C., it would be appropriate to reproduce the same as under: "197. Though we have noted the submission by framing three issues but we find that all the issues are interconnected and can be examined collectively. 14. Since entire controversy is centered around Section 197 Cr.P.C., it would be appropriate to reproduce the same as under: "197. Prosecution of Judges and public servants.-(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. (3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held." 15. Section 197 Cr.P.C. has referred to two terms. One is the "public servant" and another "offence". 16. The term "offence" has been defined in Section 2(n) of Cr.P.C. and Section 40 IPC and both may be reproduced as under: "(n) "Offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle-trespass Act, 1891 (1 of 1871)." "40. "Offence"-Except in the Chapters and Sections mentioned in clauses 2 and 3 of this Section, the word "offence" denotes a thing made punishable by this Code. "Offence"-Except in the Chapters and Sections mentioned in clauses 2 and 3 of this Section, the word "offence" denotes a thing made punishable by this Code. In Chapter IV, Chapter V-A and in the following sections, namely, Sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined. And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word "offence" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine." 17. Term "public servant" has not been defined in Cr.P.C. but is defined in Section 21 IPC. We may refer the definition of "public servant" at a later stage whenever it is necessary. 18. At this stage suffice it to mention that learned counsel for parties have admitted that Rules governing recruitment and conditions of service of "Deputy Jailer" have been framed under proviso to Article 309 of Constitution are U.P. Jail Executive Subordinate (Non Gazetted) Service Rules, 1980 (hereinafter referred to as "Rules, 1980"). Under the Rules, initially framed in 1980, as per Rule 3(a), "appointing authority" means Inspector General of Prisons, Uttar Pradesh. Said Rules, 1980 have been amended by U.P. Jail Executive Subordinate (Non Gazetted) Service (First Amendment) Rules, 2006 (hereinafter referred to as "Rules, 2006") published in U.P. Gazette (Extraordinary) dated 22.06.2006 and thereby Rule 3(a) has been substituted and now "appointing authority" means Director General of Prison Administration and Reforms Services, U.P. 19. Rules, 1980 has further been amended by U.P. Prison Administration and Reforms Executive Subordinate (Non-Gazetted) Service (Second Amendment) Rules, 2014 (hereinafter referred to as "Rules, 2014") published in U.P. Gazette (Extraordinary) dated 27.06.2014 and thereby cause title of Rules has been changed. Earlier Rules comprised of only Group C posts and now includes Group B posts also, but the same remained to be in the status of Non-Gazetted Subordinate Services. 20. Earlier Rules comprised of only Group C posts and now includes Group B posts also, but the same remained to be in the status of Non-Gazetted Subordinate Services. 20. Since in the present case, incident is of 2014, learned counsel for parties admitted that petitioner, a Deputy Jailer, can be appointed by Director General of Prison Administration and Reforms Services, U.P. and also can be removed by him and sanction of State Government is not required. 21. Now we proceed to consider applicability of Section 197 Cr.P.C. providing sanction of criminal prosecution and the purpose and objective of aforesaid provision. 22. Section 197 Cr.P.C. was also available in Code of Criminal Procedure, 1898. It came up for consideration before Bombay High Court in Hanumant Shrinivas Kulkarni Versus Emperor, (31) 1930 Crl.L.J. 353. Court observed that object of sanction is to guard against vexatious proceedings against public servants and to secure the well considered opinion of a superior authority before their prosecution. 23. In E Versus G. Sadagopan, 1953 Crl.L.J. 1929 Madras High Court said that the object of sanction is nothing more than to ensure the discouragement of frivolous, doubtful and impolite prosecution. 24. In Indu Bhushan Chatterjee Versus State, AIR 1955 Cal. 430 Calcutta High Court said that provision for sanction is a most salutary safeguard. The sanctioning authority is placed somewhat in the position of a sentinel at the door of Criminal Courts in order that no irresponsible or malicious prosecution can pass the portals of the Court of Justice. 25. In Gurbachan Singh Versus State, AIR 1970 Delhi 102 Delhi Bench of Punjab High Court said that intention of legislature in providing for a sanction in respect of offences covered by Section 6 of Act, 1947 is merely to afford a reasonable protection to public servants in discharge of their official functions. It is not the object of section that a public servant who is guilty of the particular offence mentioned in that section should escape the consequences of his criminal act by raising the technical plea of invalidity of sanction. The sanction is a safeguard for innocent and is not a shield for guilty. 26. In R. Bala Krishna Pillai Vs. It is not the object of section that a public servant who is guilty of the particular offence mentioned in that section should escape the consequences of his criminal act by raising the technical plea of invalidity of sanction. The sanction is a safeguard for innocent and is not a shield for guilty. 26. In R. Bala Krishna Pillai Vs. State of Kerala, (1996) 1 SCC 478 Supreme Court while referring to the Law Commission's 41st Report with respect to Section 197 quoted the following observations of Law Commission: "The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by section 197 is the public interest in seeking that official acts do not lead to needless or vexatious prosecutions." (emphasis added) 27. In P.V. Narsimha Rao Versus The State, AIR 1998 SC 2120 Supreme Court said: "The requirement of sanction under Section 19(1) is intended as a safeguard against criminal prosecution of a public servant on the basis of malicious or frivolous alleging by interested persons. The object underlying the said requirement is not to condone the commission of an offence by a public servant." (emphasis added) 28. In Gauri Shankar Prasad Vs. State of Bihar, 2000 SCC (Cri.) 872 Supreme Court held: "The object of the section is to save officials from vexatious proceedings against Judges, magistrates and public servants but it is no part of the policy to set an official above the common law. If he commits an offence not connected with his official duty he has no privilege. But if one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted without its sanction. Section 197 embodies one of the exceptions to the general rules laid down in Section 190 Cr.P.C., that any offence may be taken cognizance of by the Magistrates enumerated therein. But if one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted without its sanction. Section 197 embodies one of the exceptions to the general rules laid down in Section 190 Cr.P.C., that any offence may be taken cognizance of by the Magistrates enumerated therein. Before this section can be invoked in the case of a public servant two conditions must be satisfied i.e. (1) that the accused was a public servant who was removable from his office only with the sanction of the State Government or the Central Government; and (2) he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." (Emphasis added) 29. In State of Himachal Pradesh Vs. M.P. Gupta, 2004(2) SCC 349 it was said: "The protection given under Section 197 is to protect responsible public servants against the institution of possible vexatious criminal proceedings for offence alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution." (Emphasis added) 30. In State of Orissa and others Vs. Ganesh Chandra Jew, AIR 2004 SC 2179 it was held: "The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution." (Emphasis added) 31. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution." (Emphasis added) 31. Supreme Court has again reiterated in Rakesh Kumar Mishra Versus State of Bihar, JT 2006 (1) SC 1 as under: "The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings...." (emphasis added) 32. The above authorities have also been followed in Devinder Singh and others vs. State of Punjab through CBI, (2016) 12 SCC 87 . 33. The object of the legislature for making provision pertaining to sanction seems to be clear. Where a public servant is prosecuted for an offence, which challenges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender but the State is also vitally concerned in it as it affects the morale of the public servants and also the administrative interests of the State. For these reasons, the discretion to prosecute appears to be taken away from the prosecuting agency and is vested in departmental authorities, i.e., the employer probably with the view that they may assess and weigh the accusation in a far more dispassionate and responsible manner. The ultimate justification is public interest. It, however, does not condone the commission of an offence by a public servant or to use it as shield to escape from legal proceedings on mere technicalities. 34. The observations of Supreme Court in State of Himachal Pradesh Vs. M.P. Gupta (supra); State of Orissa and others Vs. Ganesh Chandra Jew (supra); and, Rakesh Kumar Mishra Versus State of Bihar (supra) clearly shows that protection provided in Section 197 is for "responsible public servants" who are mainly involved in superior duties including policy decision so that such superior officials may not be harassed in taking policy decision etc. This protection is not available to every public servant. Ganesh Chandra Jew (supra); and, Rakesh Kumar Mishra Versus State of Bihar (supra) clearly shows that protection provided in Section 197 is for "responsible public servants" who are mainly involved in superior duties including policy decision so that such superior officials may not be harassed in taking policy decision etc. This protection is not available to every public servant. When State itself has made a distinction based on degree of responsibility, nature of duties, nature of functions etc., and that is why the public servants who are removal with sanction of Government and those who are not, are treated in a two different classes, it cannot be said that distinction is artificial and has no nexus to the object sought to be achieved. The very distinction in the category of two government servants, namely, those who are supposed to take responsible decisions and those who are not, shows that neither it is artificial nor irrational nor lack nexus to the object sought to be achieved. 35. Parity sought to be drawn by learned counsel for petitioner with reference to the provisions of Act, 1947 and Prevention of Corruption Act, 1988 (hereinafter referred to as "Act, 1988") is misconceived since both statutes, i.e., Prevention of Corruption Act and Cr.P.C. have different ambit and scope. 36. Section 6 of Act, 1947 and Section 19 of Act, 1988 is much wider comparing to Section 197 Cr.P.C. The definition of "public servant" under Act, 1988 is wider than Section 6 of Act, 1947 and, therefore, scope of Section 6 of Act, 1947 and Section 19 of Act, 1988 is much different than Section 197 Cr.P.C. Section 197 Cr.P.C. is a part of procedural law since Cr.P.C. is procedural law while Act, 1947 and Act, 1988 is special enactment having its own independent procedural provisions. 37. Further while considering Section 6 of Act, 1947 and Section 197 Cr.P.C. Supreme Court in S.A. Venkataraman Versus State, 1958 SCR 1040 has observed that Section 6 of Act, 1947 must be considered with reference to the words used in the Section independent of any construction which may have been placed by the decisions on the words used in Section 197 Cr.P.C. 38. In this regard reference may be made to Supreme Court's decision in Dilawar Singh Versus Parvinder Singh @ Iqbal Singh & another, (2005) 12 SCC 709 wherein Court said: "The Prevention of Corruption Act is a special statute and as the preamble shows this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim Generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See Venkateshwar Rao V. Govt. of Andhra Pradesh, AIR 1966 Supreme Court 828, State of Bihar Vs. Yogendra Singh, AIR 1982 Supreme Court 882 and Maharashtra State Board of Secondary Education V. Paritosh Bhupesh Kumar Sheth, AIR 1984 Supreme Court 1543. Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319 Cr.P.C. A Special Judge while trying an offence under the Provisions of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 319 Cr.P.C. if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine quo non for taking cognizance of the offence qua that person." (Emphasis added) 39. Therefore, the submission that Section 197 Cr.P.C. is discriminatory by excluding such public servants who are not removable with sanction of State Government, has no substance and has to be rejected. 40. Petitioner has further sought a writ of mandamus commanding respondents to amend Section 197 Cr.P.C. but I am afraid that such a mandamus cannot be issued since it is within the realm of policy and legislative in character, in respect whereto no mandamus can be issued. This aspect has been settled in Union of India & Ors. Vs. Parul Debnath & Ors., JT 2009 (9) SC 134 wherein Court has held as under: "....Court cannot direct the creation of posts since the same is prerogative of the executive or the legislative authorities and the Court could not arrogate to itself this purely executive or legislative function and direct creation of the posts in the organization. Vs. Parul Debnath & Ors., JT 2009 (9) SC 134 wherein Court has held as under: "....Court cannot direct the creation of posts since the same is prerogative of the executive or the legislative authorities and the Court could not arrogate to itself this purely executive or legislative function and direct creation of the posts in the organization. It was also observed that this Court has, time and again, pointed out that the creation of a post is an executive and legislative function as it involves economic factors". (emphasis added) 41. The same view has been reiterated in Maharashtra State Road Transport Corporation & Anr. Vs. Casteribe Rajya P. Karmchari Sanghatana, JT 2009 (11) SC 609. 42. Next prayer that respondents be directed not to proceed unless sanction is granted by State Government also cannot be accepted for the reason that, whether sanction can be granted or not is within the authority of State Government. This Court can only examine whether sanction is necessary or not and if necessary, whether it has been granted before taking cognizance but no mandamus can be issued to competent authority to act in a particular manner. 43. In the entirety of facts and circumstances, we find no merit in the writ petition. Dismissed accordingly. Interim order, if any, stands vacated.