JUDGMENT : ARUN DEV CHOUDHURY, J. 1. Heard Mr. A. M. Bora, learned Senior Counsel assisted by Mr. V. A. Choudhury, learned counsel for the petitioners in Crl.Pet No. 633/2012, Crl.Pet No. 634/2012, Crl.Pet No. 635/2012, Crl.Pet No. 648/2012, Crl.Pet No. 649/2012 and Crl.Pet No. 760/2012, Mr. H. K. Sarma, learned counsel for the petitioner in Crl.Pet No. 636/2012 and Crl.Pet No. 637/2012 and Mr. K. H. Choudhury, learned Senior Counsel assisted by Mr. S. K. Muktar, learned counsel for the petitioner in Crl.Pet No. 638/2012. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent. 2. This batch of criminal petitions are taken up together for final disposal as in all these criminal petitions, a common order dated 12.09.2012 passed by the learned Special Judge, Assam in Special Case No. 5/2011 (CID PS Case No.2/2008) is put to challenge. 3. The impugned order was passed in the exercise of power under Section 319 of Cr.P.C., implicating the petitioners as accused in the aforesaid case under Section 120(B)/468/471/409 of IPC. 4. There are three sets of accused in Special Case No. 5/2011. The first set of accused (ten in number), were sent for trial after obtaining prosecution sanction from the competent authority. These accused are not before this Court. The second sets of accused are public servants against whom the employer/competent authority refused to grant prosecution sanction. They are five in number and are petitioners before this Court in Crl. Pet. No.635/2012, Crl. Pet. No.636/2012 and Crl. Pet. No.638/2012. The third categories of accused are also public servants who were neither named in the FIR nor were sent for trial but were summoned as accused by way of the impugned order. They are petitioners before this Court in Crl.Pet.No.637/2012, Crl.Pet./648/2012, Crl.Pet./633/2012, Crl.Pet.634/2012, Crl.Pet./649/2012 and Crl.Pet./760/2012. 5. Pet. No.635/2012, Crl. Pet. No.636/2012 and Crl. Pet. No.638/2012. The third categories of accused are also public servants who were neither named in the FIR nor were sent for trial but were summoned as accused by way of the impugned order. They are petitioners before this Court in Crl.Pet.No.637/2012, Crl.Pet./648/2012, Crl.Pet./633/2012, Crl.Pet.634/2012, Crl.Pet./649/2012 and Crl.Pet./760/2012. 5. Before dealing with the arguments of the learned counsels as regards patent illegality in the manner and method of exercise of power under Section 319 of Cr.P.C. by the learned Special Judge and illegal exercise of power by the learned Special Judge to proceed with the trial in the absence of prosecution sanction and conducting an enquiry by calling witnesses on its own, let this Court first record the brief fact leading to the present litigation in the following paragraphs: I. During the year 1989, altogether 752 persons were alleged to have been illegally appointed as Assistant Teachers against non-existent posts in Dhemaji and North Lakhimpur Districts. Upon learning about the above, the services of such illegal appointees were terminated in the year 1992. However, it was reported that almost 355 terminated teachers were still working, out of which 193 were drawing salaries. Such illegal action being reported by the concerned Deputy Inspector of Schools, which is a huge burden on the public exchequer, the Govt. of Assam in the Education Department vide order dated 09.02.2007 directed the Director of Elementary Education Assam to immediately stop drawl of salary and not to allow those terminated teachers to serve in their respective Schools. II. In the meantime, it came to the notice of this Court in WP(C) No. 2560/2007 that there was a large-scale misappropriation of public funds in Dhemaji Sub-Division in payment of salary to such teachers appointed illegally. Accordingly, this Court vide order dated 18.06.2007, while expressing willingness to ascertain the position of other sub-divisions and districts, directed the Registry of this Court to list the said writ petition (suo-moto) and accordingly PIL No. 67/2007 came to be registered. III. As the relevant records regarding appointment or regularization and adjustment of those teachers were not traceable, after the issuance of the show-cause notice by this Court in the said PIL, the Government called upon the CID to investigate the matter and accordingly a case being CID Case No. 2/2008 was registered based on an FIR dated 21.01.2008 lodged in this regard. IV. IV. The investigating agency after completion of the investigation in connection with the above case, vide letter dated 22.12.2009 sought for grant of prosecution sanction under Section 19 7 of the Code of Criminal Procedure and under Section 19 of the Prevention of Corruption Act, 1988 , in respect of around 14 public servant. V. The matter was examined by the Chief Secretary to the Govt. of Assam and based on the materials made available by the investigating agency, the sanctioning authority concluded that the investigating agency has failed to establish any prima facie criminal intent on the part of any of the officers who had held the post of the Director of Elementary Education, Assam. Accordingly, it was held that no inference can be drawn that any one of them can be accused of having committed any offence punishable under IPC as well as under the Prevention of Corruption Act, 1988 warranting the grant of prosecution sanction either under Section 19 7 of the Cr.P.C. or under Section 19 of the Prevention of Corruption Act, 1988 . Accordingly, vide order dated 07.05.2010 the sanctioning authority, refused to grant prosecution sanction against those persons. However, sanctions in respect of some others were, granted as recorded herein above, who are not before this Court. VI. It is on record that the learned Special Judge, Assam, while taking up the matter directed the Superintendent of Police, CID to submit a report incorporating the particulars of different cases that are pending for grant of prosecution sanction. Accordingly, the Superintendent of Police, CID submitted a report before the learned Special Judge, Assam wherein names of some Government employees, against whom, prosecution sanction was not yet granted were produced. VII. Upon receipt of such report, the learned Special Judge, Assam concluded that the Government of Assam for reasons best known to it had unnecessarily delayed the decision in according prosecution sanction against those 8 public servants. VIII. The learned Special Judge, Assam vide order dated 06.03.2012 directed the investigating officer not to wait even for a single day to obtain prosecution sanction, since according to the learned Special Judge, the proposed sanction has become redundant and the prosecution sanction even if granted at this stage would never be taken into consideration during the trial. VIII. The learned Special Judge, Assam vide order dated 06.03.2012 directed the investigating officer not to wait even for a single day to obtain prosecution sanction, since according to the learned Special Judge, the proposed sanction has become redundant and the prosecution sanction even if granted at this stage would never be taken into consideration during the trial. Accordingly, by the aforesaid order, the investigating officer was directed to submit a charge sheet against all those public servants, without prosecution sanction and the next date was fixed on 16.03.2012 for submission of the charge sheet. IX. The investigating agency submitted a part charge sheet under Section 173 of the Code of Criminal Procedure in connection with the aforesaid case vide charge sheet No. 1/10(Part A) dated 5.12.2010 under Section 120(B)/420/406 IPC read with 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 against nine accused persons, against whom prosecution sanction was accorded by the sanctioning authority. X. On receipt of the aforesaid charge sheet, the learned trial Court registered the same as Special Case No. 5/11 and thereby took cognizance of the offences and issued processes against the accused person against whom the charge sheet was filed by the investigating agency. XI. On the appearance of those charge-sheeted accused persons, the trial court furnished the relevant documents to them and the case was posted for consideration of framing of charge against those persons. XII. In the meantime, the learned Public Prosecutor by filing an application dated 22.6.12 brought to the notice of the learned Special Court that certain important documents pertaining to the list of terminated teachers and list of teacher drawing salaries along with official correspondence contained in file no. EAA-18/87 have not been produced by the investigating officer at the time of filing of the charge sheet, which is available in the office and without the said documents no specific charge can be framed against the charge-sheeted accused persons. XIII. The learned Special Court on perusal of the said application, on 22.06.2012 directed S.P. CID to file a report and accordingly SP CID filed a report before the learned Special Court on 27.06.2012 stating that the Director of Elementary Education despite repeated reminders failed to provide those documents and Director has informed that despite vigorous search, said file has not yet been traced out. The trial court accordingly directed the Director of Elementary Education, Assam to produce the file containing relevant documents. XIV. On 2.7.2012 a report was submitted by the Director of Elementary Education before the trial court expressing his inability to produce the file on the ground that the original file could not be traced out. On perusal of the same, the trial court directed the Director of Elementary Education to appear personally before the Court on 5.7.2012. The learned Special Court vide its order dated 2.7.12 issued notice to the S.P., CID and investigating officer to appear in person on the next date fixed. XV. On 23.7.2012, the Director of Elementary Education submitted a report before the trial court including the list of officials dealing with the missing file. The Special Judge vide its order dated 31.07.12 directed the Director of Elementary Education to submit the proper address with the name of the respective father of all the public servants mentioned in the report dated 23.07.12 and also directed him to appear personally to record his statement. XVI. The learned Special Court on receipt of the said report recorded the statement of investigating officer, Director of Elementary Education and one Senior Assistant of the Establishment Branch as witnesses No. 1, 2 and 3 respectively. XVII. The learned Special Court based on the statements of aforesaid three witnesses came to the conclusion, recorded in the impugned order that all the aforesaid 25 officials, a list of which was provided by the Director of Elementary Education, had made criminal conspiracy with the charge- sheeted accused persons to make fake budget allotment for the purpose of cheating and dishonestly dispose of Govt. money and thereby prima-facie committed an offence under Section 120(B)/468/471/409 of IPC. The learned Special Court in its impugned order has also observed that in the course of the investigation of the case, when the investigating officer found materials against some of the persons, sought prosecution sanction against those persons, the govt. refused the same on the ground that there were no materials against them. Accordingly, the learned Special Judge issued processws against those accused/petitioners who were not originally charge-sheeted in the case by way of the impugned order dated 12.9.2012 under Section 120(B)/468/471/409 of IPC purportedly in exercise of power under Section 319 of the Code of Criminal Procedure. XVIII. refused the same on the ground that there were no materials against them. Accordingly, the learned Special Judge issued processws against those accused/petitioners who were not originally charge-sheeted in the case by way of the impugned order dated 12.9.2012 under Section 120(B)/468/471/409 of IPC purportedly in exercise of power under Section 319 of the Code of Criminal Procedure. XVIII. As recorded hereinabove, these two sets of accused are before this Court in this batch of Criminal petitions. 6. In the aforesaid factual backdrop and arguments advanced, this court, therefore is to look into whether the learned Special Judge, Assam had a jurisdiction to make an inquiry under Section 319 Cr.P.C. on its own by calling witnesses and whether the accused can be summoned to face trial based on the material so collected by the Special Judge itself. The second important issue would be whether prosecution sanction shall be necessary when the court in exercises of its power under section 319 arrays some public servants as accused and alleged offences are committed in the discharge of their duties. 7. In the aforesaid backdrop, this Court would first like to deal with the settled principle of law touching the power, manner and method of exercise of power under Section 319 of Cr.P.C. and accordingly, in the considered opinion of this court, it will be relevant for such purpose to first record the text of Section 319 Cr.P.C.,:- Section 319: Power to proceed against other persons appearing to be guilty of offence .- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any office for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then- (a) The proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. 8. The Constitution Bench in Hardeep Singh vs State of Punjab and Ors reported in 2014 3 SCC 92 elaborately dealt with the principle of exercise of power under Section 319 Cr.P.C., the stage of exercise of power etc. The principles laid down by the constitution Bench which are necessary for the determination of the present case can be curved out as follows: I. Inquiry means an inquiry, other than a trial conducted under Cr.P.C. by a Magistrate. Inquiry, therefore, in this context is not any inquiry relating to the investigation of the case by the investigating authority but is an inquiry after the case is brought to the notice of the court on the filing of the charge sheet. II. So far its application during the course of inquiry is concerned, it should be limited to the stage of inquiry from the filing of charge sheet till charges are framed except during the stage of Section 207/208 committal etc., which is only a pre-trial stage, intended to put the process into motion and this stage cannot be said to be judicial steps in true sense as it only requires an application of mind rather than a judicial application of mind and inasmuch as the magistrate is required to perform acts in the nature of administrative work. III. The word “course” occurring in section 319 Cr.P.C. can be exercised during the period when the inquiry has been commenced and is going on or the trial has been commenced or going on. IV. The stage of inquiry does not contemplate any evidence in a strict legal sense inasmuch as the stage of evidence has not yet arrived. III. The word “course” occurring in section 319 Cr.P.C. can be exercised during the period when the inquiry has been commenced and is going on or the trial has been commenced or going on. IV. The stage of inquiry does not contemplate any evidence in a strict legal sense inasmuch as the stage of evidence has not yet arrived. V. The only material that the court has before it at this stage is the material collected by the prosecution and the court can apply its mind to this material as to whether a person who can be an accused has been erroneously promoted from or has been deliberately by the prosecution witnesses. The object is to ensure that the investigation and the prosecution agency had acted fairly in bringing before this Court who deserved to be tried. VI. The court can exercise power under Section 319 Crpc only after the trial proceeds and commences with the recording of evidence and also in exceptional circumstances during the inquiry. VII. The power under Section 319 Crpc can be exercised only on the basis of evidence adduced before the Court during a trial and its application during inquiry is limited to the extent recorded hereinabove. VIII. The evidence referred under Section 319 Cr.P.C means material that has come before the Court during the inquiry or trial by it and not otherwise. IX. Evidence in the context of Section 319 Cr.P.C. means only such evidence as is made before the Court, in relation to statements and as produced before the Court, in relation to documents and only such evidence can be taken into account by the Magistrate or by the Court to decide whether the power under Section 319 Cr.P.C. is to be exercised and not on the basis of materials collected during investigation. X. That apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. the “evidence’ is thus, limited to the evidence recorded during trial. XI. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. XI. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied. 9. From the text of section 319 Cr.P.C., there is no doubt in the mind of the Court that an “enquiry” in the context of Section 319 Cr.P.C. shall mean an enquiry by which the Court can identify person(s) which is not an accused but potentially guilty and such determination is to be based on material already collected by the Investigating Authority. By stretch of no imagination, it can be interpreted that the enquiry in this context shall mean a roving enquiry, in which the Court summons witnesses to enquire and find out to find out whether other persons are also involved in the commission of the offences and are potentially guilty. From the text of section 319, Cr.P.C., it is clear that power conferred on the court can be exercised in the course of an Enquiry into or trial of an offence based on evidence produced before the Court, if it appears to the court that such evidence points to any person, other than accused who are being tried before the court, to have committed any offence and such accused has been excluded in the charge sheet 10. Now coming to the case in hand, the learned trial court on the background fact that certain records were missing, initiated an enquiry on its own, took evidence and came to a conclusion that prima cases were made against the accused persons under sections 120B/468/471/409 IPC whereas in the original case registered by CID in CID PS Case No.02/08 (Special case no. 05 of 2011) was registered under Sections 120B/420/409/IPC read with Section 13(2) PC Act. In the considered opinion of this court, particularly in the backdrop of the settled proposition of law, recorded herein above, such course of action shall not be permissible under law in as much as an enquiry in the Context of section 319 shall mean an enquiry to arrive at a conclusion whether some other accused persons are left out and such conclusion and answers shall be based on the evidence. 11. 11. At the stage of enquiry, when the learned special judge passed the order, there was no evidence in the strict legal sense in as much as stages of evidence had not yet arrived. The learned Judge failed to appreciate that it can exercise its power under Section 319 Cr.P.C., during enquiry in exceptional cases. The only material the court has before, at this stage, to exercise its power is the material collected by the prosecution and the special judge was within its jurisdiction to apply its mind to these materials to enquire as to whether a person against whom there are incriminating materials but has erroneously or deliberately been not arrayed as accused. However, the learned Special Judge started an enquiry on its own by summoning individuals to record their statements, recorded their statements etc. in purported exercise of power under section 319 Cr.P.C. Such a course of action is not permissible under law and the statement of such individuals can not be treated either as “evidence” and/or “materials collected by the prosecution” to pass an order under section 319 CrPC. 12. In the considered opinion of the court holding an enquiry in the exercise of power under section 319 CrPc by calling individuals to the witness box on its own, recording their statement and based on their statement arriving at satisfaction to summon the accused, is not prescribed under section 319 Cr.P.C. Thus, the learned Special Judge not only misdirected himself but also exceeded in its jurisdiction. 13. Therefore, for the reasons recorded herein above, this Court is of the unhesitant view that the learned special judge had exceeded in his jurisdiction while framing charges against the accused persons who were neither named in the F.I.R. nor sent for trial. The exercise of power by the learned Special judge, therefore is excess of exercise of power and while doing so, the learned special judge has committed patent illegality, for which the same is liable to be quashed. 14. Now, coming to the provision of sanction and the impugned order whereby, the learned Special Judge decided to proceed against the accused petitioners in the criminal petition Crl. Pet. No.635/2012, Crl. Pet. No.636/2012 and Crl. Pet. 14. Now, coming to the provision of sanction and the impugned order whereby, the learned Special Judge decided to proceed against the accused petitioners in the criminal petition Crl. Pet. No.635/2012, Crl. Pet. No.636/2012 and Crl. Pet. No.638/2012 even after refusal of prosecution sanction by the authority, this Court is of the view that sanction under section 19 of the PC Act and section 197 of the Cr.P.C, when not granted by the competent authority, the special judge is obliged not to take cognizance of the offence/frame charge against such public servants. The special judge cannot proceed with the case against such an accused/public servant unless the required prosecution sanction is obtained from the appropriate government authority in the given facts of the present case. When the sanctioning authority declines to grant prosecution sanction, the learned Special Judge shall not be within its jurisdiction to proceed with the case in as much as the learned Special Judge shall not and cannot assume jurisdiction without such sanction. In fact, it is by now settled that even the superior courts, in such an event, cannot direct the authority to grant prosecution sanction and the superior court can only direct the authorities to re-consider the application of sanction, however, in the case in hand, the Special Judge had done what law debars him to do and thus exceeded in his jurisdiction in this regard also. Law is by now well settled that Courts cannot take cognizance against any public servant even in the exercise of power under Section 319 of Cr.P.C. without first following the requirement of Section 19 of the PC Act, from the appropriate government, when it is alleged that a public servant has committed offences under Sections 7, 11, 13 and 15 of the PC Act. Therefore, the petitioner/accused in the criminal petition Nos. Crl. Pet. No.635/2012, Crl. Pet. No.636/2012 and Crl. Pet. No.638/2012, cannot be charged and forced to face Trial as accused. 15. Accordingly, for the reason recorded hereinabove, the criminal petitions stand allowed by setting aside the impugned order dated 12.09.2012 passed by learned Special Judge, Assam in Special Case No. 5/2011 arising out of CID P.S. Case No. 02/2008, so far same relates the petitioners.