ORDER
Barkat Ali Zaidi, J.
1. The applicant in this proceeding under Section 482 Cr.P.C, is an Arms Clerk in the Ria Bareilly Collectorate. He is said to have demanded Rs. 2400/- from the Opp. Party No. 2 as bribe for grant of arms licence, in which connection he is sought to be prosecuted under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘Act’).
2. At the commencement of Trial before the Special Judge, the applicant raised a plea that he could not be prosecuted without a sanction being obtained from the District Magistrate, who was his appointing authority and since no sanction has been obtained, the prosecution could not proceed. The learned Judge overruled this objection and held by his order dated 9-12-1998 that no sanction was necessary for the prosecution of the applicant.
3. The only question canvassed at the bar and arising in the petition, therefore, is whether sanction for prosecution of the petitioner was necessary or not?
4. Heard Sri P. Chakravarty, learned Counsel for the applicant, Addl. Government Advocate for the State and Sri S. N. Siddiqui for the Opp. Party No. 2.
5. Counsel for the applicant has relied on the case of R.S. Nayak v. A.R. Antulay , in support of his contention that sanction was necessary before proceeding against the petitioner while the counsel for the Opp. Party No. 2 has referred to the case of Lalu Prasad alias Lalu Prasad Yadav v. State of Bihar through (sic) patna, and has argued on the basis of the same that sanction would not be required for prosecution; under Section 7 of the Act.
6. Before we proceed to discuss the case law, referred to above by counsel for the parties, it would be appropriate to quote Sec-tion-7 of the Act, which provides for the prosecution of public servant and which is as follows:
Public servant taking gratification other than legal remuneration in respect of an official act:
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing, or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Explanation (a) “Expecting to be a public servant”. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) “Gratification”. The word gratification is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) “Legal remuneration”. The words “Legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organization, which he serves, to accept.
(d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and, thus, induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this Section.
7. The counsel for the Opp. Party No. 2 has referred to the following observations contained in paragraph No. 10 of the report in the case of Lalu Prasad (supra) relied upon by him.
It may be noted that Section 197 of the Code and Section 19 of the Act operate in conceptually different fields. In cases covered under the Act, in respect of public servants the sanction is of automatic nature and thus factual aspects are of little or no consequence. Conversely, in a case relatable to Section 197 of the Code, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus with the discharge of duties. Position is not so in case of Section 19 of the Act.
It has been argued on the basis of this observation that it should be inferred that sanction is not required because demanding bribe is not a part of the duty of a public servant. The interpretation sought to be placed on the aforesaid observation by the counsel for the Opp. Party No. 2 is unacceptable, not only because the purpose and purport of these observations is not what the counsel suggests but also because it could not have been intended that no sanction was necessary for prosecution under the Act because the Bench which decided the earlier case of A.R. Antulay AIR 1984 SC 684 (supra) was a five Judge Bench and this case of Lalu Prasad (supra) was decided by a two a Judge Bench. If they wanted to say that sanction was not required, they would have suggested the Constitution of a Larger Bench to over rule the view taken in the case of A.R. Antuley (supra) and they would not have laid down a law suggesting that no sanction was required for prosecution under Section 7 of the Act.
8. In the case of A.R. Antuley, five Judges Bench clearly held that a valid sanction is pre-requisite to the taking of cognizance under the aforesaid Act. This is what said; “Existence thus of a valid sanction is a prerequisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the Court. Therefore, when the Court is called upon to take cognizance of such offence it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant.”
9. Again it was observed as follows:
If it is contemplated to prosecute public servant who has committed such offence, when the Court is called upon to take cognizance of the offence, a sanction ought to be available otherwise, the Court would have no jurisdiction to take cognizance of the offence. A trial without a valid sanction where one is necessary under Section 6 has been held to be a trial without jurisdiction by the Court.
10. The case of A.R. Antulay AIR 1984 SC 684 (supra) related to the old Act but the provisions for the New Act are the same and there is no suggestion that because of any changes in the new Act the interpretation would be different.
11. The argument of the counsel for the Opp. Party No. 2 was that demanding of bribe was not a part of the function of the public servant and Section 7 of the Act provides for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person and since demand of bribe was not part of the official functions, no sanction was required. It is to be noticed that the words rendering or attempting to render are also included in Section 7 of the Act and any attempt, therefore, to demand of bribe must be deemed to be covered within the parameter of Section 7 of the Act. If this argument advanced by the counsel for the Opp. Party No. 2 were to be accepted, the very purpose of the Prevention of Corruption Act which is to inhibit bribery and corruption would be frustrated and such a construction cannot be deemed to be intended by the Legislature
12. If any public servant demands bribe, he demands the same because he is a public servant and wants to show favour or disfavour in the discharge of his official duty and, therefore, it cannot be said that demanding bribe by an official would not be covered under Section 7 of the Act because demanding of bribe is not a part of his official function.
13. The contention propounded by the counsel for the Opp. Party No. 2 cannot, therefore, prevail and the view taken by the Anti- Corruption Judge in the impugned order is not correct and needs to be set aside.
14. In the result, the petition is allowed and the impugned order dated 18-11-2006 (Case No. 2 of 2005) passed by the Addl. Sessions Judge (Court No. IV) Anti Corruption Judge, Raibareilly to the effect that no sanction is required for the prosecution of the petitioner, is set aside, and the prosecution of the petitioner will not proceed without obtaining a valid sanction.