Arun Kumar Gupt vs State Of U.P. And Another
2016 Latest Caselaw 2153 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 36
 
Case :- APPLICATION U/S 482 No. - 3659 of 2014
 
Applicant :- Arun Kumar Gupt
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- P.K.Singh
 
Counsel for Opposite Party :- Govt. Advocate,Sanjai Mishra
 
Hon'ble Ramesh Sinha,J.

Hon'ble Vinod Kumar Srivastava-III,J.

(Delivered by Hon'ble Ramesh Sinha, J)

1. This application under Section 482, Cr.P.C. has been filed for quashing the proceedings of Special Case No. 02 of 2014 arising out of case crime No. 155 of 2012 under Section 7 Prevention of Corruption Act, police station Kotwali Nagar, district Bulandshahr pending before the District and Sessions Judge, Bulandshahr and also for quashing the summoning order dated 21.1.2014 passed by the Additional District and Sessions Judge, Court No. 6 Bulandshahar, whereby the protest petition filed by opposite party No. 2 has been allowed and in pursuance thereto the applicant has been summoned.

2. The brief facts of the case are that a first information report was lodged by opposite party No. 2 against the applicant on the basis of application under section 156 (3) Cr.P.C. on 12.3.2012, which was registered as Case Crime No. 155 of 2012 under section 7 of the Prevention of Corruption Act PS Kotwali Nagar, district Bulandshahr with an allegation that a mutation application on behalf of one Smt. Bhavani Devi, wife of Paan Singh with respect to house No. 432 Devi Pura Ist, Bulandshahr was pending in the Tax Department of Nagar Palika Parishad, Bulandshahr, which was filed on 21.8.2009, for which it is alleged that the applicant had demanded Rs. 2,000/- as illegal gratification from the said person for mutation. The investigation of the case was carried out, and thereafter, a final report was submitted on 4.9.2012. On 24.12.2013, a protest petition was filed by opposite party No. 2, which was allowed by Additional Sessions Judge, Court No. 6, Bulandshahar vide impugned order dated 21.1.2014 and the applicant has been summoned to face trial.

3. Aggrieved by the same, the applicant had preferred the present 482 Cr.P.C. application for quashing of the impugned summoning order dated 21.1.2014 and proceedings of Special Case No 02 of 2014 arising out of Case Crime No. 155 of 2012, under section 7 of Prevention of Corruption Act, PS Kotwali Nagar, district Budaun and all consequential proceedings arising thereof.

4. Heard Shri P.K. Singh, learned counsel for the applicant and Shri Imran Ullah, learned Additional Advocate General assisted by Shri R.K. Maurya, learned Additional Government Advocate for the State and perused the record of the case.

5. Shri Sanjay Mishra, learned counsel for the opposite party is not present though the matter has been taken up in the revised list.

6. It has been contended by the learned counsel for the applicant that the applicant is a senior officer of U.P. Palika Centralized (Administrative) Service and at the relevant point of time he was posted as Executive Officer Grade-I/Up Nagar Ayukt at Nagar Palika Parishad, Bulandshahr w.e.f. December, 2010 and has unblemished service record. He argued that prior to the applicant being posted as Executive Officer at Nagar Palika Parishad, Bulandshahar in the year, 2010 a mutation application on behalf of one Smt. Bhavani Devi, wife of Paan Singh was pending since 21.8.2009. The opposite party No. 2 came to the applicant along with his associates, who are Advocates, namely, Sri Dharmendra Goyal and Smt. Rekha Sharma and requested that the pending application of Smt. Bhavani Devi be decided on the same day by summoning the file. The aforesaid file was summoned by the applicant and the applicant came to know that on the said application, there was a report of Tax Superintendent to the effect that the required notices under section 147(2) of the Nagar Palika Act were irregularly dispatched by the concerned clerk and the statutory publication in the newspapers was also not done. Accordingly, the applicant informed the opposite party No. 2 that unless the formalities are completed, no orders can be passed. It is urged that when the opposite party No. 2 was informed about the same, he entered into hot altercation with the applicant and misbehaved with him by using filthy languages, for which the FIR was also lodged by the applicant on 3.1.2012.

7. He submitted that after 25 days of the aforesaid incident, the complainant/opposite party No. 2 moved an application on 27.1.2012 under section 156(3) Cr.P.C. before the District and Sessions Judge, Bulandshahar with an allegation that the applicant demanded Rs. 2,000/- for passing mutation orders on the application of Bhavani Devi referred to above and the applicant has misbehaved with the complainant/opposite party No. 2 and his associates, Sri Dharmendra Goyal and Smt. Rekha Sharma for non payment of illegal gratification demanded by the applicant. It was further submitted that on the aforesaid application, Sessions Judge, Bulandshahar passed an order on 3.3.2012 directing the SHO concerned to register a first information report and to investigate the matter on which the matter was investigated and a final report was submitted on 4.9.2012.

8. It is next contended that during the pendency of the aforesaid case, the applicant had visited civil court, Bulandshahr on 19.4.2012, on which date, the opposite party No. 2 as well as his associates Sri Dharmendra Goyal and Smt. Rekha Sharma again misbehaved and assaulted the applicant, for which a first information report was lodged on 19.4.2012 and after investigation, charge sheet was filed and opposite party No. 2 and his associates were enlarged on bail.

9. It is further contended that thereafter complainant/opposite party No. 2 filed a protest petition before the Additional District and Sessions Judge, Bulandshahr, which was not the competent court to entertain the said protest petition as the case was under the Prevention of Corruption Act and in spite of the same, the protest petition was allowed and final report filed by the investigating officer was rejected and the matter was referred to the Sessions Judge, Bulandshahr, who subsequently passed the summoning order.

10. He argued that during the course of all these proceedings, the mutation application of Smt. Bhavani Devi was also allowed. However, the learned Additional District and Sessions Judge, court No. 6, Bulandshahr without being the competent court rejected the final report, which is bad in the eyes of law.

11. He vehemently argued that no prior sanction has been obtained as required under section 19(1) of the Prevention of Corruption Act, 1988 for initiating proceedings against the applicant. Therefore, the entire proceedings stands vitiated and is liable to be quashed by this Court. In support of his arguments, he placed reliance upon a judgment of Hon'ble the Apex Court in the case of Manoranjan Prasad Choudhary vs. State of Bihar, reported in (2002) 10 SCC 688 and Anil Kumar and others vs. M.K. Aiyappa and another, reported in (2013) 10 SCC 705.

12. It was pointed out that no counter affidavit has been filed by opposite party No. 2 till date in the present case. Though, he is represented by his counsel who has also not appeared to contest the matter. Moreover, he was given time by this Court on 26.04.2016 to apprise this Court whether opposite party No. 2 has applied for and obtained sanction from the competent authority for prosecution of the applicant.

13. Shri Imran Ullah, learned Additional Advocate General has not disputed the proposition of law, as has been enunciated by Hon'ble the Apex Court in the case Manoranjan Prasad Choudhary vs. State of Bihar and Anil Kumar and others vs. M.K. Aiyappa (supra). He submitted that as the opposite party No. 2 is a private person, hence he was under an obligation to apply and obtain a valid sanction from the competent authority for prosecuting the applicant for the offence in question which he has not done. He also has not disputed the fact that the court, which allowed the protest petition was not the competent court dealing the Prevention of Corruption cases. Therefore, the order, which was passed by it, was also without jurisdiction.

14. Considering the submissions advanced by learned counsel for the parties, it appears from the record that the opposite party No. 2 is a private person and he without obtaining a prior sanction from the competent authority for the prosecution of the applicant, who is a public servant, has lodged the FIR against him. Moreover, the court, which has entertained the protest petition i.e. court of Additional District and Sessions Judge, court No. 6, Bulandshahr was not having jurisdiction to try the cases under the Prevention of Corruption Act and it has allowed the protest petition filed by opposite party 2 and rejected the final report and further he took cognizance of the offence and summoned the applicant for trial. Hence, the order taking cognizance and summoning the applicant by it itself is not sustainable in the eyes of law as there was no valid sanction for prosecution of the applicant from the competent authority. Thus, in view of the above and the law laid down by the Apex Court in the cases referred to above, the impugned order passed by the trial court is hereby set aside. Hence, the impugned summoning order as well as proceedings of the aforesaid case are hereby quashed.

15. Accordingly, the application stands allowed.

(Vinod Kumar Srivastava-III, J) (Ramesh Sinha,J.)

Order Date :- 3.5.2016

Sumaira