Upendra Yadav And 2 Others vs State Of U.P. & Another
2016 Latest Caselaw 2383 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 36
 

 
Case :- APPLICATION U/S 482 No. - 23574 of 2015
 

 
Applicant :- Upendra Yadav And 2 Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Satya Srivastava
 
Counsel for Opposite Party :- Govt. Advocate, Ramesh Kumar Pandey
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Vinod Kumar Srivastava-III, J.

(Delivered by Hon'ble Ramesh Sinha, J)

1. Heard Ms. Satya Srivastava, learned counsel for the applicants, Shri Ramesh Kumar Pandey, learned counsel for opposite party No. 2 and Shri S.A. Murtaza, learned AGA for the State.

2. This application under section 482 Cr.P.C. has been filed with the prayer to quash the impugned order dated 24.7.2015 passed by learned Special Judge (E.C.Act)/Additional Sessions Judge, Ghaziabad in Misc. Application No. 124 of 2015 moved by opposite party No. 2 under section 156(3) Cr.P.C. against the applicants for offence under sections 452, 323, 354, 504, 506, 392 IPC and 7, 8 and 13 Prevention of Corruption Act, PS Sahibabad, district Ghaziabad.

3. Brief facts of the case are that opposite party No. 2 moved an application under section 156(3) Cr.P.C. on 19.02.2015 before the Special Judge, (CBI), Ghaziabad alleging therein that the applicant No. 3 alongwith co-accused namely Pushpendra entered into his house and assaulted him with kicks and fists and when his wife interrupted, the co-accused Pushpendra outraged her modesty by removing her Dupatta. It has been further alleged that at police station Sahibabad, the applicant No. 1 demanded Rs. 1,00,000/-(rupees one lacs) to set him free and he was released when his relatives gave Rs. 50,000/- (rupees fifty thousands) to applicant No. 1.

4. The said application of opposite party No. 2 was allowed by the Special Judge (E.C. Act), Ghaziabad vide order dated 24.7.2015, by which he directed that the concerned police station to register a case against the applicants and investigate the same.

5. Aggrieved by the same, the applicants have preferred the present 482 Cr.P.C. Application.

6. It has been argued by learned counsel for the applicants that the applicants are the police personnel and an FIR was lodged against opposite party No. 2 by applicant No. 2 under section 13 of the Gambling Act and on 1.2.2015, opposite party No. 2 with an allegation that while the applicants were on patrolling duty on 1.2.2015 at 7.20 p.m. on an information received by them that opposite party No. 2 was involved in an illegal act of betting (Satta), the police team reached the place of occurrence and found that opposite party No. 2 was indulged in accepting bets, and thereafter, arrested the opposite party No. 2 and was kept in lock-up at police station Sahibabad for few hours and he was released on personal bond on the same day i.e. 01.02.2015 at 10.30 p.m. The opposite party No. 2 being annoyed from the applicants with a malafide intention moved the present application u/s 156(3) Cr.P.C. for registering FIR against him on false and frivolous allegation.

7. It has further been submitted by the learned counsel for the applicants that the opposite party No. 2 is a private person and no valid sanction for their prosecution has been obtained by opposite party No. 2 from the competent authority and the same was also not placed before the court concerned while filing application under section 156(3) Cr.P.C., which has been allowed by the court below. Learned counsel for the applicants argued that since the applicants are public servants, a private complaint lodged against them without being accompanied with a valid sanction order from the competent authority could not have been entertained by the learned Judge.

8. In support of her contention, learned counsel for the applicants has relied upon a judgement of the Apex Court in the case of Anil Kumar and others vs. M.K. Aiyappa and another, reported in (2013) 10 SCC 705, in which it has been held that power to order investigation under section 156 (3) Cr.P.C. can be exercised as a pre-cognizance stage yet sanction from the competent authority is pre-requisite in respect of a public servant concerning the alleged offence said to have been committed in discharge of his official duty.

9. It is submitted that the case of the applicants is squarely covered by the judgment of the Apex Court in the case of Anil Kumar (Supra). Hence, the impugned order passed by the Special Judge (E.C. Act) Ghaziabad is liable to be quashed by this Court.

10. Learned Additional Government Advocate as well as the counsel appearing for opposite party No. 2 though have tried to justify the impugned order passed by the court below, but they admitted the fact that no valid sanction has been obtained from the competent authority for the prosecution of the applicants nor the same was filed along with the application under section 156 (3) Cr.P.C. before the court below.

11. Considering the submissions advanced by the learned counsel for the parties, it appears from the record that opposite party No. 2, Zahid was involved in Case Crime No. 169 of 2015, which was registered against him under section 13 of Gambling Act and he was released on personal bond by the police on 1.2.2015, and thereafter, it appears that he moved the application under section 156 (3) Cr.P.C. on 19.2.2015 for registering a case against the applicants, who are the police personnel, which has been allowed by the Special Judge (E.C. Act) Ghaziabad on 24.7.2015, who directed the concerned Station Officer to register a case against the applicants and investigate the same, as the applicants are the public servants and a valid sanction is required for their prosecution and the same has not been granted by the competent authority. The registration of a case and investigation of the same in pursuance of an application under section 156 (3) Cr.P.C., which has been allowed by the court below is not sustainable in the eyes of law in view of the judgment of the Apex Court in the case of Anil Kumar (Supra), in which the Apex Court has held that sanction under section 19 (1) of the Prevention of Corruption Act, 1988 is a pre-condition for ordering the investigation against public servant under section 156 (3) Cr.P.C. even at a pre-cognizance stage. Investigation under section 156 (3) Cr.P.C. cannot be ordered without previous sanction under section 19 (1) of the said Act. The said preposition of law was also enunciated by the Apex Court in the case of Maksud Saiyed vs. State of Gujarat reported in 2008 (5) SCC 668, which was followed by the Apex Court in the case of Anil Kumar (Supra).

12. Thus, in the instant case, no valid sanction was obtained from the competent authority against the applicants an application under section 156(3) Cr.P.C. moved by opposite party No. 2, hence the impugned order passed by the Special Judge allowing the said application and directing the case be registered against the applicants and be investigated is absolutely illegal and liable to be quashed, which is accordingly, quashed.

13. Accordingly, the application under section 482 Cr.P.C. stands allowed.

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

Order Date :- 9.5.2016

Sumaira