Akhilesh Kumar Gupta vs State Of U.P. And Another
2017 Latest Caselaw 1463 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 29                                                                 A.F.R.                                 
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 9822 of 2017
 

 
Petitioner :- Akhilesh Kumar Gupta
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Raj Kumar Kesari
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Tarun Agarwala,J.

Hon'ble Rajul Bhargava,J.

Supplementary affidavit filed by learned counsel for the petitioner is taken on record.

We have heard Sri Raj Kumar Kesari, learned counsel for the petitioner as well as learned A.G.A. appearing for the State and perused the material placed on record.

The petitioner is a Tehsildar. A First Information Report dated 2nd December, 2014 was lodged and after due investigation sanction was given by the competent authority on 27th April, 2016 to prosecute the petitioner in Case Crime No.1005 of 2014 under Section 420, 120-B I.P.C. read with Sections 7, 8 and 13 of the Prevention of Corruption Act, Police Station Sadabad, District Hathras. Based on the said sanction order, the trial court took cognizance and issued summons on 3rd May, 2016. The petitioner being aggrieved filed Criminal Misc. Application No.37383 of 2016 under Section 482 Cr.P.C. praying for quashing of charge sheet dated 3rd May, 2016. The application under Section 482 Cr.P.C. was rejected by the Court by an order dated 6.12.2016. The petitioner was aware at that stage that sanction was granted by the competent court on 27th April, 2016. After the dismissal of application under Section 482 Cr.P.C., the petitioner has now filed present writ petition under Article 226 of the Constitution of India praying for quashing of the sanction order dated 27th April,2016 issued by the competent authority, namely, Chairman, Board of Revenue, Uttar Pradesh, Lucknow. The short submission raised by the learned counsel for the petitioner is that no sanction has been granted by the competent authority under Section 19 of The Prevention of Corruption Act for prosecution of the petitioner. It was contended that in the absence of sanction granted under Section 19 of the Act, petitioner could not be summoned to face trial. It was urged that sanction order dated 27th April, 2016 has been issued under Section 197 Cr.P.C. whereas the Prevention of Corruption Act specifically requires a sanction order to be issued under the said Act itself.

Having heard learned counsel for the petitioner as well as learned A.G.A. for the State, we are of the opinion that the contention raised by learned counsel for the petitioner is misconceived. For facility, the provisions of Section 19 of The Prevention of Corruption Act as well as Section 197 Cr.P.C. are extracted hereunder:-

"Section 19 in The Prevention of Corruption Act, 1988

19. Previous sanction necessary for prosecution.

(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation.--For the purposes of this section,--

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.

Section 197 in The Code Of Criminal Procedure, 1973

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.

Explanation--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166-A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376, Section 376-A, Section 376-C, Section 376-D or Section 509 of the Indian Penal Code (45 of 1860).

(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."

Section 19 of The Prevention of Corruption Act no doubt cast a complete bar on the power of the court to take cognizance of an offence punishable under Sections 7,10,11,13 and 15 of the Act alleged to have been committed by a public servant except with the previous sanction of competent authority enumerated under clause (a) to (c) to sub-section (1) of Section 19 of the Act. If the sub section is read as a whole it will clearly show that the sanction for prosecution has to be granted with respect to a specific accused and only after sanction has been granted,the court gets competence to take cognizance of the offence punishable under the provisions of the Act. It is apparently clear from the above provision that court cannot take cognizance of the offence mentioned therein without sanction from appropriate authority. On this aspect our view is fortified by a decision of Hon'ble Supreme Court rendered in Dilawar Singh Versus Parvinder Singh alias Iqbal Singh and another (2005) 12 Supreme Court Cases 709.

In the instant case undoubtedly the sanction has been given by the competent authority, namely, Chairman, Board of Revenue, Uttar Pradesh, Lucknow. The competent authority while passing sanctioning order for the prosecution of the petitioner has specifically mentioned Sections 7, 8 and 13 of The Prevention of Corruption Act in addition to Sections 420 and 120-B I.P.C. The sanctioning authority, however, has used Section 197 Cr.P.C. in its order. This Section is being harped upon by the learned counsel for the petitioner as being passed under Section 197 Cr.P.C. and not an order passed under Section 19 of The Prevention of Corruption Act. In our view, mere mention of Section 197 Cr.P.C. and no mention of Section 19 of The Prevention of Corruption Act would not make any material difference. What is material is that there has to be an order passed by the competent authority sanctioning prosecution under the relevant provisions of the Act which in the instant case has been done. The main feature that has to be considered is an order of the competent authority sanctioning prosecution. In our opinion, Section 197 Cr.P.C. has inadvertently been used. We are further of the opinion that even if Section 197 Cr.P.C. or Section 19 of The Prevention of Corruption Act is not mentioned in the sanctioning order, it would not make any difference. Further we are of the opinion that wrong mentioning of Section 197 Cr.P.C. does not cause any prejudice or failure of justice to any party including the petitioner.

In the end we would also observe that once the petitioner has challenged the summoning order questioning the veracity of the charge sheet dated 3rd May, 2016 by filing an application under Section 482 Cr.P.C. which was dismissed on merits with certain directions, it was no longer open to the petitioner to file the writ petition thereafter questioning the veracity and legality of the sanctioning order.

We find that the Court while dismissing the application under Section 482 Cr.P.C. has issued directions to the petitioner to surrender before the trial court which he has not done till date in spite of lapse of six months. We are of the opinion that by approaching writ Court, the petitioner has misused the process of the Court.

In the light of the aforesaid, the writ petition is dismissed summarily.

Order Date :- 31.5.2017

MN/-

(Rajul Bhargava,J.) (Tarun Agarwala,J.)