Allahabad High Court
Manoj Kumar vs State Of U.P.Thru.Addl.Chief ... on 19 March, 2021
Bench: Attau Rahman Masoodi, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 9
Case :- MISC. BENCH No. - 7752 of 2021
Petitioner :- Manoj Kumar
Respondent :- State Of U.P.Thru.Addl.Chief Secy.Dept Of Finance,Lko.& Ors.
Counsel for Petitioner :- Shamshad Ahmad Khan
Counsel for Respondent :- G.A.
Hon'ble Attau Rahman Masoodi,J.
Hon'ble Alok Mathur,J.
Heard Sri Jyotindra Misra, learned Senior Advocate assisted by Sri Shamshad Ahmad Khan, Advocate for the petitioner as well as learned A.G.A. for the State.
This petition has been filed for a writ of certiorari quashing the impugned order No.3053/21(34)/2007/Khand-3/Ko.Ni./Stha. dated 26.2.2021 passed by opposite party No2.
Learned A.G.A. has submitted that the petitioner, against the order impugned herein granting sanction for prosecution, has a remedy before appropriate court by moving appropriate application.In support of his contentions he has relied upon the judgment of Hon'ble Madras High Court in the case of K. Sivanandam vs State, Rep. By The Inspector Of decided on 26 October, 2006 wherein it has been held as under:-
"13. As already noticed, the sanction order is not a mere irregularity, error or omission. The first sanction order dated 2.1.95 was issued by an authority that was not a competent authority to have issued such order under the Rules. The second sanction order dated 7.9.97 was also issued by an authority, which was not competent to issue the same under the relevant rules, apart from the fact that the same was issued retrospectively w.e.f. 14.9.94, which is bad. The cognizance was taken by the Special Judge on 29.5.95. Therefore, when the Special Judge took cognizance on 29.5.95, there was no sanction order under the law authorising him to take cognizance. This is a fundamental error which invalidates the cognizance as without jurisdiction."
In case of Parkash Singh Badal -Vrs.- State of Punjab reported in A.I.R. 2007 S.C. 1274, it is held as follows:-
"29.The effect of sub-sections (3) and (4) ofsection 19of the Act are of considerable significance. In sub-section (3), the stress is on "failure of justice" and that too "in the opinion of the Court". In sub-section (4), the stress is on raising the plea at the appropriate time.
Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is considered not fatal unless it has resulted in failure of justice or has been occasioned thereby.Section 19(1)is a matter of procedure and does not go to root of jurisdiction as observed in para 95 of the Narasimha Rao's case [(1998) 4 SCC 626] . Sub-section (3)(c) ofsection 19reduces the rigour of prohibition. In section 6(2) of the Old Act (section 19(2)of the Act) question relates to doubt about authority to grant sanction and not whether sanction is necessary.
xxx xxx xxx xxx
48. The sanction in the instant case related to offences relatable to Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial."
In case of Dinesh Kumar -Vrs.- Chairman, Airport Authority of India reported in (2012) 1 Supreme Court Cases 532, it is held as follows:-
"9. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal (2007) 1 SCC 1 expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal : (2007) 1 SCC 1, this Court referred to invalidity of sanction on account of non-application of mind.
10. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind - a category carved out by this Court in Parkash Singh Badal : (2007) 1 SCC 1, the challenge towhich can always be raised in the course of trial."
In case of Director, C.B.I. -Vrs.- Ashok Kumar Aswal reported in (2015) 16 Supreme Court Cases 163, it is held as follows:-
"15. All the above apart, time and again, this Court has laid down that the validity of a sanction order, if one exists, has to be tested on the touchstone of the prejudice to the accused which is essentially a question of fact and, therefore, should be left to be determined in the course of the trial and not in the exercise of jurisdiction either under section 482of the Code of Criminal Procedure, 1973 or in a proceeding under Article 226/227 of the Constitution."
In view of above, there is no good ground urged before this Court for interfering under Article 226 of the Constitution of India, for which the remedy may be available to the petitioner to avail the remedy before the competent court.
With liberty aforesaid the petition stands disposed of.
Order Date :- 19.3.2021
RKM.
