Sant Ram vs State Of ...
2023 Latest Caselaw 25087 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:59732-DB
 
Court No. - 9
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 10901 of 2020
 

 
Petitioner :- Sant Ram
 
Respondent :- State Of U.P.Thru.Prin.Secy.P.W.D.And Ors.
 
Counsel for Petitioner :- Ratnesh Chandra,Vaibhav Krishna
 
Counsel for Respondent :- G.A.,A.S.G.,Ashok Shukla,Shiv P. Shukla,Waseeq Uddin Ahmed
 

 
Hon'ble Rajan Roy,J.

Hon'ble Ajai Kumar Srivastava-I,J.

1. Heard Sri Ratnesh Chandra, learned counsel for the petitioner and Sri Shiv P. Shukla, learned counsel for CBI.

2. This petition was filed on 08.07.2020, seeking the following relief :-

"Issue a writ, order or direction in the nature of certiorari quashing the impugned prosecution sanction dated 25.06.2020 passed by opposite party no.1"

3. On 29.08.2023, we had passed the following order :-

"This is the petition challenging sanction for criminal prosecution.

A Division Bench of this Court in the case of Rajeev Kumar Singh vs. State of U.P. and others passed in Writ Petition No.25382 (M/B) of 2020 on 21.01.2021 has already held that a petition at pre-cognizance stage is not maintainable.

Counsel for the petitioner seeks time to prepare the case.

List this case on 04.09.2023 amongst first ten cases of the day.

Only to facilitate consideration of his arguments, interim order is extended till 04.09.2023, with the caveat that it shall not be extended on the said date unless the matter is heard on the question of maintainability of the writ petition."

4. Today, learned counsel for the petitioner sought to persuade us about maintainability of the petition on the ground that an estimate with regard to the construction of the stadium was granted by the Chief Executive Officer concerned on 14.03.2011, whereas the petitioner was posted at NOIDA only on 04.06.2011. Secondly, as regards the allegation that joint ventures were not permissible in NOIDA, he submitted that they were impermissible in CPWD, but were permissible in NOIDA. Thirdly, allegation that payments were given to the joint venture firm/company is not sustainable.

5. We are afraid these submissions are all on merits of the matter, with which we are not concerned as it is the maintainability of the petition which is in-question.

6. Sri Shiv P. Shukla, learned counsel for CBI informed that a charge-sheet has already been prepared but it has not been filed on account of the interim order operating herein, learned counsel for the petitioner has fairly submitted that, in fact, the charge sheet has already been filed and also that the petitioner has already applied for grant of anticipatory bail. We take note of the aforesaid fact.

7. The connected petition bearing No.887 of 2020 has already been withdrawn by the co-accused with liberty to approach the trial Court.

8. The question as to the maintainability of a petition under Article 226 of the Constitution of India at the per-cognizance stage in view of various Supreme Court decisions was considered by a coordinate Bench and a decision was rendered on 21.01.2021 i.e. in the case of Rajeev Kumar Singh vs. State of U.P. and others : Writ Petition No.25382 (M/B) of 2020 holding that a petition at such stage was not maintainable. The coordinate Bench of this Court in the case of Rajeev Kumar Singh (supra) has already held as under :-

"Before proceeding further we would like to make a mention that the only question which arises before us is validity of sanction. Now, can it be seen by us at this stage or it is to be seen by the Trial Court at the appropriate stage, is the moot point. A coordinate Bench of this Court in the case of Satya Pal Singh & ors. v. State of U.P. & ors. (Writ Petition No. 7806 (MB) of 2009) and connected matters had the occasion to consider the question as to whether a proposed accused under Article 226 of the Constitution of India can challenge the grant of sanction to prosecute him before institution of the prosecution in a competent Court. Considering the relevant provisions of law and various provisions of this Court and the Supreme Court of India the Division Bench concluded as under :

"38. In view of above discussion, this Court is of the firm view that

(1) grant of sanction order to prosecute the accused under the statute is not an administrative action of the competent authority. It would be a statutory function of the competent authority and subject to challenge in the proceedings launched against the accused in accordance with the procedure established under law.

(2) An accused cannot be allowed to challenge the order granting sanction to prosecute at pre-cognizance stage. As the same has no locus as held in Smt. Nagawwa vs Veeranna Shivallngappa Konjalgi and others; MANU/SC/0173/1976; (1976) 3 SCC 736 and Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters Private Limited and another; MANU/SC/8476/2008 : (2009) 2 SCC 363.

39. In view of above, this bunch of writ petition is not maintainable and the same are liable to be dismissed. The interim orders passed in the writ petitions are also liable to be vacated, therefore, the interim orders passed in the writ petitions stand vacated.

40. Accordingly, all the writ petitions are dismissed."

It categorically held that such accused cannot be allowed to challenge the order granting sanction to prosecute at pre-cognizance stage.

When the above quoted decision was rendered, there was no provision for grant of anticipatory bail in the State of U.P., however, now there is such a provision.

We may also refer to a decision of the Supreme Court of India reported in (2012) 1 SCC 532, Dinesh Kumar v. Airport Authority of India wherein it has held as under :

"8. The provisions contained in Sections 19(1), (2), (3) and (4) of the P.C. Act came up for consideration before this Court in Parkash Singh Badal (2007) 1 SCC 1. In paras 47 and 48 of the judgment, the Court held as follows (SCC p. 37) :

"47: The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalised guidelines in that regard.

48: The sanction in the instant case related to the offences relatable to the 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."

9. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal (supra) 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 (supra), 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 (supra), the challenge to which can always be raised in the course of trial."

We may also refer to another decision of the Supreme Court in the case of State of M.P. v. Dr. Krishna Chandra Saksena, (1996) 11 SCC 439 :-

"8..................... sanctioning authority was satisfied after complete and conscious scrutiny of the records produced in respect of the allegation against the accused. Now the question whether all the relevant evidence which would have tilted the balance in favour of the accused if it was considered by the sanctioning authority before granting sanction and which was actually left out of consideration could be examined only at the stage of trial when the sanctioning authority comes forward as a prosecution witness to support the sanction order if challenged during the trial. As that stage was not reached the prosecution could not have been quashed at the very inception on the supposition that all relevant documents were not considered by the sanctioning authority while granting the impugned sanction."

In view of the above decisions, we have absolutely no doubt that this petition challenging the order dated 16.12.2019 sanctioning prosecution against the petitioner is not maintainable and is not liable to be entertained.................."

9. The legal position being clear as is evident from the quotation hereinabove, as, there is a sanction order and it is not a case where there is no sanction order, therefore, this petition under Article 226 of the Constitution of India, on the ground of non-application of mind while granting sanction, is not maintainable under Article 226 of the Constitution of India. It is open for the petitioner to raise this plea before the trial Court at the appropriate stage.

10. The petitioner has already applied for grant of anticipatory bail, he may pursue the same as per law.

11. Subject to the above, the writ petition is dismissed.

12. The interim order is discharged but without prejudice to the rights of the petitioner to avail the remedy of anticipatory bail uninfluenced by the dismissal of this petition as the dismissal is not on merits but on the ground of maintainability.

Order Date :- 18.9.2023

A.Dewal