Allahabad High Court
Basudev Yadav vs State Of U.P. And Another on 25 October, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:171552 Court No. - 80 Case :- APPLICATION U/S 482 No. - 32599 of 2024 Applicant :- Basudev Yadav Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Raghuvansh Misra Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. Heard Sri Raghuvansh Misra, through video conferencing and Sri Sudhir Kumar Yadav, Advocate holding brief of Sri Raghuvansh Misra who is present in Court, learned counsels for the applicant, Sri Manish Goel, learned Additional Advocate General/Senior Advocate assisted by Sri J.K. Upadhyay, learned counsels for the State and perused the record.
2. This application u/s 482 Cr.P.C. has been filed by the applicant Basudev Yadav with the prayer to quash the cognizance order dated 18.01.2024 and summoning order dated 21.02.2024 as well as all consequential criminal proceedings of Session Sessions Trial No. 59 of 2024, State Vs. Basudev Yadav arising out of Case Crime No. 1 of 2021, under Section 13(1)(b)/13(2) of the Prevention of Corruption Act, registered at P.S.- Prayagraj Sector (Vigilance), District Prayagraj, pending in the court of Additional Sessions Judge/Special Judge (Prevention of Corruption Act), Court No.2, Varanasi and with the further prayer to stay the further proceedings as well as the aforesaid orders of the aforesaid case, during pendency of the present application.
3. The facts of the case are that a First Information Report was lodged on 06.04.2021 by Sunil Kumar against the applicant under Sections 13(1)(b)/13(2) of the Prevention of Corruption Act. The matter was taken up by the concerned authority and a sanction dated 29.12.2023 vide No. 2064/15-6-2023-4(7)/2023, Lucknow was granted for prosecution under Section 197 Cr.P.C. The matter after investigation ended in a charge sheet No. 01 dated 08.01.2024 under Section 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988 on which vide order dated 18.01.2024 the court concerned took cognizance upon the said charge sheet and summoned the accused person. In the meantime, the order dated 29.12.2023 was challenged in a writ petition before this Court being Crl. Misc. Writ Petition No. 960 of 2024 (Basdev Yadav Vs. State of U.P. and 2 others) and a Division Bench of this Court allowed the said writ petition vide order dated 02.05.2024 and the order impugned therein dated 29.12.2023 along with amended order by corrigendum letter dated 18.04.2024 was set aside and a liberty was granted to the competent authority to pass fresh order in accordance with law, preferably within a period of two months from the date of order. The said order reads as under:
"1. Heard Sri Gajendra Pratap, Senior Advocate assisted by Sri K.S. Kushwaha, learned counsel for the petitioner, Sri P.C. Srivastava, learned Additional Advocate General assisted by Sri J.K. Upadhyay, learned A.G.A. for the State and perused the record.
2. The instant writ petition has been filed by the petitioner for the following relief:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the sanctioned order dated 29.12.2023 passed by respondent no. 1 under Section 197 of Cr.P.C. for taking cognizance and prosecuting the petitioner in Case Crime No. 1/2021 under Section 13(1)(b) read with Section 13(2) Prevention of Corruption Act, 1988 (Annexure No. 13 to the writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to take any further action including coercive action against the petitioner in garb of sanctioned order dated 29.12.2023.
(iii). Issue any other and appropriate writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, otherwise the petitioner will suffer irreparable loss and injury.
(iv) Award cost of petition to the petitioner.
3. Learned counsel for the petitioner has submitted that a vigilance inquiry was ordered against the petitioner in relation to amassing of wealth disproportionate to the known source of his income while he was posted as Director of Education, Secondary.
4. Pursuant to the said order, a discreet enquiry was made by the competent authority. After conclusion of the discreet enquiry, a regular case was registered against the petitioner vide Case Crime No. 1/2021, under Section 13(1) (b) and 13(2) of Prevention of Corruption Act. During the course of said investigation on the basis of oral and documentary evidence, it was concluded that during the check period between 1.9.1978 to 31.3.2014, disproportionate assets to the known source of his income has been amassed, which act is punishable under Section 13(1) (b) and 13(2) of Prevention of Corruption Act, 1988. Consequent thereto, the relevant evidence and material collected during the course of investigation was submitted before the competent authority to accord sanction for the prosecution of the petitioner under Section 13(1) (b) and 13(2) of Prevention of Corruption Act.
5. The competent authority after carefully going through the relevant material and evidence collected during the course of investigation, granted sanction for the prosecution of the petitioner under the Prevention of Corruption Act but under Section 197 of the Criminal Procedure Code by the impugned order dated 29.12.2023 passed by the Special Secretary, Government of Uttar Pradesh, Lucknow.
6. Being aggrieved and dissatisfied by the said order according sanction under Section 197 of the Criminal Procedure Code, the present writ petition has been preferred by the petitioner.
7. Learned counsel for the petitioner has submitted that from the careful perusal of the impugned order dated 29.12.2023 passed by the Special Secretary, it is evident that recommendation for prosecuting the petitioner under Section 13(1) (b) and 13(2) of Prevention of Corruption Act has been made, however instead of according sanction for prosecuting the petitioner under Section 19 of the Prevention of Corruption Act, the requisite sanction has been accorded under Section 197 of the Criminal Procedure Code, which is bad in law being based on complete non application of mind and, as such, the impugned order passed by the Special Secretary, Government of Uttar Pradesh, Lucknow is bad in law and liable to be set aside.
8. Per contra, learned Additional Advocate General by filing a counter affidavit/supplementary counter affidavit, has now come up with the case that while according sanction for the prosecution of the petitioner under Section 13(1) (b) and 13(2) of Prevention of Corruption Act, because of the typographical error in the order dated 29.12.2023 requisite sanction u/s 19 of the P.C. Act for prosecuting the petitioner under Section 13(1) (b) and 13(2) the Prevention of Corruption Act was inadvertently not mentioned in the order, as such the order dated 29.12.2023 according sanction for prosecuting the petitioner under Section 13(1) (b) and 13(2) of Prevention of Corruption Act may not only be read to be granted under Section 197 of the Criminal Procedure Act, but also under Section 19 of the Prevention of Corruption Act and the impugned order dated 29.12.2023 be deemed to be amended to the said extent through corrigendum letter dated 18.4.2024. Meaning thereby that the sanction has not only been granted under Section 197 of the Criminal Procedure Code but also under Section 19 of the Prevention of Corruption Act and, as such, the impugned order is just, proper and legal and do not call for any interference by this Court.
9. Having considered the rival submissions made by the learned counsel for the parties and considering the material on record, we are of the opinion that the competent authority while according sanction vide impugned order dated 29.12.2023 has not applied its mind in right perspective and in a haste manner accorded sanction under Section 197 of the Criminal Procedure Code, however when the said order was challenged before this Court highlighting the said illegality just in order to fill up the lacuna and to justify the impugned order, a stand has been taken that on account of typographical error, sanction accorded under Section 19 of the Prevention of Corruption Act has not been typed out in the impugned order. Therefore, a corrigendum letter dated 18.4.2024 has been brought on record by means of a supplementary counter affidavit indicating therein that infact sanction was granted by the competent authority even under Section 19 of the Prevention of Corruption Act, however inadvertently the same could not be typed out and, as such a corrigendum letter dated 18.4.2024 is being issued indicating therein that sanction has not only been granted under Section 197 of the Criminal Procedure Code but also under Section 19 of the Prevention of Corruption Act and the impugned order be read accordingly. However from the perusal of the corrigendum letter dated 18.4.2024, it is evident that the said order has been passed without application of mind on the part of the sanctioning authority in a most routine and causal manner and just to fill up the lacuna.
10. It is well settled principle of law that grant of sanction is not a mere formality and the provisions in regard to grant of sanction must be observed with complete strictness and application of mind on the part of the sanctioning authority concerned on the basis of material placed before it. The Hon'ble Apex Court in the case of C.B.I. Vs. Ashok Kumar Aggarwal in Criminal Appeal No. 1838 of 2013 has categorically held that it is to be kept in mind that sanction lifts the bar for the prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act, which affords protection to the government servant against frivolous prosecution.
11. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty. The order according sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it and applied its mind and the said order does not suffer from the vice of total non application of mind as held by the Hon'ble Apex Court in several of its decisions, Gokulchand Dwarkadas Morarka v. King, AlR 1949 PC 82; Jaswant Singh v. State of Punjab, AIR 1958 SC 124; Mohd. Iqbal Ahmed v. State of A.P., AIR 1979 SC 677; State through Anti- Corruption Bureau, Govt. of Maharashtra v. Krishanchand Khushalchand Jagtiani, AIR 1996 SC 1910; State of Punjab v. Mohd Iqbal Bhatti, (2009) 17 SCC 92; Satyavir Singh Rathi, ACP v. State, AIR 2011 SC 1748; and State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119). However, when we test the impugned order passed by the sanctioning authority in light of the settled principle of law, we find that the impugned order dated 29.12.2023 was passed in a most mechanical manner granting sanction only under Section 197 of the Criminal Procedure Code for prosecuting the petitioner under Section 13(1) (b) and 13(2) of the Prevention of Corruption Act. However, subsequently, when the said order was challenged before this Court, then as an eye wash, a subsequent order dated 18.4.2024 has been passed stating therein that on account of typographical error, the said sanction accorded under Section 19 of the Prevention of Corruption Act could not be transcribed therefore, as a corrigendum, the said sanction order be also read to have been passed under Section 19 of the Prevention of Corruption Act, which in our opinion is completely based on non application of mind and is in the teeth of the settled principle of law laid down by the Hon'ble Apex Court as discussed above.
12. In view of the aforesaid foregoing discussions, we are of the opinion that the impugned order dated 29.12.2023 as sought to be amended by corrigendum letter dated 18.4.2024 cannot be sustained in the eye of law and is liable to be quashed outrightly by allowing the instant writ petition.
13. The present writ petition is accordingly allowed and the impugned order dated 29.12.2023 as sought to be amended by corrigendum letter dated 18.4.2024 passed by the Special Secretary, Government of Uttar Pradesh, Lucknow is set aside with the liberty to the competent authority to pass fresh order in accordance with law, preferably within a period of two months from the date of this order."
4. Subsequent to the decision of the writ petition, a fresh order of sanction dated 19th June, 2024 under Section 197 Cr.P.C. and Section 19 of the Prevention of Corruption Act has been passed by the competent authority, the same is stated to be again under challenge by the applicant before this Court through Crl. Misc. Writ Petition No. 11832 of 2024 (Basdev Yadav Vs State of U.P. and 2 others).
5. Learned counsel for the applicant submits that the limited prayer in the present matter is that since cognizance was taken on 18.01.2024 on the basis of an order of sanction dated 29.12.2023 which has been set aside along with an amendment through corrigendum letter dated 18.04.2024 by a Division Bench of this Court in a writ petition challenging the same vide order dated 02.05.2024 and now a fresh sanction under Section 197 Cr.P.C. and Section 19 of the Prevention of Corruption Act has been granted by the competent authority vide order dated 18.01.2024, the order taking cognizance be set aside and appropriate directions be issued to the court concerned to pass a fresh order in light of the fresh sanction order.
6. Learned Additional Advocate General does not dispute the factual position and also the position as per law as has been argued by learned counsel for the applicant.
7. In view of the facts of the matter, looking to the fact that the order of sanction dated 29.12.2023 passed under Section 197 Cr.P.C. subsequent to which cognizance was taken by the court concerned vide order dated 18.01.2024 has been set aside in a writ petition by a Division Bench of this Court vide order dated 29.12.2023 and a fresh sanction order under Section 197 Cr.P.C. and Section 19 of the Prevention of Corruption Act has been passed, the order taking cognizance dated 18.01.2024 is hereby set aside. The court concerned is directed to pass fresh order in view of subsequent developments in the matter within a period of 45 days from the date of production of certified copy of this order.
8. The applicant is directed to file the copy of this order within 10 days before the trial court concerned.
9. The application U/s 482 Cr.P.C. thus stands allowed to this extent.
Order Date :- 25.10.2024 M. ARIF (Samit Gopal, J.)