Allahabad High Court
Abhilash Kumar Srivastava vs State Through C.B.I. / Acb/ Lucknow on 15 July, 2022
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 27 Case :- CRIMINAL REVISION No. - 711 of 2019 Revisionist :- Abhilash Kumar Srivastava Opposite Party :- State Through C.B.I. / Acb/ Lucknow Counsel for Revisionist :- Kuldeep Srivastava,Sunit Kumar Counsel for Opposite Party :- A.S.G.,Shiv P. Shukla Hon'ble Rajeev Singh,J.
1. Heard Mr. I.B. Singh, learned Senior Advocate assisted by Mr. Sumit Kumar, learned counsel for the revisionist as well as Mr. Shiv P. Shukla, learned counsel for the opposite party and perused the record.
2. The present revision is filed against the order dated 23.05.2019 passed by Special Judge Anti-Corruption, C.B.I., (Central) Lucknow in Criminal Case No.1091 of 2017 (C.B.I. vs. Abhilash Kumar Srivastava) by which the application for discharge of the revisionist is rejected.
3. Learned counsel for the revisionist submitted that F.I.R. No. RC 0062014A0010 was lodged under Sections 120-B r/w 409, 420 & 471 I.P.C. and Sections 13(2) r/w 13(1)(d) of P.C. Act, Police Station A.C.B. C.B.I Lucknow, District Lucknow against unknown persons in pursuance of the order dated 31.01.2014 passed by this Court in Writ Petition No.12802 (M/B) of 2011.
4. Learned counsel for the revisionist submitted that after investigation, charge sheet dated 25.05.2015 was filed against eight persons namely Pradeep Kumar, the then In-charge Apar Mukhya Adhikari/Additional Executive Engineer, Buland Shahar, UP, Rajesh Kumar Malviya, the then In-charge Engineer, Zila Panchayat, Kushinagar, UP, Abhilash Kumar Srivastava (revisionist), the then Junior Engineer, Zila Panchayat, Kushinagar, UP and five other persons, under Sections 120 (B) r/w 409, 420, 467, 468, 471 & 201 I.P.C. and Sections 13(2) r/w 13(1)(d) of P.C. Act and cognizance was taken by the court below on 19.09.2015 without any sanction. He further submitted that the Investigating Officer, vide its letter No.2419/RC0062014A0010 dated 19.05.2015 and letter No. 2799/RC0062014A0010 dated 05.06.2015, sent to the State Government, asked for grant of sanction to prosecute Shri Pradeep Kumar, the then In-charge Apar Mukhya Adhikari, Shri Rajesh Kumar Malviya, In-charge Engineer and Shri Abhilash Kumar Srivastava (revisionist), Junior Engineer, but the sanction for prosecution was denied by the Principal Secretary, Department of Panchayati Raj, State of U.P. with the observation that on the basis of opinion of the Law Department, it is found that alleged allegation was for different facts, but the prosecution of sanction is prayed for some other facts. The aforesaid order dated 26.11.2015 passed by Principal Secretary, Department of Panchayati Raj, State of U.P., by which the request of prosecution sanction of the Investigating Agency against the aforesaid government servants was rejected, was placed before the court below by Pradeep Kumar and Rajesh Kumar Malviya with the request for dropping the proceeding against them as the sanction to prosecute them has been denied. Thereafter, Special Judge Anti Corruption C.B.I., (Central), Lucknow considered the Application No. B-47 of Pradeep Kumar and Application No. B-55 of Rajesh Kumar Malviya for dropping the proceeding and vide order dated 05.11.2016, on the basis of aforesaid letter of Principal Secretary, Department of Panchayati Raj, State of U.P., the criminal prosecution was dropped against Rajesh Kumar Malviya, In-charge Engineer and Pradeep Kumar, In-charge Apar Mukhya Adhikari. Thereafter, the order dated 05.11.2016 for dropping the proceeding in relation to Pradeep Kumar and Rajesh Kumar Malviya was challenged before this Court by the Investigating Agency in Criminal Revision No.171 of 2017 (Union of India through The S.P., C.B.I., Anti Corruption Branch vs. Pradeep Kumar and Another) and the aforesaid revision was dismissed vide order dated 06.07.2018 and the order dated 05.11.2016 has attained its finality.
5. Learned counsel for the revisionist submitted that the revisionist also challenged the entire proceeding of C.M.C. No.13 of 2015 (State through C.B.I. vs. Pradeep Kumar Jaiswal and Others) arising out of Case Crime No. RC No.0062014A0010 of 2014, under Sections 120B r/w 409, 420, 467, 468, 471 & 201 I.P.C. and Sections 13(2) r/w 13(1)(d) of P.C. Act, pending in the court of Special Judge, C.B.I., Lucknow in petition (u/s 482 Cr.P.C.) No.6365 of 2015 (Abhilash Kumar Srivastava vs. State of U.P. Thru. Prin. Secy. Home, Civil Sectt. & Ors.). The aforesaid petition was disposed of 12.04.2019 with the direction to the petitioner-revisionist to move discharge application before the court below and the same shall be considered and decided by the trial court. Thereafter, the application was moved before the court below seeking the parity of the co-accused Pradeep Kumar and Rajesh Kumar Malviya, but the application of revisionist was rejected on 23.05.2019 with the observation that revisionist is a Junior Engineer, therefore, sanction is not required for him.
6. Learned counsel for the revisionist also submitted that co-accused Rajesh Kumar Malviya is appointed along with the applicant on 27.07.2006 by way of common order and the name of Rajesh Kumar Malviya is at Serial No.23 and the name of the applicant is at Serial No.37, therefore, the learned court below committed error in rejecting the application of the applicant denying the parity with the other co-accused as the State Government denied the prosecution sanction. He further submitted that the allegation against the applicant and similarly situated other co-accused persons are related to official discharge of same duties and once the prosecution sanction is denied by the appointing authority, then the applicant also cannot be prosecuted for his same official discharge of duties.
7. Learned counsel for the revisionist also relied on the decision of Hon'ble Apex Court in the case of Inspector of Police and Another vs. Battenapatla Venkata Ratnam and Another (2015) 13 SCC 87 and submitted that the authority for sanction of prosecution is for protection from harassing of government officials and not to seal corrupt officials and also submitted that in case, the prosecution sanction is denied, then the government officials cannot be tried. He also submitted that the similarly situated persons have been discharge on the ground that the sanction to prosecute them was denied by State Government rejected by way of common order in which the name of applicant was also there. Therefore, kind indulgence of this Court is necessary and the order passed by the learned court below is liable to be set aside.
8. Learned Special Counsel for the C.B.I. vehemently denied the submissions of learned counsel for the revisionist and submitted that there is no illegality in the order passed by the learned court below rejecting his discharge application and he also submitted that prosecution sanction was denied by the Principal Secretary, Department of Panchayati Raj, under Section 19 of P.C. Act not for under Section 197 of Cr.P.C., but he does not dispute this fact that co-accused Pradeep Kumar, the then In-charge Apar Mukhya Adhikari, Rajesh Kumar Malviya, In-charge Engineer were also charged with the same allegations and merely on the basis of refusal of sanction of prosecution by the Principal Secretary, in a composite order, they have been discharge by the court below order dated 05.11.2016.
9. Considering the arguments of learned counsel for the revisionist as well as learned Special Counsel for the C.B.I. and going through the contents of the impugned order and other relevant documents, order dated 19.09.2015 passed by Special Judge Anti-Corruption, C.B.I., (Central) Lucknow for taking cognizance against Pradeep Kumar Sharma, Rajesh Kumar Malviya and applicant and five others and vide order dated 26.11.2015 passed by Principal Secretary, Department of Panchayati Raj, State of U.P. by which the request of Investigating Agency of prosecution sanction against Pradeep Kumar, In-charge Apar Mukhya Adhikari, Rajesh Kumar Malviya, In-charge Engineer and the applicant, Junior Engineer was denied and on the basis of said order, the prosecution related to co-accused Pradeep Kumar and Rajesh Kumar Malviya was dropped by the Special Judge Anti Corruption C.B.I. (Central), Lucknow vide order dated 05.11.2016 and the aforesaid order was challenged before this Court by the C.B.I. in Criminal Revision No.171 of 2017 (Union of India through The S.P., C.B.I., Anti Corruption Branch vs. Pradeep Kumar and Another) which was also rejected by this Court on 06.07.2018. As it is evident from the appointment letter of the applicant as well as co-accused Rajesh Kumar Malviya that both were appointed as Junior Engineer and regularized on 27.07.2006, the name of Rajesh Kumar Malviya find place at Serial No.23 and the applicant at Serial No.37 and for the same charges, sanction to prosecute Rajesh Kumar Malviya, Pradeep Kumar and the revision was denied by the Principal Secretary, Department of Panchayati Raj, State of U.P. vide letter dated 26.11.2015 which was informed to the Investigating Agency, thereafter, on the basis of refusal of prosecution sanction by Principal Secretary, Department of Panchayati Raj, the proceeding was dropped by the Special Judge Anti Corruption C.B.I. (Central), Lucknow against co-accused Pradeep Kumar as well as Rajesh Kumar Malviya, but the discharge application of the applicant was rejected.
10. As the Hon'ble Apex Court in the case of Inspector of Police and Another vs. Battenapatla Venkata Ratnam and Another (2015) 13 SCC 87 it was held that without proper sanction, officials could not be prosecuted and in the present case, for the same act, co-accused persons have been discharged, therefore, the learned court below has committed error in rejecting the discharge application of the revisionist.
11. Accordingly, the revision is hereby allowed and order dated 23.05.2019 passed by Special Judge Anti-Corruption, C.B.I., (Central) Lucknow in Criminal Case No.1091 of 2017 (C.B.I. vs. Abhilash Kumar Srivastava) is hereby set aside and the discharge application filed by the revisionist is also hereby allowed and the matter is remanded back to the court below for passing fresh order after considering the observations made hereinabove.
Order Date :- 15.07.2022 S. Shivhare/VKS