Allahabad High Court
Chhatra Pal Singh(C.P. Singh) vs State Of U.P. Thru. Prin. Secy. Home, ... on 8 December, 2020
Bench: Ritu Raj Awasthi, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 9 Case :- MISC. BENCH No. - 16340 of 2020 Petitioner :- Chhatra Pal Singh(C.P. Singh) Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. & Ors. Counsel for Petitioner :- Purnendu Chakravarty,Anuuj Taandon Counsel for Respondent :- G.A. Hon'ble Ritu Raj Awasthi,J.
Hon'ble Mrs. Saroj Yadav,J.
Heard Mr. J.N. Mathur, learned Senior Advocate assisted by Mr. Purnendu Chakravarty, learned counsel for the petitioner as well as learned A.G.A. for the State.
The writ petition has been filed seeking following reliefs:-
"a. to issue a writ order or direction in the nature of certiorari for quashing of order dated 26.08.2020 contained as annexure No.1 to the writ petition in the FIR registered at Crime No. 1/2014 dated 01.01.2014, under Sections 409, 120-B I.P.C. and Section 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 after summoning the records from the authority competent.
b. to issue a writ of mandamus commanding the opposite party No.3 to conduct fair and impartial investigation by giving adequate opportunity to the petitioner to explain the entire process, procedure and various documents in the FIR registered at Crime No. 1/2014 dated 01.01.2014, under Sections 409, 120-B I.P.C. and Section 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988, Police Station Gomti Nagar, District Lucknow contained as Annexure No.1 to the writ petition.
c. to issue a writ order or direction so as to decide this petition as per the direction passed by this Court in Writ Petition No. 792(MB) of 2020 (Ajay Kumar and another Vs. State of U.P. and others) in the facts and circumstances of this petition."
Learned counsel for the petitioner submits that the impugned order has been passed in most arbitrary and illegal manner without proper application of mind. The controversy involved in the writ petition was considered by this Court in writ petition No. 792 (MB) of 2020 (Ajay Kumar and another Vs. State of U.P. and others. The court by a detailed judgment has disposed of that writ petition with certain directions to the Investigating Agency as well as to the learned Court below and it has been provided that till the decision is taken by the Competent Court in regard to the sanction of prosecution against the petitioner that whether same is valid or not, no coercive action shall be taken against him. The submission is that the aforesaid case relates to the same crime number and also with respect to the same offences as well as for the same occurrence. The subject matter of that writ petition is same as of the instant writ petition.
Learned A.G.A. was granted time to seek instructions in this regard. Counter affidavit has been filed by learned A.G.A. on behalf of respondents.
In paragraph 9 of the counter affidavit, it is submitted that there is no dispute that in Writ Petition No. 792(MB) of 2020 (Ajay Kumar and another Vs. State of U.P. and others), challenge was made to letter dated 31.08.2019 written by the Managing Director of U.P. Rajkiya Nirman Nigam Ltd. Lucknow to the State Government whereby the information was sent regarding prosecution of sanction. The petitioner of that writ petition had not challenged the sanction order dated 16.12.2019 and he had only challenged the letter dated 31.08.2019, as noted above.
It is submitted that the Court has declined to entertain the writ petition on merit and relegated the petitioner to challenge the sanction of prosecution order before the Competent Court and granted limited protection, which is evident from the operative portion of the order dated 18.06.2020.
Mr. J.N. Mathur, learned Senior Advocate appearing for the petitioner submits that he confines his prayer to the relief granted by this Court vide judgement and order dated 18.06.2020 passed in Writ Petition No. 792(MB) of 2020 (supra), as the case of the petitioner is on similar footing and as such he wants parity.
We have considered the submissions and gone through the record.
There is no lis between the parties that the case of the petitioner as well as the case of the Ajay Kumar in writ petition No. 792(MB) of 2020 in pith and substance is same. It arises out of the same occurrence and of the same subject matter as well as regarding the same crime number. It is also not in dispute that in the case of Ajay Kumar and another (supra), this Court vide judgment and order dated 18.06.2020 has been pleased to dispose of the writ petition with certain directions and has granted limited protection to the petitioner i.e. Ajay Kumar and another (supra). The relevant operative portion of the judgment and order dated 18.06.2020 passed in the case of Ajay Kumar and another (supra) reads as under:-
"The submission made by learned counsel for the petitioner is that the impugned sanction order has been passed by the competent authority without application of his mind, rather under the pressure of the higher authority, the same is illegal and arbitrary in nature. The validity of the sanction order is perfectly valid as per law laid down by Hon'ble the Apex Court in the case of Mansukhlal Vitthaldas (Supra) in which it has been observed that "Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servants against frivolous prosecution. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for innocent but not a shield for the guilty as the validity of sanction depends on the applicability of mind by the sanctioning authority to the facts of the case and also the material and evidence collected during investigation. Sanctioning authority has to apply its own independent mind for generation of genuine satisfaction whether prosecution has to be sanctioned or not.
Thus, taking into consideration the facts and circumstances of the case as well as law as stated herein above, we dispose of the writ petition with a direction that the Investigating Agency shall conduct the investigation in pursuance to the order dated 31.08.2019 by which sanction has been granted for prosecution against the petitioners as per procedure prescribed for the said purpose under law and thereafter shall file a police report before the competent Court/Court of Magistrate.
In case of filing of the police report by the Investigating Agency in the competent Court/Court of Magistrate against the petitioners, they shall have liberty to take all pleas in their defence including the plea that the prosecutions have wrongly been sanctioned against them.
Further, the competent Court/Court of Magistrate, before whom charge sheet has been filed and the plea regarding the sanction for the prosecution against the petitioners shall be taken by them as an preliminary issue and thereafter the same shall be decided finally as per law by the Court concerned.
Till the decision is taken by the competent Court/Court of Magistrate in regard to the sanction of prosecution against the petitioners that whether the same is valid or not, no coercive measure shall be taken against them"
In view of the above, the writ petition is disposed of with following directions:-
(i) The Investigating Agency shall conduct the investigation in pursuance to the order dated 26.08.2020, by which sanction has been granted for prosecution against the petitioner, as per procedure prescribed for the said purpose under law and thereafter shall file police report under Section 173(2) before the Competent Court.
(ii) In case of filing of police report by the Investigating Agency in the Competent Court against the petitioner, the petitioner shall have the liberty to take all pleas in his defence including the plea that prosecution has been wrongly sanctioned against him.
(iii) The Competent Court before whom chargesheet is filed and the plea challenging the sanction for prosecution against the petitioner is taken, the competent Court shall take it as a preliminary issue and thereafter shall proceed to decide the same as per law.
(iv) Till the decision is taken by the Competent Court in regard to the sanction of prosecution against the petitioner that whether the same is valid or not, no coercive measure shall be taken against him.
Order Date :- 8.12.2020 A.K. Singh