Mahendra Nath Upadhyay Vs State of U.P. and 2 Others — Allahabad HC (2023) — LawSathi Research

Mahendra Nath Upadhyay Vs State of U.P. and 2 Others — Allahabad HC (2023) — LawSathi Research

What the court decided

AI extract

Outcome

Application disposed of: impugned order dated 25.11.2022 set aside; matter remitted to the learned court below for a fresh order after the District Magistrate, Bhadohi submits an appropriate report based on an enquiry by an independent officer pursuant to the Special Secretary's letter dated 11.10.2022, with the resulting order to be communicated to the court below within one month from the date of compliance shown by the applicant.

Issue for consideration

Whether the Chief Judicial Magistrate's order dated 25.11.2022 rejecting the applicant's application for want of prior sanction under Section 197 Cr.P.C. could stand, where the enquiry report relied upon had been made by Shailendra Kumar Mishra, the very person against whom the complaint was made and in respect of whom sanction for prosecution was sought.

Court's answer

The applicant's grievance is well founded: Shailendra Kumar Mishra, being the person against whom the complaint was made and in respect of whom sanction for prosecution was sought, could not have made the enquiry into the allegations against himself; the District Magistrate failed to take notice of this bare essential fact, and a blunder was committed, though inadvertently.

Ratio / Principle

In view of these facts, the impugned order dated 25.11.2022 cannot stand and is set aside; the matter is remitted to the learned court below to pass a fresh order after requiring the District Magistrate to submit an appropriate report after allowing time for the sanction to arise.

Key takeaways

Upon copy of the order being communicated to the District Magistrate, Bhadohi, the said authority is to ensure that appropriate enquiry is made by an independent officer into the matter pursuant to the letter of the Special Secretary dated 11.10.2022, and the appropriate order is to be communicated to the learned court below within a period of one month from the date of compliance shown by the applicant.ratio¶12

Detailed headnote1 paragraphs

Section 197 Cr.P.C. — prior sanction to prosecute a public servant — High Court of Judicature at Allahabad (Saumitra Dayal Singh, J.; order dated 2.2.2023) set aside the order dated 25.11.2022 of the Chief Judicial Magistrate, Bhadohi, Gyanpur in Misc. Application No. 1003 of 2022, whereby Mahendra Nath Upadhyay's application seeking sanction to prosecute A.D.M. Shailendra Kumar Mishra had been rejected for want of prior sanction. The report of the District Magistrate, Bhadohi dated 6.10.2022 rested on an enquiry made by Shailendra Kumar Mishra himself — the very person against whom the complaint was made and in respect of whom sanction was sought; he could not have enquired into allegations against himself, and the District Magistrate failed to notice this essential fact. Matter remitted to the court below for a fresh order after the District Magistrate submits an appropriate report based on an enquiry by an independent officer pursuant to the Special Secretary to the Governor's letter dated 11.10.2022, such order to reach the court below within one month of the applicant showing compliance. Application disposed of.

Court No. - 64

Case :- APPLICATION U/S 482 No. - 41346 of 2022

Applicant :- Mahendra Nath Upadhyay Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Nripendra Kumar Dwivedi,Prasanna Dwivedi

Counsel for Opposite Party :- G.A.

Hon'ble Saumitra Dayal Singh,J.

Heard Sri Nripendra Kumar Dwivedi, learned counsel for the applicant and learned A.G.A. for the State.

Challenge has been raised to the order dated 25.11.2022 passed by Chief Judicial Magistrate, Bhadohi, Gyanpur in Misc. Application No. 1003 of 2022; Mahendra Nath Upadhyay v. A.D.M. Shailendra Kumar Mishra & another. By that order, the learned Magistrate has rejected the application made by the applicant for want of prior sanction under Section 197 Cr.P.C..

Upon hearing the learned counsel for the parties and having perused the record, it transpires that the applicant had earlier filed an application seeking sanction to prosecute Shailendra Kumar Mishra. That application had been made on 28.5.2022. On that, the Special Secretary to the Governor of Uttar Pradesh vide his communication dated 11.10.2022 required the District Magistrate, Bhadohi to submit his report. The District Magistrate, Bhadohi appears to have submitted his report dated 6.10.2022 on the strength of certain enquiry made by Shailendra Kumar Mishra.

The grievance of the applicant is well founded. Shailendra Kumar Mishra being a person against whom the complaint had been made by the applicant and with respect to whom sanction had been sought for the prosecution proposed to be launched, he could not have made that enquiry into the allegation against himself. Clearly, the District Magistrate has failed to take notice by the bare essential fact. Thus, blunder has been committed, though inadvertently.

In view of the facts noted above, the impugned order cannot stand. It is set aside . The matter is remitted to the learned court below to pass fresh order after requiring the District Magistrate to submit an appropriate report after allowing time for the sanction to arise.

In this regard, upon copy of this order being communicated

to the District Magistrate, Bhadohi, the said authority may ensure appropriate enquiry is made by an independent officer into the matter, pursuant to the letter of the Special Secretary dated 11.10.2022 and appropriate order is communicated to the learned court below within a period of one month from the date of compliance shown by the applicant.

Accordingly, application stands disposed of .

Order Date :- 2.2.2023 SA

Digitally signed by :- SALMAN ALI High Court of Judicature at Allahabad