Dismissed

Jawahar Lal v. State of U.P. and Another

Allahabad HC3 Oct 2024NA528/33869/2024

Case brief

AI extract

What is this about?

The Allahabad High Court dismissed an application under Section 528 BNSS, 2023 seeking quashing of proceedings and a summoning order in a corruption case. The court held that since cognizance was taken after the grant of sanction, questions regarding the validity of sanction must be addressed during the trial, not at the threshold.

What did the court decide?

Application for quashing of proceedings and summoning order dismissed; applicant to raise objections during trial.

Jawahar Lal Vs State of U.P. and Another — Corruption | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:162686

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Court No. - 64

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Case :- APPLICATION U/S 528 BNSS No. - 33869 of 2024

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Applicant :- Jawahar Lal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Samit Gopal,J.

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1. Heard Sri Sunil Kumar, learned counsel for the applicant, Sri Ajay Singh, learned A.G.A.-I for the State and perused the material brought on record.

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2. This application under Section 528 BNSS, 2023 has been filed by the applicantJawahar Lal, with the prayer to allow this application and quash the entire proceeding as well as impugned summoning order dated 12.08.2024 in Special Session Trial No. 774 of 2024 (State of U.P. Vs. Jawahar Lal) arising out of Case Crime No. 23 of 2013, under Section 7/13 (1) (d) read with Section 13 (2) Prevention of Corruption Act, Police Station Cantt., District Varanasi, pending in the Court of Additional Session Judge / Special Judge, Special Court No.3 (Prevention and Corruption Act), Varanasi, with a further prayer that proceeding of the aforesaid case be stayed during the pendency of the present application.

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3. The facts of the case are that a first information report was lodged against the applicant on 03.01.2013 by the opposite party no.2 for offences under Sections 7/13 (1) (d) read with Section 13 (2) Prevention of Corruption Act, 1988. Subsequently a sanction for prosecution under the Prevention of Corruption Act was granted by the competent authority vide order dated 24.04.2019. A charge-sheet dated 21.03.2024 was submitted against the applicant under Sections 7/13 (1) (d) read with Section 13 (2) Prevention of Corruption Act, 1988 on which the court concerned took cognizance vide order dated 12.08.2024 and summoned him.

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4. The argument of learned counsel for the applicant is the first information report of the present matter was lodged on 03.01.2013 against the applicant after which the competent authority granted sanction for prosecution vide order dated 24.04.2019, the copy of which is annexed as Annexure-9 to the affidavit. It is submitted that charge-sheet in the matter being charge-sheet No. 7 of 2004 dated 21.03.2024 was then submitted against the applicant under Sections 7/13 (1) (d) read with Section 13 (2) Prevention of Corruption Act, 1988 on which the court concerned took cognizance vide order dated 12.08.2024 and summoned the applicant. While placing paragraph 32 of the affidavit in support of the 482 petition it is submitted that sanction was granted by the competent authority without application of mind and on incomplete documents. At that time the charge-sheet

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was not prepared and even the case diary was not complete and only alleged prima facie evidence is referred to in it.

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5. Per contra , learned counsel for the State / opposite party no.1 opposed the prayer for quashing. It is submitted that the court concerned has taken cognizance on the charge-sheet and summoned the applicant. It is submitted that the validity and question of sanction is a matter of trial which has to be seen and appreciated by the trial court after leading evidence. It is submitted that at this stage the said argument cannot be looked into and appreciated it in as much as the order granting sanction states that the facts and the available material and the situation of the matter has been considered minutely and then sanction has been granted. It is submitted that as such the present petition is without any substance and be dismissed.

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6. After hearing the learned counsel for the parties and perusing the records, it is evident that the applicant has been named in the first information report. A sanction for prosecution under Prevention of Corruption Act has been accorded by the competent authority vide order dated 24.04.2019. The charge-sheet dated 21.03.2024 in the matter has been submitted on which the court concerned has taken cognizance and summoned the applicant vide order dated 12.08.2024. In so far as the question of validity of sanction is concerned, the law on the subject is trite.

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7. In the case of Dinesh Kumar Vs. Chairman, Airport Authority of India & Another : (2012) 1 SCC 532 it has been held by the Apex Court that since cognizance has already been taken, the question of validity of sanction will be open for consideration by the Trial Court in the course of trial. It has been held as under:

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" 7. This Court has in Mansukhlal Vithaldas Chauhan [(1997) 7 SCC 622 : 1997 SCC (L&S) 1784 : 1997 SCC (Cri) 1120] considered the significance and importance of sanction under the PC Act. It has been observed therein that the sanction is not intended to be, nor is an empty formality but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and it is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. This Court highlighted that validity of a sanction order would depend upon the material placed before the sanctioning authority and the consideration of the material implies application of mind.

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8. The provisions contained in Sections 19(1), (2), (3) and (4) of the PC Act came up for consideration before this Court in Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193]. In paras 47 and 48 of the judgment, the Court held as follows: (SCC p. 37)

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"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.

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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 nonapplication of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial."

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9. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] expressed in no uncertain terms that the question of 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 [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193], this Court referred to invalidity of sanction on account of non-application of mind.

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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 authorized 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 [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193], the challenge to which can always be raised in the course of trial.

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11. In a later decision, in Ameerjan [(2007) 11 SCC 273 : (2008) 1 SCC (Cri) 130], this Court had an occasion to consider the earlier decisions of this Court including the decision in Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193]. Ameerjan [(2007) 11 SCC 273 : (2008) 1 SCC (Cri) 130] was a case where the trial Judge, on consideration of the entire evidence including the evidence of the sanctioning authority, held that the accused Ameerjan was guilty of commission of offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. However, the High Court overturned the judgment of the trial court and held that the order of sanction was illegal and the judgment of conviction could not be sustained.

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12. Dealing with the situation of the case wherein the High Court reversed the judgment of the conviction of the accused on the ground of invalidity of sanction order, with reference to Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193], this Court stated in Ameerjan [(2007) 11 SCC 273 : (2008) 1 SCC (Cri) 130] in para 17 of the Report as follows: (SCC p. 280)

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"17. Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193], therefore, is not an authority for the proposition that even when an order of sanction is held to be wholly invalid inter alia on the premise that the order is a nullity having been suffering from the vice of total non-application of mind. We, therefore, are of the opinion that the said decision cannot be said to have any application in the instant case."

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13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the trial court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] and not unjustified."

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8. In view of the judgement of the Apex Court and the facts of the matter there is no is no irregularity or illegality in the proceedings. The applicant will have an opportunity to raise all his objections in the trial at the appropriate stage. No ground for interference is made out.

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9. The present petition is accordingly, dismissed .

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Order Date :- 4.10.2024 AS Rathore

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(Samit Gopal,J.)

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Digitally signed by :- ABHISHEK SINGH RATHOR High Court of Judicature at Allahabad

Jawahar Lal v. State of U.P. and Another

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