# Abdul Rahman Jafri v. The State of U.P. and others - **Citation:** High Court of Judicature at Allahabad #39485 - **Court:** High Court of Judicature at Allahabad - **Decided:** 1999-12-22 - **Bench:** Chief Judge, M. Katju - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-rahman-jafri-v-the-state-of-u-p-and-others-39485 - **Pages:** 4 ## Text 1ALL] Abdul Rahman Jafri V. The State of U.P. and others 59 25,6,1$/ -85,6',&7,21 25,6,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' 129(0%(5 '$7(' $//$+$%$' 129(0%(5 %()25( %()25( 7+( +21·%/( 656,1*+ - 7+( +21·%/( 656,1*+ - 7+( +21·%/( '5 &+$8'+$5<- 7+( +21·%/( '5 &+$8'+$5<- &LYLO 0LVF :ULW 3HWLWLRQ 1R RI $EGXO 5DKPDQ -DIUL 62 $EGXO 0DQQDQ -DIUL «3HWLWLRQHU 9HUVXV 7KH 6WDWH RI 83 WKURXJK WKH 0LQLVWU\ RI +RPH $IIDLUV DQG RWKHU «5HVSRQGHQWV &RXQVHO IRU WKH SHWLWLRQHU 0U 6 6 7\DJL &RXQVHO IRU WKH 5HVSRQGHQWV *$ 'U /DO %DKDGXU ,Q SHUVRQ 3UHYHQWLRQ RI &RUUXSWLRQ $FW 6HFWLRQ 7KH SHWLWLRQHU FDQQRW EH SURVHFXWHG XQGHU VHFWLRQ DQG $ RI ,3& ZKLFK KDYH EHHQ RPLWWHG YLGH VHFWLRQ RI SUHYHQWLRQ RI &RUUXSWLRQ $FW +HOG 7KH SHWLWLRQHU FDQQRW EH SURVHFXWHG XQGHU VHFWLRQ DQG $ RI ,QGLDQ SHQDO &RGH ZKLFK KDYH EHHQ FRPPLWWHG YLGH VHFWLRQ RI WKH SUHYHQWLRQ RI &RUUXSWLRQ $FW 7KHUH FDQQRW EH DQ\ SURVHFXWLRQ RI DQ\ SHUVRQ XQGHU WKH DIRUHVDLG VHFWLRQV DQG WKH OHDUQHG 7ULDO -XGJH KDV HUUHG LQ ODZ LQ GLUHFWLQJ WKDW WKH DFFXVHG $EGXO 5DKPDQ -DIUL 6KDOO EH FKDUJHG XQGHU 6HFWLRQ DQG $ ,3& 7KH μ6DQFWLRQ¶ LPSOLHV DSSOLFDWLRQ RI PLQG ([HUFLVH RI SRZHU WR VDQFWLRQ SURVHFXWLRQ VDQV DSSOLFDWLRQ RI PLQG LV EDG LQ /DZ DQG LQYDOLG ,Q WKH FLUFXPVWDQFHV WKHUHIRUH WKH SHWLWLRQ GHVHUYHV WR EH DOORZHG 3DUD By the Court 1. The petitioner, Abdul Rahman Jafri, a Class III employee in the Family Court, Allahabad has instituted the present writ petition seeking issuance of writ in the nature of certiorari quashing the part of the order dated 22.12.1999 (annexure no.5) where by the second respondent has ordered that the petitioner "Shall be charged under section 161 and 165-A of I.P.C." 2. Before proceeding further it may be mentioned here the petition was entertained initially by a Single Judge Bench but on an application moved by the complainant Dr. Lal Bahadur, the Bench consisting of Hon'ble the Chief Judge and Hon'ble M. Katju, J. by order dated 13.9.1999 directed that the matter be placed before a bench presided over by one of R. Singh, J.) and it was pursuant to the said order that the matter was listed before this Bench . 3. We have Heard Shri S. S. Tyagi for the petitioner and Government Advocate for Sate and Dr. Lal Bahadur, the complainant who appeared in persons. 4. It transpires from the record that a F.I.R. was lodged by Shri Surendra Pratap Mishra , Judge Family Court , Allahabad against the petitioner and four others under Section 161 and 165 -A of the Indian Penal Code. The F.I.R. was lodged on the basis of a complaint made by Dr. Lal Bahadur to the Hon'ble the Chief Justice that Brij Bhushan Pandey, Mohd. Shakil, Manglesh and Abdul Rahman Jafri working as class III employees in the Court of Judge, Family Court Allahabad took illegal gratification of Rs. 150/-- on 4th and 5th February , 1997 for issuing copy of an order. The F.I.R. Was lodged at Police Station Colonelganj., Allahabad. On the basis of of the aforesaid F.I.R. , Case Crime No. 139 of 1997 was registered at Police Station Colonelganj, Allahabad and on comprehended by Section 19 of the Prevention of Corruption Act, 1988. The District and Sessions Judge acting as Incharge Judge Family Court , Allahabad. By his order dated 27.7.1998 accorded permission for prosecution of the petitioner and Mohd. Shakil in case crime no. 139 of 1997, Police Station Colonelganj, Allahabad under Sections 161 and 165-A I.P.C. and INDIAN LAW REPORTS ALLAHABAD SERIES [2000 60 Section 7 and 13 (1)(a) of the Prevention of Corruption Act , 1988. Earlier the Judge Family Court , Allahabad by his order dated 3.6.98, being annexure no.2 to the writ petition, had accorded sanction for prosecution of co-accused Brij Bhushan Pandey and Manglesh Singh in the self same case under Section 7 and 13 (1) (a) of the Prevention of Corruption Act, 1988. According ly the cognizance was taken by the competent court and criminal case no.4 of 1998 State Versus Brij Bhushan Pandey and others was registered against the petitioner and four others. 5. The petitioner moved an application being annexure no.4 to the Writ Petition before the Trial Judge praying for quashing of his prosecution on the ground that the sanction accorded vide order dated 27.7.1998 was invalid and without jurisdiction. The learned Trial Judge by the impugned order dated 22.12.1998 held that the District & Sessions Judge acting as Incharge Judge, Family Court was not competent to grant sanction of the petitioners prosecution. Accordingly the petitioner was held "liable to be discharged under Section 13(2) of the prevention of Corruption Act,1988". But at the same time the learned Trial Judge directed that the petitioner be charged under Section 161 and 165-A of the Indian Penal Code. Relevant part of the impugned order dated 22.12.1998 reads as under : "Since the court has been prohibited to take cognigance for want of valid sanction thus the case cannot proceed against accused Abdul Rahman Jafri and he is liable to be discharged under Section 13(2) of Prevention of Corruption Act. 1988. As for Section 161 I.P.C. and Sec. 165-A I.P.C. is concerned no previous sanction is required under Section 19 of Prevention of Corruption Act. 1988. Previously under section 6of the Prevention of Corruption Act. 1947, previous sanction was required for prosecution under Section 161 and 165 of I.P.C. also but the act has been repealed and replaced by Prevention of Corruption Act.1988, in which no previous sanction is required for prosecution under Section 161 and 165 of I.P.C. and as such accused Abdul Rehman Jafri shall be charged under Section 161, 165-A of I.P.C. It is made clear that if prosecution obtains valid sanction from Competent Authority mentioned under section 19 of Prevention of Corruption Act 1988, accused shall be tried for that offence under Section 13(2) of Prevention of Corruption Act. As discussed above the accused Abdul Rehman Jafri shall be charged under Section 161 and 165-A of I.P.C. Fix 5.1.99 for fixing of charge. All accused should appear an that date for framing of charge. 6. It is not disputed that the Judge, Family Court is the authority competent to remove the petitioner. Section 19 of the Prevention of Corruption Act , 1988 Provides that no Court shall take congnizance of offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant , except with the previous sanction of authorites referred to in clauses (a) , (b) and (C) of sub Section (I) of Section 19 of the Prevention of Corruption Act Which are quoted below. "(a) In the case of a person who is employed in connection with the affairs of the Union and is not removable from his offence save by or with the santion of the Central Govt. of that Government , (b) In the case of a person who is employed in connection with the affairs of a State and is not removble form his offence save by or with the sanction of the State Government of that Govt., or with the 1ALL] Abdul Rahman Jafri V. The State of U.P. and others 61 sanction of the State Government , of that Government, (c) In the case of any other person of the authority competent to remove him from his office." 7. The petitioner's case is covered by clause (c) of Sub Section (1) of Section 19 of the Prevention of Corruption Act, 1988. The District and Sessions Judge being not the authority competent to remove the petitioner as held have no jurisdiction to grant sanction for offence punishable under Section 13 of the said Act . This part of the order has not been challenged. We there fore, do not consider it necessary to express our opinion as to correction otherwise of the view so taken by the Trial Judge or examine the effect of "any error" in the sanction dated 27.7.1998 as stipulated in Section 19(2) of the read with clause (a) of the Explanation appended to Section 19. 8. It would be evident from the order aforestated that the sanction accorded by the District and Sessions Judge in his capacity as Incharge Judge, Family Court, Allahabad has been set at naught by the order impugned herein but in so far as it relates to prosecution under Section 161 and 165-A of Indian Penal Code it has maintained. The submission made by the learned counsel appearing for the petitioner is that Section 161 to 165-A of the Indian Penal Code (both inclusive) have been omitted vide Section 31 of the Prevention of Correction Act,1988 reads as under : "31. Omission of certain section of Act 45 of 1860 Section 161 to 165-A (both inclusive ) of the Indian Penal Code shall be omitted, and Section 6 of the General Clauses Act , 1897( 10 of 1897), shall apply to such omission as if the said sections had been repeaied by a central Act." 9. The alleged incident of taking illegal gratification is of February 4/5, 1997 . The F.I.R. was lodged under Section 161 and 165A of Indian Penal Code read with prevention of Corruption Act and the sanction too appears to have been granted for prosecution in case crime no.139 of 1997 Police Station Colonelganj, Allahabad under Section 161 and 165-A I.P.C. read with Section 7/13(1) (a) of Prevention of Corruption Act but the fact remains that the petitioner cannot be prosecuted under Section 161 and 165-A of Indian Penal Code which have been omitted vide Section 31 of the Prevention of Corruption Act. The order dated 27.7.1998 of the District and Sessions Judge passed in his capacity as Judge, Family Court, Allahabad according permission for the prosecution of the petitioner under Section 161 to 165-A I.P.C. (both inclusive) appears to have been passed of the provisions contained in Section 31 of Prevention of Corruption Act, 1988 which provides that be any prosecution of any person under the aforesaid sections and learned Trial Judge shall be charged under Section 161 and 165A both inclusive have been omitted . There cannot be any prosecution of any person under the aforesaid sections and learned Trial Judge has erred in law in directing that the "accused Abdul Rahman Jafri shall be charged under Section 161 and 165-A I.P.C. " The "Sanction" implies application of mind is bad in law and invalid . In the circumstances, therefore, the petition deserves to be allowed. 10. Accordingly the petition succeeds and is allowed. The impugned order dated 22.12.1998 in so far as it directs that the "accused Abdul Rahman Jafri shall be charged under Section 161 and 165-A I.P.C." is quashed. Petition Allowed. INDIAN LAW REPORTS ALLAHABAD SERIES [2000 62 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' '$7(' $//$+$%$' %()25( %()25( 7+( +21·%/( *30$7+857+( +21·%/( *30$7+857+( +21·%/( %+$*:$1 ',1 - 7+( +21·%/( %+$*:$1 ',1 - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI 0V 6 8 %XLOGHUV $OODKDEDG DQG DQRWKHU «3HWLWLRQHUV 9HUVXV 9LFH &KDLUPDQ $OODKDEDG 'HYHORSPHQW $XWKRULW\ $OODKDEDG RWKHUV«5HVSRQGHQWV &RXQVHO IRU 3HWLWLRQHU 6UL &%