# Abhai Kumar Tripathi v. State of U.P. & Ors

- **Citation:** (2022) 3 ILRA 183
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-02
- **Case number:** Criminal Misc. Writ Petition No. 4732 of 2007
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhai-kumar-tripathi-v-state-of-u-p-ors-48171
- **Pages:** 4

## Headnote

A. Administrative Law - It is alleged that
the Successor-in-Office has grossly misused
his position and discretion by granting
sanction of prosecution contrary to the
Order issued by the Predecessor-in-Office.
It is a settled principle of law that
sanctioning authority should exercise its
authority
and
discretion
independently
under the authority of his Own and not
under the directions given by some other
authority. (Para 7)
Petition Allowed. (E-10)

List of Cases cited:

## Text

3 All. Abhai Kumar Tripathi Vs. State of U.P. & Ors.
183
meeting of minds between Raj Kumar and
Raj Kishore, hence Raj Kishore is not
liable for conviction U/s 302 I.P.C read
with Section 34 I.P.C. Raj Kishore caused
injury to Prabhu Dayal and that act travels
upto the extent of offence defined under
Section 325 I.P.C., Hence, the conviction of
appellant Raj Kishore under Section 325 of
I.P.C. is confirmed, but conviction of Raj
Kishore under Section 302 read with
Section 34 of I.P.C. is hereby set aside.

30. The appeal of appellants is partly
allowed.

31. Let the convict Raj Kishore-
appellant No.2 convicted in Sessions Trial
No.144 of 1982 arising out of Crime
No.926 of 1981, Police Station Kotwali,
District Hardoi be released from the
concerned
jail,
upon
completion
of
sentence awarded and deposition of fine
imposed under section 325 I.P.C. if not
required in any other case.

32. Appellant No.2-Raj Kishore is
directed to file personal bond and two
sureties each in the like amount to the
satisfaction of the court concerned in
compliance with Section 437-A of the Code
of Criminal Procedure, 1973 for his
acquittal under Section 302 I.P.C. by this
Court.

33. Sri Jaipal Singh, learned Amicus
Curiae for the appellant No.1 Raj Kumar
shall be paid fee in accordance with the
rules of the Court.

34. Let a copy of this order alongwith
original record be transmitted to the trial
court concerned forthwith for necessary
information and further action.
----------
(2022)03ILR A183
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.03.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Misc. Writ Petition No. 4732 of 2007

Abhai Kumar Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amrendra K Bajpai

Counsel for the Respondents:
C.S.C., Ajai Kumar, Ashok K Pandey, Pankaj
Patel

A. Administrative Law - It is alleged that
the Successor-in-Office has grossly misused
his position and discretion by granting
sanction of prosecution contrary to the
Order issued by the Predecessor-in-Office.
It is a settled principle of law that
sanctioning authority should exercise its
authority
and
discretion
independently
under the authority of his Own and not
under the directions given by some other
authority. (Para 7)
Petition Allowed. (E-10)

List of Cases cited:

1. St. of H.P. Vs Nishant Sareen (2010) 14 SCC
527

2. Gopikant Choudhary Vs St. of Bihar & ors.
(2009) 9 Supreme Court Cases 53

3. Mansukhlal Vithaldas Chauhan Vs St. of
Guj.(1997) 7 Supreme Court Cases 622

4. R.S. Nayak Vs A.R. Antulay (1984) 2 Supreme
Court Cases 183
(Delivered by Hon'ble Mrs. Saroj Yadav, J.)
184 INDIAN LAW REPORTS ALLAHABAD SERIES

1. This writ petition has been filed by
the petitioner praying the following reliefs:

"(a) Issue a writ, order or
direction in the nature of certiorari to
quash the impugned order of sanction of
prosecution dated 18.06.2007, passed
against the petitioner, by the opposite
party no. 2, contained as Annexure No. 1
to this writ petition.

(b) Issue a writ, order or
direction in the nature of certiorari to
quash the Govt. Order dated 15.05.2007 by
which the opposite party no. 1 has directed
the
opposite
party
no.
2/competent
authority to grant sanction for prosecution
against individuals in Investigation Case
No. 12/2000 and which finally resulted in
passing of impugned order."

2. Heard Shri A.K. Bajpai, assisted by
Ms. Tejaswani Bajpai, learned counsel for
the petitioner and Shri Ajai Kumar, learned
counsel for the respondent nos. 1 and 2.

3. Learned counsel for the petitioner
submitted that in Investigation Case No.12
of 2000 sanction for prosecution was
previously refused by the Opposite Party
No. 2 vide order dated 27.03.2006.
Thereafter, the Opposite Party No. 2Successor-in-Office had no authority in law
to supersede or review the order passed by
the
Predecessor-in-Office.
He
further
submitted that impugned order dated
18.06.2007 is contrary to law as on its face,
which indicates that same has been passed
on the direction of the Opposite Party No.
1. The subsequent authority i.e. Successorin-Office did not even had the courage to
distinguish his view from the Predecessorin-Office. The Successor-in-Office has
grossly misused his position and discretion
by
granting
sanction
of
prosecution
contrary to the Order dated 27.03.2006
issued
by
the
Predecessor-in-Office.
Learned counsel for the petitioner relied
upon the following case laws:-

(i) State of H.P. Versus Nishant
Sareen, (2010) 14 SCC 527;

(ii) Gopikant Choudhary Versus
State of Bihar and others, (2009) 9
Supreme Court Cases 53;

(iii)
Mansukhlal
Vithaldas
Chauhan Versus State of Gujarat, (1997)
7 Supreme Court Cases 622;

(iv) R.S. Nayak Versus A.R.
Antulay, (1984) 2 Supreme Court Cases
183.

4. To the contrary, learned counsel for
the opposite party nos. 1 and 2 opposed the
prayer made by the learned counsel for the
petitioner but could not dispute the facts
and arguments placed by the learned
counsel for the petitioner. Counter affidavit
has been filed by the opposite party,
wherein it has been stated that the
petitioner, the then Manager (Gramodyog),
Office of U.P. Khadi & Village Industries
Board, Kanpur misused his Office and was
in collusion with Mr. Firoz Alam, the
Secretary
of
M/s
Sani
Gramodyog
Sansthan, Jajmau, Kanpur. The petitioner
fully knowing that Mr. Firoz Alam, the
Secretary of the above said Sansthan has
filed forged and fabricated papers of
Guarantor Raja Hasan and Babu relating to
land and he has even not constructed the
workshop. The Economic Offences Wing
(E.O.W) found the petitioner guilty for
illegalities and the State Government vide
Order No. 553/59-1-2007 dated 15.05.2007
sent the directions relating to permission
for granting prosecution sanction with
reference to Criminal Investigation No.
12/2000 and in pursuance of the State
Government's order prosecution sanction
has been given vide Order No. 2105-10
3 All. Abhai Kumar Tripathi Vs. State of U.P. & Ors.
185
dated 18.06.2007.Therefore, the present
writ petition may be dismissed.

5. Considered the arguments of rival
sides and perused the record and the case
law cited.

6. It is not denied in the counter
affidavit that previously Predecessor-inOffice had refused the prosecution sanction
vide
order
dated
27.03.2006
and
subsequently
Successor-in-Office
had
granted
prosecution
sanction
vide
impugned order dated 18.06.2007. In the
counter affidavit, it has been categorically
stated that in pursuance of the State
Government's order prosecution sanction
has been given vide Order No. 2105-10
dated 18.06.2007.

7. It is settled principle of law that
sanctioning authority should exercise its
authority and discretion independently
under the authority of his own Office and
not under the directions given by some
other authority. In Mansukhlal Vithaldas
Chauhan Versus State of Gujarat (Supra),
the Hon'ble Apex Court held the sanction
order to be bad for the reason that sanction
was issued by the authority under the
directions of the High Court.

8. In Gopikant Choudhary Versus
State of Bihar and others (Supra), the
Hon'ble Apex Court while setting aside the
subsequent sanction order after refusal once
has observed as under:-

"We find from the file that was
produced
that
there
has
been
no
application of mind when the subsequent
order was passed in the year 1997. It
further appears that between the order
refusing to sanction and the order that
was passed in 1997, the investigating
agency had not collected any fresh
materials requiring a fresh look at the
earlier order. It is also apparent that the
alleged excess amount said to have been
paid on account of non-performance of
the duty by the appellant is to the tune of
Rs. 2750/- and, therefore, under the Rules
of Business, the file pertaining to sanction
would have been finally dealt with by the
Law Minister and, in fact, he had done so.
In this view of the matter, neither was
there any necessity for the authorities
concerned to place the file before the
Chief Minister nor had the Chief Minister
any occasion to reconsider the matter and
pass fresh order sanctioning prosecution
particularly when taking into account the
loss sustained to the exchequer to the tune
of Rs.2750. That apart, the person
concerned has already retired in the year
1994 and it is unthinkable that for a loss
of Rs.2750 the State would pursue the
proceedings against such person. In this
view of the matter, we set aside the
impugned
order
of
sanction
dated
10.12.1997 passed by the Chief Minister
for prosecuting the appellant."

9. Again in State of H.P. Versus
Nishant Sareen (Supra), the Hon'ble Apex
Court rehashed the same principle as laid
down in Gopikant Choudhary Versus State
of Bihar and others (Supra), and made
impermissible the subsequent sanction on
the same material.

10. In the counter affidavit filed on
behalf of the respondent no. 2, it has not
been mentioned that any fresh material was
brought on record by the Investigating
Agency and that was considered and
prosecution sanction was granted by the
Successor-in-Office. Even in the impugned
order dated 18.06.2007 there is no mention
that any fresh material was submitted or
186 INDIAN LAW REPORTS ALLAHABAD SERIES
considered by the sanctioning authority.
Hence the present writ petition deserves to
be allowed.

11. In the result, the present writ
petition succeeds and the same stands
allowed. The impugned order of sanction of
prosecution
dated
18.06.2007,
passed
against the petitioner, by the opposite party
no. 2,, is hereby quashed.

12. No order as to costs.
----------
(2022)03ILR A186
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.03.2022

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Revision No. 229 of 2011

Dammar & Anr. ...Revisionists
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionists:
K.K. Singh, Arvind Kumar Singh

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Revision - Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 1950 - Section 198-A(2) -
Where any person, after being evicted
under this section, re-occupies the land or
any part thereof without lawful authority,
he shall be punishable with imprisonment
for a term which may extend to two years
but which shall not be less than three
months and also with fine which may
extend
to
three
thousand
rupees
-
Probation
of
Offenders
Act,
1958
-
Sections 4 - Power of court to release
certain offenders on probation of good
conduct , Section 11 - Courts competent to
make order under the Act, appeal and
revision and powers of courts in appeal
and revision .(Para -9,10,11 )

Revisionist no.1(died) and Revisionist no.2
(survive) convicted and sentenced under section
198 -A(2) of U.P.Z.A. & L.R. Act - Trial Court as
well as appellate Court recorded a cogent
finding of fact - Plot No. 309/0.63 hectare
initially allotted to allottee - handed over the
possession - allottee was dispossessed by
revisionists - finding of fact based on testimony
of PW-2 (Lekhpal) - not a person of criminal
antecedents .(Para - 8)

HELD: -No illegality, irregularity or impropriety
in the impugned judgment. Conviction of
revisionist
no.
2
recorded
by
Divisional
Magistrate upheld by appellate court deserves
to be maintained. Sentence modified to the
extent that instead of sentencing the revisionist
no. 2 to the jail, he shall get the benefit of
Section 4 of the Probation of Offenders Act. No
ground

Criminal Revision dismissed. (E-7)

List of Cases cited:-

1. Subhash Chand & ors. Vs St. of U.P. (2015
Law Suit (All) 1343)

2. St. of Mah. Vs Jagmohan Singh Kuldip Singh
Anand & ors. (2004) 7 SCC 659

3. Jagat Pal Singh & ors. Vs St. of Har., AIR
2000 SC 3622

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. Heard learned counsel for the
revisionist and learned A.G.A. for the State.

2. The instant Criminal Revision has
been filed against the judgement and order
dated 04.05.2011 passed by Sessions Judge,
Hardoi in Criminal Appeal No.114 of 2010,
Dammar and another vs. State of U.P. and
judgment and order dated 31.07.2010