# Amit Kumar v. State of U.P. & Ors. 1018 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 1 ILRA 1017
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-13
- **Case number:** Criminal Misc. Writ Petition No. 14702 of 2023
- **Bench:** Vivek Kumar Birla, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-kumar-v-state-of-u-p-ors-1018-indian-law-reports-allahabad-series-50823
- **Pages:** 19

## Headnote

A. Constitution of India, 1950-Article 226Indian Penal Code, 1860-Sections 409, 420,
466, 467, 469, 471 & 120-B & Prevention of
Corruption Act, 1988-Sections 13(1)(d),
13(2)-Challenge to-sanction order for the
petitioner's prosecution-FIR registered and
the case was transferred to the CBCID-the
closure report was challenged before the
High Court-CBI directed to conduct an
investigation
into
the
allegations
of
corruption and illicit accumulation of money
to Rs. 954 Crores in connection with award
of contracts-there is no question of the
annulment of the impugned sanction for
prosecution order at this decisive stage of
the investigation when the investigation has
brought to light the involvement of the
petitioners in the award of contract, besides
other intentional irregularities for illegal
pecuniary gain supported by substantive
evidence
gathered
by
the
CBI-Such
interference
would
be
deemed
unwarranted at this critical phase of the
investigation-The court's leniency would
undermine the very essence of Section 19 of
the Act, 1988 leading to a substantial
detriment of the interests of justice.(Para 1
to 47)

The writ petition is dismissed. (E-6)

List of cases cited:

## Text

_Characters 0–39,721 of 61,553. This is a partial read: ask again with offset=39721 for what follows._

1 All. Amit Kumar Vs. State of U.P. & Ors.
1017
19 and 21 of the Guardians and Wards Act,
coupled with Sections 6, 10, and 13 of the
Hindu Minority and Guardianship Act, 1956,
he holds the right to act as the natural guardian
of the minor Hindu girl married to him, as
statutorily designated the girl's husband.
Hence, it is unfounded to allege any element
of abduction or enticement in this context."

12. On the basis of the arguments
advanced by counsel for the parties, two
issues have emerged before this Court: i)
about the validity of the marriage solemnised
between petitioner no.1 and petitioner no.2,
ii) who is entitled to the custody of Shivani-
the minor wife, it is her mother, or it is her
husband or someone else.

13. So far as the validity of marriage of
the petitioners are concerned, it shall be
decided in accordance with Hindu Marriage
Act, 1955 in conjoint reading with the
relevant provisions of the Child Marriage
Restriant Act, 1929, which is not the case
before us, therefore, we are not passing any
order on this issue. Needless to say that the
petitioners have also annexed Marriage
Certificate as Annexure-6 to the writ petition,
issued by the Marriage Registration Officer,
Ghaziabad, and at this stage, we have no
reason to doubt the genuineity of the
marriage certificate in the instant case. The
instant petition has been filed for release of
minor-wife's custody by the husband. We are
leaving it open for the parties to raise the
issue of validity of marriage in appropriate
proceedings before the competent court, if
any, would arise in future.

14. Concerning the custody of the
minor-wife, her statement under Section
164 Cr.P.C. asserts that she is 19 years old,
married to petitioner no.2 through Hindu
rites and customs, and has been living as
husband and wife since the date of
marriage, and subsequently registered at
the
Marriage
Registration
Office-III,
Ghaziabad, U.P. She further expresses her
desire to live with her husband and requests
to be handed over to him.

 15. The court opines that a minor
possesses
the
capacity
to
form
an
intelligent preference about the choice of
living
arrangements.
The
paramount
consideration in deciding the return of a
minor to the custody of a guardian or
husband is the welfare of the minor.

16. The co-ordinate Bench of this Court
consistently holds the view that a minor
capable of making conscious decisions about
her welfare and future life and voluntarily
entering into a marital relationship should be
considered. It is noteworthy that the mother of
petitioner no.1 has declined the custody of the
minor wife. Consequently, the court concludes
that petitioner no.1 is no longer required to be
retained and is free to go with her husband.
She is at liberty to live with the man of her
choice.

17. Accordingly, the petition stands
disposed of in above stated terms.
----------
(2024) 1 ILRA 1017
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Misc. Writ Petition No. 14702 of 2023
AND
Criminal Misc. Writ Petition No. 14706 of 2023

Amit Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Shiv Sagar Singh, Sri Manish Gupta

Counsel for the Respondents:
G.A.,Sri Sanjay Yadav, Sri Gyan Prakash
Singh (Sr. Adv.)

A. Constitution of India, 1950-Article 226Indian Penal Code, 1860-Sections 409, 420,
466, 467, 469, 471 & 120-B & Prevention of
Corruption Act, 1988-Sections 13(1)(d),
13(2)-Challenge to-sanction order for the
petitioner's prosecution-FIR registered and
the case was transferred to the CBCID-the
closure report was challenged before the
High Court-CBI directed to conduct an
investigation
into
the
allegations
of
corruption and illicit accumulation of money
to Rs. 954 Crores in connection with award
of contracts-there is no question of the
annulment of the impugned sanction for
prosecution order at this decisive stage of
the investigation when the investigation has
brought to light the involvement of the
petitioners in the award of contract, besides
other intentional irregularities for illegal
pecuniary gain supported by substantive
evidence
gathered
by
the
CBI-Such
interference
would
be
deemed
unwarranted at this critical phase of the
investigation-The court's leniency would
undermine the very essence of Section 19 of
the Act, 1988 leading to a substantial
detriment of the interests of justice.(Para 1
to 47)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Kanhaiya Lal Saraswati Vs St. (2021) LE All
149 DB

2. Vijay Rajmohan Vs St. reptd. by the Insp. of
Police, CBI , ACB, Chennai, T.N. (2022) LivLaw
(SC) 832

3. A. Sreeniwas Reddy Vs Rakesh Sharma & anr.
(2023) 8 SCC 711

4. St. of Chhttisg. Vs Aman Kumar Singh (2023)
6 SCC 559
5. St. of Karn. Vs S Sube Gauda (2023) Law Suit
750

6. Vinod Kumar Garg Vs St. (Gov. of NCT of
Delhi) (2020) 2 SCC 88

7. B. Saha & ors.Vs M.S Kochar (1979) 4 SCC 177

8. Pukhraj Vs St. of Raj. & anr. (1973) 2 SCC 701

9. Nanjappa Vs St. of Karn. (2015) 14 SCC 186

10. St. of Karn. Lokayukta Police Vs S.
Subbegowda (2023) SCC OnLine SC 911

11. Oswal Fats & Oils Ltd Vs Addl. Commr.
(Admin.) Bareilly Div. Bareilly & ors.(2010) 4 SCC
728

12. R. Vs. Kensington Income Tax Commr.
(1917) 1 KB 486 (DC & CA)

13. St. of Har. Vs Karnal Distillery Co. Ltd. (1977)
2 SCC 431

14. Vijay Kumar Kathuria (Dr.) Vs St. of Har.
(1983) 3 SCC 333

15. Welcom Hotel Vs St. of A.P. (1983) 4 SCC
575

16. G. Narayanaswamy Reddy Vs Govt of
Karn.(1991) 3 SCC 261

17. S.P Chengalvaraya Naidu Vs Jaganath (1994)
1 SCC 1

18. Agricultural & Processed Food Products Vs
Oswal Agro Furane (1996) 4 SCC 297

19. UOI Vs Muneesh Suneja (2001) 3 SCC 92

20. Prestige Lights Ltd Vs S.B.I. (2007) 8 SCC
449

21. Sunil Poddar Vs UBI (2008) 2 SCC 326

22. KD Sharma Vs SAIL & ors.(2008) 12 SCC 481

23. G Jayashree Vs Bhagwandas S . Patel
(2009) 3 SCC 141

24. Dalip Singh Vs St. of U.P.(2010) 2 SCC 114
1 All. Amit Kumar Vs. State of U.P. & Ors.
1019
(Delivered by Hon'ble Vivek Kumar Birla,
J.
&
Hon'ble Vinod Diwakar, J.)

1. Heard Shri Manish Gupta along
with Shri Shiv Sagar Singh, learned
counsel appearing for the petitioners, Shri
Gyan Prakash, learned Senior Counsel
assisted by Shri Sanjay Kumar Yadav,
learned counsel appearing for the CBI.

2. Pursuant to the issuance of the
impugned Sanction Order1 (hereinafter
referred to as the 'impugned order'), the
petitioners have filed the present writ
petition
under
Article
226
of
the
Constitution of India, seeking to quash and
set aside the impugned order granting
sanction for the petitioners' prosecution in
the
case
registered
as
RC/DST/2015/A/004/STB/DLI
by
the
Central Bureau of Investigation (CBI) upon
the High Court's direction.

3. In order to decide the contentions
raised in these petitions, succinct facts are
imperative to arrive at a just and reasonable
conclusion within the given factual context.
For the sake of convenience, the salient
facts are delineated as follows:

4. The core of the accusations
emanates from the initial FIR registered on
13.1.2012 as Case Crime No.280 of 2012,
invoking sections 409, 420, 466, 467, 469,
471 and 120-B IPC read with sections
13(1)(d)
&
13(2)
of
Prevention
of
Corruption Act, 1988 at P.S. Sector- 39
NOIDA, Gautam Budh Nagar, Uttar
Pradesh by the local police. Subsequently,
the case was transferred to the Crime
Branch- Criminal Investigation Department
(CBCID), Meerut, for an impartial and
unbiased investigation; upon completion of
the investigation, the CBCID submitted its
final report before the court of learned
Special Judge (SC/ST), Gautam Budh
Nagar, which was accepted on 27.11.2014.

5. The closure report was challenged
before the High Court and in pursuance to
the order dated 16.7.2015 passed by the
Lucknow Bench of this Court in Misc.
Bench No.12396 of 2014, the STF Branch
of CBI re-registered an FIR bearing Case
No. RC/DST/2015/A/004 on 30.7.2015
against Yadav Singh, the then Chief
Engineer,
NOIDA/Greater
Noida
and
Yamuna Express Authority and other
unknown persons, under section 120-B IPC
read with sections 409, 420, 466, 467, 469
and 471 IPC read with section 13(2) &
13(1)(d) of Prevention of Corruption Act,
1988. The CBI was directed to conduct an
investigation
into
the
allegations
of
corruption and illicit accumulation of
money to Rs. 954 Crores by Yadav Singh,
other
accused
persons
and
entities
connected thereto in the award of contracts.

6. Against this backdrop, the CBI
took over the investigation and concluded
the
first
phase
of
investigation
on
15.3.2016, and accordingly filed the
charge-sheet against Rajeev Kumar (JE),
R.D. Sharma (JE), Ompal Singh (JE), Devi
Ram Arya (Assistant Project Engineer),
Jashpal Singh (Assistant Project Engineer),
Ramendra (Project Engineer) and Yadav
Singh (Chief Mechanical Engineer) and
other
private
accused
persons
for
commission of offences under section 120B read with sections 420, 109, 468, 471
IPC and section 13(2) read with 13(1)(d) of
Prevention of Corruption Act, 1988. The
CBI concluded the investigation with the
finding "that the further investigation in the
instant case is still continuing", and if any
new evidence emerged against any of the
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
above-mentioned accused persons or any
other, a supplementary charge-sheet along
with the additional list of witnesses and/or
documents, if any, will be filed in due
course with the permission of this Court."

7. The investigation culminated with
the revelation that Junior Engineers, within
their respective jurisdictions, prepared
rough estimates by quoting exorbitant rates
against the department's interests. The
Project Engineer and Assistant Project
Engineer
knowingly
transmitted
these
rough estimates to higher authorities,
contravening the Central Public Works
Department (CPWD) manual for financial
gain.
Yadav
Singh,
the
then
Chief
Mechanical Engineer (CME), approved
inflated preliminary and detailed estimates
without conducting a market survey. Tender
norms were consistently compromised at
each stage to favour contractors unduly.
The compromise extended to the quality of
work, selection of unauthorized firms,
intentional disregard for poor work quality,
flouting established procedures to favour
contractors,
and
the
acceptance
of
substantial kickbacks.

8. During the investigation, it was
disclosed that contractors commenced work
even before contract awards, and in
pursuance of a criminal conspiracy, private
contractors orchestrated tender proceedings
by forming a cartel.

9. Furthermore, the prosecution
asserts that Yadav Singh, while serving as
CME in Noida, unduly favoured M/s Gul
Engineers Co. by awarding 31 electrical
work contracts amounting to Rs.37.99
crores during the period 2007-2012. This
alleged favouritism transpired in criminal
conspiracy with other officers/officials of
the Noida Authority and Javed Ahmed,
Proprietor of M/s Gul Engineers Co., who
was a longstanding friend of Yadav Singh.
It is alleged that M/s Gul Engineers Co. did
not meet the eligibility criteria for work
experience and was engaged in the
cartelization of bidders. Yadav Singh, in
conspiracy with others, awarded contracts
at exorbitant rates, causing a wrongful loss
of approximately Rs.2.2 crores in the
contracts under question in this petition.

10. Consequently, the CBI has sought
sanction for the prosecution of the accused
companies concerning a batch of contracts.
Given the number of companies, contract
details, nature of work, and assigned areas,
the CBI has sought sanction for prosecution
on a Contract Bond-wise. During the
inquiry, it was prima facie evident that five
firms/companies associated with friends
and family members of Yadav Singh were
unduly
favoured,
resulting
in
gross
violations of tender norms and procedures,
and causing illegal losses to the Noida
Authority. These entities include: (1) M/s
Gul Engineers Co., Proprietor Javed
Ahmed, (2) M/s SMP Technology Pvt. Ltd.,
Directors Sai Raju, Manish Kumar, and
Prem Pradeep, (3) M/s Abu Infracon Pvt.
Ltd., Directors Kumar Saurav and Prem
Pradeep,
(4)
M/s
Sanjay
Electricals,
Proprietor Sanjay Kumar Gupta, and (5)
M/s
Shakambari
Projects,
Ranchi,
Proprietor Sanjay Kumar Sharma.

11. The petitioners assailed the
impugned sanction order dated 24.8.2023,
on the following grounds:

11.1 The CBI has previously
taken a stand before the co-ordinate Bench
in Criminal Misc. Writ Petition No.12437
of 2022, titled Javed Ahmad v. CBI and
others, that the investigation in the
impugned
charge-sheet
has
already
1 All. Amit Kumar Vs. State of U.P. & Ors.
1021
concluded regarding two contracts awarded
to the accused company. The said petition
is pending disposal before this Court.
Considering the fact that the investigation
is concluded, the CBI is precluded from
seeking fresh sanction for the petitioners'
prosecution.

11.2 The sanction order dated
24.8.2023 was mechanically issued without
due application of mind, and additionally, it
contravenes
section
13(1)(d)
of
the
Prevention of Corruption Act, 1988,
repealed on 26.7.2018.

11.3 The sanctioning authority
failed to consider that the impugned
sanction was sought seven years after
registration of the FIR, despite the
petitioners not being implicated in any of
the charge-sheets filed on 15.3.2016,
31.5.2017, and 6.10. 2021.

11.4
The
investigation
into
contracts awarded to M/s Gul Engineers, an
accused
company,
mentioned
in
RC/DST/2015/A/004, constitutes an abuse
of investigative power, aiming to harass the
petitioners.

11.5 Out of 67, the trial court has
examined 40 witnesses so far and allowing
further investigation would be an unending
prosecution against the petitioners.

11.6
Initiating
a
de-novo
investigation into alleged contract awards
would defy the rule of law, the prosecuting
agency's
role
is
not
to
perpetuate
investigations endlessly but to unearth the
unvarnished
truth,
in
line
with
constitutional
rights
guaranteed
under
Articles 20 and 21 of the Constitution of
India.

11.7 The investigating agency's
biased and tainted approach, as evident in
this case, is impermissible, and this Court's
intervention is necessary to uphold justice
and preserve the sanctity of the rule of law.

12. Per contra, Shri Gyan Prakash,
learned Senior Counsel for the CBI states
that there are serious allegations of
systematic corruption against the accused
persons, who, by holding government
positions in connivance with contractors
and private individuals, were involved in
large-scale corruption. The conspiracy to
do corruption was meticulously planned
and executed by the accused, making the
investigating agency invest a lot of effort
and time, and the petitioners did not
approach this Court with clean hands. The
petitioners have not stated the correct facts
before the Court, and the source of receipt
of the impugned order has not been
disclosed in the petition. Such concealment
has been done to achieve an ulterior
purpose, which amounts to abuse of the
process of court. The concealment of
material facts is impermissible to the
litigants and such petitioners are required to
be dealt with for contempt of court for
abusing the process of the court.

13. To fortify his contentions, learned
Senior Counsel has extensively relied upon
two
orders.
Firstly,
an
order
dated
17.6.2022,
issued
vide
letter
No.2243/RC/DST/2015/A/0004/STB/DLI,
wherein the sanctioning authority was
formally approached to accord sanction for
the prosecution against the petitioners. It is
noteworthy that the request letter was
marked
as
"confidential",
explicitly
indicated at the top right corner of the letter
under the heading "confidential". The
pertinent excerpt from the letter dated
17.6.2022, is reproduced herein below:
1022 INDIAN LAW REPORTS ALLAHABAD SERIES

"CENTRAL BUREAU OF
INVESTIGATION

SPECIAL TASK BRANCH

5 B, CGO Complex, Lodhi
Road,

New Delhi-110003

Phone No. 011-2436857 (Fax No.
011-24368662)

Confidential

No.
2243/RC/DST/2015/A/0004/STB/DLI
Dated 17.06.2022

To,

The Chief Executive Officer,

New
Okhla
Industrial
Development Authority (NOIDA)

Sector-6, NOIDA

Sub- Forwarding of CBI Report
and
Model
Selection
Orders
in
RC/DST/2015/A/0004/STB/DLI.

*****

CBI Report sent herewith may
please be treated as a confidential
document and no reference to it may be
made, while pursuing the matter further or
any other action initiated upon it. In case
any applicant seeks copy of the Report or
part thereof under RTI Act, view of CBI
should be ascertained as per section 11 of
RTI Act, 2005 before deciding the matter.

*****

It is therefore, requested that
Sanction Order U/s 10 of the PC Act- 1988
& PC(Amendment) Act-2018 may be
accorded by the Competent Authority for
prosecution of the above public servants
of NOIDA as required under the law and
may please be sent to this office in
duplicate as early as possible, so that
charge sheet can be filed in the Court of
Law.

Sd/-

Superintendent of Police

CBI, STB, New Delhi"

14. In response to the letter dated
17.6.2022,
the
Government
of
Uttar
Pradesh, through Letter No.5107/77-4-2327
N/20CT
dated 24.8.2023
granted
sanction for the prosecution against the
petitioners. At that time, the petitioners
held the position of Junior Engineer
(Electrical/Mechanical) in the NOIDA
Authority. The impugned order reached the
petitioners' possession before the Central
Bureau of Investigation (CBI) obtained a
copy of the said sanction order. It is
pertinent to note that the model sanction
order was issued by the CBI on 17.6.2022
against the petitioners and other co-accused
persons. The government accorded sanction
on 26.8.2023, the petitioners challenged the
said sanction order through the present
petition on 3.10.2023, and the CBI received
the impugned sanction order on 6.10.2023
via post. In summary, the petitioners gained
access to the impugned order illegally and
unauthorisedly
before
the
prosecuting
agency contrary to the confidentiality
clause of the document, and they obtained
the impugned order, a document they could
only acquire after the filing of the chargesheet or during trial.

15. In response to the arguments
fortified by Shri Manish Gupta, learned
counsel for the petitioners, Shri Gyan
Prakash, learned Senior Counsel, submits
1 All. Amit Kumar Vs. State of U.P. & Ors.
1023
that the charge-sheet no.2/16 in RC
No.DST/2015A/004, was filed concerning
Contract Bond No.375/AO/E in C/E & MII/11-12, dated 8.12.2011; Contract Bond
No.376/AO/E
in
C/PE(E&M)-II/11-12,
dated 8.12.2011, and Contract Bond
No.382/AO/E
in
C/PE/(E&M)-II/11-12,
dated 9.12.2011 against accused Yadav
Singh, Ramendra, Ravi Ram Arya, Rajeev
Kumar, Jai Pal Singh, R.D. Sharma, Om
Pal Singh, Kusum Lata, Vinod Kumar
Goel, Pradeep Garg, Pankaj Jain, and M/S
Tirupati
Constructions-
through
its
representatives.
Additionally,
supplementary charge-sheet no.7/17 was
filed against Babita Devi wife of Ramendra
on 31.5.2017.

16. In supplementary charge-sheet
no.6/17, dated 31.5.2017, pertaining to
Contract Bond No.24/ENC/PE (E&MIII)/ 2011-12, dated 24.10.2011, and
Contract Bond No.31/ ENC/PE (E&MIII)/ 2011-12, dated 16.11.2011, Yadav
Singh, Vimal Kumar Manglik, Sushil
Kumar Agarwal, Rajesh Kumar Sharma,
Pankaj Jain, and M/S JPS Constructions
Company- through its legal representatives,
have been arrayed as accused.

17.

Supplementary
charge-sheet
no.5/21,
dated
6.10.2021,
was
filed
concerning
Contract
Bond
No.133/SFAO/CDE/PE-II/CCD-IV-11-12,
dated 23.12.2011. The accused in this
charge-sheet included Yadav Singh, R.K.
Johri, R.K. Jain, S.K. Gupta, Sant Ram,
Deepak Kumar, A.C. Singh, Anil Sharma,
Santosh
Kumar
Srivastava,
Davendra
Kumar Gangal, N.U. Khan, and M/S Anand
Buil Tech Pvt. Ltd.- through its Director
Davendra Kumar Gangal.

18. The impugned sanction for
prosecution order is sought with respect to
the tenders awarded to i) M/s Gul
Engineers
under
Contract
Bond
No.405/E&C/AO-E&M-I/2011-12,
dated
15.12. 2011, for work related to shifting 11
KV feeder of Yamuna Pushta from village
Gadhi to village Nagli Noida; ii) M/s Gul
Engineers
under
Contract
Bond
No.416/E&C/AO-E&M-I/2011-12,
dated
16.12.2011, for work related to the
conversion of 33 KV, 11 KV, and LT
Electric Lines into an underground system
coming from both sides of Kailash Hospital
Road between Sector-26 and 27, Noida;
and iii) the tender awarded to M/s NKG
Infrastructure Ltd. under Contract Bond
No.994/E&C/AO-E&M-I/2011-12,
dated
22.12.2011, for work related to providing a
33 KV Double Circuit Line from 220 KV
Station Base-II, Noida.

19. Consequently, the CBI requested
the State Government to accord sanction
under Section 19 of the Prevention of
Corruption Act, 1988 (as amended by Act
No.16 of 2018) against Yadav Singh, Chief
Maintenance Engineer (JAL), NOIDA;
A.C. Singh, Finance Controller (FC);
Santram, CPE, E&M-II Division; Pramod
Kumar, Junior Engineer, E&M-I, NOIDA;
Dr.
Nizamuddin,
Assistant
Project
Engineer, E&M-I Division; S.K. Gupta,
Project
Engineer,
E&M-I
Division;
Ramendra, PE, E&M-II Division; J.P.
Singh, APE, E&M-II Division; Amit
Kumar, Junior Engineer, E&M-II Division;
P.K. Dixit, Accounts Officer, regarding
Contract Bonds awarded to M/S Gul
Engineering, and similarly against Yadav
Singh, A.C. Singh, Santram, R.P. Burman,
S.K. Gupta, Dr. Nizamuddin, and Pramod
Kumar regarding Contract Bonds awarded
to M/s NKG Infrastructures Pvt. Ltd.

20. Amit Kumar, Junior Engineer,
E&M-II NOIDA, and Pramod Kumar,
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
Junior Engineer E&M-I NOIDA, are before
us, seeking to quash the impugned
sanction for prosecution.

21. Shri Gyan Prakash, learned
Senior Counsel has cited and referred to
various authorities, including Kanhaiya
Lal Saraswati v. State2; Vijay Rajmohan
v. State represented by the Inspector of
Police, CBI, ACB, Chennai, Tamil
Nadu3; A. Sreeniwas Reddy v. Rakesh
Sharma
and
another4;
State
of
Chhattisgarh v. Aman Kumar Singh5;
State of Karnataka v. S Sube Gauda6;
Vinod Kumar Garg v. State (Government
of National Capital Territory of Delhi)7,
and a judgment and order dated 3.9.2020
passed by a co-ordinate Bench of this
Court in Criminal Misc. Writ Petition
No.7707 of 2020 titled Man Singh v.
Central Bureau of Investigation.

22. Speaking for A. Sreenivasa
Reddy case (supra), J.B. Pardiwala, J.
stated that the word "sanction" is not
defined in the statute. The dictionary
meaning of the word "sanction" is as
under:

"42. The word "sanction" has
not been defined in CrPC. The dictionary
meaning of the word "sanction" is as
under:

"Webster's Third New Internal
Dictionary:
Explicit
permission
or
recognition by one in Authority that gives
validity to the act of another person or
body; something that authorizes, confirms,
or countenances.

The
New
Lexicon
Webster's
Dictionary: Explicit permission given by
someone in Authority.

The Concise Oxford Dictionary:
Encouragement given to an action, etc. by
custom or tradition; express permission,
confirmation or ratification of a law, etc.
authorize, countenance, or agree to (an
action, etc.)

Stroud's
Judicial
Dictionary:
Sanction not only means prior approval;
generally it also means ratification.

Words and Phrases: The verb
'sanction' has a distinct shade of meaning
from 'authorize' and means to assent,
concur, confirm or ratify. The word conveys
the idea of sacredness or of Authority.

The Law Lexicon by Ramanatha
Iyer: Prior approval or ratification.

In 78 Corpus Juris Secundum at
p. 579, different meanings have been given
to the word as a noun and as a verb. As a
noun, it means penalty or punishment
provided as a means of enforcing obedience
to a law and, in a wider sense, an
authorisation of anything, and it may
convey the idea of authority. As a verb
"sanction" is defined as meaning to assent,
concur, confirm or ratify. In United States
v.Tillinghast [United States v. Tillinghast,
55 F 2d 279 (DRI 1932)], it was held that
where legal rights are involved it is
doubtful whether it should be construed as
requiring
less
than
an
unmistakable
expression of approval."

23. For the ready reference, the
relevant portion of sub-sections 1, 3 and 4
of Section 19 of the Prevention of
Corruption Act are reproduced herein:

"(1)
No
court
shall
take
cognizance of an offence
1 All. Amit Kumar Vs. State of U.P. & Ors.
1025

punishable under 2[sections 7,
11, 13 and 15] alleged to have been
committed by a public servant, except with
the previous sanction 3[save as otherwise
provided in the Lokpal and Lokayuktas Act,
2013 (1 of 2014)]-

(a) in the case of a person 4[who is
employed, or as the case may be, was at the
time of commission of the alleged offence
employed] in connection with the affairs of
the Union and is not removable from his
office save by or with the sanction of the
Central Government, of that Government;

(b) in the case of a person 4[who
is employed, or as the case may be, was at
the time of commission of the alleged
offence employed] in connection with the
affairs of a State and is not removable from
his office save by or with the 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: [Provided that no request can
be made, by a person other than a police
officer or an officer of an investigation
agency or other law enforcement authority, to
the appropriate Government or competent
authority, as the case may be, for the previous
sanction of such Government or authority for
taking cognizance by the court of any of the
offences specified in this sub-section, unless-
(i) such person has filed a complaint in a
competent court about the alleged offences
for which the public servant is sought to be
prosecuted; and (ii) the court has not
dismissed the complaint under section 203 of
the Code of Criminal Procedure, 1973 (2 of
1974) and directed the complainant to obtain
the sanction for prosecution against the
public servant for further proceeding:
Provided further that in the case of request
from the person other than a police officer or
an officer of an investigation agency or other
law enforcement authority, the appropriate
Government or competent authority shall not
accord sanction to prosecute a public servant
without providing an opportunity of being
heard to the concerned public servant:

Provided
also
that
the
appropriate Government or any competent
authority shall, after the receipt of the
proposal requiring sanction for prosecution
of a public servant under this sub-section,
endeavour to convey the decision on such
proposal within a period of three months
from the date of its receipt:

Provided also that in case where,
for the purpose of grant of sanction for
prosecution, legal consultation is required,
such period may, for the reasons to be
recorded in writing, be extended by a
further period of one month:

Provided also that the Central
Government may, for the purpose of
sanction for prosecution of a public
servant, prescribe such guidelines as it
considers necessary.

Explanation.- For the purposes of
sub-section (1), the expression "public
servant" includes such person-

(a) who has ceased to hold the
office during which the offence is alleged to
have been committed; or

(b) who has ceased to hold the
office during which the offence is alleged to
have been committed and is holding an
office other than the office during which the
offence is alleged to have been committed.]

(3)
Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974),-
1026 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) no finding, sentence or order
passed by a special Judge shall be reversed
or
altered
by
a
Court
in
appeal,
confirmation or revision on the ground of
the absence of, or any error, omission or
irregularity in, the sanction required under
sub-section (1), unless in the opinion of
that court, a failure of justice has in fact
been occasioned thereby;

(b) no court shall stay the
proceedings under this Act on the ground of
any error, omission or irregularity in the
sanction granted by the authority, unless it
is satisfied that such error, omission or
irregularity has resulted in a failure of
justice;

(c) no court shall stay the
proceedings under this Act on any other
ground and no court shall exercise the
powers of revision in relation to any
interlocutory order passed in any inquiry,
trial, appeal or other proceedings.

(4) In determining under subsection (3) whether the absence of, or any
error, omission or irregularity in, such
sanction has occasioned or resulted in a
failure of justice the court shall have regard
to the fact whether the objection could and
should have been raised at any earlier
stage in the proceedings.

Explanation- For the purposes of
this section,-

(a) error includes competency of
the authority to grant sanction;

(b) a sanction required for
prosecution includes reference to any
requirement that the prosecution shall be at
the instance of a specified authority or with
the sanction of a specified person or any
requirement of a similar nature.

24. In B. Saha and others v. M.S.
Kochar8, a 3-judge Bench of the Supreme
Court emphasized the requirement of a
reasonable connection between the act and
the discharge of official duty. The Court
held that the act must bear a substantive
relation to the duty, allowing the accused to
make a reasonable but not a pretended or
fanciful claim that the act was performed in
the course of official duty.

25. In Pukhraj v. State of Rajasthan
and another9, the Supreme Court delved
into the object, nature, and scope of
according sanctions. The Court recognized
the legislative intent behind this provision,
aiming to shield public servants from
unnecessary harassment. The Supreme
Court, outlined the test of the scope of
official duty, as under:

"The test appears to be not that
the offence is capable of being committed
only, by a public servant and not anyone
else, but that it is committed by a public
servant in an act done or purporting to be
done in the execution of his duty. The
section cannot be confined to only such
acts as are done by a public servant
directly in pursuance of his public office,
though in excess of the duty or under a
mistaken belief as to the existence of such
duty, nor need the act constituting the
offence be so inseparably connected with
the official duty as to form part and parcel
of the same transaction. What is necessary
is that the offence must be in respect of an
act done or purported to be done in the
discharge of an official duty. It does not
apply to acts done purely in a private
capacity by a public servant. Expressions
such as the "capacity in which the act is
performed",
"Cloak
of
office"
and
"professed exercise of office" may not
always be appropriate to describe or
1 All. Amit Kumar Vs. State of U.P. & Ors.
1027
delimit the scope of the section. An act
merely because it was done negligently
does not cease to be one done or
purporting to be done in execution of a
duty."

26. In the case of Nanjappa v. State
of Karnataka10, the Supreme Court
extensively addressed the stage at which
the validity of a sanction accorded under
Section 19(1) of the Act could be
challenged. The Court carefully navigated
through the intricacies of Section 19(1), as
well as Section 19(3) and 19(4) of the said
Act, elucidating when the question of the
validity of sanction could be raised and
outlined the powers of sub-section (3) of
Section 19 of the court in appeal,
confirmation, or revision.

27. The legal position regarding the
importance of sanction under Section 19 of
the Prevention of Corruption Act is thus
much too clear to admit equivocation. The
statute forbids taking of cognizance by the
court against a public servant except with the
previous sanction of an authority competent
to grant such sanction in terms of clauses (a),
(b) and (c) to Section 19(1). The question
regarding the validity of such sanction can be
raised at any stage of the proceedings. The
competence of the court trying the accused so
much depends upon the existence of a valid
sanction. In case the sanction is found to be
invalid, the court can discharge the accused,
relegating the parties to a stage where the
competent authority may grant a fresh
sanction for the prosecution in accordance
with the law. If the trial court proceeds,
despite the invalidity attached to the sanction
order, the same shall be deemed to be non-est
in the eyes of the law and shall not forbid a
second trial for the same offences, upon grant
of a valid sanction for such prosecution.

28. It would be apt to reproduce the
relevant extract of Najappa's case (supra)
hereinunder:

"23.1. It was argued on behalf of
the State with considerable tenacity worthy
of a better cause, that in terms of Section
19(3), any error, omission or irregularity in
the order sanctioning prosecution of an
accused was of no consequence so long as
there was no failure of justice resulting
from such error, omission or irregularity. It
was contended that in terms of Explanation
to Section 4, "error includes competence of
the authority to grant sanction". The
argument is on the face of it attractive but
does not, in our opinion, stand closer
scrutiny.

23.2. A careful reading of subsection (3) to Section 19 would show that
the same interdicts reversal or alteration of
any finding, sentence or order passed by a
Special Judge, on the ground that the
sanction order suffers from an error,
omission or irregularity, unless of course
the court before whom such finding,
sentence or order is challenged in appeal
or revision is of the opinion that a failure of
justice has occurred by reason of such
error, omission or irregularity. Sub-section
(3), in other words, simply forbids
interference with an order passed by the
Special Judge in appeal, confirmation or
revisional proceedings on the ground that
the sanction is bad save and except, in
cases where the appellate or revisional
court finds that failure of justice has
occurred by such invalidity. What is
noteworthy is that sub-section (3) has no
application to proceedings before the
Special Judge, who is free to pass an order
discharging the accused, if he is of the
opinion that a valid order sanctioning
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution of the accused had not been
produced as required under Section 19(1).

23.3. Sub-section (3), in our
opinion, postulates a prohibition against a
higher court reversing an order passed by
the Special Judge on the ground of any
defect, omission or irregularity in the order
of sanction. It does not forbid a Special
Judge from passing an order at whatever
stage of the proceedings holding that the
prosecution is not maintainable for want of
a valid order sanctioning the same.

23.4. The language employed in
sub-section (3) is, in our opinion, clear and
unambiguous. This is, in our opinion,
sufficiently evident even from the language
employed in sub-section (4) according to
which the appellate or the revisional court
shall, while examining whether the error,
omission or irregularity in the sanction had
occasioned in any failure of justice, have
regard to the fact whether the objection
could and should have been raised at an
early stage. Suffice it to say, that a conjoint
reading of sub-sections 19(3) and (4)
leaves no manner of doubt that the said
provisions envisage a challenge to the
validity of the order of sanction or the
validity of the proceedings including
finding, sentence or order passed by the
Special Judge in appeal or revision before
a higher court and not before the Special
Judge trying the accused.

23.5. The rationale underlying
the provision obviously is that if the trial
has proceeded to conclusion and resulted in
a finding or sentence, the same should not
be lightly interfered with by the appellate
or the revisional court simply because there
was some omission, error or irregularity in
the order sanctioning the prosecution under
Section 19(1). Failure of justice is, what the
appellate or revisional court would in such
cases look for. And while examining
whether any such failure had indeed taken
place, the Court concerned would also keep
in mind whether the objection touching the
error, omission or irregularity in the
sanction could or should have been raised
at an earlier stage of the proceedings
meaning thereby whether the same could
and should have been raised at the trial
stage instead of being urged in appeal or
revision."

29. The Supreme Court revisited the
issue in hand in the case of the State of
Karnataka,
Lokayukta
Police
v.
S.
Subbegowda12. In this case, the State of
Karnataka, Lokayukta Police, through an
appeal, challenged the judgment and order
passed by the High Court of Karnataka at
Bangalore in Criminal Petition No.4463 of
2018. The High Court had discharged the
accused from offences charged under
Section 13(1)(e) read with Section 13(2) of
the Prevention of Corruption Act, 1988,
asserting that the sanction granted by the
government to prosecute the accused was
illegal and lacked jurisdiction. After the
examination of 17 prosecution witnesses, in
the midst of the trial, the accused filed an
application under Section 227 of the
Criminal
Procedure
Code
(Cr.P.C.),
contending that the State Government had
no jurisdiction to accord the sanction for
prosecution under Section 19(1) of the said
Act. The Supreme Court thus held that:

"15. As a matter of fact, such an
interlocutory application seeking discharge
in the midst of trial would also not be
maintainable. Once the cognizance was
taken by the Special Judge and the charge
was framed against the accused, the trial
could neither have been stayed nor scuttled
in the midst of it in view of Section 19(3) of
1 All. Amit Kumar Vs. State of U.P. & Ors.
1029
the said Act. In the instant case, though the
issue of the validity of sanction was raised
at an earlier point of time, the same was
not pressed for. The only stage open to the
respondent-accused in that situation was to
raise the said issue at the final arguments
in the trial in accordance with law."

30. Shri Gyan Prakash, learned Senior
Counsel for CBI further drawn the attention
of the Court to the fact that the impugned
order has been obtained by the petitioner
illegally and unauthorizedly which is also
apparently reflected from the records. At the
outset, we would say that the petitioner has
approached this Court under Article 226 of
the Constitution of India invoking writ
jurisdiction which ought to be exercised
judiciously and circumspectly by the courts,
with a primary focus on serving the ends of
justice rather than causing harm to the legally
prescribed procedural framework.

31. Before delving into the arguments
and submissions, it is imperative to
underscore that the impugned order is
enveloped in a confidential clause, the
verbatim content of which is articulated
herein: "CBI Report sent herewith may
please
be
treated
as
a
confidential
document, and no reference to it may be
made while pursuing the matter further or
any other action initiated upon it.