# Arvind Mishra v. C.B.I., Lucknow

- **Citation:** (2022) 8 ILRA 1051
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-25
- **Case number:** Application U/s 482 No. 6257 of 2019
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-mishra-v-c-b-i-lucknow-48706
- **Pages:** 5

## Headnote

Civil Law - Indian Evidence Act,1872 -
Section
33-impugned
order
allowed
for
reading the evidence recorded in a previous
proceedings of criminal case-treating it to be
relevant-in previous proceeding-evidences got
recorded and statement of accused recordedfinal order was-prosecution sanction was invalid-
Earlier court had jurisdiction-only sanction was
invalid-section
33
fully
applicable-AccusedApplicant is not prejudiced by impugned orderevidence recorded earlier cannot become nonest merely on the ground that the proceedings
were dropped because of improper/invalid
sanction under section 19 of the PC Act.

Application dismissed. (E-9)

List of Cases cited:

## Text

8 All. Arvind Mishra Vs. C.B.I., Lucknow
1051
would be required for their prosecution. In
absence
of
sanction,
the
criminal
proceedings against the applicants would
be non-est and void and the same are liable
to be quashed.

21. In view thereof, the application is
hereby
allowed.
Consequently,
the
impugned proceedings are quashed.
----------
(2022) 8 ILRA 1051
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.08.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Application U/s 482 No. 6257 of 2019

Arvind Mishra ...Applicant
Versus
C.B.I., Lucknow ...Opposite Party

Counsel for the Applicant:
Pranshu Agrawal, Raghvendra Pandey

Counsel for the Opposite Party:
A.S.G., Anurag Kumar Singh

Civil Law - Indian Evidence Act,1872 -
Section
33-impugned
order
allowed
for
reading the evidence recorded in a previous
proceedings of criminal case-treating it to be
relevant-in previous proceeding-evidences got
recorded and statement of accused recordedfinal order was-prosecution sanction was invalid-
Earlier court had jurisdiction-only sanction was
invalid-section
33
fully
applicable-AccusedApplicant is not prejudiced by impugned orderevidence recorded earlier cannot become nonest merely on the ground that the proceedings
were dropped because of improper/invalid
sanction under section 19 of the PC Act.

Application dismissed. (E-9)

List of Cases cited:
1. Baij Nath Prasad Tripathi Vs St. of Bhopal &
anr., AIR 1957 SC 494

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

3. Sudhindra Nath Vs The State, AIR 1953 Cal.
339

4. Lallan Prasad Vs St. of U.P. & Noorul Haq),
(2008) 3 ADJ 413

5. Subramanian Swamy Vs Director, Central
Bureau of Investigation & anr., (2014) 8 SCC
682
(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. Heard Mr. Pranshu Agrawal,
learned counsel for the accused-applicant,
as well as Mr. Anurag Kumar Singh,
learned counsel for respondent-Central
Bureau of Investigation, and gone through
the record.

2. By way of this application under
482 CrPC, the applicant has prayed for
quashing of the order dated 15.07.2019
passed by the learned Special Judge, AntiCorruption, CBI (West), Lucknow by
means of which application filed by the
CBI under Section 33 of The Indian
Evidence Act,1872 (hereinafter referred to
as 'Evidence Act') in Criminal Case No.502
of 2016 (State through CBI V. Arvind
Mishra) for reading the evidence, recorded
in the proceedings of Criminal Case No.04
of 2001, RC No 30(A) of 1999 and,
treating it to be relevant for Criminal Case
No.502 of 2016, has been allowed.

3. Facts of the case are that the
applicant is an accused in Criminal Case
No.502 of 2016, under Sections 120-B,
409, 420, 468 and 471 IPC read with
Section 7 and Sections 13(2) read with
Sections 13(1)(d) of the Prevention of
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
Corruption Act, 1988 (for short 'Act of
1988'), arising out of RC No.30(A) of
1999, Police Station CBI/ACB, Lucknow.

4. The trial of the said case is pending
before the learned Special Judge, AntiCorruption, CBI, West, Lucknow. The
earlier trial, arising out of the RC No.30(A)
of 1999, was conducted vide Criminal Case
No.04 of 2001. The evidence of all the
witnesses got recorded and the statement of
the accused-applicant was also recorded
under Section 313 CrPC. However, after
final argument on behalf of the CBI and the
accused-applicant, the learned trial Court,
vide judgment and order dated 30.11.2015
held that the prosecution sanction was
invalid. Thus, the accused-applicant was
discharged. The learned trial Court had,
however, observed that the competent
authority could grant fresh sanction for
prosecution, in accordance with law. The
CBI obtained fresh order dated 16.05.2016
for prosecution of the accused-applicant
and filed same charge-sheet on 12.08.2016
before the trial Court with fresh sanction
order. After charge got framed, the CBI
preferred an application under Section 33
of the Evidence Act dated 27.03.2019 for
admitting the evidence of the proceedings
of Criminal Case No.04 of 2001, arising
out of the same RC No.30(A) of 1999, in
Criminal Case No.502 of 1916 in the
present trial.

5. The learned trial Court has allowed
the said application vide the impugned
order dated 15.07.2019.

6. Mr. Pranshu Agrawal, learned
counsel for the applicant, submits that the
invalid sanction for prosecution of a public
servant makes the entire trial proceedings
null & void; once the trial proceedings of
Criminal Case No.04 of 2001 were void ab
initio, the evidence of the said trial, which
was rendered as null & void, cannot be read
in subsequent trial, which takes place after
the valid sanction has been accorded for
prosecution of the accused-applicant. The
learned counsel has placed reliance upon
judgment reported in AIR 1957 SC 494
(Baij Nath Prasad Tripathi V. State of
Bhopal and another) to submit that in
absence of valid sanction, no Court can
take cognizance of the offence in question.
In absence of the valid sanction, no Court
can be said to be the Court of competent
jurisdiction to try those offenes and the
trial, in absence of such sanction, is null &
void. Learned counsel submits that in
(2015) 14 SCC 186 (Nanjappa V. State of
Karnataka) it has been observed that in
absence of previous valid sanction, as per
requirement under Section 19 of the
Prevention of Corruption Act, 1988 (for
short 'PC Act'), the trial Court was not
competent to take cognizance of the
offence. The absence of valid sanction
under Section 19 (1) of the PC Act goes to
the very root of the prosecution case
inasmuch as the said provision prohibits
any Court from taking cognizance of any
offence punishable under Sections 7, 10, 13
and 15 of the PC Act against the public
servant, except with the previous sanction
granted by the competent authority. If the
trial
proceeds,
despite
the
invalidity
attached to the sanction order, proceedings
would be deemed to be non-est in the eyes
of law. However, the second trial for the
same offence would not be forbidden upon
grant
of
valid
sanction
for
such
prosecution.

7. The learned counsel has also placed
reliance upon the judgment reported in AIR
1953 Cal. 339 (Sudhindra Nath V. The
State) to submit that evidence in judicial
proceedings, which had taken place without
8 All. Arvind Mishra Vs. C.B.I., Lucknow
1053
jurisdiction,
cannot
be
permitted
in
evidence under Section 33 of the Evidence
Act in subsequent trial. The leaned counsel
has also placed reliance upon judgment of
this Court in (2008) 3 ADJ 413 (Lallan
Prasad V. State of U.P. and Noorul Haq)
to submit that in absence of a proper and
valid sanction earlier the trial Court was
incompetent to take cognizance and record
any evidence. It was a defect, which could
not be cured by the Court itself, as it was a
fundamental legal defect inasmuch as, in
absence of proper and legal sanction, the
Court was incompetent to take cognizance
and record the evidence. The Court could
not have taken cognizance for want of
proper and legal sanction and, it would not
have proceeded further and, after proper
sanction, denovo trial has to take place. It
has also been submitted that if it is a
denovo trial, the evidence that was led in
the previous trial, cannot be received in the
subsequent denovo trial. The learned
counsel,
therefore,
submits
that
the
impugned order passed by the learned trial
Court is unsustainable in the eyes of law.
The earlier trial was coram non judice,
therefore, he submits that this application
may be allowed.

8. On the other hand, Mr. Anurag
Kumar Singh, learned counsel for the
respondent-CBI, submits that the object
and purpose of the PC Act is to consolidate
and amend the law relating to prevention of
corruption and to make the corruption laws
more effective by widening their coverage
and strengthening the provisions. The New
Act seeks to provide for speedy trial of
offences punishable under the PC Act in
public interest as the legislature had
become aware of the corruption amongst
the public servants as held in (2014) 8 SCC
682 (Subramanian Swamy V. Director,
Central Bureau of Investigation and
another).

9.

Learned
counsel
for
the
respondent-CBI submits that FIR as RC
No. No.30(A) of 1999 was registered
against the accused-applicant and since
then 23 years have already passed. In the
earlier trial, in Case No.04 of 2001, arising
out of the same RC, as many as 9 witnesses
were examined and the accused-applicant
had cross-examined them. However, the
trial Court vide its order dated 30.11.2015
had held that the sanction for prosecution
was invalid and granted liberty to take a
fresh sanction. Even, thereafter more than 7
years have passed, and considering these
facts, the learned trial Court has allowed
the application under Section 33 of the
Evidence Act vide the impugned order. It is
further submitted that the accused-applicant
is not prejudiced in any manner inasmuch
as he had already cross-examined 9
witnesses, produced by the CBI, in detail. It
has also been submitted that some of the
witnesses had died during the course of
trial in Case No. 04 of 2001 and production
of the ramaining witnesses would not be
possible in the present case. The learned
counsel has submitted that the provisions of
Section 33 of the Evidence Act are
applicable in the present case as the
evidence given by the witnesses, during the
course of trial of Case No.04 of 2001, are
undoubtedly relevant for the purpose of
proving the prosecution case in the present
case. When the presence of the witnesses
cannot be secured without an amount of
further delay and expense, the provisions of
Section 33 of the Evidence Act can be
invoked. Recalling the witnesses, who were
cross-examined in Case No. 04 of 2001,
particularly, when some of them had died,
would not be feasible inasmuch as 23 long
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
years have gone-by since lodging of the
FIR as RC No.30(A) of 1999.

10. The learned counsel for the CBI
has submitted that the judgment in
Nanjappa V. State of Karnataka (supra),
relied upon by the learned counsel for the
accused-applicant, is not relevant in respect
of issue involved in the present case. In the
case of Nanjappa V. State of Karnataka
(supra), it was only held that in absence of
valid
sanction
order,
the
judicial
proceedings would be non-est in the eyes of
law. The question of applicability of
privisions of Section 33 of the Evidence
Act was not an issue in the said case. It has
been further submitted that the subsequent
trial, after valid sanction is granted, does
not amount to double jeopardy under
Article 20 of the Constitution of India. The
learned counsel for the prosecution-CBI
has further submitted that even if it is retrial, after obtaining valid and proper
sanction, the evidence, earlier recorded by
the trial Court in Case No.04 of 2001,
would not get frustrated. The accusedapplicant has failed to prove that how he is
prejudiced if the evidence which was
recorded earlier is read in the present trial
in Case No.502 of 2016.

11. I have considered the submissions
advanced on behalf of both the parties.

12. Section-33 of the Evidence Act,
on which the fate of the case hinges, reads
as under:-

"33.
Relevancy
of
certain
evidence for proving, in subsequent
proceeding, the truth of facts therein
stated.--Evidence given by a witness in a
judicial proceeding, or before any person
authorized by law to take it, is relevant
for the purpose of proving, in a
subsequent judicial proceeding, or in a
later
stage
of
the
same
judicial
proceeding, the truth of the facts which it
states, when the witness is dead or cannot
be found, or is incapable of giving
evidence, or is kept out of the way by the
adverse party, or if his presence cannot
be obtained without an amount of delay
or
expense
which,
under
the
circumstances of the case, the Court
considers unreasonable: Provided-- that
the proceeding was between the same
parties
or
their
representatives
in
interest; that the adverse party in the first
proceeding had the right and opportunity
to cross-examine; that the questions in
issue were substantially the same in the
first as in the second proceeding.

Explanation.--A criminal trial
or inquiry shall be deemed to be a
proceeding between the prosecutor and
the accused within the meaning of this
section."

13. The trials of Case Nos.04 of 2001
and 502 of 2016, arise out of one and the
same RC No.30(A) of 1999, between the
same parties. The accused-applicant had
full opportunity to cross-examine the
witnesses produced in Case No.04 of 2001
and, in fact, he cross-examined all the
witnesses produced by the prosecution. The
parties are the same in the first trial, in
Case No.04 of 2001, and second trial, in
Case No. 502 of 2016. The accusedapplicant has himself admitted that some of
the witnesses had died and 23 years have
passed since lodging of the FIR as RC
No.30(A) of 1999. It is not in dispute that
the production of the prosecution witnesses
would be extremely difficult, rather the
same is impossible. Even if some of the
witnesses are alive, their presence would be
obtained with an amount of further delay
and, therefore, in these circumstances, the
8 All. Rohitash Kumar Vs. State of U.P. & Ors.
1055
learned trial Court has allowed the
application of the prosecution under
Section 33 of the Evidence Act.

14. Short question, which false for
consideration by this Court, is whether the
evidence led in the trial of Case No.04 of
2001, which case got dismissed on the
finding recorded by the learned trial Court
that the sanction order for prosecution of
the accused-applicant under Section 19 of
the PC Act was improper and invalid, can
be taken/read in the subsequent trial in
Case No.502 of 2016. The Supreme Court
in the case of Nanjappa V. State of
Karnataka (supra) was dealing with the
issue that whether the trial, after proper
sanction, would amount to double jeopardy
or not. The question regarding applicability
of Section 33 of the Evidence Act was not
involved in the said case. It cannot be said
that the evidence, recorded in trial of Case
No.04 of 2001, was not in judicial
proceedings. The proceedings of earlier
trial and subsequent trial both are judicial
proceedings.

15. According to Section 33 of the
Evidence Act, the relevancy of certain
evidence
for
proving,
in
subsequent
proceeding, the evidence given by a
witness in a judicial proceeding, or before
any person authorized by law to take it, is
relevant for the purpose of proving, in a
subsequent judicial proceeding, or in a later
stage of the same judicial proceeding. So
far as the proceedings of the present case
are concerned, requirement of Section 33 of
the Evidence Act are fully satisfied. It is not
case of the accused-applicant that the
requirement of the Section 33 of the
Evidence Act are not satisfied in the present
case. It is not the case of the accusedapplicant that the earlier Court, before
which the trial of Case No.04 of 2001 was
conducted, did not have jurisdiction over
the offence, but the accused-applicant was
acquitted only on the ground that there was
no proper and valid sanction under Section
19 of the PC Act for his prosecution. There
is a distinction between complete lack/want
of jurisdiction and existence of jurisdiction
and its irregular and improper exercise.

16.

Considering
the
aforesaid
discussions, I am of the opinion that
ingredients of Section 33 of the Evidence
Act are fully applicable in the facts of the
present case. The accused-applicant is not
prejudiced in any manner by the impugned
order. The evidence, recorded earlier, was
in judicial proceedings, and the evidence
cannot become non-est merely on the
ground that the proceedings were dropped
because of improper/invalid sanction under
Section 19 of the PC Act. Therefore, I do
not find any error committed by the learned
trial Court in allowing the application of
the CBI and, thus, the present application
fails, which is hereby dismissed.
----------
(2022) 8 ILRA 1055
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 13567 of 2009

Rohitash Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.P.S. Chauhan

Counsel for the Respondents:
C.S.C., Sri Anuj Kumar, Mohit Singh