# Ashok Kumar Pathak v. C.B.I./ACB, Ghaziabad

- **Citation:** (2020) 10 ILRA 356
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-28
- **Case number:** Application U/S 482 No. 9551 of 2020
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-pathak-v-c-b-i-acb-ghaziabad-45241
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section 482,311
&
Prevention
of
Corruption
Act,1988
-
Sections 7, 13(2) r/w 13(1)(d)-quashing
of-application filed u/s 311 CrPc for
recalling PW-1 rejected-the sanction is
referable
to
Section
19,
however,
inadvertently sanctioned under Clause (a),
instead of Clause (c) of Section 19(1) of
the Act-it is not being disputed by the
applicant that PW-1 is not the competent
authority
to
accord
sanction
for
prosecution
and
applicant
is
not
a
government
servant-it
is
settled
proposition of law that mere mentioning
the wrong provision or non-mentioning of
a provision in the order would not vitiate
the
order
or
proceedings
initiated
pursuant
thereof.(Para
6
to
21)
10 All. Ashok Kumar Pathak Vs. C.B.I./ACB, Ghaziabad
357
B. The power conferred u/s 311 Cr.PC
must be invoked by the Court only in order
to meet the ends of justice, for strong and
valid reasons, and the same must be
exercised
with
great
caution
and
circumspection. Thus, there is no escape if
the fresh evidence to be obtained is
essential to the just decision of the case.
The determinative factor should therefore
be, whether the summoning/recalling of
the said witness is in fact, essential to the
just decision of the case. Fair trial is the
main object of criminal procedure, and it
is the duty of the court to ensure that such
fairness is not hampered or threatened in
any manner. Adducing evidence in support
of the defence is a valuable right. Denial
of such right would amount to the denial
of fair trial.(Para 10)

The application is dismissed. (E-6)

List of Cases Cited:-

## Text

356 INDIAN LAW REPORTS ALLAHABAD SERIES
or economic system will weigh in the
balance." (emphasis added)

26. Above observations have been
reiterated in Arun Singh and other Vs
State of U.P. passed in Criminal Appeal
no.250 of 2020 (arising out of Special
Leave Petition (Crl.) No. 5224 of 2017),
decided by Supreme Court on 10.02.2020.

27. Reliance placed by learned
counsel for applicant in Pepsi Foods Ltd
(supra) on the scope of Section 482 CrPC
is also in conformity with law as discussed
above. I do not find anything otherwise
stated therein or something which is
different than what has been discussed
above, which may help petitioner in a
different manner. No doubt Court said that
summoning of accused in criminal case is a
serious matter and Criminal law cannot be
set into motion as a matter of course, but to
suggest that at the cognizance stage,
defence evidence can be looked into and
assessed on merit or it can be done by this
Court when an application under Section
482 CrPC is brought to this Court against
order of cognizance/summoning is neither
legal nor permissible. This argument is,
therefore, rejected.

28. In view of above, since questions
of facts have to be examined, whether
testimonials relating to qualification of
applicants are genuine, whether they have
got appointment fraudulently or correctly
and whether they have defrauded public
revenue or not and there is any mens rea,
which are all questions of facts requiring
appreciation of evidence, no interference is
permissible at this stage. In my view,
evidence is not to be examined at this stage.
Since charges are serious, it also cannot be
said that there is any gross abuse of process
of law so as to justify interference under
Section 482 CrPC. I, therefore, find no
merit in this application to quash entire
proceedings.

29.

Application
is
dismissed
accordingly.

30. Interim order, if any, stands
vacated.
----------
(2020)10ILR A356
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2020

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Application U/S 482 No. 9551 of 2020

Ashok Kumar Pathak ...Applicant
Versus
C.B.I./ACB, Ghaziabad ...Opposite Party

Counsel for the Applicants:
Ronak Chaturvedi

Counsel for the Opposite Party:
Sri Gyan Prakash (A.S.G.I.), Sri Sanjay
Kumar Yadav, Sri Raman Saxena

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section 482,311
&
Prevention
of
Corruption
Act,1988
-
Sections 7, 13(2) r/w 13(1)(d)-quashing
of-application filed u/s 311 CrPc for
recalling PW-1 rejected-the sanction is
referable
to
Section
19,
however,
inadvertently sanctioned under Clause (a),
instead of Clause (c) of Section 19(1) of
the Act-it is not being disputed by the
applicant that PW-1 is not the competent
authority
to
accord
sanction
for
prosecution
and
applicant
is
not
a
government
servant-it
is
settled
proposition of law that mere mentioning
the wrong provision or non-mentioning of
a provision in the order would not vitiate
the
order
or
proceedings
initiated
pursuant
thereof.(Para
6
to
21)
10 All. Ashok Kumar Pathak Vs. C.B.I./ACB, Ghaziabad
357
B. The power conferred u/s 311 Cr.PC
must be invoked by the Court only in order
to meet the ends of justice, for strong and
valid reasons, and the same must be
exercised
with
great
caution
and
circumspection. Thus, there is no escape if
the fresh evidence to be obtained is
essential to the just decision of the case.
The determinative factor should therefore
be, whether the summoning/recalling of
the said witness is in fact, essential to the
just decision of the case. Fair trial is the
main object of criminal procedure, and it
is the duty of the court to ensure that such
fairness is not hampered or threatened in
any manner. Adducing evidence in support
of the defence is a valuable right. Denial
of such right would amount to the denial
of fair trial.(Para 10)

The application is dismissed. (E-6)

List of Cases Cited:-

1. Natasha Singh Vs CBI (2013) 5 SCC 741

2. Talab Haji Hussain Vs Madhukar Purshottam
Mondkar & anr.,AIR (1958) SC 376

3. Zahira Habibulla H. Shekh Vs St. Of Guj.,AIR
(2004) SC 3114

4. Zahira Habibullah Sheikh (5) Vs St. Of Guj,
AIR (2006) SC 1367

5. Kalyani Baskar Vs M.S. Sampoornam, (2007)
2 SCC 258

6. Vijay Kumar Vs St. Of U.P.,(2011) 8 SCC 136

7. Sudevanand Vs State, (2012) 3 SCC 387

8. Manju Devi Vs St. of Raj. & anr.(2019) 6 SCC
203

9. Peerless General Finance Ltd. & Investment
Co. Ltd. Vs RBI (1992) 2 SCC 343: AIR (1992)
SC 1033

10. Ram Sunder Ram Vs U.O.I. & ors.,(2007) 9
SCALE 197

11. N. Mani Vs Sangeetha Theaters & ors.,
(2004) 12 SCC 278

12. HC of Guj. Vs Guj. Kishan Mazdoor
Panchayat, (2003) 4 SCC 712

13. P.K. Palanisamy Vs N. Arumugham,(2009) 9
SCC 173

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Ronak Chaturvedi,
learned counsel for the applicant and Sri
Gyan Prakash, learned Assistant Solicitor
General of India assisted by Sri S.K. Yadav
and Sri Raman Saxena.

2. The instant application assails the
order dated 6 September 2019 passed by
the Special Judge, (Anti Corruption), CBI,
Court No. 3, Ghaziabad, in Special Case
No. 02 of 2017 (State through CBI Versus
Ashok Kumar Pathak) arising from Case
Crime
No.
RC-1202017A0006,
under
Sections 7, 13(2) r/w 13(1)(d) of the
Prevention of Corruption Act, Police
Station ACB CBI, Ghaziabad, rejecting the
application of the accused/applicant filed
under Section 311 of Code of Criminal
Procedure, 1973 (for short ''Cr.P.C.') for
recalling
P.W.-1,
Lieutenant
General
Suresh Sharma for cross examination.

3. The facts giving rise the present
application is that Pawan Kumar Tiwari
made
a
complaint
before
the
Anti
Corruption
Branch
C.B.I.
Ghaziabad,
alleging that applicant demanded illegal
gratification for release of his payments for
the works performed by him for Military
Engineering Services. Pursuant to the
complaint, F.I.R. came to be lodged on 10
April 2017. After investigation C.B.I.
submitted
charge
sheet
against
the
applicant,
the
Special
Judge,
Anti
358 INDIAN LAW REPORTS ALLAHABAD SERIES
Corruption CBI Ghaziabad vide order dated
27.07.2027 took cognizance.

4. Applicant moved an application to
recall P.W.-1 for the reason that during
cross examination, inadvertently, it could
not be clarified from P.W.-1 as to how
sanction for prosecution under Section
19(1)(a) of Prevention of Corruption Act,
1988 (for short 'Prevention of Corruption
Act') was accorded, whereas, accused
applicant is not a government servant. The
court below rejected the application, inter
alia, on the ground that P.W.-1 was cross
examined by the defence, and with the aid
of the application filed under Section 311
Cr.P.C., the applicant wants to fill up the
lacuna and delay the proceedings. It is
noted in the impugned order that during
cross examination P.W.-1 categorically
deposed that he was the competent
authority to accord sanction for prosecution
of the applicant.

5. Para 22 of the impugned order is
extracted:-

"22. In the matter in hand,
sanctioning authority categorically stated
in his statement before this Court as PW1
which is reproduced herein below:-

**v'kksd dqekj ikBd AE AGE E/M
th0bZ0 1⁄4bZLV1⁄2 vkxjk Fks vkSj eSa bthfu;j bu
phQ gksus ds ukrs mUgs inP;qr djus ds fy,
l{ke vf/kdkjh FkkA**

The chief examination of PW-1
shows that he has stated himself competent
to accord sanction and defence had
sufficient opportunity to cross examine the
witness on that point. So far as the question
regarding
application
of
mind
is
concerned, the cross examination of PW-1
dated 23.04.2018, shows that PW-1 was
controverted on application of mind in
granting prosecution sanction. It appears
that all the questions which are proposed to
be asked, were very much in the knowledge
of learned counsel for defence and were
asked.
Defence
had
got
sufficient
opportunity for cross examination and no
new fact took place during trail making re
examination of PW-1 necessary. The object
of the provisions as a whole is to do justice
not only from the point of view of accused
and the prosecution but also from the point
of view of an orderly society. This power is
to be exercised only for strong and valid
reasons and it should be exercised with
caution and circumspection. Recall is not a
matter of course and the discretion given to
the court has to be exercised judicially to
prevent the failure of justice. Therefore, the
reasons for exercising this power should be
strong and genuine. The delay in filing the
application is also one of the important
factors which has to be taken into
consideration. It is noticed that statement
of PW-1 was recorded on 23.04.2018 and
the application for recall of witness has
been given on 14.05.2019 almost after one
year without showing reasonable cause."

6. Learned counsel for the applicant
submits
that
the
counsel
for
the
accused/applicant before the trial court
could not cross examine P.W.-1 with
regard to his competency to accord
sanction for prosecuting the applicant. It
is further urged that the sanction order
reflects that the sanction has been granted
under Section 19(1)(a) of Prevention of
Corruption Act under which only Central
Government is competent, therefore, the
applications
to
recall
P.W.-1
for
clarification as to how P.W.-1 could
sanction prosecution. It is contended that
there is total non application of mind
while according sanction which goes to
the root of the matter and would vitiate
the trial.
10 All. Ashok Kumar Pathak Vs. C.B.I./ACB, Ghaziabad
359

7. Learned Senior Counsel appearing
on behalf of the CBI opposes the
application and submits that the sanction
order has been placed on record, it clearly
records that sanction was granted by Lt.
General Suresh Sharma (P.W.-1) who is
competent
under
the
Prevention
of
Corruption Act. Further, during cross
examination P.W.-1 clearly stated that he
had
sanctioned
the prosecution.
The
purpose of the application under Section
311 Cr.P.C. is to delay the proceedings. In
any case, the objection that is being raised
by the learned counsel for the applicant can
be raised before the trial court on the
strength of the documentary evidence i.e.
sanction order dated 30 June 2017. It is
categorically noted in the sanction order
that Sri Ashok Kumar Pathak AGE E/M
(accused-applicant)
in
the
office
of
Garrison Engineer (East) Agra, U.P., had
demanded illegal gratification for the
release of pending payment, accordingly,
Lt.
General
Suresh
Sharma
E-in-C
accorded sanction under Section 19(1)(a) of
the Prevention of Corruption Act for the
persecution of the accused applicant for the
offence under Section 7 and 13(2) read
with Section 13(1)(b) of Prevention of
Corruption Act and for any other offences.
The relevant portion of the sanction order is
extracted:

"NOW THEREFORE, 1 Lt. Gen.
Suresh Sharma, E-in-C, hereby accord
sanction under section 19 (1)(a) of
Prevention of Corruption Act, 1988, for the
prosecution of the said Shri Ashok Kumar
Pathak, the then AGE E/M, O/o Garrison
Engineer (East) Agra, for the offences
under Section 7 & 13(2) r/w 13(1)(d) of
Prevention of Corruption Act, 1988, in
respect of the aforesaid acts and for any
other offences made out from the aforesaid
facts for taking cognizance of the said
offences
by
a
court
of
competent
jurisdiction."

8.

Rival
submissions
fall
for
consideration.

9. The scope and object of Section
311 Cr.P.C. is to enable the court to
determine the truth and to render a just
decision after discovering all relevant facts
and obtaining the proof of such facts, to
arrive at a just decision of a case. Such
power must be exercised, provided, that the
evidence i.e. likely to be tendered by a
witness, is germane to the issue involved.
The power can be invoked by the court
only in order to meet the ends of justice for
strong and valid reasons, and the same is an
exercise
with
great
caution
and
circumspection. Section 311 Cr.P.C. has
been expressed in the widest possible terms
by using the words such as, "any court", "at
any stage", or "or any enquiry, trial or other
proceedings". "any person" and "any such
person". The court must examine whether
such additional evidence is necessary to
facilitate a just and proper decision of the
case.

10. Supreme Court in Natasha Singh
Versus Central Bureau of Investigation1,
observed as follows in para 15 and 16:

"15....................An
application
under Section 311 Cr.P.C. must not be
allowed only to fill up a lacuna in the case
of the prosecution, or of the defence, or to
the disadvantage of the accused, or to
cause serious prejudice to the defence of
the accused, or to give an unfair advantage
to
the
opposite
party....The
Power
conferred under Section 311 Cr.P.C. must
therefore, be invoked by the Court only in
order to meet the ends of justice, for strong
and valid reasons, and the same must be
360 INDIAN LAW REPORTS ALLAHABAD SERIES
exercised
with
great
caution
and
circumspection.... There is thus no escape if
the fresh evidence to be obtained is
essential to the just decision of the case.
The determinative factor should therefore
be, whether the summoning/recalling of the
said witness is in fact, essential to the just
decision of the case."

16. Fair trial is the main object of
criminal procedure, and it is the duty of the
court to ensure that such fairness is not
hampered
or
threatened
in
any
manner.......Thus, under no circumstances
can a person's right to fair trial be
jeopardized. Adducing evidence in support
of the defence is a valuable right. Denial of
such right would amount to the denial of a
fair trial. (Vide: Talab Haji Hussain v.
Madhukar Purshottam Mondkar and
another2; Zahira Habibulla H. Shekh v.
State of Gutajar3; Zahira Habibullah
Sheikh (5) v. State of Gujarat4; Kalyani
Baskar v. M.S. Sampoornam5; Vijay
Kumar v. State of U.P.6; and Sudevanand
v. State.7"

11. In Natasha Singh, the
appellant had furnished an application
stating that he wished to examine the
witness
of
panchnama,
who
the
prosecution
had
neither
listed
nor
examined in court. The second person
sought to be examined was Company
Secretary of the appellant as he was the
best person to provide greater details of
the company of which the appellant is the
Director. The third witness, a handwriting expert, was required to be
examined regarding the correctness of the
signatures. The Court held that the
witnesses desired to be examined were
necessary for just decision of the case.
The Court cannot prejudge the relevance
of the witness.

12. In Manju Devi Versus State of
Rajasthan and another8, an application
was moved to examine the doctor who
conducted the first post mortem of the dead
body of the deceased in Nigeria. The
reason
assigned
for
summoning
and
examining the doctor was that the Medical
Board constituted in India found that no
definite opinion could be given regarding
the time and cause of death. The doctor at
Nigeria was not cited as a witness the
prosecution. The Apex Court was of the
opinion that the application under Section
311 Cr.P.C. was wrongly rejected on the
ground that the post mortem report was
available on record and that would suffice.
The Court opined that the examination of
the Nigerian doctor is germane to the
questions involved in the matter for a just
decision of the case.

13. In the given facts of the case in
hand, it is not in dispute that the document
according sanction is available on record.
The author of the sanction order is P.W.-1
the competent authority. The authority was
examined. In his cross examination, he has
clearly stated that he had sanctioned the
prosecution of the applicant.

14. Learned counsel for the applicant,
however, submits that the sanction has been
granted under Section 19(1)(a), whereas,
applicant is not a government servant. It is,
therefore, urged that there is total non
application of mind while according
sanction. It is sought to be contended that
since the sanction has been granted under a
wrong provision, therefore, PW-1 needs to
be re-examined to clarify as to how
sanction could have been granted under
Section 19(1)(a) applicable to employees of
the Central Government. On specific query,
learned counsel submits that sanction could
10 All. Ashok Kumar Pathak Vs. C.B.I./ACB, Ghaziabad
361
have been accorded under Section 19(1)(c)
of the Prevention of Corruption Act.

15. Section 19(1)(c) provides that in
case of a person who is not employed in
connection with the affairs of the Union or
of the State the sanction for prosecution can
be granted by the authority competent to
remove him from office. Clause (c) of SubSection (1) of Section 19 reads thus:

"(1)
No
court
shall
take
cognizance of an offence punishable under
section 7, 10, 11, 13 and 15 alleged to have
been committed by a public servant except
with the previous sanction:-

(a).................

(b).................

(c) In the case of any other
person, of the authority competent to
remove him from his office."

16. On being confronted with the
provision, learned counsel for the applicant
does not dispute that P.W.-1 is competent
to accord sanction under Clause (c) of
Section 19(1), however, submits that the
witness is sought to be recalled to clarify
whether there was application of mind
while sanctioning the prosecution under
Section 19(1)(a) instead of 19(1)(c).

17. The sanction order clearly records
that Lt. Gen. Suresh Sharma (P.W.-1) is
competent
and
has
sanctioned
the
prosecution of the applicant. Further, in
cross examination he has categorically
stated
that
he
has
sanctioned
the
prosecution. Merely mentioning the wrong
provision of Prevention of Corruption Act
in the sanction order would not vitiate the
sanction and the trial pursuant thereof.

18. It is not in dispute that sanction
has been granted by the competent
authority and is referable to Section 19 of
the Prevention of Corruption Act, though,
inadvertently
mentioning
Sub-Section
(1)(a), instead under Sub-Section (1) (c) of
Section 19. It is settled proposition of law
that mere mentioning the wrong provision
or non mentioning of a provision in the
order would not vitiate the order or
proceedings initiated pursuant thereof. The
relevant consideration is that the authority
passing the order under the Act is
competent and the exercise of the power is
traceable to the relevant provision.

19. In Peerless General Finance
Ltd. And Investment Co. Ltd. v. Reserve
Bank of India9, the Supreme Court
observed as under:

"It is settled law that so long as
the power is traceable to the statute mere
omission to recite the provision does not
denude the power of the legislature or rule
making authority to make the regulations,
nor considered without authority of law...."

20. In Ram Sunder Ram v. Union of
India and others10, it was held:

".....It appears that the competent
authority has wrongly quoted Section 20 in
the order of discharge whereas, in fact, the
order of discharge has to be read having
been passed under Section 22 of the Army
Act. It is well settled that if an authority has
a power under the law merely because
while exercising that power the source of
power is not specifically referred to or a
reference is made to a wrong provision of
law, that by itself does not vitiate the
exercise of power so long as the power
does exist and can be traced to a source
available in law." (Refer- N. Mani v.
Sangeetha Theatres and others11, High
Court Of Gujarat vs Gujarat Kishan
362 INDIAN LAW REPORTS ALLAHABAD SERIES
Mazdoor
Panchayat12
and
P.K.
Palanisamy vs N.Arumugham13)

21. The court below was justified in
rejecting the application for the reason that
the witness sought to be recalled was not
essential to arrive at a just decision of the
case. The issue of ''non application of mind'
by the sanctioning authority is not germane
to the issue involved. It is not being
disputed by the applicant that PW-1 is not
the competent authority to accord sanction
for prosecution and applicant is not a
government servant. The sanction is
referable
to
Section
19,
however,
inadvertently sanctioned under Clause (a),
instead of Clause (c) of Section 19(1) of
Prevention of Corruption Act. No further
clarification is required to be thrown upon
the sanction order by PW-1 in the backdrop
of his deposition that he is competent and
had accorded the sanction to prosecute the
applicant.

22. Learned counsel for the applicant
failed to point out any illegality, infirmity
or jurisdictional error in the impugned
order.

23. The application being devoid of
merit is accordingly dismissed.
----------

(2020)10ILR A362
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.

Application U/S 482 No. 9964 of 2020

Munshi Lal & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Rakesh Kumar

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal
Code,1862-Section
447
&
Prevention of Damage to Public Property
Act,1984-Section
2/3-quashing
of
-
chargesheet-prosecution failed to prove
that the entry or unlawful occupation with
an intent to intimidate, insult or annoy the
person in possession-the conviction u/s
447 IPC cannot be sustained nor the
damage can be imposed u/s 2/3 of the
P.D.P.P.
Act,
184-criminal
proceeding
initiated against the applicant is abuse of
process of law.(Para 3 to 19)

B. Criminal Law - Prevention of Damage to
Public Property Act,1984 - Is confined to
the destruction or damage of public
property during the course of riots,bundh,
hartal or public commotion. The said
provision cannot be invoked for lodging
the criminal complaint or FIR on the
allegations of damage or loss caused to
the
Gram
Sabha
land
by
illegal
encroachment
against
a
person
permanently residing in the village or a
tenure holder of any land in question as
the
procedure
provided
in
Revenue
Code,2006

for
undertaking
the
proceedings regarding land in dispute is
complete in itself and does not leave any
scope for any further computation of
damage for wrongful occupation, damage
caused or misappropriation of Gram Sabha
land.(Para 7 to 18)

The application is allowed. (E-6)

List of Cases Cited:-

1. In Re. Destruction of Public & Pvt. Properties,
In Re. Vs St. Of A.P. & ors., (2009) 5 SCC 212

2. Kodungallur Film Society & anr. Vs U.O.I. &
ors., (2018) 10 SCC 713