# Bachcha Prasad Singh & Ors v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 691
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-11
- **Case number:** Application U/S 482. No. 276 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bachcha-prasad-singh-ors-v-state-of-u-p-ors-50004
- **Pages:** 10

## Headnote

Law
-
Code
of
Criminal
Procedure,1973-Section 311- FIR lodged-
sanction for prosecution granted-chargesheet
filed-prosecution filed supplementary case diary
with
amended
sanction
for
prosecutionobjection
filed-sanction
granted-impugnedprima-facie not a case of absence of sanctionapplicant have raised certain illegality and
invalidity in grant of sanction for prosecutioncan be raised / assailed before the Trial CourtApplication dismissed. (E-9)

List of Cases cited:

## Text

4 All. Bachcha Prasad Singh & Ors. Vs. State of U.P. & Ors.
691
stated in the amendment application nor in
the present petition regarding the latches in
filing the amendment application since the
suit was filed in this case in the year, 2000
and amendment was sought by him in the
year 2009.

62. In this view of the matter, the
Court is of the opinion that petition is
without any merit, the same is liable to be
dismissed
and
the
same
is
hereby
dismissed.

63. It further reveals from perusal of
the record that the Civil Suit which was
filed by the plaintiff-petitioner is pending
consideration before the Trial Court since
last 23 years. Written statements have
already been filed by the parties.

64. In this view of the matter, Court is
of the opinion that the Trial Court be
directed to decide the aforesaid suit most
expeditiously and positively within a period
of six months from today strictly in
accordance with law and without bring
influenced with any observations made by
this Court in this judgement.

65. The Registrar (Compliance) is
directed to communicate a copy of this
order to the Additional Civil Judge (Senior
Division) Allahabad through District Judge
Allahabad within three days.

66. Action taken report be filed by the
Court below in this Court on or before
01.12.2023.

67. The petition stands disposed of in
above terms, save and except for reporting
compliance on 01.12.2023.
----------
(2023) 4 ILRA 691
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.04.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 276 of 2023

Bachcha Prasad Singh & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri Kapil Misra

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973-Section 311- FIR lodged-
sanction for prosecution granted-chargesheet
filed-prosecution filed supplementary case diary
with
amended
sanction
for
prosecutionobjection
filed-sanction
granted-impugnedprima-facie not a case of absence of sanctionapplicant have raised certain illegality and
invalidity in grant of sanction for prosecutioncan be raised / assailed before the Trial CourtApplication dismissed. (E-9)

List of Cases cited:

1. Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed
Ansari Vs St. of U.P. & anr., 2021 LawSuit(All)
1115

2. Mansukhlal Vithaldas Chauhan Vs St. of Guj.
(1997) 7 SCC 622

3. Central Bureau of Investigation & anr. Vs
Dhirendra Kumar Agrawal & anr., (2020) 17 SCC
664

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Jyotindra Mishra, learned
Senior Advocate, assisted by Sri Kapil
Mishra, Learned counsel for the applicants,
692 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Shiv Nath Tilhari, learned A.G.A.-I for
the State and perused the material placed
on record.

2. By means of instant application, the
applicants have assailed the sanction orders
dated 3.8.2010 & 2.2.2022 and entire
proceedings in Sessions Trial Nos.1265 of
2010 and 1265A of 2010 arising out of
Case Crime No.74 of 2010 under Sections
120B, 121, 121A, 420, 467, 468 I.P.C. &
13, 18, 20, 21, 23 (2), 38, 39, 40 UAPA
(State Vs. Bachcha Prasad Singh and
others) relating to Police Station Nauhasta,
District Kanpur Nagar pending in the court
of Special NIA/ATS Court, Lucknow as
well as further proceedings of the case.

3. Factual matrix of the case is that on
8.2.2010, applicants Bachcha Prasad @
BR, Navin Prasad Singh, Rajendra Das @
Ambarish including two other co-accused
persons, namely, Banshidhar @ Chintan
and Deepak Ram were arrested by Uttar
Pradesh State Task Force team, headed by
Sub Inspector Rajeev Dwivedi at 10.0011.00 am. The First Information Report
was lodged at Police Station Naubasta on
the complaint of ASP Manoj Kumar Jha of
U.P. S.T.F. Thereafter, a letter was sent by
Investigating
Officer
to
DIG
(ATS)
Headquarter Lucknow on 7.7.2010 for
grant of sanction of prosecution and the
DIG (ATS) sent a letter to the Secretary,
Department of Home, Government of UP
making a request for grant of sanction for
prosecution.

4. After considering the aforesaid
request, sanction for prosecution was
granted by the State Government, vide
letter dated 3.8.2010. On 5.8.2010, the
charge sheet was filed by the Investigating
Officer and on 4.8.2011, charges were
framed against applicants Naveen Prasad
Singh and Rajendra Das @ Ambreesh
including co-accused Deepak Ram in
Sessions Trail No. 1265 of 2010. Applicant
Baccha Prasad Singh was in juidical
custody in Andhra Pradesh in some other
case and his file was separated from
original filed no.1265 of 2010 and it was
assigned new number as 1265A of 2010.
The prosecution witnesses, i.e., P.W. 1 to
P.W. 12 were examined. On crossexamination
the
Investigating
Officer
(P.W.11) admitted that no literature is in
hand writing of the accused; in literature,
there is no mention of any criminal activity
in Kanpur; and there is no evidence of
extorting money in Kanpur Nagar. He
further stated that there is no independent
oral evidence about seizure of literature
from accused, he could not recall the
specific charges related to forgery; the sole
basis of charge is seizure of materials,
pamphlets which are without print line/nonpublished; technically anybody can print or
publish these materials.

5. The two co-accused, namely,
Banshidhar and Deepak Ram died during
trial. The present applicants have been
granted bail by this Court in the year 2013.

6. On 8.1.2022, both files, i.e., 1245
of 2010 and 1265 of 2010 were transferred
to Special NIA/ATS Court, Lucknow. On
28.1.2022 ASJ-3/Special NIA/ATS Court
Lucknow received file and ordered to
register session case.

7. On 8.4.2022, prosecution filed
supplementary case diary with amended
sanction
for
prosecution,
which
was
permitted. Thereafter, on 29.9.2022, an
objection was filed by the accused with a
request that trial court may cancel the
supplementary case diary and the sanction
order. The trial court took on record of this
4 All. Bachcha Prasad Singh & Ors. Vs. State of U.P. & Ors.
693
objection. Reply to the said objection was
also
filed
by
the
prosecution
on
24.11..2022. and, thereafter, on 24.11.2022
itself, the trial court granted permission to
the prosecution upon the application under
Section 311 Cr.P.C. and, thus, the applicant
being aggrieved by the sanction orders
dated 3.8.2010 and 2.2.2022 including the
entire
proceedings
initiated
in
aforementioned sessions trial, has instituted
the instant application.

8. Learned Senior Counsel appearing
for the applicants contends that at the very
initial stage, intent of the prosecution is
dubious, as on the basis of unconfirmed
information, the applicants were arrested
without cogent piece of evidence; as the
First Information Report was lodged
against the applicants and the charge sheet
has also been filed. Thereafter, without
prior intimation to the applicants, the case
was transferred from Kanpur to Lucknow
and, while taking the perplexing action
supplementary case diary and the amended
order of sanction dated 2.2.2022 was filed
before the trial court. Although as soon as
this fact came into knowledge of the
applicants,
they
filed
objections
on
29.9.2022 but the trial court, without
applying its judicial mind, has accepted the
supplementary case diary and issued order
of sanction for prosecution on 2.2.2022
which was about 12 years after the first
sanction was granted.

9. Adding his arguments, he submits
that from several dates fixed before the trial
court and the order impugned passed
thereafter, it is evident that the trial court
has acted in a very cavaliar and supine
manner. He submtis that first of all, when
the matter was transferred from Kanpur to
Lucknow, it was not intimated to the
applicants
and,
thereafter,
when
the
objection was filed by the applicants on
29.9.2022 for cancellation of supplemetary
case diary and order of sanction on the
ground of being unlawful sanction, the trial
court granted time to the Investigating
Agency to file objection, which was filed
on 24.11.2022, and, thereafter, on 2.2.2022,
an application on behalf of the accused was
filed for haziri mafi on the ground of illness
but on the same day, the trial court
recorded statement of witness Kumar
Prashant, who was Special Secretary,
Home Government of U.P. and denied the
opportunity
of
cross-examination.
He
submits that it is on 15.12.2022, when it
came in the knowledge that on 24.12.2022,
the prosecution is granted permission by
the trial court upon its application under
Section 313 of Cr.P.C. and that too without
intimating the accused and without disposal
of objection dated 29.9.2022.

10. Continuing with his arguments, he
submits that provision of Section 45 (2) of
the Unlawful Activities (Prevention) Act,
1967 (hereinafter referred to as 'the Act
1967') clearly provides that 'sanction of
prosecution shall be given only after
considering the report of such authority
appointed by the Central Government or, as
the case may be, the State Government,
which shall make an independent review of
evidence'. He submits that from the
aforesaid provision, it is very clear that
sanction of prosecution can be given only
after considering the report of authority.
Meaning thereby that the sanctioning
authority must have gone through the
report of the authority appointed by the
Central
Government
or
the
State
Government as the case may be but in the
instant matter the first sanction was granted
in the year 2010 and there was no any
review authority at the very point of time
and, suddenly, on 2.2.2022 in the garb of
694 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of Section 173 (8) of Cr.P.C.,
the sanction for prosecution was granted
and
supplementary
case
diary
was
submitted before the trial court along with
the order of sanction for prosecution, which
is totally unlawful and against the mandate
of Sub Section (2) of Section 45 of the Act
1967. He added that first sanction dated
3.8.2010 is invalid as the authority was not
appointed
by
the
Government
for
independent review of evidences gathered
in the course of inviestigation and further
there
was
no
material
before
the
sanctioning authority for considering the
same as per the mandate of Sub Section (2)
of Section 45 of the Act 1967.

11. Further argued that Investigating
Officer filed the charge sheet against the
applicants in a mechanical manner and that
is without collecting any evidence and
further no offence under Sections under
Sections 120B, 121, 121A, 420, 467, 468
I.P.C. & 13, 18, 20, 21, 23 (2), 38, 39, 40
UAPA are made out against the applicants
and the instant matter is an example of
sheer abuse of process of law and,
therefore, the entire criminal proceedings
initiated against the applicants are liable to
be quashed.

12. In support of his contention, he
has placed reliance on a Judgment reported
in 2021 LawSuit(All) 1115, Sheikh Javed
Iqbal @ Ashfaq Ansari @ Javed Ansari
Vs. State of UP & Another and has
referred paras 35, 36 and 37 of the
aforesaid Judgment. Paras 35, 36 and 37 of
the aforesaid Judgment are quoted as
under:-

"35. The main object of imposing
condition of independent review by an
authority
appointed
by
the
Central
Government or the State Government as
the case may be, was to prevent the misuse
of the stringent provisions of UAPA by the
law enforcing agencies. Further, when
legislature in its wisdom has prescribed a
specific mandatory procedure to accord
sanction, it was the duty of sanctioning
authority
to
follow
that
statutory
procedure. But unfortunately, there is no
material on record to show even primafacie that the recommendation of any
authority who have independently reviewed
the evidence collected by the investigating
authority was ever placed before the
competent
authority
at
the
time
of
obtaining sanction under sub-section (1) of
Section 45 of the UAPA. In other words,
the competent authority while granting
sanction, in the present case was deprived
of
the
relevant
material
i.e.
recommendation of independent authority
that was mandatory to consider as to
whether sanction should or should not be
granted.

36. Now coming to the question as
to whether this inherent violation of the
mandatory procedure is to be taken care of
by the trial Court in trial, as in this case trial
has moved forward and many prosecution
witnesses have been examined by the
prosecution, or the defect in the sanction
granted in this case is of such a nature, which
should not wait till the conclusion of the trial.
In order to appreciate this point it is
desirable to have a look at the law with
regard to the sanction.

37. Hon'ble Supreme Court in C.B.I.
vs.
Ashok
Kumar
Aggarwal
,
MANU/SC/1220/2013,relied on by Ld Additional
Government Advocate, while deliberating the
validity of sanction held as under:-

"7. The prosecution has to satisfy
the court that at the time of sending the
4 All. Bachcha Prasad Singh & Ors. Vs. State of U.P. & Ors.
695
matter for grant of sanction by the
competent authority, adequate material for
such grant was made available to the said
authority. This may also be evident from
the sanction order, in case it is extremely
comprehensive, as all the facts and
circumstances of the case may be spelt out
in the sanction order. However, in every
individual case, the court has to find out
whether there has been an application of
mind on the part of the sanctioning
authority concerned on the material placed
before it. It is so necessary for the reason
that there is an obligation on the
sanctioning authority to discharge its duty
to give or withhold sanction only after
having full knowledge of the material facts
of the case. Grant of sanction is not a mere
formality. Therefore, the provisions in
regard to the sanction must be observed
with complete strictness keeping in mind
the public interest and the protection
available to the accused against whom the
sanction is sought.

It is to be kept in mind that
sanction lifts the bar for prosecution.
Therefore, it is not an acrimonious exercise
but a solemn and sacrosanct act which
affords protection to the government
servant
against
frivolous
prosecution.
Further, it is a weapon to discourage
vexatious prosecution and is a safeguard
for the innocent, though not a shield for the
guilty.

Consideration of the material
implies application of mind. Therefore, the
order of sanction must ex facie disclose
that
the
sanctioning
authority
had
considered the evidence and other material
placed before it. In every individual case,
the prosecution has to establish and satisfy
the court by leading evidence that those
facts were placed before the sanctioning
authority and the authority had applied its
mind on the same. If the sanction order on
its face indicates that all relevant material
i.e. FIR, disclosure statements, recovery
memos, draft charge sheet and other
materials on record were placed before the
sanctioning authority and if it is further
discernible from the recital of the sanction
order
that
the
sanctioning
authority
perused all the material, an inference may
be drawn that the sanction had been
granted in accordance with law. This
becomes necessary in case the court is to
examine the validity of the order of
sanction inter-alia on the ground that the
order suffers from the vice of total nonapplication of mind.

8. In view of the above, the legal
propositions can be summarised as under:

(a) The prosecution must send the
entire relevant record to the sanctioning
authority including the FIR, disclosure
statements,
statements
of
witnesses,
recovery memos, draft charge sheet and all
other relevant material. The record so sent
should also contain the material/document,
if any, which may tilt the balance in favour
of the accused and on the basis of which,
the
competent
authority
may
refuse
sanction.

(b) The authority itself has to do
complete and conscious scrutiny of the
whole
record
so
produced
by
the
prosecution independently applying its
mind and taking into consideration all the
relevant facts before grant of sanction
while discharging its duty to give or
withhold the sanction.

(c) The power to grant sanction is
to be exercised strictly keeping in mind the
public interest and the protection available
696 INDIAN LAW REPORTS ALLAHABAD SERIES
to the accused against whom the sanction is
sought.

(d) The order of sanction should
make it evident that the authority had been
aware of all relevant facts/materials and
had applied its mind to all the relevant
material.

(e) In every individual case, the
prosecution has to establish and satisfy the
court by leading evidence that the entire
relevant facts had been placed before the
sanctioning authority and the authority had
applied its mind on the same and that the
sanction had been granted in accordance
with law."

13. Placing reliance on the aforesaid
Judgment, learned counsel for the applicant
submits that object of the provision
regarding
independent
review
by
an
autority
appointed
by
the
Central
Government or State Government, is to
prevent misuse of the stringent provisions
of the Act 1967. Thus, the pvoisions of Sub
Sections (1) and (2) of Section 45 of the
1967 are more relevant and important.

14. Further placing reliance upon a
Judgment of the Apex Court rendered in
case of Mansukhlal Vithaldas Chauhan
Vs. State of Gujarat (1997) 7 SCC 622, he
has referred paras 38 and 39 of the
aforesaid Judgment. Paras 38 and 39 of the
aforesaid Judgment are quoted as under:-

"38. From the notings of the
Secretariat file, contained in Exhibit 70,
as also the conflicting statement made by
the Secretary and the Under Secretary, it
is not possible to hold as to who actually
granted the sanction. The Gujarat High
Court has held that the Sanction was
granted by the Deputy Secretary, Shri
Lade (PW-8), ignoring the fact that the
file was also placed before the Secretary
and he had also put his signature
thereon. The file had, admitted, been sent
to the office of the Chief Minister from
where it was received back on 30th
January, 1985 and as such it is not
understandable as to how sanction could
be granted on 23rd January, 1985. This
confusion also appears to be the result of
the order passed by the High Court that
the sanction must be granted within one
month. Secretary being the head of the
Department stated on oath that he had
granted the sanction, particularly as the
mandamus was directed to him and he
had to comply with that direction Deputy
Secretary, who actually issued the order
of sanction, had signed it and, therefore,
he owned the sanction and stated that he
had sanctioned the prosecution. Both
tried to exhibit that they had faithfully
obeyed the mandamus issued by the High
Court and attempted to save their skin,
destroying, in the process, the legality
and validity of the sanction which
constituted
the
basis
of
appellant's
prosecution with the consequence that
whole proceedings stood void ab initio.

39. Normally when the sanction
order is held to be bad, the case is remitted
back to the authority for re-consideration
of the matter and to pass a fresh order of
sanction in accordance with law. But in the
instant case, the incident is of 1983 and
therefore, after a lapse of fourteen years, it
will not, in our opinion, be fair just to
direct that the proceedings may again be
initiated from the stage of sanction so as to
expose the appellant to another innings of
litigation and keep him on trial for an
indefinitely long period contrary to the
mandate of Article 21 of the Constitution
which, as a part of right to life,
4 All. Bachcha Prasad Singh & Ors. Vs. State of U.P. & Ors.
697
philosophizes
early
and
of
criminal
proceedings through a speedy trial."

15. Referring the aforesaid, he added
that it is trite law that once it is found that
sanction is not as per the law, the matter
must be sent back to the authority for
reconsideration of the matter and to pass
fresh order but in the instant matter,
contrary to the aforesaid proposition of law,
even after passing of about 11 to 12 years,
the order dated 3.8.2010 has been validated
by way of further investigation, thereby
filing supplementary charge sheet and a
review order.

16. While concluding his argument,
he contended that sanction for prosecution
as envisaged in Sub Section (2) of Section
25 of the Act 1967 is materially different
than
the
provision
of
sanction
for
prosecution provided under Section 19 of
the Prevention of Corruption Act, 1947
(hereinafter referred to as 'the Act 1947').
He further added that looking into the
stringent law, it appears that the intent of
the legislature was very clear to specifically
put
the
provisions
that
'only
after
considering the report of such authority',
the authorities would take decision with
respect to sanction for prosecution and this
provision is not given in 'the Act, 1947'.
Thus, both the provisions are not similar
and any ratio of Judgment, which was held,
considering the provisions of Act 1947
would not be applicable in the present
matter. Therefore, the order dated 3.8.2010
and
2.2.2022
including
the
entire
proceeding of sessions trial aforementioned
vitiate in the eyes of law and thus, the same
are liable to be quashed.

17. Per contra, Sri Shiv Nath Tilahari,
learned counsel appearing for the State has
opposed the conention aforesaid with
fullest vehemence and added that learned
counsel for the applicants has tried to twist
the actual fact and law and has interpreted
the same in his own manner. He submits
that provision of Section 45 of Act 1967 is
very clear in its meaning and that mandates
that the sanction for prosecution under Sub
Section (1) of Section 45 shall be given
within such time as may be prescribed
considering the report of the authorities
appointed
by
the
Central
or
State
Government who will have independently
reviewed the evidences gathered during the
course of investigation and then the
recommendation is to be made to the
Central Government or State Government
as the case may be.

18. He further submits that the
Investigating Agency has power to gather
the evidence by further investigation and
even prior permission by the trial court is
not required. The Investigating Agency
filed supplementary case diary including
the letter dated 2.2.2022 and that was
considered by the trial court as the same is
permissible under the law. He further
contended that vilidity of the sanction for
prosecution can be considered during the
trial and also submitted that there is
material difference in between the 'invalid
sanction' and 'absence of sanction'. He
submits that it is settled law that absence of
sanction can be looked into at the
threshhold but as far as the validity of
sanction is concerned that is the subject
matter of the trial and so far as the present
matter is concerned, admittedly, it is not a
case of absence of sanction as evidently the
prosecution sanction has been done and,
therefore, it is not the stage where allegedly
invalid sanction can be challenged.

19. In support of his submissions, he
has placed reliance on a Judgment of the
698 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court reported in (2020) 17 SCC
664, Central Bureau of Investigation and
another Vs. Dhirendra Kumar Agrawal
and another and has referred on paragraph
11 of the above said Judgment. Para 11 of
the aforesaid Judgment is quoted as under:-

"11. Further the issue relating to
validity of the sanction for prosecution
could have been considered only during
trial since essentially the conclusion
reached by the High Court is with regard to
the defective sanction since according to
the High Court, the procedure of providing
opportunity
for
explanation
was
not
followed which will result in the sanction
being defective. In that regard, the decision
in the case of Dinesh Kumar Vs. Chairman,
Airport Authority of India, (2012) 1 SCC
532 relied upon by the learned Additional
Solicitor General would be relevant since it
is held therein that there is a distinction
between the absence of sanction and the
alleged invalidity on account of nonapplication of mind. The absence of
sanction no doubt can be agitated at the
threshold but the invalidity of the sanction
is to be raised during the trial. In the instant
facts, admittedly there is a sanction though
the accused seek to pick holes in the
manner the sanction has been granted and
to claim that the same is defective which is
a matter to be considered in the trial."

20. Placing reliance on the aforesaid
Judgment, he added that ratio of the
Judgment aforesaid is very clear that
validity of the sanction for prosecution
could be considered during the course of
trial and distinction has also been drawn in
between
'absence
of
sanction'
and
'invalidity of sanction' including nonapplication of mind. He further added that
this is a case where the applicants have
been charged for waging war against the
Government of India and, thus, is of serious
concern
and,
therefore,
no
liberal
interpretation can be given so far as the
procedure prescribed under the Act, 1967 is
concerned.

21. He finally submits that law is very
clear on this point and this case is not of
'absence of sanction' and if there is any
invalidity or defect in 'the sanction for
prosecution',
the
applicants
have
opportunity to raise it before the trial court
at the time of trial, therefore, submission is
that instant application is liable to be
dismissed.

22. Having heard learned counsel for
the parties and after perusal of the material
placed on record, the conundrum is that
whether the first sanction granted on
3.8.2010 and, later on, supplemented vide
review order dated 2.2.2022, is a valid
sanction of prosecution or not. At the very
inception,
when
the
sanction
for
prosecution
was
sought,
the
State
Government, vide order dated 3.8.2010
granted sanction for prosecution with
respect to the applicants. The matter
proceeded and, thereafter, the Investigating
Officer started further investigation and a
supplementary case diary was submitted
before the trial court appending therewith
the copy of the order dated 2.2.2022 of the
review authority and, thus, further question
is that by way of deriving powers under
Section 173 (8) of Cr.P.C., whether the
further investigation can be done to fill up
the gaps/lacunaes of the investigation.

23. It is borne out from the arguments
advanced by the learned counsel for the
applicants that on 3.8.2010, first sanction of
prosecution was granted by the State. So
far as the present matter is concerned, the
provisions with respect to the sanction of
4 All. Bachcha Prasad Singh & Ors. Vs. State of U.P. & Ors.
699
the prosecution contains in Section 45 (1)
and (2) of the Act 1967 wherein the
mandate of the provision is that at the time
of grant of sanction of proseution, the
authority granting such sanction, shall
proceed 'only after considering the report'
of an authority appointed by the Central
Government or the State Government. The
contention of the learned counsel for the
applicants is that on 3.8.2010, there was no
report of the authority appointed by the
Central
Government
or
the
State
Government
before
the
sanctioning
authority, as the review authority was
appointed after the first sanction granted by
the State Government on 3.8.2010 and
further submission is that the provision of
Section 45 (2) of the Act 1967 is not
similar to the provisions of Section 19 of
the Act 1947.

24. The crux of the contention of the
State is that the sanction for prosecution
has been granted and that too is in
consonance with the provision of the Act
1967. Further since the matter was
proceeded after framing of charges and,
admittedly, there is an order of sanction for
prosecution, thus, this cannot be said that
there is absence of sanction and if there is
any invalidity, which is being raised at this
stage, the same can be looked into by the
trial court.

25. When this Court examined this
case on facts and law, it is decipherable that
the Investigating Agency undoubtedly has
power to proceed with further investigation
and the prior approval for proceeding with
such investigation is not required under the
law. Of course, time and again, it has also
been the view of the Hon'ble Apex Court,
therefore, the supplementary case diary
appending the order 2.2.2022, has rightly
been submitted by the Investigating Officer
before the trial court.

26. So far as the order dated 2.2.2022
passed
by
the
review
authority
is
concerned, the matter pertains to year 2010
and about 12 years have been passed.
Further, it is settled that the grant of
sanction is merely an administrative
function and sanctioning authority is
required to reach over satisfaction, at the
first hand that acts and facts would
constitute the offence and, now, after lapse
of 12 years, it would not be just and fair to
initiate proceeding of grant of sanction to
put the applicants and other side for another
innings of litigations and keep the trial
pending indefinite long period.

27. It has been enuntiated that there is
distinction between 'absence of sanction'
and 'invalidity of sanction'. Absence of
sanction can be raised and agitated at the
very inception but the invalidity or
illegality of the sanction is to be raised
during the trial.

28. Admittedly, the sanction was
granted on 3.8.2010 and, thus, prima facie
it is not a case of absence of sanction but
the applicants-accused persons have raised
certain illegality and invalidity in grant of
sanction for prosecution and those are three
folds. Firstly, the Review authority was not
in existence at the time of grant of sanction;
secondly, there was no material before the
sanctioning authority; and thirdly Section
173 (8) is not meant for filling the lacunaes.
All the pleas are with respect to invalidity
said to be creeping in the impugned order
of sanction. As has been discussed in
preceding paragraphs, the instant matter is
not a case of absence of sanction and if
there is any alleged invalidity prevailing in
700 INDIAN LAW REPORTS ALLAHABAD SERIES
the order of sanction, the same can be
raised/assailed before the trial court.

29. In view of the aforesaid
submissions and discussions, this Court
does not find any merit in this application.

30. Consequently, the application is
hereby dismissed.

31. However, the applicants-accused
persons are at liberty to raise their
grievance with respect to the invalidity of
the sanction, if any, before the trial court
concerned.
----------
(2023) 4 ILRA 700
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.03.2023

BEFORE

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

Application U/S 482. No. 2556 of 2023

Nanhey Bhaiya @ Nanhan Singh & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Sanjay Singh Chauhan, Sri Alok Kumar
Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law- Code of Criminal Procedure,
1973-Section
216-Addition
of
Section
304B I.P.C. against the applicant on the
basis of an application moved by the first
informant -Section 216 CrPC is exclusively
confined with the Court as an enabling
provision for the purpose of alteration or
addition of any charge at any time before
pronouncement of the judgment-No party,
neither de facto complainant nor the
accused or for that matter the prosecution
has any vested right to seek any addition
or alteration of charge- Result-Impugned
orders unsustainable and deserve to be
quashed .
Application U/s 482 CrPC disposed off. (E15)

List of Cases cited:

1. P. Kartikalakshmi Vs Sri Ganesh & anr. (2017)
3 SCC 347.

2. Hasanbhai Valibhai Qureshi Vs St. of Guj. &
ors. (2004) 5 SCC 347.

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

1. Heard learned counsel for the
applicants, Sri Alok Saran, learned A.G.A.
for the State and perused the entire record.

2. In view of the order, which is
proposed to be passed today, notice to
opposite party No.2 is hereby dispensed
with.

3. The instant application under
Section 482 Cr.P.C. has been filed by the
accused/ applicants praying inter alia
following relief:-

"(i) To quash the impugned order
dated 29.09.2022 passed in Case No.
2032/2015 arising out of Crime No.-
144/1998 U/s- 498A/304B IPC & 3/4 D.P.
Act P.S. Behta Gokul District Hardoi and
the order dated 03.02.2023 by which
revision petition of the petitioners has been
rejected in Criminal Revision No. 209/2022
contained here with as Annexure No.2 & 3
to this affidavit."

4. Learned counsel for the applicants
has submitted that the impugned order
dated 29.09.2022, whereby the learned trial