# Durga Dutt Tripathi v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 1009
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-08
- **Case number:** Misc. Bench No. 19311 of 2019
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durga-dutt-tripathi-v-state-of-u-p-ors-46274
- **Pages:** 5

## Headnote

Sri
S.P.
Singh,
Aditional
Government
Advocate

Criminal Law - Prevention of Corruption
Act, 2018 - Section 19 - Code of
Criminal Procedure, 1973 - Section 197
- Previous Sanction for prosecution -
Challenge
to
sanction
order
under
Article 226 - Held - absence of sanction
vis-s-vis invalidity of sanction - absence
of sanction could be raised at the
inception
and
threshold
by
an
aggrieved person - However, where
sanction order exists, but its legality
and validity is put in question, such
issue has to be raised in the course of
trial - validity of sanction should be
examined during the trial (Para 8, 10)

Dismissed. (E-5)

List of Cases cited :

## Text

10 All. Durga Dutt Tripathi Vs. State of U.P. & Ors.
1009

2.Power
of
Government
to
release by licence on conditions imposed
by
them.-
Notwithstanding
anything
contained in [Section 401] of the Code of
Criminal Procedure, 1898 (Act V of 1898),
where a person is confined in prison
under a sentence of imprisonment and it
appears to the State Government from his
antecedents and his conduct in the prison
that he is likely to abstain from crime and
lead a peaceable life, if he is released from
prison, the State Government may by
licence permit him to be released on
condition that he be placed under the
supervision or authority of a Government
Officer or of a person professing the same
religion as the prisoner,or such secular
institution or such society belonging to the
same religion as the prisoner as may be
recognized by the State Government for
this purpose,provided such other person,
institution or society is willing to take
charge of him.

Explanations.-The
expression
"sentence of imprisonment" in this
Section shall include imprisonment in
default
of
payment
of
fine
and
imprisonment for failure to furnish
security under Chapter VIII of the [Code
of Criminal Procedure, 1898 (Act V of
1898)].

12. In the light of the above
discussions,
the
impugned
order/communication dated 30.06.2021 and
other consequential orders rejecting the
Form 'A' of the petitioner are hereby set
aside and the writ petition stands allowed.

13.

Respondent-Authorities
are
directed to release the petitioner on licence
as provided under the provisions of the
United Provinces Prisoners Release on
Probation Act, 1938 read with U.P.
Prisoners' Release on Probation Rules,
1938, forthwith, if not required any other
case.
----------
(2021)10ILR A1009
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.10.2021

BEFORE

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

Misc. Bench No. 19311 of 2019

Durga Dutt Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Akhilesh Kumar Kalra, Sri Rajesh
Vhandra Mishra

Counsel for the Respondents:
Sri
S.P.
Singh,
Aditional
Government
Advocate

Criminal Law - Prevention of Corruption
Act, 2018 - Section 19 - Code of
Criminal Procedure, 1973 - Section 197
- Previous Sanction for prosecution -
Challenge
to
sanction
order
under
Article 226 - Held - absence of sanction
vis-s-vis invalidity of sanction - absence
of sanction could be raised at the
inception
and
threshold
by
an
aggrieved person - However, where
sanction order exists, but its legality
and validity is put in question, such
issue has to be raised in the course of
trial - validity of sanction should be
examined during the trial (Para 8, 10)

Dismissed. (E-5)

List of Cases cited :

1. Mansukhlal Vithaldas Chauhan Vs St. of
Guj(1997) 7 SCC 622
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Prakash Singh Badal & anr. Vs St. of Pun &
ors. AIR 2007 SC 1274

3. Dinesh Kumar Vs Chairman, Airport Authority
of India

4. C.B.I. Vs Ashok Kumar Aggarwal,

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. By means of the present writ
petition, the petitioner has challenged the
impugned order dated 28.05.2018 issued by
the Secretary to His Excellency the
Governor, whereby sanction has been
accorded while exercising power vested
under Section 197 of the Code of Criminal
Procedure (in short 'Cr.P.C.') read with
Section 19 of the Prevention of Corruption
Act, 1988 to prosecute the petitioner under
Section 120B of the Indian Penal Code (in
short 'IPC') and Section 7, 13(1)(d) and
13(2) of the Prevention of Corruption Act,
1988 (in short 'P.C. Act'). The impugned
order has been issued by the Director,
Ayurvedic Services, U.P. Lucknow vide
Letter No. 4896(I)/18A-397/16/Adhi. dated
19.06.2019.

2. Heard Sri Rajesh Chandra Mishra,
learned counsel for the petitioner and Sri
S.P. Singh, learned A.G.A. for the State.

3. Learned counsel for the petitioner
argued that impugned order according
sanction to prosecute the petitioner is a
composite order whereby the competent
authority
has
accorded
sanction
to
prosecute several persons without there
being any specific description about the
petitioner. It is not there in the sanctionorder, what material has been placed before
him and what material he perused from
which he got convinced himself to accord
the sanction to prosecute the petitioner
under Sections 409, 420, 465, 467, 471,
477, 120-B IPC and Section 13(1)(d) and
13(2) of the P.C. Act. The sanctioning
authority while granting sanction ought to
have recorded their satisfaction that on
what basis he arrived at the conclusion to
grant sanction. It is also argued that it is
incumbent upon the competent authority to
apply his mind independently and record
satisfaction of being satisfied from the
material collected during the course of
investigating which has been placed before
him. In the present matter, no such basis
has
been
disclosed
for
according
prosecution sanction. Hence, impugned
sanction should be quashed. Learned
counsel for the petitioner relied upon the
decision of the Hon'ble Apex Court in the
case of Mansukhlal Vithaldas Chauhan
Versus State of Gujarat (1997) 7 Supreme
Court Cases 622.

4. Contrary to it, learned A.G.A.
argued that validity of sanction can be
raised before the Trial Court during trial.
Learned A.G.A. referred paragraph 9 of the
counter affidavit wherein it has been stated
that "It is relevant to mention here that a
financial scam was committed by the
department of Ayurvedic and Unani
Services, U.P., which was spread over
throughout
the
State
and
every
department connected with the Ayurvedic
and Unani Services were involved in the
financial scam. After registration of the
FIR, the investigation was conducted and
petitioner
was
interrogated
by
the
Prosecuting Agency on 16.01.2007 and
from the evidence which had been
collected against him, it clearly establishes
that he alongwith other co-accused was
involved in spending the public money
exceeding
the
budget,
which
was
sanctioned by the department, in this way,
the petitioner and other co-accused had
misappropriated the public money and
10 All. Durga Dutt Tripathi Vs. State of U.P. & Ors.
1011
they were also not able to give any
evidence, justification and explanation for
excess expenditure. Even accused was not
able to show any entry on the contingency
register and vouchers pertaining to excess
expenditure, when explanation was called,
he had stated that Class IV employee
Surendra Singh Negi was responsible.
The Prosecuting Agency had collected
ample evidence against the petitioner and
other co-accused."

Learned A.G.A. further submitted
that prosecution sanction cannot be quashed
on th ground of delay. Further more, liberty
lies with the petitioner to raise all his issues
relating to sanction during the trial. Hence,
this writ petition should be dismissed.

5. Considered the rival submission
raised by the learned counsel for the parties,
perused the record and the case laws cited by
the learned counsel for the petitioner.

The Hon'ble Apex Court in the
case of Mansukhlal Vithaldas Chauhan
Versus State of Gujarat (Supra) (cited by the
petitioner) in this regard has observed as
under:-

17. Sanction lifts the bar for
prosecution. The grant of sanction is not an
idle formality or an acrimonious exercise but
a solemn and sacrosanct act which affords
protection to Government Servants against
frivolous prosecutions. ( See: Mohd. Iqbal
Ahmed vs. State of Andhra Pradesh, AIR
1979 SC 677). Sanction is a weapon to
ensure discouragement of frivolous and
vexatious prosecutions and is a safeguard for
the innocent but not a shield for the guilty.

18. The validity of the sanction
would,
therefore,
depend
upon
the
material placed before the sanctioning
authority and the fact that all the relevant
facts, material and evidence have been
considered by the sanctioning authority.
Consideration implies application of mind.
The order of sanction must ex facie
disclose that the sanctioning authority had
considered
the
evidence
and
other
material placed before it. This fact can
also be established by extrinsic evidence
by placing the relevant files before the
Court to show that all relevant facts were
considered by the sanctioning authority.
(See also: Jaswant Singh vs. The State of
Punjab, 1958 SCR 762 = AIR 1958 SC
124; State of Bihar & Anr. vs. P.P.
Sharma, 1991 Cri.L.J. 1438 (SC)).

19.
Since
the
validity
of
"Sanction" depends on the applicability of
mind by the sanctioning authority to the
facts of the case as also the material and
evidence collected during investigation, it
necessarily follows, that the sanctioning
authority has to apply its own independent
mind for the generation of genuine
satisfaction whether prosecution has to be
sanctioned or not. The mind of the
sanctioning authority should not be under
pressure from any quarter nor should any
external force be acting upon it to take
decision one way or the other. Since the
discretion to grant or not to grant sanction
vests
absolutely
in
the
sanctioning
authority, its discretion should be shown
to have not been affected by any
extraneous consideration. If it is shown
that the sanctioning authority was unable
to apply its independent mind for any
reason whatsoever or was under an
obligation or compulsion or constraint to
grant the sanction, the order will be bad
for the reason that the discretion of the
authority "not to sanction" was taken
away and it was compelled to act
mechanically to sanction the prosecution
1012 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Mandamus which is a
discretionary remedy under Article 226 of
the Constitution is requested to be issued,
inter alia, to compel performance of
public duties which may be administrative,
ministerial
or
statutory
in
nature.
Statutory duty may be either directory or
mandatory. Statutory duties, if they are
intended to be mandatory in character, are
indicated by the use of the words "shall"
or "must". But this is not conclusive as
"shall" and "must" have, sometimes,
been interpreted as "may" . What is
determinative of the nature of duty,
whether it is obligatory, mandatory or
directory, is the scheme of the Statute in
which the 'duty" has been set out. Even if
the "Duty" is not set out clearly and
specially in the Statute, it may be implied
as co-relative to a "Right".

23. In the performance of this
duty, if the authority in whom the
discretion is vested under the Statute, does
not act independently and passes an order
under the instructions and orders of
another
authority,
the
Court
would
intervene in the matter, quash the orders
and issue a mandamus to that authority to
exercise its own discretion."

6. Perusal of the above judgment
shows that in that matter, the sanction was
accorded by the sanctioning authority under
the direction of the High Court. In such a
situation, the Hon'ble Apex Court held that
"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."

7. The situation of the present matter
is different. In the present matter the
petitioner has no where stated that the
Sanctioning Authority has acted under the
direction or pressure of somebody. Hon'ble
Apex Court in the case of Prakash Singh
Badal and Another Versus State of
Punjab and others, AIR 2007 SC 1274, in
this regard has held as under:-

"The sanctioning authority is
not required to separately specify each of
the offence against the accused public
servant. This is required to be done at the
stage of framing of charge. Law requires
that before the sanctioning authority
materials must be placed so that the
sanctioning authority can apply his mind
and take a decision. Whether there is an
application of mind or not would depend
on the facts and circumstances of each
case and there cannot be any generalized
guidelines in that regard.

The sanction in the instant case
related to offences relatable to Act. There
is a distinction between the absence of
sanction and the alleged invalidity on
account of non application of mind. The
former question can be agitated at the
threshold but the latter is a question which
has to be raised during trial."

8. Further in Dinesh Kumar Vs.
Chairman, Airport Authority of India,
Hon'ble Apex Court has held as under:-
10 All. C/M Waqf Dargah Hazrat Peer Syed Mohammad Sahab (Rh) & Ors. Vs. U.P. Sunni
 Central Waqf Board & Ors.
1013

"While drawing a distinction
between the absence of sanction and
invalidity of the sanction, this Court in
Parkash Singh Badal expressed in no
uncertain terms that the absence of sanction
could be raised at the inception and
threshold by an aggrieved person. However,
where sanction order exists, but its legality
and validity is put in question, such issue
has to be raised in the course of trial. Of
course, in Parkash Singh Badal, this Court
referred to invalidity of sanction on account
of non- application of mind. In our view,
invalidity of sanction where sanction order
exists, can be raised on diverse grounds like
non-availability of material before the
sanctioning authority or bias of the
sanctioning authority or the order of
sanction having been passed by an authority
not authorised or competent to grant such
sanction. The above grounds are only
illustrative and not exhaustive. All such
grounds of invalidity or illegality of sanction
would fall in the same category like the
ground of invalidity of sanction on account
of non-application of mind - a category
carved out by this Court in Parkash Singh
Badal, the challenge to which can always be
raised in the course of trial."

9. Again C.B.I. Versus Ashok Kumar
Aggarwal, the Hon'ble Apex Court has held
as under:-

"46. The most relevant issue
involved herein is as at what stage the
validity of sanction order can be raised. The
issue is no more res- integra. In Dinesh
Kumar v. Chairman Airport Authority of
India & Anr., AIR 2012 SC 858, this Court
dealt with an issue and placing reliance
upon the judgment in Parkash Singh Badal
& Anr. v. State of Punjab & Ors., AIR 2007
SC 1274, came to the conclusion as under:

"13. In our view, having regard to
the facts of the present case, now since
cognizance has already been taken against
the appellant by the trial Judge, the High
Court cannot be said to have erred in
leaving the question of validity of sanction
open for consideration by the trial court and
giving liberty to the appellant to raise the
issue concerning validity of sanction order
in the course of trial. Such course is in
accord with the decision of this Court in
Parkash Singh Badal..."

47. Undoubtedly, the stage of
examining the validity of sanction is during
the trial and we do not propose to say that
the validity should be examined during the
stage of inquiry or at pretrial stage.

10. It is clear from the above decisions
of the Hon'ble Apex Court that the validity of
sanction should be examined during the trial,
hence in the light of the decisions laid down
by the Hon'ble Apex Court, the relief prayed
by the petitioner cannot be granted.

11. In view of the above, this writ
petition is dismissed.
----------
(2021)10ILR A1013
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SURESH KUMAR GUPTA, J.

Misc. Bench No.22480 of 2021

C/M Waqf Dargah Hazrat Peer Syed
Mohammad Sahab (Rh) & Ors.
 ...Petitioners
Versus
U.P. Sunni Central Waqf Board & Ors.
 ...Respondents