# Kanhaiya Lal Srivastava v. State of U.P. & Ors

- **Citation:** (2021) 6 ILRA 349
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-09
- **Case number:** Writ-C No. 27346 of 2020
- **Bench:** Surya Prakash Kesarwani, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanhaiya-lal-srivastava-v-state-of-u-p-ors-47095
- **Pages:** 19

## Headnote

A. Criminal Law - Criminal Procedure Code
(2 of 1974) - Section 197 - Prosecution of
public
servants-
''while
acting
or
purporting to act in discharge of their
official duty" - Protection when - An
accused public servant has to show that
there is reasonable connection between
the act complained of and the discharge of
official
duty
-
act
of
the
accused
complained of must be such that the same
cannot be separated from the discharge of
official
duty
-
where
there
is
no
reasonable connection between the act
complained of and the performance of
official duties, no sanction under Section
197, Cr.P.C. would be required - where a
criminal act is performed under the colour
of authority but which in reality the act is
for the public servant's own pleasure or
benefit, then such acts are not protected
under the doctrine of State immunity -
such claim an be examined during the
course of trial by giving opportunity to the
defence to establish it [Para 31 (viii), (ix)]
350 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Prevention of Corruption Act (49 of
1988) - Section 19 - Criminal Procedure
Code (2 of 1974), S.197 - Sanction to
prosecute - prosecution must send the
entire relevant record to the sanctioning
authority - prosecution has to satisfy
court, by leading evidence, that at the
time of sending the matter for grant of
sanction by the competent authority,
adequate material for such grant was
made available to the said authority -
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 - adequacy of
material placed before the sanctioning
authority cannot be gone into by the court
as it does not sit in appeal over the
sanction order - Grant of sanction is only
an
administrative
function
and
the
sanctioning authority is required to prima
facie reach the satisfaction that relevant
facts would constitute the offence (Para
25)

C. Prevention of Corruption Act (49 of
1988)- Section19 - challenge to order
granting
sanction
for
prosecution
-
Constitution of India, Art.226 - Writ
petition - Maintainability - order granting
sanction for prosecution, is ordinarily not
maintainable under Article 226 - accused
public servant has an opportunity before
the court, i.e. Special Judge appointed
under Section 3 of the P.C. Act to raise
objection to the grant of sanction for
prosecution - legality and/ order validity
of the order granting sanction would be
subject to review by the criminal courts
[Para 31(iii), (vi)]

D. Prevention of Corruption Act (49 of
1988)- Section 19 - Question of sanction -
Stage - Question of sanction may arise at
any stage of proceedings - Ordinarily,
question of sanction should be dealt with
at the stage of taking cognizance - but if
the cognizance is taken erroneously & the
same comes to the notice of the court at a
later stage, finding to that effect is
permissible & such a plea can be raised at
the time of framing of c

## Text

_Characters 0–39,997 of 64,999. This is a partial read: ask again with offset=39997 for what follows._

6 All. Kanhaiya Lal Srivastava Vs. State of U.P. & Ors.
349

8. We, in the light of above
discussion, are of the considered view that
the petitioner was liable to be granted
benefit of zero period from 27.4.2010 to
15.5.2015 in view of Clause-5 of the policy
dated 1.1.2016 as inserted by the resolution
of Board Meeting dated 14.3.2016. Once
the case of petitioner is found to be
successful on merits of the terms and
conditions of the policy and 104th Board
Resolution, we do not feel the necessity to
enter into the claim of parity.

9. The impugned order suffers from
absolute non-application of mind as it was
not only admitted case that there was
encroachment over khasra nos. 663 & 654
on which 24 mts. wide approach road was
granted to the petitioner but on account of
encroachment, possession of the same
could be delivered with the police aid only
on 15.5.2015 coupled with the fact that its
case was also not considered as per the
104th Board Resolution. We are also of the
view that the authority cannot take
advantage of its own wrong i.e. by not
providing the complete physical possession
of the allotted plot to the petitioner and at
the same time, levying additional changes
for not completing the constructions within
a stipulated period. This approach would
not only be counter productive rather
deterimental to the industrial development
of the area. We, thus, have no option but to
set aside the order dated 9.7.2020.

10. The writ petition is allowed. The
order dated 9.7.2020 is set aside/quashed.
The competent authority is directed to
consider the case of the petitioner for grant
of benefit of zero period w.e.f. 27.4.2010 to
15.5.2015, as expeditiously as possible,
preferably within 6 weeks, from the the
date of receipt of this order, in the light of
observation made above and in accordance
with law, under intimation to the petitioner.
----------
(2021)06ILR A349
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.06.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAVI NATH TILHARI, J.

Writ-C No. 27346 of 2020

Kanhaiya Lal Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Suresh Chandra Dwivedi

Counsel for the Respondents:
C.S.C.

A. Criminal Law - Criminal Procedure Code
(2 of 1974) - Section 197 - Prosecution of
public
servants-
''while
acting
or
purporting to act in discharge of their
official duty" - Protection when - An
accused public servant has to show that
there is reasonable connection between
the act complained of and the discharge of
official
duty
-
act
of
the
accused
complained of must be such that the same
cannot be separated from the discharge of
official
duty
-
where
there
is
no
reasonable connection between the act
complained of and the performance of
official duties, no sanction under Section
197, Cr.P.C. would be required - where a
criminal act is performed under the colour
of authority but which in reality the act is
for the public servant's own pleasure or
benefit, then such acts are not protected
under the doctrine of State immunity -
such claim an be examined during the
course of trial by giving opportunity to the
defence to establish it [Para 31 (viii), (ix)]
350 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Prevention of Corruption Act (49 of
1988) - Section 19 - Criminal Procedure
Code (2 of 1974), S.197 - Sanction to
prosecute - prosecution must send the
entire relevant record to the sanctioning
authority - prosecution has to satisfy
court, by leading evidence, that at the
time of sending the matter for grant of
sanction by the competent authority,
adequate material for such grant was
made available to the said authority -
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 - adequacy of
material placed before the sanctioning
authority cannot be gone into by the court
as it does not sit in appeal over the
sanction order - Grant of sanction is only
an
administrative
function
and
the
sanctioning authority is required to prima
facie reach the satisfaction that relevant
facts would constitute the offence (Para
25)

C. Prevention of Corruption Act (49 of
1988)- Section19 - challenge to order
granting
sanction
for
prosecution
-
Constitution of India, Art.226 - Writ
petition - Maintainability - order granting
sanction for prosecution, is ordinarily not
maintainable under Article 226 - accused
public servant has an opportunity before
the court, i.e. Special Judge appointed
under Section 3 of the P.C. Act to raise
objection to the grant of sanction for
prosecution - legality and/ order validity
of the order granting sanction would be
subject to review by the criminal courts
[Para 31(iii), (vi)]

D. Prevention of Corruption Act (49 of
1988)- Section 19 - Question of sanction -
Stage - Question of sanction may arise at
any stage of proceedings - Ordinarily,
question of sanction should be dealt with
at the stage of taking cognizance - but if
the cognizance is taken erroneously & the
same comes to the notice of the court at a
later stage, finding to that effect is
permissible & such a plea can be raised at
the time of framing of charges - Objection
can be raised even before the appellate
court. [Para 31(v)]

E. Prevention of Corruption Act (49 of
1988)- Section 19 - challenge to order
granting
sanction
for
prosecution
-
Constitution of India, Art.226 - Writ
petition - Necessary party - complainant is
the necessary party [Para 31 (vii)]

F. Prevention of Corruption Act (49 of
1988)- Section 19 - Constitution of India,
Art.226 - Writ petition - Maintainability -
an order refusing to grant sanction may
attract judicial review [Para 31(iii)]

Held - since the chargesheet already submitted
in the court and cognizance has also been taken
- writ petition for quashing the sanction for
prosecution or to stay the trial is not
maintainable (Para 16)

Dismissed. (E-4)

List of Cases cited:

1. St. of Pun. & anr. Vs Mohd. Iqbal Bhatti
(2009) 17 SCC 92

2. St. of H.P. Vs Nishant Sareen (2010) 14 SCC
527

3.Gopikant Choudhary Vs St. of Bihar (2000) 9
SCC 53

4.Ashoo Surendranath Tewari Vs The Dy Sup. of
Police, EOW, CBI & anr. (2020) 9 SCC 636

5. Devinder Singh & ors. Vs St. of Pun. through
CBI (2016) 12 SCC 87

6. Chittranjan Das Vs St. of Ori (2011) 7 SCC
167

7. Prakash Singh Badal & anr. Vs St. of Pun.,
(2007) 1 SCC 1

8. Asian Resurfacing of Road Agency Pvt. Ltd. &
anr. Vs CBI (2018) 16 SCC 299

9. Vinod Kumar Garg Vs State (Government of
NCT of Delhi), (2020) 2 SCC 88
6 All. Kanhaiya Lal Srivastava Vs. State of U.P. & Ors.
351
10. CBI Vs Ashok Kumar Aggarwal (2014) 14
SCC 295

11. St. of Maha Vs Mahesh G. Jain, (2013) 8
SCC 119

12. Romesh Lal Jain Vs Naginder Singh Rana &
ors. (2006) 1 SCC 294

13.SHO, CBI/ ACB/ Bengalore Vs B.A. Srinivasan
& anr., (2020) 2 SCC 153

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Suresh Chandra
Dwivedi, learned counsel for the petitioner
and the learned standing counsel for the
State-respondents.

2. This writ petition has been filed
praying for the following relief:

"(i) To issue a writ of Certiorari
quashing
the
order
dated
passed
27.01.2020 passed by respondent no.3 and
4 (Containing in Annexure no.33 in present
writ petition).

(ii) To issued a stay operation of the
order dated 27.01.2020 (Annexure No.33)
and it further prayed during the pendency
of writ petition the trial court has not
proceed the matter inpursuance of order
dated 27.01.2020 during the pendency of
writ petition.

(iii) Issue a writ order or direction in
the nature of Mandamus Commanding /
Directing the Respondents to act in
accordance with law.

(iv) Issue any other suitable writ order
or direction as this Hon'ble Court may
deem fit and proper in the circumstances of
the case.

(v) Award the cost of petition to the
petitioner."

Facts:-

3. Briefly stated facts of the present
case are that in the year 2015, the petitioner
was selected on the post of Treasury
Officer and was posted as Finance and
Accountants Officer in the Basic Education
Department, Agra. Sometime in August,
2016, one Dinesh Singh Chahar was
suspended by the competent authority and
disciplinary proceeding was initiated but
his disciplinary proceeding could not be
concluded within three months, therefore,
on 25.12.2016, he moved an application
before the petitioner and the concerned
Basic Education Officer for payment of
suspension allowance to the extent of 75%
of the salary instead of 50% of the salary
which the petitioner forwarded to the Basic
Education Officer for orders. On complaint
of the aforesaid suspended Assistant
Teacher
against
the
petitioner
for
demanding illegal gratification, Vigilance
Department constituted a team of officers.
On 02.05.2017, the petitioner was allegedly
caught red handed by the Trap Team of
Officers of the U.P. Vigilance Department
when he was allegedly accepting bribe of
Rs.50,000/- from the Assistant Teacher Sri
Dinesh Singh Chahar, for payment of his
suspension allowance. Accordingly, a First
Information Report No.0254 of 2017 dated
02.05.20217 under Section 7, 13(1)(d),
13(2), P.C. Act, P.S. Shahganj, District
Agra was registered against the petitioner.

4. On 15.05.2017, petitioner's wife
submitted a representation before the
District Magistrate, Agra, alleging that her
husband has been falsely implicated in the
aforesaid criminal case. On 13.11.2017, the
petitioner also moved a representation
before
the
Superintendent
of Police,
Vigilance, Agra submitting that he has been
falsely implicated. On 21.11.2017, the
petitioner moved a representation before
the Finance Controller, Basic Shiksha
352 INDIAN LAW REPORTS ALLAHABAD SERIES
Parishad, U.P. Allahabad alleging that the
Assistant Teacher Dinesh Singh Chahar
had made a false complaint against him.
The petitioner also moved a representation
before the Additional Director (Basic
Shiksha), Uttar Pradesh, Allahabad for
action against the aforesaid Assistant
Teacher Dinesh Singh Chahar alleging that
he moved a false complaint since the
sanctioning
authority
for
suspension
allowance to the extent of 75% of the
salary, was the Basic Education Officer and
not the petitioner. On the aforesaid
representation of the petitioner, the Finance
Controller issued a letter dated 08.12.2017
for taking action against the aforesaid
suspended Assistant Teacher Dinesh Singh
Chahar.

5. It appears that the Investigating
Officer
of
the
Vigilance
Department
investigated the matter and requested the
State Government to grant sanction for
prosecution of the petitioner. It appears that
the
State
Government
considered
the
objections/ representation of the petitioner
and vide order dated 25.04.2018, the State
Government
not
accepted
the
recommendation
of
the
Vigilance
Department
for
granting
sanction
for
prosecution of the petitioner and directed for
further investigation to be carried by the
CBCID under Section 173(8), Cr.P.C. in the
aforesaid Case Crime No.0254 of 2017.

6. Aggrieved with the aforesaid order
dated 25.04.2018, the aforesaid Assistant
Teacher Sri Dinesh Singh Chahar filed a
Criminal Misc. Writ Petition No.12373 of
2018 (Dinesh Singh Chahar vs. State of U.P.
and others) praying to quash the order dated
25.04.2018. The aforesaid Criminal Misc.
Writ Petition No.12373 of 2018 was disposed
of by a Division Bench of this Court by order
dated 11.10.2018 observing as under:

"12. In these circumstances, we do not
find any ground to quash the impugned
order dated 25.04.2018. It may also be
mentioned here that in further investigation
as directed by the Government vide
impugned order to be done by C.B.C.I.D.
there could be possibility of reiteration of
the charge-sheet submitted against the
respondent no.7 and there could also be a
possibility of closer report being submitted.
In case, the closer report is submitted, the
competent court may be approached by the
petitioner to get the same set aside by
moving a protest petition and at that stage,
the said court may also take into
consideration earlier evidence gathered by
the Investigating Agency during submission
of the Charge-sheet against the petitioner
before arriving on a conclusion.

13. In view of the above, we uphold
the impugned order dated 25.04.2018 and
direct to the Investigating Agency to
conclude the further investigation within a
period of two months from today,
positively and submit the police report
before the competent court.

14. The present writ petition is,
accordingly, disposed of."

7. In the aforesaid Criminal Misc.
Writ Petition No.12373 of 2018, the
petitioner was the respondent No.7. The
aforesaid order of the State Government
dated 25.04.2018 directing for further
investigation by the CBCID, has attained
finality.
The
CBCID
completed
the
investigation and submitted reports dated
27.05.2019 and 08.07.2019 to the State
Government. Vide letters dated 14.01.2020
and 23.01.2020, the State Government
made certain queries and directed CBCID
to provide detail investigation report. After
considering
the
matter,
the
State
Government passed the impugned order
dated 27.01.2020 granting sanction for
6 All. Kanhaiya Lal Srivastava Vs. State of U.P. & Ors.
353
prosecution of the petitioner under Section
7/13(1)(d), 13(2), P.C. Act.

8. In the impugned order dated
27.01.2020, the Case Crime No. was
inadvertently mentioned as 25417/2017
instead of correct No.254/2017. Therefore,
the impugned order dated 27.01.2020 was
corrected. The chargesheet No.3/2020
dated 03.03.2020 has been filed before
the Court of Additional District and
Sessions
Judge/
Special
Judge,
Prevention of Corruption Act, Meerut
on 29.07.2020. It has been stated in
paragraph-10 of the short counter affidavit
that in the aforesaid case (State Trial
No.432 of 2020), cognizance has been
taken and it is pending before the court of
Special Judge, Prevention of Corruption
Act, Meerut and the next date is fixed for
09.04.2021.

Submissions:-

9. Learned counsel for the petitioner
submitted as under:-

(i) Once the request for sanction for
prosecution of the petitioner was rejected by
the State Government vide order dated
25.04.2018, the impugned order dated
27.01.2020 granting sanction could not have
been passed by the State Government on the
basis of the same material on which the
sanction was earlier refused.

(ii) When the impugned order dated
27.01.2020 granting sanction for prosecution
was passed, the investigation of the case was
not complete.

(iii) The petitioner has been falsely
implicated as evident from representations
made by the petitioner. Therefore, the grant
of sanction for prosecution by the impugned
order dated 27.01.2020 is arbitrary and
illegal.
While
granting
sanction
for
prosecution, the State Government has not
considered the letter of the Finance Controller
dated 08.12.2017 whereby he ordered for
taking action against the Assistant Teacher
Sri Dinesh Singh Chahar for levelling
charges against the petitioner.

(iv)
The petitioner
was
not
the
sanctioning authority to sanction suspension
allowance to the extent of 75% of the salary
of the aforesaid Assistant Teacher. The
petitioner was only the disbursing authority.
Therefore, there was no occasion for the
petitioner to demand and accept illegal
gratification from the aforesaid Assistant
Teacher
Sri
Dinesh
Singh
Chahar.
Consequently, the entire case set up by The
Trap team is baseless.

(v) The Investigating Officer has not
conducted investigation truthfully and fairly.
Therefore,
the
grant
of
sanction
for
prosecution on the basis of the investigation
report of the CBCID, deserves to be quashed.

(vi) The alleged trap was made with
malicious intention only for destroying
carrier of the petitioner in conspiracy with the
complainant Dinesh Singh Chahar.

10. In support of his submissions, learned
counsel for the petitioner has relied upon the
judgments of Hon'ble Supreme Court in the
case of State of Punjab and another Vs.
Mohd. Iqbal Bhatti, (2009) 17 SCC 92, State
of Himanchal Pradesh vs. Nishant Sareen,
(2010) 14 SCC 527, Gopikant Choudhary vs.
State of Bihar, (2000) 9 SCC 53 and Ashoo
Surendranath Tewari vs. The Deputy
Superintendent of Police, EOW, CBI and
another (2020) 9 SCC 636 for the proposition
that the State Government has no power to
review its own order in the matter of grant of
sanction, on the same set of facts on which the
sanction for prosecution was earlier refused.

11. Learned standing counsel has
supported the impugned order and has
354 INDIAN LAW REPORTS ALLAHABAD SERIES
also relied upon a judgment of Hon'ble
Supreme Court in the case of Devinder
Singh and others vs. State of Punjab
through CBI, (2016) 12 SCC 87 (para39).

Discussion and Findings:-

12. We have carefully considered the
submissions of the learned counsels for the
parties.

13. Before we proceed to discuss, it
would be appropriate to reproduce Section
19 of The Prevention of Corruption Act,
1988 (hereinafter referred to as ''P.C. Act'),
as under:

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

(a) in the case of a person who is
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 who is
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.

(2) Where for any reason whatsoever
any doubt arises as to whether the previous
sanction as required under sub-section (1)
should be given by the Central Government
or the State Government or any other
authority, such sanction shall be given by
that Government or authority which would
have been competent to remove the public
servant from his office at the time when the
offence
was
alleged
to
have
been
committed.

(3)
Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974),--

(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 sub-section
(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
6 All. Kanhaiya Lal Srivastava Vs. State of U.P. & Ors.
355
the sanction of a specified person or any
requirement of a similar nature."

14. Perusal of Section 19 of the P.C.
Act makes it clear that no court shall take
cognizance of an offence punishable under
Sections 7, 10, 11, 13 and 15 alleged to have
been committed by a public servant, except
with the previous sanction of the Central
Government or the State Government or the
competent authority as referred in clauses (a),
(b) and (c) of sub-Section (1). Clause (b) of
sub-Section (3) of Section 19 mandates that
no court shall stay the proceeding 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. Sub-section (4) of Section
19 explains the phrase "failure of justice".

Object of Section 19 of the P.C. Act
and Maintainability of Writ Petition
challenging the order granting Sanction
for Prosecution:-

15. Section 19 of the P.C. Act leaves no
manner of doubt that sanction for prosecution
has been provided by law as a safeguard to
public servants to save them from vexatious
and frivolous prosecution so as to give them
freedom and liberty to perform their duty
without fear or favour and not succumbed to
the pressure of unscrupulous elements. Thus,
Section 19 of the P. C. Act empowers the
sanctioning authority to protect the innocent
public servants from uncalled for prosecution
but it is not intended to shield the guilty, vide
Chittranjan Das vs. State of Orrisa, (2011)
7 SCC 167 (para-12).

16. From bare reading of Section 19
read with Section 3, 4 and 5, it is evident
that legality and/ or validity of order
granting sanction would be subject to
review by criminal courts whereas an
order refusing to grant sanction may attract
judicial review. Reference in this regard
may also be had to the judgment of the
Apex Court in State of Punjab and
another vs. Mohd. Iqbal Bhatti, (2009)
17 SCC 92 (para-6). In the present set of
facts,
since
the
chargesheet
dated
03.03.2020 has already been submitted in
the court of Additional Sessions Judge/
Special Judge, P.C. Act on 29.07.2020 and
the cognizance has also been taken in State
Trial No.432 of 2020, therefore, present
writ petition for quashing the sanction
for prosecution or to stay the trial is not
maintainable. Ordinarily, question
of
sanction should be dealt with at the stage of
taking cognizance. Question of sanction
can be raised at the time of framing of
charge and it can be decided prima facie on
the basis of accusation. Question of
sanction may arise at any stage of
proceedings.
Whether
sanction
for
prosecution is necessary or not, have to be
determined from stage to stage and material
brought on record depending upon facts of
each case.

17. Earlier a Criminal Misc. Writ
Petition No.12373 of 2018 was filed by the
complainant Sri Dinesh Singh Chahar in
which the petitioner herein was the
respondent No.7. In that writ petition, the
order dated 25.04.2018 directing further
investigation by CBCID was challenged
and the writ petition was disposed of by
order dated 11.10.2018 upholding the order
dated
25.04.2018
and
directing
the
Investigating Agency to conclude the
further investigation within a period of two
months, positively and submit the police
report before the competent court. The
order
dated
11.10.2018
has
attained
finality. That apart, the petitioner has not
impleaded the complainant in the present
356 INDIAN LAW REPORTS ALLAHABAD SERIES
writ petition who is the necessary party.
Thus, the writ petition also suffers from
defect of non-joinder of necessary party.

Law of Sanction for Prosecution,
and Stage and Forum to challenge an
order granting sanction:-

18. Law with regard to order for
sanction for prosecution and when the
question of sanction can be entertained, has
been summarised by Hon'ble Supreme
Court in the case of Devinder Singh vs.
State of Punjab through CBI, (2016) 12
SCC 87 (para-39), as under:

"39. The principles emerging from the
aforesaid
decisions
are
summarized
hereunder :

39.1. Protection of sanction is an
assurance to an honest and sincere officer
to perform his duty honestly and to the best
of his ability to further public duty.
However, authority cannot be camouflaged
to commit crime.

39.2. Once act or omission has been
found to have been committed by public
servant in discharging his duty it must be
given liberal and wide construction so far
its official nature is concerned. Public
servant is not entitled to indulge in criminal
activities. To that extent Section 197 CrPC
has to be construed narrowly and in a
restricted manner.

39.3. Even in facts of a case when
public servant has exceeded in his duty, if
there is reasonable connection it will not
deprive him of protection under section 197
Cr.P.C. There cannot be a universal rule to
determine whether there is reasonable
nexus between the act done and official
duty nor it is possible to lay down such
rule.

39.4. In case the assault made is
intrinsically connected with or related to
performance of official duties sanction
would
be
necessary
under Section
197 CrPC, but such relation to duty should
not be pretended or fanciful claim. The
offence must be directly and reasonably
connected with official duty to require
sanction. It is no part of official duty to
commit offence. In case offence was
incomplete without proving, the official act,
ordinarily
the
provisions
of Section
197 CrPC would apply.

39.5. In case sanction is necessary, it
has to be decided by competent authority
and sanction has to be issued on the basis
of sound objective assessment. The court is
not to be a sanctioning authority.

39.6. Ordinarily, question of sanction
should be dealt with at the stage of taking
cognizance, but if the cognizance is taken
erroneously and the same comes to the
notice of Court at a later stage, finding to
that effect is permissible and such a plea
can be taken first time before appellate
Court. It may arise at inception itself.
There is no requirement that accused must
wait till charges are framed.

39.7. Question of sanction can be
raised at the time of framing of charge
and it can be decided prima facie on the
basis of accusation. It is open to decide it
afresh in light of evidence adduced after
conclusion of trial or at other appropriate
stage.

39.8. Question of sanction may arise
at any stage of proceedings. On a police or
judicial inquiry or in course of evidence
during trial. Whether sanction is necessary
or not may have to be determined from
stage to stage and material brought on
record depending upon facts of each case.
Question of sanction can be considered at
any stage of the proceedings. Necessity for
sanction may reveal itself in the course of
the progress of the case and it would be
open to accused to place material during
6 All. Kanhaiya Lal Srivastava Vs. State of U.P. & Ors.
357
the course of trial for showing what his
duty was. Accused has the right to lead
evidence in support of his case on merits.

39.9. In some cases it may not be
possible to decide the question effectively
and finally without giving opportunity to
the defence to adduce evidence. Question of
good faith or bad faith may be decided on
conclusion of trial."
 (Emphasis supplied by us)

19. In the case of Mohd. Iqbal Bhatti
(supra), Hon'ble Supreme Court held as
under:

"............................The legality and/or
validity of the order granting sanction
would be subject to review by the criminal
courts. An order refusing to grant sanction
may attract judicial review by the Superior
Courts."

20. In the case of Prakash Singh
Badal and another vs. State of Punjab,
(2007) 1 SCC 1 (Paras-20, 21, 26, 29, 48),
Hon'ble Supreme Court held as under:

"20.
The
principle
of
immunity
protects all acts which the public servant
has to perform in the exercise of the
functions of the Government. The purpose
for which they are performed protects these
acts from criminal prosecution. However,
there is an exception. Where a criminal act
is performed under the colour of authority
but which in reality is for the public
servant's own pleasure or benefit then
such acts shall not be protected under the
doctrine of State immunity.

21. In other words, where the act
performed under the colour of office is for
the benefit of the officer or for his own
pleasure Section
19(1) will
come
in.
Therefore, Section
19(1) is
time
and
offence related.

26.
The
underlying
principle
of Sections 7, 10, 11, 13 and 15 have been
noted above. Each of the above Sections
indicate that the public servant taking
gratification
(Section
7),
obtaining
valuable
thing
without
consideration
(Section 11), committing acts of criminal
misconduct (Section 13) are acts performed
under the colour of authority but which in
reality are for the public servant's own
pleasure
or
benefit. Sections
7, 10, 11, 13 and 15 apply to aforestated
acts. Therefore, if a public servant in his
subsequent position is not accused of any
such criminal acts then there is no question
of invoking the mischief rule. Protection to
public servants under Section 19(1)(a) has
to be confined to the time related criminal
acts performed under the colour or
authority for public servant's own pleasure
or benefit as categorized under Sections
7, 10, 11, 13 and 15. This is the principle
behind the test propounded by this court,
namely, the test of abuse of office.

29. The effect of sub-sections (3) and
(4) of Section 19 of the Act are of
considerable significance. In Sub-Section
(3) the stress is on "failure of justice" and
that too "in the opinion of the Court". In
sub-section (4), the stress is on raising the
plea at the appropriate time. Significantly,
the "failure of justice" is relatable to error,
omission or irregularity in the sanction.
Therefore,
mere
error,
omission
or
irregularity in sanction is considered fatal
unless it has resulted in failure of justice or
has
been
occasioned
thereby. Section
19(1) is a matter of procedure and does not
go to root of jurisdiction as observed in
para 95 of the Narasimha Rao's case
[(1998) 4 SCC 626]. Sub-section (3)(c)
of Section
19 reduces
the
rigour
of
prohibition. In Section 6(2) of the Old Act
[Section 19(2) of the Act] question relates
358 INDIAN LAW REPORTS ALLAHABAD SERIES
to doubt about authority to grant sanction
and not whether sanction is necessary.

48. ................. There is a distinction
between the absence of sanction and the
alleged invalidity on account of nonapplication of mind. The former question
can be agitated at the threshold but the
latter is a question which has to be raised
during trial."

21. In the case of Asian Resurfacing
of Road Agency Pvt. Ltd. and another
vs. Central Bureau of Investigation,
(2018) 16 SCC 299 (paras-50 and 54),
Hon'ble Supreme Court held has under:

"50. A perusal of Section 19(3) of the
Act would show that the interdict against
stay of proceedings under this Act on the
ground
of
any
error,
omission
or
irregularity in the sanction granted by the
authority is lifted if the Court is satisfied
that the error, omission or irregularity has
resulted in a failure of justice. Having said
this in clause (b) of Section 19(3), clause
(c)
says
that
no
Court
shall
stay
proceedings under this Act on any other
ground. The contention on behalf of the
Appellants before us is that the expression
"on any other ground" is referable only to
grounds which relate to sanction and not
generally to all proceedings under the Act.
Whereas
learned
counsel
for
the
Respondents argues that these are grounds
referable to the proceedings under this Act
and there is no warrant to add words not
found in sub-section (c), namely, that these
grounds should be relatable to sanction
only.

54. It is thus clear that the inherent
power of a Court set up by the Constitution
is a power that inheres in such Court
because it is a superior court of record,
and not because it is conferred by the
Code of Criminal Procedure. This is a
power vested by the Constitution itself,
inter alia, under Article 215 as aforestated.
Also, as such High Courts have the power,
nay, the duty to protect the fundamental
rights of citizens under Article 226 of the
Constitution, the inherent power to do
justice in cases involving the liberty of the
citizen would also sound in Article 21 of
the
Constitution.
This
being
the
constitutional
position,
it
is
clear
that Section 19(3)(c) cannot be read as a
ban on the maintainability of a petition
filed before the High Court under Section
482 of the Code of Criminal Procedure, the
non-obstante
clause
in Section
19(3) applying
only
to the
Code of
Criminal Procedure. The judgment of this
Court in Satya Narayan Sharma v. State of
Rajasthan, (2001) 8 SCC 607, paras 14 and
15 does not, therefore, lay down the correct
position in law. Equally, in paragraph 17
of
the
said
judgment,
despite
the
clarification that proceedings can be
"adapted" in appropriate cases, the Court
went on to hold that there is a blanket ban
of stay of trials and that, therefore, Section
482, even as adapted, cannot be used for
the aforesaid purpose. This again is
contrary to the position in law as laid down
hereinabove. This case, therefore, stands
overruled."

22. The principles laid down in the
case of Mahesh G Jain (supra) has been
reiterated by Hon'ble Supreme Court in a
recent judgment in the case of Vinod
Kumar Garg vs. State (Government of
NCT of Delhi), (2020) 2 SCC 88 (paras24 and 25).

23. In the case of Central Bureau of
Investigation
vs.
Ashok
Kumar
Aggarwal, (2014) 14 SCC 295 (paras-13,
14, 15, 16, 16.1 to 16.5), Hon'ble Supreme
Court summarised legal propositions with
6 All. Kanhaiya Lal Srivastava Vs. State of U.P. & Ors.
359
regard to grant of sanction for prosecution,
as under:

"13. The prosecution has to satisfy
the court that at the time of sending the
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.

14. 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.

15. 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. [Vide: Gokulchand
Dwarkadas Morarka v. R., AlR 1948 PC
82; Jaswant Singh v. State of Punjab, AIR
1958 SC 124; Mohd. Iqbal Ahmed v. State
of A.P., (1979) 4 SCC 172; State v.
Krishanchand
Khushalchand
Jagtiani,
(1996) 4 SCC 472; State of Punjab v.
Mohd. Iqbal Bhatti, (2009) 17 SCC 92;
Satyavir Singh Rathi, ACP v. State, (2011)
6 SCC 1; and State of Maharashtra v.
Mahesh G. Jain, (2013) 8 SCC 119].

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

16.1. 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.

16.2. The authority itself has to do
complete and conscious scrutiny of the
360 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

16.3. The power to grant sanction is
to be exercised strictly keeping in mind
the public interest and the protection
available to the accused against whom
the sanction is sought.

16.4. 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.

16.5. 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."

(Emphasis supplied by us)

24. In the case of State of
Maharastra through CBI vs. Mahesh G
Jain, (2013) 8 SCC 119, Hon'ble
Supreme Court has summarised the
principle with regard to order for sanction
of prosecution and its nature and held as
under:

"14. From the aforesaid authorities
the following principles can be culled out: -

14.1.
It
is
incumbent
on
the
prosecution to prove that the valid
sanction
has
been
granted
by
the
sanctioning authority after being satisfied
that a case for sanction has been made out.

14.2.
The
sanction
order
may
expressly
show
that
the
sanctioning
authority has perused the material placed
before him and, after consideration of the
circumstances, has granted sanction for
prosecution.

14.3. The prosecution may prove by
adducing the evidence that the material
was
placed
before
the
sanctioning
authority and his satisfaction was arrived
at upon perusal of the material placed
before it.

14.4. Grant of sanction is only an
administrative
function
and
the
sanctioning authority is required to prima
facie reach the satisfaction that relevant
facts would constitute the offence.

14.5. The adequacy of material
placed before the sanctioning authority
cannot be gone into by the court as it does
not sit in appeal over the sanction order.

14.6. If the sanctioning authority has
perused all the materials placed before it
and some of them have not been proved
that would not vitiate the order of
sanction.

14.7. The order of sanction is a prerequisite as it is intended to provide a
safeguard to a public servant against
frivolous and vexatious litigants, but
simultaneously an order of sanction should
not be construed in a pedantic manner and
there should not be a hyper-technical
approach to test its validity."