# Khazan Singh v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 339
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-03
- **Bench:** Ramesh Sinha, Vinod Kumar Srivastava-Iii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khazan-singh-v-state-of-u-p-ors-43835
- **Pages:** 5

## Text

5 All. Khazan Singh Vs State Of U.P. & Ors.

339

22. Considering the facts of the case, it can not be said that the petitioners herein are presumed
to be possessing the lower qualification of diploma in engineering as in order to possess a degree in
engineering it is not necessary to first of all pass or possess a diploma in engineering.

23. Another co-ordinate Bench of this Court had the occasion to consider these very issues
while deciding Writ Petition No. 7012(SS) of 2001; Anoop Ratan Awasthi Vs. Public Service
Commission, Allahabad and one another and connected petition. Having gone through the said
judgment also, this Court is of the view that the reasoning given therein is applicable to the present
case also and supports the view taken by this Court as aforesaid.

24. For the reasons aforesaid, I do not find any merit in the writ petitions, the same are,
accordingly, dismissed. The interim order stands vacated.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2016

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VINOD KUMAR SRIVASTAVA-III, J.

Criminal Misc. Writ Petition No.- 8026 Of 2016

Khazan Singh ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Mohit Singh

Counsel for Respondents:
G.A.

Present writ has been filed to quash the impugned order dated 16.10.2015 passed by the State Government.
Mandamus was also sought for restraining the respondent authorities not to arrest the petitioner or adopt any
coercive measure. An FIR was lodged on 22.09.2004 as Case Crime No.336 of 2004, under Sections 419, 420,
467, 468, 471 I.P.C. During the course of investigation, Section 120B I.P.C. and 13(2) of Prevention of
Corruption Act were also added and petitioner was also made an accused in the present case. The respondent
no.4 applied for sanction of prosecution of the petitioner for the offence in question from the competent
authority and the same was granted by it on 16.10.2015.

Petitioner counsel contented that order granting sanction is bad in the eyes of law as it is a result of nonapplication of mind, arbitrary and illegal as well as before granting sanction order no opportunity of hearing
was granted.
340 INDIAN LAW REPORTS ALLAHABAD SERIES
Court held that there is no flaw in the impugned order dated 16.10.2015 passed by the competent authority
granting sanction for prosecution of the petitioner, hence, the prayer for quashing the same is hereby refused.

The petition lacks merit. It is, accordingly, dismissed.

List of Cases Cited:

1. Mansukhlal Vithaldas Chauhan Vs. State of Gujarat 1997 (7) SCC 622
2. Onkar Prasad Shukla Vs. State of U.P. & Others 2015 (10) ADJ 254

(Delivered by Hon'ble Ramesh Sinha, J.)

1 This writ petition has been been filed for quashing of the impugned order dated 16.10.2015
passed by the State Government, respondent no.1. A mandamus is also sought for restraining the
respondent authorities not to arrest the petitioner or adopt any coercive measure against the
petitioner in Case Crime No.336 of 2004, under Sections 419, 420, 467, 468, 471, 120B I.P.C. and
Section 13(2) of Prevention of Corruption Act, Police Station Tariya Sujan, District Kushinagar.

2. Brief facts of the case are that the petitioner while posted as Deputy Commissioner
(Commercial Tax) Assessment Range-III, Muzaffar Nagar issued Form-31 to the M/s Shalimar
Craft and Tissues Private Ltd., Muzaffar Nagar, respondent No.9 (here-in-after referred to as 'the
respondent no.9') on various dates, particulars of which are given here-under:

Financial Year
Dates
Number of Form-31
2003-04
31.03.2004
500
2004-05
13.05.2004
800
2004-05
27/28.07.2004
1000

Total
2300

3. The aforesaid Form-31's were issued on applications submitted by the Director of
respondent No.9. The said forms were issued to the respondent no.9 Firm after following the
procedure prescribed for issuance of Form-31's. The respondent no.9 reported loss of 155 form-31's
to the petitioner's office on 15.9.2004 and information about the same was also forwarded to the
police station for lodging of an FIR and a publication dated 13.9.2004 regarding loss of 155 form31's.

4. On 22.9.2004, an FIR was lodged by the Assistant Commissioner (In-charge) Commercial
Tax, Check Post, Tamkuhiraj, Kushinagar which was registered as Case Crime No.336 of 2004,
under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Tariya Sujan, District Kushinagar. In
pursuance of the same, investigation was carried out by the police authorities and subsequently the
investigation was transferred to Economic Offences Wings, Kanpur (here-in-after referred to as
"EOW").
5 All. Khazan Singh Vs State Of U.P. & Ors.

341

5. During the course of investigation, Section 120B I.P.C. and 13(2) of Prevention of
Corruption Act were also added and petitioner was also made an accused in the present case.

6. The respondent no.4 applied for sanction of prosecution of the petitioner for the offence in
question from the competent authority and the same was granted by it on 16.10.2015. Aggrieved by
the said order dated 16.10.2015, the petitioner has approached this Court by means of filing the
present writ petition for quashing of the same.

7. Supplementary affidavit filed today, is taken on record.

8. Heard Sri Ajay Bhanot, learned Senior Advocate, assisted by Sri Mohit Singh, learned
counsel for the petitioner, Sri Imran Ullah, learned Additional Advocate General assisted by Sri
R.K. Maurya learned A.G.A. for the State and perused the record.

9. It has been contended by learned counsel for the petitioner that the order granting sanction
for prosecution of the petitioner by the competent authorities is bad in the eyes of law as it is a
result of non-application of mind, arbitrary and illegal. He further submitted that before passing the
order granting sanction for prosecution, no opportunity of of hearing was given to the petitioner,
hence, the impugned order granting sanction for prosecution of the petitioner be set aside by this
Court.

10. It has been further argued that the competent authority, respondent no.1, ignored the fact
that departmental authorities of the petitioner were of the firm view that there was no negligence,
conspiracy or culpability on the part of the petitioner. Further the departmental authorities had also
intimated the concerned superior authorities that there was no loss of to the State Exchequer nor
there was any culpability of the petitioner in any manner. The impugned order passed by
respondent no.1 records the perverse finding with regard to the loss to the State Exchequer wherein
respondent no.9 firm was duly assessed for the tax by the office of the petitioner and taxation
proceedings were culminated in accordance with law and all taxes have been deposited by
respondent no.9, i.e., M/s Shalimar Craft and Tissues Private Ltd., Muzaffar Nagar.

11. He further submitted that respondent no.1 has totally failed to consider that the entire
action with regard to the fact that seizure was initiated on the petitioner's report as the petitioner
had duly intimated to the superior authority with regard to loss of 155 Form-31's immediately upon
receipt of the information by respondent no.9 firm. The departmental investigation conducted by
the Commercial Tax Department unequivocally concluded that there was no criminal conspiracy or
culpability of any official including the petitioner in any criminal act in the entire transaction,
hence, the order granting sanction of the petitioner be set aside.

12. Learned counsel for the petitioner in support of his contention has placed reliance upon a
judgment of the Apex Court reported in 1997 (7) SCC 622, Mansukhlal Vithaldas Chauhan Vs.
State of Gujarat and has drawn the attention of this Court towards paragraph no.19 and 25 of the
said judgment.
342 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Per contra, learned AGA appearing on behalf of the State has vehemently refuted the
arguments advanced by the learned and has submitted that the competent authority, i.e., respondent
no.1, after considering the entire material and evidence on record has granted sanction for
prosecution of the petitioner and passed the impugned order dated 16.10.2015. He further
submitted that the impugned order passed by respondent no.1 shows that after due consideration of
the material on record, sanction for prosecution of the petitioner has been granted. The petition
lacks merit and is liable to be dismissed.

14. In support of his contention, learned AGA has placed reliance upon the judgment of this
Court reported in 2015 (10) ADJ 254, Onkar Prasad Shukla Vs. State of U.P. & Others of this
Court and has drawn attention of this Court towards paragraph nos.15, 16, 18 of the said judgment.

15. Considered the submissions advanced by the learned counsel for the parties and perused
the record.

16. The contention of learned counsel for the petitioner is that the competent authority while
granting sanction for prosecution of the petitioner did not apply its mind and has passed the
impugned order without application of mind cannot be accepted as from perusal of the impugned
order it is apparent that the competent authority after considering the the nature of allegation,
evidence and all materials on record has granted sanction to prosecute the petitioner. Moreover,in
the case of Onkar Prasad Shukla Vs. State of U.P. & Others (supra), this Court in paragraph
no.15, 16 & 18 has held that :

"15. The petitioner if he is questioning the correctness of the sanction order, in our opinion,
has a remedy of assailing the validity of such order on grounds that are available in law before the trial court
itself. At this stage we find that there was some material other than the documents of the Income Tax
Department to record a prima facie satisfaction, namely the report of the Vigilance Department. The
existence of the report of an administrative inquiry cannot be a bar to the holding of a vigilance inquiry.
Moreso when the Vigilance Department in its inquiry has taken into account the details of the assets of the
petitioner and his wife which was not inquired into in this manner in the administrative inquiry.

16. Then comes the question as to whether this Court should interfere with the sanction order
at this stage on the strength of the facts which have been alleged before us. We may again point out that the
petitioner in his writ petition has not made any averments with regard to the miscalculation as has been
orally argued by Sri Sharma on the basis of the report of the Vigilance Department. The said facts are
nowhere stated in the writ petition even though there may be an incorrect calculation as suggested by Sri
Sharma. The question is as to whether this issue of fact which has been orally raised, can be a ground to
interfere with the order of sanction. We are of the opinion that even though a factual matter is not entirely
prohibited to be pleaded in a writ petition yet such an issue can be raised by questioning the sanction order
by the petitioner either by claiming discharge in the trial or if the trial proceeds then by clearly confronting
the prosecution on this issue. An issue of fact involving perversity, as pointed out by Sri Sharma in this case,
can be gone into and assessed on the material before the trial court itself. The adjudication therefore need
not be assumed in a writ jurisdiction where a dispute on facts is ordinarily to be avoided. The petitioner,
5 All. Hariram Verma & Ors. Vs State Of U.P. & Anr.

343
therefore, does not stand to any prejudice on the alleged miscalculation as noted above nor failure of justice
is occasioned. His liberty is subject to law and can claim protection before the trial court itself.

18. Coming to the parameters of any such inquiry, paragraph 14 of the judgment in the case
of State of Maharastra (supra) lays down the manner and the ingredients of recording a satisfaction for
granting sanction. Even if any perversity is alleged, the same would be dependent on the facts on the basis
whereof such allegations are made and which is always subject to any inquiry and trial before the concerned
court. Interfering in a writ jurisdiction would therefore be interfering with the procedure of law which has
been laid down through a valid piece of legislation.The writ jurisdiction being an extraordinary remedy, the
same should not be invoked unless there are compelling reasons to do so."

17. This Court has also recently examined the validity of the sanction order in Crl. Misc. Writ Petition
No.7362 of 2016 (Pradeep Kumar Vs. State of U.P. and 2 Others) which was also dismissed on 6.4.2016 in
which similar contention was raised by the counsel for the petitioner..

18. The case law which has been relied upon by the learned counsel for the petitioner of the Apex Court
in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (supra), the proposition of law as
enumerated therein is not disputed but in the instant case is distinguishable from the facts of the said case. In
the present case it cannot be said that the competent authority passed the impugned order without application
of mind.

18. Thus, in view of the foregoing discussions, we do not find any flaw in the impugned order dated
16.10.2015 passed by the competent authority granting sanction for prosecution of the petitioner, hence, the
prayer for quashing the same is hereby refused. The petition lacks merit. It is, accordingly, dismissed.

19. In compliance of the Court's order dated 13.4.2016 and 26.4.2016, the personal affidavit of Principal
Secretary (Home),Government of U.P. Lucknow shall be filed by Sri Imran Ullah, learned Additional
Advocate before the Registrar General of this Court, who shall place the same before us in our Chambers as
soon as the same is filed.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Application U/S 482 No.- 8041 Of 2015

Hariram Verma & Ors. ...Applicants
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for Applicants: