# Lokesh Kumar Dwivedi Revisionist v. State Of U.P. & Ors

- **Citation:** (2016) 3 ILRA 377
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-03
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lokesh-kumar-dwivedi-revisionist-v-state-of-u-p-ors-43537
- **Pages:** 5

## Headnote

CRIMINAL REVISION - S. 156(3) Cr.P.C. APPLICATION - REJECTION FOR WANT OF SANCTION -
PRE-COGNIZANCE STAGE - MANDATORY REQUIREMENT UNDER S. 19 PC ACT UPHELD-- SANCTION
UNDER PC ACT - PRE-CONDITION FOR INVESTIGATION - PROTECTS PUBLIC SERVANTS [Paras 1, 35, 9-10].

TAKING COGNIZANCE - DISTINGUISHED FROM S. 156(3) ORDER - NO APPLICATION OF MIND
UNDER S. 190-- Ordering investigation under Section 156(3) Cr.P.C. does not constitute taking
cognizance-- DEEMED SANCTION - INAPPLICABLE PRE-COGNIZANCE [Paras 5, 7-8, 10].

Revision Dismissed.

List of Cases cited:

## Text

3 All. Lokesh Kumar Dwivedi Vs State Of U.P. & Ors.
377
9. In my opinion, the Courts were justified in rejecting the application as the identity of
a lady cannot be determined by her thumb impression, the onus is upon the applicant to lead
cogent evidence to establish that the respondent no. 2 is not his wife.

10. In these circumstances, this Court under Article 227 of the Constitution declines to
interfere with the matter at this stage.

11. The petition being devoid of merit is, accordingly, dismissed.

12. No cost.
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REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Revision No. - 494 of 2016

Lokesh Kumar Dwivedi ...Revisionist
Versus
State Of U.P. & Ors ...Respondents

Counsel for the Revisionist:
Rahul Chaudhary

Counsel for the Respondents:
G.A.

CRIMINAL REVISION - S. 156(3) Cr.P.C. APPLICATION - REJECTION FOR WANT OF SANCTION -
PRE-COGNIZANCE STAGE - MANDATORY REQUIREMENT UNDER S. 19 PC ACT UPHELD-- SANCTION
UNDER PC ACT - PRE-CONDITION FOR INVESTIGATION - PROTECTS PUBLIC SERVANTS [Paras 1, 35, 9-10].

TAKING COGNIZANCE - DISTINGUISHED FROM S. 156(3) ORDER - NO APPLICATION OF MIND
UNDER S. 190-- Ordering investigation under Section 156(3) Cr.P.C. does not constitute taking
cognizance-- DEEMED SANCTION - INAPPLICABLE PRE-COGNIZANCE [Paras 5, 7-8, 10].

Revision Dismissed.

List of Cases cited:
1. Subramanian Swamy vs Manmohan Singh and another, (2012) 3 Supreme Court Cases 64
2. R.R. Chari vs State of U.P., AIR 1951 SC 207
3. Supt. and Remembrancer of Legal Affairs vs Abani Kumar Banerjee, AIR 1950 Calcutta 437
4. Anil Kumar & Ors. vs M.K. Aiyappa & Anr., (2014) 1 Supreme Court Cases (Cri) 35
5. General Officer, Commanding vs CBI, Criminal Appeal No. 257 of 2011
378 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Mrs. Ranjana Pandya, J.)

1. This criminal revision has been preferred against the order dated 22.12.2015 passed
by the learned Additional Sessions Judge/Special Judge (Prevention of Corruption Act),
Court No. 4, Varanasi in Misc. Application No. 3 of 2015 (Lokesh Dwivedi vs Smt. Priti
Gupta & others) under section 156(3) Cr.P.C., police station Aung, district Fatehpur.

2. Heard learned counsel for the revisionist and learned Additional Government
Advocate for the State-respondent.

3. Learned counsel for the revisionist has submitted that the learned lower court has
committed irregularity and illegality in rejecting the application under section 156(3) Cr.P.C.
for want of sanction, inasmuch as it was the pre-cognizance stage. The applicant had already
applied to the appropriate authorities for grant of sanction and if within a limited period
sanction was not granted, the sanction would be deemed to have been granted as provided
by law.

4. Per contra learned Additional Government Advocate has submitted that the revision
is not maintainable because the court could not have proceeded even to decide the
application under section 156(3) Cr.P.C. for want of prosecution sanction.

5. Learned counsel for the revisionist has placed reliance upon the decision of Hon'ble
Apex Court in the case of Subramanian Swamy vs Manmohan Singh and another reported
in (2012) 3 Supreme Court Cases 64, in which the Hon'ble Apex Court has observed about
the stage of sanction in a criminal proceedings. While relying in R.R. Chari vs State of U.P.,
AIR 1951 SC 207, the three Judges Bench approved the following observations made by the
Calcutta High Court in Supt. and Remembrancer of Legal Affairs vs Abani Kumar
Banerjee, AIR 1950 Calcutta 437:

"7. ... What is 'taking cognizance' has not been defined in the Criminal Procedure
Code, and I have no desire now to attempt to define it. It seems to me clear, however,
that before it can be said that any Magistrate has taken cognizance of any offence
under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his
mind to the contents of the petition, but he must have done so for the purpose of
proceeding in a particular way as indicated in the subsequent provisions of this
Chapter,- proceeding under Section 200, and thereafter sending it for inquiry and
report under Section 202. When the Magistrate applies his mind not for the purpose of
proceeding under the subsequent sections of this Chapter, but for taking action of some
other kind e.g. ordering investigation under Section 156(3), or issuing a search warrant
for the purpose of the investigation, he cannot be said to have taken cognizance of the
offence."

6. In the case of Subramanian Swamy (supra) the time limit for three months for grant
of sanction may be extended to one month. Further it has been laid down as under:
3 All. Lokesh Kumar Dwivedi Vs State Of U.P. & Ors.
379
"By causing delay in considering the request for sanction, the sanctioning
authority stultifies judicial scrutiny and determination of the allegations against
corrupt official and thus the legitimacy of the judicial institutions is eroded. It, thus,
deprives a citizen of his legitimate and fundamental right to get justice by setting the
criminal law in motion and thereby frustrates his right to access judicial remedy which
is a constitutionally protected right. In this connection, if we look at Section 19 of the
P.C. Act, we find that no time limit is mentioned therein. This has virtually armed the
sanctioning authority with unbridled power which has often resulted in protecting the
guilty and perpetuating criminality and injustice in society."

But this would also come into play only after filing of the charge sheet under section
173(2) Cr.P.C.

7. Thus, the facts of the case of Subramanian Swamy (supra) are different from the case
in hand. As soon as an application under section 156(3) Cr.P.C. is moved before the
Magistrate, he has certain options. (i) he can treat the same as a complaint case. (ii) he can
direct registration and investigation of the case as mentioned in section 156 Cr.P.C.

8. The Additional Sessions Judge/Special Judge (Prevention of Corruption Act) is
deemed to be Magistrate under section 5(4) of the Prevention of Corruption Act, and
therefore, clothed with all the Magistrate powers provided under the Code of Criminal
Procedure. When a private complaint is filed before the Magistrate, he has two options: he
may take cognizance of the offence under section 190 Cr.P.C. or proceed further in enquiry
or trial. The Magistrate, who is otherwise competent to take cognizance, without taking
cognizance under section 190, may direct an investigation under section 156(3) Cr.P.C. The
Magistrate, who is empowered under Section 190 Cr.P.C. to take cognizance, alone has the
power to refer a private complaint for police investigation under Section 156(3) Cr.P.C.

9. As far as the requirement of sanction being a precondition for ordering investigation
under section 156(3) Cr.P.C., is concerned, the Hon'ble Apex Court in Anil Kumar & Ors. vs
M.K. Aiyappa & Anr. reported in (2014) 1 Supreme Court Cases (Cri) 35, has laid down
that:
"12. We may now examine whether, in the above mentioned legal situation, the
requirement of sanction is a pre-condition for ordering investigation under Section
156(3) Cr.P.C., even at a pre-cognizance stage. Section 2(c) of the PC Act deals with
the definition of the expression "public servant" and provides under Clauses (viii) and
(xii) as under:

"(viii) any person who holds an office by virtue of which he is authorised or
required to perform any public duty.

(xii) any person who is an office-bearer or an employee of an educational,
scientific, social, cultural or other institution, in whatever manner established,
receiving or having received any financial assistance from the Central Government or
any State Government, or local or other public authority."
380 INDIAN LAW REPORTS ALLAHABAD SERIES

The relevant provision for sanction is given in Section 19(1) of the PC Act, which
reads 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 removeable 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."

Section 19(3) of the PC Act also has some relevance; the operative portion of the
same is extracted hereunder:

"Section 19(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 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) xxx xxx xxx

(c) xxx xxx xxx"

13. Learned senior counsel appearing for the appellants raised the contention that
the requirement of sanction is only procedural in nature and hence, directory or else
Section 19(3) would be rendered otiose. We find it difficult to accept that contention.
Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances
where a Special Judge has already rendered a finding, sentence or order. In such an
event, it shall not be reversed or altered by a court in appeal, confirmation or revision
on the ground of absence of sanction. That does not mean that the requirement to
obtain sanction is not a mandatory requirement. Once it is noticed that there was no
previous sanction, as already indicated in various judgments referred to hereinabove,
the Magistrate cannot order investigation against a public servant while invoking
powers under Section 156(3) Cr.P.C. The above legal position, as already indicated,
3 All. Paras Nath & Anr. Vs Additional District Judge, Court No. 2, Sultanpur & Ors.
381
 has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases
(supra).

14. Further, this Court in Criminal Appeal No. 257 of 2011 in the case of General
Officer, Commanding v. CBI and opined as follows:

"Thus, in view of the above, the law on the issue of sanction can be summarized to
the effect that the question of sanction is of paramount importance for protecting a
public servant who has acted in good faith while performing his duty. In order that the
public servant may not be unnecessarily harassed on a complaint of an unscrupulous
person, it is obligatory on the part of the executive authority to protect him..... If the
law requires sanction, and the court proceeds against a public servant without
sanction, the public servant has a right to raise the issue of jurisdiction as the entire
action may be rendered void ab-initio."

10. Thus, this is not a case, in which deemed sanction can be inferred. The learned
lower court has rightly rejected the application of the revisionist under section 156(3)
Cr.P.C.

11. In view of what has been indicated herein above, the criminal revision lacks merit
and is accordingly dismissed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2016

BEFORE

THE HON'BLE ANIL KUMAR, J.

Misc. Single No. - 2379 of 2016

Paras Nath & Anr. ...Petitioners
Versus
Additional District Judge, Court No. 2, Sultanpur & Ors. ...Respondents

Counsel for the Petitioners:
Brijesh Yadav "Vijay"

Counsel for Respondents:-
C.S.C, Azad Khan

Civil Procedure Code - Order I Rule 10(2) - Impleadment of parties - Necessary vs. proper parties
- Plaintiff as dominus litis - Discretion of court to add parties for effective adjudication and avoidance
of multiplicity - Mere interest insufficient without direct enforceable right or legal compulsion -
Rejection of application upheld.

Facts - Opposite Party filed Regular Suit for permanent injunction against Gram Panchayat over land
(khasra no. 278, etc.) with, claiming uninterrupted possession for over 100 years - Petitioners sought