# Mahant Prasad Ram Tripathi @ M.P.R. Tripathi v. State Opp. Party

- **Citation:** (2022) 11 ILRA 446
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-10
- **Case number:** Appl. U/s 482 No. 633 of 2018
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahant-prasad-ram-tripathi-m-p-r-tripathi-v-state-opp-party-47838
- **Pages:** 18

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 120-B - The Code of
Criminal Procedure, 1973 - Section 482 -
Inherent power , The Prevention of
Corruption Act, 1988 - Sections 7, 13(2)
r.w. 13 (1)(d) , Section 19 - Previous
sanction
necessary
for
prosecution
-
distinction between - absence of sanction
- raised at the inception and threshold ,
invalidity of the sanction - to be raised in
the course of trial , Grant or refusal to
grant sanction is a statutory power - valid
sanction by the competent authority
under Section 19 of the PC Act is sine qua
non for taking cognizance for an offence
against a public servant - If the sanction is
held to be invalid, entire proceeding
undertaken by the trial court would be
void - validity of sanction for prosecution
could be considered only during the trial -
Internal notings on communication do not
culminate into executable order. (Para -
39,46,47,48 )

Complaint received from Contractor against
petitioner - alleged - demanded an illegal
gratification/commission/bribe from complainant
- on behalf of petitioner to process the payment
for the work done by contractor - contention -
earlier competent authority refused sanction for
prosecution against petitioner - denial of
sanction was after considering material placed
before competent authority - no fresh material
before competent authority to issue fresh
impugned sanction order dated 17th August,
2016 - which is evident from communication
issued on 10th February, 2016 - second sanction
order for prosecuting petitioner on same
material - not legally sustainable under law -
void ab initio - cognizance and summoning
petitioner - null and void - being without
11 All. Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Vs. State
447
jurisdiction as jurisdiction goes to the root of the
matter - hence application. (Para - 4,20,21 )

HELD:-Communication dated 10th February,
2016 is internal correspondence and not an
order, therefore, the petitioner cannot take
advantage of the said communication to say
that earlier competent authority had refused
sanction for prosecution of the petitioner. Order
dated 17th August, 2016 not a second order but
only order of sanction for prosecution of the
petitioner. Issued after application of mind.
Petitioner delaying trial proceedings on one
pretext or the other . No substance in the
petition. (Para - 55 to 58)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

## Text

_Characters 0–39,847 of 61,011. This is a partial read: ask again with offset=39847 for what follows._

446 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Lastly, the Court has to see
whether
ingredients
of
Section
420
I.P.C.(cheating and dishonestly inducing
delivery of property) are made out or not.
During investigation, it has come that the
applicant was not authorized to execute a
lease, however, she misrepresented herself
to be a trustee of hospital whereas
admittedly she was a Chairman of the
hospital at the relevant point of time and the
lease deed was executed at throw away price
without any termination clause and as such
it was wrongful loss to the society and
therefore,
prima
facie
ingredients
of
cheating and dishonesty are present and as
such offence under Section 420 I.P.C. is also
prima facie made out.

17. As discussed above, when on the
basis of evidence on record, prima facie a
case is made out and ingredients thereof are
present, this Court cannot exercise inherent
powers which will cause sudden death of
criminal
proceedings.
The
facts
and
circumstances of present case, therefore, do
not fall under category that '' allegations are
frivolous' or ''do not disclose any offence' and
therefore, it does not fall under ''exceptionally
rare cases' wherein exercise of inherent
powers is warranted.

18. In view of above consideration and
analysis, I do not find any ground to quash
the criminal proceedings against the applicant
and as such this application is rejected.
----------
(2022) 11 ILRA 446
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.11.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Appl. U/s 482 No. 633 of 2018
Mahant Prasad Ram Tripathi @ M.P.R.
Tripathi ...Applicant
Versus
State ...Opp. Party

Counsel for the Applicant:
Nandit Kumar Srivastava, Aishwarya Mishra

Counsel for the Opp. Parties:
Bireshwar Nath

(A) Criminal Law - Indian Penal Code,
1860 - Section 120-B - The Code of
Criminal Procedure, 1973 - Section 482 -
Inherent power , The Prevention of
Corruption Act, 1988 - Sections 7, 13(2)
r.w. 13 (1)(d) , Section 19 - Previous
sanction
necessary
for
prosecution
-
distinction between - absence of sanction
- raised at the inception and threshold ,
invalidity of the sanction - to be raised in
the course of trial , Grant or refusal to
grant sanction is a statutory power - valid
sanction by the competent authority
under Section 19 of the PC Act is sine qua
non for taking cognizance for an offence
against a public servant - If the sanction is
held to be invalid, entire proceeding
undertaken by the trial court would be
void - validity of sanction for prosecution
could be considered only during the trial -
Internal notings on communication do not
culminate into executable order. (Para -
39,46,47,48 )

Complaint received from Contractor against
petitioner - alleged - demanded an illegal
gratification/commission/bribe from complainant
- on behalf of petitioner to process the payment
for the work done by contractor - contention -
earlier competent authority refused sanction for
prosecution against petitioner - denial of
sanction was after considering material placed
before competent authority - no fresh material
before competent authority to issue fresh
impugned sanction order dated 17th August,
2016 - which is evident from communication
issued on 10th February, 2016 - second sanction
order for prosecuting petitioner on same
material - not legally sustainable under law -
void ab initio - cognizance and summoning
petitioner - null and void - being without
11 All. Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Vs. State
447
jurisdiction as jurisdiction goes to the root of the
matter - hence application. (Para - 4,20,21 )

HELD:-Communication dated 10th February,
2016 is internal correspondence and not an
order, therefore, the petitioner cannot take
advantage of the said communication to say
that earlier competent authority had refused
sanction for prosecution of the petitioner. Order
dated 17th August, 2016 not a second order but
only order of sanction for prosecution of the
petitioner. Issued after application of mind.
Petitioner delaying trial proceedings on one
pretext or the other . No substance in the
petition. (Para - 55 to 58)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

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

2. R.S. Nayak Vs A.R. Antulay, (1984) 2 SCC
183

3. Suresh Kumar Bhikham Vs Pradeep Ajay
Bhushan Jain, (1988) 1 SCC 205

4. Nanjappa Vs St. of Karn., (2015) 4 SCC 186

5. Nanjappa Vs St. of Karn., (2015) 14 SCC 186

6. Police Vs Surya Sankaran Karri, 2006 Cri.L.J.
4598

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

8. Dinesh Kumar Vs A.A.I. , (2012) 1 SCC 532

9. C.B.I. Vs Pramila Virendra Kumar Agarwal &
anr. , (2019) SCC OnLine SC 1265

10. Bachhittar Singh Vs St. of Punj. & anr. , AIR
1963 SC 395

11. Sethi Auto Service Station & anr. Vs D.D.A.
& ors., (2009) 1 SCC 180

12. Vivek Batra Vs U.O.I. & ors. , (2017) 1 SCC
69
13. Jasbir Singh Chhabra Vs St. of Punj. , (2010)
4 SCC 192

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. Present petition under Section 482
Cr.P.C. has been filed for quashing of the
prosecution of the petitioner in Criminal Case
No.117 of 2015, State through C.B.I. versus
Shashi Mohan and Anr under Section 120-B
IPC, and Sections 7, 13(2) read with 13 (1)(d)
of the Prevention of Corruption Act, 1988
(hereinafter referred to as "PC Act") pending
before Special Judge, C.B.I., Court No.4,
Lucknow.

Further prayer has been made for keeping
the execution of the non-bailable warrant in
abeyance till disposal of the present petition.

2. The petitioner had approached this
Court earlier in a petition filed under Section
482 Cr.P.C. being petition No.116 of 2018 with
the following prayers:-

"Wherefore, it is most respectfully prayed
that this Hon'ble Court may kindly be pleased to
pass an appropriate order for keeping the
execution of non bailable warrant in abeyance
till the disposal of the pending Application for
dropping of petitioner's prosecution/discharge
on the ground of invalid and illegal Sanction for
Prosecution, so as to meet the ends of justice.

and/or this Hon'ble Court may further be
pleased to pass any other order or orders which
this Hon'ble Court may deem fit & proper in the
interest of justice."

3. The said petition was disposed of by
this Court vide order dated 12.01.2018 which
reads as under:-

"Heard
learned
counsel
for
the
applicants and learned A.G.A. for the State
and perused the record.
448 INDIAN LAW REPORTS ALLAHABAD SERIES

The present application under Section
482 Cr.P.C. has been filed to keep the
execution and operation of the Non
Bailable Warrants issued on 03.01.2018
against the applicant in Criminal Case
No.117/2015 (State through C.B.I V.s
Shashi Mohan and another) under Section
120-B I.P.C and Section 7 & 13 (2) read
with 13(1)(d) Prevention of Corruption Act,
1988

Learned counsel for the applicant
informed to this Court that said matter is
listed on 24.01.2018 at learned Special
Judge, C.B.I, Court No.4. Applicant is
directed to appear before learned Special
Judge, C.B.I, Court No. 4, Lucknow on the
date fixed and till then Non Bailable
Warrant dated 03.01.2018 is kept in
abeyance.

With the aforesaid directions, this
application is finally disposed of."

4. The petitioner was posted as Chief
Executive Officer at Cantonment Board,
Fatehgarh on 4th August, 2014. The instant
case, RC0062015A0009 was registered by
C.B.I./A.C.B., Lucknow on 9th May, 2015
against Shashi Mohan, Ward Member,
Fatehgarh Cantonment Board, District
Farrukhabad under Section 7 of the PC Act
on the basis of complaint received from one
Haider Ali working as Contractor with M/S
Dilip Kumar. In the complaint, it was
alleged that accused, Shashi Mohan had
demanded
an
illegal
gratification/commission/bribe
of
Rs.1,56,000/- from the complainant on
behalf of the petitioner to process the
payment for the work done by the
contractor which was allotted to the
contractor on 28.08.2014 in pursuance to
the tendering process.

5. The complaint was marked to Mr.
S.N. Srivastava. Inspector, C.B.I./A.C.B.,
Lucknow for verification which was
discreetly verified on 9th May, 2015 in
presence of independent witness, Ajit
Kumar working as Office Superintendent,
Office of ADEN, North Eastern Railway,
Fatehgarh.
During
verification,
the
conversion held between the complainant
and suspected person, Shashi Mohan was
recorded
in
Digital
Voice
Recorder,
transferred in CDs and marked as Q-1,
which would disclose the demand of bribe
by the accused, Shashi Mohan.

6.

During
verification
of
the
complaint,
verification
memo
of
the
verification proceedings and transcript of
incriminating portion of the accused
recorded was prepared mentioning that the
accused, Shashi Mohan demanded bribe
from the complainant of Rs.1,56,000/- on
behalf of the petitioner. An additional
demand of Rs.60,000/- was also made at
the rate of Rs.20,000/- each on behalf of
the three i.e. Shashi Mohan, Anwar Jamal
whose wife Ms. Shama was a Ward
Member and Shiv Kumar, whose daughter
Ms Avanthi was also Ward Member.

7. On 10th May, 2015 a team
comprising nine C.B.I. Officials and two
independent witnesses namely, Ajit Kumar
and Dharampal both from Indian Railways,
the
complainant
and
Mohd. Shakeel
Qureshi, employee of the complainant
assembled in Suit No.1, Officers Rest
House, North Eastern Railway, Fatehgarh
District Farrukhabad on 10th May, 2015 at
8:30 AM. Purpose of assembly was
explained to all present and written
complaint dated 7th May, 2015 of Haider
Ali in Hindi version was shown and read
over to all. The complainant, Haider Ali
acknowledged that the said complaint was
in his handwriting and bore his signatures.
Verification memo disclosing the demand
11 All. Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Vs. State
449
of bribe by the accused, Shashi Mohan was
also shown to all and every members of the
team confirmed that there was demand of
bribe by accused, Shashi Mohan.

8. A practical demonstration regarding
use of Phenolphthalein powder and its
reaction with the solution of Sodium
Carbonate and water was shown before all
present including the witnesses and they
were explained the chemical reaction of
Phenolphthalein powder with the solution
to Sodium Carbonate.

9. The complainant could arrange
Rs.2,00,000/-
against
demanded
bribe
amount of Rs.2,16,000/- by the accused,
Shashi Mohan. Details like denomination,
G.C. notes, number etc., of the aforesaid
bribe amount of Rs.2,00,000/- produced by
the complainant was mentioned in pre-trap
memorandum dated 10th May, 2015.
Phenolphthalein powder on the G.C. notes
amounting to Rs.2,00,000/- was applied.
Personal search of the complainant was
conducted, and he was not allowed to keep
anything except his handkerchief, mobile
phone. Two wads of Phenolphthalein
treated G.C. notes of denomination 500
amounting to Rs.1,00,000/- were kept in
the
right
side
pant
pocket
of
the
complainant while rest two wads of the
Phenolphthalein treated G.C. notes of
denomination
500
amounting
to
Rs.1,00,000/- were kept in the left side pant
pocket of the complainant. He was
specifically instructed not to touch the said
Phenolphthalein treated G.C. notes of
Rs.2,00,000/- until demanded by accused,
Shashi Mohan.

10. Witness, Ajit Kumar was directed
to act as shadow witness. Haider Ali
disclosed that accused, Shashi Mohan does
not talk freely in front of strangers.
Accordingly, it was directed that Mohd.
Shakeel Qureshi would accompany Haider
Ali for meeting accused-Shashi Mohan.
Witness, Ajit Singh would follow them
discreetly keeping a visible distance and to
position himself as such that he could see
the transaction and overhear the conversion
as far as practically possible.

11. After completion of pre-trap
proceedings at about 11:00 Hours on 10th
May, 2015, the aforesaid C.B.I. team along
with both the independent witnesses and
the
complainant,
Haider Ali,
Mohd.
Shakeel Qureshi left the Suit No.1, Officers
Rest
House, North
Eastern
Railway,
Fatehgarh, for residence of Shashi Mohan
at Kasim Bagh, Cantonment, Fatehgarh.
Bribe amount of Rs.2,00,000/- was handed
over to Shashi Mohan at around 11:15-16
A.M. on 10.5.2015, and after receiving
signal
from
Haider
Ali
and
the
complainant, all other team members
including two witnesses rushed towards the
car
of
the
complainant,
where
the
complainant-Haider Ali and accused-Shashi
Mohan were present. Haider Ali and Mohd.
Shakeel Quereshi pointed towards persons
sitting in the back seat of the car who was
busy in counting the notes who was
identified as Shashi Mohan, Ward Member,
Ward No.2 Cantonment Board, Fatehgarh
who demanded and accepted bribe from
Hyder Ali.

12. The accused-Shashi Mohan
disclosed that he demanded and accepted
the bribe amount on behalf of the petitioner
who was posted as Chief Executive Officer
of Fatehgarh Cantonment, Anwar Jamal
whose wife was a Ward Member and Shiv
Kumar, whose daughter was also a Ward
Member and himself. He further told that
out of Rs.2,16,000/- demanded by him
Rs.1,56,000/- were accepted by him on the
450 INDIAN LAW REPORTS ALLAHABAD SERIES
instance of the petitioner for onward
transfer to him and rest Rs.60,000/- was to
be distributed among Anwar Jamal, Shiv
Kumar and himself. He also disclosed that
earlier also he collected bribe for the
petitioner from other contractors and had
transferred it to him.

13. On being directed, Shashi Mohan
made a call at Mobile No.9838919102 to
the
petitioner
from
his
Mobile
No.9450008078 at about 12:28 P.M.
Speaker of the phone of accused-Shashi
Mohan
was
switched
on,
and
his
conversation with the petitioner over phone
was heard by all and was also recorded in
blank Digital Voice Recorder. In that
conversation,
the
petitioner
initially
acknowledged the words communicated to
him by accused-Shashi Mohan regarding
his acceptance of Rs.1,56,000/- at the rate
of 6% on his behalf from Haider Ali. Later,
he directed him to meet him in the office
and not to talk to him over phone.
Thereafter, the recorded conversation was
transferred into a blank CD in presence of
independent witnesses and the same was
sealed, marked as Q-3 and signed by the
independent witnesses. This conversation
was also transferred in another CD which
was marked as investigation copy Q-3 for
investigation purposes.

14. Recovered amount of Rs.2,00,000/-
from accused-Shashi Mohan which was
handed over by the complainant, was sealed
under the signature of both the independent
witnesses. Hand wash of right and left hand
of accused-Shashi Mohan was obtained with
Sodium Carbonate water, which turned pink,
sealed in two separate clean glass bottles
marked LHW and RHW. In the same manner,
right hand wash of the complainant was
sealed in another clean glass bottle marked as
CRHW.

15. Office of the petitioner was
searched and file pertaining to the tender of
M/S Dilip Kumar was seized in presence of
witnesses.

16. Personal search of the accusedpetitioner was made, and he was arrested.
Search on residential premises of accusedShashi Mohan was also carried out.
Specimen voice of the accused-Shashi
Mohan was obtained with his consent after
being explained its purpose in presence of
independent witnesses. Said recording was
also transferred in Blank CD and marked as
S-1, sealed and signed by all persons
including independent witnesses. Specimen
voice of the petitioner was also obtained as
Exh.S-2. Compact disks having sample
voice were sent to Central Forensic Science
Laboratory, New Delhi for expert opinion
and same had been received.

17. The allegation is that conversation
between accused-Shashi Mohan and the
petitioner would disclose that he had
accepted the bribe of Rs.1,56,000/- on
behalf of the petitioner. C.F.S.L. report
confirmed involvement of the accused in
demanding and accepting the bribe. C.B.I.
after conducing the investigation filed
charge-sheet under Sections 120B IPC,
7/13(2), 13(1)(d) PC Act against the
accused-Shashi Mohan and the petitioner.

18.

Despite
the
order
dated
12.01.2018 passed by this Court in earlier
petition filed under Section 482 Cr.P.C.
No.116 of 2018 directing the petitioner to
appear before the trial court on 24.01.2018
and till then the Non Bailable Warrant
dated 03.01.2018 was kept in abeyance, the
petitioner did not appear on 24.01.2018, but
thereafter on 30.01.2018, filed another
application challenging the validity of the
sanction order for prosecuting him. It is
11 All. Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Vs. State
451
alleged that the petitioner has submitted
false residential address and to evade
process of law. It was found that he was not
residing at his native place. Though the
petitioner was not mentioned in the F.I.R.
verification
memo
and
Pre-Trap
Memorandum, his role emerged during the
course of investigation as co-accused.
Allegedly, Shashi Mohan demanded and
accepted bribe from the complainant on
behalf of the petitioner in furtherance of
criminal conspiracy amongst themselves.

19. Heard Mr.Nandit Srivastava,
learned Senior Advocate assisted by
Mr.Pranjal Krishna and Mr. Anurag Singh,
learned counsel appearing for the C.B.I.

20. Main contention of Mr.Nandit
Srivastava,
learned
Senior
Advocate
assisted by Mr. Pranjal Krishna, learned
counsel for the petitioner is that earlier the
competent authority had refused sanction
for prosecution against the petitioner. This
recommendation was forwarded to the
Ministry of Defence. The denial of sanction
was after considering the material placed
before
the
competent
authority
i.e.
D.G.D.E., and there was no fresh material
before the competent authority to issue
fresh impugned sanction order dated 17th
August, 2016 (Annexure-8), which is
evident from the communication issued by
Director, Vigilance, Ministry of Defence,
Government of India on 10th February,
2016 (Annexure-5).

21. It has been further submitted by
learned Senior Advocate that second sanction
order for prosecuting the petitioner on the
same material is not legally sustainable under
the
law
without
there
being
any
material/evidence
before
the
competent
authority. He, therefore, has submitted that
second sanction order dated 17.08.2016 is
void ab initio, and thereby rendering all the
proceedings including taking cognizance and
summoning the petitioner null and void being
without jurisdiction as jurisdiction goes to the
root of the matter.

22. In support of the aforesaid
contention, learned Senior Advocate has
placed reliance on the judgment in the case of
State of Himanchal Pradesh vs Nishant
Sareen (2010) 14 SCC 527.

23. Learned Senior Advocate has
further submitted that issue of validity of the
prosecution sanction goes to the roots of the
jurisdiction of the Court under the PC Act,
and if the prosecution sanction is not valid all
the proceedings are void ab initio. In support
of this submission learned Senior Advocate
has placed reliance on the judgment in the
case of R.S. Nayak vs A.R.Antulay: (1984)
2 SCC 183.

24. The question of validity of
prosecution sanction can be raised at any
stage and, therefore, the petitioner had raised
this issue before the learned Special Judge,
CBI. However, learned Judge had proceeded
to take cognizance for offence against the
petitioner. In support of the aforesaid
contention, he has placed reliance on the
judgment in the case of Suresh Kumar
Bhikham vs Pradeep Ajay Bhushan Jain
(1988) 1 SCC 205 to submit that question of
sanction can be considered at any stage of
proceedings, and same view has been
reiterated in the case of Nanjappa vs State
of Karnataka: (2015) 4 SCC 186 wherein it
has been held that question regarding validity
of sanction to prosecute under Section 19 of
the PC Act can be raised at any stage of
proceedings.

25. The competence of the Court
trying the accused depends upon the
452 INDIAN LAW REPORTS ALLAHABAD SERIES
existence of a valid sanction, and if the
Court finds that the sanction is invalid, the
accused can get discharged. However, the
competent authority may grant a fresh
sanction for prosecution in accordance with
law. If the trial court proceeds despite the
invalidly attached to the sanction order,
proceedings would be non est in the eyes of
the law. However, the same shall not forbid
the trial of the accused after grant of valid
sanction for prosecution.

26. Further, ground to challenge the
sanction order is that Director General
Defence
State
is
not
the
authority
competent to remove the petitioner from
his office, and the petitioner was appointed
by his Excellency, Hon'ble the President.
Since the impugned sanction order has not
been issued by the Ministry of Defence,
which is competent authority, therefore,
sanction order is not valid and liable to be
quashed.

27. Mr.Anurag Singh, learned counsel
appearing for the C.B.I. opposing the
petition
has
submitted
that
entire
submissions made on behalf of the
petitioner by the learned Senior Advocate
are wholly misconceived and based on
incorrect and wrong premises. He has
submitted that communication dated 10th
February, 2016 (Annexure-5) is not refusal
of sanction to prosecute the petitioner by
the competent authority but on the
recommendation of the competent authority
to not issue sanction for prosecution against
the petitioner, matter was referred to the
Central
Vigilance
Commission
for
consideration and concurrence by the
Ministry of Defence which is evident from
the communication itself.

28. Mr. Anurag Singh, learned
counsel appearing for the C.B.I. has further
submitted
that
as
per
the
office
memorandum dated 06.11.2006 issued by
the
Ministry
of
Personnel,
Public
Grievance & Pensions, Department of
Personnel and Training, Government of
India, Order 399/33/2006-AVD-III in cases
investigated by the Central Bureau of
Investigation against any public servant
who is not removable from his office
except with the sanction of the President,
the C.B.I. forwards its final report of
investigation to the C.V.C. and also
simultaneously endorses a copy of the
report
to
the
administrative
Ministry/Department
concerned,
the
competent authority shall within three
weeks is required to formulate its tentative
view regarding the action to be taken and
seek the advice of the C.V.C. in the matter.

29. The C.V.C., thereafter, would
tender its advice within ten days to the
concerned
administrative
Ministry/Department, which shall finalize
its view in the matter within a week and
issue orders for sanction for prosecution
accordingly.
If
the
C.V.C.
on
reconsideration advices, for grant of
sanction,
the
concerned
Ministry/Department
will
issue
the
requisite orders immediately. However, if
the
concerned
Ministry/Department
proposes not to accept the reconsidered
advice of the C.V.C., the case will be
referred to the Department of Personnel
and Training for a final decision.

30. In cases in which an authority
other than the President is competent to
sanction prosecution, and that authority
does not propose to accord such sanction, it
is required to report the case to the Central
Vigilance Commission and take further
action
after
considering
the
Central
Vigilance Commission's advice. If the
11 All. Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Vs. State
453
Central Vigilance Commission advises
grant of sanction for prosecution but the
Ministry /Department concerned proposes
not to accept such advice, the case should
be referred to this DOPT for a final
decision.

31. Mr.Anurag Singh, learned counsel
appearing for the C.B.I. has drawn attention
to the amendment made in the Government
of India (Allocation of Business) Rules,
1961 on 30th, September, 1986 which
provide for authorities competent to grant
sanction
from
prosecution
of
public
servant. According to amended rules in
case of a government servant sanction for
prosecution for an offence is required to be
accorded by the Department which is the
Cadre Controlling authority for the service
of which he is a member, and in any other
case, by the Department in which he was
working at the time of commission of the
alleged offence. It is further provided that
notwithstanding anything contained in the
Rule, the President may, by general or
special order, direct that in any case or class
of cases the sanction shall be accorded by
the Department of Personnel and Training.

32. Mr.Anurag Singh, learned counsel
appearing for the C.B.I. has further
submitted that there is no order earlier than
the order dated 17th August, 2016 for
refusing
or
accepting
sanction
for
prosecution of the petitioner. Internal
communication dated 10the February, 2016
cannot be read to be as refusal of sanction
by the competent authority for prosecuting
the petitioner.

33. It has been further submitted by
Mr.Anurag Singh, learned counsel that
when the communication dated 10th
February, 2016 was addressed at that time
C.F.S.L. Report regarding voice samples
and conversation between accused, Shashi
Mohan and the complainant and the
petitioner was not received. After the
C.F.S.L. report had been received, entire
material
was
reconsidered
including
C.F.S.L. report and the competent authority
has granted sanction, which is legal, valid,
just and proper.

34. It has been further submitted that
there is no substance in the arguments of
learned Senior Advocate that Director
General of Defence State was not a
competent authority for granting or denying
the
sanction
inasmuch
as
from
the
communication dated 10th February, 2016
it is clear that D.G.D.E. is a competent
authority for granting or refusing sanction
for prosecution of the petitioner and on the
said communication the petitioner has
placed great reliance on his submission.

35. It has been further submitted that
D.G.D.E. is the competent authority to
remove the petitioner from service by
virtue of powers delegated to D.G.D.E.
under Rule 12 of CCS (CCA) Rules, 1967
read with Recruitment Rules and, therefore,
the sanction order dated 17th August, 2016
has been issued by the competent authority.
It has been further submitted that the
petition has no merit and substance and is
liable to be dismissed.

36. I have considered the submissions
of Mr.Nandit Srivastava, learned Senior
Advocate assisted by Mr.Pranjal Krishna
and Mr. Anurag Singh, learned counsel
appearing for the C.B.I.

37. Sum and substance of the
arguments of learned Senior Advocate is
that once sanction for prosecution of the
petitioner was refused by the competent
authority after considering the material
454 INDIAN LAW REPORTS ALLAHABAD SERIES
placed by the C.B.I., which is evident from
the
order/communication
dated
10th
February, 2016, no fresh sanction on the
same material could have been granted by
the competent authority and even otherwise
Director General of Defence State is not
competent authority to grant or refuse the
sanction. As the sanction is not a valid
sanction, order of cognizance and further
proceedings
against
the
petitioner
undertaken by Special Judge are void and
illegal.

38. Communication dated 10th
February, 2016 would read as under:-

"Most Urgent

By Fax

Government of India

Ministry of Defence

D (Vigilance)

New Delhi, the 10th February, 2016

Subject:
Request
for
grant
of
prosecution
sanction-CBI
Case
No.RC0062015A0009/3301
dated
16.09.2015 against Shri Shashi Mohan, Ward
member and vice president of Fatehgarh
Cantonment Boards and others.

This has reference to DGDE note
no.109/COMF/FATEHGARH/CB/VIG/DE
dated 28.08.2015 and 02.12.2016 whereby it
has
recommended
prosecution
sanction
against Shri Shashi Mohan, Ward Member
but denied the same against Shri MPR
Tripathi, CEO Fatehgarh.

2. The matter has been examined in the
Ministry and the competent authority has
decided to grant prosecution sanction against
Shri Shashi Mohan ward member and Vice
President of Fatehgarh Cantonment Board.

3. The matter has been considered in
respect of Shri MPR Tripathi, CEO and
keeping in view the following facts:-

(i) Though the complainant has
mentioned in the complaint that Shri
Tripahti has been demanding a bribe of
Rs.1.56 Lakh, it appears that no verification
regarding the demand made by Shri
Tripathi has been done by the CBI. It is
only
Shri
Shashi
Mohan
who
has
mentioned during the verification of the
complaint that Shri Tripathi has asked for
that money.

(ii) No evidence has been furnished by
the CBI that any bribe has been demanded
by Shri Tripathi from Shri Haider Ali.

(iii) Nothing incriminating was found
in the searches carried out by CBI soon
after the trap in the office and residential
premises of Shri Tripahti.

(iv) The only evidence against Shri
Tripathi is an audio CD containing a short
conversation between Shri Shashi Mohan
and Shri Tripathi which does not appear to
be conclusive.

It appears that there is no direct
evidence against Shri Tripathi nor there is
any evidence to suggest that he demanded
money
from
Shri
Haider
Ali.
No
verification of the complaint by Shri Haider
Ali against Shri Tripathi was done by CBI.
In view of this, the competent authority has
approved that there does not seem to be
enough evidence available on record for
grant of prosecution sanction against Shri
Tripathi. Accordingly, in pursuance of Rule
11.2 Chap, VIII of Vigilance Manual, the
case is being forwarded to the CVC for
consideration and concurrence.
4. Further, DGDE is requested to issue
necessary
orders
denying
Prosecution
sanction for Shri MPR Tripathi, CEO being
the competent authority under intimation to
this Ministry.

Sd/- 10.02.2016

 (Atul Kumar Singh)

 Director (Vigilance)
11 All. Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Vs. State
455

 23012304"

39. It is no longer res integra that
valid sanction by the competent authority
under Section 19 of the PC Act is sine qua
non for taking cognizance for an offence
against a public servant. If the sanction is
held to be invalid, entire proceeding
undertaken by the trial court would be void.

40. The Supreme Court in the case of
R.S. Nayak (supra) in para 19 on this issue
has held as under:-

"19. Section 6 bars the court from
taking cognizance of the offences therein
enumerated
alleged
to
have
been
committed by a public servant except with
the previous sanction of the competent
authority empowered to grant the requisite
sanction. Section 8 of 1952 Act prescribes
procedure and powers of Special Judge
empowered to try offences set out in Section
6 of 1947 Act. Construction of Section 8
has been a subject to vigorous debate in the
cognate appeal. In this appeal we will
proceed on the assumption that a Special
Judge can take cognizance of offences he is
competent to try on a private complaint.
Section 6 creates a bar to the court from
taking cognizance of offences therein
enumerated except with the previous
sanction of the authority set out in clauses
(a), (b) and (c) of sub-section (1). The
object underlying such provision was to
save
the
public
servant
from
the
harassment of frivolous or unsubstantiated
allegations. The policy underlying Section
6 and similar sections, is that there should
not be unnecessary harassment of public
servant. (See C.R. Bansi v. State of
Maharashtra [(1970) 3 SCC 537 : 1971
SCC (Cri) 143 : AIR 1971 SC 786 : (1971)
3 SCR 236] .) Existence thus of a valid
sanction is a prerequisite to the taking of
cognizance of the enumerated offences
alleged to have been committed by a public
servant. The bar is to the taking of
cognizance of offence by the court.
Therefore, when the court is called upon to
take cognizance of such offences, it must
enquire whether there is a valid sanction to
prosecute the public servant for the offence
alleged to have been committed by him as
public servant. Undoubtedly, the accused
must be a public servant when he is alleged
to have committed the offence of which he
is accused because Sections 161, 164, 165
IPC and Section 5(2) of the 1947 Act
clearly spell out that the offences therein
defined can be committed by a public
servant. If it is contemplated to prosecute
public servant who has committed such
offences, when the court is called upon to
take cognizance of the offence, a sanction
ought to be available otherwise the court
would have no
jurisdiction
to
take
cognizance of the offence. A trial without a
valid sanction where one is necessary
under Section 6 has been held to be a trial
without jurisdiction by the court. (See R.R.
Chari v. State of U.P. [AIR 1962 SC 1573 :
(1963) 1 SCR 121 : (1962) 2 Cri LJ 510]
and S.N. Bose v. State of Bihar [AIR 1968
SC 1292 : (1968) 3 SCR 563 : 1968 Cri LJ
1484] .) In Mohd. Iqbal Ahmad v. State of
A.P. [(1979) 4 SCC 172 : 1979 SCC (Cri)
926 : AIR 1979 SC 677 : (1979) 2 SCR
1007] it was held that a trial without a
sanction renders the proceedings ab initio
void. But the terminus a quo for a valid
sanction is the time when the court is called
upon to take cognizance of the offence. If
therefore, when the offence is alleged to
have been committed, the accused was a
public servant but by the time the court is
called upon to take cognizance of the
offence committed by him as public servant,
he has ceased to be a public servant, no
sanction would be necessary for taking
456 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance of the offence against him. This
approach is in accord with the policy
underlying Section 6 in that a public
servant is not to be exposed to harassment
of a frivolous or speculative prosecution. If
he has ceased to be a public servant in the
meantime, this vital consideration ceases to
exist. As a necessary corollary, if the
accused has ceased to be a public servant
at the time when the court is called upon to
take cognizance of the offence alleged to
have been committed by him as public
servant, Section 6 is not attracted. This
aspect is no more res integra. In S.A.
Venkataraman v. State [AIR 1958 SC 107,
112 : (1958) SCR 1040 : 1958 Cri LJ 254]
this Court held as under:

"In our opinion, in giving effect to the
ordinary meaning of the words used in
Section 6 of the Act, the conclusion is
inevitable that at the time a court is asked
to take cognizance not only the offence
must have been committed by a public
servant but the person accused is still a
public servant removable from his office by
a competent authority before the provisions
of Section 6 can apply. In the present
appeals, admittedly, the appellants had
ceased to be public servants at the time the
court took cognizance of the offences
alleged to have been committed by them as
public servants. Accordingly, the provisions
of Section 6 of the Act did not apply and the
prosecution against them was not vitiated
by the lack of a previous sanction by a
competent authority."

And this view has been consistently
followed in C.R. Bansi case [(1970) 3 SCC
537 : 1971 SCC (Cri) 143 : AIR 1971 SC 786
: (1971) 3 SCR 236] and K.S. Dharmadatan
v. Central Government [(1979) 4 SCC 204 :
1979 SCC (Cri) 958 : (1979) 3 SCR 832 :
1979 Cri LJ 1127] . It therefore appears wellsettled that the relevant date with reference to
which a valid sanction is sine qua non for
taking cognizance of an offence committed by
a public servant as required by Section 6 is
the date on which the court is called upon to
take cognizance of the offence of which he is
accused."

41. Further, in the case of Nanjappa vs
State of Karnataka: (2015) 14 SCC 186 in
para 22 it has been further reiterated that
Section 19 of the PC Act forbids taking of
cognizance by the Court against public
servant except with the previous sanction of a
competent authority to grant such sanction in
terms of Cause (a), (b) and (c) of Section
19(1) of PC Act.

It would be apt to extract para 22 of the
said judgment:-

"22. The legal position regarding the
importance of sanction under Section 19 of
the Prevention of Corruption Act is thus much
too clear to admit equivocation. The statute
forbids taking of cognizance by the court
against a public servant except with the
previous sanction of an authority competent
to grant such sanction in terms of clauses (a),
(b) and (c) to Section 19(1). The question
regarding validity of such sanction can be
raised at any stage of the proceedings. The
competence of the court trying the accused so
much depends upon the existence of a valid
sanction. In case the sanction is found to be
invalid the court can discharge the accused
relegating the parties to a stage where the
competent authority may grant a fresh
sanction for the prosecution in accordance
with law. If the trial court proceeds, despite
the invalidity attached to the sanction order,
the same shall be deemed to be non est in the
eyes of law and shall not forbid a second trial
for the same offences, upon grant of a valid
sanction for such prosecution."

42. It is also settled that sanction
accorded by an authority not competent to
accord sanction can be without jurisdiction
11 All. Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Vs. State
457
and nullity as held in the case of State
Inspector of Police vs Surya Sankaran
Karri, 2006 Cri.L.J. 4598.

43. Section 19 of the PC Act 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 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;