# Om Prakash v. The State of U.P. and others

- **Citation:** (2001) 2 ILRA 180
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-the-state-of-u-p-and-others-39844
- **Pages:** 7

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
180
on 10.08.1994 and summons was issued
fixing 21.10.1994 for filing the written
statement and hearing. After the service
of the summons the petitioner did appear
before the court below on 21.10.1994 and
prayed for a copy of the plaint, which was
supplied to him on 27.10.1994. The trail
court has fixed 21.11.1994 for filing of
written statement and hearing. On that
date, the petitioner appeared but did not
file the written statement and sough time.
Thereafter a number of adjournments
were sought by him. It was only on
15.08.1995 that the petitioner deposited
the
money.
Sri
Paul
asserts
that
03.08.1995 or for that matter 22.08.1995
was, in fact, the first date of proposed
hearing for the purposes to avail the
benefit of Section 20(4) of the Act. I find
it difficult to agree with Sri Paul on the
point. The first date of hearing as
indicated in the summons was 21.10.1994
but
since
the
summons
was
not
accompanied with the copy of plaint, the
petitioner was given time to file the same
and 21.11.1994 was fixed for hearing.
The courts below have rightly come to the
conclusion that 21.11.1994 was the first
date of hearing for the purpose of Section
20(4) of the Act as by that date the
petitioner after due service had been
supplied the copy of the plaint. The
petitioner did not deposit the money on
21.11.1994 or thereafter for months
together, which was the first date of
hearing and allowed the matter to drag on
for numerous dates. He deposited the
money on 15.8.1995 and during the
period
21.11.1994
to 15.08.1995 a
number
of
dates
of
hearing
had
intervened. The observations made by the
apex court in paragraph 28 of Sudarshan
Devi's case (supra) as relied upon by Sri
Paul are of no avail to the petitioner. They
have to be confined to the particular facts
of that case.

15. Section 20(4) of U.P. Act no. 13
of 1972, provides that in any suit for
eviction on the ground of default in
arrears of payment mentioned in Clause
(a) sub-section (2) of Section 20, if at the
first hearing of the suit the tenant
unconditionally pays the entire amount of
rent and damages for use and occupation
of the building due from him together
with interest thereon at the rate of nine
percent, per annuam and the landlord's
cost of the suit in respect thereof, the
Court may, in lieu of passing a decree for
eviction on that ground pass an order
relieving the tenant against his liability for
eviction
on
the
ground.
Since
the
petitioner did not deposit the amount on
the first date of proposed hearing i.e.
21.11.1994, he has been rightly denied
benefit of the provisions of Section 20(4)
of the Act.

The writ petition turns out to be
devoid of any merits and substance. It is
accordingly dismissed without any order
as to costs.

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By the Court

1. The petitioner Om Prakash was
working as senior assistant in the District
Hospital, Pilibhit. A FIR was lodged
against him under Section 409 IPC on
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
182
24.03.1999 alleging that he committed
misappropriation of Rs.1,78,504/- while
discharging his duties. The case was
investigated and, thereafter, papers were
sent to the Directorate of Medical and
health, Lucknow, for granting sanction for
his
prosecution.
The
Director
(Administration), Medical and Health, by
his
order dated 16.10.2000 granted
sanction for the prosecution of the
petitioner under Section 409 IPC in Case
Crime No. 100 of 2000. The present writ
petition
under
Article
226
of
the
Constitution has been filed for quashing
of the said order.

2. Shri S.P. Singh learned counsel
for the petitioner has submitted that the
petitioner Om Prakash did not himself
misappropriate any public funds and on
the contrary money was taken from him
by the Chief Medical Officer on the
pretext of official expenditure who did not
give any receipt or voucher for the same
and himself misappropriated the amount.
In support of this submission reference
has been made to certain letters which
were allegedly written by the petitioner to
the Chief Medical Officer, copies of
which have been filed along with the
petitioner. The main submission of Shri
Singh is that the offence of criminal
misappropriation is not at all established
against the petitioner and he is wholly
innocent and therefore the order granting
sanction deserves to be quashed.

3. In the present writ petition the
petitioner has challenged the order by
which sanction has been granted for his
prosecution under section 409 IPC as
contemplated by Section 197 Cr. P.C. The
proceedings have yet to commence before
the court and no order passed by a court is
subject-matter of challenge. The question
which requires consideration is on what
grounds an order granting sanction can be
challenged at the very initial stage before
the parties had any opportunity to lead
evidence in support of their case.

4. Section 197 Cr. P.C. provides that
when any person who is or was a public
servant not removable from his office
save by or with the sanction of the Central
Government or State Government is
accused of any offence alleged to have
been committed by him while acting or
purporting to act in the discharge of his
official duties, no court shall take
cognizance of such offence, except with
the previous sanction of the appropriate
Government.

5. Sub-section (1) of Section 197
Cr.P.C.
shows
that
sanction
for
prosecution is required where any person
who is or was a Judge or Magistrate or a
public servant not removable from his
office save by or with the sanction of the
Government is accused of any offence
alleged to have been committed by him
while acting or purporting to act in
discharge of his official duty. Article 311
of Constitution lays down that no person
who is a member of a civil service of the
Union or State or holds a civil post under
the Union or State shall be removed by an
authority subordinate to that by which he
was appointed. It therefore, follows that
protection of sub-section (1) of section
197 of Cr. P.C. is available only to such
public
servants
whose
appointing
authority is the Central Government or the
State Government and not to every public
servant.

6. The word 'sanction' has not been
defined
in
the
Code
of
Criminal
2All] Om Prakash V. The State of U.P. and others
183
Procedure. The dictionary meaning of the
word 'sanction' is as under:

Webster's Third New Internal Dictionary -

Explicit permission or recognition by
one in authority that gives validity to the
act of another person or body; something
that
authorizes,
confirms,
or
countenances.

The new Lexicon Webster's Dictionary -

Explicit permission given by some
one in authority.

The Concise Oxford Dictionary -

Encouragement given to an action
etc., by custom or tradition; expression
permission, confirmation or ratification of
a law etc; authroize, countenance, or
agree to (an action etc.)

Stroud's Judicial Dictionary -

Sanction
not
only means prior
approval;
generally
it
also
means
ratification.

Words and Phrases -

The verb 'sanction' has a distinct
shade of meaning from 'authorize' and
means to assent, concur, confirm or ratify.
The word conveys the idea of sacredness
or of authority.

The Law Lexicon by Ramanath Iyer -

Prior approval or ratification.

7. In 78 Corpus Juris Secundum
Page 579 different meanings have been
given to the word as a noun and as a verb.
As a noun it means penalty or punishment
provided
as a means of enforcing
obedience to a law and in a wider sense
an authorisation of any thing and it may
convey the idea of authority. As a verb
'sanction' is defined as meaning to assent,
concur, confirm or ratify. In US Vs.
Tillinghast D.C. 55 F.2d 279 it was held
that where legal rights are involved it is
doubtful whether it should be construed as
requiring less than an unmistakable
expression of approval. In section 197 Cr.
P.C. the word 'sanction' has been used as
a verb and therefore it will mean to
assent, to concur or approval.

8. The legislature has given great
importance to sanction will be evident
from the Scheme of Code of Criminal
Procedure. Section 216 of the Code gives
power to the court to alter or add to any
charge at any time before judgement is
pronounced but sub-section (5) there of
provides that if the offence stated in the
altered or added charges is one for the
prosecution of which previous sanction is
necessary, the case shall not be proceeded
with until such sanction is obtained,
unless sanction has been already obtained
for a prosecution on the same facts as
those on which the altered or added
charges is founded. This was also
emphasised by the Privy council in the
leading case of Gokulchand Dwarka Das
Morarka Vs. The King, AIR 1948 PC 82,
where in para 9 it was observed as
follows:

"....The sanction to prosecute in an
important
matter;
it
constitutes
a
condition precedent to the institution of
the prosecution and the Government have
an absolute discretion to grant or withhold
their sanction. They are not, as the High
Court seem to have thought, concerned
merely to see that the evidence discloses a
prima facie case against the person sought
to be prosecuted...."
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
184
In para 10 of the aforesaid judgement
it was observed that the giving of sanction
confers jurisdiction on the court to try the
case. This case has been quoted with
approval by the Supreme Court in Madan
Mohan Vs. State of U.P., AIR 1954 SC
637 and Som Nath Versus Union of India,
AIR 1971 SC 1910.

9. Clauses (a) and (b) of sub-section
197 Cr. P.C. show that the sanction in the
case of a person who is or was employed
at the time of commission of the alleged
offence in connection with the affairs of
the Union of India has to be granted by
the Central Government, and, in the case
of a person who is or was employed at the
time of commission of the alleged offence
in connection with the affairs of a State,
by the State Government. This provision
shows that the sanction can be granted
only by the Central Government or the
State Government, as the case may be. If
the sanction is not accorded by the
competent
authority
of
the
State
Government or the Central Government
as the case may be, the order of sanction
would be invalid. It, therefore, follows
that an order of sanction can be assailed
on the ground that the same had been
granted by a person who did not have the
authority
to
grant
sanction
as
contemplated by Section 197 Cr. P.C.

10. What would constitute a valid
sanction was examined by the Privy
Council in Gokul Chand Dwarka Das
Morarka (Supra) with reference to clause
23 of Cotton Cloth and Yarn Control
Order. 1943, which required that no
prosecution for the contravention of any
of the provisions of the control order shall
be instituted without the previous sanction
of the Provincial Government, and it was
held as follows;
"A sanction which simply names the
person to be prosecuted and specifies the
provision of the Order which he is alleged
to have contravened is not a sufficient
compliance with Cl. 23. In order to
comply with the provision of Cl.23, it
must be proved that the sanction was
given in respect of the facts constituting
the offence charged. It is plainly desirable
that the fact should be referred to on the
face of the sanction, but this is not
essential since Cl.23 does not require the
sanction to be in any particular form, nor
even to be in writing. But if the facts
constituting the offence charged are not
shown on the face of the sanction, the
prosecution must prove by extraneous
evidence that those facts were placed
before the sanctioning authority......"

11. Section 6(1) of the Prevention of
Corruption Act, 1947, provided that no
court shall take cognizance of an offence
alleged to have been committed by the
public servant, except with the previous
sanction of the authority specified in the
sub-section. What would constitute a
valid sanction with reference to the
aforesaid provision, was examined in
Madan Mohan Vs. State of Uttar Pradesh,
AIR 1954 SC 637, and the Apex Court
after relying upon the dictum of the Privy
Council in Gokulchand Dwarka Das
Morarka (supra) held as follows:

"The burden of proving that the
requisite sanction has been obtained rests
on the prosecution and such burden
includes
proof
that
the
Sanctioning
authority had given the sanction in
reference to the facts on which the
proposed prosecution was to be based;
and these facts may appear on the face of
the sanction or may be proved by
extraneous evidence. Where the fact
2All] Om Prakash V. The State of U.P. and others
185
constituting the offence do not appear on
the
face
of
the
letter
sanctioning
prosecution, it is incumbent upon the
prosecution to prove by other evidence
that the material facts constituting the
offence
were
placed
before
the
sanctioning authority. Where this is not
done, the sanction must be held to be
defective and an invalid sanction cannot
confer jurisdiction upon the Court to try
the case."

Similar view was taken in Maj. Som
Nath Vs. Union of India, AIR 1971 SC
1910.

12. Section 198-B(3) of code of
Criminal Procedure, 1989, required filing
of a complaint with the previous sanction
granted by the authorities specified in that
sub-section. In P.C. Joshi Vs. State of
U.P., AIR 1961 SC 387, the apex Court
while examining the same question as to
what would constitute a valid sanction
held as follows in paragraph 4 of the
reports:

"Mere production of a document
which sets out the names of the persons to
be prosecuted and the provisions of the
statute alleged to be contravened, and
purporting to bear the signature of an
officer competent to grant the sanction
where such sanction is a condition
precedent to the exercise of jurisdiction
does not invest the court with jurisdiction
to try the offence. If the facts which
constitute the charge do not appear on the
face of the sanction, it must be established
by extraneous evidence that those facts
were
placed
before
the
authority
competent to grant the sanction and that
the authority applied his mind to those
facts before giving sanction."

13. It is, therefore, well settled that
in order to constitute a valid sanction it
must be established that the same was
given in respect of the facts constituting
the offence with which the accused is
proposed to be charged. The facts may be
stated in the order granting sanction or
may be proved by extraneous evidence. If
the facts do not appear on the face of the
sanction, the prosecution must prove it by
other evidence that the material facts
constituting the offence were placed
before the sanctioning authority and he
had granted the same after consideration
of the said facts. It follows as a corollary
that where the facts constituting the
offence do not appear on the face of the
sanction,
it
will be open for the
prosecution to lead evidence that the
material facts were placed before the
sanctioning authority before grant of
sanction, and the occasion for leading the
evidence can arise only during the course
of trial.

14. The discussion shows that an
order of sanction can be assailed only on
two grounds viz. (1) it has been granted
by an authority who was not competent to
do so and (2) it has not been given in
respect of the facts constituting the
offence
charged.
However,
if
the
challenge to sanction is based upon the
ground that the facts constituting the
offence do not appear on the face of the
sanction, then such a plea cannot be
entertained at the initial stage before the
trail has commenced, as the prosecution
can have no opportunity to lead evidence
in order to show that the sanction had
been
granted
after
consideration
of
relevant material. Therefore, such a plea
cannot be entertained and examined in
any proceedings including a writ petition
under Article 226 of the Constitution
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
186
before commencement of the trail. It is
only after the trail has concluded and the
prosecution
has
been
given
the
opportunity to lead evidence that the
validity of the sanction can be examined
on this ground.

15. In the writ petition the entire
effort of the petitioner has been to show
that he has not misappropriated the funds
and that the same had been utilised for
official purpose. These are all questions
which go to the merits of the case,
namely, whether the charges against the
petitioner that he misappropriated the
public funds is established or not. These
are matters to be seen in the trial after the
prosecution and the accused had the
opportunity to lead evidence in support of
their case. An order of sanction cannot be
assailed or tested on the ground that the
evidence does not establish the charge.
This is the function of the court trying the
case and not of the sanctioning authority.
The sanctioning authority has merely to
see whether the facts alleged against the
accused constitute an offence and whether
he should be tried by a competent court
for the said offence. There is neither any
pleading nor any ground in the writ
petition that the sanctioning authority did
not
apply
his
mind
to
the
facts
constituting the offence. In the order of
sanction it is recited that the authority had
carefully examined all the papers and had,
thereafter, come to the conclusion that the
petitioner Om Prakash, senior assistant,
should be prosecuted for the offence
committed by him before a competent
court. It is, further, recited that on being
satisfied the authority was granting the
sanction for prosecution of the petitioner
before a competent court in case Crime
No. 100 of 2000, under Section 409 IPC.
The impugned order of sanction clearly
shows that it has been granted with
reference to the facts on which the
proposed prosecution was to be based
and, therefore, the same is perfectly valid.
Similarly, there is neither any pleading
nor any ground in the writ petition that Sri
M.A.
Farooqui,
Director
(Administration), Medical and Health
Services, U.P. Government, Lucknow,
was not legally competent to grant
sanction and, therefore, the order of
sanction cannot be assailed on the ground
of
competency
of
the
sanctioning
authority.

16. For the reasons mentioned
above, there is no merit in the writ
petition which is hereby dismissed.

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