# Parvez Parwaz & Anr v. State of U.P. & Anr

- **Citation:** (2023) 3 ILRA 471
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-22
- **Case number:** Application U/S 482. No. 4227 of 2023
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parvez-parwaz-anr-v-state-of-u-p-anr-49859
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure Code,
1973-Section 482-Inherent powers of High
Court-Not to be exercised to reopen issues
already decided by Supreme Court-Principle of
res judicata applicable to criminal proceedings.
Criminal
Law
-
Code
of
Criminal
Procedure-
Section
196-Sanction
for
prosecution under Section 196 Cr.P.C.-Once
sanction refused and issue attains finality up to
Supreme Court, trial court cannot reopen and
decide
the
issue
again
in
subsequent
proceedings-Investigation under Section 156(3)
Cr.P.C.-Not permissible against a public servant
once sanctioned for prosecution has been
refused.

Application dismissed. (E-9)

List of Cases cited:

## Text

3 All. Parvez Parwaz & Anr. Vs. State of U.P. & Anr.
471
accordance with law ignoring the impugned
orders dated 10.1.2023, 24.1.2023 and
8.2.2023. However, it is made clear that if
the petitioner does not appear before the
learned trial court on 13.3.2023, the benefit
of this order shall not be available to him
and the learned trial court may take any
appropriate step against him which is
permissible under the law.

14. It is made clear that the petitioner
may take other appropriate remedy before
the appropriate court of law for that no
liberty is required.

15. In view of aforesaid terms, the
petition is allowed.
----------
(2023) 3 ILRA 471
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.02.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Application U/S 482. No. 4227 of 2023

Parvez Parwaz & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Manauvar Husain, Ms. Fatma Anjum,
S.F.A. Naqvi (Sr. Advocate)

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973-Section 482-Inherent powers of High
Court-Not to be exercised to reopen issues
already decided by Supreme Court-Principle of
res judicata applicable to criminal proceedings.
Criminal
Law
-
Code
of
Criminal
Procedure-
Section
196-Sanction
for
prosecution under Section 196 Cr.P.C.-Once
sanction refused and issue attains finality up to
Supreme Court, trial court cannot reopen and
decide
the
issue
again
in
subsequent
proceedings-Investigation under Section 156(3)
Cr.P.C.-Not permissible against a public servant
once sanctioned for prosecution has been
refused.

Application dismissed. (E-9)

List of Cases cited:

1. Bhagat Ram Vs St. of Raj., 1972 (2) SCC 466

2. Anil Kumar & ors. Vs M.K. Aiyappa & anr.,
(2013) 10 SCC 705

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

1. The present petition under Section
482 CrPC has been filed, impugning the
order dated 11.10.2022 passed by the
Additional District & Sessions Judge (Rape
and POCSO)-3, Gorakhpur in Final Report
No.1230 of 2017 (Parvez Parwaz Vs. Yogi
Adityanath and others), arising out of Case
Crime No.2776 of 2008, under Sections
153, 153-A, 153-B, 295, 295-B, 147, 148,
395, 436, 435, 302, 427 and 452 IPC read
with Section 7 Criminal Law Amendment
lodged at Police Station Cantt., District
Gorakhpur.

2. The learned trial Court has rejected
the protest petition filed by the petitioner
by holding that as the sanction for
prosecuting the accused was already
refused under Section 196 CrPC and the
said
order
was
challenged
by
the
petitioner/complainant up-to the Supreme
Court
and
the
Supreme
Court
had
dismissed the appeal, therefore, the protest
petition could not be accepted and the trial
Court could not interfere with the order,
refusing the sanction for prosecution of the
alleged accused. There is a checkered
472 INDIAN LAW REPORTS ALLAHABAD SERIES
history of litigation and a brief survey is
required to be mentioned. The petitioner
had initially approached this Court by filing
Criminal Writ Petition No.16095 of 2007.
The Division Bench of this Court by means
of order dated 24.10.2007 dismissed the
writ petition by observing that the the
petitioner, if so advised, may file an
application under Section 156(3) CrPC for
a direction to lodge the FIR against Sri
Yogi Adityanath and others. The petitioner,
thereafter, filed an application under
Section 156(3) CrPC for lodging of the FIR
against the accused under Sections under
Sections 120-B, 153-A, 153-B, 295-A, 295B, 143, 147, 435, 436, 452, 427, 395, 302
and 307 IPC and 3/4 Prevention of Damage
to Public Property Act and Railways Act.

3. The said application was rejected
by the learned Chief Judicial Magistrate
vide
order
dated
29.07.2008.
The
petitioner,
thereafter,
filed
Criminal
Revision No.2346 of 2008 before this
Court. This Court vide order dated
26.09.2008 set-aside the order dated
29.07.2008 passed by the learned Chief
Judicial
Magistrate,
Gorakhpur
and
remitted back the matter to the learned
Chief Judicial Magistrate to pass a fresh
order in accordance with law. It was also
directed that after registration of the FIR,
on the basis of the application filed by the
petitioner under Section 156(3) CrPC,
proper investigation should be ensured.

4. On remand, the FIR was registered
on 02.11.2008 at Police Station Cantt.,
District Gorakhpur against five accused
persons, including Sri Yogi Adityanath, the
then
Member
of
Parliament
from
Gorakhpur Parliamentary Constituency.

5. The accused approached the
Supreme Court by filing Criminal Appeal
No. 2039 of 2012 against the order dated
26.09.2008 passed by this Court in
Criminal Revision No. 2346 of 2008. The
Supreme Court vide order dated 13.12.2012
dismissed the said appeal.

6. The petitioner, perceived that the
investigation was not being properly
conducted by the investigating agency in
the FIR, therefore, approached this Court
by filing Criminal Misc. Writ Petition
No.21733 of 2008 for following prayers:-

"i. issue a writ, order or direction
in the nature of Mandamus directing and
commanding the investigate case crime
respondents to No.2776 of 2008 (Annexure
No.1) in fair and impartial manner by an
independent investigating agency and not
by Crime Branch of Criminal Investigation
Department as per order dt. 3.11.2008
(Annexure No. 9).

ii. issue a writ, order or direction
in the nature of Mandamus directing and
commanding the respondents to include
appropriate section of Indian Penal Code
i.e. 120-B, 121, 121-A, 122 IPC section 3/4
Prevention of Damages to Public Property
Act, 1984 and provision of Religious
Institution (Prevention of Misuse) Act,
1988 in crime No.2776 of 2008 and to
investigate the issue of conspiracy also;

iii. issue a writ, order or direction
in the nature of Mandamus directing and
commanding the respondents to take
disciplinary action against the officers who
at the relevant point of time failed to act in
accordance with law and had not taken any
action to initiate criminal action against
the culprits;

iv. issue a writ, order or direction
in the nature of Mandamus directing and
commanding the respondent No. 1 to
provide
adequate
security
to
the
petitioners;
3 All. Parvez Parwaz & Anr. Vs. State of U.P. & Anr.
473

v. issue a writ, order or direction,
which this Hon'ble Court may deem fit and
propert in the circumstances of the case;

vi. award the cost of the petition
in favour of the petitioners;

vii. issue a writ, order or
direction in the nature of certiorari
quashing the impugned letter dt. 3.5.2017
(Annexure No. 16 to this writ petition)
issued under the signature of Joint
Secretary (Home), Government of U.P. to
the S.P. CBCID Lucknow whereby state
prosecution
sanction
of
the
accused
persons has been refused; and

viii. issue a writ, order or
direction in the nature of certiorari
quashing the letter dt. 9.5.2017 (Annexure
No. 17) issued by the respondent No. 2
addressed to the respondent No. 1 whereby
it is mentioned that vide final report dt.
6.5.2017 case has been closed."

7. Prayer nos. 7 and 8 were added
during the pendency of the writ petition as
on 03.05.2017 prosecution sanction under
Section 196 CrPC was refused by the State
Government
and
final
report
was
submitted. The Division Bench of this
Court vide judgment and order dated
22.02.2008 decided the said writ petition.
The Division Bench framed following three
issues for determination:

"(1) When the State fails to
perform its statutory and constitutional
duty to investigate a crime in a fair and
impartial manner, whether the High
Court in exercise of its jurisdiction
conferred
by
Article
226
of
the
Constitution is vested with the power to
transfer the investigation to be conducted
by any other investigating agency.

(2) Whether in the facts and
circumstances of the instant case, the
State has failed to perform its statutory
duty to conduct a fair investigation in the
matter and the same is liable to be
transferred to some other independent
agency to ensure fair investigation.

(3) Whether the State can pass
an order under Section 196 Cr.P.C. in
respect of a proposed accused in a
criminal case who in the meantime gets
elected as the Chief Minister and is the
Executive Head as per the scheme
provided under Article 163 of the
Constitution of India."

8. Issue no. 3 was answered as
under:-

"In view of above discussions
and
the
authoritative
judicial
pronouncements,
whenever
it
is
established that investigation has not
been fair, proper and impartial there is
power vested with the High Court to
transfer the investigation to be conducted
by any other investigating agency and the
same
can
be
invoked
by
the
informant/victim or an aggrieved person.
Issue
no.
1
stands
answered
accordingly."

9. While answering the issue no. 2,
the Division Bench has held that direction
for transferring investigation by any other
investigating agency should not be given in
absence of sufficient material on record to
arrive at a conclusion that such material
would disclose prima facie case for
transferring the investigation from the
agency which had been entrusted by the
State to investigate the offence to another
agency, but such power should not be
exercised casually, as a routine manner or
merely on some allegations made by the
complainant. The Division Bench noted
that there was no averment much less any
other material placed on record of the
474 INDIAN LAW REPORTS ALLAHABAD SERIES
petition on the basis of which a conclusion
could be drawn that the investigation was
not proceeding fairly, independently and
impartially calling for transferring of the
same to any other agency.

10. The Division Bench took pains to
extract the averments made in the writ
petition
and
factual
foundation
laid,
seeking
relief
for
transfer
of
the
investigation to some other agency. The
Division Bench had called for the original
record of the case, including the case diary
to satisfy conscience of the Court as to
whether proper investigation had been
carried out or not and had discussed the
evidence brought on record in detail. The
Division Bench noted that statements of 21
witnesses were recorded, including the
petitioner no. 1 and certain other witnesses
named by him. Statements of four accused,
including, Sri Yogi Adityanath were also
recorded. The investigating agency also
recorded statements of two police officers,
Shyam Narain Singh, Station Officer and
Brijendra Singh, who were allegedly
present at the time of the incident and were
on duty. The case diary would further go to
show that another compact disk (DVD)
containing alleged speech of Sri Yogi
Adityanath was provided as evidence by
the petitioner on 14.03.2013 to the CBCID
at the time of recording his statement under
Section 161 CrPC. The investigating
agency obtained second a compact disk on
25.05.2014, containing the admitted voice
of Sri Yogi Adityanath from Circle Officer,
Pipraich
for
comparison
with
voice
recorded in the compact disc handed over
by the petitioner. Both the compact discs
(DVD) were sent by the investigating
agency
for
forensic
examination
on
02.07.2014 to Forensic Science Laboratory,
Lucknow.
However,
the
Laboratory
returned back the compact discs to the
investigating agency, stating that the lab
was not equipped to carry out the required
forensic
analysis.
Subsequently,
the
investigating agency again sent the two
compact
discs
to
Forensic
Science
Laboratory, Madhuvan Chowk, New Delhi.
The said lab returned back the compact
discs to investigating agency on the ground
that it was only authorized to carry out
analysis of incident(s) within the territorial
jurisdiction of Delhi. Thereafter, the
investigating agency, after obtaining order
from
the
Additional
Chief
Judicial
Magistrate on 14.08.2014, sent the compact
discs to the Laboratory of Central Bureau
of Investigation, CGO Complex, New
Delhi along with case diary containing the
admitted sample voice of Sri Yogi
Adityanath. The CBI Lab, after carrying
out
examination
of
compact
discs,
submitted reports dated 13.10.2014 and
14.10.2014 respectively. After receiving
the report as well as other evidence which
came on record, including the statements of
witnesses,
the
investigating
agency
prepared and sent draft final report on
09.04.2015, charging the accused for
offence under Sections 143, 153, 153-A,
295-A read with Section 505 IPC, and the
said report was forwarded to the superior
officers for its approval by the competent
authority. In the draft final report prepared
under Section 173 (2) CrPC for offence
under Sections 143, 153, 153-A, 295-A
read with Section 505 IPC there was no
evidence found in support of allegations for
other offences for which the FIR was
registered.

11. The allegation of the petitioner
that the compact disc (DVD) filed by the
petitioner in the Court of Additional Chief
Judicial Magistrate along with affidavit on
05.05.2008 in proceeding under Section
156(3) CrPC was not sent for forensic
3 All. Parvez Parwaz & Anr. Vs. State of U.P. & Anr.
475
examination, but a fake compact disc was
sent, as such, the report submitted by the
Laboratory was of no consequence and,
thus, the investigating agency failed to
perform its statutory duty to carry out fair,
impartial and judicious investigation, the
Division Bench had held that it was the
petitioner
who
had
supplied
another
compact disc to the CBCID at the time of
recording his statement under Section 161
CrPC, and the said disc was sent for
forensic examination. After analysis, the
CBI Laboratory submitted two reports
dated 13.10.2014, in respect of video
contents, and the other dated 14.10.2014 in
respect of voice examination. The forensic
examination of the compact discs would
reveal that the DVD containing videos
were not original and they were edited and
tampered. The forensic examination report
has been extracted in the judgment
delivered by the Division Bench. The
Division Bench had held that from perusal
of the case diary and in depth analysis of
the investigation carried out, as depicted
from the case diary, there was no failure on
behalf of the investigating agency to
perform its statutory duty for carrying out
investigation in a fair, impartial and
independent manner and, therefore, found
no ground to transfer the investigation to
some other agency. In respect of issue no.
3, the Division Bench did not find any
procedural error, either in the conduct of
the investigation or in the decision making
process regarding refusal to grant sanction
for prosecution or any other illegality in the
order which required an interference by this
Court in exercise of its extra-ordinary
jurisdiction under Article 226 of the
Constitution of India.

12. The Division Bench noted that the
record revealed that all the material
collected by the investigating agency
during the course of investigation, was
placed before the sanctioning authority, and
its subjective satisfaction was arrived upon
perusal of the entire material. Therefore, it
could not be said that no objective
assessment was made to arrive at subjective
satisfaction recorded by the sanctioning
authority. The order, refusing the sanction,
had been passed by the competent authority
after due application of mind. Section 196
CrPC is a shield for public servants against
vexatious and malicious prosecution.

13. The Division Bench of this Court
did not find any procedural error, either, in
the conduct of the investigation or in the
decision
making
process,
refusing
prosecution sanction or any other illegality
in the order which could have been
interfered with by this Court in exercise of
its extraordinary jurisdiction under Article
226
of
the
Constitution
of
India.
Resultantly,
the
writ
petition
was
dismissed.

14. The petitioner did not stop and,
being dissatisfied with the judgment and
order dated 22.02.2018 passed by the
Division
Bench
of
this
Court,
he
approached the Supreme Court by filing
Criminal Appeal No.1343 of 2022, arising
out of SLP (Crl.) No.6190 of 2018.

15. During the hearing of the appeal,
learned counsel for the petitioner did not
press issue nos. 1 and 2, as framed by the
Division Bench in its judgment and order
dated 22.02.2018. The arguments were
advanced only on issue no. 3 relating to
denial of sanction for prosecution under
Section 196 CrPC. The Supreme Court
noted the fact that the investigation was
over and closure report (F.R. No.01 of
2017) dated 06.05.2017 was filed in the
Court by the investigating agency. Against
476 INDIAN LAW REPORTS ALLAHABAD SERIES
the final/closure report, a protest petition
was filed. The same was pending for
consideration before the trial Court.

16. In view of the aforesaid facts and
circumstances, the Supreme Court did not
think it necessary to go into the contentions
raised by both sides on issue of denial of
sanction for prosecution and the legal
submissions made in relation to the said
issue. However, the legal question, on the
issue of sanction for prosecution, was left
open to be considered in an appropriate
case. The Supreme Court had dismissed the
appeal, observing as under:-

"12. In the instant case, a short
affidavit was filed on behalf of the second
respondent wherein it is stated that the
investigation was closed vide FR No.1/17
dated 06.05.2017. This position is not
disputed by the appellants. Thus, as of now,
the position that emerges is that the
investigation
has
culminated
in
a
closure/refer report. Learned counsel for
the appellants has informed us that a
protest petition has been filed which is
pending considering before the trial Court.

13.
In
the
aforesaid
circumstances, we do not think it necessary
to go into the contentions raised by both
sides on the issue of denial of sanction for
prosecution and the legal pleas sought to
be raised in relation to the said issue.
However, we think it appropriate that the
legal questions on the issue of sanction be
left
open
to
be
considered
in
an
appropriate case."

17. As noted above, the challenge in
this petition under Section 482 CrPC is to
the decision of the learned trial Court dated
11.10.2022 wherein the learned trial Court
has rejected the protest petition against the
final/closure report no. 1 of 2017 dated
06.05.2017. The impugned order would
disclose that the petitioner had again raised
the same issue i. e. legality / validity of the
order, refusing sanction for prosecution and
the issue of compact disc which had
attained finality upto the Supreme Court.
The learned trial Court, in its well
considered impugned judgment, has held
that once the issue of legality/validity of
sanction for prosecution had attained
finality upto the Supreme Court, the same
issue could not be re-opened. The issue of
improper investigation was also decided by
the High Court in its judgment and order
dated 22.02.2018 passed in Criminal Misc.
Writ Petition No.21733 of 2008, and before
the Supreme Court, the petitioner did not
raise the said issue before the Supreme
Court and the only issue, which was raised
before the Supreme Court, was of validity
of order of refusal for prosecution sanction.
In view thereof, the trial Court has held that
there is no ground to interfere with the
final/closure report no.01 of 2017 and
dismissed the protest petition.

18. Mr. S.F.A. Naqvi, learned Senior
Advocate, assisted by Ms. Fatma Anjum
and Mr. Manauvar Husain, Advocates has
submitted that the question of legality of
order, refusing sanction for prosecution,
was left open by the Supreme Court and,
therefore, it cannot be said that the issue
had attained finality. It has been further
submitted that while deciding the protest
petition filed by the petitioner against the
closure/final report no.01 of 2017, the trial
Court could/ought to have decided the issue
of
legality
of
the
order,
refusing
prosecution sanction. The learned Senior
Advocate has again raised the issue of
alleged improper investigation by the
investigating agency and submitted that
considering the aforesaid, the impugned
order is to be set-aside and the trial Court
3 All. Parvez Parwaz & Anr. Vs. State of U.P. & Anr.
477
should be directed to decide the issue of
final/closure report afresh.

19. On the other hand, Mr. Manish
Goyal,
learned
Additional
Advocate
General, assisted by A.K. Sand, learned
Additional
Government
Advocate,
representing the respondent - State, has
submitted that the issues raised in the
protest petition and in this petition had
attained finality upto the Supreme Court.
The petitioner cannot be permitted to raise
the same issues time & again. The Supreme
Court had left open the question of sanction
and legal submissions to be decided in an
appropriate case, but not in this case again.
The learned Additional Advocate General
has further submitted that the contention
raised by the learned Senior Advocate for
the petitioner that the trial Court should
have decided the question of validity of
order, refusing sanction is completely
incorrect. Once the Supreme Court has not
entertained the plea of validity of order,
refusing prosecution sanction, the trial
Court has rightly refused to go into the said
issue. It has been further submitted that it
does not lie in mouth of the petitioner to
raise the question of improper investigation
inasmuch as out of three issues, two issues
were not pressed by the petitioner before
the Supreme Court. It has been further
submitted that the petitioner has been
indulging in vexatious prosecution of the
elected and popular Chief Minister of this
State, who has changed the face of the State
since he assumed the charge of the State in
the year 2017. It has been further submitted
that some forces are working against the
popular Chief Minister to derail the
progress of the State. Such a vexatious
prosecution should be dealt with sternly. It
has been further submitted that the
petitioner has a long criminal history of 14
cases, which would read as under:-

"1.FIR/Crime No. 0430 of 1992,
U/S 10/13 (1) The Unlawful Activities
(Prevention) Act, 1967 read with Section
153A/188 IPC, Police Station Rajghat,
District Gorakhpur;

2. FIR/Crime No.0226 of 2003,
U/S 143, 336 and 427 IPC read with
Section 7 Criminal Law Amendment Act,
Police
Station
Rajghat,
District
Gorakhpur;

3. FIR/Crime No. 0255 of 2003,
U/S 143, 195A/253A/505 Kha IPC read
with Section 7 Criminal Law Amendment
Act, Rajghat, District Gorakhpur;

4. FIR/Crime No. 0260 of 2003,
U/S 3 (II) National Security Act, Police
Station Rajghat, District Gorakhpur;

5. FIR/Crime No.01079 of 2010,
U/S 147, 148, 149, 307 and 354 IPC read
with Sections 3(II)(v) SC/ST Act, Police
Station Rajghat, District Gorakhpur;

6. FIR/Crime No.0112 of 1992,
U/S 452, 323, 504 and 506 IPC, Police
Station Rajghat, District Gorakhpur;

7. FIR/Crime No.0175 of 2018,
U/S 376D IPC, Police Station Rajghat,
District Gorakhpur;

8. 0817 of 2010, U/S 147, 352,
323, 504, 506 and 307 IPC read with
Section 7 Criminal Law Amendment Act,
Police
Station
Kotwali,
District
Gorakhpur;

9. FIR/Crime No.0402A of 1991,
U/S 448/506 IPC, Police Station Kotwali,
District Gorakhpur;

10. FIR/Crime No.0303 of 1983,
U/S 2 Prevention of Nation Insult Act,
Police
Station
Kotwali,
District
Gorakhpur;

11. FIR/Crime No.0101 of 2001,
U/S 279/304 IPC, Police Station Kotwali,
District Gorakhpur;

12. FIR/Crime No.0479A of 2004,
U/S 395, 147, 148, 149, 307 and 504 IPC
read with Sections 3(II)(v) SC/ST Act,
478 INDIAN LAW REPORTS ALLAHABAD SERIES
Police
Station
Rajghat,
District
Gorakhpur;

13. FIR/Crime No.01063 of 2018,
under Sections 120-B, 193, 195, 196, 419,
420, 467, 468, 469, 474 and 481 IPC,
Police Station Cantt., District Gorakhpur;
and

14. FIR/Crime No.0679 of 2019,
U/S 120-B, 347, 365, 392, 452 and 506
IPC,
Police
Station
Cantt.,
District
Gorakhpur."

20. It is submitted on behalf of the
State that the petitioner claims to be a
social worker as per his application under
Section 156(3) CrPC. Such a person having
criminal history of serious offences, as
mentioned, cannot be said to be a social
worker. It appears that the petitioner is an
impostor who has been set up by the forces,
who are adverse to Sri Yogi Adityanath,
State and India. When they could not
succeed to contain his rise in politics they
had set up an impostor, the petitioner to be
indulged in vexatious prosecution. The
petitioner's resources, to fight such a
litigation, should be investigated. It is,
therefore,
submitted
that
the
present
petition is nothing but an abuse of process
of the Court, and it is required to be
dismissed with an exemplary cost.

21. I have considered the submissions
advanced by the learned Senior Advocate
for the petitioner as well as learned
Additional Advocate General for the
respondent - State.

22. The facts and issues have been
extracted in detail herein above which are
not in dispute. The question, which would
require to be answered, is that whether it
could have been opened to the learned trial
Court to decide the issue of validity of the
order, refusing prosecution sanction of the
respondent when the Supreme Court had
dismissed the criminal appeal and left the
question of sanction to be answered in an
appropriate case. As mentioned above, the
only question which was raised by the
learned counsel for the petitioner before the
Supreme Court was regarding the validity
of order, refusing sanction for prosecution
under Section 196 CrPC. The Supreme
Court, however, taking note of the facts &
circumstances, did not answer the issue and
dismissed the appeal and, thus, the
judgment of the Division Bench had
attained finality. The said issue could not
have been decided by the learned trial
Court again. I find that the trial Court has
rightly refused to go into the said question
once it got decided by the Supreme Court.
Once the question of sanction got finally
settled, the trial Court could not have taken
cognizance on the police report or on the
protest petition as the accused, being a
public servant, no cognizance could be
taken without there being sanction by the
competent authority for prosecution.

23. The Supreme Court in the case
reported in 1972 (2) SCC 466 (Bhagat
Ram Vs. State of Rajasthan) has held that
the principle of res judicata is also
applicable to criminal proceedings, and it is
not permissible in the subsequent stage of
the same proceedings to convict a person
for an offence in respect of which an order
for his acquittal has already been passed.
The provisions of Section 403 CrPC is
based upon the same principle of res
judicata. Paragraphs 12, 13 and 14 of the
said judgment would read as under:-

"12. It would appear from the
resume of facts given above that both
Bhagat Ram and Ram Swaroop were
acquitted by the special judge. On appeal
filed by the State of Rajasthan against the
3 All. Parvez Parwaz & Anr. Vs. State of U.P. & Anr.
479
acquittal of the two accused, Tyagi and
Lodha, JJ. maintained the order relating to
the acquittal of Ram Swaroop. As regards
Bhagat Ram, though there was a difference
between the two judges regarding the
correctness of his acquittal for offenses
under Section 5(1) (a) of Prevention of
Corruption Act and Section 161 of Indian
Penal Code, they concurred with regard to
the acquittal of Bhagat Ram in respect of
the charges under Sections 120-B, 218, 347
and 389 I.P.C. The State appeal against the
acquittal of Bhagat Ram was dismissed to
that extent. The order which was made by
the learned judges of the Division Bench
reads as under :

"By the Court. The result is that
the appeal of the State against the order of
acquittal of respondent Ram Swaroop is
dismissed. The appeal of the State so far as
it relates to the acquittal of respondent
Bhagat Ram under Sections 347, 218, 389
and 120-B Indian Penal Code is also
dismissed. In view of the difference of
opinion about the acquittal of Bhagat Ram
under Section 161 Indian Penal Code and
Section 5(1)(a) of the Prevention of
Corruption Act, the matter may be laid
before Hon'ble the Chief Justice for
referring it to the third Judge."

13. In view of the fact that the
State appeal against the acquittal of
Bhagat Ram for offenses under Sections
120B, 218, 347 and 389 I.P.C. had been
dismissed by the Division Bench, it was, in
our opinion, not permissible for the third
judge to reopen the matter and convict
Bhagat Ram for offenses under Sections
347, 389 and 120B I.P.C. The matter had
been referred under Section 429 of the
Code of Criminal Procedure to Jagat
Narayan, J. because there was a difference
of opinion between Tyagi, J. and Lodha, J.
regarding the correctness of the acquittal
of Bhagat Ram for offenses under Section
161
I.P.C.
And
Section
5(1)(a)
of
Prevention of Corruption Act. Jagat
Narayan, J. could go only into this aspect
of the matter and arrive at his conclusion.
The present was not a case wherein the
entire matter relating to the acquittal or
conviction of Bhagat Ram had been left
open because of a difference of opinion
between the two judges. Had that been the
position the whole case relating to Bhagat
Ram could legitimately be considered by
Jagat Narayan, J. and he could have
formed his own view of the matter
regarding the correctness of the order of
acquittal made by the trial judge in respect
of Bhagat Ram. On the contrary, as
mentioned earlier, an express order had
been
made
by
the
Division
Bench
upholding the acquittal of Bhagat Ram for
offenses under Sections 120-B, 218,347 and
389 I.P.C. and the State appeal in that
respect had been dismissed. The above
decision of the Division Bench was binding
upon Jagat Narayan, J. and he was in error
in convicting Bhagat Ram for offenses
under Sections 120-B, 218 and 347 I.P.C.
despite the order of the Division Bench. It
was, in our opinion, not within the
competence of the learned judge to reopen
the matter and pass the above order of
conviction in the face of the earlier order of
the Division Bench whereby the order of
acquittal of Bhagat Ram made by the trial
judge in respect of the said three charges
had been affirmed. The order of the
Division Bench unless set aside in appeal
to this Court, was binding and conclusive
in all subsequent proceedings between the
parties. The principle of res judicata is also
applicable to criminal proceedings and it is
not permissible in the subsequent stage of
the same proceedings or in some other
subsequent proceedings to convict a person
for an offence in respect of which an order
for his acquittal has already been recorded.
480 INDIAN LAW REPORTS ALLAHABAD SERIES
The plea of autrefois acquit as a bar to
prosecution embodied in Section 403 of the
Code of Criminal Procedure is based upon
the above wholesome principle.

14. In the case of Sambasivam v.
Public Prosecutor, Federal of Malaya,
Lord MacDermott observed:

"The effect of a verdict of
acquittal pronounced by a competent court
on a lawful charge and after a lawful trial
is not completely stated by saying that the
person acquitted cannot be tried again for
the same offence. To that it must be added
that the verdict is binding and conclusive in
all subsequent proceedings between the
parties to the adjudication.

The
maxim
'res
judicata
proveritate ascipitur' is no less applicable,
to criminal than to civil proceedings. Here,
the appellant having been acquitted at the
first trial on the charge of having
ammunition
in
his
possession,
the
prosecution was bound to accept the
correctness of that verdict and was
precluded from taking any steps to
challenge it at the second trial."

The above observations were
quoted with approval by this Court in the
case of Pritam Singh v. State of Punjab. We
are, therefore, of the opinion that the
judgment of Jagat Narayan, J., in so far as
he has convicted Bhagat Ram for offenses
under Sections 120-B, 218 and 347 I.P.C.
cannot be sustained."

24. In the present case, the question of
validity of sanction got decided by the
Division Bench of this Court against which
the Supreme Court had dismissed the
appeal and, therefore, the question of
validity of order, refusing sanction for
prosecution under Section 196 CrPC of the
accused got finally settled, and the said
issue is barred by principle of res judicata
in subsequent proceedings of the same
case. The trial Court has, therefore,
correctly held that the said issue could not
be re-opened while deciding the protest
petition.

25. The Supreme Court in the case
reported in (2013) 10 SCC 705 (Anil
Kumar and others Vs. M.K. Aiyappa and
another) has held that on the plea of proper
sanction the Magistrate cannot order
investigation against the public servant
while invoking the power under Section
156 CrPC. Paragraphs 21 and 22 of the said
judgment would read as under:-

"21. The 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,
has been clearly spelt out in Paras Nath
Singh and Subramanium Swamy cases..

22. Further, this Court in Army
Headquarters v. CBI opined as follows:
(SCC p. 261, paras 82-83)

"82. Thus, in view of the above,
the law on the issue of sanction can be
3 All. Rajiv Kumar Vs. State of U.P. & Ors.
481
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.....

83. 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."

26. Once the sanction for prosecution
was
refused,
the
investigation,
even
otherwise could not have been carried out
by an order under Section 156(3) CrPC as
in the present case. The petitioner appears
to be a busy body who himself is facing
several criminal cases, and he has been
fighting this case since 2007. The petitioner
must have been incurring huge expenses in
engaging counsels to contest this case
before the trial Court, this Court and the
Supreme
Court.
His
resources
to
fight/contest the litigation should be a
matter of investigation. There may be some
force in the submission raised by Mr.
Manish
Goyal,
learned
Additional
Advocate General that the petitioner is an
impostor who has been set up by the forces,
which are opposing Sri Yogi Adityanath,
the present Chief Minister of the State of
Uttar Pradesh, and the forces, which do not
want progress of the State of Uttar Pradesh
and India. It is for the State to investigate
the said aspect, however, this Court does
not want to say anything further or give any
direction in this regard.

27. With the aforesaid observations,
this petition stands dismissed with an
exemplary cost of Rs. 1,00,000/- (Rupees
(One Lakh) to be deposited in the "Army
Welfare Fund Battle Casualties" within
four weeks from today, failing which the
same shall be recovered as arrears of land
revenue
from
estates/assets
of
the
petitioner.
----------
(2023) 3 ILRA 481
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.09.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482. No. 4392 of 2016

Rajiv Kumar ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Ashok Kumar, Sri Sachin Kanaujiya

Counsel for the Opposite Parties:
G.A., Sri Chandra Bhan Dubey

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 482- Victim
married the applicant out of her own free will,
leading the court to quash the proceedings-the
parties had already settled their disputeinherent powers under Section 482 CrPC to
quash criminal proceedings- even in certain
cognizable and non-compoundable offences-in
cases with a predominantly civil flavour, such as
those
arising
from
commercial,
financial,
matrimonial, or family disputes- if the possibility
of conviction is remote and continuation would
cause oppression and injustice.
Application allowed. (E-9)
List of Cases cited:

1. Mafat Lal & anr. Vs St. of Raj. report on 2022
LawSuit(SC) 463