# Prof. Vipin Saxena v. C.B.I./A.C.B. Lko & Anr

- **Citation:** (2023) 8 ILRA 1166
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-08
- **Case number:** Application U/S 482. No. 839 of 2020
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prof-vipin-saxena-v-c-b-i-a-c-b-lko-anr-50513
- **Pages:** 14

## Headnote

Criminal Law - Prevention of Corruption
Act, 1988 - Sections 7, 13(1)(d) , 13(2) &
19 - Indian Penal Code, 1860 - Section
120-B - Code of Criminal Procedure, 1973
- Sections 161, 164 - Sanction order -
Validity - Sanction was accorded by Board
for prosecution of petitioner in its 62nd
meeting, keeping in view of opinion of
majority of members of Board - Confirmed
by Board in its 63rd meeting - Sanction
order approved by Board and irregularity,
if any, for reason of want of quorum in
62nd meeting, cured in 63rd meeting,
much
prior
when
trial
Court
took
cognizance of offence. (Para 2, 35)

Challenged sanction order after recording
of
examination
in
chief
and
cross
examination of PW-1 - No bar against
petitioner challenging order of sanction
after
recording
of
Statement
of
Sanctioning
Authority,
delay
in
challenging
sanction
order
indicates
petitioner didn't suffer any failure of
justice from sanction order passed by
Vice-Chancellor. (Para 36)

Contents of sanction order similar to
contents of draft order, not indicative of
non-application of mind, no need to use
different
contents
in
sanction
order,
unless sanctioning authority not agreeable
with contents of draft order - Procedure
adopted is in accordance with provisions
contained in Section 12 (3) of University
Act, 1994 (Para 40, 41)

Application dismissed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,812 of 45,062. This is a partial read: ask again with offset=39812 for what follows._

1166 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 8 ILRA 1166
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.08.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 839 of 2020

Prof. Vipin Saxena ...Applicant
Versus
C.B.I./A.C.B. Lko & Anr. ...Opposite Parties

Counsel for the Applicant:
Pranjal Krishna, Shivam Pandey

Counsel for the Opposite Parties:
A.S.G., Anurag Kumar Singh, Dr. V.K. Singh

Criminal Law - Prevention of Corruption
Act, 1988 - Sections 7, 13(1)(d) , 13(2) &
19 - Indian Penal Code, 1860 - Section
120-B - Code of Criminal Procedure, 1973
- Sections 161, 164 - Sanction order -
Validity - Sanction was accorded by Board
for prosecution of petitioner in its 62nd
meeting, keeping in view of opinion of
majority of members of Board - Confirmed
by Board in its 63rd meeting - Sanction
order approved by Board and irregularity,
if any, for reason of want of quorum in
62nd meeting, cured in 63rd meeting,
much
prior
when
trial
Court
took
cognizance of offence. (Para 2, 35)

Challenged sanction order after recording
of
examination
in
chief
and
cross
examination of PW-1 - No bar against
petitioner challenging order of sanction
after
recording
of
Statement
of
Sanctioning
Authority,
delay
in
challenging
sanction
order
indicates
petitioner didn't suffer any failure of
justice from sanction order passed by
Vice-Chancellor. (Para 36)

Contents of sanction order similar to
contents of draft order, not indicative of
non-application of mind, no need to use
different
contents
in
sanction
order,
unless sanctioning authority not agreeable
with contents of draft order - Procedure
adopted is in accordance with provisions
contained in Section 12 (3) of University
Act, 1994 (Para 40, 41)

Application dismissed. (E-14)

List of Cases cited:

1. R. S. Nayak Vs A. R. Antulay, (1984) 2 SCC
183, (Para 23)

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

3. CBI Vs Ashok Kumar Aggarwal, (2014) 14
SCC 295, (Para 19, 58, 59)

4. St. (Inspector of Police) Vs Surya Sankaram
Karri, (2006) 7 SCC 172

5. St. of Goa v. Babu Thomas, (2005) 8 SCC
130, (Para 12)

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

7. St. of Bihar Vs Rajmangal Ram, (2014) 11
SCC 388
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri. Pranjal Krishna, the
learned counsel for the petitioner, Sri
Anurag Kumar Singh, the learned counsel
representing the respondent no. 1 - C.B.I.
and Dr. V. K. Singh, the learned counsel
for the respondent no. 2 - Babasaheb
Bhimrao Ambedkar University, Lucknow.

2. By means of the instant application
filed under Section 482 Cr.P.C, the
petitioner has challenged validity of the
order dated 28.05.2019 passed by the
Learned Special Judge, Anti-Corruption,
C.B.I (West), Lucknow in Criminal Case
No. 545 of 2017, whereby the application
dated 07.03.2019 filed by the petitioner
challenging the prosecution sanction order
8 All. Prof. Vipin Saxena Vs. C.B.I./A.C.B. Lko. & Anr.
1167
dated 26.10.2017 passed by the Vice
Chancellor of the University has been
rejected.

3. The petitioner was working as a
Professor
in
the
University
since
25.06.2011. Sri. Ved Kumar, who was
working as an Assistant Professor in the
University on contractual basis, filed a
Complaint dated 31.05.2017 against Vijay
Kumar Dwivedi, an outsourced private
staff engaged by a private firm M/s Shri Sai
Nath Associates and working at the
University, alleging a demand of illegal
gratification of Rs.50,000/- for extension of
the complainant's contract of service
beyond 31.05.2017. In furtherance of the
aforesaid complaint, an F.I.R. bearing R.C.
No. 0062017A0012 dated 02.06.2017 was
lodged under Section 7 of the Prevention of
Corruption Act, 1988 in Police Station
C.B.I/A.C.B/ Lucknow. The petitioner was
not named in the complaint or in the F.I.R.

4. A trap was laid on 02.06.2017 and
the named accused Vijay Dwivedi was
caught red-handed while demanding and
accepting Rs.50,000/- bribe from the
complainant for extension of his contract of
service. The accused Vijay Dwivedi said
that he had demanded and accepted the
bribe on behalf of the petitioner, who had
directed him to collect Rs.50,000/- as bribe
from each of the Assistant Professors
working on contractual basis, who wanted
to get their service tenure extended. Two
telephonic conversations were arranged and
recorded between the petitioner and Vijay
Dwivedi,
in
which
the
petitioner
acknowledged the information given by
Vijay Dwivedi that he had collected the
money from various teachers. A file
marked Extension of Contractual Faculty
was recovered from the office of the
petitioner.

5. After completion of investigation,
on 01.08.2017 the C.B.I. filed a chargesheet against the petitioner and Vijay
Dwivedi alleging commission of offences
under Section 120-B I.P.C. and Sections 7
and 13(2) read with Section 13(1)(d) of
Prevention of Corruption Act, 1988.

6. Sanction under Section 19 of the
Prevention of Corruption Act,1988 for the
Prosecution of the petitioner was accorded
by the Vice Chancellor of the University on
26.10.2017.

7. On 05.07.2018, the Learned
Special Judge, Anti-Corruption, C.B.I.
(West), Lucknow, took cognizance of
commission of the offences on the basis of
the Sanction Order dated 26.10.2017 and it
proceeded with the trial.

8. On 08.01.2019, the trial Court
started recording the examination-in-chief
of PW-1 Sri. R. C. Sobati, Vice-Chancellor
of the University - the person who had
issued the order sanctioning prosecution of
the petitioner, and his cross-examination
also started on the same date, which was
concluded on 21.01.2019.

9. On 07.03.2019 the petitioner filed
an application before the trial Court
challenging validity of the sanction order
dated 26.10.2017 on the ground that
sanction for prosecution can be granted
only by the appointing authority of the
petitioner,
which
is
the
Board
of
Management of the University. The ViceChancellor of the University is not the
petitioner's appointing authority and the
prosecution sanction granted by the ViceChancellor was without authority.

10. The petitioner's application
challenging validity of the prosecution
sanction order was rejected by the trial
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
Court vide order dated 28.05.2019, on the
ground that the Vice-Chancellor had passed
prosecution sanction order on behalf of the
Board of Management of the University.

11. Assailing the order dated
28.05.2019, Sri Pranjal Krishna, the learned
Counsel for the petitioner, has submitted
that the Board of Management of the
University is the authority who can
appoint/remove a permanent teacher in the
University
and
the
Board
alone
is
competent
for
granting
sanction
for
prosecution.
In
the
present
case,
prosecution sanction has been granted by
the Vice Chancellor of the University and
he is not the Competent Authority under
the provision of Act and Statute of the
University.

12. Per Contra, Shri Anurag Kumar
Singh, the learned Counsel for the
respondent no. 1 - C.B.I. and Dr. V. K.
Singh, the learned Counsel for the
respondent no. 2 - University, have
submitted that the sanction for prosecution
of the petitioner was granted by the Board
of Management of the University in its
62nd meeting and the Vice-Chancellor had
merely implemented the decision of the
Board of Management. Subsequently the
Board of Management had ratified the
decision in its 63rd Meeting.

13. Dr. V. K. Singh, the learned
Counsel for the University has submitted
that Section 12 (3) of the Babasaheb
Bhimrao Ambedkar University Act, 1994
authorizes the Vice Chancellor for taking
decision on behalf of the Board Of
Management, in case of urgency. The Vice
Chancellor duly deliberated the issue with
the Members of the Board Of Management
by circulation, took their consent and
proceeded to grant the permission for
initiation of the prosecution under Section
19 of the Act of 1988.

14. The learned Counsel for the
petitioner relied upon the judgments of the
Hon'ble Supreme Court in R. S. Nayak Vs.
A. R. Antulay, (1984) 2 SCC 183,
Nanjappa v. State of Karnataka, (2015)
14 SCC 186, CBI v. Ashok Kumar
Aggarwal (2014) 14 SCC 295, State
(Inspector of Police) v. Surya Sankaram
Karri, (2006) 7 SCC 172 and State of Goa
v. Babu Thomas, (2005) 8 SCC 130..

15. In R. S. Nayak Vs. A. R.
Antulay, (1984) 2 SCC 183, the Hon'ble
Supreme Court held that: -

"23....The Legislature advisedly
conferred
power
on
the
authority
competent to remove the public servant
from the office to grant sanction for the
obvious reason that that authority alone
would be able, when facts and evidence are
placed before him to judge whether a
serious offence is committed or the
prosecution
is
either
frivolous
or
speculative. That authority alone would be
competent to judge whether on the facts
alleged, there has been an abuse or misuse
of office held by the public servant. That
authority would be in a position to know
what was the power conferred on the office
which the public servant holds, how that
power could be abused for corrupt motive
and whether prima facie it has been so
done. That competent authority alone
would know the nature and functions
discharged by the public servant holding
the office and whether the same has been
abused or misused. It is the vertical
hierarchy between the authority competent
to remove the public servant from that
office and the nature of the office held by
the public servant against whom sanction is
8 All. Prof. Vipin Saxena Vs. C.B.I./A.C.B. Lko. & Anr.
1169
sought which would indicate a hierarchy
and
which
would
therefore,
permit
inference of knowledge about the functions
and duties of the office and its misuse or
abuse by the public servant. That is why the
Legislature clearly provided that that
authority alone would be competent to
grant sanction which is entitled to remove
the public servant against whom sanction is
sought from the office."

16. In Nanjappa v. State of
Karnataka, (2015) 14 SCC 186, the trial
Court had held that the authority who had
granted the sanction, was not competent to
do so and this finding of fact was not
disputed before the High Court or before
the Supreme Court. However, having
recorded the aforesaid finding, the trial
court passed an order of acquittal on the
merits of the case. The Hon'ble Supreme
Court held that the trial Court having held
the sanction to be invalid, it should have
discharged
the
accused
rather
than
acquitting him. In this factual backdrop, the
Hon'ble Supreme Court held that "The
question regarding validity of such sanction
can be raised at any stage of the
proceedings."

17. The relevant passage of CBI v.
Ashok Kumar Aggarwal (2014) 14 SCC
295, relied upon by the learned Counsel for
the petitioner is as follows: -

"58. The most relevant issue
involved herein is as at what stage the
validity of sanction order can be raised.
The issue is no more res integra. In Dinesh
Kumar v. Airport Authority of India (2012)
1 SCC 532 this Court dealt with the issue
and placing reliance upon the judgment
in Parkash
Singh
Badal v. State
of
Punjab (2007) 1 SCC 1, came to the
conclusion as under :

"13. In our view, having regard
to the facts of the present case, now since
cognizance has already been taken against
the appellant by the trial Judge, the High
Court cannot be said to have erred in
leaving the question of validity of sanction
open for consideration by the trial court
and giving liberty to the appellant to raise
the issue concerning validity of sanction
order in the course of trial. Such course is
in accord with the decision of this Court
in Parkash Singh Badal ...."

59. Undoubtedly, the stage of
examining the validity of sanction is during
the trial and we do not propose to say that
the validity should be examined during the
stage of inquiry or at pre-trial stage."

18. In State (Inspector of Police) v.
Surya Sankaram Karri, (2006) 7 SCC
172, the Hon'ble Supreme Court held that
"When a sanction is granted by a person
not authorised in law, the same being
without jurisdiction, would be a nullity."

19. There can be no dispute regarding
the aforesaid proposition of law, but this
principle was reiterated by the Hon'ble
Supreme Court while deciding an Appeal
filed against a judgment and order passed
by the High Court of Andhra Pradesh in an
appeal filed against an order of conviction,
in the factual backdrop that the authority
who had passed the sanction order had
accepted in his examination in chief that
under the rules although he was not the
competent authority to remove the accused
from service, he had been delegated with
power of removing him. However, the
Supreme Court recorded in para 23 of the
judgment that "The purported delegation of
power had never seen the light of the day.
No reliance thereupon could have been
placed to arrive at a finding that the said
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
witness was authorised to accord sanction.
The learned Special Judge did not apply his
mind to these aspects of the matter at all."

20. The learned Counsel for the
petitioner has relied upon the decision of
the Hon'ble Supreme Court in State of Goa
v. Babu Thomas, (2005) 8 SCC 130,
wherein undisputedly the sanction for
prosecution of the respondent was granted
by the Company Secretary whereas the
authority
competent
to
remove
the
respondent from the post he was holding
was the Board of Directors. There was no
order/resolution of the Board of Directors
of the Company authorising the Company
Secretary to convey the sanction order
passed by the Board of Directors. Pursuant
to the sanction order dated 02.01.1995,
cognizance was taken on 29-5-1995.
Another sanction order dated 07.09.1997
was issued by the Chairman and Managing
Director of Goa Shipyard Company Ltd.
after cognizance was taken on 29.05.1995
and it stated that in exercise of the powers
vested and on behalf of the Board of
Directors,
sanction
was
accorded
to
prosecute the respondent retrospectively
with effect from 14.09.1994. In the
aforesaid factual backdrop, the Hon'ble
Supreme Court held that: -

"12. As already noticed, the
sanction order is not a mere irregularity,
error or omission. The first sanction order
dated 2-1-1995 was issued by an authority
that was not a competent authority to have
issued such order under the Rules. The
second sanction order dated 7-9-1997 was
also issued by an authority, which was not
competent to issue the same under the
relevant rules, apart from the fact that the
same was issued retrospectively w.e.f. 149-1994, which is bad. The cognizance was
taken by the Special Judge on 29-5-1995.
Therefore, when the Special Judge took
cognizance on 29-5- 1995, there was no
sanction order under the law authorising
him to take cognizance. This is a
fundamental error which invalidates the
cognizance as without jurisdiction."

21. A copy of the agenda and the
minutes of the 62nd emergent meeting of
the Board of Management of the University
held on 08.09.2017 have been annexed
with the counter affidavit filed on behalf of
the university. The sole agenda of the
meeting was "to consider the issuance of
the sanction of prosecution sought for the
C.B.I. in CBI Case No. RC0062017A0012
against Dr. Vipin Saxena, Professor, Deptt.
Of Computer Science and Honorary
Director,
University
Institute
of
Engineering
and
Technology,
BBAU,
Lucknow". It was mentioned in the agenda
that a copy of the letter dated 01.08.2017
received from the C.B.I. had been placed
with the agenda and the Vice Chancellor
had requested all the members of the Board
of Management to send their concurrence /
comments within 14 days. The response
obtained from 5 members was appended to
the agenda. One member, namely Prof.
Raghuvendra Tanwar, had communicated
that the Vice-Chancellor can take a decision
in his wisdom and inform the Board of
Management accordingly. Another member
Prof. Ajay Kumar Jha wrote that keeping in
view the gravity of the situation, the ViceChancellor as "... Principal executive and
academic head of the University" can give
permission to the C.B.I. to proceed ahead as
per their opinion on this case enclosed in the
given letter and thereafter report the matter to
the Board of Management in its next meeting.
Yet another member Prof. Vidya Sharda
categorically
wrote
that
"I
give
my
concurrence for prosecution of Dr. Vipin
Saxena".
8 All. Prof. Vipin Saxena Vs. C.B.I./A.C.B. Lko. & Anr.
1171

22. The 62nd meeting of the Board of
Management held on 08.09.2017 was
attended by only 6 members as against the
requisite quorum of 7 members and all the
members present were in favour of giving
sanction for prosecution of the petitioner.
The Vice-chancellor had asked for consent
of the members of the Board by circulation
and Prof. Vidya Sharda, who was not
present in the meeting, had categorically
communicated in writing her concurrence
for prosecution of the petitioner. Two other
members Prof. Raghuvendra Tanwar and
Prof. Ajay Kumar Jha wrote that keeping in
view the gravity of the situation, the ViceChancellor can give permission to the
C.B.I. to proceed ahead as per their opinion
on this case enclosed in the given letter and
thereafter report the matter to the Board of
Management in its next meeting.

23. Thus it appears that the sanction
was accorded by the Board of Management
keeping in view the opinion of majority of
the members of the Board of Management,
not less than the prescribed quorum of 7
members and, therefore, the sanction order
is not illegal or without authority for the
reason that quorum was not complete in the
62nd meeting of the Board of Management
held on 08.09.2017.

24.
 The
sanction
order dated
26.10.2017 issued under the signature of
the Vice-Chancellor of the University
mentions that "after carefully examining
the material placed before it, including the
statements recorded under Sections 161
and 164 Cr.P.C. and other relevant
material regarding the allegations and
taking
into
account
the
facts
and
circumstances of the case and on being
fully satisfied, the Board of Management
considers that the said Dr. Vipin Saxena,
Prof. Department of Computer Sciences,
the then Honorary Director of UIET,
BBAU (U.P.) should be prosecuted in the
Court of law for the said offences.

Now, therefore, the Board of
Management
of
Babasaheb
Bhimrao
Ambedkar University, Lucknow, hereby
accord sanction under Section 19 of the
Prevention of Corruption Act, 1988 for
prosecution of the said Dr. Vipin Saxena,
Prof. Department of Computer Sciences,
the then Honorary Director of UIET,
BBAU (U.P.) for the offences under Section
120-B of I.P.C., Section 7 & 13 (2) r/w 13
(1) (d) of the Prevention of Corruption Act,
1988 and any other offence as the Hon'ble
Court desired fir in respect of the aforesaid
acts and for taking cognizance of the said
offences
by
a
court
of
competent
jurisdiction".

25. The minutes of the 62nd emergent
meeting held on 08.09.2017 regarding grant
of sanction for prosecution of the petitioner
was
confirmed
by
the
Board
of
Management
in
its
63rd
meeting.
Therefore, the sanction order was approved
by the Board of Management and the
irregularity, if any, for the reason of want
of quorum in the 62nd meeting, stood cured
in the 63rd meeting held on 14.11.2017,
much prior to 05.07.2018, when the trial
Court took cognizance of the offence.

26. Moreover, Section 12(3) of the
Babasaheb Bhimrao Ambedkar University
Act, 1994, provides as follows: -

"12(3).The
Vice-Chancellor
may, if he is of opinion that immediate
action is necessary on any matter, exercise
any power conferred on any authority of
the University by or under this Act and
report to such authority the action taken
by him on such matter
1172 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that if the authority
concerned is of opinion that such action
ought not to have been taken, it may refer
the matter to the Visitor whose decision
thereon shall be final.

Provided further that any person
in the service of the University who is
aggrieved by the action taken by the ViceChancellor under this sub-section shall
have the right to appeal against such action
to the Board of Management within three
months from the date on which decision on
such action is communicated to him and
thereupon the Board of Management may
confirm, modify or reverse the action taken
by the Vice-Chancellor."

(Emphasis Supplied)

27. The Vice Chancellor has the
statutory power to exercise the powers of
any authority of the University, which
obviously would include the Board of
Management of the University, in certain
situations mentioned in Sub-section (3) of
Section 12. It was open for the Board of
Management to have disapproved the
action of the Vice-Chancellor and in that
case, the Board of Management could
have referred the matter to the Visitor of
the
University,
but
the
Board
of
Management chose not to disapprove the
action of the Vice-Chancellor, rather the
decision taken in the 62nd meeting of the
Board of Management, in furtherance
whereof the Vice-Chancellor had issued
the Sanction Order dated 26.10.2017, was
confirmed in the 63rd meeting held on
14.11.2017. The sanction order was
issued in accordance with the statutory
power
conferred
upon
the
ViceChancellor by Section 12(3) of the
Babasaheb
Bhimrao
Ambedkar
University Act, 1994 and it was not
without jurisdiction.

28. Therefore, the facts of the present
case are different from the facts of the
cases cited by the learned Counsel for the
petitioner and the principle of law stated in
the aforesaid case would not apply to the
facts of the present case.

29. Prior to enactment of the
Prevention of Corruption Act, 1988, the
law governing the field was the Prevention
of Corruption Act, 1947 and Section 6 of
the 1947 Act contained the following
provision
regarding
requirement
of
sanction for prosecution: -

"6. Previous sanction necessary
for prosecutions.-

(1)
No
Court
shall
take
cognizance of an offence punishable under
Section 161 or Section 164 or Section 165
of the Indian Penal Code or under sub -
section (2) or sub-section (3A) of Section 5
of this Act, 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 gave by or with the sanction of the
Central
Government,
of
the
Central
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 the State 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 whether the
8 All. Prof. Vipin Saxena Vs. C.B.I./A.C.B. Lko. & Anr.
1173
previous sanction as required under sub -
section (1) should be given by the Central
or
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."

30. However, the 1947 Act was
replaced by the 1988 Act and Section 19 of
the Prevention of Corruption Act, 1988, as
it applies to the State of Uttar Pradesh,
contains the following provision regarding
requirement of previous sanction for
prosecution: -

"19. Previous sanction necessary
for prosecution.-(1) No court shall take
cognizance of an offence punishable
under Sections 7, 11, 13 and 15] alleged to
have been committed by a public servant,
except with the previous sanction save as
otherwise provided in the Lokpal and
Lokayuktas Act, 2013,-

(a) in the case of a person who
is employed, or as the case may be, was
at the time of commission of the alleged
offence 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, or as the case may be, was at the
time of commission of the alleged offence
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
rebove him from his office.

(d)
Notwithstanding
anything
contained
in
clause
(c),
the
State
Government may, where it considers
necessary so to do, require the authority
referred to in clause (c), to give previous
sanction within the period specified in this
behalf and if the said authority fails to give
the previous sanction within such period,
the previous sanction may be given by the
State Government.

Explanation.-(1)
For
the
purpose of this clause "authority" does not
include any authority under the control of
the Central Government.

(2) For removal of doubts it is
hereby declared that the power of the State
Government under this clause may be
exercised also in a case where the authority
referred to in clause (c) has earlier refused
to give the previous sanction."

Provided that no request can be
made, by a person other than a police
officer or an officer of an investigation
agency or other law enforcement authority,
to
the
appropriate
Government
or
competent authority, as the case may be,
for
the
previous
sanction
of
such
Government
or
authority
for
taking
cognizance by the court of any of the
offences specified in this sub-section,
unless-

(i) such person has filed a
complaint in a competent court about the
alleged offences for which the public
servant is sought to be prosecuted; and
1174 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) the court has not dismissed
the complaint under Section 203 of the
Code of Criminal Procedure, 1973 (2 of
1974) and directed the complainant to
obtain the sanction for prosecution against
the public servant for further proceeding:

Provided further that in the case
of request from the person other than a
police
officer
or
an officer
of
an
investigation
agency
or
other
law
enforcement authority, the appropriate
Government or competent authority shall
not accord sanction to prosecute a public
servant without providing an opportunity of
being heard to the concerned public
servant:

Provided
also
that
the
appropriate Government or any competent
authority shall, after the receipt of the
proposal
requiring
sanction
for
prosecution of a public servant under this
sub-section, endeavour to convey the
decision on such proposal within a period
of three months from the date of its receipt:

Provided also that in case where,
for the purpose of grant of sanction for
prosecution, legal consultation is required,
such period may, for the reasons to be
recorded in writing, be extended by a
further period of one month:

Provided also that the Central
Government may, for the purpose of
sanction for prosecution of a public
servant, prescribe such guidelines as it
considers necessary.

Explanation.-For the purposes
of sub-section (1), the expression "public
servant" includes such person-

(a) who has ceased to hold the
office during which the offence is alleged to
have been committed; or

(b) who has ceased to hold the
office during which the offence is alleged to
have been committed and is holding an
office other than the office during which the
offence is alleged to have been committed.

(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;
8 All. Prof. Vipin Saxena Vs. C.B.I./A.C.B. Lko. & Anr.
1175

(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 subsection (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;

(b) a sanction required for
prosecution includes reference to any
requirement that the prosecution shall be at
the instance of a specified authority or with
the sanction of a specified person or any
requirement of a similar nature."

31. A bare perusal of the aforesaid
two statutory provisions indicate that
previously there was no need to examine
whether a failure of justice has been caused
by any error, omission or irregularity in the
sanction order but in the 1988 Act, the
Courts
have
been
prohibited
from
interfering on the ground of any error,
omission or irregularity in the sanction
order, unless it has resulted into a failure of
justice.

32. Sri. Anurag Kumar Singh, the
learned Counsel for the respondent no. 1 -
C.B.I., has relied upon a decision of the
Hon'ble Supreme Court in State of Bihar
v. Rajmangal Ram, (2014) 11 SCC 388,
wherein Babu Thomas (Supra) was
distinguished.
The
Hon'ble
Supreme
quoted Section 19 of the Prevention of
Corruption Act (which has already been
quoted above) and Section 465 of the
Cr.P.C., which is as follows: -

"465. Finding or sentence when
reversible by reason of error, omission or
irregularity.-(1) Subject to the provisions
hereinbefore
contained,
no
finding,
sentence or order passed by a court of
competent jurisdiction shall be reversed or
altered by a court of appeal, confirmation
or revision on account of any error,
omission or irregularity in the complaint,
summons, warrant, proclamation, order,
judgment or other proceedings before or
during trial or in any inquiry or other
proceedings under this Code, or any error,
or irregularity in any sanction for the
prosecution, unless in the opinion of that
Court, a failure of justice has in fact been
occasioned thereby.

(2) In determining whether any
error, omission or irregularity in any
proceeding under this Code, or any error, or
irregularity in any sanction for the
prosecution has occasioned a failure of
justice, the court shall have regard to the
fact whether the objection could and should
have been raised at an earlier stage in the
proceedings."

(Emphasis supplied)

The Hon'ble Supreme Court held
that: -

"6. In a situation where under
both the enactments any error, omission or
irregularity in the sanction, which would
also include the competence of the
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
authority to grant sanction, does not vitiate
the eventual conclusion in the trial
including the conviction and sentence,
unless of course a failure of justice has
occurred, it is difficult to see how at the
intermediary stage a criminal prosecution
can be nullified or interdicted on account
of any such error, omission or irregularity
in the sanction order without arriving at
the satisfaction that a failure of justice has
also been occasioned. This is what was
decided
by
this
Court
in State v. T.
Venkatesh Murthy (2004) 7 SCC 763
wherein it has been inter alia observed that
:

"14. ... Merely because there is
any omission, error or irregularity in the
matter of according sanction, that does
not affect the validity of the proceeding
unless the court records the satisfaction
that such error, omission or irregularity
has resulted in failure of justice."

(emphasis in original)

7. The above view also found
reiteration in Parkash Singh Badal v. State
of Punjab (2007) 1 SCC 1 wherein it was,
inter alia, held that mere omission, error or
irregularity in sanction is not to be
considered fatal unless it has resulted in
failure of justice. In Parkash Singh Badal it
was further held that Section 19(1) of the
PC Act is a matter of procedure and does
not go to the root of jurisdiction..."

8. There is a contrary view of this
Court in State of Goa v. Babu Thomas
(2005) 8 SCC 130 holding that an error in
grant of sanction goes to the root of the
prosecution. But the decision in Babu
Thomas has to be necessarily understood in
the facts thereof, namely, that the authority
itself had admitted the invalidity of the
initial sanction by issuing a second
sanction
with
retrospective
effect
to
validate the cognizance already taken on
the basis of the initial sanction order. Even
otherwise, the position has been clarified
by the larger Bench in State of M.P. v.
Virender Kumar Tripathi(2009) 15 SCC
533."

33. The expression "failure of justice"
occurring in Section 19 of the 1988 Act has
been explained by the Hon'ble Supreme
Court in CBI v. Ashok Kumar Aggarwal
(Supra), in the following words: -

"19. The court must examine
whether the issue raised regarding failure
of justice is actually a failure of justice in
the true sense or whether it is only a
camouflage argument. The expression
"failure of justice" is an extremely pliable
or facile an expression which can be made
to fit into any case. The court must
endeavour to find out the truth. There
would be "failure of justice" not only by
unjust conviction but also by acquittal of
the guilty as a result of unjust or negligent
failure to produce requisite evidence. Of
course, the rights of the accused have to
be kept in mind and safeguarded but they
should not be overemphasised to the
extent of forgetting that the victims also
have certain rights. It has to be shown that
the accused has suffered some disability or
detriment in the protections available to
him
under
the
Indian
criminal
jurisprudence. "Prejudice" is incapable of
being interpreted in its generic sense and
applied to criminal jurisprudence. The plea
of prejudice has to be in relation to
investigation or trial and not matters
falling beyond their scope. Once the
accused is able to show that there has been
serious prejudice caused to him with
respect to either of these aspects, and that
8 All. Prof. Vipin Saxena Vs. C.B.I./A.C.B. Lko. & Anr.
1177
the same has defeated the rights available
to him under legal jurisprudence, the
accused can seek relief from the court."

34. The petitioner could not point out
as to what disability or detriment in the
protections available to him in relation to
investigation or trial has been suffered by
him by the prosecution sanction order
passed by the Vice-Chancellor and to
satisfy that a failure of justice has been
caused to him by the prosecution sanction
order passed against him.

35. Sanction was accorded by the
Board of Management for prosecution of
the petitioner in its 62nd meeting held on
08.09.2017, keeping in view the opinion of
majority of the members of the Board of
Management. The minutes of the 62nd
emergent meeting held on 08.09.2017
regarding grant of sanction for prosecution
of the petitioner was confirmed by the
Board of Management in its 63rd meeting.
Therefore, the sanction order was approved
by the Board of Management and the
irregularity, if any, for the reason of want
of quorum in the 62nd meeting, stood cured
in the 63rd meeting held on 14.11.2017,
much prior to 05.07.2018, when the trial
Court took cognizance of the offence.
Therefore, there appears to be nothing
which could have caused a failure of justice
in the present case.

36. Moreover, after the trial Court
took
cognizance
of
the
offence
on
05.07.2018, examination-in-chief of PW-1
started on 08.01.2019 and his crossexamination also started on the same date,
which was concluded on 21.01.2019. The
petitioner filed the application for declaring
the prosecution sanction to be invalid only
on 07.03.3019, which was rejected by
means of an order dated 28.05.2019. The
application under Section 482 Cr.P.C.
challenging the validity of the order dated
28.05.2019 was filed on 06.02.2020. The
petitioner could and should have filed the
objections against the sanction order
immediately after passing of the sanction
order and the cognizance order, but he did
not do so. He decided to challenge the
sanction order only after recording of the
examination in chief and cross examination
of PW-1. Although there is no bar against
the petitioner challenging the order of
sanction after recording of statement of the
Sanctioning
Authority,
the
delay
in
challenging the sanction order indicates
that petitioner did not suffer any failure of
justice from the sanction order passed by
the Vice-Chancellor.

37. The learned Counsel for the
petitioner has next submitted that the entire
material was not placed before the
members of the Board of Management and
they did not have the occasion to apply
their mind to the material, which vitiates
the order. He has also submitted that the
sanction order is a verbatim reproduction of
the draft sanction order sent by the C.B.I.,
which indicates a non-application of mind
by the authority passing the order.

38. It appears from the material on
record that it was mentioned in the agenda
that a copy of the letter dated 01.08.2017
received from the C.B.I. had been placed
with the agenda and the Vice Chancellor
had requested all the members of the Board
of Management to send their concurrence /
comments within 14 days. A copy of the
letter dated 01.08.2017 has been annexed
as Annexure No. 1 to counter affidavit filed
on behalf of the University, which contains
a report prepared by the C.B.I. containing
the background of the case, the allegations
made
in
the
F.I.R.,
the
result
of
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation, a summary of investigation,
including relevant extracts of telephonic
conversations,
the
statements
of
the
accused persons and the draft sanction
order.

39. Although one of the members
Smt. Anju Bala had written that she needed
certified copies of the documents alongwith
their enclosures, she did not write that the
enclosures of the letter were not provided
to her. Another member Prof. Vidya Sharda
had communicated that "After a careful
perusal of the relevant documents attached
with the aforementioned letter, in my
capacity as a member of the Board of
Management of the esteemed institution,
B.B.A.U., I give my concurrence for
prosecution of Dr. Vipin Saxena.", which
indicates that the relevant documents had
been with the letter sent to the members of
the Board. No member complained that the
entire material was not provided to him.

40. Therefore, I am unable to accept
the submission of the learned Counsel for
the petitioner that the complete material
was not placed before the members of the
Board of Management.