# Raghvendra Kumar Yadav v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 370
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Application U/S 482 No. 8808 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghvendra-kumar-yadav-v-state-of-u-p-anr-50947
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 196, 197 & 482 - St.
Emblem of India (Prohibition of Improper
Use) Act, 2005 - Sections 3, 6, 7, 8 & 9: -
Application U/s 482 Cr.P.C. - for quashing of the
entire criminal proceedings - Police Security
duty - Recovery Memo - offence of misusing
the Ashok Stambh, the national emblem by
affixing it to the number plate of his motorcycle
- custody of motorcycle by the police - FIR -
investigation - St.ment recorded - charge-sheet
- order of cognizance - court finds that, the
prosecution lacked valid sanction from the
Central Government as required by Section 8 of
the Act - Although the charge-sheet correctly
cited the 2005 Act, the sanction order was
issued by the St. Government under Section 196
of the CrPC, which applies only to IPC offences
and not to those under the 2005 Act - The
Magistrate's
cognizance
order
made
no
reference to the sanction, suggesting it was
never presented - held - the proceedings and
cognizance were invalid, the charge-sheet itself
remains intact, allowing the St. to reinitiate
prosecution after obtaining proper sanction from
the Central Government - The Court quashed
the cognizance order and proceedings against
applicant under Section 3/7 of the St. Emblem
of India Act, 2005 - consequently, application
succeeds and is allowed.
(Para - 49, 50, 51, 52, 53)

Application Allowed. (E-11)

List of referred Cases: -

## Text

370 INDIAN LAW REPORTS ALLAHABAD SERIES
and therefore this is a case where this court,
in exercise of powers under Article 227 of
the Constitution, should interfere to prevent
and nip in the bud misuse of law, hence the
impugned orders are set-aside and this
petition is allowed.
----------
(2024) 3 ILRA 370
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Application U/S 482 No. 8808 of 2023

Raghvendra Kumar Yadav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ravindra Prakash Srivastava

Counsel for the Opposite Parties:
G.A., Sri Jagdev Singh

Criminal Law - Criminal Procedure Code,
1973 - Sections 196, 197 & 482 - St.
Emblem of India (Prohibition of Improper
Use) Act, 2005 - Sections 3, 6, 7, 8 & 9: -
Application U/s 482 Cr.P.C. - for quashing of the
entire criminal proceedings - Police Security
duty - Recovery Memo - offence of misusing
the Ashok Stambh, the national emblem by
affixing it to the number plate of his motorcycle
- custody of motorcycle by the police - FIR -
investigation - St.ment recorded - charge-sheet
- order of cognizance - court finds that, the
prosecution lacked valid sanction from the
Central Government as required by Section 8 of
the Act - Although the charge-sheet correctly
cited the 2005 Act, the sanction order was
issued by the St. Government under Section 196
of the CrPC, which applies only to IPC offences
and not to those under the 2005 Act - The
Magistrate's
cognizance
order
made
no
reference to the sanction, suggesting it was
never presented - held - the proceedings and
cognizance were invalid, the charge-sheet itself
remains intact, allowing the St. to reinitiate
prosecution after obtaining proper sanction from
the Central Government - The Court quashed
the cognizance order and proceedings against
applicant under Section 3/7 of the St. Emblem
of India Act, 2005 - consequently, application
succeeds and is allowed.
(Para - 49, 50, 51, 52, 53)

Application Allowed. (E-11)

List of referred Cases: -

1. Sable Waghire and Co. & ors.Vs U.O.I. & ors.,
(1975) 1 SCC 763,

2. Criminal Petition No. 4270 of 2016, G.B. Athri
Vs Smt. Mangla Gauri, decided on 15.02.2017,

3. Dr. R.K. Balasubramaniam Vs Inspector of
Police, 2013 (3) MWN (Cr.) 96,

4. Abdul Faqir Vs St. of Rajasthan & anr., S.B.
Criminal Misc. (Pet.) No. 2755 of 2015, decided
on 14.09.2017,

5. G.B. Athri Vs Smt. Mangala Gowri, Criminal
Misc. Petition No. 4270 of 2016, decided on
15.02.2017,

(Delivered by Hon'ble J.J. Munir, J.)

This application under Section 482 of
the Code of Criminal Procedure, 1973 (for
short, 'the Code') seeks to quash the
proceedings of Case No. 3558 of 2018,
State v. Raghvendra Kumar Yadav (arising
out of Case Crime No. 2264 of 2016),
under Section 3/7 of the State Emblem of
India (Prohibition of Improper Use) Act,
2005, Police Station - Khalilabad, District
- Sant Kabir Nagar pending on the file of
the Chief Judicial Magistrate, Sant Kabir
Nagar.

2. Heard Mr. Ravindra Prakash
Srivastava,
learned
Counsel
for
the
applicant, Mr. Jagdev Singh, learned
3 All. Raghvendra Kumar Yadav Vs. State of U.P. & Anr.
371
Counsel appearing on behalf of opposite
party no. 2 and Mr. D.K. Srivastava,
learned Additional Government Advocate
appearing on behalf of the State.

3. A First Information Report was
lodged on 12.11.2016 by one J.N. Tripathi,
Sub-Inspector of Police at Police Station -
Khalilabad, District - Sant Kabir Nagar,
alleging in his recovery memo of a bullet
motorcycle
that
on
12.11.2016,
the
informant along with Constable, Umesh
Mishra, was on security duty at the Punjab
National Bank, Main Branch - Khalilabad
and had just reached there when he noticed
a man move close to the Bank on his
motorcycle, which he parked there.

4. A look at the rear side of the
motorcycle showed that it bore no
registration number. Instead, the number
plate had the national emblem of Ashok
Stambh on it. Upon inquiring about the
rider's name and address, he revealed it as
Raghvendra Kumar Yadav, son of Ram
Achal Yadav, a resident of Kuikol colony,
Police Station - Kotwali, Khalilabad,
District - Sant Kabir Nagar. Upon the rider
being asked why he had placed the national
emblem on the number plate, he allegedly
said that it was affixed there for status. He
produced his Driving License that was
valid up to 07.07.2023.

5. The First Information Report goes
on to allege that Raghvendra Kumar Yadav
aforesaid was found misusing the Ashok
Stambh, the national emblem by affixing it
to the number plate of his motorcycle,
which constitutes an offence under Section
3/9 of the State Emblem of India
(Prohibition of Improper use) Act, 2005.
He did not produce any papers relating to
the motorcycle which is an offence under
the Motor Vehicles Act. The applicant was,
accordingly, informed of the offence
committed by him and at 4.00 O' Clock in
the evening, the motorcycle was taken into
custody by the Police. A number of persons
were moving on the spot where the
applicant was apprehended but despite
request, none of those asked to witness the
recovery agreed, citing their business with
the Bank as pre-occupying.

6. The First Information Report
further shows that a report under the Motor
Vehicles Act is being separately presented.
The recovery memo had been drawn up on
the spot, read over and explained. A copy
of the recovery memo was handed over to
Raghvendra Kumar Yadav, the applicant.
The case was investigated by the Police
where statements of the first informant and
Constable, Umesh Mishra were taken
down. After investigation, the Police
submitted the impugned charge-sheet on
10.02.2018 whereon the learned Magistrate
took cognizance on 17.09.2018.

7. Learned Counsel for the petitioner,
Mr. Ravindra Prakash Srivastava points out
that the Registration Certificate of the
motorcycle is on record as Annexure No. 3.

8. This Court may say straightaway
that we do not wish to comment about
those matters because there is nothing
related to the prosecution under the Motor
Vehicles
Act
impugned
here.
The
Registration Certificate, of whatever worth
it is, might be of relevance in the other case
said to have been instituted against the
applicant by the Police on account of riding
the motorcycle, without the necessary
documents or the number plate bearing the
registration number, but not here.

9. This prosecution is limited to the
offence under Section 3/7 of the Emblems
372 INDIAN LAW REPORTS ALLAHABAD SERIES
and Names (Prevention of Improper use)
Act, 1950. About this issue also, it may
remarked at the outset, that the First
Information Report was registered by the
Police for an offence under Section 3/9 of
the State Emblem of India (Prohibition of
Improper Use) Act, 2005 (for short, 'the
Act of 2005'). The offence under the Act of
2005 would be one under Section 3/7 and
not under 3/9 of the Act, aforesaid.

10. During investigation, the Police
have submitted a charge-sheet under
Section 3/7 of the Emblems and Names
(Prevention of Improper Use) Act, 1950
(for short, 'the Act of 1950'). Here the
Section appears to be correctly described
but the statute mentioned in error. The Act
of 1950 was enacted in that year by the
Parliament in exercise of its legislative
power traceable to Entry 49 List 1. The
power was held traceable to Entry 97 of the
said list, as well in Sable Waghire and Co.
& others v. Union of India & others,
(1975) 1 SCC 763 but that is not the point
here. On the same subject, the Act of 2005
is a subsequent legislation enacted by the
Parliament.

11. It is no doubt true that the Act of
2005 does not repeal the Act of 1950, but
vide Section 10 it gives overriding effect to
itself or any Rule made thereunder vis-a-vis
any other Act to the extent that it is
inconsistent with the Act of 2005.

12. Be it as it may, the question in this
application does not squarely arise as to
which of the two enactments would apply,
and if the Act of 1950 has indeed been
repealed. Learned Counsel for the parties,
have not shed much light on the issue,
perhaps since it did not arise as the point
for consideration in this application.

13. Nevertheless, it appears that
looking to the First Information Report, the
case has been registered under the Act of
2005, correctly mentioning the provisions
as Section 3/7 but in the check First
Information Report, the statute has been
incorrectly mentioned as the Act of 1950, a
mistake that has been mechanically carried
forward to the impugned charge-sheet.

14. This Court, therefore, proceeds to
decide this application as one seeking to
quash the prosecution under Section 3/7 of
the Act of 2005.

15. It is on the merits of the matter
submitted by the learned Counsel for the
applicant that the Investigating Officer has
without perusing the material in the case
diary and collecting credible evidence,
charge-sheeted the applicant under Section
3/7 of the Act of 2005.

16. It is urged that the charge-sheet
has been filed in a routine and mechanical
manner, without application of mind. It is
also urged that under Section 8 of the Act
of 2005, the institution of a prosecution is
prohibited without the previous sanction of
the Central Government or any Officer
authorised in this behalf by a general or
special order of the said Government.

17. The learned Counsel for the
applicant has drawn the Court's attention to
the averments in paragraph no. 8 of the
affidavit to say that the Police in this case,
without
obtaining
sanction
of
the
competent Authority,
have
unlawfully
submitted a charge-sheet against the
applicant, whereof cognizance has been
taken by the learned Magistrate, not
noticing the absence of sanction.

18. According to the learned Counsel
for
the
applicant,
this
renders
the
prosecution not maintainable. He has
placed reliance upon the decision of the
3 All. Raghvendra Kumar Yadav Vs. State of U.P. & Anr.
373
Karnataka
High
Court
in
Criminal
Petition No. 4270 of 2016, G.B. Athri v.
Smt.
Mangla
Gauri,
decided
on
15.02.2017, where the order of cognizance
passed by the learned Magistrate was
quashed for want of sanction under the
statute.

19. It is also urged by the learned
Counsel for the applicant, inviting the
Court's attention to paragraph no. 10 of the
affidavit filed in support of the application,
that the prosecution is mala fide because it
all happened in the manner that the
applicant had gone to the Punjab National
Bank, Main Branch, where the informantSub-Inspector illegally demanded money of
the applicant which he refused. This
annoyed the informant so much that he
lodged a First Information Report to harass
the applicant with no truth whatsoever to
the allegations carried therein.

20. It is urged on the strength of the
averments in paragraph no. 11 of the
affidavit that the applicant never had the
Ashok Stambh on the number plate of his
motorcycle. He was falsely implicated on
account of malice.

21. This Court does not propose to go
into the question of malice and, therefore,
vide order dated 16.03.2023, while notice
was issued to the complainant-opposite
party, the order discloses in ample measure
that the Court took note of the submission
alone that the prosecution was not
maintainable prima facie in view of the bar
to its institution without the sanction of the
Central Government though, it must be said
that the reference in that order is made to
the Act of 1950 and the bar to a prosecution
that is mentioned there is one under Section
6 of the aforementioned statute. But, this
does not make any material difference
because under both the statutes the
provisions about necessity of a prior
sanction by the Central Government are
pari materia. Section 6 of the Act of 1950
is pari materia to Section 8 of the Act of
2005.

22. This Court, while passing an
interim order dated 16.08.2023, did call for
an
affidavit
in
answer
from
the
Superintendent of Police, Sant Kabir Nagar
showing
cause
how
the
Supervising
Officers of the Police permitted a chargesheet to be filed without the necessary
sanction under Section 6 the Act of 1950.

23. A report was also called from the
Judicial Magistrate, asking him to indicate
the circumstances under which the absence
of the mandatory sanction was not taken
note of by him, while passing the order
taking cognizance and summoning the
applicant to stand his trial.

24. A personal affidavit was filed on
behalf of the Superintendent of Police, Sant
Kabir
Nagar,
who
seems
to
have
acknowledged the mistake at the level of
the Supervisory Officers of the Police, and
said in his affidavit that a preliminary
inquiry has been ordered in the matter.

25. The counter affidavit filed on
behalf of the State by Pawan Kumar, SubInspector of Police, Police Station -
Kotwali, Khalilabad, District - Sant Kabir
Nagar asserts in paragraph no. 7 that
sanction against the applicant was granted
and
the
Investigating
Officer,
after
collecting credible evidence, filed the
impugned charge-sheet. However, all that
the papers annexed to the counter affidavit
show is the correspondence between the
District Magistrate and the Secretary
(Home), Government of U.P. or the Deputy
374 INDIAN LAW REPORTS ALLAHABAD SERIES
Secretary to the Government and the
Superintendent of Police, Sant Kabir Nagar
regarding grant of sanction to prosecute or
papers being called from the Police to
consider it.

26. It does not appear from any
document annexed to the counter affidavit
dated 29.03.2023 that sanction was granted
to this prosecution, even by the State
Government. The question whether the
State Government were the competent
Government to grant a sanction envisaged
by the Act of 2005 is quite another matter.
The fact that it was not granted until time
the charge-sheet was filed is evident from
C.D. No. 4 dated 10.12.2016 annexed as
C.A. 5 to the charge-sheet. Towards the tail
end of this parcha, it is recorded as follows
by the Investigating Officer:

"अिः अब िक की िमामी िफ्िीर्श, वयान वािी,
वयान गवाह, वनरीक्षण घटना स्थल से अवभयुक्त राघवेन्र कुमार
यािव एस/ओ० श्री रामअचल यािव आर/ओ० कुईकोल पीएस०
को० खलीलावाि, जनपि-सांिकबीरनगर के ववरूद्ध जुमा िारा-3/7
ि स्टेट इम्बलेम आफ इवण्डया (प्रोवहवबर्शन आफ इमप्रापर यूज)
एक्ट-2005 का अपराि वाखूवी साववि है। आरोप-पत्र प्रेवर्ि
करने हेिु अवभयोजन स्वीकृवि आवश्यक है। अवभयोजन स्वीकृवि
प्रिान करने हेिु अलग से ररपोटा िी जा रही है।"

27. To the counter affidavit and the
supplementary
counter
affidavit,
the
applicant has filed a rejoinder affidavit
dated 23.04.2023. Along with this rejoinder
affidavit, a Registration Certificate relating
to the motorcycle has been filed. A
supplementary
counter affidavit
dated
26.04.2023 was later on filed wherein a
copy of a Government Order dated
09.06.2017 has been annexed purporting to
be
the
sanction
for
the
applicant's
prosecution that is impugned here. The
order is one made on behalf of the
Governor duly signed by a Secretary to the
Government, granting a sanction under
Section 196 of the Code, permitting the
applicant's prosecution in the present crime
for the offence punishable under Section
3/7 of the Act of 2005.

28. Mr. D.K. Srivastava, learned
Additional Government Advocate and Mr.
Jagdev Singh, learned Counsel appearing
on behalf of the informant/opposite party
no. 2 have submitted that now that a
sanction has been granted, there is
absolutely no impediment to the taking of
cognizance
by
the
Magistrate
on
17.09.2018.

29. It is emphasized that the order of
sanction is one dated 09.06.2017 whereas
the order of cognizance has been passed on
17.09.2018. The mere fact that there is no
reference to the order of sanction in the
order of cognizance, or even in the formal
part of the charge-sheet, would at best be a
curable regularity. It does not oust the
jurisdiction of the Court to take cognizance
and try the applicant in accordance with
law.

30.

This
Court
has
carefully
considered the submissions advanced on
behalf of both sides and perused the record.
In order to clarify matters further, which
have already been mentioned hereinabove,
we must say that this prosecution is indeed
one under Section 3/7 the Act of 2005 and
the mention Act of 1950, is no more than a
clerical error. It is, particularly, clear from
the formal part of the charge-sheet where
the applicant has been challaned under
Section 3/7 of the Act of 2005 and the fact
that the order of sanction upon which
reliance is placed by the respondents is an
order passed by the State Government on
09.06.2017, sanctioning prosecution under
3 All. Raghvendra Kumar Yadav Vs. State of U.P. & Anr.
375
Section 3/7 of the Act of 2005; not the Act
of 1950.

31. Provisions of Section 3 and 7 of
the Act of 2005 read:

"3.
Notwithstanding
anything
contained in any other law for the time
being in force, no person shall use the
emblem or any colourable imitation thereof
in any manner which tends to create an
impression that it relates to the Government
or that it is an official document of the
Central Government, or as the case may be,
the State Government, without the previous
permission of the Central Government or of
such officer of that Government as may be
authorised by it in this behalf.

Explanation.- For the purposes of
this section, "person" includes a former
functionary of the Central Government or
the State Governments.

7(1) Any person who contravenes
the provisions of section 3 shall be
punishable with imprisonment for a term
which may extend to two years, or with
fine which may extend to five thousand
rupees, or with both or, if having been
previously convicted of an offence under
this section, is again convicted of any such
offence, he shall be punishable for the
second and for every subsequent offence
with imprisonment for a term which shall
not be less than six months, which may
extend to two years and with fine which
may extend to five thousand rupees.

(2) Any person who contravenes
the provisions of section 4 for any wrongful
gain shall be punishable for such offence
with imprisonment for a term which shall
not be less than six months, which may
extend to two years and with fine which
may extend to five thousand rupees."

32. Section 8 of the aforesaid statute
provides:

"8. No prosecution for any
offence punishable under this Act shall be
instituted,
except
with
the
previous
sanction of the Central Government or of
any officer authorized in this behalf by
general or special order of the Central
Government."

33. A plain reading of the provisions
of Section 3/7 together with Section 8 of
the Act of 2005 leads one to the irresistible
conclusion that a prosecution under the said
Act cannot be instituted except with the
previous
sanction
of
the
Central
Government or an Officer authorized in this
behalf by a general or special order of the
said Government.

34. The prohibition carried in Section
8 of the Act of 2005 envisages a bar to the
institution of a prosecution under the Act,
without the previous sanction of the Central
Government, or an Officer authorized in
this behalf by a general or special order.
The bar envisaged under Section 8 is not
about the Court's jurisdiction to take
cognizance without an order of the Central
Government granting previous sanction; it
forbids the institution of proceedings
without a previous sanction. If one were to
compare the language employed by the
legislature in Section 8 of the Act of 2005
with that in Section 197 of the Code, there
is an essential difference.

35. Section 197 of the Code in the
material part reads:

"Prosecution of Judges and
public servants.- (1) When any person
who is or was a judge or Magistrate or a
public servant not removable from his
376 INDIAN LAW REPORTS ALLAHABAD SERIES
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 the
discharge of his official duty, no Court shall
take cognizance of such offence 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; of the Central 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, of the State Government.

Provided that where the alleged
offence was committed by a person referred
to in clause (b) during the period while a
Proclamation issued under clause (1) of
Article 356 of the Constitution was in force
in a State, clause (b) will apply as if for the
expression "State Government" occurring
therein,
the
expression
"Central
Government were substituted;

Explanation.-For the removal of
doubts it is hereby declared that no sanction
shall be required in case of public servant
accused of any offence alleged to have
been committed under section 166A,
section 166B, section 354, section 354A,
section 354B, section 354C, section 354D,
section 370, section 375, section 376,
section 376A, section 376AB, section
376C, section 376D, section 376DA,
section 376DB or section 509 of the Indian
Penal Code (45 of 1860).

(2)
No
Court
shall
take
cognizance of any offence alleged to have
been committed by any member of the
Armed Forces of the Union while acting or
purporting to act in the discharge of his
official duty, except with the previous
sanction of the Central Government"

36. While under Section 197, the bar
is against the Court taking cognizance
without the previous sanction of the
appropriate Government, the bar in Section
10 the Act of 2005 forbids the institution of
a prosecution without the previous sanction
of the Central Government. This is a
cardinal distinction between the nature of
the bar created under the statute here, and
the chief provisions of the Code carrying a
similar provision about sanction in certain
class of cases. There is no further need to
delve
into
the
consequence
of
the
difference here because the point does not
arise.

37. What is of relevance here is the
fact that the charge-sheet has been
presented against the applicant, alleging
commission of an offence under Section
3/7 the Act of 2005 and the Magistrate has
proceeded to take cognizance vide order
dated 17.09.2018, without adverting to the
order of sanction, or the terms thereof, or
the authority by which it was issued.

38. This Court is inclined to think that
the order of sanction that has been placed
on record before this Court, as part of
Annexure No. S.C.A. 1 annexed to the
supplementary
counter affidavit
dated
26.04.2023, was not at all brought to the
Magistrate's notice. May be, it was never
included in the charge-sheet. This is what
the order of cognizance suggests. The order
of cognizance passed by the magistrate on
17.09.2018 reads:

"17-9-18

आज यह आरोप पत्र मय िीगर पुवलस प्रपत्रों के प्राप्त
होकर पेर्श हुआ। अवलोकन वकया गया। अवभ0 के ववरूद्ध प्रथ्ज्ञम
3 All. Raghvendra Kumar Yadav Vs. State of U.P. & Anr.
377
दृष्टया सा० आिार पर िारा 3/7 समप्रविक एवम अनुवचि प्रयोग
वन० अवि0 1950 में प्रसञान वलया जािा है। अपराविक वाि िजा
रवजस्टर हो । वि० 5-11-18 के वलए अवभ0 समन द्वारा िलब हो
।

ह०अ०"

39. The moot question that arises for
consideration in this case is, if the order of
sanction that has been passed by the State
Government on 09.06.2017, qualifies for a
valid sanction under Section 8 of the Act of
2005 so as to entitle the Police to institute
the impugned proceedings?

40. To the face of the order of
sanction passed by the State Government, it
is an order purporting to be made in
exercise of powers by his Excellency, the
Governor under Section 196 of the Code.

41. Now, Section 196 of the Code
relates to something that is quite foreign to
and different from the offence punishable
under Section 3/7 of the Act of 2005.
Section 196 of the Code relates to sanction
of prosecution as regards certain offences
mentioned therein, all of which are
punishable under the Indian Penal Code.
The various Authorities competent to grant
sanction for the specified offences have
been enumerated in Section 196.

42. The provisions of Section 196 of
the Code read:

"Prosecution
for
offences
against the State and for criminal
conspiracy to commit such offence-

(1)
No
Court
shall
take
cognizance of-

(a) any offence punishable under
Chapter VI or under section 153A, section
295A or sub- section (1) of section 505 of
the Indian Penal Code (45 of 1860), or

(b) a criminal conspiracy to
commit such offence, or

(c) any such abetment, as is
described in section 108A of the Indian
Penal Code (45 of 1860),

except with the previous sanction
of the Central Government or of the State
Government.

(1A)No
Court
shall
take
cognizance of-

(a) any offence punishable under
section 153B or sub-section (2) or subsection (3) of section 505 of the Indian
Penal Code (45 of 1860), or

(b) a criminal conspiracy to
commit such offence,

except with the previous sanction
of the Central Government or of the State
Government or of the District Magistrate.

(2)
No
Court
shall
take
cognizance of the offence of any criminal
conspiracy punishable under section 120B
of the Indian Penal Code (45 of 1860),
other than a criminal conspiracy to commit
an
offence
punishable
with
death,
imprisonment
for
life
or
rigorous
imprisonment for a term of two years or
upwards, unless the State Government or
the District Magistrate has consented in
writing to the initiation of the proceedings:

Provided that where the criminal
conspiracy is one to which the provisions
of section 195 apply, no such consent shall
be necessary

(3) The Central Government or
the
State
Government
may,
before
according sanction under sub-section (1) or
sub-section
(1A)
and
the
District
Magistrate may, before according sanction
under sub-section (1A) and the State
Government or the District Magistrate may,
before giving consent under sub-section
(2), order a preliminary investigation by a
378 INDIAN LAW REPORTS ALLAHABAD SERIES
police officer not being below the rank of
Inspector, in which case such police officer
shall have the powers referred to in subsection (3) of section 155."

43. There is nothing discernible across
the length and breadth of Section 196 of the
Code that may give rise to an inference that
the Central Government or the State
Government, or in certain matters the
District Magistrate, empowered to grant
sanction in respect of particular offences
mentioned therein and punishable under the
Indian Penal Code, have anything to do
with the power to grant a sanction to
prosecute for an offence punishable under
the Act of 2005. The said power is
exclusively conferred upon the Central
Government by Section 8 of the Act of
2005 or upon such other Officer as the
Central Government may specify by a
general or special order. It is not the case of
the State that any Officer of the State
Government has been authorized by the
Central Government, in accordance with
the provisions of Section 8 of the Act of
2005, to grant sanction for a prosecution
under the Act.

44. Apparently, the State Government
have no authority to grant sanction
envisaged under Section 8 of the Act of
2005.
It
is
exclusively
the
Central
Government or any Officer authorized by
them in this behalf, who can grant sanction
for a prosecution regarding an offence
punishable under the Act of 2005.

45. A perusal of the order dated
09.06.2017,
passed
by
the
State
Government
granting
sanction
under
Section 196 of the Code, shows that the
order
has
been
passed
mechanically
without application of mind about the
Government's
jurisdiction
or
their
Authority under the law in the exercise of
which sanction was required in the present
case. If the matter had been considered by
the State Government, this Court has no
reason to believe that they would ever
invoke a non existent power under Section
196 of the Code to grant sanction for a
prosecution under the Act of 2005.

46. It needs be pointed out that the
order of sanction in this case passed by the
State Government in exercise of power
under Section 196 of the Code is not
merely one that mentions a wrong
provision of the law. It is an order of
sanction passed without jurisdiction for
reasons already indicated hereinabove.
Interpreting the para materia provisions of
Section 6 of the Act of 1950 in a slightly
different context on facts, the exclusivity of
power to grant sanction inhering in the
Central
Government
or
the
Officer
authorized by them, was emphasized by the
Madras
High
Court
in
Dr.
R.K.
Balasubramaniam v. Inspector of Police,
2013 (3) MWN (Cr.) 96. In Dr. R.K.
Balasubramaniam
(supra)
it
was
observed:

"4. In the Petition, it was stated
that no sanction was obtained for the
prosecution as contemplated under the
Emblem Act and therefore, he must be
discharged. The Petition was dismissed on
the ground that the direction issued by the
Senior Economic Adviser for Government
of India to the Chief Secretary of
Government of Tamil Nadu to investigate
the matter and to take action, would
amount to sanction. This Order is under
challenge in this Revision Petition.

5. Under Section 6 of the
Emblems and Names (Prevention of
Improper Use) Act, 1950, no prosecution
for any offence punishable under this Act
3 All. Raghvendra Kumar Yadav Vs. State of U.P. & Anr.
379
shall be instituted, except with the previous
sanction of the Central Government or of
any Officer authorized in this behalf by
General or Special Order of the Central
Government.
Therefore,
in
order
to
maintain prosecution, it must be shown that
sanction to prosecute was obtained from
the Central Government or from any
Officer
authorized
by
the
Central
Government.

5.1. It is the contention of the
Accused that it is only the Secretary,
Department of Consumer Affairs, New
Delhi, is the Competent Authority to grant
sanction and not the Senior Economic
Adviser, Ministry of Consumer Affairs.
Even assuming that the Senior Economic
Adviser is the Sanctioning Authority, the
Order issued directing the Government of
Tamil Nadu to take action would not
amount to sanction to prosecute is the
second contention.

5.2. The records produced on the
side of the Accused, procured using the
provisions of Right to Information Act, go
to show positively that it is only the
Secretary,
Department
of
Consumer
Affairs, New Delhi, who has been
designated to issue sanction for prosecution
and that the Senior Economic Adviser,
Ministry of Consumer Affairs, is not the
Sanctioning Authority. Therefore, it is clear
that sanction for prosecution has not been
given by the Competent Authority.

6. The next question is whether
the alleged communication issued by
Senior Economic Adviser to Government
of India would amount to sanction. The
communication issued by the Senior
Economic Adviser is only a direction to
take action and not a sanction to prosecute.
Therefore,
the
contention
that
this
communication itself would amount to
grant of sanction is not correct. When the
Senior Economic Adviser is not competent
to issue sanction, the proceedings issued by
him is not valid."

47. In Abdul Faqir v. State of
Rajasthan and another, S.B. Criminal
Misc. (Pet.) No. 2755 of 2015, decided on
14.09.2017, it was held by Rajasthan High
Court:

"10. It is clear that as per the
Section 8 of the Act of 2005, no
prosecution for any offence punishable
under this Act shall be instituted without
sanction of the Central Government or any
authorized officer and it is an admitted case
that no such sanction is there. In light of the
clear
legislative
intention,
without
prosecution under the Section 8 of the Act
of 2005, the offence under Section 3, 4 & 5
cannot be carried on."

48. In G.B. Athri v. Smt. Mangala
Gowri, Criminal Misc. Petition No. 4270
of 2016, decided on 15.02.2017, it was held
by the Karnataka High Court:

"In
the
instant
case,
the
accusations pertain to the improper use of
emblem in contravention of the provisions
of Section 3 of The Emblems and Names
(Prevention of Improper Use) Act, 1950. It
has nothing to do with the performance of
the official acts. The offences under this
Act are not restricted to public servants.
The Act is applicable to all and sundry and
as applicable to the whole of India. Section
8 of the Act, 2005 specifically provides that
"no prosecution for any offence punishable
under this Act shall be instituted, except
with the previous sanction of the Central
Government or of any officer authorized in
this behalf by general or special order of
the Central Government." Section 10 of the
Act, 2005 has over-riding effect over all
380 INDIAN LAW REPORTS ALLAHABAD SERIES
other provisions of law. Section 10 reads as
under:-

"The provisions of this Act or any
Rule made thereunder shall have effect
notwithstanding
anything
inconsistent
therewith contained in any other enactment
or instrument having effect by virtue of
such enactment."

8. In view of the above provisions
the
prior
sanction
of
the
Central
Government is a sine qua non for
institution of prosecution of the petitioner
for the alleged offence under section 7 of
the Act. As the prosecution has been
initiated without compliance of the said
mandatory requirement, the cognizance
taken by the learned Magistrate and the
consequent proceedings therefore cannot be
sustained in the eye of law and as a result,
the petition deserves to be allowed."

49. The conclusion in this case, on the
facts noticed and the provisions of the law
applicable is, therefore, inescapable and,
that is, that the order of cognizance dated
17.09.2018 and the impugned proceedings
pending on the file of the Chief Judicial
Magistrate, Sant Kabir Nagar cannot be
permitted to continue and have to be
quashed.

50. It is, however, clarified that what
this Court proposes to quash are the order
of cognizance and the proceedings before
the learned Magistrate. We do not propose
to quash the charge-sheet. It will be open to
the State to proceed against the applicant in
accordance with law, should they so elect.

51. Before parting with the matter,
this Court wishes to place on record our
concern about the fact that neither the
learned
Chief
Judicial
Magistrate
concerned, who took cognizance, nor the
Superintendent
of
Police
or
other
Supervisory Officer, who approved the
charge-sheet, took note of the provisions
regarding sanction carried in the Act of
2005. What is all the more concerning is
that the State Government granted sanction
vide order dated 09.06.2017, blissfully
ignorant of the fact that the power to grant
sanction for an offence punishable under
the Act of 2005 is vested in the Central
Government; not the state government.
This is not expected to happen where there
is a department of law to assist the
Government.

52. In the circumstances, this
application succeeds and is allowed. The
impugned proceedings of Criminal Case
No. 3558 of 2018, State v. Raghvendra
Kumar Yadav (arising out of Case Crime
No. 2264 of 2016) under Section 3/7 of the
State Emblem of India (Prohibition of
Improper Use) Act, 2005, Police Station -
Khalilabad, District - Sant Kabir Nagar
pending
before
the
Chief
Judicial
Magistrate, Sant Kabir Nagar, including the
order of summoning dated 17.09.2018, are
hereby quashed.

53. It is made clear that the chargesheet has not been quashed and it will be
open to the respondents to proceed afresh,
in accordance with law, after complying
with the provisions of Section 8 of the Act
of 2005.
---------
(2024) 3 ILRA 380
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2023

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482 No. 18824 of 2023