# Rakesh Babu v. The U.P. Rajkiya Nirman Nigam Ltd. & Anr

- **Citation:** (2024) 2 ILRA 1526
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-15
- **Case number:** J. Criminal Misc. Writ Petition No. 248 of 2024
- **Bench:** Mrs. Sangeeta Chandra, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-babu-v-the-u-p-rajkiya-nirman-nigam-ltd-anr-51287
- **Pages:** 13

## Headnote

Criminal Law - The Prevention of
Corruption Act, 1988 - Section 19 -
Quashing of Prosecution Sanction Order Denied
The Allahabad High Court dismissed the writ
petition challenging the prosecution sanction
order dated 26.06.2023 under Section 19 of the
Prevention of Corruption Act, 1988, holding that
such challenges are not maintainable at the pretrial stage. The court emphasized that the
validity
of
the
sanction
order,
including
compliance
with
procedural
requirements,
should be assessed during trial after evidence is
presente (Paras 11, 42-43)

Non-Applicability of Section 17A of the
Prevention of Corruption Act The court
rejected the petitioner's argument that prior
approval under Section 17A of the Prevention of
Corruption Act, 1988, was mandatory, as the
alleged offence of amassing disproportionate
assets under Section 13(1)(b) was not directly
relatable to recommendations or decisions made
in discharge of official duties. Section 17A
applies only to offences linked to official
functions, not to illicit enrichment. (Paras 14,
24, 30-31)
Prior Disciplinary Exoneration Not a Bar to
Criminal Prosecution The court held that the
petitioner's exoneration in earlier disciplinary
proceedings (concluded on 06.06.2023) did not
preclude criminal prosecution on the same
charges, distinguishing Ashoo Surendranath
Tewari Vs Deputy Superintendent of Police
(2020). The court clarified that disciplinary
proceedings,
based
on
preponderance
of
probability, differ from criminal trials requiring
proof beyond reasonable doubt. (Paras 33-34,
39-41)

Judicial
Precedents
on
Sanction
and
Investigation Citing Nara Chandrababu Naidu Vs
St. of Andhra Pradesh (2024), Yeshwanth Sinha
Vs CBI (2020), and Yash Kumar Verma Vs St. of
U.P. (2023), the court underscored that Section
17A's requirement for prior approval does not
apply to offences unrelated to official duties.
The court also relied on CBI Vs Ashok Kumar
Aggarwal (2013) to hold that sanction orders'
validity must be tested during trial. (Paras 15,
24-26,
42)
2 All. Rakesh Babu Vs. The U.P. Rajkiya Nirman Nigam Ltd. & Anr.
1527
Cases Cited:

## Text

_Characters 0–39,880 of 44,888. This is a partial read: ask again with offset=39880 for what follows._

1526 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Taking into the consideration of
the deposition of P.W.1, P.W.2, P.W.3 and P.W.4
and in the light of law laid down by the Hon'ble
Apex Court in the aforesaid decisions, there is
prima facie evidence to summon the revisionist,
namely, Raju Patel for trial under Sections 304/34
and 506 I.P.C.

19. From the above discussions, it can be
concluded that the Additional Sessions Judge/Fast
Track Court No.1, Maharajganj has after being
satisfied with the evidence on record summoned
the accused as per provision under Section 319
Cr.P.C. The trial Court has not committed any
illegality, irregularity or impropriety in passing the
impugned order. Therefore, I do not find any merit
in the revision which is liable to be dismissed and
is hereby dismissed accordingly.

20. It is hereby made clear that I have not
expressed any opinion on the merits of the case
and the veracity or deposition of the witnesses.
The trial Court is free to give its own findings and
may decide the case in question, in accordance
with law, without being prejudiced by any
observation made in this order.
----------
(2024) 2 ILRA 1526
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.02.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA,
J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I,
J.

Criminal Misc. Writ Petition No. 248 of 2024

Rakesh Babu ...Petitioner
Versus
The U.P. Rajkiya Nirman Nigam Ltd. & Anr.
 ...Respondents

Counsel for the Petitioner:
Shireesh Kumar, Utkarsh Kumar
Counsel for the Respondents:
Shishir Jain

Criminal Law - The Prevention of
Corruption Act, 1988 - Section 19 -
Quashing of Prosecution Sanction Order Denied
The Allahabad High Court dismissed the writ
petition challenging the prosecution sanction
order dated 26.06.2023 under Section 19 of the
Prevention of Corruption Act, 1988, holding that
such challenges are not maintainable at the pretrial stage. The court emphasized that the
validity
of
the
sanction
order,
including
compliance
with
procedural
requirements,
should be assessed during trial after evidence is
presente (Paras 11, 42-43)

Non-Applicability of Section 17A of the
Prevention of Corruption Act The court
rejected the petitioner's argument that prior
approval under Section 17A of the Prevention of
Corruption Act, 1988, was mandatory, as the
alleged offence of amassing disproportionate
assets under Section 13(1)(b) was not directly
relatable to recommendations or decisions made
in discharge of official duties. Section 17A
applies only to offences linked to official
functions, not to illicit enrichment. (Paras 14,
24, 30-31)
Prior Disciplinary Exoneration Not a Bar to
Criminal Prosecution The court held that the
petitioner's exoneration in earlier disciplinary
proceedings (concluded on 06.06.2023) did not
preclude criminal prosecution on the same
charges, distinguishing Ashoo Surendranath
Tewari Vs Deputy Superintendent of Police
(2020). The court clarified that disciplinary
proceedings,
based
on
preponderance
of
probability, differ from criminal trials requiring
proof beyond reasonable doubt. (Paras 33-34,
39-41)

Judicial
Precedents
on
Sanction
and
Investigation Citing Nara Chandrababu Naidu Vs
St. of Andhra Pradesh (2024), Yeshwanth Sinha
Vs CBI (2020), and Yash Kumar Verma Vs St. of
U.P. (2023), the court underscored that Section
17A's requirement for prior approval does not
apply to offences unrelated to official duties.
The court also relied on CBI Vs Ashok Kumar
Aggarwal (2013) to hold that sanction orders'
validity must be tested during trial. (Paras 15,
24-26,
42)
2 All. Rakesh Babu Vs. The U.P. Rajkiya Nirman Nigam Ltd. & Anr.
1527
Cases Cited:

1. Romesh Lal Jain Vs Naginder Singh Rana,
2006 (1) SCC 294 (Para 7)

2. CBI Vs Ashok Kumar Aggarwal, (2013) 15
SCC 222 (Paras 8, 42)

3. Kanhaiya Lal Saraswat Vs St. of U.P., [2021 (116)
ACC 815] (Para 11)

4. Rajeev Kumar Singh Vs St. of U.P., 2020 AIR Online
447 (Paras 11, 12, 42)

5. Yash Kumar Verma Vs St. of U.P., CRLP 2372 of
2023 (All HC, 14.07.2023) (Paras 11, 42)

6. Nara Chandrababu Naidu Vs St. of Andhra
Pradesh, 2024 SCC OnLine SC 47 (Paras 15, 24)

7. Yeshwanth Sinha Vs CBI, (2020) 2 SCC 338 (Paras
18, 25)

8. St. of Rajasthan Vs Tejmal Chaudhary, 2021 SCC
OnLine SC 3477 (Paras 26, 29)

9.
Ashoo
Surendranath
Tewari
Vs
Deputy
Superintendent of Police, Criminal Appeal No. 575 of
2020 (SC, 08.09.2020) (Para 34)

10. Matajog Dobey Vs HC Bhari, AIR 1956 SC 44
(Para 23)

11. Shambhu Mishra Vs St. of U.P., 1997 (5) SCC 326
(Para 21)

12. St. of U.P. Vs Parasnath Singh, 2009 (6) SCC 372
(Para 21)

13. Subramanyam Swami Vs Manmohan Singh,
(2012) 3 SCC 64 (Para 29)

14. Subramanyam Swamy Vs Director, CBI, (2014) 8
SCC 682 (Para 29)

(Delivered by Hon'ble Mrs. Sangeeta Chandra,
J. & Hon'ble Ajai Kumar Srivastava-I, J.)

(1) Heard the learned counsel for the
petitioner and the learned A.G.A. appearing for
the State.

(2) This writ petition has been filed with
the following main prayers:-

"(i) issue a writ, order or direction in the
nature of Certiorari quashing the order dated
26.06.2023 as contained in Annexure No.8 to
this writ petition and declare the petitioner
entitled to all consequential service benefits.

(ii) issue any other appropriate writ, order
or direction which is deemed just and proper in
the nature and circumstances of the case in
favour of the petitioner in the interest of justice
along with the cost of this writ petition."

(3) Such relief has been sought on the
grounds (as mentioned in the writ petition)
that the impugned order dated 26.06.2023
has been passed in violation of mandatory
provisions of Section 19 of the Prevention
of Corruption Act and ignoring the fact that
the petitioner has not committed any criminal
misconduct within the meaning of Section 13
(1) (b) and Section 13 (2) of the Prevention of
Corruption Act, 1988 (hereinafter referred as
the Act of 1988).

(4) It has also been stated that initially a
Departmental Inquiry was held against the
petitioner on the basis of Charge-sheet dated
14.09.2021 wherein a similar charge was
framed regarding expenditure of 124% more
than his actual income, a copy of which has
been filed as Annexure no.2 to the petition. The
allegation was that during the check period with
effect from 01.01.2007 to 31.12.2011, the
petitioner's expenditure on himself and his
family members and dependents and also
acquisition of immovable and Movable
property worth more than his known sources
of income i.e. his income from all sources
was Rs.42,92,116/- whereas he had spent
Rs.96,38,455/-.

(5) In pursuance of the Charge-sheet,
the petitioner had submitted his reply
1528 INDIAN LAW REPORTS ALLAHABAD SERIES
which was considered by the Inquiry
Officer who exonerated him from the said
charge.
The
Enquiry
Report
dated
11.11.2021 has been filed as Annexure-3 to
the writ petition. In the Enquiry Report, the
Enquiry Officer had found that during
check period (with effect from 01.01.2007
to 31.12.2011) the petitioner earned a total
of Rs.35,20,785/- whereas his wife was
making Stuffed Toys and Garments and
doing Share Trading and had also sold off
Gold jewellery and taken a loan of Rs.10
lacs and her income during the check
period was Rs.65,69,613/- and therefore his
total income was more than what he had
spent. The Managing Director had accepted
such report on 06.06.2023 and concluded
the
Disciplinary
Proceedings
on
16.06.2023. However, on the very next day
i.e. on 07.06.2023, the Opposite party no.2
again passed an order instituting a fresh
inquiry on the same charge and evidence.
The Charge-sheet was issued to him on
16.06.2023 containing only one charge.
The petitioner challenged the order dated
07.06.2023
and
Charge-sheet
dated
16.06.2023 in Writ-A No.6261 of 2023
[Rakesh Babu Vs. the U.P. Rajkiya Nirman
Nigam Ltd. and another], in which this
Court granted interim protection to him on
24.08.2023 and stayed further proceedings
in pursuance of impugned orders. Not
being satisfied, the respondent No.2 has
also passed an order on 26.06.2023 giving
Prosecution Sanction under Section 197 of
the Prevention of Corruption Act, in a
matter identical to the subject matter of the
Charge-sheet
dated
14.09.2021
and
16.06.2023.

(6) In the order dated 26.06.2023 a
reference has been made to letters of the
State Government dated 20.06.2023 and
26.05.2023, on the basis of Investigation
Report No.A-143 of 2021 where the
Vigilance Department had prima facie
found evidence of commission of offence
under Section 13 (1) (b) read with Section
13 (2) of the Prevention of Corruption Act.

(7) It has been stated in the writ
petition that in the case of Romesh Lal
Jain Vs. Naginder Singh Rana and others
reported in 2006 (1) SCC 294, the
Supreme Court has held that Sanctioning
Authority has to take a decision as per the
opinion of the Law Department but the
order dated 26.06.2023 does not show that
any legal opinion has been sought in the
matter from the Law Department.

(8) It has also been stated in the writ
petition that the Supreme Court in the case
of Central Bureau of Investigation Vs.
Ashok Kumar Aggarwal reported in
(2013) 15 SCC 222, laid down the
Guidelines that have to be mandatorily
followed while considering the sanction for
prosecution.
In
pursuance
of
such
Guidelines,
the
Central
Vigilance
Commission has issued a Circular on
25.05.2015 wherein it has been provided
that while considering the proposal for
sanction of prosecution, the Guidelines as
given in the judgment of Ashok Kumar
Aggarwal should be followed. A copy of
the judgment rendered in the Ashok Kumar
Aggarwal has been filed as Annexure No.9
to the petition.

(9) The Guidelines as mentioned in
the Ashok Kumar Aggarwal provide that
the prosecution must send the entire
relevant
record
to
the
Sanctioning
Authority and the Sanctioning Order must
show that the Sanctioning Authority has
been made aware on all relevant Facts /
Materials and has applied its mind before
giving such sanction. A copy of the
Circular dated 25.05.2015 issued by the
2 All. Rakesh Babu Vs. The U.P. Rajkiya Nirman Nigam Ltd. & Anr.
1529
Central Vigilance Commission has been
filed as Annexure No.10 to the writ
petition.

(10) It has been stated in the writ
petition that the impugned order dated
26.06.2023 issued by the Opposite party
no.2 has been issued on the same set of
facts and evidence which was taken into
consideration by the Enquiry Officer and
the
Opposite
party
no.2
when
the
Disciplinary Proceedings were concluded
against
the
petitioner
without
any
punishment order.

(11) A preliminary objection has been
raised by the learned counsel appearing on
behalf of the State-respondents that the writ
petition praying for quashing of the
prosecution sanction granted under Section
197 of the Cr.P.C. and Section 19 of the
Prevention of Corruption Act, is not
maintainable and he has referred to
judgment rendered by Co-ordinate Benches
of this Court in the case of Kanhaiya Lal
Saraswat Vs. State of U.P. reported in
[2021 (116) ACC 815]
decided on
18.06.2021 and judgment rendered in the
case of Rajeev Kumar Singh Vs. State of
U.P. passed in Criminal Misc. Writ Petition
No.25382 of 2020 and other connected
matters
decided
on
21.01.2021
and
judgment rendered by a Division Bench on
14.07.2023 in the case of Yash Kumar
Verma Vs. State of U.P. and others.

(12) Learned counsel for the
petitioner during the course of arguments
has also referred to the interim order passed
by a Co-ordinate Bench of this Court on
23.01.2024, where the Court had noted the
arguments made by the learned counsel for
the petitioner that the Provisions of Section
17A of the Act of 1988 had not been
followed and consequently there was no
sanction in the eye of law and the judgment
rendered by this Court in Rajeev Kumar
Singh Vs. State of U.P. would not come in
the way of maintainability of the writ
petition.

(13) Learned counsel for the
petitioner has pointed out the order passed
by this Court earlier on 23.01.2024 in this
petition. The Division Bench passed the
order on 23.01.2024 which is being quoted
hereinbelow:-

"Supplementary affidavits filed today
are taken on record.

Petitioner is permitted to implead the
State authorities as party in the writ
petition, during course of the day and
provide copy to learned A.G.A.

The question is as to whether the
provisions of Section 17A of the Prevention
of Corruption Act, 1988 have been adhered
or not, as the submission is that there is no
adherence
to
the
said
provision,
consequently, there is no sanction in the
eyes of law, and accordingly the Division
Bench judgment in Rajeev Kumar Singh Vs.
State of U.P. & others, (Misc Bench
No.25382 of 2020) AIR Online All 447,
does not come in the way of maintainability
of the writ petition.

All pleas are open for consideration
on the next date. Learned counsel may
address the court on the aforesaid issues.

List on 12th February, 2024, as fresh."

(14) Heard the learned counsel for the
petitioner at some length and we have also
perused the provisions of Section 17A of
the Prevention of Corruption Act, 1988,
which is being quoted hereinbelow:-

"17A.
Enquiry
or
Inquiry
or
investigation of offences relatable to
recommendations made or decision taken
1530 INDIAN LAW REPORTS ALLAHABAD SERIES
by public servant in discharge of official
functions or duties.-No police officer
shall conduct any enquiry or inquiry or
investigation into any offence alleged to
have been committed by a public servant
under this Act, where the alleged offence
is relatable to any recommendation made
or decision taken by such public servant in
discharge of his official functions or
duties" (Emphasis supplied by us)

(15) In Nara Chandrababu Naidu
Versus State of Andhra Pradesh and
another 2024 SCC online SC 47 A
Division
Bench
of
the
Court
was
considering the challenge by the appellant
to the initiation of criminal proceedings
against him and his detention in connection
with the same by the respondent State .
Allegations were made against him for
commission of offences under various
Sections of the I.P.C. and Section 12 and
Section 13 (2) read with Section 13 (1) (c)
(d) of the Prevention of Corruption Act,
1988. The said offences were alleged to
have been committed between the years
2015 to 2019 during which period he was
Chief Minister of the State of Andhra
Pradesh. Initially FIR was lodged on 9th
December 2021 against 36 persons in
which the appellant was not included. The
offences related primarily to siphoning of
public funds. The list of accused persons
was
subsequently
expanded
and
the
appellant was also arraigned as an accused
before the Special Judge, (SPE and ACB
cases). The appellant along with a former
minister of Andhra Pradesh cabinet who
was also arraigned applied before the High
Court for quashing of the FIR implicating
them invoking the jurisdiction of the court
under Section 482, Cr.P.C. The legality of
the remand order was also challenged in the
same petition. The petition was rejected.
The appeal was filed before the Supreme
Court against dismissal of the 482 petition
by the High Court.

(16) Primarily the allegation against
the appellant was of facilitating diversion
of public money of around 370 crores of
rupees which was to be used for setting up
of six clusters of Skill Development
Centres in Andhra Pradesh. During the
course of investigation in the FIR it was
discovered that certain shell companies
were made payments on the basis of
invoices issued by them without providing
any service and that they were used as
vehicles for diverting funds. The allegation
against the appellant was that he had fast
tracked the project and approved the cost
estimation with criminal intent and by
pursuing the government officers he had
ensured release of ₹370, crores to such
companies on nomination basis without
following
any
tender
process.
Misappropriation of government funds
through corrupt and illegal methods was
alleged and abuse of official position was
attributed to the appellant. It was alleged
that by abusing his official position, he had
fraudulently committed criminal beach of
trust with a common intention to cause
wrongful loss to the government exchequer
by allowing the accused to divert APS SDC
funds by using fake invoices as genuine
ones, for the purpose of cheating through
shell, defunct companies without providing
materials/services to the APS SDC -
Siemens project.

(17) On behalf of the appellant, the
main argument which was made before the
High Court was of non-compliance of
Section
17A
of
the
Prevention
of
Corruption Act, 1988 in implicating the
appellant under Section 12, 13 (2) read
with section 13 (1) (c) and (d) of the Act of
1988. It was argued that absence of prior
2 All. Rakesh Babu Vs. The U.P. Rajkiya Nirman Nigam Ltd. & Anr.
1531
approval as mandated under Section 17 A
of the Act of 1988, vitiated the conduct of
enquiry or inquiry or investigation; the
initiation and continuation of investigation
in the FIR including various investigative
steps of adding the appellant as an accused
and arresting him and the remand of the
appellant into custody, pursuant to the
orders passed by the Special Court. It was
argued that Section 17A of the Prevention
of Corruption Act which was introduced
with effect from 26th July 2018, interdicts

"- - any enquiry or inquiry or
investigation into an offence to have been
committed by public servant -- without
previous approval of functionaries specified
in clauses (a) (b) or (c) as the case maybe,
the only exception being where a public
servant is apprehended red-handed.

(18) It was argued that Section 17A
constitutes a complete legal bar to the very
initiation of any enquiry, inquiry or
investigation as was noted by the Supreme
Court in the case of Yeshwanth Sinha
Versus Central Bureau of Investigation
reported in (2020) 2 SCC 338; Section 17
A uses the phrase "any offence" hence, the
requirement of obtaining prior approval
under Section 17A is applicable to all
offences, and not just offences under
Prevention of Corruption Act and even
investigation for offences under the I.P.C.
cannot be countenanced as the basic
material for constituting both kinds of
offences is the same. It was also argued that
a legal bar to prosecution is a valid ground
for quashing the proceedings as held by the
Supreme Court in the case of R. P. Kapoor
Versus State of Punjab and State of
Haryana versus Bhajan Lal.

(19) Both the judges constituting the
Division Bench in Nara Chandrababu
Naidu (Supra), gave differing opinions but
in both such opinions the object of
introducing
section
17A
and
the
consequences of not taking prior approval
in conducting any enquiry, inquiry or
investigation have been discussed in detail.

(20) After quoting Section 17A which
was introduced in the statute book with
effect from 26th July 2018, Justice Anirudh
Bose has observed in paragraph 12 and 13
that Section 17A postulates prior approval
from the appointing authority in relation to
any enquiry, inquiry or investigation under
the 1988 Act. While the expression Inquiry
has been defined in the 1973 Code, there is
no specific definition of the word 'Enquiry'.
The
Concise
Oxford
English
Law
Dictionary, (revised 10th edition), defines
the said expression as "an act of asking for
an information, it is commencement of an
active search to ascertain the truth or
veracity of an alleged wrongful act". In
ordinary perception, enquiry by police
officer would imply positive exercise for
searching certain details or particulars
pertaining to allegations of commission of
an offence by an accused person or a set of
accused persons.

(21) After referring to the counsel for
the
Appellant's
argument
regarding
Standard
Operating
Procedure
for
processing cases under Section 17A of the
1988 Act, Justice Bose referred to a
Department of Personnel and Training's
Office Memo dated 3.9.2021 which records
in detail how the aforesaid provision would
apply and it mentions that enquiry for the
purposes of this SOP means any action
taken, for verifying as to whether the
information pertains to the commission of
an offence under the Act. The court
disagreed with the observations made by
the High Court citing judgements in the
1532 INDIAN LAW REPORTS ALLAHABAD SERIES
case of Shambhu Mishra Versus State of
U.P. 1997 (5) SCC 326; and the State of
U.P. Versus Parasnath Singh 2009 (6)
SCC 372; that the protection of sanction
sought by the accused persons cannot be
applied because when a public servant is
alleged to have committed the offence of
fabrication of records or misappropriation
of public funds, it cannot be said that he
acted in discharge of his official duty.
Obviously, it cannot be said that such a
conduct on the part of a public servant can
be related to his official duties.

(22) Justice Bose was of the opinion
that judgement rendered in Shambhunath
Misra and Paras Nath Singh (Supra), relate
to interpreting the provisions of Section
197 of the 1973 Code. The requirement of
previous Sanction contemplated in Section
197 of the 1973 Code comes at the stage of
taking cognizance of an offence. Thus, a
judicial authority in such a context has the
advantage of coming to some form of
opinion, as to whether the offending act can
be said to have been committed in the
discharge of official duty or not by merely
looking at the nature of allegations in the
complaint. If it was found impossible to
conclude that the action has been done by
the accused while in discharge of official
duty, the judicial authority can proceed at
the stage of taking cognizance by holding
that requirement for taking sanction is not
necessary at all.

(23) Justice Bose relied upon the
observations made by the Supreme Court in
Matajog Dobey versus HC Bhari (AIR,
1956, Supreme Court Court 44) to say that
the need for sanction under Section 197 of
the Cr.P.C. must be considered, not as soon
as the complaint is lodged and on the
allegations contained therein, but at the
time of taking cognizance or at any stage of
the proceedings where the Court is required
to consider the question whether the case
against the accused to be proved against
him relates to acts done or purportedly
done by him in the execution of his duty.
The complaint may not disclose that the act
constituting the offence was done or
purported to be done in the discharge of
official duty; but facts subsequently coming
to light on a police or judicial enquiry, or
even in the course of the prosecution or
Evidence at the trial, may establish the
necessity for sanction. Whether sanction is
necessary or not, may have to be
determined from stage to stage. The
necessity may reveal itself in the course of
the progress of the case. The requirement of
taking sanction under section 19 of the
1988 Act also is at the same stage.

(24) However, Justice Anirudh Bose
in his judgement has distinguished the
question of sanction obtained under section
197 of the Cr.P.C. or Section 19 of the 1988
Act from that of section 17 A of the Act of
1988. He observed thus:-

"Section 17A of the 1988 Act imposes
restriction on police officer at the enquiry
stage itself from proceeding against a
public servant in relation to any offence,
alleged to have been committed by him,
relatable to any recommendation made or
decision taken by such public servant
(emphasis
added),
without
previous
approval of the authorities, stipulated in
the said section. We do not think that cases
arising out of Section 197 of the 1973 Code
would
give
proper
guidance
for
interpreting the provisions of Section 17A
of the 1988 Act because in the cases under
section 197, the decision on requirement
for sanction is to be taken at the stage of
taking cognizance. Thus, there is inbuilt
scope of application of judicial mind to
2 All. Rakesh Babu Vs. The U.P. Rajkiya Nirman Nigam Ltd. & Anr.
1533
assess, at least prima facie , if analysed act
falls within the discharge of official duty or
not. Under the provisions of Section 17A of
the 1988 Act, there is no scope of judicial
application of mind in determining if the
act of making recommendation or taking
decision is intertwined with the discharge
of official duty or function or not.
Moreover, the qualified embargo therein is
on the police officer on the point as to
assessing whether offending act is in
discharge of official duty or not. Having
regard to the nature of duties of a police
officer, he is less equipped to asses that
factor, which involves some form of judicial
application of mind."

Section 19 of the 1988 Act requires the
court to satisfy itself whether such sanction
stated therein has been taken at the stage of
taking cognizance. So far as act of a public
servant in making recommendation or taking
decision in discharge of official duties are
concerned, an entry check, prior in time has
been contemplated for the investigating
agencies.

The requirement of taking prior approval
could arise at that stage, being the beginning or
commencing of the enquiry, inquiry or
investigation.

(25) Justice Bose while considering the
legality of a proceeding which was started
without complying with the requirement of the
previous approval under Section 17 A of the
1988 Act, referred to the judgement rendered by
the Supreme Court in Yeshwanth Sinha Versus
Central Bureau of investigation through its
Director reported in 2020 (2) SCC 388, where
in the concurrent judgement of Justice K. M.
Joseph, in paragraph 117 it was observed:-

117. In terms of section 17A no police
officer is permitted to conduct any enquiry or
inquiry or conduct investigation into any
offence done by public servant where the
offence is relatable to any recommendation
made or decision taken by the public servant in
discharge of his public functions without
previous approval, of the authority competent to
remove the public servant from his office at the
time when the offence was said to have been
committed.- -"

(emphasis supplied by us)

(26) The same view has been been
reiterated by the Supreme Court in the case of
State of Rajasthan Versus Tejmal Chaudhary
reported in 2021 SCC online SC 3477, Justice
Bose in conclusion, observed that if an enquiry,
inquiry or investigation is intended in respect of
a public servant on the allegation of
commission of offence under 1988 Act, after
section 17A thereof becomes operational, which
is relatable to any recommendation made or
decision taken, at least prima facie in discharge
of his official duty, previous approval of the
authority postulated in Subsection (a) or (b) or
(c) of Section 17 A of the 1988 Act shall have
to be obtained. In absence of such previous
approval, the action initiated under section
1988 Act shall be held illegal.

(27) Justice Bela M. Trivedi gave a
separate
judgement
relating
to
the
interpretation of Section 17 A of the 1988
Act. She noted the Object and Reason of
promulgation
of
the
Prevention
of
Corruption Act, 1988. It was observed that
the 1988 Act sets the framework for
prosecuting individuals involved in corrupt
activities and provides measures to prevent
corruption in various spheres of the society.
The very objectives of the Act are to
prevent
Corruption,
to
promote
transparency and accountability in public
administration, to deter individuals from
engaging in corrupt practices by imposing
strict penalties, and it protects whistle
1534 INDIAN LAW REPORTS ALLAHABAD SERIES
blowers et cetera. It also provides for
investigation and prosecution of corruption
cases, outlining the procedure for gathering
evidence, conducting trials and ensuring a
fair and expeditious legal process. By the
amendment Act of 2018, the gaps in the
1988 Act were filled in with respect to
description and coverage of offences of
bribery so as to bring it in line with the
current international practices and also to
meet
more
effectively,
the
country's
obligations under the United Nations
Convention against Corruption. By the
Amendment
Act
of
2018
several
provisions,
more
particularly
offences
described under Section 7, 8, 9, 10 and 13 in
Prevention of Corruption Act, 1988 were
substituted with new provisions; and several
new provisions like Section 7 A, 17 A, 18 A
and 209A etc. inserted. Certain provisions
pertaining to the punishment of the offences
under the Act were also amended. A positive
approach for interpreting the Act was
necessary. The aim and object of the Act must
be given its full effect. The text and context
of the entire Act must be looked into while
interpreting any of the expressions used in the
statute. If two views were possible, the view,
which most advances the object of the Act,
and which makes the Act workable, must
necessarily be the controlling view . Even
penal statues are governed, not only by the
literal language, but also by the object sought
to be achieved by Parliament. Even if the
words occurring in the statute are plain and
unambiguous, they have to be interpreted in a
manner which would fit in the context of the
other provisions of the statute and bring about
real intention of the legislature.

(28) Justice Trivedi thereafter observed
in Paragraph 55 as follows: -

"55. Although not specifically mentioned
in the Statement of Object and Reasons of the
Amendment Act, 2018, the object of inserting
section 17A in the Prevention of Corruption
Act, which is in Pari materia with the
provisions contained in Section 6A of the
Delhi Special Police Establishment Act,
1946, is to protect honest public servants
from harassment by way of enquiry or
investigation in respect of decisions taken or
acts done in bona fide performance of their
official functions or duties. Whereas Section
19 bars the courts from taking cognizance of
an offence punishable under the 1988 Act to
have been committed by public servants,
except with the prior sanction of the
concerned authorities mentioned therein,
Section 17A bars the police officer from
conducting any enquiry or enquiry or
investigation
of
offences
relatable
to
recommendations made or decision taken by
the public servant in the discharge of official
functions or duties, without approval of the
concerned authorities mentioned therein.
From the bear reading, it is discernible that
section 17 A has the following four main
facets: -

(i) enquiry or enquiry or investigation
of offences under prevention of corruption
act. (ii) alleged offences should be relatable
to the recommendation made or decision
taken by a public servant. (iii) Such
recommendations made or decisions taken
by public servant should be in discharge of
official functions and duties and (iv)
previous
approval
of
the
authorities
mentioned therein.

(29) Justice Trivedi relied upon the
object of the Prevention of Corruption Act
and also referred to judgement of the
Supreme Court in State of Rajasthan Versus
Tejmal Chaudhary where the Supreme
Court set aside the interim order passed by
the High Court which had stayed the
proceedings only on the ground that
approval was not obtained under section
2 All. Rakesh Babu Vs. The U.P. Rajkiya Nirman Nigam Ltd. & Anr.
1535
17A of the Prevention of Corruption Act by
observing interalia, that the legislative
intent in the enactment of a statute is to be
gathered from the express words used in
the statute, unless the plain words literally
construed give rise to absurd results. The
court had observed that it has to go by the
plain words of the statute to construe the
legislative intent and that it could not
possibly have been the intent of the
legislature that all pending investigations
up to July 2018 should be rendered
infructuous. Justice Trivedi also observed
on the basis of judgement rendered in
Subramanyam Swami Versus Manmohan
Singh reported in (2012) 3 SCC 64, that in
case of two possible constructions of a
provision in the 1988 Act, it would be the
duty of the court to accept the one that
seeks to eradicate corruption, to the one
which
seeks
to
perpetuate
it.
In
Subramanyam Swamy Versus Director,
CBI reported in (2014) 8 SCC 682; the
Constitution Bench had observed while
dealing with Section 19 of the 1988 Act
that the protection against malicious
prosecution which is extended in public
interest, cannot become a shield to protect
corrupt officers.

Justice Trivedi thereafter observed in
paragraph 67 as follows: -

"67. Even otherwise, absence of
approval before conducting any enquiry or
inquiry or investigation into an offence,
alleged to have been committed by public
servant, as contemplated in Section 17A
could never be a ground for quashing the
FIR registered against the public servant or
the proceedings conducted against him,
more particularly, when he is also charged
for other offences under the I.P.C. in
respect of the same set of allegations. As
stated earlier, there are other important
facets contained in Section 17A, like
whether the offence is relatable to the
recommendation made or the decision
taken by the public servant or not, and
whether such recommendation or decision
was made or taken in the discharge of his
official functions or duties or not etcetera.
Such facets would be examined only when
evidence is lead during the course of trial.
The acts which prima facie constitute
offences, though done under the purported
exercise of official function or duty, could
not fall within the purview of section 17A.
The protection sought to be granted to
public servant under section 17A could not
be extended to his acts which prima facie
were not in the discharge of his official
functions
or
duties.
Any
other
interpretation would certainly tantamount
to scuttling the investigation at a very
nascent stage. Such could neither be the
intention of the Legislature nor could such
provision be interpreted in the manner
which would be counter-productive or
frustrating the very object of the Prevention
of Corruption Act."

(emphasis supplied by us)

(30) In the instant petition the counsel
for the petitioner says that even the
amassing of alleged disproportionate assets
more than the known sources of income
can be said to be a consequence of a
recommendation made or a decision taken
by him as a Resident Engineer of
U.P.R.N.N.L. He has also argued that
Section 13 (1) (b) added by way of the
same Amending Act No.16/2018 with
effect from 26.07.2018 and therefore,
Section 17A should be read conjointly with
Section 13 (1) (b).

(31) We do not find the argument
raised by the learned counsel for the
petitioner convincing as these are two
1536 INDIAN LAW REPORTS ALLAHABAD SERIES
different provisions operating in two
different spheres. Section 13 in its entirety
is being quoted hereinbelow:-

"13. Criminal Misconduct by a public
servant-- [(1)] A public servant is said to
commit the offence of criminal misconduct-

(a) if he dishonestly or fraudulently
misappropriates or otherwise converts for
his own use any property entrusted to him
or any property under his control as a
public servant or allows any other person
so to do; or

(b) if he intentionally enriches himself
illicitly during the period of his office."

(32) We have gone through the
Annexure No.8 to the writ petition which is
an order dated 26.06.2023 which has been
passed by Managing Director of the U.P.
Rajkiya Nirman Nigam Limited while
placing
reliance
upon
the
State
Government's
letter
dated
20.06.2023
which enclosed with it, the letter of the
Vigilance Establishment dated 26.05.2023
and the Report dated 21.03.2023 relating to
amassing
of
disproportionate
assets
allegedly by the petitioner in discharge of
his official duties. This Court, therefore,
finds that after investigation sanction has
been given by the Government / Competent
Authority and such sanction cannot be said
to be no sanction at all as was argued by the
learned counsel for the petitioner before the
Co-ordinate Bench which lead to the
passing
of
the
interim
order
dated
23.01.2024.

(33) At this stage it has also been
submitted by the learned counsel for the
petitioner that he has also challenged the
prosecution Sanction order on the ground
that for the offence committed by the
petitioner for amassing disproportionate
assets during his tenure of service, the
respondents-U.P.R.N.N. Ltd. had initiated a
Disciplinary proceeding against him, a
copy of the Charge-sheet has been filed as
Anneuxre No.2 to the petition. After
regular Enquiry, the Enquiry report was
submitted by the Enquiry Officer, a copy of
which has been filed as Annexure No.3 to
the petition. The Enquiry Officer had not
found
him
guilty
of
amassing
disproportionate
assets.
The
Enquiry
Officer's report was accepted by the
Managing Director of U.P.R.N.N. Ltd. by
his order dated 06.06.2023, a copy of
which has been filed as Anneuxre No.4 to
the petition.

(34) It has been submitted by the
learned counsel for the petitioner that the
Hon'ble Supreme Court in the case of
Ashoo Surendranath Tewari Vs. The
Deputy Superintendent of Police, EOW,
CBI & Anr. in Criminal Appeal No.575
of 2020, in its judgment and order dated
08.09.2020 has held that where the
Disciplinary
proceedings
are
initiated
against a delinquent employee and on
merits, the said Disciplinary proceedings
are concluded and the report by the Enquiry
Officer has been accepted exonerating the
delinquent employee, then on the very
same charge the prosecution sanction
should not be given and no criminal
prosecution should be allowed to continue.

(35) Learned counsel for the
petitioner has placed reliance upon a copy
of the judgment rendered by the Hon'ble
Supreme Court filed as S.A.-2 of his
affidavit filed on 19.01.2024.

(36) We have gone through the
judgment rendered by the Hon'ble Supreme
Court. The facts in the said case were
arising out of an F.I.R. that was registered
on 09.12.2009 with regard to a MSME
2 All. Rakesh Babu Vs. The U.P. Rajkiya Nirman Nigam Ltd. & Anr.
1537
Receivable Finance Scheme operated by
the Small Industries Development Bank of
India
(SIDBI).
Some
vendors
were
complaining of delay in getting their
payments. SIDBI in consultation with Tata
Motors Limited, directed the vendors of
Tata Motors Limited to furnish RTGS
details for remittance of funds. The
vendors' account was shown to be in
Federal Bank, Thriupporur. Tata Motors
Limited made payment through RTGS for
various purchases done by it, to the tune of
Rs.1,64,17,551/-.
Subsequently,
the
vendors informed the SIDBI that they had
an account in Central Bank Bangalore, and
not with Federal Bank, Thriupporur. On
account of diversion of funds in a different
bank account, the F.I.R. was lodged in
which a number of accused persons were
arrested. The Charge sheet was filed before
the Court of Special Judge, CBI. The
Special Judge, CBI, found that since no
sanction was taken under the Prevention of
Corruption Act, the trial under the Act,
cannot be proceeded with. The Special
Judge also found that there was no need to
get sanction under Section 197 Cr.P.C. as
no offence under the Indian Penal Code
was made out.

(37) The order passed by the Special
Judge, CBI, was challenged before the
High Court. The High Court by its
judgment and order dated 11.07.2014 had
agreed with the Special Judge, CBI,
observations regarding no need for sanction
under Section 197 Cr.P.C. being necessary.
However, the High Court had failed to
consider order of the Central Vigilance
Commission dated 22.12.2011 which had
gone into the facts of the case in great
detail. The Court observed that the Central
Vigilance Commission in its order had
rightly observed that the petitioner Ashoo
Surendranath Tewari, was only negligent
and there may be no criminal culpability.