# Sh. Mohd. Ali Zafar v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2023) 4 ILRA 372
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-14
- **Case number:** Application u/s 482 No. 13242 of 2019
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sh-mohd-ali-zafar-v-state-of-u-p-ors-opp-parties-49933
- **Pages:** 11

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 21, 120B, 409, 420, 468, 471 &
477A- The Prevention of Corruption Act,
1988
 - Sections 2(C), 13(2)/13(1)(d)
, The Cantonment Fund Servants Rules,
1937 and CCS Rules , The Cantonment Act,
2006 - Section 38 , The Delhi Special
Police Establishment Act, 1946 - Section 5,
6, 6A , The Cantonment Board Employees
Service Rules, 2021 , The Cantonment
Funds Service Rules, 1937 - unless the
State Government gives its consent, the
C.B.I. would not have the power for
investigation of an offence in any area of
the State Government .(Para - 27)

(B) Criminal Law - Code of Criminal
Procedure,
1973
-
Section
197
-
Prosecution of Judges and Public Servants
, The Prevention of Corruption Act, 1988 -
Section 19 - Taking cognizance under
Section 19 of PC Act - incriminating
material
should
be
placed
before
sanctioning authority in order to apply its
mind and take a decision for grant of
sanction - Distinction between - absence
of sanction (entertained at the threshold )
and alleged invalidity on account of nonapplication of mind (entertained during
trial). (Para - 34)

Petitioner,
a
Veterinary
Inspector,
was
officiating
as
Office
Superintendent
at
Cantonment Board - another petitioner was a
Pharmacist/Compounder-cum-Store Keeper at
Central Government Hospital - joint surprise
check conducted- gross irregularities found -
Charges levelled against accused officials -
corruption and forging and manipulating the
records - resulted wrongful loss to Central
Government - possible corresponding gain to
accused - Charge-sheet, summoning order &
entire proceedings of Special Case under
challenge .(Para - 2,18)

HELD:- Board granted a sanction for the
petitioners' prosecution. Trial court will decide
whether the material and evidence were placed
before the authority to grant the sanction, which
was refused earlier. Court does not find it
appropriate to decide on affidavits in these
proceedings. (Para - 34)

Petitions dismissed. (E-7)

## Text

372 INDIAN LAW REPORTS ALLAHABAD SERIES
facts and evidence of the cited case. Hence,
this Court is of the view that there is no
ground to quash the proceedings.

12. The application under Section 482
CrPC is devoid of merit and is liable to
dismissed.

13. Accordingly, this application is
dismissed.
----------
(2023) 4 ILRA 372
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.03.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Application u/s 482 No. 13242 of 2019
with
Application u/s 482 NO. 30345 of 2021

Sh. Mohd. Ali Zafar ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Mehul Khare, Sri Pradeep Singh, Shri
Umakant Uniyal (Sr. Advocate), Sri Ashok Mehta
(Sr. Advocate)

Counsel for the Opp. Parties:
G.A., A.S.G.I., Sri Gyan Prakash, Sri Satish
Kumar Rai, Sri Sudarshan Singh, Sri Sanjay
Kumar Yadav

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 21, 120B, 409, 420, 468, 471 &
477A- The Prevention of Corruption Act,
1988
 - Sections 2(C), 13(2)/13(1)(d)
, The Cantonment Fund Servants Rules,
1937 and CCS Rules , The Cantonment Act,
2006 - Section 38 , The Delhi Special
Police Establishment Act, 1946 - Section 5,
6, 6A , The Cantonment Board Employees
Service Rules, 2021 , The Cantonment
Funds Service Rules, 1937 - unless the
State Government gives its consent, the
C.B.I. would not have the power for
investigation of an offence in any area of
the State Government .(Para - 27)

(B) Criminal Law - Code of Criminal
Procedure,
1973
-
Section
197
-
Prosecution of Judges and Public Servants
, The Prevention of Corruption Act, 1988 -
Section 19 - Taking cognizance under
Section 19 of PC Act - incriminating
material
should
be
placed
before
sanctioning authority in order to apply its
mind and take a decision for grant of
sanction - Distinction between - absence
of sanction (entertained at the threshold )
and alleged invalidity on account of nonapplication of mind (entertained during
trial). (Para - 34)

Petitioner,
a
Veterinary
Inspector,
was
officiating
as
Office
Superintendent
at
Cantonment Board - another petitioner was a
Pharmacist/Compounder-cum-Store Keeper at
Central Government Hospital - joint surprise
check conducted- gross irregularities found -
Charges levelled against accused officials -
corruption and forging and manipulating the
records - resulted wrongful loss to Central
Government - possible corresponding gain to
accused - Charge-sheet, summoning order &
entire proceedings of Special Case under
challenge .(Para - 2,18)

HELD:- Board granted a sanction for the
petitioners' prosecution. Trial court will decide
whether the material and evidence were placed
before the authority to grant the sanction, which
was refused earlier. Court does not find it
appropriate to decide on affidavits in these
proceedings. (Para - 34)

Petitions dismissed. (E-7)

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

1. Heard Sri Ashok Mehta, learned
Senior Advocate assisted by Sri Pradeep S.
4 All. Sh. Mohd. Ali Zafar Vs. State of U.P. & Ors.
373
Sisodia, learned counsel for the petitioners,
Sri Sudarshan Singh, learned counsel
appearing on behalf of Union of India, Sri
Sanjay Kumar Yadav, learned counsel for
C.B.I. and Sri Satish Kumar Rai, learned
counsel appearing on behalf of the
Cantonment Board.

2. Present petitions under Section 482
Cr.P.C. have been instituted before this
Court challenging the Charge-sheet No.1 of
2001 dated 07.02.2009 and summoning
order dated 11.03.2019 passed by Special
Judge
(Anti-Corruption),
C.B.I. Court
No.3, Ghaziabad in Special Case No.2 of
2019 (C.B.I. vs Sukhjeevan Singh Chahal
and Ors) under Sections 120B, 420, 468,
471 IPC and entire proceedings of Special
Case No.2 of 2019 pending in the Court of
Special Judge (Anti-Corruption), C.B.I.

3. Petitioner, Mohd Ali Zafar was
posted
as
Veterinary
Inspector
and
petitioner-Sushil Kumar was posted as
Pharmacist/Compounder-cum-Store
Keeper, Central Government Hospital,
Meerut Cantt. The petitioner, Mohd Ali
Zafar was also officiating on the post of
Office Superintendent, Cantonment Board,
Meerut at the relevant time.

4. On the basis of a source
information, a joint surprise check was
conducted on 12.05.2015 and 13.05.2015
by a team of C.B.I., Ghaziabad, Ministry of
Defence, Director General (Vigilance),
Defence Estates, New Delhi and Drug
Inspector, Central Drugs Standard Control
Organization
(C.D.S.C.O.)
in
the
Cantonment General Hospital, Cantt Board,
Meerut.

5. C.B.I. in the year 2015 had carried
out a inspection of the Cantonment General
Hospital, Meerut Cantt and finding gross
irregularities registered a Regular Case
No.RC1202016A0003 on 16.03.2016 at
C.B.I./A.C.B., Ghaziabad under Sections
13(2)/13(1)(d)
of
the
Prevention
of
Corruption Act, 1988 (hereinafter referred
to as ''the PC Act') against one Dr Aradhana
Pathak, then Resident Medical Officer,
posted at Cantonment General Hospital,
Meerut Cantt and others on the allegation
that during years 2011-14 said Dr Aradhana
Pathak entered into criminal conspiracy
with the petitioners and one Gaurav Arora,
Prop. M/s Arora Pharma, Meerut, U.P. and
other unknown persons and in furtherance
of the said criminal conspiracy, she
dishonestly and fraudulently purchased
medicines at exorbitant rates in violation of
prescribed procedure and norms and
falsified the accounts (medicine stock
books) and fabricated the relevant record.

6. During the investigation, role of
one Sukhjeevan Singh Chahal, the then
Chief
Executive
Officer
(C.E.O.)
Cantonment Board, Meerut Cantt. (since
retired), petitioner- Mohd. Ali Zafar, the
then Officiating Office Superintendent,
Office of C.E.O., Cantonment Board,
Meerut Cantt. came into light.

7. The C.B.I. after investigating the
offence
and
collecting
evidence
and
material, prepared impugned the chargesheet under Sections 120B, 409, 420, 468,
471, 477A IPC, 13(2)/13(1)(d) of the PC
Act,1988 for causing wrongful loss to the
tune of Rs.23,46,436/- to the Cantonment
Board Meerut and corresponding wrongful
gain to themselves.

8. After carrying out a detailed
investigation, the C.B.I. submitted a report
and
subsequently
vide
letter
dated
23.08.2018
sought
sanction
for
the
prosecution of Dr. Aradhana Pathak,
374 INDIAN LAW REPORTS ALLAHABAD SERIES
R.M.O. Cantt General Hospital, petitionerMohd.
Ali
Zafar,
officiating
Office
Superintendent of Cantt. Board (both
supervisory posts) and petitioner-Sushil
Kumar Compounder cum Store Keeper of
Cantt. General Hospital (non-supervisory
staff).

9. Cantonment Board vide C.B.R.
No.169 dated 15.11.2018 resolved by
majority of vote that no sanction for
prosecution of charged officials be given to
the C.B.I., and the Board further resolved
that departmental proceedings under the
provisions
of
the
Cantonment
Fund
Servants Rules, 1937 and CCS Rules be
initiated against the charged officials
namely Dr. Aradhana Pathak and Mohd Ali
Zafar,
for
which
a
committee
was
constituted, and it was conveyed to the
higher authorities of the Cantonment Board
as well as C.B.I./A.C.B. Ghaziabad. The
C.B.I. thereafter submitted a charge-sheet
against the accused persons on 17.03.2019.

10. Cantonment Board thereafter
reviewed
its
earlier
decision
after
considering the confidential letter dated
27.02.2019 of
the Head of
Branch
C.B.I./A.C.B., Ghaziabad addressed to the
D.D.G. (Vigilance), D.E., New Delhi, copy
whereof endorsed to the President, Cantt.
Board, Meerut and O.S.D. of C.V.C. New
Delhi, Directorate of Defence Estate CC
letter dated 03.04.2019 addressed to the
President, Cantt Board of Cantt Board
Meerut, passed Resolution No.139 dated
29.05.2019
granting
sanction
for
prosecution of charged officials after
detailed deliberation and discussion in the
Board.

11. Charges levelled against the
accused
officials
are
of
corruption
attracting the relevant sections of the Indian
Penal Code and provisions of PC Act,1988.
Charges against the officials are of criminal
conspiracy and mala fide intentions of the
officials resulting into monetary loss to the
Government
of
Indian
and
possible
wrongful gain to the officials concerned
with other accused persons.

12. Initially, this Court vide order
dated 11.04.2019 dismissed the petition for
prayers to quash the proceedings of Special
Case No.2 of 2019 pending before Special
Judge Anti Corruption/C.B.I., Court No.3,
Ghaziabad. However, the Court granted
three weeks' time to the petitioners to
surrender before the trial court and for a
period of three weeks, no coercive measure
was to be taken against them.

Order dated 11.04.2019 would read as
under:-

"Heard Sri Umakant Uniyal, Senior
Advocate assisted by Sri Mehul Khare,
learned counsel for the applicant, Sri Gyan
Prakash, learned counsel for respondent
no.2/CBI, Sri R.P.S. Chauhan, learned
counsel for respondent no.3 and 4 and Sri
Satish Kumar Rai, learned counsel for
respondent no.5.

This application under Section 482
Cr.P.C. has been filed for quashing the
chargesheet no.1 dated 07.03.2019 and the
summoning order dated 11.03.2019 passed
by Special Judge (Anti-Corruption), C.B.I.,
Court No.3, Ghaziabad in Special Case No.
2 of 2019 under sections 120B, 420, 468,
471 IPC as well as entire proceedings of
the aforesaid case.

Learned counsel for the applicant has
confined his argument to the extent that the
order taking cognizance by which the
petitioner has been summoned, learned
trial court has straightaway issued NBW
against the applicant and though he is
4 All. Sh. Mohd. Ali Zafar Vs. State of U.P. & Ors.
375
ready to appear before the court concerned
and further submits that some interim
protection may be granted to the applicant
for the said purpose.

Learned counsel for the respondents
state that as the applicant is ready to
appear before the trial court as has been
argued
by
learned
counsel
for
the
applicant, hence, they have no objection to
it.

After
having
considered
the
submissions made by learned counsel for
the parties and perused the material on
record, I do not find any good ground for
quashing the proceedings of the aforesaid
case based on the charge-sheet as well as
summoning order dated 11.03.2049 passed
by the court concerned.The prayer to that
extent is hereby refused.

However, for a period of three weeks
from today, non-bailable warrant issued
against the applicant shall be kept in
abeyance.

In case the applicant does not appear
before the Court below within the aforesaid
period, trial Court is free to take coercive
action against him.

It is made clear that the applicant will
not be granted any further time by this
Court for surrendering before the Court
below as directed above.

With the aforesaid observations, the
application stands disposed of."

13.

The
petitioners
thereafter
challenged the said order passed by this
Court before the Supreme Court by filing
S.L.P.
(Criminal)
No.4029
of
2019
converted to Criminal Appeal No.1166 of
2019. The Supreme Court vide order dated
31.07.2019 finding that this Court did not
explicate the contentions raised by the
petitioners, set aside the order dated
11.04.2019 and remitted the matter back to
this Court for consideration afresh on its
own merit leaving open all the contentions
available to the parties, which should be
decided on its merit and in accordance with
law.

14. The Supreme Court also recorded
a finding that grievance of the petitioners
that there was no sanction order against
them, did not survive for consideration as
C.B.I. had placed on record sanction order
dated 29.05.2019 issued by Cantonment
Board. Whether that sanction order was just
and proper was a matter, could be
deliberated before this Court. The Supreme
Court observed that it would be open to this
court to decline to examine the challenge to
sanction order on merits as it would be a
triable issue.

Judgment and order dated 31.07.2019
passed by Supreme Court in Criminal
Appeal No.1166 of 2019 would read as
under:-

"Leave granted.

This appeal takes exception to the
judgment and order dated 11.04.2019
passed by the High Court of Judicature at
Allahabad in Application under Section
482 No.13242 of 2019, whereby the
application for quashing of chargesheet
No.1 dated 07.03.2019 and the summoning
order dated 11.03.2019 passed by the
Special Judge (Anti-Corruption), C.B.I.,
Court No.3, Ghaziabad in Special Case
No.2 of 2019 under Sections 120B, 420,
468, 471 IPC came to be rejected.

From the impugned order, it appears
that the High Court essentially dealt with
the apprehension of the appellant that he
may be arrested pursuant to non-bailable
warrant issued against him. The High
Court did not explicate on the other
contentions raised by the appellant. To wit,
there was no sanction order in place qua
376 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant at the relevant time when the
application was filed; and that inquiry
under Section 6 of the Delhi Special Police
Act cannot proceed without a prior
permission of the State Government.

As regards the grievance about no
sanction order against the appellant that
does not survive for consideration. For, the
C.B.I. has now placed on record a sanction
order dated 29.05.2019 issued against the
appellant by the Board, which it is stated is
the competent authority to issue such
orders. Whether that sanction order is just
and proper is a matter also to be
deliberated and can be so done before the
High Court. We make it clear that it will be
open to the High Court to decline to
examine the challenge to the sanction order
on merits, if the same is a triable issue.

In view of the above, we set aside the
impugned order and instead the quashing
application under Section 482 of Criminal
Procedure Code, filed by the appellant, is
restored to its original number for
consideration thereof afresh by the High
Court on its own merits. All contentions
available to the parties are left open, to be
decided on its own merits and in
accordance with law.

The appellant shall appear before the
High Court on 06.08.2019 to enable the
High Court to proceed in the matter
expeditiously as per law.

The criminal appeal is disposed of in
the above terms.

Pending applications, if any, stand
disposed of."

15. Sri Ashok Mehta, learned Senior
Advocate has submitted that Cantonment
Board is an autonomous statutory body
under
the
Cantonment
Act,
2006.
Employees of the Cantonment Board are
neither the employees of the Central
Government nor the State Government.
Though they are public servants under
Section 38 of the Cantonments Act, 2006. It
has been submitted that C.B.I. could not
have proceeded against the petitioners
without there being consent of the State of
U.P. under Section 6 of the Delhi Special
Police Establishment Act, 1946 and,
therefore, the whole investigation was void
ab initio and was without jurisdiction and
liable to be quashed.

16. It has been further submitted that
general consent given by the State
Government
vide
notification
dated
15.06.1989 for investigation by the C.B.I.
of offences under the provisions of PC
Act,1988 would be of no relevance as the
petitioners
are
neither
the
Central
Government employees nor the State
Government employees nor they are private
individuals but they are employees of
statutory body i.e. Cantonment Board under
the provisions of Cantonments Act, 2006.
Even there is no post facto consent of the
State under Section 6 of the Delhi Special
Police Establishment Act, 1946, and thus in
absence of the consent for investigation by
the C.B.I. in respect of the alleged offence
committed
by
the
petitioners,
whole
investigation was without jurisdiction and,
therefore, charge-sheet is also invalid and is
liable to be quashed. .

17. In respect of petitioner-Mohd. Ali
Zafar, Sri Ashok Mehta, learned Senior
Advocate has submitted that no sanction
for prosecution was given to the C.B.I. by
Meerut Cantt Board vide its Resolution
dated 15.11.2018. However, during the
pendency of said S.L.P. (Criminal) No.4029
of 2019, on 29.05.2019 decision of refusal
to grant sanction for prosecution was
reviewed, and sanction order was issued. It
has been submitted that there was no fresh
material available for consideration to grant
4 All. Sh. Mohd. Ali Zafar Vs. State of U.P. & Ors.
377
sanction for prosecution of the petitionerMohd Ali Zafar. In absence of fresh
material, the Cantonment Board could not
have reviewed its earlier decision refusing
sanction for prosecution of the petitioner-
Mohd. Ali Zafar. He, therefore, has
submitted that the order of granting
sanction for prosecution dated 29.05.2019
is bad in law and is liable to be quashed.

18. Sri S.K. Rai, learned counsel appearing
for the Cantonment Board has submitted
that charges levelled against the accused
officials are of corruption and forging and
manipulating the records, which has
resulted wrongful loss to the Central
Government and possible corresponding
gain to the accused. Central Government
has power to control and regulate the entire
functioning of the Cantonment Board, and
its employees as per the provisions of
Cantonments
Act
and
rules
made
thereunder. The Central Government has
power to revise the penalty imposed by the
Board or General Officer-in-Command and
thus, ultimate power is vested with the
Central
Government
in
respect
of
functioning of the Board and its employees.
It has been therefore, submitted that since
Central Government has authority and
power to supervise, control and regulate
entire functioning of the Cantonment Board
and its employees. There is no requirement
of taking prior consent for investigation of
the offences allegedly committed by the
employees of the Cantonment Board by the
C.B.I.
from
the
State
Government
inasmuch as employees of the Cantonment
Board are not under the control of the State
Government directly or indirectly. The
competent authority has already granted
sanction for prosecution of the petitioners
under Section 19 of the PC Act and,
therefore,
there
is
no
ground
for
interference by this Court in the impugned
proceedings, and the petitions being devoid
of merit and substance are liable to be
dismissed.

19. Sri Gyan Prakash Srivastava,
learned Senior Advocate assisted by Sri
Sanjay Kumar Yadav, learned counsel
appearing for the C.B.I. has submitted that
the Cantonment Board is an autonomous
body under the Cantonments Act, 2006
functioning under the overall control of the
Ministry of Defence, Government of India.
Supervision and control over the working
of the Cantonment Board is exercised by
the Principal Director, Defence Estates, and
by the Central Government through the
Director General, Defence Estates, Delhi
Cantt., Ministry of Defence at the highest
level. It has been submitted that there is no
requirement of any permission from the
State Government under the Delhi Special
Police Establishment Act for investigation
of an offence against the employees of the
Cantonment Board by the C.B.I. It is also
submitted that the legislative competence
over the cantonment are is of the Union
Government as subject matter is provided
in Entry 3 of the Union List of the VIIth
Schedule of the Constitution of India.

20. It has been further submitted that
valid
general
consent
of
the
State
Government of Uttar Pradesh under Section
5 of DSPE Act with respect to C.B.I. exists
vide Notification dated 15th June, 1989
issued by Government of Uttar Pradesh.
The C.B.I. is competent to lodge FIR and
undertake the investigation of the case
against employees of the Cantonment
Board and no special permission/consent is
required from the State Government. State
Government itself issued a letter dated
03.05.2019 and clarified that employees of
the Cantonment Board are not under the
control and supervision of the State
378 INDIAN LAW REPORTS ALLAHABAD SERIES
Government, and the Cantonment Board
falls
under
the
control
of
Central
Government.

21. In respect of the submissions that
earlier sanction for prosecution was refused
by the Board on 15.11.2018 and on the very
same material the sanction was granted
vide resolution dated 29.05.2019, he has
submitted that the Board has raised the
issue of non-jurisdiction of the C.B.I. in the
matter of Cantonment Board, Meerut and
the Board therefore, passed a resolution
dated 15.09.2018 itself and based on the
views of the Members of the Board
resolved by the majority of the vote, no
sanction
for
the
prosecution
against
petitioner-Mohd. M.A. Zafar was given to
the C.B.I. and further resolved that
departmental
proceedings
under
the
provisions of Cantonment Funds Service
Rules, 1937 and CCS Rules be initiated
against the charged employees in respect of
allegations levelled against the accused but
the accused failed to appear before the
Board (Enquiry Member). Decision of the
competent authority of refusing sanction
and to take up a parallel investigation was
not in line with law as in the opinion of the
Board, CBI did not have jurisdiction over
the employees of the Board. As mentioned
above, when the entire material was again
placed before the Board and the legal
position
got
clarified,
the
Board
reconsidered its view on the issue and
accorded sanction for prosecution on
29.05.2019 against the petitioner.

22. It has also been submitted that
trial court had taken cognizance under the
Indian Penal Code, and not under the
provisions
of
PC
Act,1988
against
petitioner- Mohd Ali Zafar and therefore,
even otherwise the issue of sanction under
section 19 of the PC Act before cognizance
would not survive as sanction under
Section 19 of the PC Act is in respect of the
offences under the PC Act, 1988 and for
any other penal offence. Employees of the
Cantonment Board do not fall under the
category of Government Servant who are
removable
by
the
Central/State
Government, therefore, no prior sanction
under Section 197 Cr.P.C. is required.

23. Facts are not much in dispute. The
Cantonment Board is the local authority
which performs municipal functions in the
Cantonment area under the provisions of
Cantonments
Act,
2006.
The
State
Government does not have any power,
control and authority to supervise and
regulate the functioning of the Cantonment
Board or its employees or over the area
under the jurisdiction and control of a
Cantonment Board.

24. Section 38 of the Cantonment Act,
2006 provides "Every officer or employee,
permanent or direct shall be deemed to be a
public servant within the meaning of
Section 21 of the Indian Penal Code and
Section 2(c) of the PC Act." Service
conditions of the employees of the
Cantonment Board are governed under the
Cantonment Board Employees Service
Rules, 2021 which came into force with
effect from 13.10.2021 after repealing the
Cantonment Funds Service Rules, 1937.

25. The question which is primarily
involved in these petitions is whether
without consent of the State Government,
the C.B.I. would be empowered to exercise
powers and jurisdiction in respect of an
area under the control of Cantonment
Board.

26. Sections 5, 6 and 6A of the Delhi
Special Police Establishment Act, 1946,
4 All. Sh. Mohd. Ali Zafar Vs. State of U.P. & Ors.
379
which are relevant for decision on issue in
question, are extracted hereunder:-

"5.
Extension
of
powers
and
jurisdiction of special police establishment
to other areas.--

(1)The Central Government may by
order extend to any area (including
Railway areas), 1[in 2[a State, not being a
Union
territory]]
the
powers
and
jurisdiction of members of the Delhi
Special Police Establishment for the
investigation of any offences or classes of
offences specified in a notification under
section 3.

(2)When by an order under sub-section
(1) the powers and jurisdiction of members of
the said police establishment are extended to
any such area, a member thereof may, subject
of any orders which the Central Government
may make in this behalf, discharge the
functions of a police officer in that area and
shall, while so discharging such functions, be
deemed to be a member of a police force of
that area and be vested with the powers,
functions and privileges and be subject to the
liabilities of a police officer belonging to that
police force. 3[(3) where any such order
under sub-section (1) is made in relation to
any area, then, without prejudice to the
provisions of sub-section (2) any member of
the Delhi Special Police Establishment of or
above the rank of Sub-Inspector may subject
to any orders which the Central Government
may make in this behalf, exercise the powers
of the officer in charge of a police station in
that area and when so exercising such
powers, shall be deemed to be an officer in
charge of a police station discharging the
functions of such an officer within the limits
of his station.]

6. Consent of State Government to
exercise of powers and jurisdiction.--
Nothing contained in section 5 shall be
deemed to enable any member of the Delhi
Special Police Establishment to exercise
powers and jurisdiction in any area in 2[a
State, not being a Union territory or railway
area],
without
the
consent
of
the
Government of that State.]

6A. Approval of Central Government
to conduct inquiry or investigation.--

(1)The
Delhi
Special
Police
Establishment shall not conduct any inquiry
or investigation into any offence alleged to
have been committed under the Prevention
of Corruption Act, 1988 (49 of 1988)
except with the previous approval of the
Central Government where such allegation
relates to--

(a) the employees of the Central
Government of the Level of Joint Secretary
and above; and

(b) such officers as are appointed by
the Central Government in corporations
established by or under any Central Act,
Government companies, societies and local
authorities owned or controlled by that
Government.

(2)Notwithstanding
anything
contained in sub-section (1), no such
approval shall be necessary for cases
involving arrest of a person on the spot on
the charge of accepting or attempting to
accept any gratification other than legal
remuneration referred to in clause (c) of the
Explanation to section 7 of the Prevention
of Corruption Act, 1988 (49 of 1988).]"

27. From perusal of the aforesaid
provisions, it is evident that unless the State
Government gives its consent, the C.B.I.
would not have the power for investigation
of an offence in any area of the State
Government. Similarly, under Section 6A
of the Delhi Special Police Establishment
Act, 1946 without the previous approval of
the Central Government, the C.B.I. would
not have jurisdiction to investigate the
380 INDIAN LAW REPORTS ALLAHABAD SERIES
offence under the PC Act against the
employees of the Central Government of
the level of Joint Secretary and above and
such officers as are appointed by the
Central
Government
in
corporations
established by or under any Central Act,
Government companies, societies and local
authorities owned and controlled by that
Government.

28. There can be no dispute that an
area falling under the Cantonment is not an
area under the State Government and nor
the petitioners are employees of the Central
Government or appointed by the Central
Government in the Cantonment Board.
Thus, there is no applicability of Section 6
or 6A of the Delhi Special Police
Establishment Act, 1946 in the present
case. The petitioners are neither employees
of the State Government nor Central
Government nor the area of Cantonment
Board, Meerut falls within the jurisdiction
or control of the State Government.

29. The State Government has issued
notification dated 15.6.1989 in pursuance
of the provisions of Section 6 of the DPSE
Act. The notification is extracted herein
below :-

"Government of Uttar Pradesh

Home(Police) Section-1

No.3442/VIII-1-84/88

Lucknow, dated : June 15, 1989

Notification

In pursuance of the Provisions of
Section 6 of the Delhi Special Police
Establishment Act, 1946 ( 25 of 1946) the
Governor of the State of Uttar Pradesh is
pleased to accord consent to the extension
of powers and jurisdiction of the members
of the Delhi Special Police establishment in
whole of the State of Uttar Pradesh, for
investigation of offences punishable under
the Prevention of Corruption Act, 1988 (49
of 1988), and attempts, abetments and
conspiracies in relation to all or any of the
offence or offences mentioned above and
any other offence or offences committed in
the course of the transaction and arising out
of the same facts, subject however to the
condition that no such investigation shall
be taken up in cases relating to the public
servants, under the control of the State
Government
except
with
the
prior
permission of the State Government.

BY ORDER IN THE NAME OF THE
GOVERNOR.

Sd/-

(S.K. TRIPATHI)

HOME SECRETARY TO THE GOVT

OF UTTAR PRADESH"

30. The State Government vide
Government Order dated 03.05.2019 has
clarified that there is no requirement of any
consent in respect of employees of the
Cantonment Board as they are not the
employees of the State Government and the
area of Cantonment does not fall within the
area
of
jurisdiction
of
the
State
Government.

31. In view thereof, in respect of the
investigation of the offences committed by
an employee of the Cantonment Board or
an offence committed within the area of
Cantonment Board, no consent of the State
Government or the Central Government is
mandatory
for
undertaking
the
investigation by the C.B.I. I, therefore, I
find no substance in the submissions of Sri
Ashok Mehta, learned Senior Advocate that
without
prior
consent
of
the
State
Government in respect of the offence
committed under the PC Act,1988 by an
employee of the Cantonment Board,
4 All. Sh. Mohd. Ali Zafar Vs. State of U.P. & Ors.
381
Meerut,
investigation
was
without
jurisdiction and charge-sheet filed was
illegal being without jurisdiction.

32. So far as question of sanction accorded
by cantonment Board vide order dated
29.05.2019
for
prosecution
of
the
petitioners is concerned, resolution dated
15.11.2018 had been resolved by majority
of vote that no sanction for prosecution of
Dr Aradhana Pathak and petitioner Mohd
Ali Zafar to be given to the C.B.I. and
departmental
proceedings
under
the
provisions of Cantonment Funds Service
Rules, 1937 and CSS Rules be initiated
against the charged employees for which a
committee was constituted. However, after
other material was placed before the Board,
it has been resolved vide order dated
29.05.2019
to
grant
sanction
for
prosecution. The Supreme Court itself in its
order dated 31.07.2019 has held that this
Court
may
decline
to
examine
the
challenge to the sanction order on merit as
it is a triable issue. The earlier resolution
appears to have been granted in ignorance
of correct legal position and when the
correct legal position was brought to the
notice of Board, it did grant sanction for
prosecution. I find no illegality in sanction
order for prosecution of the petitioner.

33. Valid sanction by the competent
authority under Section 19 of the PC Act
is sine qua non for taking cognizance of
an offence against a public servant under
PC Act, 1988. If the sanction is held to be
invalid, entire proceedings undertaken by
the trial court would be void. Section 19
of
the
PC Act
forbids
taking
of
cognizance by the court against a public
servant for an offence except previous
sanction of the competent authority.
Competence of the Court tyring the
accused depends upon the existence of a
valid sanction. In case, the sanction is
found to be invalid, the court can
discharge the accused, relegating the
parties to a stage where the competent
authority may grant a fresh sanction for
the prosecution in accordance with law. If
the trial court proceeds, despite the
invalidity attached to the sanction order,
the same shall be deemed to be non est in
the eyes of law and shall not forbid a
second trial for the same offence upon
grant of a valid sanction for such
prosecution. Sanction order may be
challenged on two grounds namely;
sanction granted by an authority not
competent to accord sanction. Such an
order would be without jurisdiction and
nullity. However, if there is an error,
omission or irregularity in sanction order,
the same would not be fatal unless it has
resulted in violation of justice.

34. For taking cognizance under
Section 19 of the PC Act, incriminating
material
should
be
placed
before
sanctioning authority in order to apply its
mind and take a decision for grant of
sanction. Whether there is an application of
mind would depend on the facts and
circumstances of each case. There is a
distinction between the absence of sanction
and the alleged invalidity on account of
non-application of mind. Former question
can be entertained at the threshold but the
latter is a question which has to be
entertained during trial. It is not in dispute
that in the present case there is a sanction
for prosecution of the petitioners which has
been granted by the Board vide order dated
29.05.2019. Whether there was the material
and evidence placed before the authority to
grant sanction which was refused earlier by
the order dated 15.11.2018 is a question
which can be decided by the trial court
after leading evidence by the prosecution
382 INDIAN LAW REPORTS ALLAHABAD SERIES
and the defence. This court, therefore, does
not find it appropriate to decide the said
issue on affidavits in these proceedings.

35. In view thereof, these petitions
being devoid of merit and substance are
hereby dismissed.
----------
(2023) 4 ILRA 382
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.03.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 13699 of 2016

Gyan Chandra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Jay Babu Kesharwani, Sri Mohammad
Mustafa, Mohammad Firoz Khan

Counsel for the Opp. Parties:
G.A., Sri Ajay Vikram Yadav, Sri Satya Prakash

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code,1860 - Sections 363, 366,
376(2)(H) & 504
- 3⁄4 POCSO ActChallenge to-rejection order u/s 311 Cr.PC
for summoning the victim-victim could not
be cross-examined by the accused persons
who are facing the trial-Trial court closed
the
cross-examination
without
giving
proper opportunity and equal protection
of law to the defence side-Since the Victim
PW-2 was the material witness, it was the
duty of the trial court to provide full
opportunity
to
cross-examine
such
witness-Thus, where for the some reason
or the other, accused could not crossexamine the prosecution witnesses, the
concerned
court
may
re-call
such
witnesses
for
cross-examination
exercising the power u/s 311 Cr.P.C.(Para
1 to 28)
The application is allowed. (E-6)

List of Cases cited:

1. Raja Ram Prasad Yadav Vs St. of Bih. & anr.,
(2013) AIR SC 3081

2. Natasha Singh Vs C.B.I. (St.) (2013) Cr.L.J.
3346 SC

3. Dalveer Singh Vs St. of Raj. (2013) Cr.L.J.
3064

4. Sankat Mohan Prasad Vs St. of U.P. (2004)
ACC 933 (Alld.)
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Mohammad Firoz Khan,
learned counsel for the applicants, Sri
Pankaj Kumar Tripathi, learned Additional
Government Advocate for the State and
perused the record.

2. This application u/s 482 Cr.P.C has
been filed by all three accused persons
Gyan Chandra, Deshraj and Gopi @ Ashok
Kumar, for quashing the impugned order
dated 28th January, 2016 passed by the
Additional District & Sessions Judge /
F.T.C, Kaushambi in S.T No. 07 of 2015 -
State Vs. Gyan Chandra and others, under
Sections 363, 366, 376 (2) (H), 504 I.P.C
and 3⁄4 POCSO Act, Police Station - Sarai
Akil, Distrit Kaushambi, arising out Case
Crime No. 257 of 2013, by which the Trial
Court
rejected
the
application
under
Section 311 Cr.P.C for summoning the
victim P.W. 2 for cross-examination.

3. The brief facts of the case are that
the first informant Smt. Rampati W/o
Lavkush, lodged an F.I.R on 07.09.2013,
regarding the incident dated 05.09.2013
that on the fateful day she had gone to the
field for work leaving the victim (her