# Sher Singh v. State Of U.P. & Anr - **Citation:** (2016) 5 ILRA 771 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-11 - **Bench:** Ramesh Sinha, Vinod Kumar Srivastava-Iii - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sher-singh-v-state-of-u-p-anr-43936 - **Pages:** 5 ## Headnote Prior Sanction Under Section 19(1) of Prevention of Corruption Act 1988 is a Pre-condition for Taking Cognizance - Complete Bar on Court's Power in Absence of Valid Sanction - Proceedings Without Valid Sanction are Wholly Without Jurisdiction and Liable to Be Quashed - Sub-Inspector (applicant) summoned for trial for offences under Sections 7/13 Prevention of Corruption Act 1988 in connection with alleged acceptance of bribe without prior sanction having been obtained from the competent authority; Section 19(1) of Prevention of Corruption Act creates a complete bar on the power of any court to take cognizance of offences punishable under Sections 7, 10, 11, 13 and 15 against a public servant except with the previous sanction of the competent authority as specified under clauses (a) to (c); complainant neither obtained sanction nor appeared before this Court to show any sanction had been granted; Held, grant of proper sanction by competent authority is a sine qua non for taking cognizance of the offence; it is desirable that the question of sanction be determined at an early stage; taking cognizance without prior sanction is completely without jurisdiction and entire proceedings stand vitiated; impugned order dated 9.9.2014 and charge framed on 25.11.2014 as well as entire proceedings of case quashed. (Paras 8-13) Application Allowed - Entire Proceedings Quashed Case Law Discussed: Dilawar Singh vs. Parvinder Singh @ Iqbal Singh and another, (2005) 12 SCC 709 State of Karnataka Through CBI vs. C. Nagarajaswamy, (2005) 8 SCC 370 ## Text 5 All. Sher Singh Vs State Of U.P. & Anr. 771 ---------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 11.05.2016 BEFORE THE HON'BLE RAMESH SINHA, J. THE HON'BLE VINOD KUMAR SRIVASTAVA-III, J. Criminal Misc. Application U/S 482 No.- 23196 Of 2015 Sher Singh ...Applicant Versus State Of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Sri Ashutosh Yadav Counsel for the Opposite Parties: Sri Nitin Srivastava, A.G.A. ................................. Prior Sanction Under Section 19(1) of Prevention of Corruption Act 1988 is a Pre-condition for Taking Cognizance - Complete Bar on Court's Power in Absence of Valid Sanction - Proceedings Without Valid Sanction are Wholly Without Jurisdiction and Liable to Be Quashed - Sub-Inspector (applicant) summoned for trial for offences under Sections 7/13 Prevention of Corruption Act 1988 in connection with alleged acceptance of bribe without prior sanction having been obtained from the competent authority; Section 19(1) of Prevention of Corruption Act creates a complete bar on the power of any court to take cognizance of offences punishable under Sections 7, 10, 11, 13 and 15 against a public servant except with the previous sanction of the competent authority as specified under clauses (a) to (c); complainant neither obtained sanction nor appeared before this Court to show any sanction had been granted; Held, grant of proper sanction by competent authority is a sine qua non for taking cognizance of the offence; it is desirable that the question of sanction be determined at an early stage; taking cognizance without prior sanction is completely without jurisdiction and entire proceedings stand vitiated; impugned order dated 9.9.2014 and charge framed on 25.11.2014 as well as entire proceedings of case quashed. (Paras 8-13) Application Allowed - Entire Proceedings Quashed Case Law Discussed: Dilawar Singh vs. Parvinder Singh @ Iqbal Singh and another, (2005) 12 SCC 709 State of Karnataka Through CBI vs. C. Nagarajaswamy, (2005) 8 SCC 370 (Delivered by Hon'ble Vinod Kumar Srivastava-III, J.) 1. This application under Section 482 Cr.P.C. has been filed with the prayer to quash the order dated 9.9.202014 passed by Special Judge/Addl. Sessions Judge, Court No. 01, Aligarh in Case No. 100 of 2011, (State Vs. Sher Singh and another) arising out of case crime no. 176 of 2011, under Section 7/13 Prevention of Corruption Act, P.S. Gandhi Park, District Aligarh and to quash the charge dated 25.11.2014 framed against the applicant under Section 7/13 of Prevention of Corruption Act in the aforesaid case and also to quash entire proceeding of aforesaid case. 772 INDIAN LAW REPORTS ALLAHABAD SERIES 2. Brief facts giving rise to the present case are as under: (I) That on 18.3.2011 one Shri Raj Kumar Sharma, retired Additional District Judge, gave an application to S.S.P., Aligarh with the allegations that his son owns an agency in the name and style of "Raj Kiran Indane Gas Service" of Indian Oil Corporation at Sasni Gate, Aligarh. The gas agency has hired hawkers for supply of gas cylinders. On 17.3.2011 in the noon Shri Megh Singh, Raj Kumar and Sunil, the employees of agency, had gone by tempo to supply the cylinders in the area of Ramlila ground and when they were returning, then they were intercepted by two police personnel who demanded cylinders. When the employees refused to oblige them, then those constables seized the tempo along with the cylinders and called Sub-Inspector Sher Singh of P.S. Gandhi Nagar and after levelling false charge of re-filling the cylinders, they were brought to the Police Station along with tempo and cylinders. All the three employees were also detained in the Police Station. On coming to know about this, complainant reached the Police Station and told SubInspector Sher Singh to desist from making false challan and harassing the employees and to release the tempo but Sub-Inspector Sher Singh did not release the tempo and employees. At about 03:00 P.M. one Kailash, an employee of gas agency, came to the Police Station along with Dalchand and they talked to Constable Durgesh and S.I. Sher Singh and paid Rs.30,000/- to constable in the presence of Sub-Inspector Sher Singh. After taking the illegal money S.I. Sher Singh released the tempo, cylinders and the employees of the gas agency. Since the employees of the gas agency are poor labourers and bribe of Rs.30,000/- has been taken from them and they have been victimized and were detained without any offence and therefore, Rs.30,000/- be got returned to the hawkers and action be taken against the culprits. (II) On the basis of the order passed by S.S.P. Aligarh, on the application of complainant, case crime no. 176 of 2011, under Section 7/13 Prevention of Corruption Act was registered at P.S. Gandhi Nagar, Aligarh on 18.3.2011 against the accused Sub-Inspector Sher Singh and Constable Durgesh. (III) The investigation of the case was entrusted to Circle Officer (II) Aligarh, who after completion of the investigation submitted final report on 1.4.2011 which was registered as Misc. Case No. 01/2011. (IV) Thereafter, complainant Raj Kumar Sharma filed protest petition against the final report and after hearing the parties, the Sessions Judge, Aligarh rejected the final report and took cognizance of the offence under Section 7/13 Prevention of Corruption Act and summoned the applicant-accused Sub-Inspector Sher Singh and co-accused Constable Durgesh to fact the trial for the said offences vide order dated 20.05.2011. (V) Aggrieved by summoning order dated 20.05.2011 passed by the Sessions Judge, Aligarh, the applicant filed Criminal Misc. Application No. 19552 of 2011, Sher Singh Vs. State of U.P. and another, which was disposed of by this Court on 22.09.2011 with the observations that applicant has to move an application before the trial Court under Section 19(4) of Prevention 5 All. Sher Singh Vs State Of U.P. & Anr. 773 of Corruption Act which may be considered and disposed of as expeditiously as possible by the Special Judge in accordance with law. (VI) Thereafter, applicant moved an application in compliance of the said order of this Court, on 30.01.2012 in the trial Court under Section 227 Cr.P.C. to discharge him for want of prosecution sanction as required under Section 19 of Prevention of Corruption Act, which was dismissed by the Special Judge/Additional Sessions Judge, Court No. 1, Aligarh on 09.09.2014 and thereafter, charge was framed against the accused-applicant and co-accused Durgesh on 25.11.2014 under Section 7/13 Prevention of Corruption Act and the fixed date for evidence. (VII) That since sanction for prosecution has not been obtained as required under Section 19(1) of the Prevention of Corruption Act therefore, taking cognizance of the offence and framing of charge and proceedings is illegal and void-ab-initio and continuance of the proceedings are sheer abuse of the process of law. 3. Counter affidavit has been filed by learned A.G.A. taken on record. 4. It appears from the office report dated 4.1.2016 that notice issued to opposite party no. 2 has been served through his son, but till date he has not appear to contest the matter nor has engage any counsel to represent him and also not filed any counter affidavit. 5. Heard Sri Ashutosh yadav, learned counsel for the applicant and Sri Nitin Srivastava, learned A.G.A. for the State and perused the record. 6. Learned counsel for the applicant argued that no prior sanction has been obtained by the complainant as required under Section 19(1) Prevention of Corruption Act, 1988 for prosecution against the applicant, therefore, the entire proceedings stands vitiated and is liable to be quashed. 7. Though the learned A.G.A. tried to justify the impugned order passed by the trial Court, but he also could not dispute the fact that no valid sanction has been obtained from the competent authority and further the opposite party no. 2 has not appeared before this Court to show that whether he had applied for sanction for prosecuting the applicant or any such sanction has been granted by the competent authority under Section 19 (1) Prevention of Corruption Act. 8. We have heard, the rival submissions made by learned counsel for the parties and have perused the impugned order and other material on record. The paramount question arises for consideration in the present case is that whether requirement of sanction has provided under Section 19 of Prevention of Corruption Act is a pre condition for taking cognizance for the offence allegedly committed by the public servant under the Prevention of Corruption Act. 9. In the present case it is admitted fact that the applicant has been summoned for trial for the offence under Section 7/13 Prevention of Corruption Act, but complainant has not obtained valid sanction for prosecution of the applicant, who is the public servant as required by Section 774 INDIAN LAW REPORTS ALLAHABAD SERIES 19(1) Prevention of Corruption Act, 1988 clearly provides that no Court shall take cognizance of the offence except with the prior sanction granted by the competent authority. 10. In this regard Hon'ble Supreme Court in (2005) 12 Supreme Court Cases 709 (Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh and another) has held in Paragraph no. 4 as follows: 4. In our opinion, the contention raised by the learned counsel for the appellant is well founded. Sub-section (1) of Section 19 of the Act, which is relevant for the controversy in dispute, reads as under : "19. Previous sanction necessary for prosecution.(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, - (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office." This section creates a complete bar on the power of the Court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority enumerated in clauses (a) to (c) of this sub-section. 11. In another judgment referred in (2005) 8 SCC 370 State of Karnataka Through CBI Vs. C. Nagarajaswamy has held in Paragraph no. 15 as follows: Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regard sanction may be determined at an early stage. [See Ashok Sahu Vs. Gokul Saikia and Another, 1990 (Supp) SCC 41 and Birendra K. Singh Vs. State of Bihar, JT 2000 (8) SC 248] 12. We are of the view that the principles laid down by the Apex Court in the above referred judgments squarely apply to the facts of the present case, and we are satisfied that the present prosecution against the applicant was lodged without valid sanction and the cognizance taken by the the Sessions Judge, Aligarh is completely without jurisdiction, therefore, the impugned order dated 9.9.2014 and charge framed dated 25.11.2014 by the Special Judge/Additional Sessions Judge, Court No. 1 Aligarh are bad in the eye of law and the entire proceedings of the case conducted so far stands vitiated and liable to be quashed. 5 All. Sant Lal Vs The Chief Audit Officer & Ors. 775 13. In view of the above impugned order dated 9.9.2014, the charge framed dated 25.11.2014 in the present case as well as the entire proceedings of the case no. 100 of 2011 (State Vs. Sher Singh and another) arising out of case crime no. 176 of 2011, under Section 7/13 Prevention of Corruption Act, P.S. Gandhi Park, District Aligarh pending in the Court of Special Judge/Additional Sessions Judge, Court No. 1 Aligarh is hereby quashed. 14. The application is allowed accordingly. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.05.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE SHAMSHER BAHADUR SINGH, J. Writ A No.- 29542 Of 1997 Sant Lal ...Petitioner Versus The Chief Audit Officer & Ors. ...Respondents Counsel for the Petitioner: Ganga Prasad, S.K. Upadhyay Counsel for the Respondents: C.S.C. The dispute relates to non payment of retiral dues. The respondents Have stated that all the payments stated in para 11 of Supplementary Affidavits have been paid except 10 per cent G.P.F. But the court do not find any Justification for non-payment of 10 per cent G.P.F. particularly when petitioner Has retired on 31.10.1994. Withholding of amount of G.P.F. for the last 21 and More years is patently illegal and for this reason respondents are liable to Compensate petitioner by paying appropriate interest. Apparently, delay in Payment of 10 per cent of G.P.F. to the petitioner is without any authority of law. Later on the court allow this writ petition directing respondents to ensure payment of 10 per cent G.P.F. amount to petitioner within two months from the date of production of certified copy of this order along with 12 per cent compound Interest which shall be computed after six months from the date of retirement of Petitioner till actual payment.Petitioner shall also be entitled to cost, which we Quantify to Rs. 50,000/-. Held: Para- Case Law discussed: Cassell & Co. Ltd. Vs. Broome, 1972 AC 1027 and Lord Devlin in Rooks Vs. Barnard and others 1964 AC 1129,the Apex Court in Lucknow Development Authority Vs. M.K.Gupta JT 1993 (6) SC 307,Ghaziabad Development Authorities Vs. Balbir Singh JT 2004 (5)SC 17, Registered Society Vs. Union of India and Others