# Shivraj Singh & Ors v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 1361
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-11
- **Case number:** Application U/S 482. No. 283 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivraj-singh-ors-v-state-of-u-p-ors-50055
- **Pages:** 10

## Headnote

A. Criminal Law-Application under Section
482 CrPC- entire proceedings of Sessions
Trial under Sections 120B, 121, 121A, 420,
467, 468 IPC- Sections 13, 18, 20, 21,
23(2), 38, 39 and 40 the Unlawful
Activities
(Prevention)
Act,
1967-
challenged-validity
pf
sanction
for
prosecution challenged- de hors Section
45(2) of the Act of 1967-supplemntary
case diary submitted after a gap of about
12 years-sanction also given.

B. Difference between a invalid sanction
for
prosecution-and
absence
of
prosecution-sanction for prosecution was
given
way
back
in
2010-
grant
of
sanction-administrative
sanction-
sanctioning authority required to ensure -
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
at first hand the acts and facts- constitute
offence-question of validity of sanction
can be raised before the trial courtapplication dismissed. (Paragraphs 23 to
26)

HELD:

When this Court examined this case on facts
and law, it is decipherable that the Investigating
Agency undoubtedly has power to proceed with
further investigation and the prior approval for
proceeding with such investigation is not
required under the law. Of course, time and
again, it has also been the view of the Hon'ble
Apex Court, therefore, the supplementary case
diary appending the order 3.3.2022, has rightly
been submitted by the Investigating Officer
before the trial court. (Para 23)

So far as the order dated 3.3.2022 passed by
the review authority is concerned, the matter
pertains to year 2010 and about 12 years have
been passed. Further, it is settled that the grant
of sanction is merely an administrative function
and sanctioning authority is required to reach
over satisfaction, at the first hand that acts and
facts would constitute the offence and, now,
after lapse of 12 years, it would not be just and
fair to initiate proceeding of grant of sanction to
put the applicants and other side for another
innings of litigations and keep the trial pending
indefinite long period. (Para 24)

It has been enunciated that there is distinction
between 'absence of sanction' and 'invalidity of
sanction'. Absence of sanction can be raised and
agitated at the very inception but the invalidity
or illegality of the sanction is to be raised during
the trial. (Para 25)

Admittedly, the sanction was granted on
3.8.2010 and, thus, prima facie it is not a case
of absence of sanction but the applicantsaccused persons have raised certain illegality
and
invalidity
in
grant
of
sanction
for
prosecution and those are three folds. Firstly,
the Review authority was not in existence at the
time of grant of sanction; secondly, there was
no material before the sanctioning authority;
and thirdly Section 173 (8) is not meant for
filling the lacunaes. All the pleas are with
respect to invalidity said to be creeping in the
impugned order of sanction. As has been
discussed in preceding paragraphs, the instant
matter is not a case of absence of sanction and
if there is any alleged invalidity prevailing in the
order
of
sanction,
the
same
can
be
raised/assailed before the trial court. (Para 26)

Application dismissed. (E-14)

List of Cases cited:

1.Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed
Ansari Vs St. of UP & anr., 2021 LawSuit(All)
1115

## Text

4 All. Shivraj Singh & Ors. Vs. State of U.P. & Ors.
1361
Supreme
Court
94
wherein
it
is
specifically held that in case of verification
of caste certificate with regard to its
genuineness the District Level and State
level screening committee as already been
constituted by the Government of India, in
case if any establishment is having doubt
with
regard
to
the
caste
certificate
pertaining to SC/ST the same may be
referred
to
District
level
screening
committee which is the only competent
authority to comment upon the caste
certificate of SC/ST.

19. On the precise quarry as made
before
Shri
P.N.Rai
appearing
for
respondents regarding the regarding the
genesis of the disciplinary proceedings
whatsoever has been initiated against the
petitioner, in reply the learned counsel for
the respondent relied upon the narration in
the counter affidavit wherein it has also
apprised the court that the genuineness of
the said caste certificate shall only be
determined by the District Level Screening
Committee, but the counter affidavit as
preferred by the responding authorities
lacking any report determined by the
District Level Screening Committee over
the issue of caste certificate as submitted by
the petitioner at the time of seeking
appointment over the post concerned and as
such the appreciation of the law as well as
fact could not be stated properly by Shri
P.N. Rai, learned standing counsel.

20. There is hardly any reference of
any Inquiry Report or the determination
made by the District Level Screening
Committee over the issue of Caste
certificate of the petitioner as such the
entire proceedings as initiated in the shape
of
disciplinary
proceedings
which
culminated into the order dated 31.10.2007
through which the services of the petitioner
has been dismissed and the same has been
upheld at the level of appeal vide order
dated 20.2.2009.

21. In view of the above, writ petition
is allowed. Both the orders i.e, order dated
20.2.2009 passed by the appellate authority
i.e, respondent no.2 and the order dated
31.10.2007 passed by respondent no.3 are
hereby quashed and set aside.
----------
(2023) 4 ILRA 1361
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.04.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 283 of 2023

Shivraj Singh & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri Kapil Misra

Counsel for the Opposite Parties:
G.A.

A. Criminal Law-Application under Section
482 CrPC- entire proceedings of Sessions
Trial under Sections 120B, 121, 121A, 420,
467, 468 IPC- Sections 13, 18, 20, 21,
23(2), 38, 39 and 40 the Unlawful
Activities
(Prevention)
Act,
1967-
challenged-validity
pf
sanction
for
prosecution challenged- de hors Section
45(2) of the Act of 1967-supplemntary
case diary submitted after a gap of about
12 years-sanction also given.

B. Difference between a invalid sanction
for
prosecution-and
absence
of
prosecution-sanction for prosecution was
given
way
back
in
2010-
grant
of
sanction-administrative
sanction-
sanctioning authority required to ensure -
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
at first hand the acts and facts- constitute
offence-question of validity of sanction
can be raised before the trial courtapplication dismissed. (Paragraphs 23 to
26)

HELD:

When this Court examined this case on facts
and law, it is decipherable that the Investigating
Agency undoubtedly has power to proceed with
further investigation and the prior approval for
proceeding with such investigation is not
required under the law. Of course, time and
again, it has also been the view of the Hon'ble
Apex Court, therefore, the supplementary case
diary appending the order 3.3.2022, has rightly
been submitted by the Investigating Officer
before the trial court. (Para 23)

So far as the order dated 3.3.2022 passed by
the review authority is concerned, the matter
pertains to year 2010 and about 12 years have
been passed. Further, it is settled that the grant
of sanction is merely an administrative function
and sanctioning authority is required to reach
over satisfaction, at the first hand that acts and
facts would constitute the offence and, now,
after lapse of 12 years, it would not be just and
fair to initiate proceeding of grant of sanction to
put the applicants and other side for another
innings of litigations and keep the trial pending
indefinite long period. (Para 24)

It has been enunciated that there is distinction
between 'absence of sanction' and 'invalidity of
sanction'. Absence of sanction can be raised and
agitated at the very inception but the invalidity
or illegality of the sanction is to be raised during
the trial. (Para 25)

Admittedly, the sanction was granted on
3.8.2010 and, thus, prima facie it is not a case
of absence of sanction but the applicantsaccused persons have raised certain illegality
and
invalidity
in
grant
of
sanction
for
prosecution and those are three folds. Firstly,
the Review authority was not in existence at the
time of grant of sanction; secondly, there was
no material before the sanctioning authority;
and thirdly Section 173 (8) is not meant for
filling the lacunaes. All the pleas are with
respect to invalidity said to be creeping in the
impugned order of sanction. As has been
discussed in preceding paragraphs, the instant
matter is not a case of absence of sanction and
if there is any alleged invalidity prevailing in the
order
of
sanction,
the
same
can
be
raised/assailed before the trial court. (Para 26)

Application dismissed. (E-14)

List of Cases cited:

1.Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed
Ansari Vs St. of UP & anr., 2021 LawSuit(All)
1115

2. Mansukhlal Vithaldas Chauhan Vs St. of Guj.
(1997) 7 SCC 622

3.C.B.I. & anr. Vs Dhirendra Kumar Agrawal &
anr., (2020) 17 SCC 664

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Jyotindra Mishra, learned
Senior Advocate, assisted by Sri Kapil
Mishra, learned counsel for the applicants,
Sri Shiv Nath Tilhari, learned A.G.A.-I for
the State and perused the material placed
on record.

2. By means of instant application, the
applicants have assailed the sanction orders
dated 3.8.2010 & 3.3.2022 and entire
proceedings in Sessions Trial Nos.1245 of
2010 and 13 of 2013 arising out of Case
Crime No.30 of 2010 under Sections 120B,
121, 121A, 420, 467, 468 I.P.C. & 13, 18,
20, 21, 23 (2), 38, 39, 40 UAPA (State Vs.
Shivraj Singh and another) & (State Vs.
Rajendra Kumar @ Arvind) relating to
Police Station Kidwai Nagar, District
Kanpur Nagar pending in the court of ASJ3/Special NIA/ATS Court, Lucknow.

3. Factual matrix of the case is that on
8.2.2010, three persons, namely, Shivraj
Singh, Rajendra Kumar @ Arvind Kumar
4 All. Shivraj Singh & Ors. Vs. State of U.P. & Ors.
1363
and Kripa Shankar were arrested by Uttar
Pradesh State Task Force team, headed by
Sub Inspector Rajeev Dwivedi at 4.50 pm.
The First Information Report was lodged at
Police Station Kidwai Nagar on the
complaint
of
Sub
Inspector
Rajeev
Dwivedi. Thereafter, a letter was sent by
Investigating Officer to DIG (ATS) on
7.7.2010
for
grant
of
sanction
of
prosecution and the DIG (ATS) sent a letter
on 12.7.2010 to the Secretary, Department
of Home, Government of UP making a
request
for
grant
of
sanction
for
prosecution.

4. After considering the aforesaid
request, sanction for prosecution was
granted by the State Government, vide
letter dated 3.8.2010. The charge sheet was
filed by the Investigating Officer and on
4.8.2011, charges were framed against
accused Shivraj Singh and Kripa Shankar
in Sessions Trial No.1245 of 2010 and
against the co-accused Rajendra Kumar @
Arvind on 8.3.2023 in Sessions Trial No.13
of 2013. The prosecution witnesses, i.e.,
P.W. 1 to P.W. 13 were examined and
while cross-examination of witnesses, they
admitted that neither there was any
literature in hand writing of the accused
persons nor there was any evidence of
extorting money thereof at Kanpur Nagar
and further addmitted that techinically
somebody has printed or published these
materials other than the accused persons.

5. On 8.6.2016 the applicants moved
an application before the trial court for
disposal of the case. On 10.2.2021, they
also filed an application for framing of
question under Section 313 of Cr.P.C.
and statement of the accused was
recorded on 15.2.2021. On 8.1.2022 all
files of Sessions Trial No.1245 of 2010,
13 of 2013, 1265 of 2010, 1265A of 2010
were transferred to the learned ASJ3/Special NIA/ ATS Court, Lucknow. On
4.8.2022, the accused persons came to
know
that
vide
application
dated
22.3.2022, supplementary case diary and
amended
order
of
sanction
for
prosecution dated 3.3.2022 has been
submitted before the court and, thereafter,
on 29.9.2022, an objection was filed by
the co-accused with a request that trial
court may cancel the supplementary case
diary and the sanction order. Reply to the
objection dated 29.9.2022 was also filed
by
the
Investigating
Agency
on
24.11.2022 and, thereafter, on 24.11.2022
itself, the trial court granted permission
to the prosecution upon the application
under Section 311 Cr.P.C. and, thus, the
applicant being aggrieved by the sanction
orders dated 3.8.2010 and 3.3.2022
including the entire proceedings initiated
in Sessions Trial Nos.1245 of 2010 and
13 of 2013, has instituted the instant
application.

6. Learned Senior Counsel appearing
for the applicants contends that at the very
initial stage, intent of the prosecution is
dubious, as on the basis of unconfirmed
information, the applicants were arrested
without cogent piece of evidence; as the
First Information Report was lodged
against the applicants and the charge sheet
has also been filed. Thereafter, without
prior intimation to the applicants, the case
was transferred from Kanpur to Lucknow
and, while taking the perplexing action
supplementary case diary and the amended
order of sanction dated 3.3.2022 was filed
before the trial court. Although as soon as
this fact came into knowledge of the
applicants,
they
filed
objections
on
29.9.2022 but the trial court, without
applying its judicial mind, has accepted the
supplementary case diary and issued order
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
of sanction for prosecution on 3.3.2022
which was about 12 years after the first
sanction was granted.

7. Adding his arguments, he submits
that from several dates fixed before the trial
court and the order impugned passed
thereafter, it is evident that the trial court
has acted in a very cavaliar and supine
manner. He submtis that first of all, when
the matter was transferred from Kanpur to
Lucknow, it was not intimated to the
applicants
and,
thereafter,
when
the
objection was filed by the applicants on
29.9.2022 for cancellation of supplemetary
case diary and order of sanction on the
ground of being unlawful sanction, the trial
court granted time to the Investigating
Agency to file objection, which was filed
on
24.11.2022,
and,
thereafter,
on
2.12.2022, an application on behalf of the
accused was filed for haziri mafi on the
ground of illness but on the same day, the
trial court recorded statement of witness
Prashant, who was Special Secretary,
Home Government of U.P. and denied the
opportunity
of
cross-examination.
He
submits that it is on 15.12.2022, when it
came in the knowledge that on 24.12.2022,
the prosecution is granted permission by
the trial court upon its application under
Section 313 of Cr.P.C. and that too without
intimating the accused and without disposal
of objection dated 29.9.2022.

8. Continuing with his arguments, he
submits that provision of Section 45 (2) of the
Unlawful Activities (Prevention) Act, 1967
(hereinafter referred to as 'the Act 1967')
clearly provides that 'sanction of prosecution
shall be given only after considering the
report of such authority appointed by the
Central Government or, as the case may be,
the State Government, which shall make an
independent review of evidence'. He submits
that from the aforesaid provision, it is very
clear that sanction of prosecution can be
given only after considering the report of
authority.
Meaning
thereby
that
the
sanctioning authority must have gone through
the report of the authority appointed by the
Central Government or the State Government
as the case may be but in the instant matter
the first sanction was granted in the year 2010
and there was no any review authority at the
very point of time and, suddenly, on 3.3.2022
in the garb of provisions of Section 173 (8) of
Cr.P.C., the sanction for prosecution was
granted and supplementary case diary was
submitted before the trial court along with the
order of sanction for prosecution, which is
totally unlawful and against the mandate of
Sub Section (2) of Section 45 of the Act
1967. He added that first sanction dated
3.8.2010 is invalid as the authority was not
appointed
by
the
Government
for
independent review of evidences gathered in
the course of inviestigation and further there
was no material before the sanctioning
authority for considering the same as per the
mandate of Sub Section (2) of Section 45 of
the Act 1967.

9. Further argued that Investigating
Officer filed the charge sheet against the
applicants in a mechanical manner and that
is without collecting any evidence and
further no offence under Sections under
Sections 120B, 121, 121A, 420, 467, 468
I.P.C. & 13, 18, 20, 21, 23 (2), 38, 39, 40
UAPA are made out against the applicants
and the instant matter is an example of
sheer abuse of process of law and,
therefore, the entire criminal proceedings
initiated against the applicants are liable to
be quashed.

10. In support of his contention, he
has placed reliance on a Judgment reported
in 2021 LawSuit(All) 1115, Sheikh Javed
4 All. Shivraj Singh & Ors. Vs. State of U.P. & Ors.
1365
Iqbal @ Ashfaq Ansari @ Javed Ansari
Vs. State of UP & Another and has
referred paras 35, 36 and 37 of the
aforesaid Judgment. Paras 35, 36 and 37 of
the aforesaid Judgment are quoted as
under:-

"35. The main object of imposing
condition of independent review by an
authority
appointed
by
the
Central
Government or the State Government as
the case may be, was to prevent the misuse
of the stringent provisions of UAPA by the
law enforcing agencies. Further, when
legislature in its wisdom has prescribed a
specific mandatory procedure to accord
sanction, it was the duty of sanctioning
authority
to
follow
that
statutory
procedure. But unfortunately, there is no
material on record to show even primafacie that the recommendation of any
authority who have independently reviewed
the evidence collected by the investigating
authority was ever placed before the
competent
authority
at
the
time
of
obtaining sanction under sub-section (1) of
Section 45 of the UAPA. In other words,
the competent authority while granting
sanction, in the present case was deprived
of
the
relevant
material
i.e.
recommendation of independent authority
that was mandatory to consider as to
whether sanction should or should not be
granted.

36. Now coming to the question
as to whether this inherent violation of the
mandatory procedure is to be taken care of
by the trial Court in trial, as in this case
trial has moved forward and many
prosecution witnesses have been examined
by the prosecution, or the defect in the
sanction granted in this case is of such a
nature, which should not wait till the
conclusion of the trial. In order to
appreciate this point it is desirable to have
a look at the law with regard to the
sanction.

37. Hon'ble Supreme Court in
C.B.I. vs. Ashok Kumar Aggarwal ,
MANU/SC/1220/2013,relied
on
by
Ld
Additional Government Advocate, while
deliberating the validity of sanction held as
under:-

"7. The prosecution has to satisfy
the court that at the time of sending the
matter for grant of sanction by the
competent authority, adequate material for
such grant was made available to the said
authority. This may also be evident from
the sanction order, in case it is extremely
comprehensive, as all the facts and
circumstances of the case may be spelt out
in the sanction order. However, in every
individual case, the court has to find out
whether there has been an application of
mind on the part of the sanctioning
authority concerned on the material placed
before it. It is so necessary for the reason
that there is an obligation on the
sanctioning authority to discharge its duty
to give or withhold sanction only after
having full knowledge of the material facts
of the case. Grant of sanction is not a mere
formality. Therefore, the provisions in
regard to the sanction must be observed
with complete strictness keeping in mind
the public interest and the protection
available to the accused against whom the
sanction is sought.

It is to be kept in mind that
sanction lifts the bar for prosecution.
Therefore, it is not an acrimonious exercise
but a solemn and sacrosanct act which
affords protection to the government
servant
against
frivolous
prosecution.
Further, it is a weapon to discourage
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
vexatious prosecution and is a safeguard
for the innocent, though not a shield for the
guilty.

Consideration of the material
implies application of mind. Therefore, the
order of sanction must ex facie disclose
that
the
sanctioning
authority
had
considered the evidence and other material
placed before it. In every individual case,
the prosecution has to establish and satisfy
the court by leading evidence that those
facts were placed before the sanctioning
authority and the authority had applied its
mind on the same. If the sanction order on
its face indicates that all relevant material
i.e. FIR, disclosure statements, recovery
memos, draft charge sheet and other
materials on record were placed before the
sanctioning authority and if it is further
discernible from the recital of the sanction
order
that
the
sanctioning
authority
perused all the material, an inference may
be drawn that the sanction had been
granted in accordance with law. This
becomes necessary in case the court is to
examine the validity of the order of
sanction inter-alia on the ground that the
order suffers from the vice of total nonapplication of mind.

8. In view of the above, the legal
propositions can be summarised as under:

(a) The prosecution must send the
entire relevant record to the sanctioning
authority including the FIR, disclosure
statements,
statements
of
witnesses,
recovery memos, draft charge sheet and all
other relevant material. The record so sent
should also contain the material/document,
if any, which may tilt the balance in favour
of the accused and on the basis of which,
the
competent
authority
may
refuse
sanction.

(b) The authority itself has to do
complete and conscious scrutiny of the
whole
record
so
produced
by
the
prosecution independently applying its
mind and taking into consideration all the
relevant facts before grant of sanction
while discharging its duty to give or
withhold the sanction.

(c) The power to grant sanction is
to be exercised strictly keeping in mind the
public interest and the protection available
to the accused against whom the sanction is
sought.

(d) The order of sanction should
make it evident that the authority had been
aware of all relevant facts/materials and
had applied its mind to all the relevant
material.

(e) In every individual case, the
prosecution has to establish and satisfy the
court by leading evidence that the entire
relevant facts had been placed before the
sanctioning authority and the authority had
applied its mind on the same and that the
sanction had been granted in accordance
with law."

11. Placing reliance on the aforesaid
Judgment, learned counsel for the applicant
submits that object of the provision
regarding
independent
review
by
an
autority
appointed
by
the
Central
Government or State Government, is to
prevent misuse of the stringent provisions
of the Act 1967. Thus, the pvoisions of Sub
Sections (1) and (2) of Section 45 of the
1967 are more relevant and important.

12. Further placing reliance upon a
Judgment of the Apex Court rendered in
case of Mansukhlal Vithaldas Chauhan
Vs. State of Gujarat (1997) 7 SCC 622,
4 All. Shivraj Singh & Ors. Vs. State of U.P. & Ors.
1367
he has referred paras 38 and 39 of the
aforesaid Judgment. Paras 38 and 39 of the
aforesaid Judgment are quoted as under:-

"38. From the notings of the
Secretariat file, contained in Exhibit 70, as
also the conflicting statement made by the
Secretary and the Under Secretary, it is not
possible to hold as to who actually granted
the sanction. The Gujarat High Court has
held that the Sanction was granted by the
Deputy Secretary, Shri Lade (PW-8),
ignoring the fact that the file was also
placed before the Secretary and he had
also put his signature thereon. The file had,
admitted, been sent to the office of the
Chief Minister from where it was received
back on 30th January, 1985 and as such it
is not understandable as to how sanction
could be granted on 23rd January, 1985.
This confusion also appears to be the result
of the order passed by the High Court that
the sanction must be granted within one
month. Secretary being the head of the
Department stated on oath that he had
granted the sanction, particularly as the
mandamus was directed to him and he had
to comply with that direction Deputy
Secretary, who actually issued the order of
sanction, had signed it and, therefore, he
owned the sanction and stated that he had
sanctioned the prosecution. Both tried to
exhibit that they had faithfully obeyed the
mandamus issued by the High Court and
attempted to save their skin, destroying, in
the process, the legality and validity of the
sanction which constituted the basis of
appellant's
prosecution
with
the
consequence that whole proceedings stood
void ab initio.

39. Normally when the sanction
order is held to be bad, the case is remitted
back to the authority for re-consideration
of the matter and to pass a fresh order of
sanction in accordance with law. But in the
instant case, the incident is of 1983 and
therefore, after a lapse of fourteen years, it
will not, in our opinion, be fair just to
direct that the proceedings may again be
initiated from the stage of sanction so as to
expose the appellant to another innings of
litigation and keep him on trial for an
indefinitely long period contrary to the
mandate of Article 21 of the Constitution
which, as a part of right to life,
philosophizes
early
and
of
criminal
proceedings through a speedy trial."

13. Referring the aforesaid, he added
that it is trite law that once it is found that
sanction is not as per the law, the matter
must be sent back to the authority for
reconsideration of the matter and to pass
fresh order but in the instant matter,
contrary to the aforesaid proposition of law,
even after passing of about 11 to 12 years,
the order dated 3.8.2010 has been validated
by way of further investigation, thereby
filing supplementary charge sheet and a
review order.

14. While concluding his argument,
he contended that sanction for prosecution
as envisaged in Sub Section (2) of Section
25 of the Act 1967 is materially different
than
the
provision
of
sanction
for
prosecution provided under Section 19 of
the Prevention of Corruption Act, 1947
(hereinafter referred to as 'the Act 1947').
He further added that looking into the
stringent law, it appears that the intent of
the legislature was very clear to specifically
put
the
provisions
that
'only
after
considering the report of such authority',
the authorities would take decision with
respect to sanction for prosecution and this
provision is not given in 'the Act, 1947'.
Thus, both the provisions are not similar
and any ratio of Judgment, which was held,
1368 INDIAN LAW REPORTS ALLAHABAD SERIES
considering the provisions of Act 1947
would not be applicable in the present
matter. Therefore, the order dated 3.8.2010
and
3.3.2022
including
the
entire
proceeding
of
sessions
trials
aforementioned vitiate in the eyes of law
and thus, the same are liable to be quashed.

15. Per contra, Sri Shiv Nath Tilahari,
learned counsel appearing for the State has
opposed the conention aforesaid with
fullest vehemence and added that learned
counsel for the applicants has tried to twist
the actual fact and law and has interpreted
the same in his own manner. He submits
that provision of Section 45 of Act 1967 is
very clear in its meaning and that mandates
that the sanction for prosecution under Sub
Section (1) of Section 45 shall be given
within such time as may be prescribed
considering the report of the authorities
appointed
by
the
Central
or
State
Government who will have independently
reviewed the evidences gathered during the
course of investigation and then the
recommendation is to be made to the
Central Government or State Government
as the case may be.

16. He further submits that the
Investigating Agency has power to gather
the evidence by further investigation and
even prior permission by the trial court is
not required. The Investigating Agency
filed supplementary case diary including
the letter dated 3.3.2022 and that was
considered by the trial court as the same is
permissible under the law. He further
contended that vilidity of the sanction for
prosecution can be considered during the
trial and also submitted that there is
material difference in between the 'invalid
sanction' and 'absence of sanction'. He
submits that it is settled law that absence of
sanction can be looked into at the
threshhold but as far as the validity of
sanction is concerned that is the subject
matter of the trial and so far as the present
matter is concerned, admittedly, it is not a
case of absence of sanction as evidently the
prosecution sanction has been done and,
therefore, it is not the stage where allegedly
invalid sanction can be challenged.

17. In support of his submissions, he
has placed reliance on a Judgment of the
Apex Court reported in (2020) 17 SCC
664, Central Bureau of Investigation and
another Vs. Dhirendra Kumar Agrawal
and another and has referred on paragraph
11 of the above said Judgment. Para 11 of
the aforesaid Judgment is quoted as under:-

"11. Further the issue relating to
validity of the sanction for prosecution
could have been considered only during
trial since essentially the conclusion
reached by the High Court is with regard
to the defective sanction since according to
the High Court, the procedure of providing
opportunity
for
explanation
was
not
followed which will result in the sanction
being defective. In that regard, the
decision in the case of Dinesh Kumar Vs.
Chairman, Airport Authority of India,
(2012) 1 SCC 532 relied upon by the
learned Additional Solicitor General
would be relevant since it is held therein
that there is a distinction between the
absence of sanction and the alleged
invalidity on account of nonapplication of
mind. The absence of sanction no doubt
can be agitated at the threshold but the
invalidity of the sanction is to be raised
during the trial. In the instant facts,
admittedly there is a sanction though the
accused seek to pick holes in the manner
the sanction has been granted and to
claim that the same is defective which is
a matter to be considered in the trial."
4 All. Shivraj Singh & Ors. Vs. State of U.P. & Ors.
1369

18. Placing reliance on the aforesaid
Judgment, he added that ratio of the
Judgment aforesaid is very clear that
validity of the sanction for prosecution
could be considered during the course of
trial and distinction has also been drawn in
between
'absence
of
sanction'
and
'invalidity of sanction' including nonapplication of mind. He further added that
this is a case where the applicants have
been charged for waging war against the
Government of India and, thus, is of serious
concern
and,
therefore,
no
liberal
interpretation can be given so far as the
procedure prescribed under the Act, 1967 is
concerned.

19. He finally submits that law is very
clear on this point and this case is not of
'absence of sanction' and if there is any
invalidity or defect in 'the sanction for
prosecution',
the
applicants
have
opportunity to raise it before the trial court
at the time of trial, therefore, submission is
that instant application is liable to be
dismissed.

20. Having heard learned counsel for
the parties and after perusal of the material
placed on record, the conundrum is that
whether the first sanction granted on
3.8.2010 and, later on, supplemented vide
review order dated 3.3.2022, is a valid
sanction of prosecution or not. At the very
inception,
when
the
sanction
for
prosecution
was
sought,
the
State
Government, vide order dated 3.8.2010
granted sanction for prosecution with
respect to the applicants. The matter
proceeded and, thereafter, the Investigating
Officer started further investigation and a
supplementary case diary was submitted
before the trial court appending therewith
the copy of the order dated 3.3.2022 of the
review authority and, thus, further question
is that by way of deriving powers under
Section 173 (8) of Cr.P.C., whether the
further investigation can be done to fill up
the gaps/lacunaes of the investigation.

21. It is borne out from the arguments
advanced by the learned counsel for the
applicants that on 3.8.2010, first sanction of
prosecution was granted by the State. So
far as the present matter is concerned, the
provisions with respect to the sanction of
the prosecution contains in Section 45 (1)
and (2) of the Act 1967 wherein the
mandate of the provision is that at the time
of grant of sanction of proseution, the
authority granting such sanction, shall
proceed 'only after considering the
report' of an authority appointed by the
Central
Government
or
the
State
Government. The contention of the
learned counsel for the applicants is that
on 3.8.2010, there was no report of the
authority appointed by the Central
Government or the State Government
before the sanctioning authority, as the
review autyhority was appointed after
the first sanction granted by the State
Government on 3.8.2010 and further
submission is that the provision of
Section 45 (2) of the Act 1967 is not
similar to the provisions of Section 19 of
the Act 1947.

22. The crux of the contention of the
State is that the sanction for prosecution
has been granted and that too is in
consonance with the provision of the Act
1967. Further since the matter was
proceeded after framing of charges and,
admittedly, there is an order of sanction for
prosecution, thus, this cannot be said that
there is absence of sanction and if there is
any invalidity, which is being raised at this
stage, the same can be looked into by the
trial court.
1370 INDIAN LAW REPORTS ALLAHABAD SERIES

23. When this Court examined this
case on facts and law, it is decipherable that
the Investigating Agency undoubtedly has
power to proceed with further investigation
and the prior approval for proceeding with
such investigation is not required under the
law. Of course, time and again, it has also
been the view of the Hon'ble Apex Court,
therefore, the supplementary case diary
appending the order 3.3.2022, has rightly
been submitted by the Investigating Officer
before the trial court.

24. So far as the order dated 3.3.2022
passed
by
the
review
authority
is
concerned, the matter pertains to year 2010
and about 12 years have been passed.
Further, it is settled that the grant of
sanction is merely an administrative
function and sanctioning authority is
required to reach over satisfaction, at the
first hand that acts and facts would
constitute the offence and, now, after lapse
of 12 years, it would not be just and fair to
initiate proceeding of grant of sanction to
put the applicants and other side for another
innings of litigations and keep the trial
pending indefinite long period.

25. It has been enuntiated that there is
distinction between 'absence of sanction'
and 'invalidity of sanction'. Absence of
sanction can be raised and agitated at the
very inception but the invalidity or
illegality of the sanction is to be raised
during the trial.

26. Admittedly, the sanction was
granted on 3.8.2010 and, thus, prima facie
it is not a case of absence of sanction but
the applicants-accused persons have raised
certain illegality and invalidity in grant of
sanction for prosecution and those are three
folds. Firstly, the Review authority was not
in existence at the time of grant of sanction;
secondly, there was no material before the
sanctioning authority; and thirdly Section
173 (8) is not meant for filling the lacunaes.
All the pleas are with respect to invalidity
said to be creeping in the impugned order
of sanction. As has been discussed in
preceding paragraphs, the instant matter is
not a case of absence of sanction and if
there is any alleged invalidity prevailing in
the order of sanction, the same can be
raised/assailed before the trial court.

27. In view of the aforesaid
submissions and discussions, this Court
does not find any merit in this application.

28. Consequently, the application is
hereby dismissed.

29. However, the applicants-accused
persons are at liberty to raise their
grievance with respect to the invalidity of
the sanction, if any, before the trial court
concerned.
----------

(2023) 4 ILRA 1370
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.04.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Civil Misc. Review Application Defective No. 5 of
2022

Jai Singh ...Applicant
Versus
The State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Raj Vikram Singh, In Person

Counsel for the Respondents: