# Smt. Shiela Gupta v. State of U.P. & Anr

- **Citation:** (2022) 11 ILRA 439
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-26
- **Case number:** Crl. Misc. Application U/S 482 No. 11657 of 2022
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shiela-gupta-v-state-of-u-p-anr-47837
- **Pages:** 8

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 406, 120-B, 420, 467, 468
& 471 - The Code of criminal procedure,
1973 - Section 482 - Inherent power -
when on the basis of evidence on record,
prima facie a case is made out and
ingredients thereof are present, Court
cannot exercise inherent powers which
will cause sudden death of criminal
proceedings.(Para -17 )

Dispute
arising
out
of
a
Committee
of
Management of Maternity Hospital - under
Jaswant Rai Churamani Trust Society - new
Management Committee took over - applicant in
connivance
with
other
accused
persons
prepared a lease deed - misrepresenting herself
to be a trustee of said hospital - delay of six
years in lodging an F.I.R. - applicant aggrieved
by criminal proceedings, charge sheet and its
cognizance - hence application.(Para - 2,3,13)

HELD:-Prima
facie
case
made
out
and
ingredients thereof are present. Facts and
circumstances of case do not fall under category
that '' allegations are frivolous' or ''do not
disclose any offence' and therefore, it does not
fall under ''exceptionally rare cases' wherein
440 INDIAN LAW REPORTS ALLAHABAD SERIES
exercise of inherent powers is warranted. No
ground to quash the criminal proceedings
against the applicant.(Para - 13,14,15,1617)

Application u/s 482 Cr.P.C. rejected. (E-7)

List of Cases cited:-

## Text

11 All. Smt. Shiela Gupta Vs. State of U.P. & Anr.
439
abridging the proceeding in the suit rather
than permitting prolongation thereof."

21. Reading of para-12 of the above
judgement discloses that the Division
Bench has categorically held that the issue
of law can be decided as a preliminary
issue only where it is such that a decision
does not necessitate investigation into facts
and it relates either to jurisdiction of the
Court or to the suit being barred under any
prevailing law. The said observation in the
judgement supports the contention of the
plaintiff/respondent no.1 and, thus, the said
judgement does not come in the aid of the
revisionist as the trial Court in the instant
case is of the opinion that question of
jurisdiction in the instant case is a mixed
question of fact and law.

22. The another judgement, i.e., Mrs.
Shahnaz Husain (supra) relied upon by the
learned counsel for the revisionist is also of
no help to the revisionist as in the said case
also this Court had held that the plea
regarding jurisdiction should be decided as
preliminary issue. In the instant case, such
proposition of law does not apply in view
of the finding returned by the trial Court.

23. So far as the third judgement, i.e.,
Smt. Subhash Bhalla (supra) relied upon
by the learned counsel for the revisionist is
concerned, the same is also not applicable
in the facts of the present case as in the said
case, the Court was considering the scope
of Order 7 Rule 11 C.P.C. and Order 14
Rule 2 (2) C.P.C.

24. Thus, for the reasons given above,
this Court finds that the revision lacks
merit. It is accordingly, dismissed with no
order as to costs.
----------
(2022) 11 ILRA 439
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. Application U/S 482 No. 11657 of
2022

Smt. Shiela Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Dileep Kumar Pandey

Counsel for the Opposite Parties:
G.A., Sri Swetashwa Agarwal, Sri Srijan
Pandey

(A) Criminal Law - Indian Penal Code,
1860 - Sections 406, 120-B, 420, 467, 468
& 471 - The Code of criminal procedure,
1973 - Section 482 - Inherent power -
when on the basis of evidence on record,
prima facie a case is made out and
ingredients thereof are present, Court
cannot exercise inherent powers which
will cause sudden death of criminal
proceedings.(Para -17 )

Dispute
arising
out
of
a
Committee
of
Management of Maternity Hospital - under
Jaswant Rai Churamani Trust Society - new
Management Committee took over - applicant in
connivance
with
other
accused
persons
prepared a lease deed - misrepresenting herself
to be a trustee of said hospital - delay of six
years in lodging an F.I.R. - applicant aggrieved
by criminal proceedings, charge sheet and its
cognizance - hence application.(Para - 2,3,13)

HELD:-Prima
facie
case
made
out
and
ingredients thereof are present. Facts and
circumstances of case do not fall under category
that '' allegations are frivolous' or ''do not
disclose any offence' and therefore, it does not
fall under ''exceptionally rare cases' wherein
440 INDIAN LAW REPORTS ALLAHABAD SERIES
exercise of inherent powers is warranted. No
ground to quash the criminal proceedings
against the applicant.(Para - 13,14,15,1617)

Application u/s 482 Cr.P.C. rejected. (E-7)

List of Cases cited:-

1. St. of Haryana Vs Bhajan Lal , 1992 Supp (1)
SCC 335

2. Zandu Pharmaceutical Works Ltd Vs Mohd.
Sharaful Haque, (2005) 1 SCC 122

3. Ahmed Ali Quarashi & anr. Vs The St. of U.P.
, 2020 SCC Online SC 107

4. Joseph Salvaraja A Vs St. of Guj. ,(2011) 7
SCC 59

5. Sushil Sethi & anr. Vs The St. of A.P. & ors.
,(2020) 3 SCC, 240

6. Priti Saraf & anr. Vs St. of NCT of Delhi & anr.
, 2021 SCC Online SC 206

7. Sau. Kamal Shivaji Pokarnekar Vs The St. of
Maha. , (2019) 14 SCC 350

8. St. of Karn. Vs M. Devendrappa , 2015 (3)
SCC 424

9. I.O.C. Vs NEPC India Ltd. & ors., (2006)6 SCC 736

10. M/s Neeharika Infrastructure Pvt. Ltd Vs St.
of Maha. & ors. , (2020) 10 SCC 118

11. Ramveer Upadhyay & anr. Vs St. of U.P.&
anr. ,2022 SCC Online SC 484

12. Wyeth Ltd. & ors. Vs St. of Bihar & anr.,
Criminal Appeal No.1224 of 2022 (S.L. P. (Crl.)
No.10730 OF 2018)

13. Vijay Kumar Ghai & ors. Vs St. of W.B. &
ors., (2022) 7 SCC 124

14. R K Dalmia Vs Delhi Administration, (1963)
1 SCR 253

15. Sudhir Shantilal Mehta Vs C.B.I., (2009) 8
SCC 1
16. Prof. R.K. Vijayasarathy& anr. Vs Sudha
Seetharamb& anr., (2019) 16 SCC 739

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Dispute in the present case is
arising out of a Committee of Management
of Sushila Jaswant Rai Maternity Hospital,
Meerut under Jaswant Rai Churamani Trust
Society. Undisputedly, the applicant was
appointed by a resolution of society dated
02.10.2001 as a Chairman of said hospital
and she remained on the said post till
15.02.2019, thereafter, one Rajiv Kumar
Gupta was appointed as a Chairman of the
said hospital.

2. It is a case of complainant (one of
trustee/chairman of the Trust) that said new
committee came to know in July, 2020 that
applicant in connivance with other accused
persons
prepared
a
lease
deed
by
misrepresenting herself to be a trustee of
said hospital and executed in favour of
Shreya Medicare Private Ltd. through its
Director Mridul Sharma w/o Dr. Malay
Sharma and handed over major part of
hospital to them and thereby caused
unlawful loss to society and to hospital and
unlawful gain in favour of accused persons.

3. In these circumstances, an F.I.R.
was lodged by complainant against the
applicant and other accused persons on
07.10.2020 bearing Case Crime No. 676 of
2020 under Sections 420, 467, 468, 471 at
Police Station- Civil Lines, District-
Meerut.
The
Investigating
Officer
conducted
investigation
and
recorded
statements of witnesses and came to a
conclusion that there were sufficient
evidence against applicant and other
accused persons for committing offence
under Section 420, 406 I.P.C. by applicant
11 All. Smt. Shiela Gupta Vs. State of U.P. & Anr.
441
and offence under Section 420, 406, 120-B
I.P.C. by other accused persons, viz.,
Mridul Sharma and Dr. Malay Sharma, and
a
charge
sheet
was
filed,
whereof
cognizance was taken and summons were
issued to applicant and other accused
persons. The applicant is aggrieved by
above
referred
criminal
proceedings,
charge sheet and its cognizance and
therefore she is before this Court.

4. Sri Dileep Kumar Pandey, learned
counsel for applicant submitted that she is an
old lady, who has served as a Chairman of
hospital for a long period and acted only for
benefit of hospital and trust. She became a
trustee as per resolution dated 13.08.1995 and
in furtherance of later resolution dated
01.10.2001, she was looking after the affairs
of hospital also. Therefore, the applicant has
not made any misrepresentation while
executing the lease deed. The F.I.R. was filed
after six years and there was no explanation
for such huge delay. The purpose of lease
deed was to meet out day to day expenses of
hospital and therefore the purpose was for
benefit of hospital and society. There was no
wrongful gain to applicant or other accused
or wrongful loss to hospital.

5. Learned counsel also pointed out that
in the lease deed, it was also specifically
mentioned that applicant was Chairman of
Management of Committee of hospital at the
relevant time, therefore, the applicant has not
misappropriated any property nor by cheating
and dishonestly, induced any person to
deliver any property.

6. Learned counsel also submitted that
offence under Sections 406 and 420 I.P.C.
cannot go together being an antihesis.

7. The applicant has also lodged an
F.I.R. against one Rajiv Gupta and others
of complainant side alleging that they have
manufactured fictitious documents and
forged her signature and present criminal
proceedings were counterblast to it. The
applicant is presently 90 years old and is
suffering from cancer and other old age
ailments.

8. The above submissions are
vehemently opposed by Sri Srijan Pandey
holding brief of Sri Swetashwa Agarwal,
learned counsel for opposite party No.2 that
during the period of applicant, being
Chairman of hospital, not only the lease
was executed on throw away price but huge
money was also siphoned and for that a
separate F.I.R. was lodged on 17.11.2021
against applicant and other accused persons
under Section 409 I.P.C.

9. He further submitted that by way of
lease, the applicant and other accused
persons wanted to encroach upon the
property of hospital in order provide
monetary benefit to other and to cause loss
to the hospital as well as to the society. The
hospital is situated in a posh area of Meerut
city and monthly rent of Rs. 20,000/- was
on very low side. Investigation has already
been conducted and there are sufficient
evidence that applicant along with other
accused person has committed offences
under Sections 420, 406 I.P.C. and
ingredients thereof are prima facie made
out.

10. Heard learned counsel for parties
and perused the record.

11. Law on inherent powers of the
High Court under Section 482 Criminal
Procedure Code 1973 is as under :-

 "(I) "Inherent Power" of the High
Court under Section 482 Cr.P.C., an
442 INDIAN LAW REPORTS ALLAHABAD SERIES
extraordinary power is with purpose and
object of advancement of justice, which is
to be exercised "to give effect to any order
under the Cr.P.C.", or "to prevent abuse of
process of any Court", or "to secure ends of
justice", making arena of the power very
wide, yet it is to be exercised sparingly,
with great care and with circumspection,
that too in the rarest of rare case.
 (II) It is no more res integra that
exercise of inherent power could be
invoked
to
even
quash
a
criminal
proceeding/First
Information
Report/complaint /chargesheet, but only
when allegation made therein does not
constitute
ingredients
of
the
offence/offences and /or are frivolous and
vexatious on their face, without looking
into defence evidence, however such power
should not be exercised to stifle or cause
sudden death of any legitimate prosecution.
Inherent power does not empower the High
Court to assume role of a trial court and to
embark upon an enquiry as to reliability of
evidence and sustainability of accusation,
specifically in a case where the entire facts
are
incomplete
and
hazy.
Similarly
quashing of criminal proceedings by
assessing the statements under section 161
Cr.P.C. at initial stage is nothing but
scuttling a full fledged trial.
 (III) There can not be any
straight jacket formula for regulating the
inherent power of this Court, however the
Supreme Court has summarised and
illustrated some categories in which this
power could be exercised in catena of
judgments. Some of them are State of
Haryana Vs Bhajan Lal : 1992 Supp (1)
SCC 335, Zandu Pharmaceutical Works
Ltd Vs Mohd Sharaful Haque: (2005) 1
SCC 122, Ahmed Ali Quarashi and Anr
Versus The State of Uttar Pradesh : 2020
SCC Online SC 107, Joseph Salvaraja A
v. State of Gujarat (2011) 7 SCC 59,
Sushil Sethi and another Vs The State of
Arunachal Pradesh and others (2020) 3
SCC, 240, Priti Saraf and Anr Vs State of
NCT of Delhi and Anr : 2021 SCC Online
SC 206. Some categories/ circumstances as
illustrations but not exhaustive are :
allegations made in FIR / complaint, if are
taken at their face value and accepted do
not prima facie constitute any offence or
are so absurd and inherently improbable to
make out any case or no cognizable offence
is disclosed against the accused, criminal
proceedings is maliciously instituted with
an ulterior motive and with a view to spite
the accused due to private and personal
grudge, or where there is a specific legal
bar engrafted in any of the provisions of
the Code or in the concerned Act to the
institution
and
continuance
of
the
proceedings or when dispute between the
parties constitute only a civil wrong and
not a criminal wrong, further Courts would
not permit a person to be harassed
although no case for taking cognizance of
the offence has been made out.
 (IV) In Sau. Kamal Shivaji
Pokarnekar v. The State of Maharashtra :
(2019) 14 SCC 350, the Apex Court has
laid emphasis on the principles laid down
in two of its previous judgements namely,
State of Karnataka v. M. Devendrappa :
2015 (3) SCC 424 and Indian Oil
Corporation v. NEPC India Ltd. & Ors.:
(2006)6 SCC 736 and held that quashing of
criminal proceedings is called for only
when the complaint does not disclose any
offence, or the complaint is frivolous,
vexatious, or oppressive and further
clarified that defences available during a
trial and facts/aspects whose establishment
during the trial may lead to acquittal
cannot form the basis of quashing a
criminal
complaint.
The
criminal
complaints cannot be quashed only on the
ground that the allegations made therein
11 All. Smt. Shiela Gupta Vs. State of U.P. & Anr.
443
appear to be of a civil nature, if the
ingredients of the alleged offence are prima
facie made out in the complaint.
 (V) The Supreme Court in M/s
Neeharika Infrastructure Pvt. Ltd Versus
State of Maharashtra and Others : (2020) 10
SCC 118, has categorically held that High
Court is not justified in passing the order of not
to arrest and or no coercive steps either during
the investigation or till the final report/ charge
sheet is filed under Section 173 Cr.P.C., while
dismissing/disposing petition under Section
482Cr.P.C. and/or under Article 226 of the
Constitution and even in exceptional cases
where High Court is of the opinion that a prima
facie case is made out for stay of further
investigation,such order has to be with brief
reasons, though such orders should not be
passed routinely, casually and/or mechanically.
 (VI) Whether the allegations are true
or untrue, would have to be decided in the trial.
In exercise of power under Section 482 of the
Cr.P.C., the Court does not examine the
correctness of the allegations in a complaint
except in exceptionally rare cases where it is
patently clear that the allegations are frivolous
or do not disclose any offence. (see Ramveer
Upadhyay & Anr. versus State of U.P. & Anr.
2022 SCC Online SC 484)
 (VII) A careful reading of the
complaint, the gist of which we have extracted
above would show that none of the ingredients
of any of the offences complained against the
appellants are made out. Even if all the
averments contained in the complaint are taken
to be true, they do not make out any of the
offences alleged against the appellants.
Therefore, we do not know how an FIR was
registered and a charge-sheet was also
filed.....It is too late in the day to seek support
from any precedents, for the proposition that if
no offence is made out by a careful reading of
the complaint, the complaint deserves to be
quashed. (See, Wyeth Limited & others vs,
State of Bihar & another, Criminal Appeal
No.1224 of 2022 (Special Leave Petition (Crl.)
No.10730 OF 2018), decided on 11th August,
2022)."

12. The Supreme Court in the case of
Vijay Kumar Ghai and others vs. State of
West Bengal and others, (2022) 7 SCC
124 has interpreted Sections 405, 406, 415
and 420 I.P.C. Relevant paragraphs of the
judgment are quoted hereinbelow :-

 "27. Section 405 of IPC defines
"Criminal Breach of Trust" which reads as
under: -
 "405. Criminal breach of trust.--
Whoever, being in any manner entrusted
with property, or with any dominion over
property, dishonestly misappropriates or
converts to his own use that property, or
dishonestly uses or disposes of that
property in violation of any direction of law
prescribing the mode in which such trust is
to be discharged, or of any legal contract,
express or implied, which he has made
touching the discharge of such trust, or
wilfully suffers any other person so to do,
commits "criminal breach of trust".
 The essential ingredients of the
offense of criminal breach of trust are:-
 (1)
The
accused
must
be
entrusted with the property or with
dominion over it,
 (2) The person so entrusted must
use that property, or;
 (3) The accused must dishonestly
use or dispose of that property or wilfully
suffer any other person to do so in
violation,
 (a) of any direction of law
prescribing the mode in which such trust is
to be discharged, or;
 (b) of any legal contract made
touching the discharge of such trust.

28. "Entrustment" of property
under Section 405 of the Indian Penal
444 INDIAN LAW REPORTS ALLAHABAD SERIES
Code, 1860 is pivotal to constitute an
offence under this. The words used are, ''in
any manner entrusted with property'. So, it
extends to entrustments of all kinds whether
to clerks, servants, business partners or
other persons, provided they are holding a
position
of
''trust'.
A
person
who
dishonestly
misappropriates
property
entrusted to them contrary to the terms of
an obligation imposed is liable for a
criminal breach of trust and is punished
under Section 406 of the Penal Code.
 29. The definition in the section
does not restrict the property to movables
or immoveable alone. This Court in R K
Dalmia vs Delhi Administration, (1963) 1
SCR 253 held that the word ''property' is
used in the Code in a much wider sense
than the expression ''moveable property'.
There is no good reason to restrict the
meaning
of
the
word
''property'
to
moveable property only when it is used
without any qualification in Section 405.
 30. In Sudhir Shantilal Mehta
Vs. CBI, (2009) 8 SCC 1 it was observed
that the act of criminal breach of trust
would, Interalia mean using or disposing of
the property by a person who is entrusted
with or has otherwise dominion thereover.
Such an act must not only be done
dishonestly but also in violation of any
direction of law or any contract express or
implied relating to carrying out the trust.
 31. Section 415 of IPC define
cheating which reads as under: -
 "415. Cheating. --Whoever, by
deceiving any person, fraudulently or
dishonestly induces the person so deceived
to deliver any property to any person, or to
consent that any person shall retain any
property, or intentionally induces the
person so deceived to do or omit to do
anything which he would not do or omit if
he were not so deceived, and which act or
omission causes or is likely to cause
damage or harm to that person in body,
mind, reputation or property, is said to
"cheat"."
 The essential ingredients of the
offense of cheating are:
 1. Deception of any person
 2. (a) Fraudulently or dishonestly
inducing that person-
 (i) to deliver any property to any
person: or
 (ii) to consent that any person
shall retain any property;or
 (b) intentionally inducing that
person to do or omit to do anything which
he would not do or omit if he were no so
deceived, and which act or omission causes
or is likely to cause damage or harm to that
person
in
body,mind,reputation
or
property.
 32. A fraudulent or dishonest
inducement is an essential ingredient of the
offence. A person who dishonestly induces
another person to deliver any property is
liable for the offence of cheating.
 33. Section 420 IPC defines
cheating and dishonestly inducing delivery
of property which reads as under: -
 "420. Cheating and dishonestly
inducing delivery of property. --Whoever
cheats and thereby dishonestly induces the
person deceived to deliver any property to
any person, or to make, alter or destroy the
whole or any part of a valuable security, or
anything which is signed or sealed, and
which is capable of being converted into a
valuable security, shall be punished with
imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine."
 34. Section 420 IPC is a serious
form of cheating that includes inducement
(to lead or move someone to happen) in
terms of delivery of property as well as
valuable securities. This section is also
applicable to matters where the destruction
11 All. Smt. Shiela Gupta Vs. State of U.P. & Anr.
445
of the property is caused by the way of
cheating or inducement. Punishment for
cheating is provided under this section
which may extend to 7 years and also
makes the person liable to fine.
 35. To establish the offence of
Cheating in inducing the delivery of
property, the following ingredients need to
be proved:- 1. The representation made by
the person was false 2. The accused had
prior knowledge that the representation he
made was false. 3. The accused made false
representation with dishonest intention in
order to deceive the person to whom it was
made. 4. The act where the accused
induced the person to deliver the property
or to perform or to abstain from any act
which the person would have not done or
had otherwise committed.
 36. As observed and held by this
Court
in
the
case
of
Prof.
R.K.
Vijayasarathy
&
Anr.
Vs.
Sudha
Seetharam & Anr., (2019) 16 SCC 739 the
ingredients to constitute an offence under
Section 420 are as follows:-
 i) a person must commit the
offence of cheating under Section 415; and
 ii) the person cheated must be
dishonestly induced to;
 a) deliver property to any person; or
 b) make, alter or destroy valuable
security or anything signed or sealed and
capable of being converted into valuable
security. Thus, cheating is an essential
ingredient for an act to constitute an
offence under Section 420 IPC."(emphasis
supplied)

13. The Court now proceeds to deal
with
rival
submissions.
The
first
submission of learned counsel for applicant
was that there was a delay of six years in
lodging an F.I.R., therefore, it was an
afterthought only to harass the applicant.
No doubt that there was a delay of six years
in lodging of F.I.R., however, as stated by
counsel for opposite party No.2 that new
Management Committee took over in the
year 2019 and after going through the
documents it was revealed that the lease
deed was made by misrepresentation.
Otherwise also, only on the ground that
there was a delay in lodging of first
information
report,
entire
criminal
proceedings could not be set aside ignoring
the contents of F.I.R. and investigation
thereof.

14. Now, the Court further proceeds
to consider whether prima facie ingredients
of Section 405 I.P.C. are made out or not.
As referred above that ingredients of
offence of criminal breach of trust are
entrustment with property and thereafter
dishonestly disposal of said property.
Undisputedly,
the
applicant
was
a
Chairman of the hospital, therefore, she
along with other members of Management
Committee, made an entrustment of the
trust's property. Therefore, disposal of said
property with dishonest intention was in
violation of conditions express or implead
carrying out the trust, management of
hospital, when she was not authorized to
execute a lease, therefore, it was in
violation of express term of carrying out
the trust and definitely, therefore, it would
fall under the offence of criminal breach of
trust.

15. There are allegations against
applicant that she dishonestly executed a
lease in favour of other accused only to
usurp the property and to cause unlawful
loss to the hospital and unlawful gain to
other accused persons and the allegations
were found to be true after investigation
and now charge sheet has been filed.
Therefore, ingredients of Sections 405
I.P.C. are prima facie made out.
446 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Lastly, the Court has to see
whether
ingredients
of
Section
420
I.P.C.(cheating and dishonestly inducing
delivery of property) are made out or not.
During investigation, it has come that the
applicant was not authorized to execute a
lease, however, she misrepresented herself
to be a trustee of hospital whereas
admittedly she was a Chairman of the
hospital at the relevant point of time and the
lease deed was executed at throw away price
without any termination clause and as such
it was wrongful loss to the society and
therefore,
prima
facie
ingredients
of
cheating and dishonesty are present and as
such offence under Section 420 I.P.C. is also
prima facie made out.

17. As discussed above, when on the
basis of evidence on record, prima facie a
case is made out and ingredients thereof are
present, this Court cannot exercise inherent
powers which will cause sudden death of
criminal
proceedings.
The
facts
and
circumstances of present case, therefore, do
not fall under category that '' allegations are
frivolous' or ''do not disclose any offence' and
therefore, it does not fall under ''exceptionally
rare cases' wherein exercise of inherent
powers is warranted.

18. In view of above consideration and
analysis, I do not find any ground to quash
the criminal proceedings against the applicant
and as such this application is rejected.
----------
(2022) 11 ILRA 446
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.11.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Appl. U/s 482 No. 633 of 2018
Mahant Prasad Ram Tripathi @ M.P.R.
Tripathi ...Applicant
Versus
State ...Opp. Party

Counsel for the Applicant:
Nandit Kumar Srivastava, Aishwarya Mishra

Counsel for the Opp. Parties:
Bireshwar Nath

(A) Criminal Law - Indian Penal Code,
1860 - Section 120-B - The Code of
Criminal Procedure, 1973 - Section 482 -
Inherent power , The Prevention of
Corruption Act, 1988 - Sections 7, 13(2)
r.w. 13 (1)(d) , Section 19 - Previous
sanction
necessary
for
prosecution
-
distinction between - absence of sanction
- raised at the inception and threshold ,
invalidity of the sanction - to be raised in
the course of trial , Grant or refusal to
grant sanction is a statutory power - valid
sanction by the competent authority
under Section 19 of the PC Act is sine qua
non for taking cognizance for an offence
against a public servant - If the sanction is
held to be invalid, entire proceeding
undertaken by the trial court would be
void - validity of sanction for prosecution
could be considered only during the trial -
Internal notings on communication do not
culminate into executable order. (Para -
39,46,47,48 )

Complaint received from Contractor against
petitioner - alleged - demanded an illegal
gratification/commission/bribe from complainant
- on behalf of petitioner to process the payment
for the work done by contractor - contention -
earlier competent authority refused sanction for
prosecution against petitioner - denial of
sanction was after considering material placed
before competent authority - no fresh material
before competent authority to issue fresh
impugned sanction order dated 17th August,
2016 - which is evident from communication
issued on 10th February, 2016 - second sanction
order for prosecuting petitioner on same
material - not legally sustainable under law -
void ab initio - cognizance and summoning
petitioner - null and void - being without