# Sri Sushant Gupta & Ors v. Central Bureau Of Investigation S.C.B. Lko

- **Citation:** (2025) 5 ILRA 1849
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-27
- **Case number:** Application U/S 482 No. 12048 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-sushant-gupta-ors-v-central-bureau-of-investigation-s-c-b-lko-53368
- **Pages:** 17

## Headnote

Criminal Procedure Code, 1973 - Section
482 - Prevention of Corruption Act, 1988,
Section 19 - Sanction for prosecution -
Validity - Bank officials accused of
conspiracy and defalcation - Sanction
granted under Section 19 PC Act also
purporting to cover offences under Indian
Penal Code - Competence and application
of mind - Held, sanction under Section 19
PC Act cannot extend to IPC offences -
Authority not competent
to
sanction
prosecution for offences beyond PC Act -
Sanction "for the said offences and for any
other offences under any other law"
shows total non-application of mind -
Vitiates sanction and cognizance order -
1850 INDIAN LAW REPORTS ALLAHABAD SERIES
Discharge granted. (Paras 41, 43, 44 and
45)

HELD:
The applicants were working in Axis Bank, which
is not even a nationalized Bank, and it is not
disputed that the applicants were not holding a
post where they could not be removed from
service except by or with the sanction of the
government. In this view of the matter the
provisions of Section 197 are not attracted to
the case of the applicants. The prosecution
sanction order dated 02.02.2022 issued by the
President and Head Corporate Affairs of Axis
Bank, Mumbai, states that the allegations
levelled against 20 persons, including the
applicants, have been corroborated by the
statements recorded under Section 161 Cr.P.C.
and
the
documents
collected
during
investigation
of
the
case.
After
careful
examination and perusal of the documents and
statements of the witnesses it has been found
that offences u/s 120-B read with 409, 418,
419, 420, 467, 468, 471, 477 (A) IPC and
Section 13 (2) read with 13 (1) (d) of PC Act
and substantive offence thereof are made out
against 20 persons, including the applicants.
The sanctioning authority proceeded to state
that after fully and carefully examining the
documents,
copies
of
the
statements
of
witnesses under Section 161 Cr.P.C. and other
materials placed before him and having applied
his mind properly in regard to the said
allegations and circumstances of the case,
considered that offences u/s 120-B read with
409, 418, 419, 420, 467, 468, 471, 477 (A)
I.P.C. and Section 13 (2) read with 13 (1) (d) of
Prevention
of
Corruption
Act,
1998
and
substantive offence thereof are made out
against the applicants and other persons and
therefore the authority has accorded sanction
under Section 19 of Prevention of Corruption
Act, 1988 for prosecution of the applicants and
other persons 'for the said offences and for any
other offence(s) punishable under any other
provisions of law in respect of the said acts and
for taking cognizance of the said offences by a
court of competent jurisdiction'. (Para 41)

While recording the aforesaid reason, the
learned trial court failed to appreciate that
neither any sanction had been sought for
prosecution of the applicants for the offences
under Penal Code nor was the authority
competent to grant sanction for prosecution of
the offences under the Penal Code. The sanction
of prosecution "for the said offences and for
any other offence(s) punishable under any
other provisions of law in respect of the said
acts" for which no sanction was obtained,
indicates a total non-application of mind to
the facts of the case and the law applicable.
It indicates that the sanctioning authority has
acted as a mere rubber stamp. Nonapplication of mind by the sanctioning
authority vitiates the sanction order dated
02.02.2023
as
also
the
order
dated
28.07.2023 passed by the trial Court rejecting
the discharge application. (Para 43)

The order of sanction after a proper application
of mind to the relevant facts and circumstances
of the case and the material on record is a
prerequisite for prosecution of a public servant,
as it is intended to provide a safeguard to a
public servant against frivolous and vexatious
litigants. This safeguard cannot be dealt with in
a casual and mechanical manner. (Para 45)

Application allowed. (E-14)

List of Cases c

## Text

_Characters 0–39,975 of 55,915. This is a partial read: ask again with offset=39975 for what follows._

5 All. Sri Sushant Gupta & Ors. Vs. Central Bureau Of Investigation S.C.B. Lko
1849
party no. 2- shall peacefully and cordially
hand over the custody of the minor girl,
Samriddhi, to the applicant no.1- wife at
her residence in Delhi.

(ii)
In
the
event
of
noncompliance, the applicant- wife shall
approach the Chairman, Child Welfare
Committee, Lucknow. Upon such request,
the Chairman shall, with the assistance of a
lady police officer and a qualified child
counsellor, ensure the safe retrieval and
transfer of the child to the mother.

(iii) Prima-facie, it seems that the
husband is a conniver may misuse his
official
position
to
influence
the
proceedings and obstruct the applicantwife's
lawful
right,
therefore,
the
Commissioner of Police, Lucknow shall
ensure that the opposite party no.2-
husband shall be under watch till the
compliance of this order, so that he could
not frustrate the terms of this order.

29. So far as the visitation rights of
the father is concerned, the opposite party
no.2 shall be at liberty to take recourse as
available under law.

29.1 The issue of maintenance
has also raised during the argument, the
applicant-wife shall be at liberty to raise all
her claims in accordance with law, before
the competent court. Needless to say, it
shall be dealt with in accordance with
Rajnesh v. Neha and another case (supra);
para-38 of Rajesh Babu Saxena v. State of
U.P. and another25; Smt. Parul Tyagi v.
Gaurav Tyagi26.

30. A copy of this order shall be
transmitted to Chairman, Child Welfare
Committee, Lucknow for intimation and
compliance, if need arises, and the
Commissioner of Police, Lucknow for
information and compliance.
31. The observations and findings
recorded above shall not prejudice either
the merits of the case or the adjudication of
any pending matters between the applicantwife and respondent-husband.

32.
Accordingly,
the
instant
application
stands
allowed
with
the
aforesaid terms.
---------
(2025) 5 ILRA 1849
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.05.2025

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 12048 of 2023

Sri Sushant Gupta & Ors. ...Applicants
Versus
Central Bureau Of Investigation S.C.B. Lko
 ...Opposite Party

Counsel for the Applicants:
Rishad Murtaza, Aishwarya Mishra, Arnav
Prakash Tikku, Syed, Ali Jafar Rizvi

Counsel for the Opposite Party:
Anurag Kumar Singh

Criminal Procedure Code, 1973 - Section
482 - Prevention of Corruption Act, 1988,
Section 19 - Sanction for prosecution -
Validity - Bank officials accused of
conspiracy and defalcation - Sanction
granted under Section 19 PC Act also
purporting to cover offences under Indian
Penal Code - Competence and application
of mind - Held, sanction under Section 19
PC Act cannot extend to IPC offences -
Authority not competent
to
sanction
prosecution for offences beyond PC Act -
Sanction "for the said offences and for any
other offences under any other law"
shows total non-application of mind -
Vitiates sanction and cognizance order -
1850 INDIAN LAW REPORTS ALLAHABAD SERIES
Discharge granted. (Paras 41, 43, 44 and
45)

HELD:
The applicants were working in Axis Bank, which
is not even a nationalized Bank, and it is not
disputed that the applicants were not holding a
post where they could not be removed from
service except by or with the sanction of the
government. In this view of the matter the
provisions of Section 197 are not attracted to
the case of the applicants. The prosecution
sanction order dated 02.02.2022 issued by the
President and Head Corporate Affairs of Axis
Bank, Mumbai, states that the allegations
levelled against 20 persons, including the
applicants, have been corroborated by the
statements recorded under Section 161 Cr.P.C.
and
the
documents
collected
during
investigation
of
the
case.
After
careful
examination and perusal of the documents and
statements of the witnesses it has been found
that offences u/s 120-B read with 409, 418,
419, 420, 467, 468, 471, 477 (A) IPC and
Section 13 (2) read with 13 (1) (d) of PC Act
and substantive offence thereof are made out
against 20 persons, including the applicants.
The sanctioning authority proceeded to state
that after fully and carefully examining the
documents,
copies
of
the
statements
of
witnesses under Section 161 Cr.P.C. and other
materials placed before him and having applied
his mind properly in regard to the said
allegations and circumstances of the case,
considered that offences u/s 120-B read with
409, 418, 419, 420, 467, 468, 471, 477 (A)
I.P.C. and Section 13 (2) read with 13 (1) (d) of
Prevention
of
Corruption
Act,
1998
and
substantive offence thereof are made out
against the applicants and other persons and
therefore the authority has accorded sanction
under Section 19 of Prevention of Corruption
Act, 1988 for prosecution of the applicants and
other persons 'for the said offences and for any
other offence(s) punishable under any other
provisions of law in respect of the said acts and
for taking cognizance of the said offences by a
court of competent jurisdiction'. (Para 41)

While recording the aforesaid reason, the
learned trial court failed to appreciate that
neither any sanction had been sought for
prosecution of the applicants for the offences
under Penal Code nor was the authority
competent to grant sanction for prosecution of
the offences under the Penal Code. The sanction
of prosecution "for the said offences and for
any other offence(s) punishable under any
other provisions of law in respect of the said
acts" for which no sanction was obtained,
indicates a total non-application of mind to
the facts of the case and the law applicable.
It indicates that the sanctioning authority has
acted as a mere rubber stamp. Nonapplication of mind by the sanctioning
authority vitiates the sanction order dated
02.02.2023
as
also
the
order
dated
28.07.2023 passed by the trial Court rejecting
the discharge application. (Para 43)

The order of sanction after a proper application
of mind to the relevant facts and circumstances
of the case and the material on record is a
prerequisite for prosecution of a public servant,
as it is intended to provide a safeguard to a
public servant against frivolous and vexatious
litigants. This safeguard cannot be dealt with in
a casual and mechanical manner. (Para 45)

Application allowed. (E-14)

List of Cases cited:

1. S.K. Miglani Vs St. (NCT of Delhi), (2019) 6
SCC 111

2. A Sreenivasa Reddy Vs Rakesh Sharma & anr.,
(2023) 8 SCC 711

3. Ramsagar Pandit Vs St. of Bih., 1960 SCC
OnLine Pat 213

4. Ramsagar Pandit Vs State of Bihar, 1962 SCC
OnLine SC 101

5. State of Maharashtra Vs Mahesh G. Jain,
(2013) 8 SCC 119

6. Vinod Kumar Garg Vs St. (NCT of Delhi),
(2020) 2 SCC 88

7. State of M.P. Vs Virender Kumar Tripathi,
(2009) 15 SCC 533

8. Parkash Singh Badal Vs State of Pun., (2007)
1 SCC 1
5 All. Sri Sushant Gupta & Ors. Vs. Central Bureau Of Investigation S.C.B. Lko
1851
9. Dinesh Kumar Vs Airport Authority of India,
(2012) 1 SCC 532

10. C.S. Krishnamurthy Vs St. of Kar., (2005) 4
SCC 81

11. St. of Kar. Vs Ameerjan, (2007) 11 SCC 273

12. Girish Kumar Suneja Vs CBI, (2017) 14 SCC
809

13. CBI Vs Ashok Kumar Aggarwal: (2014) 14
SCC 295

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Rishad Murtaza and Ms.
Aishwarya Mishra Advocates, the learned
counsel for the applicant and Sri Anurag
Kumar Singh, the learned counsel for the
respondent - C.B.I.

2. By means of the instant application
filed under Section 482 Cr.P.C. the
applicants have assailed the validity of an
order dated 28.07.2023 passed by the
learned Special Judge, C.B.I.-I, Lucknow
in Sessions Case No. 341 of 2022 arising
out of RC No.053202150002, under
Sections 120-B read with Sections 409,
418, 419, 420, 467, 468, 471, 477 (A)
I.P.C. and Section 13 (2) read with 13 (1)
(d) of Prevention of Corruption Act, 1988,
Police Station C.B.I. S.C.B., Lucknow,
whereby their application for discharge has
been rejected.

3. Briefly stated, the facts of the case
are that an F.I.R. was lodged on 03.02.2021
against - (1) Kamal Ahsan and (2) Rajesh
Kumar, stating that Kamal Ahsan was an
employee of Axis Bank and used to handle
the bank account of an institution named
SHIATS (Sam Higginbottom Institute of
Agriculture, Technology and Sciences),
and he had made fraudulent transactions of
Rs.22,39,64,118/- in connivance with coaccused Rajesh Kumar, who was an
Accountant in SHIATS. The co-accused
Kamal Ahsan was under suspension since
January,
2017.
The
F.I.R.
alleges
commission of offences under Sections
409, 418, 419, 420, 467, 468, 471, 477-A
I.P.C. by the accused persons.

4. After investigation the C.B.I.
submitted a charge-sheet dated 30.12.2021
against
26
persons,
including
the
applicants, who were posted in Axis Bank
in managerial capacities.

5. The learned trial court had taken
cognizance of the case by means of an
order dated 08.03.2022 and had summoned
the applicants for commission of offences
under Section 120-B read with Sections
409, 418, 419, 420, 467, 468, 471, 477 A
I.P.C. and Section 13 (2) read with 13 (1)
(d) of Prevention of Corruption Act, 1988,
Police Station C.B.I./S.C.B. Lucknow.

6. The applicants had challenged the
validity of the aforesaid order dated
08.03.2022 by filing an application under
Section 482 Cr.P.C. No. 2071 of 2023,
which was disposed of by means of an
order dated 28.02.2023, passed by this
Court by observing that at the time of
passing of the order dated 08.03.2022 there
was no prosecution sanction in terms of
Section 19 of the Prevention of Corruption
Act and Section 197 of Cr.P.C. and the
order dated 08.03.2022 was bad in law.
This court had set aside the order dated
08.03.2022 and directed the learned trial
court to pass a fresh order strictly in
accordance with law.

7. After passing of the aforesaid order
dated
28.02.2023,
an
order
dated
02.02.2022 issued by the President and
Head Corporate Affairs of Axis Bank,
1852 INDIAN LAW REPORTS ALLAHABAD SERIES
Mumbai was produced before the trial
court which states that the allegations
leveled against 20 persons, including the
applicants, have been corroborated by the
statements recorded under Section 161
Cr.P.C. and the documents collected during
investigation of the case. After careful
examination and perusal of the documents
and statements of the witnesses it has been
found that offences u/s 120-B read with
409, 418, 419, 420, 467, 468, 471, 477 (A)
IPC and Section 13 (2) read with 13 (1) (d)
of PC Act and substantive offence thereof
are made out against 20 persons, including
the applicants.

8. The sanctioning authority proceeded
to state that after fully and carefully
examining the documents, copies of the
statements of witnesses under Section 161
Cr.P.C. and other materials placed before him
and having applied his mind properly in regard
to the said allegations and circumstances of the
case, considered that offences u/s 120-B read
with 409, 418, 419, 420, 467, 468, 471, 477
(A) I.P.C. and Section 13 (2) read with 13 (1)
(d) of Prevention of Corruption Act, 1998 and
substantive offence thereof are made out
against the applicants and other persons and
therefore the authority has accorded sanction
under Section 19 of Prevention of Corruption
Act, 1988 for prosecution of the applicants
and other persons 'for the said offences and
for any other offence(s) punishable under any
other provisions of law in respect of the said
acts and for taking cognizance of the said
offences
by
a
court
of
competent
jurisdiction'.

9. The applicants filed an application
for discharge on the ground that no
sanction of prosecution has been granted
under Section 197 Cr.P.C. and it was
granted only under Section 19 of the
Prevention of Corruption Act.

10. The learned trial court has rejected
the application for discharge by means of
the impugned order dated 28.07.2023
holding that the applicants have sought
their discharge on the ground of absence of
sanction
under
Section
197
Cr.P.C.,
whereas a detailed sanction order running
through eleven pages is available on the
paper book, a perusal whereof establishes
that the sanctioning authority has granted
sanction for commission of offences under
Sections 120-B read with 409, 418, 419,
420, 467, 468, 471, 477-A I.P.C. and
Section 13 (2) read with 13 (1) (d) of
Prevention of Corruption Act, 1998, for
which he was the competent authority. The
learned trial court has further held that the
sanctioning authority has granted sanction
by applying his independent mind and the
sanction order is not a mere reproduction of
the charge-sheet.

11. Initially this application was
allowed by means of a judgment and order
dated 12.12.2023 passed by this Court after
hearing the submissions of the learned
Counsel for the applicant as well as the
learned Counsel for the respondent -
C.B.I., who had advanced his submissions
and who had not sought an opportunity to
file a counter affidavit and rightly so,
because while deciding the application
under Section 482 Cr.P.C., this Court had
only
taken
into
consideration
the
prosecution case and it had not gone into
any questions of fact. This Court had held
that the prosecution sanction order suffers
from the vice of non-application of mind to
the facts of the case and the law applicable,
which vitiates the sanction order dated
02.02.2023 as also the order dated
28.07.2023 passed by the trial Court
rejecting the discharge application. The
learned counsel for the respondent had
made a request that a liberty be granted to
5 All. Sri Sushant Gupta & Ors. Vs. Central Bureau Of Investigation S.C.B. Lko
1853
the prosecution to obtain fresh sanction for
prosecution of the applicants, which
request was accepted and the prosecution
was granted liberty to seek a fresh sanction
order within a period of one month. The
sanctioning authority was directed to pass a
fresh order within a period of one month
thereafter strictly in accordance with law.

12. The C.B.I. filed S.L.P. (Crl.) No.
9233 of 2024 before the Hon'ble Supreme
Court
challenging
the
order
dated
12.12.2023 passed by this Court on the
ground that the order was passed without
giving sufficient time and without giving
an opportunity to the C.B.I. for filing a
counter affidavit along with the supporting
documents. The S.L.P. has been allowed by
means of an order dated 22.11.2024 and the
matter has been remanded for being
decided afresh after the C.B.I. files its
counter affidavit.

13. When C.B.I. had not requested for
an opportunity to file a counter affidavit
when this application was heard and
decided earlier on 12.12.2023, , it was not
proper on its part to have challenged the
order dated 12.12.2023 on the ground that
this Court had not granted opportunity to
CBI to file a counter affidavit.

14. Although the C.B.I. had sought
liberty from the Hon'ble Supreme Court for
filing a counter affidavit along with the
supporting documents, no document that
has been annexed with the counter affidavit
filed on 03.01.2015., except a copy of the
order dated 22.11.2024 passed by the
Hon'ble Supreme Court. The counter
affidavit refers to the judgments in the
cases of S.K. Miglani v. State (NCT of
Delhi), (2019) 6 SCC 111, A Sreenivasa
Reddy Vs. Rakesh Sharma and another,
(2023) 8 SCC 711, Ramsagar Pandit v.
State of Bihar, 1960 SCC OnLine Pat 213,
Ramsagar Pandit v. State of Bihar, 1962
SCC
OnLine
SC
101,
State
of
Maharashtra v. Mahesh G. Jain, (2013) 8
SCC 119, Vinod Kumar Garg v. State
(NCT of Delhi), (2020) 2 SCC 88, State of
M.P. v. Virender Kumar Tripathi, (2009)
15 SCC 533, Parkash Singh Badal v.
State of Punjab, (2007) 1 SCC 1, Dinesh
Kumar v. Airport Authority of India,
(2012)
1
SCC
532
and
C.S.
Krishnamurthy v. State of Karnataka,
(2005) 4 SCC 81.

15. It is relevant to note that Chapter
IV of the Allahabad High Court Rules deals
with "Affidavits and Oath Commissioners".
Rule 8 of the aforesaid Chapter provides as
follows: -

"8. Affidavits filed or presented
in Court:- The provisions of Rules 5,6 and
11 of Chapter IX shall, so far as may be,
apply to an affidavit filed or presented in
Court. It shall be in the language of the
Court and shall bear the general hearing:

"In the High Court of Judicature
at Allahabad."

The affidavit and every exhibit
annexed thereto shall be marked with the
particulars of the case or proceeding in
which it is sworn.

The affidavit shall contain no
statement which is in the nature of an
expression of opinion or argument."

16. The counter affidavit filed by the
C.B.I. does not contain any statement of
fact which would be relevant for deciding
the application under Section 482 Cr.P.C.
Rather it contains arguments in opposition
of the application under Section 482
1854 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C. Thus the counter affidavit has been
drawn against the provisions of Rule 8 of
Chapter IV of the Allahabad High Court
Rules.

17. The verification clause of the
affidavit reads: "I, the above named,
deponent do hereby verify that the contents
of Paragraphs 1 to 35 of this counter
affidavit are true to my personal knowledge
and belief. No part of it is false and nothing
material has been concealed in it. So, help
me God."

18. Rule 12 falling in Chapter IV of
the Allahabad High Court Rules provides
as follows: -

"12. Facts to be within the
deponent's knowledge or source to be
stated
:-
Except
on
interlocutory
applications, an affidavit shall be confined
to such fact as the deponent is able of his
own knowledge to prove.

On an interlocutory application
when a particular fact is not within the
deponent's own knowledge, but is based on
his belief or information received from others
which he believes to be true, the deponent
shall use the expression "I am informed and
verily believe such information to be true, "or
words to that effect, and shall sufficiently
describe for the purpose of identification, the
person
or
persons
from
whom
his
information was received.

When any fact is stated on the basis
of information derived from a document, full
particulars of that document shall be stated
and the deponent shall verify that he believes
such information to be true."

19. The counter affidavit has not been
filed as objections against any interlocutory
application and, therefore, it ought to have
contained averments within the deponent's
own knowledge. The deponent has verified
the entire contents of the counter affidavit
to be "true to my personal knowledge and
belief" without specifying as to which part
of the counter affidavit is true to his
knowledge and which part is believed by
him to be true, and the deponent has not
disclosed the source of his knowledge on
which those averments are based which he
believes to be true.

20. Rules of the Court are meant to be
obeyed by one and all, but when a
specialized prosecution agency is a litigant,
it is expected that the agency will certainly
obey the Rules. The violation of the
provisions of the Allahabad High Court
Rules by the C.B.I. in preparation of its
counter affidavit cannot be appreciated.
However, the Courts have to strike a just
balance in application of two basic
principles of dispensation of justice - the
first principle is that where the law
prescribes a manner for doing a thing, the
thing has to be done in that manner alone or
not at all, the second principle is that
procedure is the handmaiden of justice. In
the present case, issuing a direction to the
C.B.I. to file a fresh affidavit in accordance
with the provisions of the Allahabad High
Court Rules would result in undue delay in
disposal of the case and, therefore, I
proceed to ignore the defects in the counter
affidavit and in the interest of justice I
proceed to consider the arguments raised
by the C.B.I. in it counter.

21. Sri Rishad Murtaza, the learned
counsel for the applicants has submitted
that the sanction for prosecution was
sought under Section 19 of Prevention of
Corruption
Act
and
the
sanctioning
authority could have granted sanction for
5 All. Sri Sushant Gupta & Ors. Vs. Central Bureau Of Investigation S.C.B. Lko
1855
the offence under Prevention of Corruption
Act only and while granting sanction for
prosecution under Section 19 of Prevention
of Corruption Act the sanctioning authority
could not have granted sanction for
prosecution of offences under various
sections of the Penal Code. He has further
submitted that besides granting sanction for
the offences under the Penal Code, the
sanctioning authority has gone beyond to
the extent of granting sanction of any other
offences under any other law, regarding
which neither any sanction had been sought
nor had the officer any power to accord
sanction.

22. Sri. Murtaza has also relied upon
the judgments of Hon'ble Apex Court in
the case of A Sreenivasa Reddy Vs.
Rakesh Sharma and another, (2023) 8
SCC 711 and State of Karnataka v.
Ameerjan: (2007) 11 SCC 273.

23. Per contra, Sri Anurag Kumar
Singh,
the
learned
counsel
for
the
respondent-C.B.I. has submitted that the
sanctioning authority has granted sanction
for commission of offences under the
Prevention of Corruption Act after applying
its independent mind. As per Sri. Singh, a
mere mention of offence under Penal Code
besides the offence under Prevention of
Corruption Act will not affect the validity
of the sanction order so far as it concerns
the
offences
under
Prevention
of
Corruption Act.

24. In S.K. Miglani v. State (NCT
of Delhi), (2019) 6 SCC 111, the
appellant was a Manager in a nationalised
bank who could be removed from his
office without the sanction of the
Government and, therefore Section 197
Cr.P.C. was not attracted with regard to
the appellant.

25. In A. Sreenivasa Reddy v.
Rakesh Sharma, (2023) 8 SCC 711, the
Hon'ble Supreme Court held that: -

"49. It is pertinent to note that
the banking sector being governed by
Reserve Bank of India and considered as a
limb of the State under Article 12 of the
Constitution and also by virtue of Section
46-A of the Banking Regulation Act, 1949,
the appellant herein is deemed to be a
"public servant" for the purpose of
provisions under the PC Act, 1988.
However, the same cannot be extended to
IPC. Assuming for a moment that the
appellant herein should be considered as a
"public servant" for IPC sanction also, the
protection
available
under
Section
197CrPC is not available to the appellant
herein since, the conditions in-built under
Section 197 CrPC are not fulfilled."

26. In Ramsagar Pandit v. State of
Bihar: 1960 SCC OnLine Pat 213 the
Superintendent of Police had sent a letter to
the Government requesting for sanction
under Sec. 6 of the Prevention of
Corruption Act and Sec. 197 of the
Criminal
Procedure
Code
for
the
prosecution of the appellant under S. 5(2)
and (3) of Prevention of Corruption Act
1947. Sanction was granted for the offences
under clause (2) read with clause (3) of
Section 5 of the Prevention of Corruption
Act 1947. The trial Court found him guilty
and convicted him. The conviction order
was challenged inter alia on the ground that
sanction was asked for the prosecution of
the appellant under Sec. 5(2) and (3) of Act
II of 1947 and in fact the Government of
Bihar
did
accord
sanction
for
the
prosecution of the appellant under clause
(2) read with clause (3) of Sec. 5. Although
the facts constituting criminal misconduct
were before the sanctioning authority, but
1856 INDIAN LAW REPORTS ALLAHABAD SERIES
the authority limited the sanction to an
offence under clause (2) read with clause
(3) of S. 5 and did not accord a sanction for
prosecution
in
respect
of
criminal
misconduct specified in the various clauses
of sub-section (1) and thus the sanctioning
authority refused to give a sanction for
prosecution in respect of an allegation
constituting criminal misconduct under
sub-section (I) of Section 5. Rejecting the
contention, Patna High Court held that: -

"43. In view of the principles laid
down in these cases, the facts of the present
case have to be considered to determine the
effect of the sanction. The Superintendent
of Police undoubtedly alleged in his letter
that the appellant showed undue favours,
obtained money by corrupt or illegal means
and received a sum of Rs. 400/- as illegal
gratification from the proprietor of a firm
and these facts were placed before the
sanctioning authority. It is true that the
sanctioning authority mentioned clause (3)
while granting a sanction, but as subsection (3) does not create a separate
offence, it must be deemed to be a
surplusage.

* * *

45. It was not at all necessary to
mention either one clause or the other of
sub-section (1) in the sanction. I would,
therefore, overrule the contention of the
learned counsel for the appellant that the
effect of the sanction was to limit the
offence committed by the appellant to one
under clause (3) only of S. 5. The
sanctioning authority, in my opinion,
accorded a sanction for the prosecution of
the appellant in respect of the offence
under sub-section (2) of Sec. 5 and the
charge framed is not, in any way, illegal, or
in excess of what was sanctioned. The
charge was really for criminal misconduct
which included habitual acceptance of
illegal gratification. The appellant was not
prejudiced as he was aware of the
misconduct alleged and he filed a fairly
long written statement. He led evidence to
refute
the
allegations
and
he
was
questioned about the material facts."

27. Affirming the aforesaid decision,
in Ramsagar Pandit v. State of Bihar,
1962 SCC OnLine SC 101, the Hon'ble
Supreme Court held that: -

"11. ... In the present case all the
facts constituting the offence of misconduct
with which the appellant was charged were
placed before the Government. The second
principle, namely, that the facts should be
referred to on the face of the sanction and
if they do not so appear, the prosecution
must prove them by extraneous evidence, is
certainly sound having regard to the
purpose of the requirements of a sanction.
In the present case though the sanction ex
facie does not disclose the facts, the
documents which are exhibited in the case
give all the necessary relevant facts
constituting
the
offence
of
criminal
misconduct. This Court, in Biswabhusan
Naik v. State of Orissa [AIR 1954 SC 359]
rejected a contention similar to that now
raised before us. There the sanction given
under Section 6 of the Act referred only to
sub-section (2) of Section 5 of the Act and it
did not specify which of the four offences
mentioned in Section 5(1) was meant. This
Court adverting to a similar contention
observed "It was evident from the evidence
that the facts placed before the Government
could only relate to offences under Section
161 of the Indian Penal Code and clause
(a) of Section 5(1) of the Prevention of
Corruption Act. They could not relate to
clause (b) or (c). When the sanction was
5 All. Sri Sushant Gupta & Ors. Vs. Central Bureau Of Investigation S.C.B. Lko
1857
confined to Section 5(2) it could not, in the
circumstances of the case, have related to
anything but clause (a) of sub-section (1) of
Section 5. Therefore the omission to
mention clause (a) in the sanction did not
invalidate it."

* * *

16. That apart, the appellate
court could have set aside the conviction if
the defect in the charge had occasioned a
failure of justice but the appellant did not
raise any objection either before the
Special Judge or in the High Court on the
score that the charge was defective and
that he was misled in his defence on the
ground that no particulars of the persons
from whom the bribes were taken were not
mentioned. Nor such an objection has been
taken in the special leave petition, nor in
the statement of the case. This objection is
an afterthought and cannot be allowed to
be raised at this stage of the proceedings."

28. Ramsagar Pandit (Supra) was
decided keeping in view the factual
background of that case which is in no way
similar to the facts of the present case and,
therefore, the ratio of Ramsagar Pandit
(Supra) will not apply to the present case.

29. In C.S. Krishnamurthy v. State
of Karnataka (2005) 4 SCC 81, it has been
held that: -

"9. ... sanction order should
speak for itself and in case the facts do not
so appear, it should be proved by leading
evidence that all the particulars were
placed before the sanctioning authority for
due application of mind. In case the
sanction
speaks
for
itself
then
the
satisfaction of the sanctioning authority is
apparent by reading the order."

30. In State of Maharashtra v.
Mahesh G. Jain, (2013) 8 SCC 119, the
Hon'ble Supreme Court referred to various
precedent on the point and culled out the
following principles: -

"14.1. It is incumbent on the
prosecution to prove that the valid
sanction
has
been
granted
by
the
sanctioning authority after being satisfied
that a case for sanction has been made
out.

14.2. The sanction order may
expressly
show
that
the
sanctioning
authority has perused the material placed
before it and, after consideration of the
circumstances, has granted sanction for
prosecution.

14.3. The prosecution may prove
by adducing the evidence that the material
was placed before the sanctioning authority
and its satisfaction was arrived at upon
perusal of the material placed before it.

14.4. Grant of sanction is only an
administrative function and the sanctioning
authority is required to prima facie reach
the satisfaction that relevant facts would
constitute the offence.

14.5. The adequacy of material
placed before the sanctioning authority
cannot be gone into by the court as it does
not sit in appeal over the sanction order.

14.6. If the sanctioning authority
has perused all the materials placed before
it and some of them have not been proved
that would not vitiate the order of sanction.

14.7. The order of sanction is a
prerequisite as it is intended to provide a
safeguard to a public servant against
1858 INDIAN LAW REPORTS ALLAHABAD SERIES
frivolous and vexatious litigants, but
simultaneously an order of sanction
should not be construed in a pedantic
manner and there should not be a
hypertechnical
approach
to
test
its
validity."

(Emphasis added)

31. In Vinod Kumar Garg v. State
(NCT of Delhi), (2020) 2 SCC 88, the
Supreme Court quoted with approval the
aforesaid principles culled out in Mahesh
G. Jain (Supra) and further held that: -

"28. ...Where the cognizance of
the case has already been taken and the
case has proceeded to termination, the
invalidity of the precedent investigation
does not vitiate the result, unless a
miscarriage of justice has been caused
thereby. Similar is the position with regard
to the validity of the sanction. A mere
error, omission or irregularity in sanction
is not considered to be fatal unless it has
resulted in a failure of justice or has been
occasioned thereby. Section 19(1) of the
Act is matter of procedure and does not go
to the root of the jurisdiction and once the
cognizance has been taken by the court
under the Code, it cannot be said that an
invalid police report is the foundation of
jurisdiction of the court to take cognizance
and for that matter the trial."

32. In State of M.P. v. Virender
Kumar Tripathi, (2009) 15 SCC 533, the
conviction order was challenged on the
ground that the Law Department of the
Government had granted sanction for
prosecution without taking advice of the
Department concerned. The question before
the Supreme Court was whether the
absence of advice renders the sanction
inoperative. The Supreme Court held that: -

"8 ...Undisputedly the sanction
has been given by the Department of Law
and
Legislative
Affairs.
The
State
Government had granted approval of the
prosecution. As noted above, the sanction
was granted in the name of the Governor of
the State by the Additional Secretary,
Department of Law and Legislative Affairs.
The
advice
at
the
most
is
an
interdepartmental matter.

9. Further, the High Court has
failed to consider the effect of Section 19(3)
of the Act. The said provision makes it
clear that no finding, sentence or order
passed by a Special Judge shall be reversed
or altered by a court of appeal on the
ground of absence of/or any error,
omission
or
irregularity
in
sanction
required under sub-section (1) of Section
19 unless in the opinion of the court a
failure of justice has in fact been
occasioned thereby.

10. In the instant case there was
not even a whisper or pleading about any
failure of justice. The stage when this
failure is to be established is yet to be
reached since the case is at the stage of
framing of charge whether or not failure
has in fact been occasioned was to be
determined once the trial commenced and
evidence was led. In this connection the
decisions
of
this
Court
in State v. T.
Venkatesh Murthy [(2004) 7 SCC 763 :
2004 SCC (Cri) 2140] and in Parkash
Singh Badal v. State of Punjab [(2007) 1
SCC 1 : (2007) 1 SCC (Cri) 193] need to
be noted. That being so the High Court's
view quashing the proceedings cannot be
sustained and the State's appeal deserves to
be allowed which we direct."

33. In Parkash Singh Badal v. State
of Punjab, (2007) 1 SCC 1, the Hon'ble
5 All. Sri Sushant Gupta & Ors. Vs. Central Bureau Of Investigation S.C.B. Lko
1859
Supreme Court held that "There is a
distinction between the absence of sanction
and the alleged invalidity on account of
non-application of mind. The former
question can be agitated at the threshold
but the latter is a question which has to be
raised during trial."

34. In Dinesh Kumar v. Airport
Authority of India, (2012) 1 SCC 532, the
Hon'ble Supreme Court followed the
decision in Parkash Singh Badal (Supra)
and held that: -

"10. In our view, invalidity of
sanction where sanction order exists, can
be raised on diverse grounds like nonavailability
of
material
before
the
sanctioning authority or bias of the
sanctioning authority or the order of
sanction having been passed by an
authority not authorised or competent to
grant such sanction. The above grounds
are only illustrative and not exhaustive. All
such grounds of invalidity or illegality of
sanction would fall in the same category
like the ground of invalidity of sanction on
account of non-application of mind-a
category
carved
out
by
this
Court
in Parkash Singh Badal, the challenge to
which can always be raised in the course of
trial.

11. In
a
later
decision,
in Ameerjan [(2007) 11 SCC 273], this Court
had an occasion to consider the earlier
decisions of this Court including the decision
in Parkash Singh Badal [(2007) 1 SCC
1]. Ameerjan was a case where the trial
Judge, on consideration of the entire
evidence including the evidence of the
sanctioning authority, held that the accused
Ameerjan was guilty of commission of
offences punishable under Sections 7 and
13(1)(d) read with Section 13(2) of the PC
Act. However, the High Court overturned the
judgment of the trial court and held that the
order of sanction was illegal and the
judgment of conviction could not be
sustained.

12. Dealing with the situation of
the case wherein the High Court reversed the
judgment of the conviction of the accused on
the ground of invalidity of sanction order,
with reference to Parkash Singh Badal, this
Court stated in Ameerjan in para 17 of the
Report as follows:

"17.
Parkash
Singh
Badal,
therefore, is not an authority for the
proposition that even when an order of
sanction is held to be wholly invalid inter alia
on the premise that the order is a nullity
having been suffering from the vice of total
non-application of mind. We, therefore, are
of the opinion that the said decision cannot
be said to have any application in the instant
case."

13. In our view, having regard to
the facts of the present case, now since
cognizance has already been taken against
the appellant by the trial Judge, the High
Court cannot be said to have erred in leaving
the question of validity of sanction open for
consideration by the trial court and giving
liberty to the appellant to raise the issue
concerning validity of sanction order in the
course of trial. Such course is in accord with
the decision of this Court in Parkash Singh
Badal and not unjustified."

35. However, in State of Karnataka
v. Ameerjan: (2007) 11 SCC 273, the
Hon'ble Supreme Court held that: -

"9. We agree that an order of
sanction should not be construed in a
pedantic manner. But, it is also well settled
1860 INDIAN LAW REPORTS ALLAHABAD SERIES
that the purpose for which an order of
sanction is required to be passed should
always be borne in mind. Ordinarily, the
sanctioning authority is the best person to
judge as to whether the public servant
concerned should receive the protection
under the Act by refusing to accord
sanction for his prosecution or not.

* * *

16. In Parkash
Singh
Badal [(2007) 1 SCC 1] the question which
arose for consideration before this Court
was as to whether an order of sanction is
required to be passed in terms of Section
197 of the Code of Criminal Procedure in
relation to an accused who has ceased to
be a public servant. It was in that context a
question arose before this Court as to
whether the act alleged to be performed
under the colour of office is for the benefit
of the officer or for his own pleasure. In the
context of question as to whether the public
servant
concerned
should
receive
continuous protection, it was opined : (SCC
p. 25, para 29)

"29. The effect of sub-sections (3)
and (4) of Section 19 of the Act are of
considerable significance. In sub-section (3)
the stress is on 'failure of justice' and that too
'in the opinion of the court'. In sub-section
(4), the stress is on raising the plea at the
appropriate time. Significantly, the 'failure of
justice' is relatable to error, omission or
irregularity in the sanction. Therefore, mere
error, omission or irregularity in sanction is
(sic not) considered fatal unless it has
resulted in failure of justice or has been
occasioned thereby. Section 19(1) is a matter
of procedure and does not go to the root of
jurisdiction
as
observed
in
para
95
of Narasimha Rao case [P.V. Narasimha
Rao v. State (CBI/SPE), (1998) 4 SCC 626 :
1998 SCC (Cri) 1108] . Sub-section (3)(c) of
Section 19 reduces the rigour of prohibition.
In Section 6(2) of the old Act [Section 19(2)
of the Act] question relates to doubt about
authority to grant sanction and not whether
sanction is necessary."

17.Parkash
Singh
Badal,
therefore, is not an authority for the
proposition that even when an order of
sanction is held to be wholly invalid inter
alia on the premise that the order is a nullity
having been suffering from the vice of total
non-application of mind. We, therefore, are
of the opinion that the said decision cannot
be said to have any application in the instant
case.

18. We
may
notice
that
in Sankaran Moitra v. Sadhna Das [(2006) 4
SCC 584] the majority, albeit in the context
of Section 197 of the Code of Criminal
Procedure, opined :

"22. Learned counsel for the
complainant argued that want of sanction
under Section 197(1) of the Code did not
affect the jurisdiction of the Court to
proceed, but it was only one of the defences
available to the accused and the accused
can raise the defence at the appropriate
time. We are not in a position to accept this
submission. Section 197(1), its opening
words and the object sought to be achieved
by it, and the decisions of this Court earlier
cited, clearly indicate that a prosecution
hit by that provision cannot be launched
without the sanction contemplated. It is a
condition precedent, as it were, for a
successful prosecution of a public servant
when the provision is attracted, though the
question may arise necessarily not at the
inception, but even at a subsequent stage.
We cannot therefore accede to the request
to postpone a decision on this question."
5 All.