# State of U.P. Revisionist v. Rajendra Kumar Jain

- **Citation:** (2019) 1 ILRA 679
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-08
- **Case number:** Criminal Revision No. 450 of 1993
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-revisionist-v-rajendra-kumar-jain-44540
- **Pages:** 12

## Headnote

A. Criminal Revision - discharge order
under challenge- Section 162 Indian
Penal
Code-
bribery
by
Lekhpal
(accused)- forgery against Rup Singh-
Section 420, 120B, 463, 466, 468 and
471 of Indian Penal Code- unreasonable
to again remand for trial - 27 years
elapsed- disposed of. (Para 12,13,16 &19)

B. Sanction by Competent Authority-
sanction to prosecute Lekhpal- public
servant
u/s
6(c)
of
Prevention
of
Corruption Act, 1977- refused by SubDivisional
Magistrate-
granted
by
Governor- grant of sanction is a solemn
and
sacrosanct
act
to
protect
the
government servants.
Under the Lekhpal Service Rules, 1958 the
State Government had conferred the power of
appointment on the Assistant Collectors as
well right dismiss or remove him from office as
well. This implies that the sanction for
prosecution can be granted by the officer
similar to the rank who appointed him and not
below his rank. Therefore, sanction granted by
the Governor holds good.

C. Prevention of Corruption Act- incident
took place on 19.07.1988- Act of 1977
applicable- not amended Act
Chronological list of Cases Cited: -

## Text

_Characters 0–39,974 of 40,086. This is a partial read: ask again with offset=39974 for what follows._

1 All. State of U.P. Vs. Rajendra Kumar Jain
679
on record before trial Judge. As a result
the judgment of acquittal was passed.
There is no illegality or perversity in the
impugned judgment requiring a ground
for grant of leave for this appeal.

7. Accordingly, this prayer is
rejected.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Revision No. 450 of 1993

State of U.P. ...Revisionist.
Versus
Rajendra Kumar Jain ...Opposite Party.

Counsel for the Revisionist:
A.G.A.

Counsel for the Opposite Party:
A.G.A., Sri Satish Trivedi, Sri Ajay Kumar
Pandey

A. Criminal Revision - discharge order
under challenge- Section 162 Indian
Penal
Code-
bribery
by
Lekhpal
(accused)- forgery against Rup Singh-
Section 420, 120B, 463, 466, 468 and
471 of Indian Penal Code- unreasonable
to again remand for trial - 27 years
elapsed- disposed of. (Para 12,13,16 &19)

B. Sanction by Competent Authority-
sanction to prosecute Lekhpal- public
servant
u/s
6(c)
of
Prevention
of
Corruption Act, 1977- refused by SubDivisional
Magistrate-
granted
by
Governor- grant of sanction is a solemn
and
sacrosanct
act
to
protect
the
government servants.
Under the Lekhpal Service Rules, 1958 the
State Government had conferred the power of
appointment on the Assistant Collectors as
well right dismiss or remove him from office as
well. This implies that the sanction for
prosecution can be granted by the officer
similar to the rank who appointed him and not
below his rank. Therefore, sanction granted by
the Governor holds good.

C. Prevention of Corruption Act- incident
took place on 19.07.1988- Act of 1977
applicable- not amended Act
Chronological list of Cases Cited: -

1. AIR 1968, All 207 SIta Ram Vs State

2. 1994 Supp (2) SCC 405 State of T.N Vs. T.
Thulasingam

3. MANU/SC/0045/1954 Mahesh Prasad Vs.
State of U.P.

4. (2015) 14 SCC 186 Nanjappa Vs. State of
Karnataka (E-10)
(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)

1. Heard Sri Vivek Rastogi, learned
A.G.A. for the State and Sri Satish
Trivedi, learned Senior Advocate assisted
by Sri Ajay Kumar Pandey, learned
counsel for the opposite party.

2. This Criminal Revision has been
preferred by the State against the judgment
and order dated 24.12.1992 passed by 5th
Additional District and Sessions Judge, Agra
in S.T. No. 2 of 1991, (State Vs. Rajendra
Kumar Jain), under Section 162 I.P.C., P.S.
Etmaddaula, District Agra and it is prayed
that the said order of discharge passed by the
trial court be set-aside and the accusedrespondents be convicted according to law.

3. It is mentioned in the
grounds of the revision that opposite party
no. 2 was Lekhpal, who was trapped by
police for accepting Rs. 6,000/- as bribe
from Rup Singh, which was organized on
an application of Rup Singh. It was stated
680 INDIAN LAW REPORTS ALLAHABAD SERIES
by Rup Singh that he had moved an
application
before
Tehsildar
for
demarcation of his land, which was sent
to the accused, who demanded and
accepted Rs. 6,000/- as bribe. The Subdivisional Officer Appointing Authority
of the accused did not record the sanction
to prosecute the accused on the ground
that Rup Singh had committed forgery
and a case under Section 420, 120B, 463,
466, 468 and 471 IPC was initiated
against Rup Singh. The objection which
was raised from the side of accused with
respect to framing charge was that since
the offence took place much before the
enforcement of the Act No. 49 of 1988,
the old Act of 1947 would be applicable
in the present case, according to which,
the sanction by the Competent Authority
was required to be taken before taking
cognizance of offence under Section 161
IPC or 165 IPC or under Section 5(2) of
the Prevention of Corruption Act. The
prosecution placed reliance upon the
amendment of Section 19 of the Act No.
49 of 1988 which had settled the
controversies by amending the clause as
follows:-

"Notwithstanding
anything
contained in clause (c), the State Government
may where it considers necessary, so to do,
required the authority referred to in clause (c)
to give previous sanction within the period
specified in this behalf and if said authority
fails to give the previous sanction may be
given by the State Govt."

4. The above quoted provision has
not been found by this Court in the said
Act, thus it appears to have been
misquoted/erroneously quoted.

5. Further the ground is set up that
the order of the discharge passed by the
trial court is perverse. Section 19(d)
explanation-2 has empowered the State
Government to accord sanction where the
sanction
has
been
refused
by
the
concerned Authority. In the instant case,
the State Government accorded the
sanction vide its order dated 18.4.1890 to
prosecute the accused. The impugned
order discharging the accused is patently
illegal due to reasons that the provisions
of U.P. Amendment Act, 1991, Section
19(d) were applicable on the relevant
date. The sanction has been accorded by
the
State
Government
after
full
application of mind. The miscarriage of
justice has taken place due to discharge of
the accused, hence the said order needs to
be set aside.

6. In order to understand the
controversy and to appreciate whether the
impugned order is against provisions of
law, it would be pertinent to refer here to
the facts as narrated in the impunged
order as well as the finding of the trial
court given therein.

7. The trial court has recorded in the
impugned order that accused Rajendra
Kumar Jain, a Lekhpal was trapped by
police for accepting Rs. 6,000/- as bribe
from
Rup
Singh.
The
said
trap
proceedings were laid on the basis of
application moved by Rup Singh stating
therein that the area of his Plot No. 1292
was 16 bighas 10 biswas and the litigation
was also pending with the State. In that
regard, he had moved an application
before Tehsildar for demarcating his land
which was sent to the accused Lekhpal,
who demanded the said amount. Further it
is recorded in the impugned order that the
sanction for prosecution of the accused in
this case was refused by Appointing
Authority, S.D.O., mentioning that actual
area of land of Rup Singh was 7 bighas,
1 All. State of U.P. Vs. Rajendra Kumar Jain
681
but during the consolidation proceedings,
he manipulated to obtain the area of land
measuring 16 bighas 10 biswas, which
was found to be forged. It was also
mentioned that Rup Singh had earlier
made an agreement for sale of the land to
various persons and subsequently he sold
the entire land on 28.10.1987 on much
lower price. On the basis of report of
Lekhpal,
(accused),
a
forgery
was
detected and a case under Section 420,
120B, 463, 466, 468 and 671 IPC was
lodged against Rup Singh (complainant).
It was recorded in the impugned judgment
that the accused had discharged his duty
sincerely, he was an honest and upright
Lekhpal and that the complaint was
moved with the ill-will due to repeated
reports given by the Lekhpal against Rup
Singh. Rup Singh had manipulated to
implicate the accused in this forged case.

8. It is also recorded in the
impugned judgment that permission for
prosecuting the accused was granted
subsequently by the Governor and the
charge sheet was submitted against the
accused. The trial court has recorded in
the impugned judgment that Section 6 of
the Act of 1947 bars court from taking
cognizance of the offences enumerated
therein alleged to have been committed by
public servant except with the previous
sanction of the Competent Authority. The
object underlying such provision was to
save the public servant from being
harassed
from
frivolous
or
unsubstantiated prosecution, therefore, when
the court is called upon to take
cognizance of the offence, sanction ought
to be taken from appropriate authority
otherwise the court would have no
jurisdiction to take cognizance of the
offence. The trial, without valid sanction,
would be without jurisdiction and it
would render the proceedings ab-initio
void.

9. The grant of sanction is not a
mere formality but a solemn
and
sacrosanct act which gives the umbrella of
protection to the government servants
against frivolous prosecution. It is further
recorded in the impugned judgment that it
appears that the permission was refused
by the competent authority which was
perhaps not brought to the knowledge of
Governor at the time of obtaining
sanction. The sanction accorded by the
Governor does not mention the said fact.
If the said fact had been brought to the
notice of the Governor, the Governor
might have discussed the same and
recorded in the sanction order the opinion
as to why he differed from the competent
authority and why he was of the view that
permission should be accorded. It is also
recorded that the omission of mentioning
these facts goes to show that the sanction
was given in a mechanical way without
applying the mind and accordingly the
accused was discharged for non grant of
valid sanction.

10. It would be pertinent to mention
here the relevant Rules which would be
applicable in the present case. The
occurrence in the present case took place
on 19.7.1988, when the prevention of
Corruption Act 1977 was holding the
field.

11. Section 6 of the Prevention of
Corruption Act is as follows:-

6.
Previous
sanction
necessary for prosecut ions. - (1) No
Court shall take cognizance of an offence
punishable under Section 161 or Section
164 or Section 165 of the Indian Penal
Code or under sub-section (2) or sub-
682 INDIAN LAW REPORTS ALLAHABAD SERIES
section (3A) of Section 5 of this Act ,
alleged to have been committed by a
public servant, except

with the previous sanction, -

(a) in the case of a person who
is employed in connection with the affairs
of the Union and is not removable from
his office gave by or with the sanction of
the Central Government, of the Central
Government;

(b) in the case of a person who
is employed in connection with the affairs
of a State and is not removable from his
office save by or with the sanction of the
State
Government,
of
the
State
Government;

(c) in the case of any other
person, of the authority competent to
remove him from his office.

12. It is apparent from the above ruling
that under clause (c) of the same it is laid
down that prosecution against Government
employee facing the charge of Prevention of
Corruption Act can be started only after
sanction being taken from Competent
Authority and that Authority would mean
the Authority who is competent to remove
him from office at the time when the
offence
was
alleged
to
have
been
committed. In the case in hand, the accused
is a Lekhpal. The Lekhpal in U.P. is a
public servant who is not removable from
his office save by or with the sanction of the
State
Government
or
some
Higher
Authority. Lekhpals in Uttar Pradesh are
appointed under the Lekhpals Service
Rules, 1958, published in the U. P. Gazette
dated May 17, 1958. It is provided in Rule 2
that the Lekhapals' service is a non-gazetted
subordinate service. Rule 7 provides that
whenever the halqa of a Lekhpal falls
vacant the Assistant Collector shall appoint
thereto the senior most candidate on the list
maintained under paragraph 6 (1), provided
further that the order passed by the
Assistant Collector shall be appealable
before the Collector whose orders shall be
final. Rule 16 lays down that all persons on
appointment as Lekhpals shall be placed on
probation for a period of two years, and the
Assistant Collector may at his discretion
extend the period of probation in individual
cases for a period not exceeding one year.
Clauses (d) and (e) of Rule 16 read as
follows:-"(d) where it transpires at any time
during or at the end of the period of
probation or extended period of probation
that a Lekhpal has not made sufficient use
of his opportunities or has otherwise failed
to acquit himself satisfactorily his service
shall be terminated after observing the
formalities prescribed in Rule 5(3) of the
Civil Services (Classification, Control and
Appeal) Rules without entitling him to any
compensation, (e) A probationer shall be
confirmed in his appointment by the
Assistant Collector at the end of the period
of probation or the extended period of
probation if his work and conduct are found
satisfactory. The period of probation shall
continue till the order of confirmation is
passed or the probation is terminated.

13. It has not been specifically
mentioned in Clause (d) of Rule 16 that
the Assistant Collector shall have the
powers to remove a Lekhpal under that
clause. However, the Rule read as a whole
makes it clear that the intention must have
been that the powers under Clause (d) of
Rule 16 must also be exercised by the
Assistant Collector, who is authorised to
confirm a Lekhpal in his appointment
under Clause (e) of Rule 16.

14. In this connection two other
rules of the Lekhpals Service Rules, 1958,
might be considered. Sub-rule (2) of Rule
28 runs as follows:-
1 All. State of U.P. Vs. Rajendra Kumar Jain
683

"When it is proposed to
dismiss or remove a Lekhpal as a
measure of punishment he shall first be
suspended, and shall make over his
papers and records to the Supervisor
Kanungo or to such other person as the
Supervisor Kanungo may indicate within
one week from the receipt of the order. In
either case the Supervisor Kanungo shall
be responsible for seeing that the Lekhpal
has made over all his records and
papers."

15. Rule 29 provides:-

"A
Lekhpal
will
be
punished by the Collector or the Assistant
Collector for misconduct or neglect of
duty by fine not exceeding three months'
pay."

16. Rule 28(2) does not specifically
mention that the Assistant Collector shall be
empowered to dismiss or remove a Lekhpal.
However, if the rules are read as a whole,
there can be no doubt that the intention was
that the said powers should be exercised by
the Assistant Collector and no one else, it is
significant to note that the rules nowhere lay
down that in cases where it is proposed to
dismiss or remove a Lekhpal the proceedings
need be submitted by the Assistant Collector
to any higher authority for passing final
orders.

17. Prior to the reorganisation of the
services of Lekhpals, the Patwaris, who
used to do the same work as the Lekhpals,
were governed by the rules framed under
Section 234 (b) of the Land Revenue Act,
1901, and contained in the Land Records
Manual. It was provided in those rules
(vide Rule I) that the punishing authority
shall be the Collector, and the Assistant
Collectors in charge of sub-divisions were
also authorised to exercise the powers of
the
Collector.
It
was
specifically
mentioned in Rule 13 that a Patwari may
be removed or dismissed by the Collector
or the Assistant Collector in charge of the
sub-division on any of the grounds
mentioned therein. Rule 14 provided that
a patwari could also be punished by the
Collector or Assistant Collector in charge
of a sub-division for misconduct or
neglect of duty by fine not exceeding
three months' pay, by reduction from a
higher grade to a lower grade or by loss of
seniority within his grade. The Lekhpals
Service Rules, 1958, virtually followed
the same pattern which existed in the
rules framed earlier under Section 234 (b)
of the Land Revenue Act, 1901. with this
exception only that (a) the Assistant
Collectors
were
primarily
made
appointing authorities, and (b) it was not
mentioned in the rules framed under
Article 309 of the Constitution of India
that the Assistant Collectors shall be the
authority to dismiss or remove the
Lekhpals.

18. It has, therefore, to be
considered whether under the Lekhpal
Service Rules, 1958 the State Government
conferred only the power of appointment
on the Assistant Collectors, reserving for
itself the power to dismiss the Lekhpals
by its own orders, or whether the power to
appoint given to the Assistant Collectors
by implication also conferred on them the
power to remove or dismiss the Lekhpals.

19. The above question was
considered by this Court in Sita Ram Vs.
State, AIR 1968, All 207 and it was
opined by this Court that Section 16 of the
General Clauses embodies a Rule of
general interpretation and unless the
context otherwise required, it must be
held that Authority competent to appoint
684 INDIAN LAW REPORTS ALLAHABAD SERIES
had also by implication been authorized to
dismiss or remove the Lekhpal who was
the person in civil employment of the
State. A perusal of the Lekhpal Service
Rules 1958 clearly indicates that intention
must have been to confer the power of
dismissal also on the Assistant Collector
who was specifically authorized to
appoint Lekhpal.

20. The attention of the trial court
was drawn by the learned counsel for the
revisionist to the fact that Section 19 of
the Act of 49 of 1988 provides as under: -

"Notwithstanding
anything
contained in clause (c), the State
Government may, where it considers
necessary so to do, require the authority
referred to in clause (c), to give previous
sanction within the period specified in this
behalf and if the said authority fails to
give the previous sanction within such
period, the previous sanction may be
given by the State Government."

21. In the light of above provision it
was argued that under the old Act of 1947
the power to grant sanction lay with the
authority which would be competent to
remove the public servant from his office
at the time when offence was alleged to
have been committed but under the new
Act, if the said authority fails to give the
previous sanction within the specified
period, the previous sanction may be
granted
by
the
State
Government,
therefore the said controversy stands
settled, but due to the offence in the case
in hand being of 19/07/1988, while the
new Act having come into force on
09/09/1988, the said provision would not
be applicable. Hence, it was argued that
the sanction
granted by the State
Government
would
not
hold
good
particularly keeping in view the fact that
earlier the prosecution sanction was
declined by the appointing authority i.e.
Sub Divisional Officer. This argument
was accepted by the trial court and
accordingly it discharged the accused
revisionist.

22. I have gone through the
provision of Section 19 of Prevention of
Corruption Act, 1988 which is as
follows:-

"19.
Previous
sanction
necessary for prosecution.-(1) No court
shall take cognizance of an offence
punishable under sections 7, 11, 13 and
15 alleged to have been committed by a
public servant, except with the previous
sanction save as otherwise provided in the
Lokpal and Lokayuktas Act, 2013 -

(a) in the case of a person who
is employed, or as the case may be, was at
the time of commission of the alleged
offence employed in connection with the
affairs of the Union and is not removable
from his office save by or with the
sanction of the Central Government, of
that Government;

(b) in the case of a person who
is employed, or as the case may be, was at
the time of commission of the alleged
offence employed] in connection with the
affairs of a State and is not removable
from his office save by or with the
sanction of the State Government, of that
Government;

(c) in the case of any other
person, of the authority competent to
remove him from his office.

Provided that no request can be
made, by a person other than a police officer or
an officer of an investigation agency or other
law enforcement authority, to the appropriate
Government or competent authority, as the
1 All. State of U.P. Vs. Rajendra Kumar Jain
685
case may be, for the previous sanction of such
Government or authority for taking cognizance
by the court of any of the offences specified in
this sub-section, unless-

(i) such person has filed a
complaint in a competent court about the
alleged offences for which the public
servant is sought to be prosecuted; and

(ii) the court has not dismissed the
complaint under section 203 of the Code of
Criminal Procedure, 1973 (2 of 1974) and
directed the complainant to obtain the
sanction for prosecution against the public
servant for further proceeding:

Provided further that in the case of
request from the person other than a police
officer or an officer of an investigation agency
or other law enforcement authority, the
appropriate
Government
or
competent
authority shall not accord sanction to
prosecute a public servant without providing
an opportunity of being heard to the
concerned public servant:

Provided also that the appropriate
Government or any competent authority shall,
after the receipt of the proposal requiring
sanction for prosecution of a public servant
under this sub-section, endeavour to convey
the decision on such proposal within a period
of three months from the date of its receipt:

Provided also that in case
where, for the purpose of grant of sanction
for prosecution, legal consultation is required,
such period may, for the reasons to be
recorded in writing, be extended by a further
period of one month:

Provided also that the Central
Government may, for the purpose of
sanction for prosecution of a public
servant, prescribe such guidelines as it
considers necessary.

Explanation.-For the purposes
of sub-section (1), the expression "public
servant" includes such person-

(a) who has ceased to hold the
office during which the offence is alleged
to have been committed; or

(b) who has ceased to hold the
office during which the offence is alleged
to have been committed and is holding an
office other than the office during which
the offence is alleged to have been
committed.]

(2)
Where
for
any
reason
whatsoever any doubt arises as to whether the
previous sanction as required under subsection (1) should be given by the Central
Government or the State Government or any
other authority, such sanction shall be given
by that Government or authority which would
have been competent to remove the public
servant from his office at the time when the
offence was alleged to have been committed.

(3) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974),-

(a) no finding, sentence or order
passed by a special Judge shall be
reversed or altered by a Court in appeal,
confirmation or revision on the ground of
the absence of, or any error, omission or
irregularity in, the sanction required
under sub-section (1), unless in the
opinion of that court, a failure of justice
has in fact been occasioned thereby;

(b) no court shall stay the
proceedings under this Act on the ground
of any error, omission or irregularity in
the sanction granted by the authority,
unless it is satisfied that such error,
omission orirregularity has resulted in a
failure of justice;

(c) no court shall stay the
proceedings under this Act on any other
ground and no court shall exercise the
powers of revision in relation to any
interlocutory order passed in any inquiry,
trial,appeal or other proceedings.
686 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) In determining under subsection (3) whether the absence of, or any
error, omission or irregularity in, such
sanction has occasioned or resulted in a
failure of justice the court shall have
regard to the fact whether the objection
could and should have been raised at any
earlier stage in the proceedings.

Explanation.-For the purposes
of this section,-

(a) error includes competency
of the authority to grant sanction;

(b) a sanction required for
prosecution includes reference to any
requirement that the prosecution shall be
at the instance of a specified authority or
with the sanction of a specified person or
any requirement of a similar nature.

23. It shows that the provision
quoted above by the trial court does not
find mention in the said provision.

24. I am not inclined to subscribe to
the above line of argument because in the
State of T.N. vs T. Thulasingam, 1994
Supp (2) Supreme Court Cases 405, in
Para 77 of the judgment, the Hon'ble
Supreme Court has held that "77. The last
finding of the High Court in reversing the
decision of the trial court so far as it
upheld the sanction for prosecution of the
employees is again erroneous. The High
Court was in error in its view that only the
special
officer
appointed
by
the
Corporation, when it was superseded, was
competent to grant the sanction. It will be
noticed that here the sanction had been
given by the superior authority, namely
the Government itself which appointed
the special officer. Once the sanction is
granted by the superior authority it
does not get invalidated. It could be
invalid if the sanction had been granted
by the authority subordinate to the
authority who had to grant the sanction
and in that case would have been
subject to challenge. We thus find that
the trial court was right in holding that the
sanction was validly granted by the
competent authority.

25. Similarly in Mahesh Prasad vs
the
State
of
Uttar
Pradesh,
MANU/SC/0045/1954
following
has
been held: -

"7. The only serious argument
that has been advanced and which
requires a little closer examination is that
there was no valid sanction for the
prosecution. There is no doubt that this is
a case to which the Prevention of
Corruption Act, 1947 would apply and
that by virtue of section 6(c) thereof the
prosecution requires the sanction of the
authority "competent to remove the
appellant from his office." It is urged that
this requirement was not satisfied on the
facts of this case. It has been pointed out
that the appellant is a civil servant of the
Indian Union and that by virtue of article
311(1) of the Constitution he cannot be
removed by an authority subordinate to
that by which he was appointed. This
appears also to be the position under rule
1705(c)
of
the
Indian
Railway
Establishment Code, Volume I (1951
Edition) which is as follows :

"No railway servant shall be
removed (or dismissed) by an authority
lower than that by which he was
appointed to the post held by him
substantively".

8.
The
sanction
for
the
prosecution in this case was granted
under Ex. 10 by one Shri L. R. Gosain,
Superintendent
Power,
East
Indian
Railway,
Allahabad.
The
order
of
appointment of the appellant, Ex-F, shows
1 All. State of U.P. Vs. Rajendra Kumar Jain
687
the Divisional Personnel Officer, East
Indian Railways, Allahabad, as the
appointing authority. It may be mentioned
that in the appeal before the Sessions
Judge a contention was raised that
appointment of the appellant was in fact
made by the Divisional Superintendent
and that Ex. F was only signed by the
Divisional Personnel Officer on his
behalf. The Sessions Judge foundagainst
this contention and the same has not been
challenged before us. What, however, is
urged is that the Superintendent Power
who gave the sanction for prosecution is
not shown to be an officer not lower in
rank than the Divisional Personnel
Officer who made the appointment. The
question as to the validity of the sanction
has been raised both before the Sessions
Judge as well as before the High Court.
The High Court in considering the
question appears to have merely satisfied
itself that under the Railway Regulations,
Shri L. R. Gosain, Superintendent Power,
was a person competent to remove the
appellant from his office within the terms of
section 6 of Prevention of Corruption Act.
The High Court does not appear to have
considered the further question whether or
not the requirements of article 311(1) of the
Constitution and rule 1705(c) of the Railway
Establishment Code have been satisfied with
reference to the inter se position as between
the authority who appointed the appellant
and the authority who sanctioned the
prosecution. The learned Sessions Judge,
however, has recorded a categorical finding
that the Divisional Personnel Officer is in the
same grade as the Superintendent Power.
His finding is in the following terms :

"I, therefore, hold that the
accused could be and was actually
appointed by the Divisional Personnel
Officer who is in the same grade as the
Superintendent Power. It cannot therefore
be said that the Superintendent Power
Mr. L. R. Gosain was not authorised to
remove the accused from service by virtue
of rule 1705 and this argument advanced
against the validity of sanction, Ex. 10,
falls to the ground".

9. Learned counsel for the
appellant urged that the requirement both of
the Constitution and of the rule of the
Railway Code, contemplated that the
authority competent to remove must be either
the very authority who appointed or any
other authority directly superior to the
appointed
authority
in
the
same
department. We do not think that this
contention is tenable. What the Constitution
requires is that a personshould not be
removed by an authority subordinate to the
one by whom he was appointed and what the
rule in the Railway Code prescribes is
substantially the same, viz., "the authority
competent to remove should not be lower
than the one who made the appointment".
These provisions cannot be read as implying
that the removal must be by the very same
authority who made the appointment or by
his direct superior. It appears to us to be
enough that the removing authority is of the
same rank or grade. In the present case it
does not appear into which particular
branch of the department the appellant was
taken, in the first instance in 1944 under Ex.
F. But it is in the evidence of P.W. 4, the
Head-clerk of the office of the Divisional
Superintendent, that the office of the Running
Shed Foreman in which the appellant was a
clerk in 1951 was directly under the
Superintendent Power. He was obviously the
most appropriate officer to grant the
sanction, provided he was of a rank not less
than the Divisional Personnel Officer.

10. Counsel for the appellant
urges that the evidence does not support
the finding of the learned Sessions Judge
that Shri L. R. Gosain, Superintendent
688 INDIAN LAW REPORTS ALLAHABAD SERIES
Power, was of the same grade as the
Divisional Personnel Officer who made
the appointment. P.W. 4 in his evidence,
however, quite clearly speaks to this as
follows :

"Divisional Superintendent is
the head of the entire administrative
division. The Divisional Personnel Officer
is under him. The Superintendent Power
and Superintendent Transport are also
under him and also such other officers of
the
same
rank............
Divisional
Personnel
Officer
and
the
various
Superintendents are officers of the same
rank. They are not subordinate to each
other".

11. It has been commented that
this should have been substantiated by the
official records and not by oral evidence.
That no doubt would have been more
satisfactory. The learned Sessions Judge
on appeal, in order to satisfy himself, has
referred
to
the
Classified
List
of
Establishment of Indian Railways and the
same has been produced before us for our
information. This shows that both the
Divisional Personnel Officer as well as
Superintendent Power are officers in the
senior scale drawing equal scales of pay,
Rs. 625-50-1375. This is an indication
that they are officers of the same rank and
confirms the oral evidence of P.W. 4 who
being the Head-clerk of the Divisional
Superintendent's office must be competent
to speak about these matters. It certainly
cannot be said that the Superintendents
Power who has granted the sanction for
prosecution of the appellant at the time
working under him, is of a rank or a
grade
lower
than
the
Divisional
Personnel Officer who appointed the
appellant. This matter would probably
have been more satisfactorily clarified in
the trial court if the question as to the
validity of the sanction had been raised
not merely with reference to the wording
of section 6 of the Prevention of
Corruption Act but also as read with
article 311(1) of the Constitution and rule
1705(c) of the Railway Establishment
Code. On the material we are not satisfied
that there is any reason to reverse the
findings of the courts below that the
sanction is valid. "

26. Thus from the above citations it is
absolutely clear that the most appropriate
officer to grant sanction would be an officer
who was of the same rank who had appointed
the accused and not less than his rank. It
would pre-suppose that the authority holding
higher rank than the authority who had
appointed the accused would certainly have
power vested in it to grant sanction to
prosecute. Therefore in the case in hand the
sanction having been accorded by the State
Government/Governor would not be held to
be erroneous even if the fact that the Sub
Divisional Magistrate had refused to grant
sanction in this matter, was not brought to his
knowledge.

27. Now the question arises as to
whether in the present matter in which the
trial court has discharged the accused as
far back as in the year 1992 that is on
24/12/1992 and since then about 27 years
have elapsed, whether it would be
meaningful to direct the trial court to
initiate trial of the accused in accordance
with law.

28. In this regard we would like to
rely
upon
Nanjappa
vs
State
of
Karnataka, (2015) 14 SCC 186. In this
case, the appellant, a bill collector of
Gram Panchayat allegedly demanded
bribe of Rs. 500 to issue a copy of alleged
Panchayat
resolution
whereby
the
Panchayat allegedly had decided to
1 All. State of U.P. Vs. Rajendra Kumar Jain
689
convert the road in front of PW 1
complainant's house in the sites for
allotment to 3rd parties. On the basis of
allegation of PW 1 complainant, the
Lokayukta Police arranged to trap and the
evidence relating to receiving of bribe by
the appellant was collected and recorded.
The trial court however, acquitted the
appellant on the principal ground that
sanction from competent authority was
not obtained, that is sanction from Chief
Officer Zila Parishad, was not obtained
(Section 113, Karnataka Panchayat Raj
Act, 1993). The trial court further
recorded
the
finding
that
the
complainant's
accusation
about
the
appellant demanding bribe from him was
unreliable and unworthy of credit. The
High
Court,
however,
found
the
discrepancies pointed out by the trial
court
to
be
inconsequential.
And
regarding cognizance by the trial court,
the High Court held that the validity of
sanction was not questioned at the
appropriate stage and the appellant was
not entitled to raise the same at the
conclusion of the trial. The High Court,
therefore, by the impugned order reversed
the acquittal and convicted the appellant
under sections 7 and 13 read with Section
13 (2), P.C. Act and sentenced him to
undergo imprisonment for a period of 6
months under sections 7 and for a period
of one year under sections 13 besides fine
and sentence of imprisonment in default
of payment of the same. Allowing the
appeal and setting aside the order of
conviction it was held by the Apex Court
that in case at hand the special court not
only entertained the contention urged on
behalf of the accused about the invalidity
of order of sanction but found that the
authority issuing the said order was
incompetent to grant sanction. The trial
court held that the authority who had
issued the sanction was not competent to
do so, a fact which has not been disputed
before the High Court or in present
appeal. The only error which the trial
court committed was that, having held the
sanction to be invalid, it should have
discharged the accused rather than record
an order of acquittal on the merit of the
case.
Resultantly,
the
trial
by
an
incompetent court was bound to be
invalid and non est in law. Further it was
held that the High Court had not correctly
appreciated legal position regarding the
need for sanction or the effect of its
invalidity. It has simply glossed over the
subject, by holding that the question
should have been raised at an earlier
stage. The High Court did not realise that
the issue was not being raised before it for
the first time but had been successfully
urged before the trial court. Next, it was
considered as to whether, while allowing
the present appeal and setting aside the
order of the High Court, a fresh
prosecution against the appellant should
be permitted. The incident in question had
occurred on 24/03/1998. The appellant
was, at that point of time, around 38 years
old. The appellant was today a senior
citizen. Putting the clock back at this
stage, when the prosecution witnesses
may not be available, would not serve any
purpose. That apart, the trial court had,
even upon appreciation of the evidence,
although it was not required to do so, had
given its finding on the validity of the
sanction,
and
had
held
that
the
prosecution case was doubtful, rejecting
the
prosecution
story,
therefore
no
purpose would be served to resume the
proceedings again. It was further held that
there was no compelling reason for
directing a fresh trial at this distant point
of time in a case of this nature involving a
bribe Rs. 500 for which the appellant had
690 INDIAN LAW REPORTS ALLAHABAD SERIES
already suffered the ignominy of the trial,
conviction and jail term, no matter for a
short while. Thus the appeal was allowed
and the order passed by the High Court
was set aside.

29. As in the above mentioned case,
it was held by the Supreme Court that at a
distant point of time it would be futile to
resume the proceedings of trial because
by then the witnesses of prosecution may
not be available, in the present case also I
find that approximately 27 years have
passed since the trial court had passed
order of discharge, therefore at this distant
point of time it does not appear to be
reasonable to direct the trial court to begin
proceedings of trial of the accused
revisionist, although I find that the
discharge order passed by the trial court
was not in consonance with law.

30. Accordingly this revision stands
dispose of.

31. Let a copy of this judgment be
transmitted to the trial court along with
the lower court record to do the needful. )
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.07.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.

CRIMINAL REVISION No. 1126 of 2017

Akhilesh Kumar ...Revisionist
Versus
State of U.P. &Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Narendra Gupta

Counsel for the Opposite Parties
Sri Ajay Srivastava, A.G.A.

A. Juvenile Justice (Care and Protection
of Children) Act, 2015 - heinous crime -
Bail "moral, physical or psychological
danger"
to
the
victim.
Report
of
Probationary
Officer
in
favour
of
revisionist- bail granted

On plain reading Section 12 of the Act of
2015
clear
the
intention
of
the
Legislature is to grant bail to the juvenile
unless either of the three condition
mentioned in the Section exists. (E-10)
(Delivered by Hon'ble Pritinker Diwaker, J.)

1. Heard Sri Narendra Gupta,
learned counsel for the revisionist and Sri
Ajay Srivastava, learned counsel for the
State. None for complainant-respondent
no.2 though served.

2. Present revision has been filed
against the order dated 25.10.2017 passed
by the Sessions Judge, Sitapur in Criminal
Appeal No.61 of 2017, dismissing the
appeal
preferred
by
the
revisionist
assailing the order dated 14.9.2017 passed
by Juvenile Justice Board, Sitapur, arising
out of Crime No.227 of 2017, under
Sections 341,342,312,313,376 of IPC and
3/4 POCSO Act, Police Station Sidhauli,
District Sitapur.

3. Facts of the instant case, in brief,
are that on 2.6.2017, FIR was lodged by
the mother of the prosecutrix, alleging in
it that when her daughter had gone to
fetch water from the hand pump, she was
taken by the wife of one Chander to the
house of the revisionist; the door was
bolted
from
outside
and
then
the
revisionist
committed
rape
on
the
prosecutrix.