# Sukh Lal Yadav v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 71
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-17
- **Case number:** Misc. Bench No. 9727 of 2020
- **Bench:** Ramesh Sinha, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sukh-lal-yadav-v-state-of-u-p-ors-46955
- **Pages:** 11

## Headnote

(A) Civil Law - Uttar Pradesh Lokayukta &
Up-Lokayuktas Act, 1975 - Indian Penal
Code, 1860 - Sections 409/120B I.P.C. -
Prevention of Corruption Act, 1988 - Section
13, Code of criminal procedure, 1973Section 197, Section 216- Prevention of
Corruption Act, 1947 - Section 6 (1) - no
Court shall cognizance of an offence alleged
to have been committed by the public
servant, except with the previous sanction
of the authority specified in the sub-section
- in order to constitute a valid sanction, it
must be established that the case was given
in respect of the facts constituting the
offence with which the accused is proposed
to be charged - An order of sanction cannot
be assailed or tested on the ground that the
evidence does not established the charge -
an order of sanction can be assailed only on
two grounds viz. (1) it has been granted by
an authority who was not competent to do
so; and (2) it has not been given in respect
of the facts constituting the offence charged
- grant of sanction is an administrative
act.(Para -38,39,42)

The petitioner has challenged the order by which
sanction has been granted for his prosecution
under Sections 406/120B I.P.C. and under Section
13 (1) (d) read with Section 13 (2) of the
Prevention
of
Corruption
Act,
1988
as
contemplated by Section 197 Cr.P.C.

HELD: - The impugned order is a communication
letter to the State Government and actual order of
prosecution has not been challenged by the
petitioner. Even otherwise, on perusal of the entire
material on record, we are of the view that at this
juncture, the sanction order is a valid one. Moreso,
there is neither any pleading nor any ground in the
writ petition that the Managing Director, who has
passed the order of sanction, was not legally
competent to grant sanction and, therefore, the
order of sanction cannot be assailed on the ground
of competency of sanctioning authority. The
petitioner is at liberty to seek remedy under
Section 438/439 Cr.P.C. (Para - 43,47)

Writ Petition dismissed. (E-6)
List of Cases cited: -

## Text

3 All. Sukh Lal Yadav Vs. State of U.P. & Ors.
71

(v) has been habitually passing
indecent remarks or teasing women or
girls; or

(vi) is a tout;"

11. On perusal of the order of District
Magistrate, Bahraich, it appears that there
is no mention of offence affecting the
general public at large, however, the
dispute
is
between
two
individually
litigating parties only with regard to the
dispute as to landed property, as such,
while
considering
the
matter
under
Goondas Act, there should be a discussion
on the applicability of the Act also, but the
impugned order passed by the District
Magistrate, Bahraich is lacking and nonspeaking in this regard, as discussed
hereinabove.

12. This is cardinal principle which
must be observed by every authority while
passing an order, from which civil/criminal
consequences flow, to assign reasons for
reaching at such conclusion. This rule to be
observed by every authority while sitting into
capacity of judicial, quasi judicial as well in
administrative capacity whatsoever may be.

13. Learned A.G.A. at this stage
submitted that he would have no objection, if
any, such direction is issued to decide the
interim stay on application or the appeal
pending before the Commissioner, Devipatan
Division, Gonda (respondent no.1) by way of
speaking and well reasoned order within a
period specified by the Court.

14. The necessity of service of notice
upon the opposite parties are dispensed with
as learned A.G.A. is present on behalf of all
the opposite parties.

15. The Commissioner, Devipatan
Division, Gonda is directed to decide the
Appeal
No.00223/2021
(Computer
No.
C202108000000223), filed under Section 6
of Uttar Pradesh Goonda Act, 1970 on merit
expeditiously with all practicable promptness
within a period of one month by a reasoned
and speaking order as discussed hereinabove
or if by reason of any administrative business
it is not possible to decide the same within
aforesaid period of one month, to decide on
such other date not beyond three months
from the date, the certified copy of the order
is placed before him.

16. Meanwhile, the enforcement, effect
and operation of the order of District
Magistrate, Bahraich dated 23.02.2021 in
Case No. 01004/2018 (Computer Case No.
D201808150001004), under Section 3(1) of
U.P. Goonda Act, 1970 shall remain in
abeyance.

17. Deputy Registrar (Criminal) is to
communicate the order of the Court promptly
to the Commissioner, Devipatan Division,
Gonda.

18. With the aforesaid directions, the
present petition is disposed of.
----------
(2021)03ILR A71
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.

Misc. Bench No. 9727 of 2020

Sukh Lal Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajai Krishna Yadav, Nikhil Kumar
72 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
G.A., Amarendra Pratap Singh, Shishir Jain

(A) Civil Law - Uttar Pradesh Lokayukta &
Up-Lokayuktas Act, 1975 - Indian Penal
Code, 1860 - Sections 409/120B I.P.C. -
Prevention of Corruption Act, 1988 - Section
13, Code of criminal procedure, 1973Section 197, Section 216- Prevention of
Corruption Act, 1947 - Section 6 (1) - no
Court shall cognizance of an offence alleged
to have been committed by the public
servant, except with the previous sanction
of the authority specified in the sub-section
- in order to constitute a valid sanction, it
must be established that the case was given
in respect of the facts constituting the
offence with which the accused is proposed
to be charged - An order of sanction cannot
be assailed or tested on the ground that the
evidence does not established the charge -
an order of sanction can be assailed only on
two grounds viz. (1) it has been granted by
an authority who was not competent to do
so; and (2) it has not been given in respect
of the facts constituting the offence charged
- grant of sanction is an administrative
act.(Para -38,39,42)

The petitioner has challenged the order by which
sanction has been granted for his prosecution
under Sections 406/120B I.P.C. and under Section
13 (1) (d) read with Section 13 (2) of the
Prevention
of
Corruption
Act,
1988
as
contemplated by Section 197 Cr.P.C.

HELD: - The impugned order is a communication
letter to the State Government and actual order of
prosecution has not been challenged by the
petitioner. Even otherwise, on perusal of the entire
material on record, we are of the view that at this
juncture, the sanction order is a valid one. Moreso,
there is neither any pleading nor any ground in the
writ petition that the Managing Director, who has
passed the order of sanction, was not legally
competent to grant sanction and, therefore, the
order of sanction cannot be assailed on the ground
of competency of sanctioning authority. The
petitioner is at liberty to seek remedy under
Section 438/439 Cr.P.C. (Para - 43,47)

Writ Petition dismissed. (E-6)
List of Cases cited: -

1. Ajai Kumar & anr. Vs St.of U.P. & ors. , Writ
Petition No. 792 of 2020 (M/B)

2. Rajeev Garg Vs St. of U.P. & ors., Misc. Bench
No. 19087 of 2020

3. Chhatra Pal Singh (C.P. Singh) Vs St. of U.P.
& ors. , Misc. Bench No. 16340 of 2020

4. Gokulchand Dwarka Das Morarka Vs The
King, AIR 1948 PC 82

5. Madan Mohan Vs St. of U.P.: AIR 1954 SC
637: (1954 Crl. LJ 1656) & Som Nath Vs U.O.I.
: (1971) 2 SCC 387 : AIR 1971 SC 1910 : 1971
Crl. LJ 1422.

6. Madan Mohan Vs St. of U.P., AIR 1954 SC
637

7. Maj. Som Nath Vs U.O.I., 1971 (2) SCC 387.

8. P.C. Joshi Vs St. of U.P., AIR 1961 SC 387

(Delivered by Hon'ble Ramesh Sinha, J.)

1. By means of the instant writ
petition, the petitioner is challenging the
correctness and validity of the sanction
order dated 31.08.2019 passed by the
respondent no.3-Managing Director, U.P.
Rajkiya Nirman Nigam Ltd., Lucknow
contained in Annexure no.1 to the writ
petition, whereby prosecution sanction for
prosecuting the petitioner under Sections
409/120B I.P.C. and under Section 13 (1)
(d) read with Section 13 (2) of the
Prevention of Corruption Act, 1988, has
been granted. He has also challenged the
report prepared by the Lokayukta, U.P.
contained in Annexure No.2 to the writ
petition. He has also sought a writ of
mandamus restraining the respondents not
to further proceed with the matter on the
basis of the impugned inquiry report of the
Lokayukta, Uttar Pradesh and order dated
31.08.2019.
3 All. Sukh Lal Yadav Vs. State of U.P. & Ors.
73

2. The brief facts of the case are that in
the year 2007, the State Government took a
decision for construction of memorials and
parks in Lucknow and NOIDA. In pursuance
thereof,
a
three
Members
Committee
consisting of Managing Director of U.P.
Rajkiya Nirman Nigam Ltd., Lucknow, the
Director, Department of Geology and Mining
and its Joint Director, was constituted for the
purposes of ascertaining the sufficiency of
pink stones in the Ahraura region of District
Mirzapur. The Committee, after due inquiry,
found that pink sandstone is available in
sufficient
quantity.
Thereafter,
another
Committee of seven officials including three
officers of earlier Committee submitted its
report indicating therein that it is not feasible
to obtain approximately 2.00 Lakh cubic feet
of sandstone from single area and such
supply should be obtained from a number of
lease areas and it was further recommended
that a consortium of lease holders should be
constituted for the purposes of entering into
an agreement regarding supply of sandstones.

3. The work in question was done upto
2011 and, thereafter, on some complaint, the
matter was referred to Lokayukta by the State
Government for inquiry into the matter. As per
provisions of the Uttar Pradesh Lokayukta &
Up-Lokayuktas Act, 1975 (hereafter referred
to as "Act, 1975" for the sake of brevity), the
inquiry was conducted without giving any
proper opportunity of hearing to the petitioner
and the Lokayukta submitted an inquiry report
to the State Government vide its letter no.
2115-2012/87/2064 dated 20.05.2013. On the
basis of the aforesaid inquiry report of
Lokayukta, the State Government took a
decision for lodging an F.I.R. and also ordered
for investigation of the same by the Vigilance
Establishment.

4. Rejoinder affidavit filed today on
behalf of the petitioner is taken on record.

5. The pleadings between the parties have
been exchanged.

6. Heard Sri Ajai Krishna Yadav, learned
Counsel for the petitioner, Sri S.P. Singh,
learned A.G.A. for the State/respondents no. 1,
2, 4, 6 and 7, Ms. Ashmita Singh, holding brief
of Sri Shishir Jain, learned Counsel for the
respondent no.3-U.P. Rajkiya Nirman Nigam
Ltd. and Sri Amrendra Pratap Singh, holding
brief of Sri A.P. Singh, learned Counsel for the
respondent no.5-Lokayukta.

7. The learned Counsel for the petitioner
submits that no role of the petitioner was found
in the inquiry/investigation of the Lokayukta
but under the orders of the State Government,
an F.I.R. was lodged at Police Station Gomti
Nagar, District Lucknow on 01.01.2014, which
was registered as Case Crime No. 1 of 2014,
under Sections 406/120B I.P.C. and under
Section 13 (1) (D) read with Section 13 (2) of
the Prevention of Corruption Act, 1988, against
19 persons i.e. two Ex-Ministers of the State
and 17 Government officials.

8. It has been argued by the learned
Counsel for the petitioner that though in
pursuance of the order of the State
Government, Vigilance Department had
started investigation but during the course
of investigation, the version of the
petitioner
was
never
considered.
Thereafter, Investigating Officer requested
the appointing authority to grant sanction
prosecution
of
its
officials.
In
the
meantime, 35 officials of the Uttar Pradesh
Rajkiya Nirman Nigam Ltd. made a
representation to the Managing Director of
the Uttar Pradesh Rajkiya Nirman Nigam
Ltd. and a three members Committee was
constituted but during pendency of the said
representation,
sanction
was
granted
without considering the representation of
the petitioner and other officials by way of
74 INDIAN LAW REPORTS ALLAHABAD SERIES
the impugned order dated 31.08.2019
contained in Annexure No.1 to the writ
petition.

9. Elaborating his submission, learned
Counsel for the petitioner has submitted
that while granting sanction prosecution,
the
mandatory
provisions
were
not
complied with by the sanctioning authority.
He submits that the petitioner has never
worked as Accountant at NOIDA Park but
he worked as Assistant Accountant at
NOIDA park only for a brief period of nine
days. He submits that all these facts were
not considered, therefore, kind indulgence
of this Court is necessary.

10. Learned Counsel for the petitioner
has drawn our attention to the order dated
18.06.2020 passed in Writ Petition No. 792
of 2020 (M/B) : Ajai Kumar and another
Vs. State of U.P. and others and order dated
8.12.2020 passed in Misc. Bench No.
19087 of 2020 : Rajeev Garg Vs. State of
U.P. and others and in Misc. Bench No.
16340 of 2020 : Chhatra Pal Singh (C.P.
Singh) Vs. State of U.P. and others, by a
Co-ordinate Benches of this Court and has
submitted that same sanction order dated
31.08.2019 passed by the Managing
Director, Rajkiya Nirman Nigam Ltd. was
challenged in writ petition No. 792 (M/B)
of 2020 (supra), wherein a Co-ordinate
Bench of this Court treating the said order
as valid sanction order disposed of the writ
petition with certain direction to the
Investigating Agency as well as learned
Court below and it was provided that till
the decision is taken by the Competent
Court in regard to the sanction of
prosecution against the writ petitioner that
whether the same is valid or not, no
coercive action shall be taken against him.
Thereafter, two identical writ petitions i.e.
writ petition nos. 19087 of 2020 (M/B) and
16340 of 2020 (M/B) have been filed and
another Co-ordinate Bench of this Court
has granted the benefit of the order dated
18.06.2020 (Supra) to the writ petitioners
of two writ petitions vide judgment and
order dated 8.12.2020. He, therefore,
submits that the aforesaid cases are related
to the same crime number and with respect
of the same offence as well as for the same
occurrence. Thus, the benefit of the order
dated
18.06.2020
and
order
dated
8.12.2020 passed by a Co-ordinate Bench
of this Court may also be granted to the
present writ petitioner.

11. Learned Counsel for the petitioner
has further submitted that a perusal of the
order dated 31.08.2019 indicates that the
sanctioning authority has granted the
prosecution sanction vide order dated
31.08.2019 for taking cognizance and trial
of the petitioner by the competent Court of
law and, therefore, there was no occasion
for passing a subsequent order of alleged
sanction dated 16.12.2019 contained in
Annexure No. CA-1 to the counter
affidavit.

12. Refuting the submissions of the
learned Counsel for the petitioner, learned
AGA has submitted that the impugned
order dated 31.08.2019 is a communication
to the State Government sent by the
Managing Director, Rajkiya Nirman Nigam
Ltd. and not a sanction order. The sanction
order dated 16.12.2019 has not been
assailed in the present writ petition. Thus,
the present writ petition is liable to be
dismissed on this ground alone.

13. While drawing attention to the
order dated 16.12.2019 contained in CA-1
to the counter affidavit, learned AGA has
submitted that the competent authority,
while passing the order dated 16.12.2019,
3 All. Sukh Lal Yadav Vs. State of U.P. & Ors.
75
applied his mind and after going through
the materials pertaining to investigation had
passed the sanction order, in which there is
no lacuna in any manner.

14. Elaborating his submission,
learned AGA has submitted that after
receipt of the report from the Lokayukta in
relation
to
corruption
and
financial
embezzlement
for
construction
of
memorials and parks in Lucknow and
NOIDA, it came to the knowledge that out
of total expenditure i.e. 41,48,54,80,000/-,
the State has lost the revenue of about 34
per cent of the total expenditure i.e.
Rs.14,10,50,63,200/- due to the act of the
accused persons. The proper opportunity
was given to the person(s) concerned
during the course of investigation. Since
evidences so collected during the course of
investigation was found against the accused
persons, therefore, entire material was
placed before the Sanctioning Authority by
the Investigating Officer and after going
through the entire material and evidences
so collected by the Investigating Officer
during the course of inquiry, individual
orders were passed in respect of further
investigation against the other accused
persons for grant of sanction. In the case of
the petitioner also, the sanction order was
passed
vide
order
dated
16.12.2019
contained in Annexure No. CA-1 to the
counter affidavit.

15. Learned AGA has further submitted
that co-accused Anjana and others had filed
writ petition No. 2245 of 2020 (M/B) :
Anjana & others, wherein a Co-ordinate
Bench of this Court, vide order dated
27.01.2020 (Annexure CA-2 to the counter
affidavit), was declined to interfere and
refused to quash the First Information Report.
He submits that the sanction order dated
16.12.2019 passed by the Managing Director,
Uttar Pradesh Rajkiya Nirman Nigam Ltd.,
Lucknow reflects that after considering all the
evidences collected by the Investigating
Officer including the statement of the
witnesses as well as documentary evidences,
sanction order was granted to prosecute the
petitioner. Thus, the present writ petition is
liable to be dismissed.

16. Learned Counsel for the respondent
no.3 has reiterated the submissions of the
learned AGA and has submitted that entire
case material was placed by the Investigating
Officer and, thereafter, sanction order was
passed.

17. Learned Counsel for the respondent
no.5
also
submitted
that
detailed
inquiry/investigation
was
made
and,
thereafter, report was submitted to the State
Government to act thereupon. Thereafter, it
was decided to lodge the F.I.R. and after
lodging the F.I.R., detailed investigation was
conducted.

18. Considering the arguments of the
learned Counsel for the respective parties
and going through the record, it is evident
that in relation to financial irregularities in
the construction of memorials and parks in
Lucknow and NOIDA between 2007 to
2011, the matter was investigated/enquired
by the Lokayaukta, Uttar Pradesh. After
due inquiry, it was found that two ExMinisters, some Government officials and
some private contractors were involved in
committing the financial irregularities in
the construction of memorials and parks in
Lucknow and NOIDA between 2007 to
2011 and, therefore, the Lokayaukta has
submitted a report dated 20.05.2013 in this
regard to the State Government.

19. On receipt of the report of
Lokayukta,
the
State
Government
76 INDIAN LAW REPORTS ALLAHABAD SERIES
considered the report of the Lokayukta and
decided to lodge the F.I.R. against two ExMinisters and 17 Government Officials and
also directed to make enquiry of the case
through Vigilance Establishment. Pursuant
to the aforesaid direction, F.I.R. was lodged
at Police Station Gomti Nagar, District
Lucknow on 01.01.2014, which was
registered as Case Crime No. 1 of 2014,
under Sections 406/120B I.P.C. and under
Section 13 (1) (d) read with Section 13 (2)
of the Prevention of Corruption Act, 1988,
against 19 persons i.e. two Ex-Ministers of
the State and 17 Government officials.

20. During the course of investigation
in the aforesaid case, the Vigilance
Department found the involvement of the
petitioner in the aforesaid case and,
therefore, entire material was placed by the
Investigating Officer before the appointing
authority to grant the sanction order.
Thereafter,
the
sanction
order
dated
16.12.2019 was issued by the Managing
Director, Uttar Pradesh Rajkiya Nirman
Nigam Ltd., Lucknow.

21. As the sanction order dated
16.12.2019 clearly reveals that all the
materials collected by the Investigating
Officer were placed before the Sanctioning
Authority and after going through the entire
material, sanction order was passed, who also
recorded his satisfaction.

22. It is also evident from the record
that the aforesaid sanction order dated
16.12.2019 is not challenged by the petitioner
and
he
has
only
challenged
the
communication
letter
to
the
State
Government dated 31.08.2019.

23. As the petitioner prayed for
quashing of the report of the Lokaykta and
also prayed that respondents may also be
restrained not to further proceed in the matter
on the basis of the enquiry report of the
Lokaykta, it is relevant to mention here that
on the basis of the report of the Lokayukta,
the State Government had decided to lodge
the F.I.R. and the F.I.R. was lodged on
01.01.2014 and after investigation, sanction
order has already been granted. In such
circumstances, the plea of the petitioner to
quash the report of Lokayukta and restrain
the respondents not to proceed any further in
the matter on the basis of report of Lokayukta
is not substantiated and, therefore, it is
rejected.

24. The much emphasis has been laid
by the learned counsel for the petitioner upon
the decision of a Co-ordinate Bench of this
Court dated 18.06.2020, parity of which has
been granted by another Co-ordinate Bench
of this Court vide order dated 8.12.2020 and
prayed that the benefit of the aforesaid orders
may also be granted to the petitioner of the
instant writ petitioner.

25. From perusal of the order dated
18.06.2020, it reflects that the Co-ordinate
Bench of this Court has though dealt with
the purpose and object of sanction as also
the stage at which its validity can be
challenged during trial but on one hand, the
Co-ordinate Bench of this Court had not
entered into the question of validity of
sanction and on the other disposed of the
writ petition by giving protection to the
writ petitioner to the effect that till the
decision is taken by the competent
court/court of Magistrate in regard to the
sanction
of
prosecution
against
the
petitioner that whether the same is valid or
not, no coercive measures shall be taken
against him.

26. In the instant case, the petitioner
has challenged the order by which sanction
3 All. Sukh Lal Yadav Vs. State of U.P. & Ors.
77
has been granted for his prosecution under
Sections
406/120B
I.P.C.
and
under
Section 13 (1) (d) read with Section 13 (2)
of the Prevention of Corruption Act, 1988
as contemplated by Section 197 Cr.P.C.

27. The question which requires
consideration is on what grounds an order
granting sanction can be challenged at the
very initial stage before the parties had any
opportunity to lead evidence in support of
their case.

28. Sub-section (1) of Section 197
Cr.P.C. shows that sanction for prosecution
is required where any person who is or was
a judge or Magistrate or a public servant
not removable from his office save by or
with
the
sanction
of
the
Central
Government or State Government is
accused of any offence alleged to have
been committed by him while acting or
purporting to act in the discharge of official
duties, no Court shall take cognizance of
such offence, except with the previous
sanction of the appropriate Government.

29. Article 311 of the Constitution of
India lays down that no person who is a
member of a civil service of the Union or
State or hold a civil post under the Union or
State shall be removed by an authority
subordinate to that by which he was
appointed.
It,
therefore,
follows
that
protection of sub-section (1) of Section 197
of Cr.P.C. is available only to such public
servants whose appointing authority is the
Central
Government
or
the
State
Government and not to every public
servant.

30. The legislation has given great
importance to sanction will be evident from
the Scheme of Code of Criminal Procedure.
Section 216 of the Code of Criminal
Procedure gives power to the Court to alter
or add to any charge at any time before
judgment is pronounced but Sub-section (5)
thereof provides that if the offence stated in
the altered or added charge is one for the
prosecution of which previous sanction is
necessary, the case shall not be proceeded
with until such sanction is obtained, unless
sanction has been already obtained for a
prosecution on the same facts as those on
which the altered or added charge is
founded. This was emphasised by the Privy
Council in the leading case of Gokulchand
Dwarka Das Morarka Vs. The King :
AIR 1948 PC 82, where in para 9, it was
observed as follows at page 85 :

"................The
sanction
to
prosecute is an important matter; it
constitutes a condition precedent to the
institution of the prosecution and the
Government have an absolute discretion to
grant or withhold their sanction. They are
not, as the High Court seem to have
though, concerned merely to see that the
evidence discloses a prima facie case
against
the
person
sought
to
be
prosecuted."

31. In para-10 of the aforesaid
judgment, following observation has been
made by the Privy Council :

"10.
Mr.
Megaw
for
the
respondent has suggested that this view of
the law would involve in every case that the
Court would be bound to see that the case
proved corresponded exactly with the case
for which sanction had been given. But this
is not so. The giving of sanction confers
jurisdiction on the Court to try the case and
the Judge or Magistrate having jurisdiction
must try the case in the ordinary way under
the Code of Criminal Procedure. The
charge need not follow the exact terms of
78 INDIAN LAW REPORTS ALLAHABAD SERIES
the sanction, though it must not relate to an
offence essentially different, from that to
which the sanction relates."

32.

The
aforesaid
case
i.e.
Gokulchand Dwarka Das Morarka Vs. The
King (supra) was considered by the
Hon'ble Supreme Court in Madan Mohan
Vs. State of U.P. : AIR 1954 SC 637 :
(1954 Crl. LJ 1656) and Som Nath vs.
Union of India : (1971) 2 SCC 387 : AIR
1971 SC 1910 : 1971 Crl. LJ 1422.

33. Clauses (a) and (b) of sub-section
(1) of Section 197 Cr.P.C. show that the
sanction in the case of a person who is or
was employed at the time of commission of
the alleged offence in connection with the
affairs of the Union of India has to be
granted by the Central Government, and, in
the case of a person who is or was
employed at the time of commission of the
alleged offence in connection with the
affairs of a State, by the State Government,
as the case may be. If the sanction is not
accorded by the competent authority of the
Central
Government
or
the
State
Government, as the case may be, the order
of sanction would be invalid. It, therefore,
follows that an order of sanction can be
assailed on the ground that the same had
been granted by a person who did not have
the
authority
to
grant
sanction
as
contemplated by Section 197 Cr.P.C.

34. What would constitute a valid
sanction, was examined by the Privy
Council in Gokul Chand Dwarka Das
Morarka Vs. The King (Supra) with
reference to Clause 23 of Cotton Cloth
and Yarn Control Order, 1943, which
required that no prosecution for the
contravention of any of the provision of
the control order shall be instituted
without the previous sanction of the
Provincial Government and it was held as
follows :

"A sanction which names the
person to be prosecuted and specifies the
provision of the Order which he is
alleged to have contravented is not a
sufficient compliance of Cl. 23. In order
to comply the provisions of Cl. 23, it must
be proved that the sanction was given in
respect of the facts constituting the
offence charged. It plainly desirable that
the fact should be referred to on the face
of the sanction, but this is not essential
since Cl. 23 does not re-charged are not
shown on the face of the sanction, the
prosecution must prove by extraneous
evidence that those facts were placed
before the sanctioning authority."

35. Section 6 (1) of the Prevention
of Corruption Act, 1947 provided that no
Court shall cognizance of an offence
alleged to have been committed by the
public servant, except with the previous
sanction of the authority specified in the
sub-section. What would constitute a
valid sanction with reference to the
aforesaid provision, was examined in
Madan Mohan Vs. State of Uttar
Pradesh : AIR 1954 SC 637 and the
Apex Court after relying upon the dictum
of the Privy Council in Gokulchand
Dwarka Das Morarka Vs. The King
(supra) held as under :

"The burden of proving that the
requisite sanction has been obtained rests
on the prosecution and such burden
includes
proof
that
the
Sanctioning
authority had given the sanction in
reference to the facts on which the
proposed prosecution was to be based; and
these facts may appear on the face of the
sanction or may be proved by extraneous
3 All. Sukh Lal Yadav Vs. State of U.P. & Ors.
79
evidence. Where the facts constituting the
offence do not appear on the face of the
letter
sanctioning
prosecution,
it
is
incumbent upon the prosecution to prove
by other evidence that the material facts
constituting the offence were placed before
the sanctioning authority. Where this is not
done, the sanction must be held to be
defective and an invalid sanction cannot
confer jurisdiction upon the Court to try the
case."

36. Similar view was taken by the
Apex Court in Maj. Som Nath Vs. Union
of India : 1971 (2) SCC 387.

37. In P.C. Joshi Vs. State of U.P. :
AIR 1961 SC 387, the Apex Court while
examining the same question as to what
would constitute a valid sanction held as
follows in paragraph-4 of the reports :

"Mere production of a document,
which sets out the names of the persons to be
prosecuted and the provisions of the statute
alleged to be contravented, and purporting to
bear the signature of an officer competent to
grant the sanction where such sanction is a
condition precedent to the exercise of
jurisdiction does not invest the Court with
jurisdiction to try the offence. If the facts
which constitute the charge do not appear on
the face of the sanction, it must be established
by extraneous evidence that those facts were
placed before the authority competent to
grant the sanction and that the authority
applied his mind to those facts before giving
sanction."

38. It is, therefore, well settled that in
order to constitute a valid sanction, it must be
established that the case was given in respect
of the facts constituting the offence with
which the accused is proposed to be charged.
The facts may be stated in the order granting
sanction or may be proved by extraneous
evidence. If the facts do not appear on the
face of the sanction, the prosecution must
prove it by other evidence that the material
facts constituting the offence were placed
before the sanctioning authority and he had
granted the same after consideration of the
said facts. It follows as a corollary that where
the facts constituting the offence do not
appear on the face of the sanction, it will be
open for the prosecution to lead evidence that
the material facts were place before the
sanctioning
authority
before
grant
of
sanction, and the occasion for leading the
evidence can arise only during the course of
trial.

39. The aforesaid discussion shows
that an order of sanction can be assailed
only on two grounds viz. (1) it has been
granted by an authority who was not
competent to do so; and (2) it has not been
given in respect of the facts constituting the
offence charged. However, if the challenge
to sanction is based upon the ground that
the facts constituting the offence do not
apepar on the face of the sanction, then,
such a plea cannot be entertained at the
initial
stage
before
the
trial
has
commenced, as the prosecution can have no
opportunity to lead evidence in order to
show that the sanction had been granted
after consideration of relevant material.
Therefore,
such
a
plea
cannot
be
entertained
and
examined
in
any
proceedings including a writ petition under
Article 226 of the Constitution of India
before commencement of the trial. It is
only after the trial has concluded and the
prosecution has been given the opportunity
to lead evidence that the validity of the
sanction can be examined on this ground.

40. In the writ petition, the entire
effort of the petitioner has been to show
80 INDIAN LAW REPORTS ALLAHABAD SERIES
that he has not misappropriated the funds.
These are all questions which go to the
merits of the case, namely, whether the
charge against the petitioner that he
misappropriated
the
public
finds
is
established or not. These are matters to be
seen in the trial after the prosecution and
the accused had the opportunity to lead
evidence in support of their case. An order
of sanction cannot be assailed or tested on
the ground that the evidence does not
established the charge. This is the function
of the Court trying the case and not the
sanctioning authority. The sanctioning
authority has merely to see whether the
facts alleged against the accused constitute
an offence and whether he should be tried
by a competent Court for the said offence.

41. In order of sanction, it is recited
that the authority had carefully examined
all the papers and had, thereafter, come to
the conclusion that the petitioner should be
prosecuted for the offence committed by
him before a competent Court.

42. It is settled law that grant of
sanction is an administrative act. The
purpose is to protect the public servant
from harassment by frivolous or vexatious
prosecution and not to shield the corrupt.
The question of giving opportunity to the
public servant at that stage does not arise.
Further the sanctioning authority has only
to see whether the facts would prima facie
constitute the offence on the basis of
relevant material collected during the
course of investigation and placed before it,
which warrants trial of public servant for
which requisite sanction is required.

43. As stated hereinabove, the
impugned order is a communication letter
to the State Government and actual order
of prosecution dated 16.12.2019 has not
been challenged by the petitioner though
a copy of the same has been enclosed as
Annexure No. CA-1 to the counter
affidavit filed by the State, which we
have also perused and have taken into
consideration. Even otherwise, on perusal
of the entire material on record, we are of
the view that at this juncture, the sanction
order is a valid one. Moreso, there is
neither any pleading nor any ground in
the writ petition that the Managing
Director, U.P. Rajkiya Nirman Nigam
Ltd., Lucknow, who has passed the order
of sanction, was not legally competent to
grant sanction and, therefore, the order of
sanction cannot be assailed on the ground
of competency of sanctioning authority.

44. During the course of arguments,
learned AGA has informed that the
prosecuting agency has already collected
credible
and
incriminating
evidence
against
the
petitioner
too.
The
investigation of the case has already been
concluded. The draft final report had
already been approved by the State
Government on 15th July, 2019 and,
therefore, only the charge-sheet is to be
filed before the competent Court but due
to pendency of the present writ petition,
charge-sheet could not be filed before the
competent Court.

45. Considering the aforesaid facts
and circumstances of the case, we are not
satisfied with the plea of the petitioner that
the petitioner is also entitled to get the
interim protection as has been given by the
Co-ordinate Bench of this Court vide
orders dated 18.06.2020 (supra) and
8.12.2020 (supra). Moreover, the Coordinate Bench has also observed the
sanction order to be valid vide order dated
18.06.2020 passed in Misc. Bench No. 792
of 2020 : Ajay Kumar & another Vs. State
3 All. Moksh Innovations Inc. Vs. State of U.P. & Ors.
81
of U.P. (Supra), which is reproduced as
under :-

"The submission made by learned
counsel for the petitioner is that the
impugned sanctioned order has been passed
by
the
competent
authority
without
application his mind, rather under the
pressure of the higher authority, the same is
illegal and arbitrary in nature. The validity
of the sanction order is perfectly valid as
per law laid down by Hon'ble the Apex
Court in the case of Mansukhlal
Vitthaldas (Supra) in which it has been
observed that "Sanction lifts the bar for
prosecution. The grant of sanction is not
an idle formality or an acrimonious
exercise but a solemn and sacrosanct act
which affords protection to the government
servants against frivolous prosecution.
Sanction
is
a
weapon
to
ensure
discouragement of frivolous and vexatious
prosecutions and is a safeguard for
innocent but not a shield for the guilty as
the validity of sanction depends on the
applicability of mind by the sanctioning
authority to the facts of the case and also
the material and evidence collected during
investigation. Sanctioning authority has to
apply its own independent mind for
generation of genuine satisfaction whether
prosecution has to be sanctioned or not."

46. For the aforesaid reasons, there is
no merit in the writ petition, which is,
accordingly, dismissed.

47. It is needless to say that the
petitioner is at liberty to seek remedy under
Section 438/439 Cr.P.C., as the case may
be, if so advised.
----------
(2021)03ILR A81
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.03.2021

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MANISH KUMAR, J.

Misc. Bench No. 14199 of 2020

Moksh Innovations Inc. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Desh Mitra Anand, Ashish Bhatt, Rajendra
Kumar

Counsel for the Respondents:
C.S.C.,
Brijesh
Kumar
Tiwari,
Gaurav
Dhama, Naresh Chandra Mehrotra, R.P.
Singh

(A) Constitution of India,1950 - Article
226 - Rejection of technical bid - in
regard to allotment of contract the action
of the Government or its instrumentality
are subject to judicial review - a tender
submitted in response to a NIT(Notice
Inviting Tender) is only an offer which the
Government or its instrumentality are
under no obligation to accept - a party
having participated in the tender knowing
that it was unsuccessful ordinarily, cannot
be permitted to challenge the conditions
of tender, as such afterthought action on
the part of the unsuccessful bidder is
impermissible to be entertained by the
Courts - a tenderer having accepted the
tender conditions and submitted the
tender does not have locus to challenge
the conditions of tender for the reason
that
in
such
a
situation
any
party
aggrieved by the conditions of tender
ought to have challenged the NIT before
submitting its tender pursuant to such
notice.(Para -10)

Proceedings instituted by the petitioner-firm - to
judicially scrutinize the action on the part of the
respondent-corporation
-
in
rejecting
the