# Upendra Yadav & Ors. Aplicants v. State Of U.P. & Anr

- **Citation:** (2016) 5 ILRA 2040
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-09
- **Bench:** Ramesh Sinha, Vinod Kumar Srivastava-Iii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upendra-yadav-ors-aplicants-v-state-of-u-p-anr-43915
- **Pages:** 4

## Headnote

Prevention of corruption act, 1988 - Section 19(1) - Sanction for prosecution - Mandatory
requirement - Investigation against public servant cannot be ordered without prior sanction
even at pre-cognizance stage.

Sanction from competent authority is a pre-condition before directing investigation under Section 156(3)
Cr.P.C. against a public servant alleged to have committed offence while discharging official duties.(Paras 711)
Criminal procedure - Section 156(3) Cr.P.C. - Scope - Magistrate's power to direct
investigation - Limitation in cases involving public servants.
Where allegations are against public servants and sanction has not been obtained from competent authority,
the Magistrate cannot direct registration of FIR and investigation under Section 156(3) Cr.P.C.(Paras 8-11)
Sanction for prosecution - Absence of sanction - Order directing investigation illegal and liable
to be quashed.
(Paras 11-12)
In Result: Application allowed, Impugned order passed by Special Judge directing police to register case
and investigate applicants held unsustainable in law due to absence of valid sanction.

List of Cases cited:

Anil Kumar and others vs. M.K. Aiyappa and another(2013) 10 SCC 705
Maksud Saiyed vs. State of Gujarat 2008 (5) SCC 668

## Text

2040 INDIAN LAW REPORTS ALLAHABAD SERIES
Srivastava(Supra) before third respondent within 15 days from the date of receipt of a certified
copy of this order.

15. The writ petition is allowed. No order as to costs.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.05.2016

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VINOD KUMAR SRIVASTAVA-III, J.

Application U/S 482 No.- 23574 Of 2015

Upendra Yadav & Ors. ...Aplicants
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Aplicants:
Satya Srivastava

Counsel for the Respondents:
Govt. Advocate, Ramesh Kumar Pandey

Prevention of corruption act, 1988 - Section 19(1) - Sanction for prosecution - Mandatory
requirement - Investigation against public servant cannot be ordered without prior sanction
even at pre-cognizance stage.

Sanction from competent authority is a pre-condition before directing investigation under Section 156(3)
Cr.P.C. against a public servant alleged to have committed offence while discharging official duties.(Paras 711)
Criminal procedure - Section 156(3) Cr.P.C. - Scope - Magistrate's power to direct
investigation - Limitation in cases involving public servants.
Where allegations are against public servants and sanction has not been obtained from competent authority,
the Magistrate cannot direct registration of FIR and investigation under Section 156(3) Cr.P.C.(Paras 8-11)
Sanction for prosecution - Absence of sanction - Order directing investigation illegal and liable
to be quashed.
(Paras 11-12)
In Result: Application allowed, Impugned order passed by Special Judge directing police to register case
and investigate applicants held unsustainable in law due to absence of valid sanction.

List of Cases cited:

Anil Kumar and others vs. M.K. Aiyappa and another(2013) 10 SCC 705
Maksud Saiyed vs. State of Gujarat 2008 (5) SCC 668

(Delivered by Hon'ble Ramesh Sinha, J.)
5 All. Upendra Yadav & Ors. Vs State Of U.P. & Anr.

2041
1. Heard Ms. Satya Srivastava, learned counsel for the applicants, Shri Ramesh Kumar
Pandey, learned counsel for opposite party No. 2 and Shri S.A. Murtaza, learned AGA for the
State.

2. This application under section 482 Cr.P.C. has been filed with the prayer to quash the
impugned order dated 24.7.2015 passed by learned Special Judge (E.C.Act)/Additional Sessions
Judge, Ghaziabad in Misc. Application No. 124 of 2015 moved by opposite party No. 2 under
section 156(3) Cr.P.C. against the applicants for offence under sections 452, 323, 354, 504, 506,
392 IPC and 7, 8 and 13 Prevention of Corruption Act, PS Sahibabad, district Ghaziabad.

3. Brief facts of the case are that opposite party No. 2 moved an application under section
156(3) Cr.P.C. on 19.02.2015 before the Special Judge, (CBI), Ghaziabad alleging therein that the
applicant No. 3 alongwith co-accused namely Pushpendra entered into his house and assaulted him
with kicks and fists and when his wife interrupted, the co-accused Pushpendra outraged her
modesty by removing her Dupatta. It has been further alleged that at police station Sahibabad, the
applicant No. 1 demanded Rs. 1,00,000/-(rupees one lacs) to set him free and he was released when
his relatives gave Rs. 50,000/- (rupees fifty thousands) to applicant No. 1.

4. The said application of opposite party No. 2 was allowed by the Special Judge (E.C.
Act), Ghaziabad vide order dated 24.7.2015, by which he directed that the concerned police station
to register a case against the applicants and investigate the same.

5. Aggrieved by the same, the applicants have preferred the present 482 Cr.P.C.
Application.

6. It has been argued by learned counsel for the applicants that the applicants are the police
personnel and an FIR was lodged against opposite party No. 2 by applicant No. 2 under section 13
of the Gambling Act and on 1.2.2015, opposite party No. 2 with an allegation that while the
applicants were on patrolling duty on 1.2.2015 at 7.20 p.m. on an information received by them that
opposite party No. 2 was involved in an illegal act of betting (Satta), the police team reached the
place of occurrence and found that opposite party No. 2 was indulged in accepting bets, and
thereafter, arrested the opposite party No. 2 and was kept in lock-up at police station Sahibabad for
few hours and he was released on personal bond on the same day i.e. 01.02.2015 at 10.30 p.m. The
opposite party No. 2 being annoyed from the applicants with a malafide intention moved the
present application u/s 156(3) Cr.P.C. for registering FIR against him on false and frivolous
allegation.

7. It has further been submitted by the learned counsel for the applicants that the opposite
party No. 2 is a private person and no valid sanction for their prosecution has been obtained by
opposite party No. 2 from the competent authority and the same was also not placed before the
court concerned while filing application under section 156(3) Cr.P.C., which has been allowed by
the court below. Learned counsel for the applicants argued that since the applicants are public
2042 INDIAN LAW REPORTS ALLAHABAD SERIES
servants, a private complaint lodged against them without being accompanied with a valid sanction
order from the competent authority could not have been entertained by the learned Judge.

8. In support of her contention, learned counsel for the applicants has relied upon a
judgement of the Apex Court in the case of Anil Kumar and others vs. M.K. Aiyappa and another,
reported in (2013) 10 SCC 705, in which it has been held that power to order investigation under
section 156 (3) Cr.P.C. can be exercised as a pre-cognizance stage yet sanction from the competent
authority is pre-requisite in respect of a public servant concerning the alleged offence said to have
been committed in discharge of his official duty.

9. It is submitted that the case of the applicants is squarely covered by the judgment of the
Apex Court in the case of Anil Kumar (Supra). Hence, the impugned order passed by the Special
Judge (E.C. Act) Ghaziabad is liable to be quashed by this Court.

10. Learned Additional Government Advocate as well as the counsel appearing for
opposite party No. 2 though have tried to justify the impugned order passed by the court below, but
they admitted the fact that no valid sanction has been obtained from the competent authority for the
prosecution of the applicants nor the same was filed along with the application under section 156
(3) Cr.P.C. before the court below.

11. Considering the submissions advanced by the learned counsel for the parties, it appears
from the record that opposite party No. 2, Zahid was involved in Case Crime No. 169 of 2015,
which was registered against him under section 13 of Gambling Act and he was released on
personal bond by the police on 1.2.2015, and thereafter, it appears that he moved the application
under section 156 (3) Cr.P.C. on 19.2.2015 for registering a case against the applicants, who are the
police personnel, which has been allowed by the Special Judge (E.C. Act) Ghaziabad on 24.7.2015,
who directed the concerned Station Officer to register a case against the applicants and investigate
the same, as the applicants are the public servants and a valid sanction is required for their
prosecution and the same has not been granted by the competent authority. The registration of a
case and investigation of the same in pursuance of an application under section 156 (3) Cr.P.C.,
which has been allowed by the court below is not sustainable in the eyes of law in view of the
judgment of the Apex Court in the case of Anil Kumar (Supra), in which the Apex Court has held
that sanction under section 19 (1) of the Prevention of Corruption Act, 1988 is a pre-condition for
ordering the investigation against public servant under section 156 (3) Cr.P.C. even at a precognizance stage. Investigation under section 156 (3) Cr.P.C. cannot be ordered without previous
sanction under section 19 (1) of the said Act. The said preposition of law was also enunciated by
the Apex Court in the case of Maksud Saiyed vs. State of Gujarat reported in 2008 (5) SCC 668,
which was followed by the Apex Court in the case of Anil Kumar (Supra).

12. Thus, in the instant case, no valid sanction was obtained from the competent authority
against the applicants an application under section 156(3) Cr.P.C. moved by opposite party No. 2,
hence the impugned order passed by the Special Judge allowing the said application and directing
5 All. Nayab Abbasi Girls Degree College Vs State Of U.P. & Ors.

2043
the case be registered against the applicants and be investigated is absolutely illegal and liable to be
quashed, which is accordingly, quashed.

13. Accordingly, the application under section 482 Cr.P.C. stands allowed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2016

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Writ C No.- 35328 Of 2015

Nayab Abbasi Girls Degree College ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rohit Pandey, Neeraj Tiwari

Counsel for the Respondents:
C.S.C., Vivek Varma

Issue for consideration - whether a minority institution is entitled to admit students of other communities
in B.Ed. Course under the minority quota

Held:- unaided minority institutions can admit non-minority students under management quota for unfilled
seats after prioritizing minority candidates on merit, without violating Article 30, provided the minority
character is maintained and admissions follow merit from common entrance tests, relying on Supreme Court
precedents like P.A. Inamdar v. State of Maharashtra and Islamic Academy of Education v. State of Karnataka.

Refusal to permit students to appear in examination - Validity.
Where minority institution admitted a majority of minority students and only a few seats were filled by nonminority candidates on the basis of merit in the common entrance test, refusal by the University to issue
admit cards was unjustified

The court directed the university to validate the admissions and declare results for the 9 students

IN Result: Writ petition Allowed

List of Cases cited:
P.A. Inamdar vs. State of Maharashtra(2005) 6 SCC 537
In Re: Kerala Education Bill, 1957AIR 1958 SC 956
St. Stephen's College vs. University of DelhiAIR 1992 SC 1630
T.M.A. Pai Foundation vs. State of Karnataka(2002) 8 SCC 481Islamic Academy of Education vs. State of
KarnatakaAIR 2003 SC 3724