# Ved Prakash v. State of U.P. & Anr

- **Citation:** (2024) 4 ILRA 691
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-24
- **Case number:** Application U/S 482. No. 21858 of 2019
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ved-prakash-v-state-of-u-p-anr-51844
- **Pages:** 7

## Headnote

Criminal Law
- Code of Criminal
Procedure,1973 -Section 482- Quashing
of Proceedings Denied - The applicant sought
to
quash
the
summoning
order
dated
31.05.2014 under Section 465 IPC and related
proceedings, citing lack of prior sanction
under
Section
197
CrPC
-
Held,
the
proceedings could not be quashed as the
issue of whether the alleged act of producing
a forged disconnection slip was part of the
applicant's official duty requires trial evidence.
(Paras 2, 15, 16, 18)
B. Section 197 CrPC - Sanction Requirement
for Public Servant - The applicant, a retired
Executive Engineer, argued that prior sanction
was necessary as the alleged forgery occurred
during official duties - Held, protection under
Section 197 applies only to acts reasonably
connected to official duties, and fabricating
documents is not part of such duties, as per
Shambhoo Nath Mishra and Shadakshari. (Paras
8, 9, 10, 15)

C. Forgery Not Part of Official Duty - The
allegation
involved
producing
a
forged
disconnection slip dated 03.11.2008 - Held,
fabricating records, as per St. of Orissa Vs
Ganesh Chandra Jew and Punj. St. Warehousing
Corporation, is not an act in discharge of official
duty, and the issue requires trial adjudication.
(Paras 8, 12, 16)

D. Trial Required for Disputed Facts - The
applicant's claim that the act was part of official
duty was contested, and the trial court deferred
the sanction issue to the evidence stage - Held,
disputes regarding the nature of the act (official or
otherwise) must be resolved through trial, not
under Section 482 CrPC. (Paras 7, 11, 15, 16)

E. Expeditious Trial Directed - Noting the
case's pendency since 2014, the court directed
the trial court to conclude the proceedings in
Complaint Case No. 356 of 2014 within one year
- Held, prolonged delays necessitate expeditious
disposal to ensure justice. (Para 17)

Application Rejected.

List of Cases cited:

## Text

4 All. Ved Prakash Vs. State of U.P. & Anr.
691
and Dr. Kalind Parashar pending in the
court of A.C.J.M.-VIII, Ghaziabad vide
Case No.1643 of 2012 arising out of Case
Crime No. 2/2012, under Sections 498-A,
323, 504, 506, 406 I.P.C. & 3/4 D.P. Act
are, hereby, quashed.

24. Accordingly, the Applications
are allowed.

25. Let a copy of this order be sent
to the Court concerned forthwith.
----------
(2024) 4 ILRA 691
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.01.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 21858 of 2019

Ved Prakash ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Jitendra Kumar Mishra

Counsel for the Opposite Parties:
G.A., Sri Nawal Kishor Mishra, Sri Upendra
Vikram Singh

Criminal Law
- Code of Criminal
Procedure,1973 -Section 482- Quashing
of Proceedings Denied - The applicant sought
to
quash
the
summoning
order
dated
31.05.2014 under Section 465 IPC and related
proceedings, citing lack of prior sanction
under
Section
197
CrPC
-
Held,
the
proceedings could not be quashed as the
issue of whether the alleged act of producing
a forged disconnection slip was part of the
applicant's official duty requires trial evidence.
(Paras 2, 15, 16, 18)
B. Section 197 CrPC - Sanction Requirement
for Public Servant - The applicant, a retired
Executive Engineer, argued that prior sanction
was necessary as the alleged forgery occurred
during official duties - Held, protection under
Section 197 applies only to acts reasonably
connected to official duties, and fabricating
documents is not part of such duties, as per
Shambhoo Nath Mishra and Shadakshari. (Paras
8, 9, 10, 15)

C. Forgery Not Part of Official Duty - The
allegation
involved
producing
a
forged
disconnection slip dated 03.11.2008 - Held,
fabricating records, as per St. of Orissa Vs
Ganesh Chandra Jew and Punj. St. Warehousing
Corporation, is not an act in discharge of official
duty, and the issue requires trial adjudication.
(Paras 8, 12, 16)

D. Trial Required for Disputed Facts - The
applicant's claim that the act was part of official
duty was contested, and the trial court deferred
the sanction issue to the evidence stage - Held,
disputes regarding the nature of the act (official or
otherwise) must be resolved through trial, not
under Section 482 CrPC. (Paras 7, 11, 15, 16)

E. Expeditious Trial Directed - Noting the
case's pendency since 2014, the court directed
the trial court to conclude the proceedings in
Complaint Case No. 356 of 2014 within one year
- Held, prolonged delays necessitate expeditious
disposal to ensure justice. (Para 17)

Application Rejected.

List of Cases cited:

1. St. of Orissa Vs Ganesh Chandra Jew, (2004)
8 SCC 40

2. Shambhoo Nath Mishra Vs St. of U.P., (1997)
5 SCC 326

3. Shadakshari Vs St. of Karnataka, Criminal
Appeal No. 256 of 2024

4. Punj. St. Warehousing Corporation Vs
Bhushan Chander, (2016) 13 SCC 44

5. Ayush Kumar Vs St. of U.P., Application U/S
482 No. 17421 of 2011
692 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Professor R.K. Vijayasarathy Vs Sudha
Seetharam, Criminal Appeal No. 238 of 2019

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Upendra Vikram Singh,
learned counsel for the applicant and Sri
Uday Bhan, learned AGA for the State.

2. The present 482 Cr.P.C. application
has been filed to quash the summoning
order dated 31.05.2014, under Section-465
IPC, Police Station-Chamanganj, DistrictKanpur Nagar and the entire proceeding of
Complaint Case No.356 of 2014 (Om
Prakash Agrawal Vs. V.P. Govil and
others), pending in the court of MM-IV,
Kanpur Nagar.

3. Learned counsel for the applicant
submits that the applicant had retired as an
Executive Engineer in 2010, and after his
retirement, the impugned complaint was
filed In 2014, the summoning order was
passed on 15.04.2014. Thereafter, the
applicant, after obtaining bail, filed an
application
dated
19.06.2015
that
complaint itself is barred for want of proper
sanction u/s 197 Cr.P.C., which was heard
on 01.09.2015, but disposal of same was
postponed till the evidence stage. Now,
after almost four years, the applicant has
challenged
the
impugned
criminal
proceeding on the ground that prior
sanction u/s 197 IPC was not taken before
lodging the complaint above or before
taking
cognizance
of
the
aforesaid
complaint.

4. Learned counsel for the applicant
submits that the allegation in the complaint
against
the
applicant
is
that
while
discharging his duty as an Executive
Engineer, he had produced a forged
disconnection
slip
dated
03.11.2008.
Therefore, without prior sanction u/s 197
Cr.P.C., the proceeding of the complaint
case cannot be initiated. In support of his
contention,
learned
counsel
for
the
applicant
has
also
relied
upon
the
judgement of a coordinate Bench of this
Court passed in APPLICATION U/S 482
No. - 17421 of 2011 (Ayush Kumar And
Others Vs. State of U.P. And Another)
vide order dated 10.04.2019, as well as the
judgement of the Apex Court in Criminal
Appeal No.238 of 2019 (Professor R.K.
Vijayasarathy
&
Anr.
Vs.
Sudha
Seetharam
&
Anr.)
decided
on
15.02.2019 as well as the judgement of
Punjab State Warehousing Corporation
Vs. Bhushan Chander And Another
reported in 2016 (13) SCC 44.

5. Per contra, learned counsel for
opposite party no.2 has submitted that once
the applicant's application for dropping the
proceeding on the ground want of prior
sanction u/s 197 Cr.P.C. was rejected, that
order has become final. The applicant
cannot challenge the impugned proceeding
on the same ground.

6. Learned AGA also adopted the
argument of opposite party no.2 and
furthermore submitted that the impugned
proceeding itself is at the evidence stage,
and the applicant also obtained bail in the
impugned proceeding, he can raise this
objection at the appropriate stage.

7. After considering the submission of
the parties and on perusal of the record, it is
clear
that
the
applicant
moved
an
application for dropping the proceeding on
the ground that prior sanction u/s 197
Cr.P.C. was not obtained before filing the
complaint. Though that application was
heard by the court on 01.09.2015, but
4 All. Ved Prakash Vs. State of U.P. & Anr.
693
disposal of same was adjourned on the
grounds of whether applicant's act of
producing
the
allegedly
forged
disconnection slip dated 03.11.2008 is in
the discharge of his official duty, which can
be decided on the basis of evidence. The
order sheet shows that this application is
still pending.

8. Hon'ble Supreme Court in the case
of State of Orissa Vs. Ganesh Chandra
Jew reported in 2004 (8) SCC 40
observed that protection u/s 197 Cr.P.C.
had certain limits and is available only
when the alleged act done by the public
servant is reasonably connected with the
discharge of his official duty and is not
merely a cloak for doing objectionable acts.
The question is not as to the nature of the
offence such as whether the alleged offence
contained an element that necessarily
depends upon the offender being a public
servant, but whether it was committed by a
public servant acting or purporting to act as
such in the discharge of his official
capacity. Paragraph no.7 of the above
judgement is being quoted as under:

"7. The protection given under
Section 197 is to protect responsible public
servants against the institution of possibly
vexatious criminal proceedings for offences
alleged to have been committed by them
while they are acting or purporting to act
as public servants. The policy of the
legislature is to afford adequate protection
to public servants to ensure that they are
not prosecuted for anything done by them
in the discharge of their official duties
without reasonable cause, and if sanction is
granted, to confer on the Government, if
they choose to exercise it, complete control
of the prosecution. This protection has
certain limits and is available only when
the alleged act done by the public servant
is reasonably connected with the discharge
of his official duty and is not merely a cloak
for doing the objectionable act. If in doing
his official duty, he acted in excess of his
duty, but there is a reasonable connection
between the act and the performance of the
official duty, the excess will not be a
sufficient ground to deprive the public
servant of the protection. The question is
not as to the nature of the offence such as
whether the alleged offence contained an
element necessarily dependent upon the
offender being a public servant, but
whether it was committed by a public
servant acting or purporting to act as such
in the discharge of his official capacity.
Before Section 197 can be invoked, it must
be shown that the official concerned was
accused of an offence alleged to have been
committed
by
him
while
acting
or
purporting to act in the discharge of his
official duties. It is not the duty which
requires examination so much as the act,
because the official act can be performed
both in the discharge of the official duty as
well as in dereliction of it. The act must fall
within the scope and range of the official
duties of the public servant concerned. It is
the quality of the act which is important
and the protection of this section is
available if the act falls within the scope
and range of his official duty. There cannot
be any universal rule to determine whether
there is a reasonable connection between
the act done and the official duty, nor is it
possible to lay down any such rule. One
safe and sure test in this regard would be to
consider if the omission or neglect on the
part of the public servant to commit the act
complained of could have made him
answerable for a charge of dereliction of
his official duty. If the answer to this
question is in the affirmative, it may be said
that such act was committed by the public
servant while acting in the discharge of his
694 INDIAN LAW REPORTS ALLAHABAD SERIES
official
duty
and
there
was
every
connection with the act complained of and
the official duty of the public servant. This
aspect makes it clear that the concept of
Section 197 does not get immediately
attracted on institution of the complaint
case."

9. Similarly, in the case of Shambhoo
Nath Mishra Vs. State of U.P. & Others
reported in 1997 (5) SCC 326 observed
that whether a public servant who allegedly
commits the offence of fabrication of
records or misappropriation of public funds
can be said to have acted in the discharge
of his official duty and further observed
that it is not the official duty to fabricate
records or to misappropriate public funds.
Paragraph no.5 of the judgement above are
being quoted as under:

"5. The question is when the
public servant is alleged to have committed
the offence of fabrication of record or
misappropriation of public fund etc. can he
be said to have acted in discharge of his
official duties. It is not the official duty of
the public servant to fabricate the false
records and misappropriate the public
funds etc. in furtherance of or in the
discharge of his official duties. The official
capacity only enables him to fabricate the
record or misappropriate the public fund
etc. It does not mean that it is integrally
connected or inseparably interlinked with
the crime committed in the course of the
same transaction, as was believed by the
learned Judge. Under these circumstances,
we are of the opinion that the view
expressed by the High Court as well as by
the trial court on the question of sanction is
clearly illegal and cannot be sustained."

10. Similarly, the Hon'ble Supreme
Court, in the case of Shadakshari Vs. State
of Karnataka & Another in Criminal
Appeal No.256 of 2024 decided on
07.01.2024.
Hon'ble
Supreme
Court
observed in paragraph no.25 that the
question of whether respondent no.2 was
involved in fabricating official documents
by misusing his official position as a
public servant is a matter of trial and
further observed that manufacturing of
such documents or fabrication of records
cannot be a part of the official duty of a
public servant. Paragraph no.25 of the
judgement above are being quoted as
under:

"25.
The
question
whether
respondent
No.2
was
involved
in
fabricating official documents by misusing
his official position as a public servant is a
matter of trial. Certainly, a view can be
taken
that
manufacturing
of
such
documents or fabrication of records cannot
be a part of the official duty of a public
servant. If that be the position, the High
Court was not justified in quashing the
complaint as well as the chargesheet in its
entirety, more so when there are two other
accused persons besides respondent No.2.

There is another aspect of the
matter.
Respondent
No.2
had
unsuccessfully challenged the complaint in
an earlier proceeding under Section 482
Cr.PC. Though liberty was granted by the
High
Court
to
respondent
No.2
to
challenge any adverse report if filed
subsequent to the lodging of the complaint,
instead of confining the challenge to the
chargesheet, respondent No.2 also assailed
the complaint as well which he could not
have done."

11. The legal position as mentioned
above is clear that whether the particular
act of fabricating official documents is a
4 All. Ved Prakash Vs. State of U.P. & Anr.
695
part of the official duty of a public servant
or not, is a matter of trial and the
proceeding cannot be quashed on that basis.

12. So far as the judgement of Punjab
State Warehousing Corporation (supra)
relied upon by the learned counsel for the
applicant is concerned, in that judgement
Hon'ble Supreme Court observed that there
has to be the reasonable connection
between the omission or commission and
discharge of official duty or the act
committed was under the colour of office
held by the officials. If the act of omission
or commission aligns to the discharge of
official duty, then the question of invoking
Section-197 Cr.P.C. does not arise. This
legal position is correct and does not
support the applicant because it is yet to be
decided whether the act of producing a
forged disconnection certificate on the part
of the applicant can be said to be the act in
the discharge of the official duty, which
can be considered after adducing the
evidence during the trial. Paragraph no.20
of the above judgement is being quoted as
below:

"20. A survey of the precedents
makes it absolutely clear that there has to
be a reasonable connection between the
omission or commission and the discharge
of official duty or the act committed was
under the colour of the office held by the
official.
If
the
act(s),
omission
or
commission of which is totally alien to the
discharge of the official duty, question of
invoking Section 197 CrPC does not arise.
We have already reproduced few passages
from the impugned order from which it is
discernible that to arrive at the said
conclusion the learned Single Judge has
placed reliance on the authority in B. Saha
[B. Saha v. M.S. Kochar, (1979) 4 SCC 177
: 1979 SCC (Cri) 939] . The conclusion is
based on the assumption that the allegation
is that while being a public servant, the
alleged criminal breach of trust was
committed while he was in public service.
Perhaps the learned Judge has kept in his
mind some kind of concept relating to
dereliction of duty. The issue was basically
entrustment and missing of the entrusted
items. There is no dispute that the
prosecution had to prove the case. But the
public servant cannot put forth a plea that
he was doing the whole act as a public
servant. Therefore, it is extremely difficult
to appreciate the reasoning of the High
Court. As is noticeable he has observed
that under normal circumstances the
offences under Sections 467, 468 and 471
IPC may be of such nature that obtaining
of sanction under Section 197 CrPC is not
necessary but when the said offences are
interlinked with an offence under Section
409 IPC sanction under Section 197 for
launching the prosecution for the offence
under Section 409 is a condition precedent.
The approach and the analysis are
absolutely fallacious. We are afraid,
though the High Court has referred to all
the relevant decisions in the field, yet, it
has erroneously applied the principle in an
absolute fallacious manner. No official can
put forth a claim that breach of trust is
connected with his official duty. Be it noted
the three-Judge Bench in B. Saha [B. Saha
v. M.S. Kochar, (1979) 4 SCC 177 : 1979
SCC
(Cri)
939]
has
distinguished
Shreekantiah
Ramayya
Munipalli
[Shreekantiah Ramayya Munipalli v. State
of Bombay, AIR 1955 SC 287 : 1955 Cri LJ
857] keeping in view the facts of the case.
It had also treated the ratio in Amrik Singh
[Amrik Singh v. State of Pepsu, AIR 1955
SC 309 : 1955 Cri LJ 865] to be confined
to its own peculiar facts. The test to be
applied, is as has been stated by
Chandrasekhara
Aiyar,
J.
in
the
696 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution Bench in Matajog Dobey
[Matajog Dobey v. H.C. Bhari, AIR 1956
SC 44 : 1956 Cri LJ 140] which we have
reproduced hereinbefore. The three-Judge
Bench in B. Saha [B. Saha v. M.S. Kochar,
(1979) 4 SCC 177 : 1979 SCC (Cri) 939]
applied the test laid down in Gill case [Gill
v. R., (1948) 10 FCR 19 : AIR 1948 PC 128
: (1947-48) 75 IA 41 : 1948 SCC OnLine
PC 10] wherein Lord Simonds has
reiterated that the test may well be whether
the public servant, if challenged, can
reasonably claim, that what he does, he
does in virtue of his office."

13. So far as the judgement of Ayush
Kumar And Others (supra), relied upon
by the applicant is concerned, in that case,
the dispute was only about incorrectly
mentioning the C.T. ratio of metering
cubicle
during
the
check-in
drive.
Subsequently, C.T. ratio of the metering
cubical was corrected from 20/5 to 30/5,
the applicant did not dispute the facts in
that case. Therefore, from the evidence
available
before
the
court,
it
was
undisputed that the preparation of sealing
certificate
mentioning
the
C.T.
ratio
metering cubical was in discharge of
official duty, therefore, the Hon'ble Court
on being satisfied that the act of the officer
was
in
discharge
of
official
duty;
consequently, he is entitled to protection
u/s 197 IPC but in the present case, the
dispute is yet to be ascertained whether the
preparation and producing the forged
disconnection slip on the part of the
applicant can be said to be the preparation
of documents in the discharge of official
duty; therefore this judgement also does not
help the applicant.

14. So far as the judgement of
Professor R.K. Vijayasarathy (supra),
relied upon by the applicant is concerned,
that judgement does not apply in the
present case because in that case, the
dispute was whether the civil dispute had
been converted into criminal dispute.

15. This court holds on the basis of
the legal position discussed above that
whenever there is a slight doubt whether
the act or omission on the part of a public
servant was in discharge of his official duty
or not. Unless that issue was decided on the
basis of evidence during trial, the criminal
proceeding cannot be quashed in the
exercise of power u/s 482 Cr.P.C., mainly
because a person claiming himself to be a
public servant alleges that his act was in
discharge of his official duty. Protection u/s
197 IPC is given to protect the public
servant who bonafide performed any act in
the discharge of his official duty not for all
the act whether that act was part or not his
official duty as there are number of acts
which has been declared by the Apex Court
which cannot be said to be part of the
official duty like fabricating the document
or misappropriation of funds.

16. From the perusal of the record, it
appears that against the entry in 2009 in the
register of the electricity department, the
alleged disconnection slip, which was
produced as a defence by the applicant, was
itself prepared in 2008. Therefore, prima
facie, the accused's act cannot be said to be
in discharge of his official duty. Even
otherwise, it is a matter of evidence. This
issue can be decided during the trial
whether the applicant, while producing the
forged disconnection slip, was performing
his duty or it was beyond his duty to
produce the forged disconnection slip as a
defence in the proceeding before the
consumer forum. The issue is still open for
the applicant to take this defence during the
trial. Therefore, this court does not find
4 All. Fazlur Rahman & Ors. Vs. State of U.P. & Anr.
697
any good ground for quashing the
impugned proceeding.

17. From the perusal of the order
sheet, it appears that this case has been
pending since 2014, therefore, it would be
appropriate to direct the court below to
conclude the proceeding of Complaint
Case No.356 of 2014 (Om Prakash
Agrawal Vs. V.P. Govil and others),
under Section-465 IPC, Police StationChamanganj, District-Kanpur Nagar,
pending in the court of MM-IV, Kanpur
Nagar, as expeditiously as possible,
preferably within one year from today.

18.

Accordingly,
the
present
application is rejected, with the aforesaid
observation.
----------
(2024) 4 ILRA 697
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.03.2022

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Application U/S 482. No. 26271 of 2021
Connected with
Application U/S 482. No. 10551 of 2020

Fazlur Rahman & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Sushil Shukla, Sri Aditya Prakash Singh

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973 -Section 482- Indian
Penal Code,1860 - Sections 153-A, 153B, 124-A, 298, 505 & 120-B IPC -
Quashing of Order Dated 18.01.2020 - The
applicants sought to quash the order dated
18.01.2020 by the Additional Sessions Judge,
rejecting their applications, and related orders
granting prosecution sanction under Section
196 CrPC - Held, the order dated 18.01.2020
was unsustainable due to non-compliance
with prior High Court directions and failure to
address legal objections, warranting partial
quashing. (Paras 2, 3, 8, 9)

B. Section 196 CrPC - Requirement of
Prosecution Sanction - The charge sheets
were filed without prior sanction under
Section 196 CrPC, mandatory for offences
under Sections 153-A, 153-B, 124-A, 298,
505, and 120-B IPC - Held, the Magistrate's
failure to ensure sanction before taking
cognizance and committing the case to the
sessions court violated High Court's directions
dated
08.05.2003,
rendering
subsequent
proceedings flawed. (Paras 5, 6, 8)

C. Delay in Obtaining Sanction and Right
to Speedy Trial - The prosecution sanctions
were granted in 2018 and 2019, 17 years
after the charge sheets, with no explanation
for the delay - Held, this delay violated the
applicants' right to a speedy trial under Article
21 of the Constitution, but the issue requires
further adjudication by the trial court. (Para
6)

D. Non-Compliance with High Court
Directions - The Magistrate ignored the
High Court's order dated 08.05.2003 to verify
sanction before proceeding and committed
the case to the sessions court without
compliance - Held, such non-compliance was
contemptuous, and the sessions court erred in
not addressing this illegality while rejecting
the applicants' applications. (Paras 5, 8)

E.
Opportunity
for
Hearing
and
Discharge - The sessions court rejected the
applicants' applications without considering
legal objections or providing a hearing on the
point of charge - Held, the trial court must
reconsider all legal objections, including
discharge, with a reasoned order after
providing a hearing. (Paras 8, 10)

Application Partly Allowed.