# Vijay Kumar Srivastava v. State of U.P

- **Citation:** (2021) 10 ILRA 313
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-01
- **Case number:** Application U/S 482 Cr.P.C. No. 2342 of 2009
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-srivastava-v-state-of-u-p-46317
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal
Code,
1860-Section
420,
467,
468,471-
Prevention
of
Corruption
Act,1988-Section 13(2)-challenge to-order
of cognizance without sanction-petitioner
was serving as public servant u/s 2(c) of
the Act,1988-section 19 mandates for
obtaining
previous
sanction
before
passing of the cognizance order-learned
special judge committed a fundamental
error which invalidates the cognizance as
without jurisdiction.(Para 1 to 10)

The petition is disposed of. (E-6)

List of Cases cited:

## Text

10 All. Vijay Kumar Srivastava Vs. State of U.P.
313
already deposited be deducted from the
amount to be deposited.

16.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and not blindly apply the judgment
of A.V. Padma (supra). The same is to be
applied looking to the facts of each case.

17. Record be sent back to the
Tribunal forthwith.
----------
(2021)10ILR A313
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 1.10.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Application U/S 482 Cr.P.C. No. 2342 of 2009

Vijay Kumar Srivastava ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
K.K. Singh, Ambrish Singh Yadav, Amit
Jaiswal- Ojus Law, Nisar Ahmad, Parnendu
Chakravarty

Counsel for the Opposite Party:
Govt. Advocate, Pradeep Kr. Tripathi

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal
Code,
1860-Section
420,
467,
468,471-
Prevention
of
Corruption
Act,1988-Section 13(2)-challenge to-order
of cognizance without sanction-petitioner
was serving as public servant u/s 2(c) of
the Act,1988-section 19 mandates for
obtaining
previous
sanction
before
passing of the cognizance order-learned
special judge committed a fundamental
error which invalidates the cognizance as
without jurisdiction.(Para 1 to 10)

The petition is disposed of. (E-6)

List of Cases cited:

1. St. of Goa Vs Babu Thomas (2005) SCC (Cri)
1995

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard learned counsel for the
petitioner and learned A.G.A for the State.
None appears for respondent no.2. I have
perused the record.

2. It has been informed at bar that
Shri Pradeep Kumar Tiwari, learned
counsel for respondent no.2 has not
appeared in this case for the last several
dates.

3. The petitioner has confined his
prayer for quashing of the order dated
27.3.2008 by which the cognizance against
the petitioner has been taken by the learned
court below in Case Crime No.2 of 2008 so
also order dated 11.1.2009 by which nonbailable warrant have been issued against
the petitioner.

4. Learned counsel for the petitioner
submits that at the time of taking
cognizance the petitioner was functioning
as Secretary/General Manager of the
Northern Railway, Primary Cooperative
Bank, Lucknow since 2003. It is submitted
that
after
registration
of
the
First
Information Report the investigation was
conducted and police report was filed under
Section 420, 467,468,471 Indian Penal
314 INDIAN LAW REPORTS ALLAHABAD SERIES
Code read with Section 13(2) CDE
Prevention of Corruption Act on 24.2.2008.
The charge-sheet was filed under Section
13(2) Prevention of Corruption Act without
obtaining sanction from the Appointing
Authority. Upon filing of the charge-sheet
learned Session Judge has taken cognizance
in the matter on 27.3.2008 ignoring the fact
that there is no sanction order which
authorizing him to take cognizance.

5. It is submitted that at the time of
offence, as alleged in the F.I.R, the
petitioner was a public servant under
Section 2(c) of the Prevention of corruption
Act 1988. Specific pleading has been made
in this regard in para 5 of the petition that
the
petitioner
was
serving
as
Secretary/General Manager of Northern
Railway,
Primary
Cooperative
Bank,
Lucknow. This fact has not been disputed
by the State in the counter affidavit.

6. It is next submitted that Section 19
of the Act mandates for obtaining previous
sanction before passing of the cognizance
order. The relevant Section 19 of the
Prevention of corruption Act 1988 is
extracted below:-

"19. Previous sanction necessary
for prosecution. ? (1) No court shall take
cognizance of an offence punishable under
Sections 7, 10, 11, 13 and 15 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 save by or with the sanction of the
Central Government, of that 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 that Government;

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

(2)
Where
for
any
reason
whatsoever any doubt arises as to whether
the previous sanction as required under
sub-section (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 ?

(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,
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 or
irregularity 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
10 All. Vijay Kumar Srivastava Vs. State of U.P.
315
powers of revision in relation to any interlocutory order passed in inquiry, trial,
appeal or other proceedings.

(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."

7. It is admitted case of the party that
no sanction has been taken by the
prosecuting agency while filing the chargesheet and consequently the cognizance has
been taken without there being any
sanction order under the law. It is, thus,
submitted that this is a fundamental error
committed by learned Session Judge while
taking cognizance which invalidated the
cognizance as without jurisdiction.

8. In support of his arguments learned
counsel for the petitioner has relied upon
the judgement of Hon'ble Supreme Court
reported in 2005 SCC (Cri) 1995, State of
Goa vs. Babu Thomas. The emphasis is on
paragraphs 11 and 12. Relevant portion of
paragraphs 11 and 12 are extracted below:-

"11. ..........The present is not the
case
where
there
has
been
mere
irregularity, error or omission in the order
of sanction as required under sub- section
(1) of Section 19 of the Act. It goes to the
root of the prosecution case. Sub-section
(1) of Section 19 clearly prohibits that the
Court shall not take cognizance of an
offence punishable under sections 7, 10, 11,
13 and 15 alleged to have been committed
by a public servant, except with the
previous sanction as stated in clauses (a),
(b) and (c).

12. ............Therefore, when the
Special Judge took cognizance on 29.5.95,
there was no sanction order under the law
authorizing him to take cognizance. This is
a fundamental error which invalidates the
cognizance as without jurisdiction."

9. Learned A.G.A., on the other hand,
though has opposed the prayer, however,
could not dispute the fact that there is no
sanction at all in this case and the
cognizance order has been passed without
there being any valid sanction or sanction
as per law.

10. On due consideration to the
arguments advanced and perusal of the
record it appears that learned Session Judge
has taken the cognizance without there
being any sanction under law. The previous
sanction is mandatory in view of law laid
down by Hon'ble Supreme Court in the
case of Babu Thomas (supra). The sanction
has been held to be mandatory and any
order passed without sanction has been
held fundamental error which invalidated
the
cognizance
as
being
without
jurisdiction. In this case also the impugned
cognizance order has been passed without
there being any sanction, therefore, the
cognizance order has been invalidated and
consequently
the
impugned
order
11.1.2009 and other consequential order
have also become invalidate.

11. Thus, in view of the discussion
made hereinabove and in view of the
specific provisions under the Prevention of
corruption Act 1988 as well as law laid
down by Hon'ble Supreme court in the case
of Babu Thomas (supra), the impugned
cognizance order dated 27.3.2008 is set
aside along with order dated 11.1.2009 by
which non bailable warrant issued against
the petitioner.
316 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Considering the gravity of the
offence, learned trial court is directed to
take fresh cognizance only after the valid
sanction
has
been
obtained
by
the
prosecution from the competent authority.

13. With these observations, the
petition is disposed of.
----------
(2021)10ILR A316
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

U/S 482/378/407 No. 3372 of 2021

Lalmani & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Mohd. Raziullah, Gayasuddin

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Section 323,504,506quashing
of
summoning
orderChargesheet
filed
u/s
323,504,506Section 506 IPC is cognizable and nonbailable in view of the law laid down in
Mata Sewak case followed in Praveen
Kumar and Bhagwan Singh case, it has to
be tried as a State case not as complaint
case-Learned trial court committed no
illegality while taking cognizance u/s
190(1)(b) Cr.P.C. and in adopting the
procedure of trial provided for the cases
instituted on police report u/s 173(2) and
provision of section 2(d) of Cr.P.C. do not
apply to the present case.(Para 1 to17)

The application is disposed of. (E-6)

List of Cases cited:

1. Virendra Singh & ors. Vs St. of U.P. & ors.,
(2002) 45 ACC 609 , MANU/UP/0455/2000

2. Mata Sewak Upadhyay & anr. Vs St. of U.P. &
ors. (1995) JIC 1168 (All) FB

3. Aires Rodrigues Vs Vishwajeet P.Rane & ors.
MANU/SC/0078/2017

4. Taiyab Khan & ors. Vs St. of U.P. & ors.
MANU/UP/ 5347/2018

5.
Hussain
&
ors.
Vs
U.O.I.
&
ors.
MANU/SC/0274/2017 In Re : to issue certain
Guidelines
Regarding
inadequacies
&
deficiencies in Criminal Trials Vs St. of A.P. &
ors. MANU/SC/0292/2021

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. Heard Shri Farhan Alam Osmany
holding brief for Mohd. Raziullah, learned
counsel for the applicants as well as Shri
Rajesh Kumar, learned AGA for the State.

2.The instant application has been
filed by the applicants- Lalmani and
Jitendra with the prayer to quash the
summoning order dated 3.8.2021 passed in
Criminal Case No. 7349 of 202, arisen out
of Case Crime No. 23/2021 under Sections
323,
504,
506
IPC,
Police
Station
Sammanpur, District Ambedkar Nagar,
pending in the court of Additional Chief
Judicial Magistrate, Ambedkar Nagar and
also to quash the charge sheet and entire
proceedings of the above mentioned case.

3. Learned counsel for the applicants
submits that a non-cognizable report was
lodged by the opposite party no.2 in the
instant case under Sections 323, 504 IPC.
However under the orders of the Magistrate
the said non-cognizable report was directed
to
be
investigated
and
after
the