# Yash Kumar Verma v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 752
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-14
- **Case number:** Criminal Misc. Writ Petition No. 2372 of 2023
- **Bench:** Mrs. Sangeeta Chandra, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yash-kumar-verma-v-state-of-u-p-ors-50611
- **Pages:** 11

## Headnote

G.A.

Criminal Writ maintainability-sanction for
prosecution challenged- charge-sheet not filed
before the trial court nor cognizance taken.-No
summons issued-prosecution to be given a
chance to first lead evidence -that all relevant
material including material which may favour
the accused was laid before the sanctioning
authority-to Appreciate such evidence- the trial
court is competent-Writ not maintainable.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

752 INDIAN LAW REPORTS ALLAHABAD SERIES
doing and much after 15th August, 1947.
The learned District Judge has examined
the provisions of Sections 33, 35, 47, 48,
51, 54, 61, 64, 67, 72 and 73 of the Act of
1995 and opined that the reliefs claimed by
the plaintiffs that they should be allowed to
worship the Deities of Maa Sringar Gauri
and Gods and Goddesses in the suit
property, are not matters covered under any
of those provisions of the Act of 1995. A
fortiori the reliefs claimed by the plaintiffs
are not matters which are required to be
decided by or under the Act of 1995.

131. The other premise on which the
learned District Judge has held the Act of
1995 to be inapplicable is that the Act does
not operate in case of non-Muslims and
strangers to the waqf in the matter of
determination of their rights to property,
that is included in the list published under
sub-Section (2) of Section 5 of the Act of
1995. This Court is of opinion that on the
first limb of the reasoning alone, the matter
would stand concluded, because there is no
relief claimed by the plaintiffs, which is
required by or under the Act of 1995 to be
decided by a Tribunal within the meaning
of Section 85. There is absolutely no relief
claimed regarding title or possession with
regard to the suit property, claimed to be
waqf, so as to bring in the ouster of
jurisdiction under Section 85. There is not
the remotest of the kind of matter
envisaged to be decided by or under the
provisions of the Act of 1995 by a Tribunal,
involved in the nature of the relief that the
plaintiffs claim. On this score alone, this
Court is in agreement with the conclusions
reached by the District Judge on a far more
elaborate reasoning.

132. It goes without saying that all
that has been said here is limited to the
purpose of a decision of the revisionist's
application under Order VII Rule 11 of the
Code and would not affect the case of
either party on merits at the trial.

133. In view of what has been said
hereinabove, this Court finds no merit in
this revision.

134. This revision fails and is
dismissed. Costs easy.
----------
(2023) 7 ILRA 752
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Misc. Writ Petition No. 2372 of 2023

Yash Kumar Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ashish Kumar Rastogi, Anurag Shukla

Counsel for the Respondents:
G.A.

Criminal Writ maintainability-sanction for
prosecution challenged- charge-sheet not filed
before the trial court nor cognizance taken.-No
summons issued-prosecution to be given a
chance to first lead evidence -that all relevant
material including material which may favour
the accused was laid before the sanctioning
authority-to Appreciate such evidence- the trial
court is competent-Writ not maintainable.

W.P. dismissed. (E-9)

List of Cases cited:

1. Dinesh Kumar Vs Chairman, Airport Authority
of India & anr. reported in (2012) 1 SCC 532
7 All. Yash Kumar Verma Vs. State of U.P. & Ors.
753
2. C.B.I. Vs Ashok Kumar Agarwal reported in
(2014) 14 SCC 295

3. C.B.I. & ors.Vs Pramila Virendra Kumar
Agarwal & anr. reported in (2020) 17 SCC 664;

4. Sukh Lal Yadav Vs St. of U.P. & ors.reported
in 2021 Law Suit (All.) 287

5. St. of Pun.Vs Central Bureau of Investigation
reported in (2011) 9 SCC 182

6. Mumbai International Airport Pvt. Ltd. Vs
Regency Convention Centre & Hotels Pvt. Ltd. &
ors. reported in (2013) 3 CPR (SC) 647

7. St. of West Bengal Vs Committee of
Protection of Democratic Rights reported in
(2010) 3 SCC 571

8. C.B.I. Vs Ashok Kumar Agarwal, 2014 (14)
SCC 295

9. C.B.I & ors. Vs Promila Virender Kumar
Agarwal Vs & anr., 2020 (17) SCC 664

10. Sukhlal Yadav Vs St. of U.P. & ors. reported
in 2021 Lawsuit
(Alld) 287

11. Gokul Chand Dwarkadas Murarka Vs the
King 1948 AIR (PC) 82

12. Madan Mohan Vs St. of UP, AIR 1954
Supreme Court 637

13. Somnath VsU.O.I.1971 (2) SCC 387

14. Mumbai International Airport Pvt. Ltd. Vs
Regency Convention Centre and Hotels Pvt. Ltd.
2013 3 CPR (SC) 647.

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.
&
Hon'ble Narendra Kumar Johari, J.)

(1) Heard the learned counsel for the
petitioner and the learned A.G.A. Shri Shiv
Nath Tilhari, who appears on behalf of the
State-respondents.

(2) This petition challenges the order
dated 15.02.2023 passed by the Special
Secretary, Government of Uttar Pradesh,
Backward Class Welfare Anubhag-1 and
also prayed for a mandamus to be issued
commanding the respondents not to take
any coercive action against the petitioner in
pursuance of impugned order.

(3) It has been submitted by the
learned counsel for the petitioner that the
Sanction order has been issued without
application of mind as relevant material
was not placed before the Sanctioning
Authority.

(4) Learned A.G.A. has raised a
preliminary
objection
regarding
maintainability
of
the
writ
petition
challenging the sanction of prosecution
under Article 227 of the Constitution of
India. He has placed reliance upon a
judgment
rendered
by
the
Hon'ble
Supreme Court in the case of Dinesh
Kumar Vs. Chairman, Airport Authority
of India and Another reported in (2012) 1
SCC 532; judgment rendered by the
Supreme Court in the case of C.B.I. Vs.
Ashok Kumar Agarwal reported in (2014)
14 SCC 295; judgment rendered in the
case of C.B.I. and Others Vs. Pramila
Virendra Kumar Agarwal and Another
reported in (2020) 17 SCC 664; and a
judgment of this Court in the case of Sukh
Lal Yadav Vs. State of U.P. and Others
reported in 2021 Law Suit (All.) 287, to
say that there is a difference between
absence of
sanction which can be
challenged at the initial stage even before
cognizance is taken and invalidity of
sanction on various grounds as argued by
the learned counsel for the petitioner
which can be seen only during the course
of Trial by the learned Trial Court after
cognizance is taken by it.
754 INDIAN LAW REPORTS ALLAHABAD SERIES

(5) Learned counsel for the petitioner,
on the other hand, has placed reliance upon
a judgment rendered by the Hon'ble
Supreme Court in the case of State of
Punjab
Vs.
Central
Bureau
of
Investigation reported in (2011) 9 SCC
182 and Paragraph-32 thereof, to argue that
no Act of Parliament can exclude or curtail
the powers of the High Court under Article
226 of the Constitution, has cautioned that
the extra-ordinary powers of the High
Court under Article 226 of the Constitution
must be exercised by the Court for the
furtherance of justice.

(6) It has also been argued that the
judgment relied upon by the counsel for the
State respondents are distinguishable on
facts and in those judgments cognizance
had been taken by the Trial Court after
sanctioning Authority granted its sanction
and therefore, the observations made in
those cases would not be applicable in the
case of the petitioner where only sanction
order has been issued without cognizance
being taken by the Trial Court as yet. Since
the cognizance has not been taken by the
learned
Trial
Court,
there
are
no
proceedings within the ambit of the
Criminal Procedure Code and therefore,
there is a vacuum which can be filled up
only by this Court by exercising its power
and extra ordinary power under Article 226
of the Constitution of India. It has been
argued that since there is no proceedings in
any Court constituted under the Cr.P.C. or
even under the Special Act i.e. the
Prevention of Corruption Act, the petitioner
has been rendered remediless.

(7) Learned counsel for the petitioner
has placed reliance upon a judgment
rendered by the Hon'ble Supreme Court in
Mumbai International Airport Private
Limited Vs. Regency Convention Centre &
Hotels Private Limited & Others reported
in (2013) 3 CPR (SC) 647, and Paragraph11 thereof, where the Supreme Court has
observed that every judgment must be
governed and qualified by the particular
facts of the case in which such expressions
are to be found; that a little difference in
fact or additional facts may make a lot of
difference in the precedential value of a
decision and that even a single significant
detail may alter the entire perspective; that
there is always peril in treating the words
of a judgment as though they were words in
a legislative enactment, and it is to be
remembered that judicial utterances are
made in the setting of the facts of a
particular case.

(8) It has been argued that in the case
of the petitioner one distinguish factor is
that till date cognizance has not been taken
as yet by any Court and, therefore, the
judgment cited by the learned counsel for
the
State-respondents
shall
not
be
applicable.

(9) Counsel for the petitioner has
placed reliance upon a judgment rendered
by the Hon'ble Supreme Court in the case
of State of West Bengal Vs. Committee of
Protection of Democratic Rights reported
in (2010) 3 SCC 571 and Paragraph-68
thereof, which has been referred to in the
judgment of C.B.I. Vs. State of Punjab.

(10) This Court has considered the
judgments submitted by Sri Shiv Nath
Tilhari, learned A.G.A.

(11) In Dinesh Kumar versus
Chairman Airport Authority of India and
another 2012 (1) SCC page 532; the
Supreme Court was considering a case
where challenge was made to the sanction
order by the appellant before the High
7 All. Yash Kumar Verma Vs. State of U.P. & Ors.
755
Court and during the pendency of the such
challenge cognizance was taken by the
Trial Court and summons came to be issued
by the Special Judge under the Prevention
of Corruption Act. The Writ Court had
dismissed the writ petition and the Division
Bench had also dismissed the intra-court
Appeal observing that it was open for the
appellant to question the validity of the
sanction order during trial on all possible
grounds and the CBI could also justify the
order of granting sanction before the Trial
Judge. The counsel for the appellant had
argued before the Supreme Court that the
appellant had challenged the legal validity
of the sanction order at the first available
opportunity, even before the charge-sheet
was filed, and therefore, the High Court
was not justified in relegating the appellant
to agitate the question of validity of
sanction ordered in the course of trial. He
relied upon decisions of the Supreme Court
in Mansukhlal Vithal Das Chauhan Versus
State of Gujarat 1997 (7) SCC 622; Pepsi
Foods Ltd Vs Judicial Magistrate 1998 (5)
SCC 749; Abdul Wahab Ansari versus State
of Bihar 2000 (8) SCC 500 and State of
Karnataka versus Ameerjan 2007 (11) SCC
273.

(12) On the other hand, learned
counsel for the CBI had argued that in case
the validity of the sanction order is sought
to be challenged on the ground of nonapplication of mind, such challenge can
only be made in the course of trial. He
relied upon judgements rendered by the
Supreme Court in Parkash Singh Badal
versus State of Punjab, 2007 (1) SCC 1,
and on Ashok Tshering Bhutia Versus State
of Sikkim, 2011 (4) SCC 402.

(13) The Supreme Court considered
the judgement rendered in Mansukhlal
Vitthaldas Chauhan (supra) where it had
observed that the act of granting sanction is
a solemn and sacrosanct act which affords
protection to the Government servants
against frivolous prosecutions and it is a
weapon to ensure discouragement of
frivolous and vexatious prosecution and is
a safeguard for the innocent but at the same
time it cannot be a shield for the guilty. The
Court reiterated the law as laid down in
Parkash Singh Badal (supra), wherein it
was observed that law requires that before
the sanctioning authority materials must be
placed so that the sanctioning authority can
apply his mind and take a decision.
Whether there is an application of mind or
not would depend on the facts and
circumstances of each case and there
cannot be any generalised guidelines in that
regard. There is a distinction between the
absence of sanction and the alleged
invalidation account of non-application of
mind. The former question can be agitated
at the threshold but the latter is a question
which has to be raised during trial.

(14) While drawing a distinction
between the absence of sanction and
invalidity of sanction, the Supreme Court in
Parkash Singh Badal had held that the
question of absence of sanction could be
raised at the inception and threshold by the
aggrieved person. However, where sanction
order exists but its legality and validity is
put in question, such issue has to be raised
in the course of trial. Such invalidity of
sanction can be raised on diverse grounds,
like non-availability of material before the
sanctioning authority, or bias of the
sanctioning authority, or the order of
sanction having been passed by an
authority not authorized or competent to
grant such action. All such grounds of
invalidity or illegality of sanction would
fall in the same category like the ground of
invalidity of sanction on account of non-
756 INDIAN LAW REPORTS ALLAHABAD SERIES
application of mind , where it is incumbent
upon the aggrieved person to challenge the
same during the course of trial.

(15) In C.B.I. versus Ashok Kumar
Agarwal, 2014 (14) SCC 295; The
Supreme
Court
was
considering
the
judgement of the High Court which had set
aside the order passed by the court of
Special Judge C.B.I., wherein he had
rejected the application of the respondent
questioning the sanction granted by the
Competent Authority under Section 19 of
the Prevention of Corruption Act, 1988 in
respect to possession of disproportionate
assets. A report was submitted by the
Superintendent of Police to the Ministry of
Finance which was forwarded to the
Central Vigilance Commission. The Central
Vigilance Commission after examining the
said case advised the Ministry of Finance to
grant the sanction for prosecution. A charge
sheet was filed by the C.B.I. before the
court of Special Judge. The Court also took
cognizance. The respondent challenged the
validity of the sanction by filing an
application before the Trial Court. Such
application was rejected on the ground that
it was not the appropriate stage to decide as
to whether sanction granted by the
competent authority was invalid. The
respondent filed a Revision in the High
Court which set aside the order of the
Special Judge and remanded the case to
record a finding on the question of any
'failure of justice' in according sanction,
and also to examine the sanctioning
authority as a witness even at pre-charge
framing stage, if it deemed fit.

(16) The learned counsel for the
C.B.I. had argued that an application
challenging the validity of the sanction at a
stage anterior even to the framing of the
charge was unheard of, as the issue that had
to be decided was whether relevant
material had been disclosed/placed before
the
sanctioning
authority
and
the
sanctioning authority had considered the
same. Such an issue can only be agitated
during the course of trial. On the other hand
the counsel appearing for the respondent
argued that the Special Judge was not
competent to take cognizance in the
absence of a valid sanction granted by the
sanctioning authority in accordance with
law. The relevant material
including
statement of witnesses etc had not been
placed before the Hon'ble Minister when
the sanction was granted. In earlier
litigation the High Court had directed the
Revenue Secretary to examine and consider
the record of the investigation fairly and
objectively. In such a situation the issue of
sanction had to be considered at the precharge stage and such a void Sanction
cannot be a foundation for a valid trial.

(17) The Supreme Court placed
reliance upon judgement rendered by it in
State of Madhya Pradesh versus Krishna
Chandra Saxena 1996 (11) SCC 439 to
observe that the question whether all the
relevant evidence which would have tilted
the balance in favour of the accused, if it
was considered by the sanctioning authority
before granting sanction, and which was
actually left out of consideration, could be
examined only at the stage of trial when the
sanctioning authority comes forward as a
prosecution witness to support the sanction
order if challenged during trial is no longer
res integra. It is at that stage the
prosecution has to satisfy the Court that
adequate material for grant of such sanction
was made available to the said authority. In
every such case the Court had to find out
whether there has been an application of
mind on the part of the sanctioning
authority concerned on the material placed
7 All. Yash Kumar Verma Vs. State of U.P. & Ors.
757
before it. Consideration of the material
implies application of mind. To establish
that sanction was validly granted, the
prosecution has to establish and satisfy the
Court by leading evidence that all the facts
were
placed
before
the
sanctioning
authority and the authority had applied its
mind on the same. If the sanction order on
its face indicates that all relevant material,
i.e. F.I.R., disclosure statements, recovery
memos, draft charge-sheet and other
materials on record were placed before the
sanctioning authority, and if it is further
discernible from the recital of the sanction
order that the sanctioning authority perused
all the material, an inference may be drawn
that the sanction has been granted in
accordance with law. In every individual
case the prosecution has to satisfy the Court
by leading evidence that the entire relevant
facts had been placed before the authority
concerned. This could only be done during
the course of trial.

(18) The Supreme Court in the case of
Ashok Tshering Bhutia versus State of
Sikkim (supra), while dealing with the issue
whether invalid sanction goes to the root of
jurisdiction of the Court which would
vitiate the trial and conviction held that in
the absence of anything to show that any
defect or irregularity therein caused the
failure of justice, the contention was
without any substance. The failure of
justice would be relatable to error, omission
or irregularity in the grant of sanction,
however a mere error or omission or
irregularity in sanction is not considered to
be fatal unless it has resulted in the failure
of justice, or has been occasioned thereby.
It has to be shown by the accused that he
has suffered some disability or detriment or
prejudice in relation to the investigation or
trial; it is only once the accused is able to
show that there has been a serious prejudice
caused to him with respect to either
investigation or trial and that the same has
defeated the rights available to him, the
accused can seek relief from the Court. If
the Court is satisfied that although the
report submitted by the Investigating
Agency to the sanctioning authority is a
detailed one, such report could not be held
to be the complete record required to be
considered for sanction on application of
mind to the relevant material on record,
such sanction can be quashed.

(19) In the case of Ashok Kumar
Agarwal, the respondent had shown that all
the relevant documents had not been sent to
the sanctioning authority. It was held by the
Supreme Court that the prosecution agency
had to be given an opportunity to show
during the course of trial that such relevant
record was indeed placed before the
authority concerned. The contention of the
respondent could only be considered if
evidence was led before the trial court to
invalidate the order of sanction. The
respondent was able to show to the Court
that evidence collected was voluminous
and the report submitted to the sanctioning
authority could not possibly have included
all evidence. It was in these circumstances
that the Supreme Court upheld the order of
the High Court.

(20) In paragraph 56 of the judgement
in Ashok Kumar Agarwal, the Supreme
Court observed that Section 19(3) of the
Act itself puts a complete embargo on the
Court to grant stay of trial/proceedings.

In paragraph 58 and 59, it observed
thus: -

"58. The most relevant issue
involved here in Is as at what stage the
validity of sanction order can be raised.
758 INDIAN LAW REPORTS ALLAHABAD SERIES
The issue is no more res Integra. In Dinesh
Kumar versus Airports Authority of India,
this Court dealt with the issue and placing
reliance upon the judgement in Parkash
Singh Badal versus State of Punjab, came
to the conclusion as under: -

"13. In our view, having regard
to the facts of the present case, now since
cognizance has already been taken against
the appellant by the trial judge, the High
Court cannot be said to have erred in
leaving the question of validity of sanction
open for consideration by the trial court
and giving liberty to the appellants to raise
the issue concerning validity of the
sanction order in the course of trial. Such
course is in accord with the decision of this
Court in Parkash Singh Badal - -"

"59. Undoubtedly , The stage of
examining the validity of sanction is during
the trial and we do not propose to say that
the validity should be examined during the
stage of enquiry or at pre-trial stage."

(21) In C.B.I and others versus
Promila Virender Kumar Agarwal and
another, 2020 (17) SCC 664, the Supreme
Court was considering the decision of the
High Court allowing the Criminal Revision
of the respondent. The accused nos.1 & 2
were husband and wife and were charged
under Section 13 (1) read with section 13
(2) of the Prevention of Corruption Act
1988 and Section 109 I.P.C. They filed
separate applications seeking the discharge.
The trial court allowed application of
accused no.1 and discharged him from
offences charged against him in the F.I.R.
but rejected the application of the accused
no.2. In separate Revision applications filed
against it by the appellant CBI and the
accused no.2, the High Court clubbed both
and considered the same and by a single
order allowed the Revision application of
accuse no.2 while the Revision application
of the appellant against the discharge of
accused no.1 was dismissed. The High
Court had based its decision mainly on the
question of validity of sanction for
prosecution. The Supreme Court held that
the issue relating to validity of sanction for
prosecution could have been considered
only during trial since essentially the
conclusion reached by the High Court was
with
regard
to
defective
sanction.
According to the High Court the procedure
of providing opportunity for explanation
was not followed which resulted in
sanction being defective.

(22) The Supreme Court observed
that there is a distinction between absence
of sanction and alleged invalidity on
account
of
non-application
of
mind.
Absence of sanction no doubt can be
agitated at the threshold, but invalidity of
sanction is to be raised during trial. In the
case of the respondent admittedly there was
sanction
for
prosecution,
though
the
accused sought to pick holes in the manner
the sanction was granted and claimed that
the same was defective. The Supreme
Court observed that it is a matter to be
considered in trial for then the prosecution
will have the opportunity to place evidence
before the trial court regarding procedure
having been followed and all the facts and
circumstances being taken into account by
the sanctioning authority.

(23) The Supreme Court in paragraph
11 observed as under: -

"11. Further, the issue relating to
validity of sanction for prosecution would
have been considered only during trial as
essentially the conclusion reached by the
High Court is with regard to the defective
sanction since according to the High Court,
the procedure of providing opportunity for
7 All. Yash Kumar Verma Vs. State of U.P. & Ors.
759
explanation was not followed, which will
result in sanction being defective. In that
regard, the decision in Dinesh Kumar
versus Airports Authority of India, relied
upon by the Learned Additional Solicitor
General would be relevant since it is held
therein that there is a distinction between
absence of sanction and the alleged
invalidity on account of non-application of
mind. The absence of sanction no doubt
can be agitated at the threshold but
invalidity of sanctions is to be seen in the
trial. In the instant facts, admittedly there is
a sanction though the accused seek to pick
holes in the manner the sanction has been
granted and to claim that the same is
defective which is a matter to be considered
in the trial."

(24) The learned A.G.A. has placed
reliance upon judgement of a Coordinate
Bench of this Court in Sukhlal Yadav
versus State of U.P. and others Criminal
W.P. No.9727/2020, reported in 2021
Lawsuit (Alld) 287. The writ petitioner was
challenging the correctness and validity of
the sanction order passed by the Managing
Director of U.P. Rajkiya Nirman Nigam
Limited Lucknow, and had sought a further
writ in the nature of mandamus restraining
the respondents not to further proceed with
the matter on the basis of the impugned ex
parte report of the Lokayukta U.P. The
counsel for the petitioner had cited two
Coordinate Bench decisions of similarly
accused persons wherein the Court had
granted an order directing the writ
petitioners to approach the sanctioning
authority with the representation and until
such a decision is taken by the competent
authority, no action should be taken against
them.

(25) The learned A.G.A. had informed
the Court that the impugned order in the
writ petition was only a communication to
the State Government by the Managing
Director of the Rajkiya Nirman Nigam
Limited.
The
sanction
order
dated
16.12.2019 had not been challenged in the
writ petition. It had been submitted that the
Competent Authority while passing the
order dated 16.12.2019 had applied his
mind and after receipt of report from the
Lokayukta in relation to corruption and
financial embezzlement in the construction
of memorials and parks in Lucknow and
Noida, a proper investigation was done and
such investigation report was considered
including the material and evidences
collected by the Investigating Officer by
the competent authority.

(26) The Court considered the
question as to on what grounds and order of
granting sanction can be challenged at the
very initial stage, before the parties had any
opportunity to lead evidence in support of
the case. It considered the observations
made by the Privy Council in Gokul Chand
Dwarkadas Murarka versus the King 1948
AIR (PC) 82, and of the Supreme Court in
Madan Mohan versus state of UP, AIR
1954 Supreme Court 637, and Somnath
versus Union of India 1971 (2) SCC 387.

(27) While considering the relevant
clauses of the Statute, the Privy Council in
Gokul Chand Dwaraka Doss Murarka had
observed as under: -

"it must be proved that the
sanction was given in respect of the facts
constituting the offence charged. It is
plainly desirable that the fact should be
referred to on the face of the sanction, but
this is not essential - - the prosecution
must prove by extraneous evidence that
those
facts
were
placed
before
the
sanctioning authority." - - - the burden of
760 INDIAN LAW REPORTS ALLAHABAD SERIES
proving that the requisite sanction has been
obtained lies 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
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."

(28) Referring to later judgements of
the Supreme Court, the Coordinate Bench
in the case of Sukh Lal Yadav observed as
under: -

"38. It is, therefore well settled
that in order to constitute a valid sanction
it must be established that it was given in
respect of facts, constituting the offence
with which the accused is proposed to be
charged. The facts may be stated in the
order granting the sanction or maybe
approved 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 on 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
placed before the sanctioning authority
before the 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
challenged only on two grounds viz (1) it
has been granted by an authority who was
not competent to do so; (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
appear 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 the commencement of trial. It is only
after
the
trial
has
concluded
and
prosecution has been given the opportunity
to lead evidence that the validity of
sanction can be examined on this ground."

(29) This Court has also considered
judgement cited by the learned counsel for
the
petitioner,
Mumbai
International
Airport Private Limited versus Regency
Convention Centre and Hotels Private
Limited 2013 3 CPR (SC) 647. The case
related to impleadment of a party in a suit
under Order 1 Rule X of the C.P.C. The
Supreme Court observed that the plaintiff
in the Suit being the Dominus litus, may
choose persons against whom he wishes to
litigate and cannot be compelled to sue a
person against whom he does not seek any
relief. A person who is not a party has no
right to be impleaded against the wishes of
the plaintiff. The Court can however direct
7 All. Yash Kumar Verma Vs. State of U.P. & Ors.
761
impleadment of necessary and proper party.
But the Court has to consider whether the
Plaintiff has sought any relief against such
a person and whether such a person is
necessary for passing an effective decree in
the Suit for Specific Performance or that its
presence is necessary for the complete and
effective adjudication of matters in issue in
a suit for specific performance. The fact
that a person is likely to secure the
rights/interest in the suit property, after the
suit is decided against the plaintiff, will not
make such a person a necessary or proper
party to a suit for specific performance. The
Supreme Court dismissed the Appeal filed
by the appellant as it found that it was not a
necessary
or
proper
party
and
its
application for impleadment had been
rightly rejected by the trial court and by the
High Court.

(30) The counsel for the petitioner has
placed reliance upon paragraph 11 of the
said judgement where the Supreme Court
while considering judgements cited by the
appellant,
observed
that
-
".....every
judgement must be governed and qualified
by the particular facts of the case in which
such expressions are to be found; that a
little difference in facts or additional facts
will make a lot of difference in the
precedential value of a decision and that
even a single significant detail may alter
the entire aspect; that there is always a
peril in treating the words of a judgement
as though they were words in a legislative
enactment, and it is to be remembered that
Judicial pronouncements are made in the
setting of the facts of a particular case..."

(emphasis supplied)

(31) It has been argued on the basis
of observations made by the Supreme
Court in the aforesaid two judgements that
in the case of the petitioner herein sanction
for prosecution has not resulted in the
charge-sheet being filed before the trial
court or cognizance being taken. No
summons having been issued. It is
therefore argued that there is no case
pending before any Court where the
petitioner can be relegated to seek his
remedy. No petitioner can be rendered
remedyless.

(32) This Court is of the considered
opinion that in view of the law settled by
the Supreme Court in the aforecited cases
of Dinesh Kumar versus Chairman,
Airports Authority of India and another,
C.B.I. versus Ashok Kumar Agarwal,
C.B.I. versus Pramila Virendra Kumar
Agarwal, and Sukh lal Yadav versus State
of U.P. and others, till evidence is led by
the prosecution before the Trial Court, the
facts and circumstances leading to the
competent authority granting sanction for
prosecution cannot be appreciated to the
fullest. Even if for the sake of argument, it
is to be believed that necessary material
was not kept before the sanctioning
authority for it to apply its mind, then also
the prosecution would have to be given a
chance to first lead evidence to the effect
that
all
relevant
material
including
material which may favour the accused,
was laid before the sanctioning authority.
To Appreciate such evidence, the trial
court is competent.

(33) Also, if the learned counsel for
the petitioners argument is to be believed
that no cognizance has yet been taken,
then it cannot be said that he is an
aggrieved person, as the trial court may or
may not take cognizance of the charge
sheet filed by the prosecution agency.

(34) Consequently, the writ petition is
dismissed as not maintainable.
762 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 7 ILRA 762
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters U/A 227 No. 4795 of 2023 (Civil)

Praveen Kumar Mishra ...Petitioner
Versus
Dr. Gaurav Mishra & Anr. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Agarwal, Sri Gaurav Tripathi

Counsel for the Respondents:
Sri Ramesh Chandra Agrahari, Sri Anoop
Trivedi (Sr. Adv)

Execution proceeding - Release Application
filed by plaintiffs-allowed-Appeal and Writ
rejected-order
attained
finality-execution
application pending-possession of shop handed
over
to
plaintiff
No.
2-Execution
Court
proceeded
to
pass
order
directing
respondent/plaintiff No. 2 to hand over the
possession of shop to respondent/plaintiff No.
3-once bonafide need is set up in favour of coplaintiff-Execution Court has full right to
proceed and pass order for possession of
property -in favour of co-landlord for whom
bonafide need was set up.

W.P. dismissed. (E-9)

List of Cases cited:

1. Tamil Nadu Buildings (Lease and Rent
Control) Act K.VS Muthu Vs Anga Muthu Ammal:
AIR1997 SC 628

2. Sri Ram Gupta Vs Prescribed Authority/Civil
Judge (S.D.), Kanpur Dehat & ors.

3. Syed Asadullah Kazmi Vs A.D.J.: 1981 ARC 542

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Pankaj Agarwal, learned
counsel for petitioner and Sri Anoop
Trivedi, learned Senior Counsel assisted by
Sri Ramesh Chandra Agrahari, learned
counsel for respondents.

2. Present petition has been filed
seeking following relief:-

"It is, therefore, most respectfully
prayed that this Hon'ble Court may be
pleased to call for the records of the court
below and set aside the impugned order
dated 10.04.2023 passed by Additional
Judge Small Causes Court No. 2, Kanpur
Nagar in Execution Case No. 02/23/2022
and
allow
the Execution
Case
No.
206/23/2022 and also allow the instant
petition striking of the said execution in its
full satisfaction in view of the fact that the
tenant-respondent IInd Set had delivered
possession to the petitioner in the capacity
of the owner and landlord of the shop in
question; and/or such other and further
order be passed as is expedient in the
interest of justice."

3. Since, only legal question is
involved in the present petition, therefore,
with the consent of parties, without inviting
for affidavits, petition is being decided at
the admission stage itself.

4. Brief facts of this case are that
Release Application dated 22.07.2008 has
been filed by three plaintiffs, which was
registered as P.A. Case No. 5 of 2008.
During the pendency of the said Release
Application, plaintiff No. 1, mother of
plaintiff No. 2 and grandmother of plaintiff
No. 3 died. The Release Application was
ultimately
allowed
vide
order
dated
13.01.2020, against which, Rent Appeal
No. 16 of 2020 has been filed by tenantrespondent, which was dismissed by the