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IN THE HIGH COURT OF ALLAHABAD
Saroj Yadav, Rajan Roy, JJ.
Rajeev Kumar Singh - Petitioner
Vs.
State Of U.P.Thru Prin.Secy.Home Lucknow & Ors. - Respondent
MISC. BENCH No. - 25382 of 2020 and MISC. BENCH No. - 25759 of 2020, MISC. BENCH No. - 25756 of 2020, MISC. BENCH No. - 25639 of 2020, MISC. BENCH No. - 25508 of 2020, MISC. BENCH No. - 25453 of 2020
Decided On : 21-01-2021
Constitution of India, 1950 – Article 226 – Penal Code, 1860 – Sections 409, 120-B – Prevention of Corruption Act 1988 – Section 13 – Code of Criminal Procedure, 1973 – Section 438 – Certiorari – Quashing of Prosecution Sanction Order – This is a bunch of writ petitions filed under Article 226 of the Constitution of India challenging the sanction order and consequential orders of communication issued thereafter in respect to F.I.R. registered at Crime under sections 409, 120-B I.P.C. and section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act 1988. – All these writ petitions involve same issue, therefore, they were heard together and are being decided by a common judgment. – For convenience Writ Petition, Rajeev Kumar Singh v. State of U.P. & ors., has been treated as the leading writ petition.
Finding of the court: Court have absolutely no doubt that this petition challenging the order sanctioning prosecution against the petitioner is not maintainable and is not liable to be entertained, however, as stated earlier now the other aspect of the matter is that in similar cases relating to same crime number Coordinate Benches have granted some protection as already referred hereinabove to the co-accused till validity of sanction is decided by the trial court. – If the petition itself is not liable to be entertained then whether while dismissing the same, irrespective of the fact that as to whether we mention it as a disposal or dismissal of the petition, any relief, if so, to what extent, can be granted to the petitioner herein, especially as, since June 2018 the provision for grant of anticipatory bail under section 438 Cr.P.C. has come into force in the State of U.P. which can be applied and considered at any stage, certainly at a stage where no chargesheet has been filed as yet as in this case and appropriate relief can be sought. – Question is whether this Court should grant a protection to the effect that no coercive measures should be taken against the petitioner till the trial court decides the validity of sanction, at this stage ? Now the fact is that the chargsheet has not been filed as yet. – Court is at the pre-cognizance stage. – The law is very clear that where it is not a case of absence of sanction, but a case of validity of sanction, the High Court under Article 226 of the Constitution of India would not take cognizance of the matter before the pre-cognizance stage. – In fact, even thereafter the remedy may not lie under Article 226 of the Constitution of India, but may be under section 482 Cr.P.C. at the appropriate stage, therefore, ordinarily while dismissing the petitions we would not grant such relief, nevertheless, considering the piquant situation which has already been noticed by us, as, in the same crime number this Court has granted protection, as an exceptionally compelling measure which is not to be treated as a precedent, court provide that for 3 weeks from the pronouncement of the judgment petitioner(s) shall not be arrested in Case Crime referred hereinabove, during which, it shall be open for them to apply for anticipatory bail under section 438 which may be considered by the Court concerned as per law, but, this protection shall cease immediately on expiry of 3 weeks as aforesaid. – Thereafter, the law shall take its own course. – Subject to these observations and leaving it open for the petitioner to raise the question of validity of sanction in the event a chargesheet is filed before a Court of criminal jurisdiction, at the appropriate stage, court dismiss these writ petitions, but only for the aforesaid reason without entering into the merits of the sanction order impugned herein.
Result: – Petitions Dismissed
JUDGMENT :
Rajan Roy, Saroj Yadav, JJ.
This is a bunch of writ petitions filed under Article 226 of the Constitution of India challenging the sanction order dated 16.12.2019 and consequential orders of communication issued thereafter in respect to F.I.R. registered at Crime No. 1 of 2014 dated 1.1.2014 under sections 409, 120-B I.P.C. and section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act 1988. All these writ petitions involve same issue, therefore, they were heard together and are being decided by a common judgment. For convenience Writ Petition No. 25382 (MB) of 2020, Rajeev Kumar Singh v. State of U.P. & ors., has been treated as the leading writ petition.
2. Petitioners of the aforesaid petitions pray as under :
(a) a writ, order or direction in the nature of certiorari for quashing of the Prosecution Sanction Order dated 16.12.2019 signed on 14.12.2019 by the Managing Director UPRNN and the Communication Letter dated 16.12.2019 actually signed on 13.12.2019 against the petitioner contained as Annexure No. 2 to this Writ Petition arising out of FIR registered at Crime No. 1/2014 dated 01.01.2014, under sections: 409, 120-B IPC and section 13(1)(d) read with 13(2) of Prevention of Corruption Act 1988 after summoning the records from the authority competent.
(b) a writ order or direction so as to decide this petition as per the order and direction passed by Coordinate Bench of this Hon’ble Court in Writ Petition No. 792/(MB) of 2020 (Ajay Kumar and another v. State of UP and others) in the facts and circumstances of this petition and the same benefit may kindly be extended to the petitioner also.”
3. At the very outset learned counsel for the petitioner submitted that Writ Petition No. 792 (MB) of 2020, Ajai Kumar & ors. V. State of U.P. & ors., involving similar issue and pertaining to the same crime number, albeit, in respect to other accused, has been decided by this Court vide judgment dated 18.6.2020 wherein, without entering into validity of the sanction order certain directions have been issued to complete the investigation with a further direction to the Court below to consider objections to the validity of sanction and till such decision is taken by the Court below regarding validity of sanction for prosecution against the said petitioners, no coercive measures were to be taken against them. He prays for similar relief.
4. However, learned A.G.A. submits that in the said petition the sanction order dated 16.12.2019 was not under challenge, instead an order communicating the same had been challenged. Moreover, he says that a writ petition under Article 226 of the Constitution of India is not maintainable against such a sanction order as its validity can be seen during trial as has been held by Hon'ble the Supreme Court in a catena of decisions and by a Division Bench of this Court in Satya Pal Singh & ors.
5. In response, learned counsel for the petitioner invited attention of the Court to interim orders passed in similar cases pertaining to same crime number relating to co-accused on 8.12.2020 in Writ Petition Nos. 16340 (MB) of 2020, Chhatra Pal Singh(C.P. Singh) v. State of U.P. & ors., and 19087 (MB) of 2020, Rajeev Garg v. State of U.P. & ors., wherein, referring to the decision in Ajay Kumar's case, protection has been given in terms thereof.
6. Learned counsel for the petitioner fairly admitted to the fact that in all those cases which are referred hereinabove investigation had already been completed, yet under some misconception directions were issued for completion of investigation. The sanction order in fact had been issued after completion of investigation.
7. Learned counsel for the petitioner was further confronted as to the maintainability of this writ petition in view of various pronouncements of the Supreme Court wherein a distinction has been made between absence of sanction which can be raised at a pre-cognizance stage before the appropri
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