(1)

A.F.R.

Judgement Reserved on 05.04.2023

Judgement delivered on 14.07.2023

Case :- CRIMINAL MISC. WRIT PETITION No. - 2372 of 2023

Petitioner :- Yash Kumar Verma

Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And

Others

Counsel for Petitioner :- Ashish Kumar Rastogi, Anurag

Shukla

Counsel for Respondent :- G.A.

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

(2)

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.

(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

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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

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