Allahabad High Court High Court

Ashok Kumar @ Ashok Kumar Shukla vs State Of U.P. Thru. C.B.I. Anti … on 18 June, 2010

Allahabad High Court
Ashok Kumar @ Ashok Kumar Shukla vs State Of U.P. Thru. C.B.I. Anti … on 18 June, 2010
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                                                              Court No.3
                  Criminal Misc.Case No.2739 of 2010

Ashok Kumar alias Ashok Kumar Shukla        ....Applicant/Petitioner
                           Versus
State of U.P. and another                         ...Opp.parties.
                             ***
Hon'ble Shri Narayan Shukla,J.

Heard Mr.Nandit Srivastava, learned counsel for the petitioner

and learned Additional Government Advocate as well as

Mr.Bireshwar Nath, learned counsel for the Central Bureau of

Investigation.

The petitioner has challenged the order dated 26th of February,

2010, passed by the Ministry of Railway, Government of India,

whereby the prosecution has been sanctioned under Section 120-B,

420, 201 IPC and Section 13 (2) read with Section 13(1)(d) of the

Prevention of Corruption Act, 1988 including the order dated 12th of

April, 2010, passed by the Special Judge, Anti Corruption, West,

Lucknow in case No.27 of 2009, whereby the petitioner has been

summoned for trail under Section 120-B, 420, 201 IPC read with

Section 13(2) read with Section 13(1)(d) of the Prevention of

Corruption Act.

The learned counsel for the petitioner submits that the aforesaid

sanction order has been issued in exercise of power provided under

Section 19(1) of the Prevention of Corruption Act, 1988, therefore,

the said sanction shall be treated to be accorded only under the

Prevention of Corruption Act, 1988 and not under the Indian Penal
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Code, under the circumstances the summoning order issued by the

Special Judge, Anti Corruption, West, Lucknow for trial of the

petitioner under Section 120-B, 420, 201 IPC is without jurisdiction.

It is not in dispute that there is no sanction of prosecution under

the Indian Penal Code, but Mr.Bireshwar Nath as well as learned

Government Advocate argued that the sanction accorded under the

Prevention of Corruption Act is sufficient to try the petitioner under

the Indian Penal Code also as the offence committed by the petitioner

are contemporary to the offences committed under the Prevention of

Corruption Act. They further pointed out that the offence has been

committed by the petitioner by doing the act which is not attributable

to the official duty, therefore, no sanction is required, as has been laid

down in the decision of Hon’ble Supreme Court rendered in the case

of P.K.Pradhan versus State of Sikkim represented by the Central

Bureau of Investigation, reported in 2001 SCC (Cri) of 1234 and

in the case of M.Gopalakrishnan v. State by Addl.S.P.CBI, B.S.&

F.C, Bangalore, reported in AIR 2009 SC 2015, whereas the charge

sheet submitted against the petitioner shows that the offence

committed by the petitioner has been found to have been committed

during the course of duty. The relevant portion of the charge sheet is

reproduced hereunder:-

“Thus, S/Shri Vichitra Veer Chakravorty, the then
Sr.DFM, Ashok Kumar, the then DFM, Mohd.Naseem,
the tehn DFM, N.M.Sharma, the then ADFM, Surendra
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Kumar Singh, Sr.Section Officer (Cash), O/o Sr.DFM,
NCR, Allahabad and Shri M.M.Yadav while posted and
functioning as Asstt.Div.Cashier, NCR, Allahabad who
put up the proposals, recommended and sanctioned the
same in connivance with the provate contractors namely
Smt. Smita Mathur, Prop. Of M/s. Technic System,
Allahabad, S/Shri Ravindra Mathur, Prop.M/s.Architech
System and, Mohd.Jameel, Prop.of M/s. Mohd.Jameel,
Allahabad, Roop Kumar Bhattacharya, Prop. Of M/s
R.R.Enterprises, Kanpur and Shri Viplav Bhattacharya,
Prop. Of M/s. B & R Enterprises, Kanpur, who in
connivance with each other submitted the quotations for
such works which were approved by the accused public
servants. As a consequence of criminal conspiracy
between the public servants and private contractors, the
false and fake bills for such works were submitted by the
contractors which were sanctioned/passed for payments
by the accused public servants and payments were
received by the aforesaid contractors. Therefore, the
aforementioned accused persons have committed the
offence punishable u/s 120B, 420, 201 IPC and 13(2) r/w
13(1) (d) of PC Act, 1988.”

Keeping in view the aforesaid fact of the charge sheet, I am of

the view that the acts of the petitioner which have been treated as

offence committed by him have been done during the course of

discharge of official duty, therefore, the offence committed by him

definitely requires sanction by the Government concerned for taking

cognizance by the learned Judge, but in the present case after going
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through the record I find the same as missing.

Mr.R.K.Dwivedi, learned Additional Government Advocate

submits that the Hon’ble Supreme Court in the case of Satya

Narayan Sharma versms State of Rajasthan, reported in 2001 8

SCC 607 has held that the trial under the Prevention of Corruption

Act cannot be stayed, whereas upon perusal of the summoning order,

I find that the petitioner has been summoned for trial not only under

the Prevention of Corruption Act, but also under the Indian Penal

Code, in which the trial cannot be permitted without sanction of

prosecution by the appropriate government. Therefore, prima facie, I

am of the view that the summoning order passed by the learned

Special Judge, Anti Corruption, West, Lucknow on 12th of April, 2010

is without jurisdiction, therefore, I hereby stay the proceedings of

Criminal Case No.27 of 2009 pending before the Special Judge, Anti

Corruption, West, Lucknow.

Four weeks time as prayed by learned counsel for the opposite

parties is allowed to file the counter affidavit.

List thereafter in the week commencing 19th of July, 2010.

Dated:18.6.2010
Banswar