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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.
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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
3Kumar 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