AVADH NARAIN LAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an application under section 482, Cr. P.C. by Avadh Narain Lal for quashing the order dated 24-9-1981 passed by Sri J. P. Sharma, Special Judge, Kanpur in Special Trial No. 8 of 1981.

(2.) The facts of the case are that there are two accused, Avadh Narain Lal and Bans Gopal, who have been charge-sheeted by the Sub Inspector of Police of Police Station Fazalgang, Kanpur for offences under section 161, I.P.C. section 5(2) of the Prevention of Corruption Act and section 120B, I.P.C. The applicant Avadh Narain was Amin, Sales Tax, admittedly, a public servant, and accused Bans Gopal, a Naib Tehsildar, Collection. A trap was laid in which the above two named accused were apprehended. It is further stated that the accused Avadh Narain Lal was arrested on the spot and accused Bans Gopal surrendered in court on 21-4-1980. The occurrence is dated 2-3-1980. In this case the sanction for the prosecution in respect of Bans Gopal was filed by the prosecution, and is not in dispute or controversy in the present application under section 482, Cr. P.C. In the court below an objection was raised on behalf of the applicant Avadh Narain Lal that there was no sanction, and as such, the court could not take any cognizance against him in view of section 6 of the Prevention of Corruption Act, 1947. This objection raised on behalf of the applicant Avadh Narain was overruled by the impugned order dated 24th September, 1981 and it was held that if the public servant was not in service at the time when prosecution was launched, then no question of sanction arose. Hence, this application under section 482, Cr. P.C. On this application under section 482, Cr. P.C. on 9th November, 1981 notice was issued and further proceedings in trial No. 8 of 1981 had been stayed.

(3.) I have heard learned counsel for the parties. Sri R. N. Pandey appearing for the applicant argued that in absence of the sanction as contemplated under section 6 read with section 197 Cr. P.C. the entire proceeding before the Special Judge against Avadh Narain Lal was void ab initio, and the learned Special Judge had no jurisdiction to take cognizance of the offences under section 161, IPC and section 5(2) read with sub-section (d) of the Prevention of Corruption Act, 1947. The learned Assistant Government Advocate, Sri Dwivedi raised a preliminary objection that the application under section 482, Cr. P.C. was not at all maintainable as in the present case a revision was maintainable under section 397 of the Code of Criminal Procedure, 1973. It was further urged on behalf of the State that in view of the decision in R. S. Nayak v. A. R. Antuley, AIR 1984 SC 684, no previous sanction was necessary as contemplated by section 6 of the Prevention of Corruption Act.