[UP Memorials Scam] Allahabad HC Refuses To Quash Sanction For Prosecution Against Assistant Engineer During Procurement Of Pink Sandstone During BSP Rule [Read Judgment]

The alleged scam took place under BSP rule, during the tenure of then UP CM Mayawati. The Petitioners, through Advocates Pradeep Kumar Rai, Prakarsh Pandey and Praveen Kumar Shukla, had alleged that the impugned order for grant of sanction was passed by the authority under pressure by the Vigilance Department, after the Samajwadi Party came in power in the year 2012 after UP General Elections.

The bench comprised by Justice Anil Kumar and Justice Manish Mathur observed,

"If on facts, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed."

In the present case, the court observed that whether the Petitioners had acted in discharge of teir official duties and whether the offences alleged were related in some manner, with the discharge of official duty, were questions to be determined at the trial stage.

The court therefore refused to quash the sanction order at the investigation stage.

"We dispose of the writ petition with a direction that the Investigating Agency shall conduct the investigation in pursuance to the order dated 31.08.2019 by which sanction has been granted for prosecution against the petitioners as per procedure prescribed for the said purpose under law and thereafter shall file a police report before the competent Court/Court of Magistrate," the court ordered.

It also held that the Petitioners may raise their defence, including the grievance that the prosecutions have wrongly been sanctioned, during trial.

The court expounded,

"it can be said that the offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits."

Reliance was placed on Devinder Singh and others v. State of Punjab through CBI, (2016) 12 SCC 87, whereby the Top Court had clarified that the protection under sanction has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty.

The court clarified that the same is not a "cloak" for doing the objectionable acts.

"Use of the expression 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty," the court reiterated.

The bench therefore decided that the order for grant of sanction cannot be quashed at such an early stage and it directed the Investigating Agency to continue investigation. It also ordered that on filing of the charge sheet,

"the plea regarding the sanction for the prosecution against the petitioners shall be taken by them as an preliminary issue and thereafter the same shall be decided finally as per law by the Court concerned."

It further ordered,

"Till the decision is taken by the competent Court/Court of Magistrate in regard to the sanction of prosecution against the petitioners that whether the same is valid or not, no coercive measure shall be taken against them."

The State was represented by Govt Advocates AP Singh and Shishir Jain.

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