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2000 DIGILAW 358 (ALL)

SURESH CHANDRA SEN v. STATE OF U P

2000-02-29

D.K.TRIVEDI, R.P.NIGAM

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By means of this writ petition, the petitioner has challenged the impugned order dated 20-7-1989 passed by the Special/sessions Judge, Rae Bareli (contained in Annexureno. 7) by which he directed the police for reconsideration of the matter in the light of report submitted by the D. G. C. (Crl. ). The petitioner has also challenged the sanction order dated 12-10-1989 (contained in Annexure No. 8) by which the sanction was granted on the basis of the order passed by the Sessions Judge, Rae Bareli. 2. Initially a final report was sub mitted by the police against the petitioner. The sanction was also refused by the com petent police officer for prosecution of the petitioner in this case. The final report submitted by the police was put up before the Special Judge who on receipt of the final report called for an opinion from the D. G. C. (Crl. ). The D. G. C. (Crl.) Rai Bareli submitted a report pointing out that the final report is not correct and the order of refusal of the sanction is also wrong because the same was passed without applying its mind. The report of the D. G. C. (Crl.) is filed as Annexure No. 6 to this petition. The Special Judge, Rae Bareli on receipt of the report submitted by the D. G. C. (Crl.) passed the impugned order. From the perusal of the impugned order, it is evident that the learned Special Judge did not apply his mind and passed the impugned order only on the basis of the report submitted by the D.-G. C. (Crl. ). In his order, he has clearly stated that he perused the report submitted by the D. G. C. (Crl.) and the said report appears to be correct and therefore, he directed t he Super intendent of Police, Rae Bareli for recon sideration of the matter. The petitioner filed a writ petition and the said order was stayed by this Court on 26-2-1990, and since then the matter is lingering on. 3. We have heard the learned counsel for the petitioner as well as the opposite parties and have gone through the record. 4. The contention of the petitioners counsel is that the impugned order has been passed by the learned Special Judge without applying his mind and solely on the basis of the report submitted by the D. G. C. (Crl. ). 4. The contention of the petitioners counsel is that the impugned order has been passed by the learned Special Judge without applying his mind and solely on the basis of the report submitted by the D. G. C. (Crl. ). He further contended that as the sanction has already been refused, therefore, the learned Sessions Judge has no jurisdiction to take cognizance of the case. 5. As pointed out above, from the perusal of the impugned orders itself it is evident that the learned Special Judge passed the impugned order solely on this basis of the report submitted by the D. G. C. (Crl.), which is not permissible under Law. It was the duty of the learned Sessions Judge to apply his mind and pass an order after considering all the matter on record. The learned Special Judge was bound to give reasons for passing an order and fur ther as to whether he can take cognizance after refusal of the order of sanction or not? As the impugned order on the face of it has been passed on the opinion sub mitted by the D. G. C. (Crl.)and therefore, the same is liable to be quashed. 6. Accordingly we quash the im pugned order dated 20-7-1989 passed by the Special Judge, Rae Bareli. 7. The next impugned order dated 12-10-1989 granting sanction was passed after passing of the impugned order dated 20-7-1989 and without considering the earlier order passed by the competent authority refusing to grant sanction. If, the authority concerned was interested to grant sanction for prosecution of the petitioner then, he should have attests considered the earlier order passed by the competent authority refusing to grant sanction and fur ther he should give reasons for not agreeing with the earlier order. 8. The learned counsel for the petitioner further contended that the authority has no power to review its earlier order and in these circumstances also the impugned order dated 12-10-1989 is not legal. However, as the same was passed after passing of the impugned order dated 20-7-1989 and without considering the earlier order of refusal, therefore, the same is also liable to be quashed. 9. In these circumstances, both the im pugned orders namely, order dated 20-7-1989 passed by the Special Judge, Rae Bareli (Annexure No. 7) and order dated 12-10-1989 passed by the D. I. G. concerned (An nexure No. 8) are hereby quashed. 9. In these circumstances, both the im pugned orders namely, order dated 20-7-1989 passed by the Special Judge, Rae Bareli (Annexure No. 7) and order dated 12-10-1989 passed by the D. I. G. concerned (An nexure No. 8) are hereby quashed. The Special Judge, Rae Bareli is directed to consider again and pass independent order giving opportunity to the parties. 10. The petitioners counsel further contended that after lapse of ten years, it would not be proper to send back the matter to the learned Sessions Judge but in our opinion as the Sessions Judge has jurisdiction to decide this matter. There fore, it will be proper to send back the matter to the Special Judge, Rae Bareli and the petitioner shall be free to raise all these points before the learned Sessions Judge. The learned Sessions Judge shall decide the matter within two months from the date of receipt of copy of this order. However, the D. I. G. Lucknow shall be free to pass an order after decision of the Special Judge, Rae Bareli. 11. With these observations the present writ petition is allowed. No order as to costs. Petition allowed. .