2. Briefly stated the facts are that Sri Sanjay Singh, the applicant, is a sitting Member of Rajya Sabha. In a press conference, on 12.08.2020, he made certain statements regarding which the respondent no. 2 lodged an FIR in Case Crime No. 221 of 2020 with the Police Station Hazratganj, Lucknow, under Sections 153-A, 153-B, 501, 505(1), 505(2) IPC. After investigation, the Investigating Officer filed a charge sheet on 07.09.2020 under the aforesaid sections. Vide order dated 17.09.2020 the State Government granted sanction for prosecution of the applicant.
3. On 04.12.2020, the Additional Sessions Judge, Court No. 19, the designated Special Judge MP/MLA Court, Lucknow took cognizance and issued summons to the applicant. The said order is under challenge in the present petition under Section 482 CrPC.
4. Sri Satendra Kumar (Singh) has made two submissions. He has contended that there is no sanction for prosecution as provided under Section 196 CrPC since the order of sanction does not make any reference to the said section. Secondly, he submits that the applicant is a public servant, as he is a Member of the Rajya Sabha and, as such, the sanction, if any, could only have been given by the Chairman of the Rajya Sabha. He contends that the State Government had no jurisdiction or authority to grant sanction. In support of his contention he has placed reliance on Paragraph 98 of the judgment of the Hon'ble Apex Court in P.V. Narsimha Rao v. State, (1998) 4 SCC 626. The said paragraph is extracted below:
"98. On the basis of the aforesaid discussion we arrive at the following conclusion:
1. A Member of Parliament does not enjoy immunity under Article 105(2) or under Article 105(3) of the Constitution from being prosecuted before a criminal court for an offence involving offer or acceptance of bribe for the purpose of speaking or by giving his vote in Parliament or in any committees thereof.
2. A Member of Parliament is a public servant under Section 2(c) of the Prevention of Corruption Act, 1988.
3. Since there is no authority competent to remove a Member of Parliament and to grant sanction for his prosecution under Section 19(1) of the Prevention of Corruption Act, 1988, the court can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction but till provision is made by Parliament in that regard by suitable amendment in the law, the prosecuting agency, before filing a charge-sheet in respect of an offence punishable under Sections 7, 10, 11, 13 and 15 of the 1988 Act against a Member of Parliament in a criminal court, shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be."
5. Sri Vimal Kumar Srivastava, on the contrary, has supported the impugned order and has contended that even if a wrong provision is quoted in the order, the same is not vitiated unless it is shown that the State Government had no authority and no jurisdiction to pass the order.
6. Under Section 196 CrPC, cognizance of the offences mentioned in the said section can only be taken with the prior sanction of the Central Government or the State Government as the case may be. Section 196 CrPC is quoted below for ready reference:
"196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.-(1) No Court shall take cognizance of-
(a) any offence punishable under Chapter VI or under Section 153-A, Section 295-A or sub-section (I) of Section 505] of the Indian Penal Code, 1860 (45 of 1860), or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in section 108-A of the Indian Penal Code, 1860 (45 of 1860), except with the previous sanction of the Central Government or of the State Government.
(1-A) No Court shall take cognizance of-
(a) any offence punishable under section 153-B or sub-section (2) or sub-section (3) of Section 505 of the Indian Penal Code, 1860 (45 of I860), or
(b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.
(2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120-B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings:
Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.
(3) The Central Government or the State Government may, before according sanction under sub-section (1) or sub-section (1-A) and the District Magistrate may, before according sanction under sub-section (1-A) and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of inspector, in which case such police officer shall have the powers referred to in sub-section (3) of section 155."
7. The portion of the order of sanction to which the attention has been drawn by the learned counsel for the applicant is extracted below:
Þvr,o Jh jkT;iky egksn; ,rn~}kjk n.M izfdz;k lafgrk] 1973 ¼vf/k- la-&2 lu~ 1974½ dh /kkjk&197 n-iz-la- ds vUrxZr mi;qZDr d`R;ksa ,oa vijk/k ds fy, vfHk;qDr Jh lat; flag iq= Jh fnus'k flag] fuoklh 129&131] ukFkZ ,osU;w] U;w fnYyh&110001 ds fo:} Fkkuk gtjrxat] y[kuÅ esa iathd`r eq-v-l-a&[email protected]] /kkjk 153,@[email protected] [email protected] 505¼1½@ 505¼2½ Hkknfo ds vUrxZr vfHk;ksftr djus rFkk mDr /kkjkvksa dk l{ke U;k;ky; }kjk izlaKku ysus dh Lohd`fr ¼;fn bl lEcU/k esa ek0 U;k;ky; }kjk dksbZ vU;Fkk vkns'k u gks] rks½ ,rn~}kjk iznku djrs gaSA ;g vkns'k l{ke Lrj ls vuqeksnuksijkUr tkjh fd;k x;k gSAß
8. By the impugned order, sanction has been granted by the State Government for prosecution for offences under Section 153-A, 153-B, 501, 505(1), 505(2) IPC. However, the order wrongly mentions Section 197 CrPC as the relevant provision.
9. Even though it has not been pleaded in the text of the petition, the counsel for the applicant has submitted that since the sanction for prosecution has been granted under Section 197 CrPC, the order stands vitiated as the appropriate section is Section 196 CrPC.
10. In a situation where an authority has a power in law, the mere reference to a wrong provision of law in the order does not vitiate the order. In this regard, reference may be made to the case of N Mani v. Sangeeta Theatre, (2004) 12 SCC 278. The relevant portion of the said case is extracted below:
"9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law."
11. So far as the second submission that the sanction under Section 196 CrPC should have been granted by the Chairman of the Rajya Sabha is concerned, the applicant's reliance on the judgment in Narsimha Rao (supra) is misplaced. The Apex Court, in Narsimha Rao, was considering the provisions of the Prevention of Corruption Act, 1988 and all its findings have to be understood in light of the same. The judgment in Narsimha Rao did not deal with Section 196 CrPC, which is the relevant provision in the present matter.
12. The wording of Section 196 CrPC clearly indicates that the power to grant sanction for prosecution is vested in both the Central Government and the State Government. The said provision uses the word "or" which means that either one out of the Central Government or the State Government can grant the sanction as the case may be. The applicant has failed to showcase that such an interpretation of Section 196 CrPC can be questioned.
13. Even in Narsimha Rao (supra), the Apex Court has held in Paragraph 98 of the judgment, that court can take cognizance of the offences in the absence of sanction but prosecuting agency, before filing, the charge-sheet, shall obtain the permission of the Chairman of Rajya Sabha / Speaker of Lok Sabha as the case may be. Burden was upon the prosecuting agency to obtain permission before filing charge-sheet. Nowhere in the judgment has it been held that the court is precluded from taking cognizance if the accused is a member of Rajya Sabha / Lok Sabha for want of sanction.
14. So far as the sanction order is concerned, the order shows that after due application of mind sanction has been accorded. Mere wrong mention of provision does not affect its validity. The impugned order of cognizance is found to be just and legal. No perversity could be shown in the order taking cognizance.
15. No other point was canvassed.
16. Petition lacks merit and is summarily dismissed.