NAIM KHANversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

            APPLICATION U/S 528 BNSS No. - 6833 of 2026

Naim Khan
                                                              .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                 .....Opposite
                                                                       Party(s)

Counsel for Applicant(s)                :   Purushottam Mani Tripathi
Counsel for Opposite Party(s)           :   G.A.

Court No. - 77
                 HON'BLE SAURABH SRIVASTAVA, J.

1. Heard learned counsel for applicant and learned AGA for the State.

2. The instant petition has been preferred for quashing the impugned charge-
sheet and the entire proceeding of Case no. 2709 of 2001 (State Vs. Naim
Khan),arising out of Case Crime no. 151 of 2009, under Sections 323, 504
and 506 IPC, P.S. Camperganj, District Gorakhpur, including the undated
summoning order, whereby the learned Judicial Magistrate, Gorakhpur,
summoned the applicant to face trial, fixing the next date as 15.12.2001,
without taking cognizance and without obtaining the mandatory sanction for
prosecution against the applicant.

3. While challenging the orders impugned, learned counsel for applicant
submitted that impugned summoning order has been passed without due
compliance of Section 197 Cr.P.C. since the applicant was a Government
servant at the time of alleged incident. Learned counsel for applicant further
submitted that applicant has falsely been implicated in the present case and
he has not committed any offence as alleged. Learned court concerned
passed the order impugned without complying the mandatory provisions of
Section 197 Cr.P.C. and as such, impugned summoning order may be
quashed.

4. In support of his contention, learned counsel for the applicant has relied
upon paragraph 40 of the judgment of the Hon'ble Supreme Court in the case
of G.C. Manjunath & others vs. Seetaram reported in 2025 5 SCC 390.
Paragraph-40 of the said judgment is reproduced below:-
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"In the present case, it is evident that the actions attributed to the accused
persons emanate from the discharge of their official duties, specifically in
connection with the investigation of criminal cases pending against the
complainant. As previously observed, a mere excess or overreach in the
performance of official duty does not, by itself, disentitle a public servant
from the statutory protection mandated by law. The safeguard of obtaining
prior sanction from the competent authority, as envisaged under Section 197
of the Cr.P.C and Section 170 of the Police Act cannot be rendered nugatory
merely because the Act alleged may have exceeded the strict bounds of
official duty. In view of the foregoing, we are of the considered opinion that
the learned VII Additional Chief Metropolitan Magistrate erred in taking
cognizance of the alleged offences against the accused persons without the
requisite sanction for prosecution in the instant case. The absence of the
necessary sanction vitiates the very initiation of criminal proceedings
against the accused persons."

5. Per contra, learned AGA for the State vehemently opposed the prayer as
made in the application and supported the orders impugned.

6. Precise query has been made before learned AGA that whether any
sanction has been sought by the learned court concerned before summoning
the applicant, the same has been replied that there is hardly any averment or
material available with regard to grant of sanction under Section 197 Cr.P.C.

7. After hearing rival submissions extended by learned counsel for the
parties, it is crystal clear that the allegation extended against the applicant,
was of the time when he was discharging his duties as a Government servant
and as such, as per the mandatory provisions defined under Section 197 of
Cr.P.C, the sanction must be accorded and without receiving the same,
summoning order has been passed against the applicant which is not
sustainable in the eye of law and as such, the same is liable to be set aside.
Although it has been submitted by learned counsel for applicant that
applicant has already been granted anticipatory bail till conclusion of trial.

8. In view of non-compliance of Section 197 Cr.P.C, impugned
cognizance/summoning order undated passed in Case no. 2709 of 2001
(State Vs. Naim Khan), arising out of Case Crime no. 151 of 2009, under
Sections 323, 504 and 506 IPC, P.S. Camperganj, District Gorakhpur is
hereby set aside only in respect of applicant herein. Matter is remitted back
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                                    to learned court concerned, who shall pass fresh order, if required, after due
                                    compliance of Section 197 Cr.P.C.

                                    9. The instant application is partly allowed accordingly.

                                    May 6, 2026
                                    Ashish/-
                                                                                        (Saurabh Srivastava,J.)




Digitally signed by :-
ASHISH KUMAR SINGH
High Court of Judicature at Allahabad