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sanction to prosecute a public servant – absence of sanction can be challenged at the begining, but the validity of sanction can be challenged only during trial of the case

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos.2170-2171 OF 2011
[ARISING OUT OF S.L.P. (CRL) NOS. 10278-10279 OF 2010]

DINESH KUMAR … APPELLANT(S)

Versus
CHAIRMAN, AIRPORT AUTHORITY OF INDIA AND ANOTHER . RESPONDENT(S)
J U D G M E N T

R.M. LODHA,J.
Leave granted.

2. The appellant is being prosecuted for the offences

punishable under Section 13(2) read with Sections 13(1)(d)

and 13(1)(a) of the Prevention of Corruption Act, 1988 (for

short, “P.C. Act”).

3. On November 4, 2009, the sanctioning authority

granted sanction to prosecute the appellant for the offences

indicated above. After the sanction order was challenged by

the appellant in the High Court on November 26, 2009, the

charge-sheet has been filed by the Central Bureau of

Investigation (CBI) -respondent No. 2- against the appellant

on November 30, 2009 in the Court of Special Judge,

Ernakulam. Following that, summons came to be issued to the

appellant on December 18, 2009. During the pendency of the
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matter before the High Court, wherein the sanction order has

been challenged by the appellant, the Court of Special Judge

has taken cognizance against the appellant.

4. The Single Judge of the High Court was not persuaded

with the contentions raised by the appellant and dismissed

the appellant’s Writ Petition on July 19, 2010.

5. Against the order of the Single Judge, the appellant

preferred an intra-court appeal. The Division Bench of the

High Court dismissed the intra-court appeal on September 29,

2010 observing that it was open to the appellant to question

the validity of the sanction order during trial on all

possible grounds and the CBI could also justify the order of

granting sanction before the Trial Judge.

6. Mr. Deepak Bhattacharya, learned counsel for the

appellant referred to Section 19(4) of the P.C. Act and

submitted that the appellant challenged the legality and

validity of the sanction order at the first available

opportunity, even before the charge-sheet was filed and,

therefore, the Division Bench was not justified in

relegating the appellant to agitate the question of validity

of sanction order in the course of trial. He relied upon

the decisions of this Court in Mansukhlal Vithaldas Chauhan

vs. State of Gujarat1; Pepsi Foods Ltd. and Anr. v. Special

Judicial Magistrate and Ors.2; Abdul Wahab Ansari vs. State

1 (1997)7SCC 622

2 1998(5) SCC 749
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of Bhar and another3 and State of Karnataka vs. Ameerjan4.

7. Mr. Deepak Bhattacharya, in view of the law laid down

by this Court in the above decisions, submitted that the

High Court ought to have gone into the merits of the

challenge to sanction order. According to learned counsel,

on its face, the sanction order suffers from non-application

of mind.

8. On the other hand, Mr. H.P. Raval, learned Additional

Solicitor General for the Central Bureau of Investigation

– respondent No. 2- supported the view of the Division

Bench. He submitted that in a case where validity of the

sanction order is sought to be challenged on the ground of

non-application of mind, such challenge can only be made in

the course of trial. In this regard, he heavily relied upon

a decision of this Court in Parkash Singh Badal and another

vs. State of Punjab and others5. He also relied upon a

recent decision of this Court in Ashok Tshering Bhutia vs.

State of Sikkim6.

9. This Court has in Mansukhlal Vithaldas Chauhan1

considered the significance and importance of sanction

under the P.C. Act. It has been observed therein that the

sanction is not intended to be, nor is an empty formality

but a solemn and sacrosanct act which affords protection to

government servants against frivolous prosecutions and it
3 (2000)8 SCC 500

4 (2007)11 SCC 273

5 (2007)1 SCC 1

6 (2011)4 SCC 402
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is a weapon to ensure discouragement of frivolous and

vexatious prosecution and is a safeguard for the innocent

but not a shield for the guilty. This Court highlighted

that validity of a sanction order would depend upon the

material placed before the sanctioning authority and the

consideration of the material implies application of mind.

10. The provisions contained in Section 19(1),(2),(3) and

(4) of the P.C. Act came up for consideration before this

Court in Parkash Singh Badal and another5. In paras 47 and

48 of the judgment, the Court held as follows:

“47: The sanctioning authority is not required to
separately specify each of the offences against the
accused public servant. This is required to be done
at the stage of framing of charge. Law requires
that before the sanctioning authority materials must
be placed so that the sanctioning authority can
apply his mind and take a decision. Whether there
is an application of mind or not would depend on the
facts and circumstances of each case and there
cannot be any generalised guidelines in that regard.

48: The sanction in the instant case related to
the offences relatable to the Act. There is a
distinction between the absence of sanction and the
alleged invalidity on account of non-application of
mind. The former question can be agitated at the
threshold but the latter is a question which has to
be raised during trial.”

11. While drawing a distinction between the absence of

sanction and invalidity of the sanction, this Court in

Parkash Singh Badal5 expressed in no uncertain terms that the

absence of sanction could be raised at the inception and

threshold by an aggrieved person. However, where sanction

order exists, but its legality and validity is put in
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question, such issue has to be raised in the course of

trial. Of course, in Parkash Singh Badal5, this Court

referred to invalidity of sanction on account of non-

application of mind. In our view, invalidity of sanction

where sanction order exists, can be raised on diverse

grounds like non-availability of material before the

sanctioning authority or bias of the sanctioning authority

or the order of sanction having been passed by an authority

not authorised or competent to grant such sanction. The

above grounds are only illustrative and not exhaustive. All

such grounds of invalidity or illegality of sanction would

fall in the same category like the ground of invalidity of

sanction on account of non-application of mind – a category

carved out by this Court in Parkash Singh Badal5, the

challenge to which can always be raised in the course of

trial.

12. In a later decision, in the case of Aamir Jaan4, this

Court had an occasion to consider the earlier decisions of

this Court including the decision in the case of Parkash

Singh Badal5. Ameerjan4 was a case where the Trial Judge, on

consideration of the entire evidence including the evidence

of sanctioning authority, held that the accused Ameerjan was

guilty of commission of offences punishable under Sections

7,13(1)(d) read with Section 13(2) of the P.C. Act.

However, the High Court overturned the judgment of the Trial

Court and held that the order of sanction was illegal and
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the judgment of conviction could not be sustained. Dealing

with the situation of the case wherein the High Court

reversed the judgment of the conviction of the accused on

the ground of invalidity of sanction order, with reference

to the case of Parkash Singh Badal5, this Court stated in

Ameerjan4 in para 17 of the Report as follows:

“17. Parkash Singh Badal, therefore, is not an
authority for the proposition that even when an
order of sanction is held to be wholly invalid
inter alia on the premise that the order is a
nullity having been suffering from the vice of
total non-application of mind. We, therefore,
are of the opinion that the said decision
cannot be said to have any application in the
instant case.”
13. In our view, having regard to the facts of the

present case, now since cognizance has already been taken

against the appellant by the Trial Judge, the High Court

cannot be said to have erred in leaving the question of

validity of sanction open for consideration by the Trial

Court and giving liberty to the appellant to raise the issue

concerning validity of sanction order in the course of

trial. Such course is in accord with the decision of this

Court in Parkash Singh Badal5 and not unjustified.

14. Mr. Deepak Bhhatcharya submits that the appellant

resides in Delhi and he would be put to grave hardship if

the question of validity of sanction is left open to be

decided in the course of trial as the appellant will have

to remain present before the Trial Court at Ernakulam on

each and every date of hearing. He, however, submits that
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if the personal appearance of the appellant is dispensed

with, unless required by the Trial Court, the appellant will

not be averse in raising the issue of validity of sanction

before the Trial Judge.

15. Mr. H.P. Raval has no objection if a direction in

this regard is given by us.

16. In view of the above contentions and the factual and

legal position indicated above, we are satisfied that the

impugned order does not call for any interference. Appeals

are, accordingly, dismissed. However, it will be open to

the appellant to raise the issue of invalidity of sanction

order before the Trial Judge. In the peculiar facts and

circumstances of the present case, appellant is permitted to

appear before the Trial Court through his advocate. His

personal appearance shall not be insisted upon by the Trial

Court except when necessary.

…………………J.
(R.M. LODHA)

………………….J.
(H.L. GOKHALE)

NEW DELHI
NOVEMBER 22, 2011.
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