Essence of Valid Sanction

The Prevention of Corruption Act u/s 19 and section 197 of the Criminal Procedure code puts a mandate on the Prosecuting agency to acquire a Sanction order from an Authority competent to issue the said Order so as to initiate prosecution against those that have committed offences under the PC Act.

Existence of valid sanction is pre-requisite for taking cognizance of offences. Trial without valid sanction is a trial without jurisdiction by the court, thus this proposition of law ultimately indicates that it would be more proper to decide the said question at an initial stage itself instead of going through elaborate and lengthy trial and thereafter arriving at a conclusion on the issue of validity of sanction.

The validity of Sanction depends upon the applicability of mind by the Sanctioning Authority[1] to the facts of the case as also the material and evidence collected during investigation.

Valid Sanction lifts bar for prosecution. Therefore, it is not an acrimonious exercise but is solemn and sacrosanct act which affords protection to the Govt. servant against frivolous prosecution. Consideration of the material thus assumes importance and implies application of mind. Accordingly, it is necessary and obligatory on the Sanctioning Authority to discharge its duty, to the effect of granting or withholding sanction, only after appreciating and having full knowledge of the material facts of the case.

Thus, by producing the relevant facts before the sanctioning authority, an order must be issued by the authority in order to launch the prosecution against the accused.

The Hon’ble Supreme court of India in its comprehensive Judgment of CBI vs. Ashok Kumar Aggarwal, (2014) 14 SCC 295, has elaborated the Legal phenomenon of ‘Sanction’ as:

1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statement, and statement of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.”

The concept of Valid Sanction is not a novel one, rather the Apex Court, in a judgment pronounced in the year 1979 has laid down the relevancy of Valid Sanction in the case of Mohd. Iqbal Ahmed vs. State of Andhra Pradesh[2], wherein it was highlighted that

“1 …..It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either

• by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and
• by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it.

 It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficult (sic-defect) in the prosecution, the entire proceedings are rendered void ab initio”.

It is worth-mentioning herein that the Hon’ble Delhi High Court in a case titled as K.C. Singh Vs. CBI[3], had categorically held:-

“Para 8.     The case of the prosecution is that after the recovery of bribe money from the appellant, he was made to dip his respective hands in freshly prepared Sodium Carbonate solution, which in both events, turned pink. Similarly, the left side pocket wash of his pant was also dipped in Sodium Carbonate solution. It also turned pink. The respective hand washes and the left side pant pocket wash were seized in separate bottles. During investigation, those washes were sent to CFSL and as per the CFSL report Ex.PW1/A, being report No. CFSL-2001/C-0176 dated 30th April, 2001, chemical analysis of the washes confirmed the presence of phenolphthalein in the respective washes. From this scientific evidence, the prosecution is seeking to support the ocular evidence regarding demand and acceptance of bribe by the appellant. Thus, it is obvious that CFSL report is a very important piece of evidence and the sanctioning authority was expected to carefully consider the same. However, perusal of the sanction order which admittedly is the verbatim copy of the draft sanction order sent by SP, CBI, so far as facts of the case are concerned, reveals that it refers to some other CFSL report being CFSL-2001/C-0138 dated 21st March, 2001 and not the CFSL report pertaining to this case. This factor, by itself, shows non-application of mind by the sanctioning authority to the material collected during investigation of the case. Had PW3 Sindhu Shree Khullar perused the CFSL report, this infirmity would not have occurred in the sanction order. This infirmity coupled with the fact that sanction order is verbatim copy of the draft sanction order wherein the similar error is there, is clear indication of the fact that the sanction order is the result of non-application of mind by the sanctioning authority. Accordingly, it does not stand the scrutiny of law and is liable to be quashed.”

In view of the fact that the validity of “Sanction” depends on the applicability of mind by the Sanctioning Authority upon the facts of the case and also upon the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not.

Further, the mind of the Sanctioning Authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is observed that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be had for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution.[4]

Drafted By-

Vaibhavi Sharma, Advocate, Prosoll law Inc.

[1] That Government or Authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed; as defined in Section- 19 (2) Prevention of Corruption Act,

[2] (1979) 4 SCC 172

[3] Crl. Appeal No. 976/2010, decided on 10.08.2011

[4] Mansukhlal Vithaldas Chauhan Vs. State of Gujarat; AIR 1997 SC 3400