All You Need To Know About Prosecution Sanction [Part-III]
I. NO SANCTION REQUIRED WHERE PUBLIC SERVANT IS HOLDING AN OFFICE OTHER THAN THE PARTICULAR OFFICE HE HAD ABUSED
- No sanction is required in case of abuse of a particular office and the accused public servant is not continuing in that office or is holding an altogether different office (R.S. Naik v. Antulay (1984) 2 SCC 183 = AIR 1984 SC 684 - 5 Judges; Habibulla Khan v. State of Orissa - (1995) 2 SCC 437 = AIR 1995 SC 1124; Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1; K. Karunakaran v. State of Kerala (2007) 1 SCC 59; Shankar Raju v. Union of India (2011) 2 SCC 132; Abhay Singh Chautala v. CBI (2011) 7 SCC 141); Kalicharan Mahapatra v. State of Orissa (1998) 6 SCC 411 = AIR 1998 SC 2595; State of Kerala v. M. Manikantan Nair (2001) 4 SCC 752 = AIR 2001 SC 2145; State of HP v. M.P.Gupta (2004) 2 SCC 349 = AIR 2004 SC 730; M.P. Special Police Establishment v. State of M.P. (2004) 8 SCC 788 = AIR 2005 SC 325 - 5 Judges; L. Narayana Swamy v. State of Karnataka and Others AIR 2016 SC 4125).
Here the date relevant for considering the present status of the accused is the date on which the Court takes cognizance of the offence.
J. DUTY OF THE INVESTIGATING OFFICER TOWARDS THE SANCTIONING AUTHORITY
- Prosecution must send to the Sanctioning Authority the entire relevant records including FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. Records so sent should also contain 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. Provisions regarding sanction must be observed with complete strictness keeping in mind the public interest on the one hand and the protection available to the accused on the other. (CBI v. Ashok Kumar Aggarwal - AIR 2014 SC 827).
- Where the facts constituting the offence have not been set out in the order sanctioning the prosecution and no extraneous evidence to prove that the facts constituting the offence were placed before the Sanctioning Authority, the sanction granted is not valid. (In re Shah Vajanji Kasturchand AIR 1951 SC 450=1951 Cr.L.J. 1061).
K. SANCTION GIVEN BY THE AUTHORITY SUPERIOR TO THE COMPETENT AUTHORITY, VALID
- Prosecution Sanction must be given by an authority competent to remove the accused from the office. It is enough that the authority giving sanction is of the same or higher rank or grade of the Authority who appointed the public servant (vide Mahesh Prasad v. State of U.P AIR 1955 SC 70=1955 Cr.L.J. 249- 3 Judges).
The Special Officer who was competent to grant sanction was appointed by the Government. Hence prosecution sanction granted by the authority superior to the competent authority is valid. (vide State of T.N v. T. Thulasingam 1994 Supp. (2) SCC 405=AIR 1995 SC 1314).
L. GOVERNMENT CAN EMPOWER AN OFFICER TO ACCORD SANCTION UNDER Cr.P.C & P.C. ACT
- 28. As per an amendment to the Rules of Business of the Government of Kerala, the Secretary (Vigilance) was authorised to grant prosecution sanction with effect from 23-04-1994 . Hence, sanction accorded by the said authority prior to the said date was held to be without the jurisdiction. Therefore, the appellant's conviction was not sustained and he was consequently acquitted of the charges. ( Devassia v. State of Kerala (2006) 10 SCC 447) P.A. Mohandas v. State of Kerala (2003) 9 SCC 504 wherein proceedings were quashed for want of jurisdiction of Secretary (Vigilance) to accord prosecution sanction prior to 23-04-1994, was followed.
In Krishna Iyer v. State of Kerala 2005 (1) KLT 391 (D.B) the argument of the accused that the Secretary, Vigilance Department was not competent to grant sanction to prosecute an officer working under another Department, was repelled. It was held that as per the Rules Business of the Government of Kerala issued under Article 166 of the Constitution of India, the sanction order issued by the Secretary, Vigilance Department on behalf of the Government, was proper and that even if there was any irregularity, the conviction cannot be set aside in view of Section 465 Cr.P.C.
Additional Secretary, Department of Law and Legislative Affairs of the State of Chhattisgarh authorised by the Government as the Appropriate Authority to grant sanction on behalf of the State Government, granted sanction in the name of the Governor of the State. This was upheld by the High Court (vide Pappu Singh Rajput v. State of Chhattisgarh 2016 KHC 2441 = 2016 Cri. L.J 612).
M. WHAT IS INDEPENDENT APPLICATION OF MIND BY THE SANCTIONING AUTHORITY ?
- Order of sanction must be preceded by application of mind on the part of the appropriate authority to the facts constituting the offence. If the complainant or the accused can demonstrate that such an order is suffering from non-application of mind, the same may be called in question before a competent Court of law. Para 14 of Romesh Lal Jain v. Naginder Singh Rana -(2006) 1 SCC 294 = AIR 2006 SC 336; State of Karnataka v. Ameerjan - (2007) 11 SCC 273; Mohd. Iqbal Ahmed v. State of Andhra Pradesh - AIR 1979 SC 677 - para 3.
- The application of mind by the appropriate Sanctioning Authority should be to the facts constituting the offence on which the proposed prosecution is to be based. What the Court has to examine is whether or not the Sanctioning Authority, at the time of giving sanction was aware of the facts constituting the offence and had applied its mind to the same. This could be proved in the Court by the prosecution in two ways, either
- i) by producing the original sanction order which itself may contain the facts constituting the offence and the ground of satisfaction, or
- ii) by producing evidence aliunde (from another source or from elsewhere) to show that the facts constituting the offence were placed before the sanctioning authority and the requisite satisfaction was arrived at with reference to those facts (Vide Madan Mohan Singh v. State of UP-AIR 1954 SC 637; Mohd. Iqubal Ahmed v. State of Andhra Pradesh (1979) 4 SCC 172 = AIR 1979 SC 677; Ramesh Lal Jain v. Naginder Singh Rana (2006) 1 SCC 294 = AIR 2006 SC 336).
Where the Sanctioning Authority had before it only the name of the accused and the clause under which sanction was accorded for prosecution of the accused, it was held that there was no evidence to show that the Sanctioning Authority had knowledge of the facts alleged to constitute the offence and that the sanction was, therefore, invalid. (vide Gokulchand Dwarakadas Morarka v. The King AIR 1948 P.C 82= 1949 Cr.L.J. 261).
N PROSECUTION SANCTION IS AN ADMINISTRATIVE ACT
- Grant of prosecution sanction is only an administrative act and not a quasi judicial function although it may result in the consequence of the accused being saddled with the liability to be prosecuted in a court of law . That is why the sanctioning authority is not bound to give an opportunity of being heard to the delinquent/accused (Vide K. Veeraswami v. Union of India (1991) 3 SCC 655 - 5 Judges; State of Bihar v. P.P. Sharma - 1992 supp (1) SCC 222 = AIR 1991 SC 1260; State of Maharashtra v. Ishwar Piraji Kalpatri (1996) 1 SCC 542 = AIR 1996 SC 22; Supdt. Of Police (CBI) v. Deepak Chowdhary (1995) 6 SCC 225 = AIR 1996 SC 186; Subramanian Swamy v. Manmohan Singh (2012) 3 SCC 64; P.L. Tatwal v. State of M.P (2014) 11 SCC 431).
O TIME LIMIT FOR DISPOSING OF AN APPLICATION FOR SANCTION.
- The time limit of 3 months fixed under Vineet Narain v. Union of India (1998) 1 SCC 226 = AIR 1998 SC 889 and the Guidelines framed by the Central Vigilance Commission are to be mandatorily complied with. However, additional time of 1 month can be allowed in cases where consultation is required with the Attorney General (A.G) or any other law officer in AG’s office. (Vide paras 48 to 50 and 56 of Subramanian Swamy v. Manmohan Singh (2012) 3 SCC 64.)
P SANCTIONING AUTHORITY NEED NOT BE EXAMINED AS A WITNESS
- Sanctioning authority need not be examined as a witness. In paragraph 8 of State of M.P. v. Jiyalal - (2009) 15 SCC 72 = AIR 2010 SC 1451 = 2009 KHC 975, the Apex Court held as follows:-
“8. It was also not justified for the learned Single Judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bonafide manner. It was of course open to the respondent to question the genuineness or the validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution”
In this connection it is significant to not that a sanction order is a public document falling under Section 74 of the Indian Evidence Act and, therefore, it can be proved in accordance with the provisions of Section 77 of the Indian Evidence Act either by filing the original or its certified copy. In CBI SPE Hyderabad v. P. Muthuraman 1996 Cr.L.J. 3638 (A.P), following the dictum in State of Rajasthan v. Tarachand AIR 1973 SC 2131, it has been held that the sanction can be proved either by the Sanctioning Authority or by his subordinate officer or a clerk who has seen the Sanctioning Authority sign the sanction order or who is acquainted with the signature of the Sanctioning Authority.
The Home Secretary’s affidavit regarding the satisfaction expressed by the Minister, was held sufficient if the Home Secretary had the requisite means of knowledge. (vide State of Bombay v. Purushottam Jog Naik AIR 1952 SC 317 – 5 Judges).
Q. FORUM BEFORE WHICH AND THE STAGE AT WHICH THE DEFENSE OF DEFECTIVE SANCTION OR WANT OF SANCTION CAN BE RAISED
- The absence of a valid sanction can be raised either before the trial court or before the appellate or revisional court and that too at any stage of the proceedings. But where cognizance has already been taken by the trial court and process issued under Section 204 Cr.P.C., the want of prosecution sanction cannot be raised before the trial Court at the stage of Section 204 Cr.P.C. The remedy of the aggrieved person at that stage is to invoke the inherent power of the High Court under Section 482 Cr.P.C. (Vide N. K. Sharma v. Abhimanyu - (2005) 13 SCC 213 = AIR 2005 SC 4303 = 2005 (4) KLT 738). But the invalidity of sanction can certainly be agitated by the defense during the trial of the case. (vide P. K. Pradhan v. State of Sikkim by CBI (2001) 6 SCC 704=AIR 2001 SC 2547-3 Judges).
In a case where ex facie no order of sanction has been issued or where the order of sanction has apparently been passed by an incompetent authority, the Court may take note of the same at the outset. But where deeper examination of the facts and circumstances is warranted, the Court may examine the question of sanction at a later stage. ( vide Para 38 of Romesh Lal Jain v. Naginder Singh Rana (2006) 1 SCC 294 = AIR 2006 SC 336).
The question of sanction can be raised at any time after cognizance is taken and may have to be determined at different stages of the proceedings / trial. (vide Para 11 of Chandan Kumar v. State of Bihar (2014) 13 SCC 70; Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan (1998) 1 SCC 205 = AIR 1998 SC 1524).
R. FILING OF CHARGE SHEET WITHOUT SANCTION IS NOT per se ILLEGAL
- What the law insists is that before the Court takes cognizance of the offence, there must be before the Court the requisite prosecution sanction given by the competent authority. It is, therefore, open to the competent authority to grant sanction at any time before the Court takes cognizance of the offence and the prosecution will thereupon be entitled to produce the order of sanction before Court. Filing of the charge sheet before Court along with the order of sanction is thus not a condition precedent. Hence filing of charge sheet without sanction per se is not illegal.
S. DEFECTIVE SANCTION OR ABSENCE OF SANCTION NOT A VALID GROUND IN APPEAL OR REVISION AGAINST CONVICTION UNDER THE P.C. ACT
- 36. Sub-sections (3) and (4) of Section 19 of the P.C.Act read as follows;
“ (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
- no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact being occasioned thereby;
- no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
- no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation – For the purposes of this section,-
- error includes competency of the authority to grant sanction;
- a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature ”
- In State V. T. Venkatesh Murthy (2004) 7 SCC 763 ; CBI V. V.K. Sehgal (1999) 8 SCC 501=AIR 1999 SC 3706; Paul Varghese V. State of Kerala (2007) 14 SCC 783=AIR 2007 SC 2618; Parkash Singh Badal V. State of Punjab (2007) 1 SCC 1=AIR 2007 SC 1274; Ashok Tshering Bhutia V. State of Sikkim (2011) 4 SCC 402; State of Bihar V. Rajmangal Ram AIR 2014 SC 1674; Nanjappa V. State of Karnrtaka AIR 2015 SC 3060, the Hon’ble Supreme Court of India, adverting to the above provisions of law, held that in the absence of proof of any failure of justice resulting from any error or illegality in the grant of sanction or even an omission to grant sanction, the conviction recorded by the Court below will not be vitiated. In CBI V. Ashok Kumar Aggarwal AIR 2014 SC 827 it has been held by the Supreme Court that a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in failure of justice and that the Court must examine whether the issue raised regarding failure of justice is actually a failure of justice in the true sense of the expression or is only a camouflage argument.
T. CONSEQUENCE OF JUDICIAL VERDICT ON SANCTION WHEN IN FAVOUR OF THE DEFENSE
- Where the defense of defective sanction or want of sanction is upheld by the trial Court or by the appellate or revisional Court holding that the error, omission or irregularity in the sanction has occasioned a failure of justice, then the order which can validly be passed is one dropping the proceedings and not an order of acquittal Such termination of the proceedings will not preclude a fresh prosecution after obtaining a valid sanction and neither Article 20 (2) of the Constitution of India nor Section 300 Cr.P.C. can stand in the way of such prosecution afresh. Even if the Court were to record an order of acquittal for want of a valid sanction, such acquittal will have to be treated as one dropping the proceedings. (Vide Baij Nath Prasad Triaphi v. State of Bhopal - AIR 1957 SC 494 = 1957 Crl.L.J. 597 - 5 Judges ; State of TN v. M.M.Rajendran - (1998) 9 SCC 268 ; State of Karnataka v. C. Nagarajaswamy - (2005) 8 SCC 370 = AIR 2005 SC 4308). In Nanjappa v. State of Karnataka - AIR 2015 SC 3060 the Apex Court has held that once the court finds that sanction is invalid it should discharge the accused instead of recording an order of acquittal on the merits of the case.
Trial quashed for want of sanction. Subsequent trial for the same offence after obtaining the necessary sanction is not barred by Article 20 of the Constitution. (Vide Baij Nath Prasad Tripathi v. State of Bhopal - AIR 1957 SC 494 = 1957 Crl.L.J 597- 5 Judges).
U. WHERE THE SANCTIONING AUTHORITY HAS DECLINED SANCTION, THE HIGH COURT CANNOT DIRECT THE AUTHORITY TO GRANT SANCTION
39. Where the order of the Sanctioning Authority declining sanction is assailed before the High Court, the High Court cannot direct the Authority to grant sanction. The High Court can only direct the Authority to reconsider the application for sanction. (vide Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) 7 SCC 622 = AIR 1997 SC 3400; Haridas v. State of Kerala 2001 (2) KLT 194; State of Kerala and Others v. Manikuttan @ Manikandan and Others 2013 KHC 2711=2013 Cr.L.J 2156 (D.B).
Justice V.Ramkumar is a Former Judge, High Court of Kerala.
The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same.