MP HC | When can the issue relating to absence of sanction or the order of sanction being a nullity, be raised? Court discusses

Madhya Pradesh High Court: The Division Bench of Prakash Shrivastava and Arun Kumar Sharma, JJ., dismissed a petition in which the issue was deciding whether the order granting sanction can be challenged at the particular stage or the objection in this regard was required to be raised by the petitioner during the trial and the issue was to be decided by the trial Court on the basis of the evidence.

The petitioner who was working as District Co-ordinator, Tribal Welfare Department, had filed the present petition challenging the order dated 23-02-2021 whereby the sanction had been granted by respondent 1 under Section 19(1) of the Prevention of Corruption Act, 1988 (‘the PC Act’) for prosecuting the petitioner for offence under Section 7, 13(B), 13(2) of the PC Act in Crime No.285 of 2019.

Counsel for the State had raised the preliminary objection that the petition was premature as the sanction has been granted by the competent authority and the petitioner will have the opportunity to raise objection against the order of sanction during trial.

Counsel for the petitioner submitted that the order of sanction suffers from the defect of non-application of mind and it has been passed in a mechanical manner without considering that there is no material against the petitioner to implicate him in the alleged offence and that it can be challenged at this stage.

The Court explained that Section 19 of the PC Act requires previous sanctions for prosecution. Sub section (3) thereof puts a rider that absence of or any error, irregularities etc. in sanction will not be a ground to reverse a finding or sentence unless in the opinion of the Court failure of justice has infact occasioned thereby. Sub section (4) thereof relates to raising an objection in this regard at an early stage in the proceedings.

The Court further pointed out that the Act of granting sanction is an administrative function.

It was imperative that the sanctioning authority must apply his mind while granting sanction and in case of challenge the prosecution is required to establish that the sanction was granted by the sanctioning authority after being satisfied that a case was made out for sanction.

The Court quoted the decision of the Supreme Court in Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 where a distinction was drawn between a case where there was absence of sanction and a case where the order of sanction was vitiated on some ground and has held that where there is absence of sanction the issue can be agitated at the threshold of trial but when the sanction exists then question as to vitiation has to be raised during trial. The Court further relied on the judgments of the Supreme Court in Central Bureau of Investigation v. Ashok Kumar Aggarwal, (2014) 14 SCC 295, Dinesh Kumar v. Chairman, Airport Authority of India, (2012) 1 SCC 532, State of M.P. v. Virender Kumar Tripathi, (2009) 15 SCC 533, State of Karnataka v. Ameerjan, (2007) 11 SCC 273 and a few more.

In light of the above judgments the Court dismissed the petition holding that order of sanction in the present case was not a nullity and since the petitioner was raising the issue of improper application of mind by the sanctioning authority, therefore, he will have an opportunity to raise it during the trial and the challenge to the sanction order at this stage was premature.[Sabit Khan v. State of M.P., 2021 SCC OnLine MP 1482, decided on 12-08-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

For the petitioner: Shri Anshuman Singh

For the respondent: Shri Ashish Anand Bernard, Deputy Advocate General.

Join the discussion

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.