IMPORTANT POINT
Absence of sanction could be raised at inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of Trial.

JUDGMENT

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 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 (1997)7SCC 622; Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors.2 1998(5) SCC 749; Abdul Wahab Ansari vs. State of Bhar and another3 (2000)8 SCC 500 and State of Karnataka vs. Ameerjan4 (2007)11 SCC 273.

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 (2007)1 SCC 1. He also relied upon a recent decision of this Court in Ashok Tshering Bhutia vs. State of Sikkim6 (2011)4 SCC 402.

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 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 4