Anand Byrareddy, J:-

The petition is considered for final disposal at the stage of admission.

2. The grievance of the petitioner is that the authority, who has issued sanction for the prosecution of the present petitioner, was not competent and therefore, the alleged sanction placed on record is invalid. Though the petitioner had raised this contention before the trial Court, the trial Court has rejected the application, on the footing that given the settled position in law, unless any such invalid sanction, even if it is to be construed as invalid, would have to be addressed with reference to the evidence that would be tendered, as it is only then possible for the Court to address the question whether there was failure of justice on account of such an invalid sanction.

3. The learned Special Public Prosecutor appearing for the respondent, would place reliance on a three-judge bench decision in the case of State of Madhya Pradesh Vs. Virender Kumar Tripathi, (2010)2 SCC (Cri) 667 wherein the Supreme Court, has held that the effect of Section 19(3) of the Act is that the provision makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court of appeal on the ground of absence of any error, omission or irregularity in sanction required under sub-section (1) of Section 19 unless in the opinion of the Court a failure of justice has in fact been occasioned thereby.

4. It is seen at Paragraph 10 of the decision that the Supreme Court was questioning the wisdom of the High Court in having quashed the proceedings on the footing that invalid sanction had not been addressed. However, the Supreme Court itself has noticed that there was no pleading about any failure of justice. The stage when this failure was to be established was yet to be reached since the case was at the stage of framing of charge and whether or not failure has in fact been occasioned was to be determined once the trial commenced and evidence was led.

5. In the instant case, since there is strong objection as to the validity of the sanction, failure of justice that has occasioned to the petitioner is the fact that he faces the trial. Therefore, the trial Court would very well address the question whether there was a valid sanction and if it has occasioned in failure of justice, would have to be established by the petitioner, it would then be for the prosecution to demonstrate that there is no failure of justice that has occasioned, since the sanction was preceded by consideration by the higher authorities and therefore, a mere assertion that the sanctioning authority was not competent, would not advance the case of the petitioner. Therefore, in order to avoid prolixity, in the proceedings being taken to a stage, where it is ultimately decided that the proceedings were bad for want of valid sanction, the Court below would do well to address the same as a preliminary issue and take further steps, to demonstrate that there is no failure of justice, which the petitioner could meet by challenging the same in cross-examination of any witness examined or otherwise.

Therefore, wit h that observation, the Court below is directed to address the question as to the validity of sanction as a preliminary issue and take further steps as may be warranted, in accordance with law. The order of slay granted earlier stands vacated.