IMPORTANT POINTS
Even if sanction is accorded by an authority not competent to do so, Court should examine whether a failure of justice was occasioned before interdicting the criminal proceedings.
Whether sanction is passed mechanically can be examined after evidence are led.

JUDGMENT

Ranjan Gogoi, J. –

1. Leave, as prayed for, is granted in both the matters.

2. The two appeals are by the State of Bihar against separate orders (dated 23.03.2012 and 03.03.2011) passed by the High Court of Patna, the effect of which is that the criminal proceedings instituted against the respondents under different provisions of the Indian Penal Code as well as the Prevention of Corruption Act, 1988 have been interdicted on the ground that sanction for prosecution of the respondents in both the cases has been granted by the Law Department of the State and not by the parent department to which the respondents belong.

3. A short and interesting question, which is also of considerable public importance, has arisen in the appeals under consideration. Before proceeding further it will be necessary to take note of the fact that in the appeal arising out of SLP (Crl.) No. 8013 of 2012 the challenge of the respondent- writ petitioner before the High Court to the maintainability of the criminal proceeding registered against him is subtly crafted. The criminal proceeding, as such, was not challenged in the writ petition and it is only the order granting sanction to prosecute that had been impugned and interfered with by the High Court. The resultant effect, of course, is that the criminal proceeding stood interdicted. In the second case (SLP (Crl.) Nos.159-160/2013) the maintainability of the criminal case was specifically under challenge before the High Court on the ground that the order granting sanction is invalid in law. Notwithstanding the above differences in approach discernible in the proceedings instituted before the High Court, the scrutiny in the present appeals will have to be from the same standpoint, namely, the circumference of the court’s power to interdict a criminal proceeding midcourse on the basis of the legitimacy or otherwise of the order of sanction to prosecute.

4. Though learned counsels for both sides have elaborately taken us through the materials on record including the criminal complaints lodged against the respondents; the pleadings made in support of the challenge before the High Court, the respective sanction orders as well as the relevant provisions of the Rules of Executive Business, we do not consider it necessary to traverse the said facts in view of the short question of law arising which may be summed up as follows:-

“Whether a criminal prosecution ought to be interfered with by the High Courts at the instance of an accused who seeks mid-course relief from the criminal charges levelled against him on grounds of defects/omissions or errors in the order granting sanction to prosecute including errors of jurisdiction to grant such sanction?”

5. The object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the provisions in this regard either under the Code of Criminal Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is—whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bonafide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any motivated, ill-founded and frivolous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that is not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so as