The purpose of sanction for prosecution is to prevent malicious and unnecessary prosecutions leading to harassment, and the power under section 311 CrPC should be used sparingly and with great caution.

M.L. MEHTA, J.

1. The present petition assails the order of the Ld. Special Judge, CBI dismissing the application of the petitioner filed under section 311 Cr. PC for recalling PW1, the sanctioning authority for further cross-examination.

2. The brief facts necessitating the disposal of the present petition are that the petitioner and accused K.S. Meena were SDM and they are alleged to have misused there official position as public servants by dishonestly signing incomplete affidavits which were used by M/s Khatri enterprises and M/s Zee Enterprises in taking clearance from POE office showing unskilled labour to be skilled labour. A surprise search was conducted at the premises of the aforesaid two companies and incomplete affidavits signed by the petitioner and accused K.S. Meena were recovered. Thereafter search was conducted at the premises of the petitioner and accused K.S. Meena which produced rubber stamps which on comparison were found to be the same as used on the seized incomplete affidavits. The investigations revealed that the business of M/s Khatri Enterprises was being run by accused Avinash Chandra and M/s Zee Enterprises was run by accused Nayeem Ahmed. The affidavits were sent for FSL and it was found that the affidavits were fraudulently attested by the petitioner and K.S. Meena only. Investigations revealed that accused Sanjiv Gupta used to purchase the stamp papers and supply to accused persons Avinash Chandra and Nayeem Ahmed. The affidavits were partially typed and thereafter the incomplete typed affidavits were given to Sanjiv Gupta to get them attested from the petitioner and accused K.S. Meena. The sanction to prosecute the Petitioner was duly granted by one Sh. P.K. Jalali, then Joint Secretary, Ministry of Home Affairs, who was examined as PW1 and cross-examined by the counsel of the accused persons on 15.02.2005 and 19.03.2005. P.K. Jalali was directed to produce the sanction file on which sanction was granted for prosecution of the petitioner. However, he failed to produce it. Thereafter an application under section 91 CrPC was filed in the court of the Ld. Special Judge for production of the report of investigation i.e., the SP report sent to Ministry of Home Affairs by the CBI for obtaining sanction against the petitioner. The Ld. Special Jude dismissed the said application vide order dated 31.01.2009. This order of the Ld. Special Judge was challenged in this court in Crl. M.C. 448 of 2009 and during its pendency, the CBI was pleased to supply the SP report to the petitioner. Crl. M.C. 448 of 2009 was disposed vide order dated 29.04.2011. During the pendency of Crl. M.C. 448 of 2009, application under section 311 CrPC was filed in the court of the Ld. Special Judge for further cross-examination of PW1 which was dismissed vide order dated 01.03.2011. Hence the present petition.

3. The Ld. Counsel for the petitioner submits that the sanction granted by the sanctioning authority was without application of mind and passed in a mechanical manner as the sanctioning authority was misrepresented and misled of the facts of the case.

4. It is contended that one accused Sanjiv Gupta who was cited as a witness by the prosecution in the SP report was later made an accused in the chargesheet. However, the sanctioning authority failed to take cognizance of this fact while granting sanction for prosecution of the petitioner. The entire evidence was not placed before the sanctioning authority and sanction was granted solely on the basis of the SP report and therefore granted in a mechanical manner without appreciating the entire evidence on record. The petitioner relies upon a division bench judgment of this court in Salamat Ali v. State, 174 (2010) DLT 558 (DB) wherein the matter was remanded back to the trial court for re-examination of certain prosecution witnesses as it was observed that the witnesses had not been examined effectively by the accused’s counsel. The counsel further relies upon the