R.M. Lodha, J. -- 1. Leave granted. 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 ‘the PC Act”).

2. On 4.11.2009, the sanctioning authority granted sanction to prosecute the appellant for the offence indicated above. After the sanction order was challenged by the appellant in the High Court on 26.11.2009, the charge-sheet has been filed by the Central Bureau of Investigation (CBI), Respondent 2 against the appellant on 30.11.2009 in the Court of the Special Judge, Ernakulam. Following that, summons came to be issued to the appellant on 18.12.2009. During the pendency of the matter before the High Court, wherein the sanction order has been challenged by the appellant, the Court of the Special Judge has taken cognizance against the appellant.

3. 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 19.7.2010. 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 29.9.2010 observing that it was open to the appellant to question the validity of the sanction order during trial on all possible grounds and CBI could also justify the order of granting sanction before the trial Judge.

4. Mr. Deepak Bhattacharya, learned counsel for the appellant referred to section 19 (4) of the PC 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 decision of this Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 SCC (Cri) 1120, Pepsi Foods Ltd. v. Judicial Magistrate 1998 SCC (Cri) 1400, Abdul Wahab Ansari v. State of Bihar 2001 SCC (Cri) 18 and State of Karnataka v. Ameerjan ¼2008½ 1 SCC (Cri) 130.

5. 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 the learned counsel, on its face, the sanction order suffers from non-application of mind.

6. On the other hand, Mr. H.P. Raval, learned Additional Solicitor General for the Central Bureau of Investigation, Respondent 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 Prakash Singh Badal v. State of Punjab (2007) 1 SCC (Cri) 193. He also relied upon a recent decision of this Court in Ashok Tshering Bhutia v. State of Sikkim ¼2011½ 2 SCC (Cri.) 258.

7. This Court has in Mansukhlal Vithaldas Chauhan (supra) considered the significance and importance of sanction under the PC Act. It has been observed 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 prosectuion and is 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.

8. The provisions contained in sections 19 (1), (2), (3) and (4) of the PC Act came up for consideration before this Court in Prakash Singh Badal (supra). In paras 47 and 48 of the judgment, the Court held as follows : (SCC p. 37).

“47. The sanctioning authority is not re