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IN THE HIGH COURT OF MADHYA PRADESH
Prakash Shrivastava and Arun Kumar Sharma, JJ.
Sabit Khan v. State of M. P. & Others
Writ Petition No. 7818 of 2021 (Jabalpur);
Decided on12.8.2021
(1) Constitution of India -- Art. 227 -- Prevention of Corruption Act, 1988 -- S.19 -- sanction for prosecution -- scope of interference in writ jurisdiction -- granting sanction is administrative function -- sanctioning authority must apply his mind while granting sanction -- in case of challenge, prosecution is required to establish that sanction was granted by sanctioning authority after being satisfied that case was made out for sanction -- Court does not sit in appeal against order of sanction -- adequacy of material produced before sanctioning authority cannot be gone into -- elaborate discussion of material in sanction order not necessary -- if challenge to sanction order on this ground is raised then relevant material can be produced before Court during course of trial to establish that it was produced for consideration before sanctioning authority. (2014) 11 SCC 431 and (2013) 8 SCC 119 followed. [Para 7]
(2) Prevention of Corruption Act, 1988 -- S.19 -- sanction for prosecution -- stage at which sanction can be challenged -- issue relating to absence of sanction or order of sanction being nullity -- can be raised at threshold -- challenge that it suffers from defect of improper application of mind or non-consideration of relevant material -- required to be raised during trial -- to be established by leading evidence -- prosecution will also have opportunity to produce all relevant materialas also examine sanctioning authority. (2007) 1 SCC 1, (2014) 14 SCC 295, (2012) 1 SCC 532, (2009) 15 SCC 533 (2007) 11 SCC 273, (2014) 11 SCC 431 and (1996) 11 SCC 439 followed. W.P. No. 19813 of 2020 decided on 15.3.2021 relied on. [Para 8]
(3) Constitution of India -- Art. 227 -- Prevention of Corruption Act, 1988 -- S. 19 -- sanction for prosecution -- scope of interference in writ jurisdiction -- order of sanction not nullity -- issue of improper application of mind by sanctioning authority -- petitioner will have opportunity to raise it during trial -- challenge to sanction order at this stage premature -- writ petition dismissed with liberty to raise issue during trial and establish it by leading evidence. (2014) 11 SCC 431, (2013) 8 SCC 119, (2007) 1 SCC 1, (2014) 14 SCC 295, (2012) 1 SCC 532, (2009) 15 SCC 533, (2007) 11 SCC 273, (2014) 11 SCC 431 and (1996) 11 SCC 439 followed. W.P. No. 19813 of 2020 decided on 15.3.2021 relied on. [Para 18]
¼1½ Hkkjr dk lafo/kku & vuqPNsn 227 & Hkz"Vkpkj fuokj.k vf/kfu;e] 1908 & /kkjk 19 & vfHk;kstu ds fy, eatwjh & fjV vf/kdkfjrk esa gLr{ksi dh O;kfIr & eatwjh Ánku djuk Á'kklfud ÑR; gS & eatwjh Ánku djrs le; eatwjh Ákfèkdkjh dks euksfu;ksx vo'; djuk pkfg, & vk{ksi dh n'kk esa vfHk;kstui{k }kjk LFkkfir fd;k tkuk visf{kr fd eatwjh Ákf/kdkjh }kjk eatwjh ;g lek/kku gksus ds i'pkr~ nh xbZ Fkh fd eatwjh ds fy, ekeyk fl) gksrk gS & U;k;ky; eatwjh ds vkns'k ds fo#) vihy ugha lqurk & eatwjh Ákf/kdkjh ds le{k is'k dh xbZ lkexzh dh i;kZIrrk ij fopkj ugha fd;k tk ldrk & eatwjh vksn'k esa lkexzh dk foLr`r vko';d ugha & ;fn eatwjh vkns'k ij bl vk/kkj ij vk{ksi fd;k tkrk gS rks fopkj.k ds vuqØe esa U;k;ky; ds le{k ;g LFkkfir djus ds fy, lqlaxr lkexzh is'k dh tk ldrh gS fd mls eatwjh Ákf/kdkjh ds le{k fopkjkFkZ is'k fd;k x;k FkkA ¼2013½ 8 ,l lh lh 119 vuqlfjrA ¼iSjk 7½
¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 & /kkjk 19 & vfHk;kstu ds fy, eatwjh & eatwjh ij vk{ksi fdl ÁØe ij fd;k tk ldrk gS & eatwjh ds vHkko ;k eatwjh vkns'k ds vÑrrk gksus ls lacaf/kr Á'u & vkjaHk esa gh mBk;k tk ldrk gS & vk{ksi fd og vuqfpr euksfu;ksx ;k lqlaxr lkexzh ij fopkj ugha fd, tkus dh =qfV ls xzLr gS & fopkj.k ds nkSjku fd;k tkuk visf{kr & lk{; is'k dj LFkkfir fd;k tkuk gksxk & vfHk;kstui{k dks Hkh leLr lqlaxr lkexzh is'k djus ds lkFk gh eatwjh Ákf/kdkjh dh ijh{kk djus dk Hkh volj gksxkA ¼2007½ 1 ,l lh lh 1] ¼2014½ 14 ,l lh lh 295] ¼2012½ 1 ,l lh lh 532] ¼2007½ 11 ,l lh lh 273 rFkk ¼2014½ 11 ,l lh lh 431 vuqlfjrA fjV ;kfpdk Øekad 19813 lu~ 2020 fu.khZr fnukad 15-3-2021 voyafcrA ¼iSjk 8½
¼3½ Hkkjr dk lafo/kku & vuqPNsn 227 & Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 & /kkjk 19 & vfHk;kstu ds fy, eatwjh & fjV vf/kdkfjrk esa gLr{ksi dh O;kfIr & eatwjh dk vkns'k vÑrrk ugha & eatwjh Ákf/kdkjh }kjk vuqi;qDr euksfu;ksx dk Á'u & ;kph dks fuokj.k ds nkSjku mBkus dk volj gksxk & bl ÁØe ij eatwjh vkns'k ij vk{ksi le; iwoZ & fopkj.k ds nkSjku Á'u mBkus vkSj lk{; is'k dj mls LFkkfir djus dh Lora=rk ds lkFk fjV ;kfpdk [kkfjtA 2014½ 11 ,l lh lh 431] ¼2013½ 8 ,l lh lh 119] ¼2007½ 1 ,l lh lh 1] ¼2014½ 14 ,l lh lh 295] ¼2012½ 1 ,l lh lh 532] ¼2007½ 11 ,l lh lh 273] ¼2009½ 15 ,l lh lh 533 rFkk ¼1996½ 11 ,l lh lh 439 vuqlfjrA fjV ;kfpdk Øekad 19813 lu~ 2020 fu.khZr fnukad 15-3-2021 voyafcrA ¼iSjk 18½
ORDER
Shrivastava, J. 1- The petitioner who is working as District Co-ordinator, Tribal Welfare Department, has filed the present petition challenging the order dated 23.2.2021 whereby the sanction has been granted by the respondent No.1 under section 19(1) of the Prevention of Corruption Act, 1988 (for short ‘the PC Act’) for prosecuting the petitioner for offence under section 7, 13(B), 13(2) of the PC Act in Crime No.285 of 2019. The aforesaid crime has been registered against the petitioner on the basis of the trap which was organised.
2. Learned cousnel for the State has raised the preliminary objection that the petition is premature as the sanction has been granted by the competent authority and the petitioner will have the opportunity to raise objection against the order of sanction during trial.
3. The submission of counsel for the petitioner is that the order of sanction suffers from the defect of non-application of mind and it has been passed in a mechanical manner without considering that there is no material against the petitioner to implicate him in the alleged offence. He has further submited that the order of sanction can be challenged at this stage.
4. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that the competent authority while passing the impugned order dated 23.2.2021 had noticed the details of the case and the mnaterial available and thereafter has recorded that after complete analysis of collected documents/physical and oral evidence, the petitioner was found involved in the commission of the alleged offence and after reaching that conclusion, the sanction has been granted.
5. The issue is as to whether the order granting sanction can be challenged at this stage or the objection in this regard is required to be raised by the petitioner during trial and the issue is to be decided by the trial Court on the basis of the evidence.
6. Section 19 of the PC Act requires previous sanction for prosecution. Sub section (3) thereof puts a rider that absence of or any error, irregularities etc. in sanction will not be a ground to reverse a finding or sentence unless in the opinion of the Court failure of justice has infact occasioned thereby. Sub section (4) thereof relates to raising an objection in this regard at an early stage in the proceedings.
7. The Act of granting sanction is an administrative function. It is imperative that the sanctioning authority must apply his mind while granting sanction and in case of challenge the prosecution is required to establish that the sanction was granted by the sanctioning authority after being satisfied that a case was made out for sanction. Since the Court does not sit in appeal against the order of sanction, therefore, adequacy of material produced before the sanctioning authority cannot be gone into. The elaborate discussion of material in the sanction order is not necessary and if a challenge to the sanction order on this ground is raised then the relevant material can be produced before the Court during the course of trial to establish that it was produced for consideration before the sanctioning authority.
8. The issue relating to absence of sanction or the order of sanction being a nullity can be raised at the threshhold but a challenge to the order of sanction on the ground that it suffers from the defect of improper application of mind or nonconsideration of relevant material is required to be raised during the trial and establish by leading evidence, when the prosecution will also have an opportunity to produce all the relevant material as also examine the sanctioning authority.
9. The Supreme Court in the matter of Parkash Singh Badal & Another v. State of Punjab & Others reported in (2007) 1 SCC 1 has drawn the distinction between a case where there was absence of sanction and a case where the order of sanction was vitiated on some ground and has held that where there is absence of sanction the issue can be ag
The challenge to the order of sanction on the ground of improper application of mind or non-consideration of relevant material is required to be raised during trial and established by leading evidenc....
Point of law : Section 19(3) of the PC Act indicates that it deals with three situations: (i) Sub-Clause (a) deals a situation where a final judgment and sentence has been delivered by the Special Ju....
Illegal gratification - Previous sanction necessary for prosecution - Granted sanction for prosecution not maintainable - Section 19 of P.C. Act empowers sanctioning authority to protect innocent pub....
The court held that while it can review sanctions for prosecution under the Prevention of Corruption Act, disputed facts must be resolved in criminal court, not through writ jurisdiction.
The court emphasized that the validity of sanction for prosecution can be examined at any stage, including pre-trial, to ensure due process and prevent injustice.
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