Prevention of Corruption Act | Sanctioning Authority's Competence, Application Of Mind Can Be Examined Only During Trial: J&K High Court

Justice Rajnesh Oswal relied on Parkash Singh Badal v. State of Punjab (2007), Dinesh Kumar v. Airport Authority of India (2012) & CBI v. Ashok Kumar Aggarwal (2014) and observed,

"While the issue of absence of sanction can be raised at the threshold but the challenge to sanction on other grounds such as lack of competence to grant sanction, non-application of mind etc. can be raised only during the trial."

These observations were made while hearing a petition filed by the petitioner seeking to quash an FIR and a Government Order dated 08.08.2014, which granted sanction to prosecute the petitioner and other officials.

The petitioner, a former Block Officer, was accused of involvement in a conspiracy related to illicit timber activities. The charges included offences under various sections of the Prevention of Corruption Act, RPC, and Jammu & Kashmir Forest Act.

Raising multiple grounds to assail the allegations against him the petitioner's counsel had that the petitioner was not posted at the relevant time during the alleged offences.

The petitioner further argued that once the sanction was sought by the respondent for prosecuting the petitioner for the commission of offences under Section 5(2) of the PC Act and 161 RPC, no sanction could have been granted for prosecuting the petitioner for offences under Section 467, 471, 201, 120-B of RPC and Section 6(ee) of the J&K Forest Act.

The petitioner also contended that since separate sanction was required for offences under RPC and J&K Forest Act, failure of the same reflects the non-application of mind by the sanctioning authority and lack of competence to grant sanction under specific sections of the law.

Contesting the plea Mr. Mohsin Qadiri, Sr. AAG, argued that the charge sheet against the petitioner establishes their involvement in the offenses. He emphasized that the sanctioning authority had applied its mind, evident from granting sanction for charges under both the PC Act and RPC. Since the initial sanction sought by respondent No.5 covered specific sections, subsequent sanctions for RPC and J&K Forest Act offences did not require separate approvals, he argued.

Justice Oswal emphasized that the absence of sanction can be challenged at the outset. However, challenges concerning the competence of the sanctioning authority and the application of mind can only be raised during the trial, he explained.

The first contention of the petitioner was that he was not posted in Block Office, Handwara, on November 29, 2003, when the alleged offences took place, and thus, he should not be held responsible. Consequently, the petitioner's defence could be presented during the trial if charges were framed against him.

"Whatever the defence the petitioner has, he can raise during the trial in the event charges are framed against him. The disputed questions of facts cannot be considered while adjudicating a writ petition challenging the validity of FIR and sanction accorded for the prosecution of the petitioner", the bench observed.

The second argument was that since the initial sanction request by respondent No. 5 only mentioned certain offences, it was improper for respondent No. 3 to grant sanction for other offences.

The court rejected this argument, emphasizing that the sanctioning authority must independently evaluate the material and can decide to grant sanction for other related offences.

"The respondent No.3 has mentioned in detail the allegations levelled against the petitioner and other accused and then only the sanction order has been issued to prosecute the petitioner & other co-accused, after due application of mind. Therefore, this contention of the petitioner too is rejected".

On the issue of separate sanctions, the court referenced Section 6(1)(a) of the PC Act, 197 Cr. P.C and Section 42(2) of the J&K Forest Act and underscored that the sanction to prosecute a Forester under Section 42(2) of the J&K Forest Act and a 'public servant removable with the sanction of the Government' for offences under the P.C. Act could be granted by the Government.

In this case, the Deputy Secretary to Government, General Administration Department (Vig.), Civil Secretariat, Srinagar/Jammu, who represented the Government, had duly sanctioned the proceedings, the court maintained.

As such, the court found the petitioner's arguments to be without merit and dismissed the petition. The petitioner was advised to present his defence in the trial court, free from any influence based on the court's observations in this case. The court also forwarded a copy of its order to the trial court for information and compliance.

Case Title: FAROOQ AHMAD LONE Vs STATE OF J&K & OTHERS

Citation: 2023 LiveLaw (JKL) 276

Counsel For Petitioner: Mr. M. A. Qayoom, Advocate.

Counsel For Respondent: Mr. Mohsin Qadiri, Sr. AAG, with Ms. Maha Majeed, Advocate.

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