Prosecution Sanction Under Section 197 Cr.P.C Explained By Justice V Ram Kumar [Part-7]

AB. Is not the filing of a charge-sheet without the requisite prosecution sanction per se, illegal ?

29. The filing of a charge-sheet before Court without the requisite prosecution sanction is not per se illegal. What the law insists is that before the Court takes cognizance of the offence, there must be before the Court the requisite prosecution sanction given by the competent authority. It is, therefore, open to the competent authority to grant sanction at any time before the Court takes cognizance of the offence and the prosecution will thereupon be entitled to produce the order of sanction before Court. Filing of the charge sheet before Court along with the order of sanction is thus not a condition precedent. Hence filing of charge sheet without sanction per se is not illegal.

AC. Time limit or guideline for disposing of an application for sanction

30. The time limit of 3 months fixed under Vineet Narain v. Union of India (1998) 1 SCC 226 = AIR 1998 SC 889 - J. S. Verma – CJI, S. P. Bharucha, S. C. Sen – JJ, and the Guidelines framed by the Central Vigilance Commission are to be mandatorily complied with. However, additional time of 1 month can be allowed in cases where consultation is required with the Attorney General (A.G) or any other law officer in AG's office. (Vide paras 48 to 50 and 56 of Subramanian Swamy v. Manmohan Singh (2012) 3 SCC 64 - G. S. Singhvi, A. K. Ganguly - JJ.)

AD. The “FORUM” before which and the “STAGE” at which the defence of defective sanction or want of sanction can be raised

31. The absence of a valid sanction can be raised either before the trial court or before the appellate or revisional court and that too at any stage of the proceedings. But where cognizance has already been taken by the trial court and process issued under Section 204 Cr.P.C., the want of prosecution sanction cannot be raised before the trial Court at the stage of Section 204 Cr.P.C. The remedy of the aggrieved person at that stage is to invoke the inherent power of the High Court under Section 482 Cr.P.C. (Vide N. K.Sharma v. Abhimanyu - (2005) 13 SCC 213 = AIR 2005 SC 4303 = 2005 (4) KLT 738 - S. B. Sinha, R. V. Raveendran - JJ). But the invalidity of sanction can certainly be agitated by the defense during the trial of the case. (Vide P. K. Pradhan v. State of Sikkim by CBI (2001) 6 SCC 704 = AIR 2001 SC 2547 - 3 Judges - G. B. Patnaik, S. N. Phukan, B. N. Agrawal - JJ.)

In a case where ex facie no order of sanction has been issued or where the order of sanction has apparently been passed by an incompetent authority, the Court may take note of the same at the outset. But where deeper examination of the facts and circumstances is warranted, the Court may examine the question of sanction at a later stage. (Vide Para 38 of Romesh Lal Jain v. Naginder Singh Rana (2006) 1 SCC 294 = AIR 2006 SC 336 - S. B. Sinha, R. V. Raveendran - JJ.)

The question of sanction can be raised at any time after cognizance is taken and may have to be determined at different stages of the proceedings / trial. (Vide Para 11 of Chandan Kumar v. State of Bihar (2014) 13 SCC 70 - S. J. Mukhopadhaya, Ranjan Gogoi - JJ; Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan (1998) 1 SCC 205 = AIR 1998 SC 1524 - J. S. Verma – CJI, S. P. Bharucha, S. C. Sen - JJ.)

It should be remembered that the requirement of a prosecution sanction is insisted by law at the pre-cognizance stage. If in a given case the Court takes cognizance of the offence either overlooking the need for sanction or by taking a wrong view that prosecution sanction is not necessary, this is an event happening behind the back of the accused because process is issued to the accused only after taking cognizance of the offence. Hence, the accused can come to know of the absence or invalidity of the sanction only at the post-cognizance stage. Therefore, if he were to raise the absence or defect in the sanction and if the Court were to uphold his contention, the Court will necessarily have to retrace its steps backwards to reach the pre-cognizance stage. This, in view of the verdict in Adalat Prasad v. Rooplal Jindal (2004) 7 SCC 338 - N. Santosh Hegde, S. B. Sinha, A. K. Mathur – JJ, may not be permissible. But, a case of absence of prosecution sanction or a case of defective sanction, if could be decided at the preliminary stage after the appearance of the accused, without any further investigation into the facts or before the commencement of trial, it should be treated as an exception to Adalat Prasad. Otherwise, the accused will have to be driven to the necessity of approaching the High Court under Section 482 Cr.P.C. This is my take on the issue.

AE. Consequence of the Court's verdict on the prosecution sanction after upholding the defence

32. Where the defense of defective sanction or want of sanction is upheld by the trial Court or by the appellate or revisional Court holding that the error, omission or irregularity in the sanction has occasioned a failure of justice, then the order which can validly be passed is one dropping the proceedings and not an order of acquittal Such termination of the proceedings will not preclude a fresh prosecution after obtaining a valid sanction and neither Article 20 (2) of the Constitution of India nor Section 300 Cr.P.C. can stand in the way of such prosecution afresh. The order of acquittal passed by the Supreme Court in K. Devassia v. State of Kerala (2006) 10 SCC 447 – B. N. Agrawal, A. K. Mathur – JJ, for want of proper prosecution sanction, may not be supportable in the eye of law.

Even if the Court were to record an order of acquittal for want of a valid sanction, such acquittal will have to be treated as one dropping the proceedings. (Vide Baij Nath Prasad Triaphi v. State of Bhopal - AIR 1957 SC 494 = 1957 Crl.L.J. 597 - 5 Judges - B. Jagannadhadas, B. P. Sinha, S. J. Imam - JJ; State of TN v. M.M.Rajendran - (1998) 9 SCC 268 - G. N. Ray, G. T. Nanavati - JJ; State of Karnataka v. C. Nagarajaswamy - (2005) 8 SCC 370 = AIR 2005 SC 4308 - S. B. Sinha, R. V. Raveendran - JJ.) In Nanjappa v. State of Karnataka - AIR 2015 SC 3060 - T. S. Thakur, Amitava Roy – JJ, the Apex Court has held that once the court finds that sanction is invalid it should discharge the accused instead of recording an order of acquittal on the merits of the case.

The dropping of the proceedings for want of sanction cannot have the effect of barring the grant of sanction and prosecuting the accused thereafter. (Vide State v. B.L. Verma (1997) 10 SCC 772 - Dr A. S. Anand, S. B. Majmudar - JJ.)

Trial quashed for want of sanction. Subsequent trial for the same offence after obtaining the necessary sanction is not barred by Article 20 of the Constitution. (Vide Baij Nath Prasad Tripathi v. State of Bhopal - AIR 1957 SC 494 = 1957 Crl.L.J 597- 5 Judges - S. R. Das – CJI, T. L. Venkatarama Ayyar, B. P. Sinha, S. K. Das, P. B. Gajendragadkar - JJ.)

AF. Feasibility of the Constitutional Courts to direct the sanctioning authority to grant the requisite sanction

33. Where the order of the Sanctioning Authority declining sanction is assailed before the High Court, the High Court cannot direct the Authority to grant sanction. The High Court can only direct the Authority to reconsider the application for sanction. (Vide Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) 7 SCC 622 = AIR 1997 SC 3400 - M. K. Mukherjee, S. Saghir Ahmad - JJ; Haridas v. State of Kerala 2001 (2) KLT 194 - K. S. Radhakrishnan, G. Sasidharan - JJ; State of Kerala and Others v. Manikuttan @ Manikandan and Others 2013 KHC 2711 = 2013 Cr.L.J. 2156 (D.B) - Manjula Chellur – CJ, K. Vinod Chandran - J; Sanjay Singh Ramrao Chavan v. Dattatray Gulabrao Phalke (2015) 3 SCC 123 =AIR 2015 SC Supp. 127 - Kurian Joseph, A. M. Sapre - JJ.)