Prosecution Sanction Under Section 197 Cr.P.C Explained By Justice V Ram Kumar [Part-6]

Z. The necessity, if any, to examine the sanctioning authority as a witness before Court

27. There is no need to examine the sanctioning authority as a witness during the trial of the case before Court. What the prosecution has to prove is that the sanctioning authority applied his mind to the facts constituting the offence. If this is discernible from the sanction order itself, there ends the matter. If the above aspect is not discernible on the face of the sanction order, then what the prosecution is expected to do is not to examine the sanctioning authority as a witness, but instead, prove by extraneous evidence that the relevant facts were placed before the sanctioning authority.

Sanctioning authority need not be examined as a witness. In paragraph 8 of State of M.P. v. Jiyalal - (2009) 15 SCC 72 = AIR 2010 SC 1451 = 2009 KHC 975 - K. G. Balakrishnan - C. J., P. Sathasivam - J, the Apex Court held as follows:-

“8. It was also not justified for the learned Single Judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bonafide manner. It was of course open to the respondent to question the genuineness or the validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution”

(emphasis supplied)

In Antony Cardoza v. State of Kerala 2011 (1) KLT 946 = 2011 (1) KHC 377 = ILR 2011 (1) Ker. 530 - V. Ramkumar - J, decided by me, I observed that the sanctioning authority should have been examined as a witness for proving the order of sanction, his application of mind and the requisite satisfaction. The said observation was made without being aware of Jiyalal's case referred to above. From the law journals I subsequently came to know that relying on Antony Cardoza, the High Court of Kerala in several cases, had recorded unmerited acquittals for the non-examination of the authority who had accorded prosecution sanction. Pained by such unmerited acquittals, I was constrained to pen an article titled “PROSECUTION SANCTION – A FORMER JUDGE PLEADS GUILTY”, which had been published in the “live law” and other law journals.

NOTES BY THE AUTHOR: But, if either the prosecution or the defence wants to elicit any apparent contradiction in the order of the sanctioning authority, it is open to them to summon the sanctioning authority and seek a clarification.

AA. Mode of proof of the “sanction order”

28. It is significant to note that a sanction order is a public document falling under Section 74 of the Indian Evidence Act and, therefore, it can be proved in accordance with the provisions of Section 77 of the Indian Evidence Act either by filing the original or its certified copy.

In CBI SPE Hyderabad v. P. Muthuraman 1996 Cri.L.J. 3638 (AP) - Krishna Saran Shrivastav – J, following the dictum in State of Rajasthan v. Tarachand AIR 1973 SC 2131 - H. R. Khanna, I. D. Dua – JJ, it has been held that the sanction can be proved either by the Sanctioning Authority or by his subordinate officer or a clerk who has seen the Sanctioning Authority sign the sanction order or who is acquainted with the signature of the Sanctioning Authority.

In one case, the Home Secretary's affidavit regarding the satisfaction expressed by the Minister, was held sufficient if the Home Secretary had the requisite means of knowledge. (Vide State of Bombay v. Purushottam Jog Naik AIR 1952 SC 317 – 5 Judges - M. Patanjali Sastri - C. J. I., Mehr Chand Mahajan, B. K. Mukherjea, S. R. Das, Vivian Bose - JJ.) If as per the Rules of Business, the Chief Minister is the sanctioning authority and if a perusal of the order of sanction discloses that the facts constituting the offence have been referred to therein, the failure to adduce independent evidence to show that the relevant facts were placed before the Chief Minister, is of no consequence. The evidence of the Office Superintendent (of the Appointments Department of the Government) who may be familiar with the signature of the Chief Minister, to the effect that the Chief Minister signed the sanction, would be sufficient. The facts that the Chief Minister signed only in the relevant file and not in the formal sanction order which contains only the signature of the Special Secretary to the Government, makes no material difference. (Vide paras 16 to 18 of State of Rajasthan v. Tarachand Jain (1974) 3 SCC 72 = AIR 1973 SC 2131 - H. R. Khanna, I. D. Dua – JJ).

It is settled law that if the sanctioning authority is the Minister, then he need not sign the sanction order. He need sign only in the file according sanction and thereafter, as per the Rules of Business, it is for the Secretary concerned to prepare the sanction order and sign the same for and on behalf of the Governor of the State or the President of India (as the case may be) who is the competent authority to accord sanction (Vide para 74 of Mani K. v. Inspector of Police, Kochi – 2016 KHC 106 = 2016 Cri.L.J 1644 (Kerala) – K. Ramakrishnan - J.)

In a case where the Investigating Officer deposes that after the conclusion of investigation he had addressed the authority competent to grant prosecution sanction requesting for prosecution sanction and had forwarded the investigation records to such authority and subsequently he received from the sanctioning authority the order of sanction together with the investigation files, there is nothing wrong in the investigating officer himself proving the sanction order. During the trial of the case, if either the prosecution or the defence assails any aspect of the sanction order, it is for such party to summon the sanctioning authority.