Issue Of Invalidity Of Sanction To Be Raised During Trial, Not At Stage Of Discharge Application: SC [Read Judgment]

The Supreme Court has held that though the absence of sanction can be agitated during stage of discharge application, but the issue of invalidity of the sanction is to be raised during the trial.

In this case, the Special Court as well as the High Court, while allowing the plea of discharge filed by the accused had held that the sanction for prosecution is not done in accordance with law.

The CBI approached the Apex Court contending that the aspect of validity of sanction can only be considered during trial and not at the stage of discharge application.[Central Bureau of Investigation (CBI) Vs. Pramila Virendra Kumar Agarwal]

The bench comprising Justice R. Banumathi and Justice AS Bopanna, agreeing with this contention, observed that the issue relating to validity of the sanction for prosecution could have been considered only during trial since essentially the conclusion reached by the High Court is with regard to the defective sanction since according to the High Court, the procedure of providing opportunity for explanation was not followed which will result in the sanction being defective. The bench said:

In that regard, the decision in the case of Dinesh Kumar vs. Chairman, Airport Authority of India, (2012) 1 SCC 532 relied upon by the learned Additional Solicitor General would be relevant since it is held therein that there is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial.

In this case, the High Court had recorded that the statement of the accused made to the police during investigation is not admissible and the procedure adopted during investigation is found to be defective. Such conclusion would arise for consideration only during trial and if the statement made is retracted and there is no other material or evidence on record to establish the charge, the bench said while setting aside the High Court order. 

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