Excelsior Correspondent
Srinagar, Apr 14: High Court today held that the Court has no powers to direct the competent authority to accord sanction for prosecution of a particular person.
Justice MK Hanjura while hearing a petition, challenging therein an order of trial court, has held the Court has no power to direct the competent authority to accord sanction for the prosecution of a particular person.
Special Judge, Anti-Corruption, Jammu, in case arising out of case FIR No. 10/2013 of Police Station, Crime Branch, Jammu, under Sections 420, 465, 467, 468, 471, 120-B RPC and 5(2) Prevention of Corruption Act, had directed to proceed against the petitioner by holding that there is sufficient evidence on record which revealed the involvement of the petitioner in the offences like the other members of the Purchase Committee with a further direction that sanction for the prosecution of the petitioner be obtained.
The petitioner, Lotika Khajura, Deputy Drug Controller Jammu, pleaded in her petition that the order passed by the Special Judge, Anti-Corruption, Jammu is a sheer abuse of the process of law.
“The existence of a valid sanction accorded by the competent authority is a condition precedent to the institution of the prosecution against a public servant”, Justice Hanjura recorded in his judgment.
Court said it is the Government or competent authority who has an absolute discretion to grant or withhold the sanction to assess and evaluate the material placed and produced before it and to find out whether a prima facie case against the person sought to be prosecuted is made out.
It is well within the domain and area, Court added, of the sanctioning authority to refuse the grant of sanction against a person sought to be prosecuted.
The aim and object, Court said, behind inserting and engrafting this provision appears to be that it works as a salutary safeguard to ensure that no false or malicious prosecution can pierce into the portals of the court of justice.
Underscoring various citation of Apex Court, Justice Hanjura said that no court of special judge can take cognizance of an offence except with the sanction of the competent/appropriate authority.
“Grant of sanction is not an acrimonious exercise, but a solemn duty which enforces protection to the Government servant against false prosecution and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned”, read the judgment.
The sanctioning authority, Court said, is obliged under law to apply its independent mind to the facts and circumstances of the case as also the material and evidence collected during the investigation of the case.
The sanctioning authority, Court underlined, has to derive satisfaction on the basis of the material produced before it and has to take a call whether the sanction for the prosecution of the public servant is or is not warranted to be accorded.
“For a sanction to be valid it is necessary that the sanctioning authority does not buckle, bend or wield to any influence exerted on it, nor has the sanctioning authority to act upon any decision forced on it”, read the judgment.
Court said it is the absolute discretion of the sanctioning authority and this discretion cannot be influenced by any extraneous consideration.
Court also said that in case if it is found that the sanctioning authority has succumbed to the dictates of any outside authority in the matter of the accord of sanction in that event, Court can very well come to the conclusion that the sanctioning authority has acted mechanically and has not formed an independent opinion in making such a decision.
“Therefore, it was not within the region, power and scope of the learned Trial Court to direct the investigating officer to seek sanction for the prosecution of the petitioner and in the absence of such a sanction the Court had no power to proceed in the case as against the petitioner”, Court concluded.
Court looking at the instant case from another perspective as to whether a Magistrate has the power to direct further investigation after taken cognizance of a case, underscored the judicial precedents evolved on the subject convey that a Magistrate has no jurisdiction to do so.
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