Excelsior Correspondent
JAMMU, Oct 11: High Court today quashed the order passed by the Trial Court asking Director Vigilance to approach the competent authority and seek permission for launching prosecution against former Chief Secretary B R Sharma, who is presently Additional Secretary in the Union Home Ministry.
After hearing Senior Advocate Sunil Sethi for B R Sharma, Justice M K Hanjura observed, “court has no power to direct the competent authority to accord sanction for the prosecution of a particular person. It also needs to be borne in mind that without a valid sanction the court cannot take the cognizance of offences”.
“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. The competent authority has an absolute discretion to grant or withhold the sanction. It is for the competent authority 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”, High Court said.
“It is well within the domain and area of the sanctioning authority to refuse the grant of sanction against a person sought to be prosecuted. The aim and object 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”, Justice Hanjura said, adding “the law as laid down by the Supreme Court in a catena of judicial pronouncements is that no court of special judge can take cognizance of an offence except with the sanction of the competent/appropriate authority”.
“It was not within the region, power and scope of the Trial Court to direct the investigating agency to seek sanction for the prosecution of the petitioner when the competent authority after scanning the entire material did not come to the conclusion that his involvement surfaces in the matter”, High Court, said, adding “in the absence of such a sanction the court had no power to proceed in the case as against the petitioner. Therefore, one fails to understand as to how the court below has carved out a case to implicate and inculpate the petitioner for the omissions and commissions assembled to him in the impugned order”.
With these observations, Justice Hanjura quashed the impugned order dated 15th of June, 2017, passed by the court of 1st Additional Sessions Judge, Baramulla in case titled State Versus Gh Mohammad Khan and Others arising out of case FIR No. 43/2000 of Police Station, VOK, for the commission of offences punishable under Sections 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, Section 420 and 120-B of the RPC.
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