Legal Advice

Can I challenge the validity of sanction for prosecution?

Question: I want to challenge the validity of sanction for prosecution. The CBI obtained the sanction for prosecution by force and using undue means. My superior officer was working under pressure of the CBI and granted the sanction prosecution. Now I have retired and my case is still pending in the special CBI court. Can I challenge the validity of the sanction at this stage? This is very crucial for my case because this sanction is invalid and illegal.

Advise

Section 19 of the Prevention of Corruption Act (PC Acct) specifically prohibits cognisance without sanction. The sanction must be legal and issued in following due procedure. Validity of sanction is the most vital part of prosecution under the PC Act. 

If there is any defect in sanction the court will discharge the accused at the trial. Why does the court discharge the accused instead of acquit? When the sanction is defective it renders the cognisance invalid consequently, the entire trial becomes void. 

Thus in absence of a valid cognisance the court discharges the accused. The court cannot convict the accused on invalid sanction.

Can I challenge the validity of sanction at the stage of trial?

Yes, you can challenge the validity of sanction at any stage of proceeding. In Nanjappa Vs. State of Karnataka (2015) 14 SCC 186 the Supreme Court has held that the question regarding validity of sanction can be raised at any stage of the proceeding.

Sanction is a statutory protection of a public servant. It protects the public servant from a malicious prosecution under the PC Act.

Also read: Prosecution sanction is not necessary for retired public servant 

In N.K. Ganguly vs. CBI, New Delhi (2016) 2 SCC 143 the Supreme Court has opined that sanction under Section 19 of Prevention of Corruption Act is necessary to see that a public servant is not entangled in a frivolous and false case. 

You should file a discharge application

It is the duty of the court to examine the validity of sanction for prosecution. If the court takes cognisance on defective sanction the whole proceeding becomes void. Therefore, the accused accrues a right to be discharged. 

In Nanjappa Vs. State of Karnataka (2015) 14 SCC 186 the Supreme Court has held that where the sanction order is found to be invalid, the Trial Court can even discharge the accused.

You should move a discharge application as soon as possible. Discharge application is maintainable at any stage of proceeding. 

Shivendra Pratap Singh

Advocate

High Court Lucknow