Home | Legal Advice | Criminal Law | Can I challenge the validity of sanction for prosecution?

Can I challenge the validity of sanction for prosecution?

Shivendra Pratap Singh

Advocate

08/07/2021

Reading Time:

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.

Question from: Uttar Pradesh

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

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

More For you

Case filed based on False Sale Agreement 

Question: I am 74 yrs old so don't want the case to drag on for obvious reasons. Hence this query. Never had a brush with court in these 74 years but NOW I have been made respondent in a case against me based on a clearly Forged document.  Bought 1 acr land in...

How to lodge FIR in loss of mobile phone?

Question: I am from Kolkata. my Phone has some last memories of my grandma. I lost my mobile on 16.05.2022 and my mobile rang for about 6 hours and then switched off. How to lodge FIR in loss of mobile phone? Obviously it's switched off by someone. I went to the local...

Can I file FIR against husband in delhi for bigamy?

Question: Our marriage solemnised in the UAE. My husband is working in the UAE. After I got married in UAE on 5th Feb 2022 I came to know that I have been cheated. My husband was married 2 times before Married to me. He has not dissolved his previous marriage. Can I...

Physical assault from my boyfriend

Question: Physical assault from my boyfriend. I went to the police station for an FIR but they refused to lodge. They said to approach the court and file the complaint. As I was afraid he could do the same to me, I left him and went to my place as we are living in a...

Withdraw criminal case in the absence of accused

Question: Is it possible to withdraw a criminal case in the absence of an accused? Hi Sir, My sister in law filed two cases against my brother which were 1. Warrant of Summons Criminal Case, IPC none 2. Criminal Misc. Cases, IPC. For one of them I've received court...

Search and arrest by police in a different state

Question: The police of Uttarakhand come to Uttar Pradesh, search and arrest a person under NDPS Act. Police of Uttarakhand become the complainant of the case. Can they really do so? Search and arrest by police in a different state is possible or not. Asked from:...

Can we prove our absence through the CRD?

Question: We are facing the false family matters cases at Jhansi courts. Can we prove our absence through the CRD? Can I get it from the court? Date of incidence on record is 23.06.2019 at Jhansi. But we weren't in Jhansi at that time. In Fact we were at our...

Can the court quash the FIR lodged under Section 468 IPC?

Question: Allegation made under 468 IPC. Now the parties have settled the matter. But the trial is proceeding. So can we quash the case? Can the court quash the FIR lodged under Section 468 IPC? Asked from: Uttar Pradesh Section 468 of Indian Penal Code is a non...

A guilty person can lodge an FIR

Question: I want to know if a guilty person can lodge an FIR? If I beat someone due to harassment or any other criminal activity and an FIR is lodged against me, can I still lodge an FIR against the person I have beaten for his activity? Asked from: West Bengal Guilty...

Can I lodge an FIR after ten years of incident?

Question: My boyfriend had raped me in my PG when I was studying in engineering college. Now I have joined a multinational company and am working in Bangalore. He has traced me and is now trying to establish a relationship. I am married and a mother of two childs. Can...

Kanoonirai has been advising in legal issues since October 2014. You can consult a lawyer through online media, telephonic consultation and video conferencing.

Contact

mail[at]kanoonirai.com
+91-91400-4[nine][six]54