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Conviction on invalid sanction for prosecution: What should I do?

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

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Question: My brother is a PCS officer and recently the court has convicted him under the Prevention of Corruption Act. The prosecution took sanction from the state government without following the process. Thus conviction based on invalid sanction for prosecution. The sanctioning authority did not examine the material evidence and deputed a subordinate officer to complete the sanction procedure. 

The whole proceeding was conducted malafidely on the direction of the then chief minister. My advocate filed an application in the court to drop the proceeding because the sancion is invalid. But the court has rejected that application and concluded the trial within eight months. Due to lack of knowledge I could not take proper proceeding against the rejection of my application. I want to file an appeal against the judgment. Please help me. 

Question from: Madhya Pradesh

You should file an appeal as soon as possible. Your brother is entitled to acquit because the entire proceeding and trial is vicious. If the sanction is invalid the accused has a right to challenge it at any stage of proceeding.

Valid sanction under section 19 of the Prevention of Corruption Act (PC Act) is mandatory. The trial under PC Act cannot proceed on invalid sanction. Sanction must be valid and issued in the due process.

Accused is entitled to acquittal on invalid sanction

In State of Karnataka Vs. Ameerjan (2007) 11 SCC 273 the Supreme Court has held that if the sanction is invalid the accused is entitled to be acquitted. 

Section 19 of the PC Act provides protection to the public servant against frivolous prosecution. The sanctioning authority is the best person to judge whether there is sufficient evidence against the public servant to prosecute him under the PC Act.

Sanction of prosecution without examining the evidence amounts to refusal of protection available to public servants under Section 19 PC Act. It proves that the sanctioning authority has not applied his mind when granted sanction. 

The order of sanction must reflect the fact that:

  • The sanction for prosecution was issued by the competent sanctioning authority.
  • Sanction order must be passed after proper application of mind. 
  • Sanctioning authority had the report of the investigating officer at the time of granting sanction.
  • The report prima facie proves that the accused has committed the alleged offence.
  • The material sent with the report must be sufficient to enable the sanctioning authority to take a prudent order about sanction.
  • Sanctioning authority must pass the order of sanction solely on the basis of the report of the investigating officer.

File an appeal before the High Court

You should file an appeal against the order of conviction because sanction is invalid in law. If you have evidence to prove that sanction was invalid the High Court will reverse the judgment of the trial court. Your brother will get the order of acquittal form the high court. 

The above conditions are mandatory for a valid sanction. Lack of any condition will render the sanction invalid. In State (Inspector of Police) Vs. Surya Sankaram Karri – (2006) 7 SCC 172 the Supreme Court has acquitted the accused on the basis of invalid sanction.

In your case, the sanctioning authority cannot depute a subordinate officer to accord sanction for prosecution. It is a violation of statutory provision. Such a violation causes miscarriage of justice.

In Karnataka through CBI vs. C. Nagarajaswamy [(2005) 8 SCC 370] the Supreme Court has held that: grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence.

You will get justice by the High Court because conviction on invalid sanction is bad in law. Hence, you should file the appeal as soon as possible.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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