Invalid sanction under Prevention of Corruption Act

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Question asked on: 12/02/2018

I am an accused of the offence committed under section 13(1)- (c)(d)(e) of the prevention of corruption act. When the case was filed, the FIR was not coupled with a valid sanction of the competent authority. Therefore, I opposed the cognisance taken by the special court constituted under the prevention of corruption act. Later on, prosecution approached the state government for granting a valid sanction.

Consequently, the competent authority of the state government granted a valid sanction and prosecution submitted it before the court. Now I want to challenge this second sanction issued against me. What is the possibility?

Advised by: Mr. Shivendra Pratap Singh, Advocate

Section 19 of the Prevention of Corruption Act (PC Act) mandates the previous sanction for prosecution of a public servant. That sanction is necessary for the offence under section 7, 10, 11, 13 & 15 of the PC Act. Sanction must be granted by proper sanctioning authority, empowered to issue sanction for prosecution of the public servant.

When the sanction is necessary

The permission is essential for launching a prosecution in a court of law. No court shall take cognisance of the offence, above mentioned unless a valid sanction accompanies the challan filed under section 173(2) of the Code of Criminal Procedure.  

The court takes cognisance of the offence mentioned in the challan and frames charges for launching a trial against the accused. Hence, a valid sanction is sine quo non (essential condition) for taking cognizance of the offence under section 7, 10, 11, 13 & 15 of the PC Act.

Invalid sanction

If the sanction is invalid (not granted by a competent sanctioning authority), the accused has the right to challenge the cognisance. The sanction is not necessary for the initiation of an investigation. It becomes mandatory if the investigating agency submits its investigation report in the court for taking cognisance of the offence.  

State of Goa v. Babu Thomas (2005) 8 SCC 130 the Supreme Court has held that invalid sanction is a fundamental error hence it renders the proceeding invalid.

Furthermore, in Nanjappa v. State of Karnataka (2015) 14 SCC 186 the Supreme Court has held that in case the sanction is found to be invalid the court can discharge the accused.

If a sanction for prosecution is invalid, then the accused should object at an earlier stage in the proceeding.

Subsequent Sanction

When accuses objects to invalid sanction, the court under section 465 of the Code of Criminal Procedure determines whether that irregularity in sanction has occasioned a failure of justice. If the court finds no failure of justice, then it cannot desist the prosecution to approach the proper sanctioning authority for grant of subsequent sanction.

The investigating agency submits its investigating report before the concerned authority for grant of sanction. The concerned authority examins that report and grant sanction if finds that offence has been committed by the public servant in discharge of his public duty. Eventually, the authority grants sanction if there is sufficient material disclosing the commission of a cognizable offence.

The procedural flaw in granting of sanction is a mere irregularity, and it can be corrected at the later stage in the proceeding. In Nanjappa v. State of Karnataka (2015) 14 SCC 186 the Supreme Court has held that court may take the cognizance of offence if the subsequent sanction is valid.

Hence, you’ll not get any fruitful relief if you challenge the validity of proceeding on the basis of invalid sanction. Generally, the High Court does not interfere in mere irregularity committed in the proceeding.

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Shivendra Pratap Singh

Advocate, Lucknow

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