Govt Has Discretion To Grant, Withhold Sanction For Prosecution: HC

Srinagar—The court has no power to direct the competent authority to accord sanction for the prosecution of a particular person, the Jammu and Kashmir high court has said.

“The Government/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,” said a bench of Justice M K Hanjura allowing two petitions filed under Section 561-A Cr.P.C.

“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.”

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, the court said. “Grant of sanction is not an acrimonious exercise, but a solemn duty which enforces protection to the Government servant against false prosecution and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.”

The sanctioning authority, the court said, is obliged under law to apply its independent mind to the facts and circumstances of the case as also the material and evidence collected during the investigation of the case. “The sanctioning authority has to derive satisfaction on the basis of the material produced before it and has to take a call whether the sanction for the prosecution of the public servant is or is not warranted to be accorded.”

For a sanction to be valid, the court said, it was necessary that the sanctioning authority does not buckle, bend or wield to any influence exerted on it, nor has the sanctioning authority to act upon any decision forced on it. “Grant of sanction is the absolute discretion of the sanctioning authority and this discretion cannot be influenced by any extraneous consideration. If the facts and circumstances of a case reveal that the sanctioning authority has succumbed to the dictates of any outside authority in the matter of the accord of sanction, the court can very well come to the conclusion that the sanctioning authority has acted mechanically and has not formed an independent opinion in making such a judgment.”

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