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REPORTABLE

IN THE SUPREME COURT OF INDIA

  CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL Nos.2170-2171 OF 2011         [ARISING OUT OF S.L.P. (CRL) NOS. 10278-10279 OF 2010]   

DINESH KUMAR ...   APPELLANT(S)

                     Versus

CHAIRMAN, AIRPORT AUTHORITY OF INDIA AND ANOTHER .   RESPONDENT(S)

J U D G M E N T

  R.M. LODHA,J.    Leave granted.

2. The appellant is being prosecuted for the offences  

punishable under Section 13(2) read with Sections 13(1)(d)  

and 13(1)(a) of the Prevention of Corruption Act, 1988 (for  

short, “P.C. Act”).

3. On  November  4,  2009,  the  sanctioning  authority  

granted sanction to prosecute the appellant for the offences  

indicated above.  After the sanction order was challenged by  

the appellant in the High Court on November 26, 2009, the  

charge-sheet  has  been  filed  by  the  Central  Bureau  of  

Investigation (CBI) -respondent No. 2- against the appellant  

on  November  30,  2009  in  the   Court  of  Special  Judge,  

Ernakulam.  Following that, summons came to be issued to the  

appellant on December 18, 2009.  During the pendency of the

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matter before the High Court, wherein the sanction order has  

been challenged by the appellant, the Court of Special Judge  

has taken  cognizance against the appellant.

4. The Single Judge of the High Court was not persuaded  

with the contentions raised by the appellant and dismissed  

the appellant's Writ Petition on July 19, 2010.

5. Against the order of the Single Judge, the appellant  

preferred an intra-court appeal.  The Division Bench of the  

High Court dismissed the intra-court appeal on September 29,  

2010 observing that it was open to the appellant to question  

the  validity  of  the  sanction  order  during  trial  on  all  

possible grounds and the CBI could also justify the order of  

granting sanction before the Trial Judge.   

6. Mr.  Deepak  Bhattacharya,  learned  counsel  for  the  

appellant referred  to Section  19(4) of  the P.C.  Act and  

submitted  that  the  appellant  challenged  the  legality  and  

validity  of  the  sanction  order  at  the  first  available  

opportunity,  even  before  the  charge-sheet  was  filed  and,  

therefore,  the  Division  Bench  was  not  justified  in  

relegating the appellant to agitate the question of validity  

of sanction order in the course of trial.  He relied upon  

the decisions of this Court in Mansukhlal Vithaldas Chauhan  

vs. State of Gujarat1; Pepsi Foods Ltd. and Anr. v. Special  

Judicial Magistrate and Ors.2;  Abdul Wahab Ansari vs. State  

1 (1997)7SCC 622     

2 1998(5) SCC 749

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of Bhar and another3 and  State of Karnataka vs. Ameerjan4.

7. Mr. Deepak Bhattacharya, in view of the law laid down  

by this Court in the above decisions, submitted that the  

High  Court  ought  to  have  gone  into  the  merits  of  the  

challenge to sanction order. According to learned counsel,  

on its face, the sanction order suffers from non-application  

of mind.

8. On the other hand, Mr. H.P. Raval, learned Additional  

Solicitor General   for the Central Bureau of Investigation  

–  respondent  No.  2-  supported  the  view  of  the  Division  

Bench.  He submitted that in a case  where validity of the  

sanction order is sought to be challenged on the ground of  

non-application of mind, such challenge can only be made in  

the course of trial.  In this regard, he heavily relied upon  

a decision of this Court in Parkash Singh Badal and another  

vs. State of Punjab and others5.  He also relied upon a  

recent decision of this Court in Ashok Tshering Bhutia vs.  

State of Sikkim6.

9. This  Court  has  in  Mansukhlal  Vithaldas  Chauhan1  

considered  the  significance  and  importance  of   sanction  

under the P.C. Act.  It has been observed therein that the  

sanction is not intended to be, nor is an empty formality  

but a solemn and sacrosanct act which affords protection to  

government servants against frivolous prosecutions and  it  

3 (2000)8 SCC 500 4 (2007)11 SCC 273 5 (2007)1 SCC 1 6 (2011)4 SCC 402

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is  a  weapon  to  ensure  discouragement  of  frivolous  and  

vexatious prosecution and is a safeguard for the innocent  

but not a shield for the guilty.  This Court highlighted  

that validity  of a  sanction order  would depend  upon the  

material  placed  before  the  sanctioning  authority  and  the  

consideration of the material implies application of mind.

10. The provisions contained in Section 19(1),(2),(3) and  

(4) of the P.C. Act came up for consideration before this  

Court in Parkash Singh Badal and another5.  In paras 47 and  

48 of the judgment, the Court held as follows:

“47: The sanctioning authority is not required to  separately specify each of the offences against the  accused public servant.  This is required to be done  at the stage of framing of charge.  Law requires  that before the sanctioning authority materials must  be  placed  so  that  the  sanctioning  authority  can  apply his mind and take a decision.  Whether there  is an application of mind or not would depend on the  facts  and  circumstances  of  each  case  and  there  cannot be any generalised guidelines in that regard.

48: The sanction in the instant case related to  the  offences  relatable  to  the  Act.   There  is  a  distinction  between the absence of sanction and the  alleged invalidity on account of non-application of  mind.  The former question can be agitated at the  threshold but  the latter is a question which has to  be raised during trial.”

11. While drawing a distinction  between the absence of  

sanction  and  invalidity  of  the  sanction,  this  Court  in  

Parkash Singh Badal5 expressed in no uncertain terms that the  

absence of sanction could be raised at the inception and  

threshold by an aggrieved person.  However, where sanction  

order  exists,  but  its  legality  and  validity  is  put  in

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question,  such  issue  has  to  be  raised  in  the  course  of  

trial.   Of  course,  in  Parkash  Singh  Badal5,  this  Court  

referred  to  invalidity  of  sanction   on  account  of  non-

application of mind.  In our view, invalidity of sanction  

where  sanction  order  exists,  can  be  raised  on  diverse  

grounds  like  non-availability  of  material   before  the  

sanctioning authority or bias of the sanctioning authority  

or the order of sanction having been passed by an authority  

not authorised  or competent to grant such sanction.  The  

above grounds are only illustrative and not exhaustive.  All  

such grounds  of invalidity or illegality of sanction would  

fall in the same category like the ground of  invalidity of  

sanction on account of non-application of mind – a category  

carved  out  by  this  Court  in  Parkash  Singh  Badal5,  the  

challenge to which can always be raised in the course of  

trial.

12. In a later decision, in the case of Aamir Jaan4, this  

Court had an occasion to consider the earlier decisions of  

this Court including the decision in the case of Parkash  

Singh Badal5.  Ameerjan4 was a case where the Trial Judge, on  

consideration of the entire evidence including the evidence  

of sanctioning authority, held that the accused Ameerjan was  

guilty of commission of offences punishable  under Sections  

7,13(1)(d)  read  with  Section  13(2)  of  the  P.C.  Act.  

However, the High Court overturned the judgment of the Trial  

Court and held that the order of sanction was illegal and

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the judgment of conviction could not be sustained.  Dealing  

with  the  situation  of  the  case  wherein  the  High  Court  

reversed the judgment of the conviction of the accused on  

the ground of invalidity of sanction order, with reference  

to the case of Parkash Singh Badal5, this Court stated in  

Ameerjan4 in para 17 of the Report as follows:

“17. Parkash Singh Badal, therefore, is not an  authority for the proposition that even when an  order of sanction is held to be wholly invalid  inter alia on the premise that the order is a  nullity having been suffering from the vice of  total non-application of mind.  We, therefore,  are  of  the  opinion  that  the  said   decision  cannot be said  to have any application in the  instant case.”

13. In  our  view,  having  regard  to  the  facts  of  the  

present case, now since cognizance has already been taken  

against the  appellant by the Trial Judge, the High Court  

cannot be said to have erred in leaving the question of  

validity of sanction open for consideration by the Trial  

Court and giving liberty to the appellant to raise the issue  

concerning  validity  of  sanction  order  in  the  course  of  

trial. Such course is in accord with the decision of this  

Court in Parkash Singh Badal5 and not unjustified.

14. Mr.  Deepak  Bhhatcharya  submits  that  the  appellant  

resides in Delhi and he would be put to grave hardship if  

the question of validity of sanction is left open to be  

decided in the course of  trial as the appellant will  have  

to remain present before the Trial Court at Ernakulam on  

each and every date of hearing.  He, however, submits that

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if the personal appearance of the appellant is dispensed  

with, unless required by the Trial Court, the appellant will  

not be averse in raising the issue of validity of sanction  

before the Trial Judge.

15. Mr. H.P. Raval has no objection if  a direction in  

this regard is given by us.

16. In view of  the above contentions and the factual and  

legal position indicated above, we are satisfied that the  

impugned order does not call for any interference.  Appeals  

are, accordingly, dismissed.  However, it will be open to  

the appellant to raise the issue of invalidity of sanction  

order before the Trial Judge.  In the peculiar facts and  

circumstances of the present case, appellant is permitted to  

appear before the Trial Court through his advocate.  His  

personal appearance shall not be insisted upon by the Trial  

Court except  when  necessary.

              .....................J.                                  (R.M. LODHA)

         ......................J.                          (H.L. GOKHALE)

  NEW DELHI    NOVEMBER 22, 2011.

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