The Allahabad HC on Tuesday explained the difference between ‘Absence of Sanction’ and ‘Invalidity of Sanction’ for prosecution.
The bench of Justice Shree Prakash Singh was dealing with the application challenging the sanction orders and entire proceedings in Sessions Trial arising out of Case Crime registered under Sections 120B, 121, 121A, 420, 467, 468 I.P.C. & 13, 18, 20, 21, 23 (2), 38, 39, 40 UAPA.
In this case, three persons, namely, Shivraj Singh, Rajendra Kumar @ Arvind Kumar and Kripa Shankar were arrested by Uttar Pradesh State Task Force team.
FIR was lodged and a letter was sent by Investigating Officer to DIG (ATS) for the grant of sanction of prosecution and the DIG (ATS) sent a letter to the Secretary, Department of Home, Government of UP making a request for grant of sanction for prosecution.
The sanction for prosecution was granted by the State Government. The charge sheet was filed by the Investigating Officer and charges were framed against accused Shivraj Singh and Kripa Shankar in the Sessions Trial and against the co-accused Rajendra Kumar @ Arvind.
The issue for consideration before the bench was:
Whether the application filed by the applicant challenging the sanction orders and entire proceedings could be accepted or not?
The bench noted that the crux of the contention of the State is that the sanction for prosecution has been granted and that too is in consonance with the provision of the Act 1967. Further since the matter was proceeded after framing of charges and, admittedly, there is an order of sanction for prosecution, thus, this cannot be said that there is absence of sanction and if there is any invalidity, which is being raised at this stage, the same can be looked into by the trial court.
High Court observed that so far as the order dated 3.3.2022 passed by the review authority is concerned, the matter pertains to year 2010 and about 12 years have been passed. Further, it is settled that the grant of sanction is merely an administrative function and sanctioning authority is required to reach over satisfaction, at the first hand that acts and facts would constitute the offence and, now, after lapse of 12 years, it would not be just and fair to initiate proceeding of grant of sanction to put the applicants and other side for another innings of litigations and keep the trial pending indefinite long period.
The bench stated that the sanction was granted on 3.8.2010 and, thus, prima facie it is not a case of absence of sanction but the applicants-accused persons have raised certain illegality and invalidity in grant of sanction for prosecution and those are three folds. Firstly, the Review authority was not in existence at the time of grant of sanction; secondly, there was no material before the sanctioning authority; and thirdly Section 173 (8) is not meant for filling the lacunaes.
High Court further, opined that all the pleas are with respect to invalidity said to be creeping in the impugned order of sanction. As has been discussed in preceding paragraphs, the instant matter is not a case of absence of sanction and if there is any alleged invalidity prevailing in the order of sanction, the same can be raised/assailed before the trial court.
In view of the above, the bench dismissed the application.
Case Title: Shivraj Singh And 2 Others v. State Of U.P.
Bench: Justice Shree Prakash Singh
Case No.: APPLICATION U/S 482 No. – 283 of 2023
Counsel for the applicant: Sri Jyotindra Mishra
Counsel for the opposite party: Sri Shiv Nath Tilhari
