Grant of sanction is a sacrosanct act and is intended to provide safeguard to a public servant against frivolous and vexatious litigation.
b) The sanctioning authority after being apprised of all the facts, must be of an opinion that primafacie a case is made out against the public servant.
c) Thus, for a valid sanction the sanctioning authority must be apprised of all the relevant material and relevant facts in relation to the commission of the offence.
d) This application of mind by the sanctioning authority is a sine qua non for a valid sanction.
e) The ratio of the sanction order must speak for itself and should enunciate that the sanctioning authority has gone through the entire record of the investigation. Thus, the sanction order must expressly show that the sanctioning authority has perused the material placed before it, and after considering the circumstances in the case against the public servant, has granted sanction.
f) If the application of mind by sanctioning authority is not apparent from the sanction order itself then the burden of proving that the entire relevant record was placed before the sanctioning authority rests on the prosecution. The prosecution must establish and satisfy the court by leading evidence that the entire record of investigation was placed before the sanctioning authority.
Decision:
it is held that sanction order dated 10.12.2007 (Ex.PW5/A) to prosecute Rakesh Kumar is invalid as it does not qualify the requirements of law, for the following reasons: (A1) PW5 mentions in sanction order dated 10.12.2007 that after fully & carefully examining the material and on perusal of documents and statement of witnesses u/s 161 CrPC recorded by IO and placed before Central Government in regard to the allegations and circumstances of the case, sanction (ExPW5/A) was accorded. He also narrates in his examination in chief about such record, however, during his cross examination, he was explored about record of SP’s report with record, draft sanction and PW5 confirmed it was the only record received and examined by him to accord the sanction.
(A2) The record of SP report (65 pages) with list of witnesses (6 pages) & documents (8 pages) and draft sanction (3 pages) is the only record sent to MEA for accord of sanction. They are 79+3=82 pages only. There is no proof of other record was sent or called for or inquired or proposed to be forwarded on requisition or otherwise to sanctioning authority.
(A3) PW5 said he had seen statement of those witnesses, which IO recorded u/s 161 CrPC and documents before accord of sanction but during cross examination it is established that actual record received was not comprising the statement of witnesses u/s 161 CrPC & documents or single statement of any witness or a document but it was just SP report, list of names of witnesses and list of files of documents, which were enclosure to covering letter. This list or report of SP/CBI is not substitute of actually recorded statement of witnesses u/s 161 CrPC or substitute in place of documents collected or produced or seized during investigation.
(B1) It stands proved that investigating agency or PW74 had not provided for perusal to Sanctioning Authority any record of FIR, statement of witnesses or documents collected during investigation, recovery memos, statement of accused, for scrutiny by Sanctioning Authority. PW5 affirms receipt of annextures to SP Report , which are just the list of names of witnesses but as per order ExPW5/A, the said [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 107 of156 ] record was construed as statement of witnesses by the sanctioning authority.
(B2) The list/SP report just mentions names of 79 witnesses and 103 names of files/documents after background of the case. This, itself is speaking volume that no actual record of statement of witnesses or documents collected was forwarded for perusal of sanctioning authority.
Mystery of Law and Justice 