DINESH KUMARversusCHAIRMAN, AIRPORT AUTHORITY OF INDIA AND ANR.

                   [2011) 13 \ADDL.) S.C.R. 260

 A                        DINESH KUMAR
                                  v.
     CHAIRMAN, AIRPORT AUTHORITY OF INDIA AND ANR.
          (Criminal Appeal Nos. 2170-2171 of 2011)
                       NOVEMBER 22, 2011
 B
             [R.M. LODHA AND H.L. GOKHALE, JJ.]

        Prevention of Corruption Act, 1988:

c      s.19 - Sanction for prosecution - Significance and
  importance of - Held: The sanction is not an empty formality
  but a sacrosanct act which affords protection to government
  servants against frivolous prosecutions - Validity of sanction
  order depends upon the material placed before the
  sanctioning authority - Where sanction order exists but its
0
  validity and legality is put in question, such issue has to be
  raised in the course of trial - lri the instant case, cognizance
  was already taken against the appellants by the trial court -
  High Court while considering challenge to the sanction order,
  therefore, rightly held that it was open to the appe//ant to
E question the validity of the sanction order during trial on all
  possible grounds.

       The appellant was prosecuted for the offences
  punishable under Section 13(2) read with Section 13(1)(d)
F and 13(1)(a) of the Prevention of Corruption Act, 1988. The
  sanctioning authority granted sanction to prosecute the
  appellant for these offences. After the sanction order was
  challenged by the appellant in the High Court, the charge-
  sheet was filed by the CBI-respondent no.2 against the
G appellant in the Court of Special Judge. The summons
  were issued to the appellant. During the pendency of the
  matter before the High Court, wherein the sanction order
  was challenged by the appellant, the Court of Special
  Judge took cognizance against the appellant. The
H                               260
DINESH KUMAR v. CHAIRMAN, AIRPORT AUTHORITY 261
             OF INDIA AND ANR.
appellant filed a writ petition before the High Court. The     A
Single Judge of the High Court dismissed the writ
petition. The Division Bench of the High Court dismissed
the intra-court appeal 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         B
also justify the order of granting sanction before the Trial
Judge. The instants appeal were filed challenging the
 order of the High Court.

    Dismissing the appeals, the Court
                                                               c
    HELD: 1. This Court has in *Mansukhlal Vitha/das
Chauhan considered the significance and importance of
sanction under the Prevention of Corruption Act, 1988. It
was observed therein that the sanction is not intended
to be, nor is an empty formality but a solemn and              D
sacrosanct act which affords protection to government
servants against frivolous prosecutions and it 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   E
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.
While drawing a distinction between the absence of
sanction and invalidity of the sanction, this Court in         F
••Parkash Singh Badal 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 question, such issue has to be raised in    G
the course of trial. [Paras 9-11] [265-B-D; 266-A-E]

     *Mansukh/al Vithaldas Chauhan vs. State of Gujarat
 (1997) 7 SCC 622: 1997 (3) Suppl. SCR 705; **Parkash
 Singh Badal and another vs. State of Punjab and others
 (2007) 1 sec 1: 2006 (10) Suppl. SCR 197 - relied on.         H
     262"   SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R


A       2. Having regard to the facts of the instant case,
   since cognizance was already taken against the appellant
   by the trial court, the High Court did not commit any error
   in leaving the question of validity of sanction open for
  consideration by the trial court and giving liberty to the
B appellant to raise the issue concerning validity of
  sanction order in the course of trial. Such course was in
  accord with the decision of this Court in **Parkash Singh
  Badal and not unjustified. The impugned order did not call
  for any interference. However, it is left open to the
c appellant to raise the issue of invalidity of sanction order
  before the trial court. In the· peculiar facts and
  circumstances of the case, appellant is permitted to
  appear before the trial court through his advocate. His
  personal appearance shall not be insisted upon by the
D trial court except when necessary. [Para 13, 16) [267-C,
    G]
      Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate
  and Ors. 1998(5) SCC 749: 1997 (5) Suppl. SCR 12; Abdul
  Wahab Ansari vs. State of Bhar and another (2000) 8 SCC
E 500: 2000 (3) Suppl. SCR 747: State of Karnataka vs.
  Ameerjan (2007) 11 sec 273: 2007 (9) SCR 1105; Ashok
  Tshering Bhutia VS. State of Sikkim (2011) 4 sec 402 -
    referred to.

F                      Case Law Reference:

         1997 (3) Suppl. SCR 705 relied on         Para 6
         1997 (5) Suppl. SCR 12   referred to.     Para 6
         2000 (3) Suppl. SeR 747 referred to       Para 6
G
         2007 (9) SCR 1105        referred to      Para 6
         (2011) 4 sec 402         relied on        Para 8

         2006 (10) Suppl. SCR 197referred to       Para 8
H
DINESH KUMAR v. CHAIRMAN, AIRPORT AUTHORITY 263
             OF INDIA AND ANR.
    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal            A
No. 2170-2171 of 2011.

     From the Judgment & Order dated 29.09.2010 of the High
Court of Delhi at New Delhi in LPA No. 529 of 2010 and order
dated 29.10.2010 in CM No. 19338 of 2010 in LPA No. 529           B
of 2010.

    Deepak Bhattacharya, Navin Prakash for the Appellant.

    H.P. Raval, ASG, P.K. Dey, Gourav Sharma, Arvind Kumar
Sharma, Praveen Jain, Akshat Kulshreshta (for M.V. Kini &         c
Associates) for the Respondents.

    The Judgment of the Court was delivered by

    R.M. LODHA,J. 1. Leave granted.
                                                                  D
    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    E
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      F
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 matter before the High Court,
wherein the sanction order has been challenged by the
appellant, the Court of Special Judge has taken cognizance        G
 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.
                                                                  H
         264 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R.


A       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
B 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
C 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
D Chauhan vs. State of Gujarat1; Pepsi Foods Ltd. and Anr. v.
  Special Judicial Magistrate and Ors. 2; Abdul Wahab Ansari
  vs. State of Bhar and another3 and State of Karnataka vs.
  Ameerjan•.

E        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.
F      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
G mind, such challenge can only be made in the course of trial.

    1.    (1997) 1 sec 622.
    2.    1998 (5) sec 749.
    3.    (2000) a sec 500.
H   4.    (2001) 11 sec 213.
DINESH KUMAR v. CHAIRMAN, AIRPORT AUTHORITY265
      OF INDIA AND ANR. [R.M. LODHA, J.)
In this regard, lie heavily relied upon a decision of this Court in   A
Parkash Singh Badal and another vs. State of Punjab and
others 5• 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 Chauhan 1
considered the significance and importance of sanction under 8
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 is a weapon to ensure
discouragement of frivolous and vexatious prosecution and is C
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        D
(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:
      "4 7: The sanctioning authority is not required to separately   E
      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       F
      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 G
      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
 s.   c2001) 1 sec 1.
 6.   c2011i 4 sec 402                                                H
     266     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A          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
B an aggrieved person. However, where sanction order exists.
   but its legality and validity is put in 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
C 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
D 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 C,"Jrt in Parkash Singh
  s·adal 5 , the challenge to which can always be raised in the
E 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 ca~e of Parkash Singh
  Badal5. Ameerjan4 was a case where the Trial Judge, on
F 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
G held that the order of sanction was illegal and 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
H Court stated in Ameerjan4 in para 17 of the Report as follows:
DINESH KUMAR v. CHAIRMAN, AIRPORT AUTHORITY 267
      OF INDIA AND ANR. [R.M. LODHA, J.]
      "17. Parkash Singh Badal, therefore, is not an authority for A
      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 8
       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 c
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 Bada/5 and not unjustified.
      14. Mr. Deepak Bhhatcharya submits that the appellant D
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 ifthe personal appearance E
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.                                               F
      16. In view of the above contentions and the factual and
legal position indicated above, we are satisfied that the
impugned order does riot call for any in!erference. Appeals are,
accordingly, dismissed. However, it will be open to the appellant
to raise the issue of invalidity of sanction order before the Trial G
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.
D.G.                                       Appeals dismissed.       H