. Having heard the learned counsel appearing for the parties and having gone through the materials on record, two questions fall for my consideration;

Criminal Law

H. VASAVADA

VS.

SHANKERLAL GOVINDJI JISHI & 1

Para 15. Having heard the learned counsel appearing for the parties and having gone through the materials on record, two questions fall for my consideration;

  • First, on what ground an order granting sanction can be challenged at the very initial stage before the parties had an opportunity to lead the evidence in support of their case, and
  • Secondly, whether the order of the learned Magistrate taking cognizance and issuing process deserves to be quashed on the ground that when the cognizance was taken, there was no sanction under Section 197 of the Code of Criminal Procedure. Put in other words, whether the sanction accorded by the State Government, at a later stage, would save the situation since it is not always necessary that the need for sanction under Section 197 of the Code of Criminal Procedure should be considered as soon as the complaint is lodged.

Para 30. The discussions show that an order of sanction can be assailed only on two grounds viz. (1) it has been granted by an authority who was not competent to do so and (2) it has not been given in respect of the facts consulting the offense charged. However, if the challenge to sanction is based upon the ground that the facts constituting the offense do not appear on the face of the sanction, (then) such a plea cannot be entertained at the initial stage before the trial has commenced, as the prosecution can have no opportunity to lead evidence in order to show that the sanction had been granted after consideration of relevant material. Therefore, such a plea cannot be entertained and examined in any proceedings including a writ petition under Article 226 of the Constitution before the commencement of the trial. It is only after the trial has concluded and the prosecution has been given the opportunity to lead evidence that the validity of the sanction can be examined on this ground.

Para 31. The challenge to the legality and the validity of the sanction in the present case is altogether on different grounds. The first ground of challenge is a delay of about twenty eight years. It is true that the complainant in the present case applied for sanction before the State Government in the year 2010 and the sanction came to be accorded in the year 2012. However, this by itself is not sufficient to render the sanction illegal or erroneous in law.

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