The Supreme Court, in Central Bureau of Investigation v. Ashok Kumar [AIR 2014 SC 827], summarized the essential principles for granting sanction to prosecute a government servant. These principles ensure that the process is not a mere formality but a rigorous legal safeguard.
The Five Principles of Valid Sanction (Para 16)
- Submission of Full Records: The prosecution must send the entire relevant record to the sanctioning authority. This includes the FIR, disclosure statements, witness statements, recovery memos, and the draft charge-sheet. Crucially, it must also include any material that might favour the accused and lead to a refusal of sanction.
- Independent Scrutiny: The authority must conduct a complete and conscious scrutiny of the record. It must independently apply its mind to the facts before deciding whether to grant or withhold sanction.
- Public Interest & Protection: The power to grant sanction must be exercised strictly, balancing the public interest with the legal protection afforded to the accused.
- Evidentiary Order: The sanction order must make it evident on its face that the authority was aware of all relevant facts and materials and applied its mind to them.
- Burden of Proof: In every case, the prosecution must establish and satisfy the court—by leading evidence—that all relevant facts were placed before the authority and that the sanction was granted in accordance with the law.
The Solemn Nature of Sanction
The Supreme Court observed that a sanction “lifts the bar” for prosecution. It is not a mechanical administrative exercise but a solemn and sacrosanct act that protects government servants from frivolous or vexatious litigation.
It should serve as a safeguard for the innocent, though it is never intended to be a shield for the guilty.
Ex Facie Evidence of Application of Mind
A valid sanction order must ex facie (on the face of it) disclose that the authority considered the evidence. If the order recites that all materials were perused, the Court may draw an inference of legality.
However, if the order suffers from the “vice of total non-application of mind,” it can be challenged and invalidated by the Court.
Reaffirmation in Recent Judgments
These principles were reaffirmed in Judgebir Singh v. National Investigation Agency [2023 INSC 472].
Furthermore, in the recent decision of Robert Lalchungnunga Chongthu @ R L Chongthu v. State of Bihar [2025 INSC 1339], the Supreme Court held that sanction under Section 197 CrPC (now Section 218 BNSS) cannot rest on vague or mechanical assertions. It must reflect a clear, visible application of mind regarding the evidence placed before the authority.
Grounds to Challenge a Prosecution Sanction
If a sanction order lacks the following parameters, it may be liable to be quashed by a High Court under its writ jurisdiction or Section 482 of the CrPC (now Section 528 of the BNSS).
- Non-Application of Mind: The order must show the authority weighed the facts independently. It is legally unsustainable if it repeats the prosecution’s draft or uses vague phrases like “I have seen the file and I grant sanction” without discussing evidence or reasons for arriving at that conclusion.
- Non–Consideration of “Exculpatory” Material: If the authority was never shown or considered documents, such as a clean internal inquiry report depicting innocence, the sanction is vitiated. The prosecution is legally bound to send all records, including those favouring the accused.
- Lack of Original Record Scrutiny: Relying solely on an Investigating Officer’s “summary” instead of the actual case diary/witness statements constitutes a failure of independent scrutiny.
- Absence of a “Speaking Order”: A valid sanction must “speak” for itself. It must state why a prima facie case exists. Non-speaking orders are legally unsustainable.
- Lack of Jurisdiction: Sanction must be granted by the specified authority empowered to remove the official from service. Orders signed by any other authority or officer are void ab initio.
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