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| Accused can challenge prosecution sanction during trial: HC | | | Early Times Report
JAMMU, Aug 5: The High Court of Jammu & Kashmir and Ladakh has ruled that an accused retains the right to challenge the validity of prosecution sanction during trial and that earlier observations of the Trial Court cannot operate as a bar to such a challenge.
Justice Shahzad Azeem passed the order in a petition filed by Ashiq Hussain Mir, questioning an order dated October 17, 2023, passed by the Additional Special Judge, Anti-Corruption Bureau, Srinagar, in a challan arising out of ACB FIR No. 24/2019.
The Trial Court had rejected the petitioner's plea regarding the validity of the sanction granted for his prosecution.
During the hearing, Senior Advocate Z.A. Qureshi, assisted by Advocate Anurag Verma, restricted the challenge to the contention that the Trial Court had failed to examine whether the sanctioning authority had considered the relevant material before granting sanction.
It was argued that the Trial Court had not called for the material which allegedly formed the basis of the sanction order. The petitioner apprehended that the observations already recorded could prejudice his right to challenge the sanction during trial.
Opposing the petition, Senior Additional Advocate General Mohsin S. Qadri, assisted by Maha Majeed, submitted that the case did not involve absence or defect of sanction. Advocate Haris Khan also appeared for the respondents.
The Government argued that whether the relevant material was placed before and considered by the sanctioning authority was a question of fact which could be established during trial.
The High Court referred to the Supreme Court judgment in State versus G. Eswaran, AIR 2025 SC 1848, holding that the validity of prosecution sanction can be examined during the course of trial.
Justice Azeem observed that where the allegation is that the sanctioning authority failed to consider relevant material, the issue can be raised and adjudicated during trial.
"Merely by recording certain observations in the impugned order, the vested right of the petitioner to question such validity during the trial cannot be taken away," the Court said.
Invoking the legal maxim actus curiae neminem gravabit-an act of the Court shall prejudice none-the High Court held that the Trial Court's earlier order could not become an obstacle to questioning the sanction.
The Court preserved the petitioner's right to challenge the sanction during trial and clarified that the observations contained in the October 17, 2023 order would neither bind nor influence the Trial Court.
The Trial Court was directed to decide the issue independently and uninfluenced by its earlier observations. The petition, along with connected applications, was accordingly disposed of.
(JNF) |
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