Discretion To Grant Sanction Vests Absolutely With Sanctioning Authority; Such Decision Is Not To Be Generally Interfered With: Kerala HC

On the concept of sanction, the Single-Judge Bench of Justice Bechu Kurian Thomas observed, “The concept of prosecution sanction is not an idle formality or an unnecessary exercise, but a solemn and sacrosanct act which affords protection to public servants against frivolous prosecutions.”

Advocate Rajit represented the Petitioners while Public Prosecutor C. K. Suresh represented the Respondents.

The petitioners in this matter are siblings of late Narayanan Nair, who died in the year 2001. Alleging that the death of the brother was due to police atrocities, a private complaint was filed by the original petitioner before the Judicial First Class Magistrates Court. It was alleged in the complaint that while the deceased Narayanan Nair was standing at a bus stop, the third respondent assaulted and poked the deceased with a lathi while other policemen also assaulted him. Sri. Narayanan Nair fell down and was taken to the Hospital where he succumbed to his injuries This complaint was quashed with the conclusion that sanction for prosecuting the third respondent (Sub Inspector) was essential as the act alleged was part of his official duties.

The challenge against the aforesaid order was also dismissed by the Supreme Court. Subsequently, an application was filed by both petitioners seeking sanction to prosecute the third respondent. However, by the impugned order, the Government refused to grant sanction. Aggrieved thereby, the petitioner filed the Writ Petition in question.

One of the main issues before the Bench was whether the order refusing sanction to prosecute the third respondent for the alleged offence could be interfered with.

The Bench further explained that the discretion to grant or not to grant sanction, vests absolutely with the sanctioning authority. If the discretion of the sanctioning authority is not affected by any extraneous considerations and the authority has applied its mind independently to arrive at the conclusion, then the Court ought not to interfere with an order granting or refusing sanction.

The Bench also added, “The purpose of sanction itself being to insulate a public servant from frivolous prosecutions, the said process would become a dead letter, if the orders of the sanctioning authority are interfered with, without any rhyme or reason.”

Considering the fact that the offence was committed while acting in the discharge of official duties, the Bench held that the sanctioning authority's order, either granting sanction or refusing sanction, should not be generally interfered with in the exercise of the power of judicial review.

The Bench also took into notice of the fact that the sanctioning authority had considered the report forwarded by the State Police Chief along with other documents and came to the conclusion that the death of the petitioner's brother was due to a heart attack as revealed from the post-mortem report and that the incident alleged, occurred when the third respondent waved his lathi for dispersing the crowd to maintain law and order.

It was further noted that the impugned order also stated in no uncertain terms that, as the police officer was acting in the discharge of his official duties, the request of the petitioner for prosecuting him was declined. However, in the impugned order, the authority had referred to a Crime Case which was not the crime, for which sanction was sought for by the petitioner. It was clarified in the Home Department’s counter affidavit that the crime case mentioned in the impugned order was a clerical mistake and sanction was sought for the private complaint.

The High Court also noticed that a prosecution is pending against the third respondent for the alleged incident of assault of the deceased on the same day. The said case is now pending before the Judicial First Class Magistrate's Court.

“Apart from there being no material to justify the contentions put forth by the petitioner regarding the omissions or the delay in conducting post-mortem or even the difference in the nature of the incident, they are not, by themselves, sufficient enough to warrant an interference with the impugned order refusing sanction”, the Bench said.

Thus, dismissing the petition, the Bench held, “The order refusing sanction to prosecute the third respondent in the private complaint that was filed as C.C. No.197/2011 on the files of Judicial First Class Magistrate’s Court, Kunnamkulam, therefore does not warrant any interference in exercise of the powers under Article 226 of the Constitution of India.”

Respondents: Public Prosecutor C K Suresh, Advocates B.G.Harindranath, S.Rajeev, Maria Paul, Thomas J Anakkallunkal, Nirmal Cheriyan Varghese, Abishek Johny, Ayaraman S., V.Vinay, M.S.Aneer, Anilkumar C.R., Sarath K.P., Prerith Philip Joseph, K.S.Kiran Krishnan