Competent authority can’t be directed by court to grant prosecution sanction: HC

“The discretionary powers of a competent authority to decide for or against grant of sanction for prosecution cannot be usurped or taken away while exercising power of judicial review,” the bench of chief justice Sheel Nagu and justice Anil Kshetarpal observed

The Punjab and Haryana high court (HC) has asserted that a competent authority can’t be forced by a court through judicial order to grant or refuse prosecution sanction in a complaint against a public servant.

The plea was from an Ambala resident, Deepak Sandhu, who had approached the court seeking grant of prosecution sanction against a former Ambala chief judicial magistrate. (Getty Images/iStockphoto)

“The discretionary powers of a competent authority to decide for or against grant of sanction for prosecution cannot be usurped or taken away while exercising power of judicial review,” the bench of chief justice Sheel Nagu and justice Anil Kshetarpal observed.

The plea was from an Ambala resident, Deepak Sandhu, who had approached the court seeking grant of prosecution sanction against a former Ambala chief judicial magistrate (CJM).

The petitioner had filed a complaint before Ambala district court alleging the commission of certain offences under the Drugs and Cosmetics Act, 1940, and Prevention of Corruption Act,1988, against a private person. Subsequently, allegations were also levelled against the CJM in question. In 2023, a jurisdictional judicial officer transferred the case to CJM and he dealt with the complaint in which allegations were made against him also and dismissed the same terming it “not maintainable”. This order was challenged by the petitioner before the sessions court, which set aside the order and transferred the case again to a judicial magistrate. In 2024, the magistrate while hearing this case passed an order that in the absence of any sanction for the prosecution of a serving judicial officer (the CJM) maintainability of the complaint needed to be decided first. It was in this background that the complainant petitioner had approached the high court on the judicial side seeking directions that prosecution sanction be granted.

The court made it clear that the prayer can’t be accepted. “What follows from the law laid down by the apex court is that as regards the issue of granting or refusing to grant a sanction for prosecution, the domain of discretion available to the competent authority cannot be foreclosed by issuing a writ of mandamus or direction by a superior court, especially in the limited discretionary and plenary jurisdiction under article 226 of the Constitution of India, which has its restrictions and self-imposed inhibitions,” the bench observed.

The court further said the HC on the administrative side has already dealt with the issue and has not found the matter “serious enough” to proceed further and dismissed the petition.

The court referred to a similar case from Gujarat reported in 1997 in which the Supreme Court had quashed the Gujarat high court order directing a secretary-level officer to grant prosecution sanction in the case of an employee. The competent authority was left with no choice but to grant prosecution sanction by giving directions by Gujarat high court as any other decision would have exposed him to an action in contempt for not obeying the mandamus issued by the high court, the SC had observed adding that the discretion of not to grant prosecution sanction bestowed upon the competent authority was taken away by the high court.