Memorandum No. 2572/Cts.C/80-3, Home (Courts-C) Dept., dated 3-10-1980
Proof
of sanction for prosecution under Section 6 of Prevention of Corruption Act,
1947 – sanctioning authority need not be examined as witness; file-conversant
officer may prove sanction order – clarification – Reg.
It has been brought to the notice of Government that in cases filed before the Court of Special Judge for S.P.E. and A.C.B cases, the Counsel for the accused are insisting upon cross-examining the authorities, which accorded the sanction for prosecution, and the Courts are issuing summons to the sanctioning authorities. In such case, the Public Prosecutors are also agreeing for such requests. The Government have examined the question as to whether it is necessary for the prosecution to examine as a witness, the authority which has accorded sanction under Section 6 of the Prevention of Corruption Act, 1947 to prove the order of sanction. There is no requirement in Law that in order to prove the document by which sanction was accorded, the authority that passed that order alone should figure as witness. The view taken by the Supreme Court in AIR 1954 SC 637 is as follows:
"The burden of proving that the requisite sanction has been obtained rests on the prosecution, and such burden included proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts might appear on the face of the sanction or might be proved by extraneous evidence".
This position of Law has been restated by the Supreme Court in AIR 1973 SC 2131 as follows:
"So far as this aspect of the matter is concerned, we find that the position of law is that the burden of proof that the requisite sanction had been obtained rests upon the prosecution. Such burden includes proof that the sanctioning authority has given the sanction in reference to the facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after these facts had been placed before the sanctioning authority".
The views of the Courts in the following rulings accord with the principles stated above (vide AIR 1974 CAL 318; AIR 1955 PUN 65; AIR 1958 SC 148 and AIR 1972 MP 151).
In none of the above cases the
sanctioning authority has been examined in order to prove the order according
to sanction for prosecution. The above decisions show that in order to prove
whether the necessary sanction under Section 6 of the said 1,947 Act, has been
accorded or not, it is not necessary to examine the authority which accorded
the sanction. All that is necessary for the prosecution to prove is that all
the facts constituting the offence are before the sanctioning authority and
that the sanctioning authority gave the sanction by applying its mind to the
facts before it. If the facts constituting the offence are specified in the
order to sanction and if it indicates that the sanction is accorded by the
sanctioning authority after examining the material before it, it is sufficient
proof to show that the sanctioning authority has accorded sanction by applying
its mind to those facts and in such cases it is not necessary for the
prosecution to prove by producing any independent evidence to show whether the
sanction was properly accorded or not. The question of proving sanction by
adducing independent evidence arises only in cases where the order of sanction
does not disclose facts constituting the offence and in such cases, in order to
prove that the facts constituting the offence are before the sanctioning
authority, it appears to be necessary that the sanctioning authority should be
examined as a witness. In view of the position stated above, there is no need
to examine the sanctioning authority as a witness to prove that necessary
sanction has been accorded validly. The concerned Assistant Secretary or Section
Officer conversant with the file and signature of the sanctioning authority may
be asked to attend the Court as a witness in order to prove the said order of
sanctioning prosecution. If the Court has been appraised of the legal position
aforesaid, it would not have inclined to comply with the request of the counsel
for accused for issue of summons to the sanctioning authority. If inspite of
such appraisal the Court chooses to issue summons, it is desirable for the
authority summoned to attend the Court in order to dispel any possible
suspicion from the mind of the Court which his non-appearance might create. The
Legal Adviser-cum-Special Public Prosecutors working in the S.P.E. and A.C.B.
Courts are requested to follow the above legal position in all cases of this
kind. All the District Collectors are requested to bring the above instructions
to the notice of all the Public Prosecutors/ Additional Public Prosecutors
working in the District.
