[Cites 19, Cited by 0]
Allahabad High Court
Surendar Singh Ex Army No 2991758 Y vs Central Bureau Of Investigation Lko. on 2 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
APPLICATION U/s 482 No. - 1424 of 2026
Surendar Singh Ex Army No 2991758 Y
..Applicant(s)
Versus
Central Bureau of Investigation Lko.
..Opposite Party(s)
Counsel for Applicant(s)
:
Surya Narayan Singh, Ajit Singh, Preeti Singh
Counsel for Opposite Party(s)
:
Aakash Prasad,
Court No. - 14
HON'BLE SUBHASH VIDYARTHI, J.
1. Shri Surya Narayan Singh Gaherwar, the learned counsel for the petitioner and Shri Aakash Prasad, the learned counsel for the respondent-CBI.
2. By means of the instant petition filed under Section 482 Cr.P.C., the petitioner has challenged the validity of an order dated 11.05.2016, whereby sanction was granted for his prosecution. The petitioner has also sought quashing of the charge-sheet dated 23.05.2016 submitted in furtherance of RC No.0006/2015/A/0003 under Section 120-B read with Sections 409, 420, 468, 471, 460, 477, 201 IPC, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 65 and 66 of Information Technology Act.
3. The learned counsel for the respondent- CBI has raised a preliminary objection that the validity of an order granting prosecution sanction cannot be challenged at this stage and validity of the same can only be examined during the trial. He has placed reliance on a judgment of the Honble Supreme Court in the case of Parkash Singh Badal v. State of Punjab & Others: (2007) 1 SCC 1, wherein the Honble Supreme Court has held that the absence of sanction can be agitated at the threshold but the plea of invalidity of sanction on account of non-application of mind can only be raised during trial. The ratio laid down in Parkash Singh Badal v. State of Punjab & Others (supra) has been followed in Dinesh Kumar v. Chairman Airport Authority of India & Others: (2012) 1 SCC 532, in Director CBI & Others versus Ashok Kumar Aswal & Others (2015) 16 SCC 163 and in State versus G. Eashwaran; AIR 2015 SC 1848.
4. The learned counsel for the respondent CBI has also submitted that the prosecution sanction order was issued on 11.05.2016, whereas the present petition challenging its validity has been filed on 30.01.2026, and there is no explanation for the delay of almost a decade in challenging the validity of the prosecution sanction.
5. In reply to the aforesaid preliminary objection, the learned counsel for the petitioner has placed reliance on a judgment of the Hon'ble Supreme Court in the case of State Inspector of Police v. Surya Sankaran Karri: (2006) 7 SCC 172, wherein the Hon'ble Supreme Court held that when a sanction is granted by a person not authorized in law, the same being without jurisdiction, would be a nullity. However, it is relevant to note that the aforesaid observation was made by the Honble Supreme Court in an appeal challenging the judgment and order passed by the High Court in a criminal appeal against a judgment of conviction and sentence passed by the trial court. The question of illegality of prosecution sanction order was neither raised nor examined before the trial Court at the inception, before commencement of the trial or at any time during the trial and this question was also neither raised nor decided by the High Court and the question was examined by the Honble Supreme Court while deciding the appeal against an order of the High Court setting aside the order of conviction. The Honble Supreme Court criticized the trial court for having failed to take into consideration that the sanction had been accorded by a Senior Divisional Operations Manager, who was examined as PW-37 and who had accepted in his evidence that under the rules he was not the competent authority to remove the accused from service. However, he stated that he had been delegated with the power of removing the Chief Commercial Inspector of the Headquarters of the South Eastern Railway but the purported delegation of power had never seen the light of the day. No reliance could have been placed to conclude that the said witness was authorized to accord sanction.
6. In the case of Parkash Singh Badal v. State of Punjab & Others: (2007) 1 SCC 1, the Honble Supreme Court has held as follows: -
48.The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.
7. In Dinesh Kumar v. Airport Authority of India: (2012) 1 SCC 532, the Honble Supreme Court followed the aforesaid law laid down in Parkash Singh Badal (supra) and held that: -
9.While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court inParkash Singh Badalexpressed in no uncertain terms that the question of absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, inParkash Singh Badal, this Court referred to invalidity of sanction on account of non-application of mind.
10.In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of minda category carved out by this Court inParkash Singh Badal, the challenge to which can always be raised in the course of trial.
13.In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the trial court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court inParkash Singh Badaland not unjustified.
8. In CBI v. Ashok Kumar Aggarwal: (2014) 14 SCC 295, the Honble Supreme Court followed the decisions in Parkash Singh Badal and Dinesh Kumar (supra) and categorically held that: -
59.Undoubtedly, the stage of examining the validity of sanction is during thetrialand we do not propose to say that the validity should be examined during the stage of inquiry or at pre-trial stage.
9. In Surya Sankaran Karri (supra), the Honble Supreme Court relied upon the judgment in State of Karnataka v. C. Nagrajswami, (2005) 8 SCC 370 wherein the Honble Supreme Court has held that: -
14.Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefor or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service.
15.Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regards sanction may be determined at an early stage. (SeeAshok Sahuv.Gokul Saikia[1990 Supp SCC 41] andBirendra K. Singhv.State of Bihar[(2000) 8 SCC 498].)
This judgment does not take into consideration the precedents in the cases of Parkash Singh Badal, Dinesh Kumar and Ashok Kumar Aggarwal (supra) and it does not mandate that in all cases, it is mandatory to examine the validity of the prosecution sanction order at the inception of trial.
10. Moreover, in the present case, the prosecution sanction was granted on 11.05.2016, whereas the present petition challenging its validity has been filed on 30.01.2026 and there is no explanation for the delay of almost a decade in challenging the validity of the prosecution sanction. The trial is proceeding and the officer who had granted prosecution sanction has already been examined as PW-1.
11. In view of the law laid down by the Honble Supreme Court in Prakash Singh Badal (supra), it would not be appropriate for this Court to examine the validity of the prosecution sanction order at this stage, more so on a petition filed after a delay of 10 years from the date of the prosecution sanction order, when examination of prosecution witnesses is already in progress.
12. Accordingly, this Court declines to examine the validity of the prosecution sanction order at this stage and it is left open for the petitioner to raise the plea of validity of the prosecution sanction order before the trial court at the appropriate stage.
13. The present petition is dismissed with the aforesaid observations.
(Subhash Vidyarthi,J.)
April 02, 2026
-Amit K-
