TMI Blog2007 (9) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... ore passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced. In this case, the High Court called for the original records. It had gone thereinto. It was found that except the report, no other record was made available before the sanctioning authority. The order of sanction also stated so. PW-8 also did not have the occasion to consider the records except the purported report. We are, therefore, of the opinion that the impugned judgment does not suffer from any legal infirmity although some observations made by the High Court, as noticed, do not lay down the correct legal position. The appeal is dismissed. - S. B. Sinha And Harjit Singh Bedi, JJ. JUDGMENT S. B. Sinha, J. 1. Interpretation and/ or application of the provisions of Section 19 of the Prevention of Corruption Act, 1988 (for short the Act ) fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal position: ...The additional reason for this view is because there is an entirely different aspect of the law which applies to cases of this category insofar as the courts have now held that if the amount involved is relatively small if it is a single isolated instance and there is no evidence of habitual bribe taking or assets dis-proportionate to the known sources of income, that the sanctioning authority will have to carefully evaluate as to whether the interest of justice will not be adequately served by taking disciplinary action rather than by burdening the courts with full fledged prosecution in a case of relatively trivial facts. These are all areas of deep seated evaluation which can only be truly justified through a proper perusal of the records. I am unable to accept the submission put forward by the learned Public Prosecutor that the reference to the receipt of the records is sufficient to get over the basic infirmity in the sanction order wherein the authority is quick to state that he acted only on the basis of the letter from the Inspector General of Police... 6. Mr. Sanjay Parikh, learned counsel appearing on behalf of the respondent, however, would s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. The said decision has been referred to by this Court, with approval, in Jaswant Singh v. State of Punjab [AIR 1958 SC 124]. 10. Yet again in Mohd. Iqbal Ahmed v. State of Andhra Pradesh [(1979) 4 SCC 172], this Court opined that the sanctioning authority cannot rely on the statutory presumption contained in Section 4 of the Prevention of Corruption Act, 1947 stating: In the first place there is no question of the presumption being available to the Sanctioning Authority b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that public servant is to be prosecuted or not. Since the section clearly prohibits the courts from taking cognizance of the offences specified therein, it envisages that the Central or the State Government or the other authority has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction. [See also State of T.N. v. M.M. Rajendran, (1998) 9 SCC 268] 13. Our attention, however, was drawn to a recent decision of this Court in Prakash Singh Badal and Another v. State of Punjab and Others [(2007) 1 SCC 1] by Mr. Hegde to contend that having regard to Sub-sections (3) and (4) of Section 19 of the Act, only because an order of sanction contains certain irregularities, the court would not set aside an order of conviction. In Prakash Singh Badal (supra), the question which arose for consideration before this Court was as to whether an order of sanction is required to be passed in terms of Section 197 of the Code of Criminal P ..... 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