Bombay High Court Considers Challenge to Sanction Order Under Section 197 CrPC – Petitioner Alleges Improper Review of Earlier Refusal. Alleged Lack of Fresh Material and Improper Reconsideration of Evidence Previously Rejected.

Criminal writ petition under Article 226 of the Constitution of India challenging an administrative order granting sanction for prosecution

Quashing of the Governor's order dated 4th February 2016 granting sanction under Section 197 of the Code of Criminal Procedure, 1973

Petitioner contended that the sanction order was an impermissible review of an earlier refusal dated 17th December 2013, made without fresh primary material and based on extraneous considerations

Erstwhile Governor refused sanction on 17th December 2013; CBI's application under Section 169 CrPC to delete petitioner's name rejected by trial court on 18th January 2014; CBI's Criminal Revision Application No.136 of 2014 dismissed by High Court on 19th November 2014; petitioner's Special Leave Petition No.5636 of 2015 pending before Supreme Court

Whether a writ petition under Article 226 of the Constitution is maintainable to challenge a grant of sanction under Section 197 CrPC Whether the Governor could review its earlier refusal to grant sanction based on fresh material, and what constitutes such fresh material Whether the impugned sanction order was passed without jurisdiction or proper application of mind

Petitioner argued that review of refusal requires discovery of clinching new/fresh primary material capable of converting into evidence, and material already considered cannot be reconsidered; the Commission report and court order were not admissible evidence and could not form fresh material; the sanction order was arbitrary and passed for extraneous considerations Respondent argued that writ petition not maintainable against grant of sanction except on limited grounds of jurisdiction or lack of reasons; grant of sanction stands on different footing from refusal; review permissible on fresh material and the Commission report and court order constituted such fresh material; petition meritless

The Petitioner by filing this petition under Article 226 of the Constitution of India is challenging the order dated 4th February 2016 passed by the Hon'ble Governor of Maharashtra, thereby granting sanction under section 197 of the Code of Criminal Procedure, 1973 for launching prosecution against the Petitioner for the offence punishable under sections 120B and 420 of the Indian Penal Code, 1860. It is submitted that by an order dated 17th December 2013, the erstwhile Hon'ble Governor had refused to accord sanction after considering the material and by proper application of mind. Mr. Desai, the learned Senior Counsel appearing for the Petitioner submitted that a review of an earlier order refusing to grant sanction could be undertaken with extreme caution and only if clinching new/fresh primary material, which is capable of converting into evidence, had been discovered by the investigating agency in the course of its investigation, subsequent to the sanction refusal order, indicating commission of the offence. Mr. Singh, the learned ASG appearing on behalf of the Respondent-State as well as the Respondent-CBI contested the petition very vehemently. He submitted that by this petition, the Petitioner is challenging the order of the Hon'ble Governor to grant sanction for the prosecution against the Petitioner. This issue can be raised in the trial and at this stage, petition under Article 226 of the Constitution of India is not maintainable. Mr. Singh submitted that the administrative order refusing to grant sanction can be reviewed in the event fresh material is brought before the sanctioning authority. In the present case, fresh material was brought before the Hon'ble Governor in the form of extract of Justice J. A. Patil Commission's Report and the order of the learned Single Judge of this Court in Criminal Revision Application No. 136 of 2014, which were not placed before the erstwhile Governor.

On 19th April 2013, Justice J.A.Patil Inquiry Commission Report submitted. On 19th August 2013, CBI forwarded proposal for sanction under section 197 CrPC. On 17th December 2013, erstwhile Governor refused sanction. On 20th December 2013, Commission report tabled in legislative assembly. On 15th January 2014, CBI applied under section 169 CrPC to delete petitioner's name; rejected on 18th January 2014. On 25th May 2014, CBI filed Criminal Revision Application No.136 of 2014; dismissed on 19th November 2014. On 27th March 2014, CBI filed supplementary charge-sheet. On 19th June 2016, CBI filed second supplementary charge-sheet stating investigation complete. Petitioner filed Special Leave Petition No.5636 of 2015 challenging dismissal of revision; pending before Supreme Court. In October 2014, BJP formed government in Maharashtra. On 8th October 2015, CBI sent second sanction proposal. On 4th November 2016, Governor granted sanction. Petitioner filed instant writ petition challenging the sanction order.

• Code of Criminal Procedure, 1973: 197, 169, 173
• Indian Penal Code, 1860: 120B, 420
• Prevention of Corruption Act, 1988: 19
• Constitution of India: 226, 361
• Delhi Special Police Establishment Act, 1946: