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Challenge to sanction for prosecution can be raised during trial only: HC 

Rejects forester’s petition against FIR filed on corruption charges in 2007

SRINAGAR, OCT 25: The High Court of J&K and Ladakh has held that challenge to sanction for prosecution on other grounds such as lack of competence to grant it, non-application of mind, etc. can be raised only during the trial.

A bench of Justice Rajnesh Oswal also observed that the authority to sanction prosecution against an employee is not supposed to act as a “post office”.

“It is expected to apply its mind on the allegations levelled against the delinquent employee and is not bound by the findings of the Investigating Officer,” the court said while rejecting a plea by a then Forester—Farooq Ahmad Lone, seeking quashing of the FIR No.42/2007 of Police Station, Vigilance Organization, Kashmir and the Government Order No.22-GAD(Vig.) of 2014 dated 08.08.2014, whereby the sanction to prosecute him and other official was granted by the authorities.

According to the government, the case (FIR No.42/2007) under section 5(1)(d), 5(2) of PC Act r/w 120-B, 467, 471 of RPC had been registered in Police Station VOK on 17 July 2007 on the allegations that a criminal conspiracy was hatched by Ghulam Mohiuddin Bhat (Forester) & Proprietor& Manager of a Private Timber Sale Depot and Joinery Mill namely M/S Three Star Enterprises Handwara & the conspiracy was later joined by Syed Rafique (Range Officer) Rajwar, Farooq Ahmad Lone (Forester) & Proprietor of Bandsaw Mill Gh. Rasool Wani.

Investigation of the case has been finalized as proved u/s 5(2) of PC Act r/w 120-B, 467, 471, 201 of RPC, 6(ee) of J&K Forest Act against six accused persons including Lone and the case was submitted to Government for grant of sanction for launching prosecution against two in-service accused persons including Lone as envisaged u/s 6 of the PC Act, it said.

The court also held that while the issue of absence of sanction can be raised at the threshold but the challenge to sanction on other grounds such as lack of competence to grant sanction, non-application of mind etc. can be raised only during the trial.  “Whatever the defence the petitioner (Lone) has, he can raise during the trial in the event charges are framed against him,” the court said, adding, “The disputed questions of facts cannot be considered while adjudicating a writ petition challenging the validity of FIR and sanction accorded for the prosecution of the petitioner. In view of the above, there is no force in the contention of the petitioner, as such the same is, accordingly, rejected.”  

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