The Vigilance (E) Department, Government of Kerala, via Circular No: VIG-E3/145/2021-VIG dated 29/07/2021, clarified the procedural requirements for proving a prosecution sanction. Drawing from a catena of judgments, including Md. Iqbal Ahmed v. State of AP [1979 AIR 677] and State of Rajasthan v. Dr. A. K. Dutta [AIR 1981 SC 20], the position is as follows:
1. Exemption from Personal Evidence of the Sanctioning Authority
If a sanction is accorded by the competent authority through a speaking order that details the facts of the offence and the grounds of satisfaction, the prosecution is not required to summon the sanctioning, signing, or authenticating officer to provide personal evidence.
The validity of the order can be established by producing the original sanction and examining a person conversant with the signature of the authority.
A sanction order is an official act. Under Section 114(e) of the Indian Evidence Act (now Section 119 of the Bharatiya Sakshya Adhiniyam, 2023), the Court may presume that judicial and official acts have been regularly performed.
2. Status as a Public Document
A sanction order is a public document within the meaning of Section 74 of the Evidence Act (now Section 74 of the BSA).
It may be proved simply upon its production or by adducing evidence that all relevant facts were placed before the authority and that a formal satisfaction was arrived at.
3. Admission Under Procedural Law
Under Section 294 of the CrPC (now Section 330 of the BNSS), if the genuineness of the sanction order is not specifically disputed by the defence, it can be marked and admitted into evidence without the need to formally prove the signature of the authority.
4. Limitations and Defence Challenges
The necessity of summoning the sanctioning authority depends on the nature of the objection raised by the defence:
There is no need for the prosecution to summon the authority if the order is “speaking” (reasoned) and reflects an application of mind.
If the defence challenges the sanction on grounds of incompetence of the authority or non-application of mind, the Trial Court retains the power under Section 311 of the CrPC (now Section 348 of the BNSS) to summon the sanctioning, signing, or authenticating authority to clarify these specific issues.
