Munawara Sultana vs State Of J&K & Others

Rajnesh Oswal, J

1) The prayer made in the present petition is for directing the respondent No.1 to forward the case for grant of sanction to the respondent No.5, if not already sent, and further respondent No.5 be directed to grant sanction for prosecution of the accused forthwith.

2) The respondent No.4 has filed the response stating therein that the investigation has been closed as challan against some officials of 4th Bn. but as the AFSPA is in vogue in the State of J&K and the sanction for launching prosecution against the officials is mandatory, as such, the case has been submitted to the Home Department for taking up the matter with the Ministry of Defence, Government of India for accord of sanction for launching the prosecution against the accused persons. It is further stated that the Case Diary was submitted several times for accord of sanction to higher authorities and was received back with the observations “whether the BSF personnel have superannuated or still in service” and in order to respond to the said observation, the matter has been taken up with the concerned authorities.

3) Mr. Tufail, learned counsel for the petitioner, has submitted that the present petition be disposed of with a liberty to the petitioner to assail the order in the event sanction is refused.

4) Per contra, Ms. Rekha Wangnoo, GA, appearing vice Mr. Mohsin Qadiri, Sr. AAG, vehemently argued that no direction can be issued to the respondent No.5 for grant of sanction as it is for the respondent No.5 to grant or refuse sanction.

5) After hearing learned counsel for the parties, this Court is of the considered view that no direction can be issued to the respondent No.5 to grant sanction to prosecute the accused persons and it is the sole prerogative of respondent No.5 to grant or refuse the sanction. Any direction by this court would amount to interference in the decision to be arrived at by the respondent No.5 on the basis of record placed before him.

The judgment of Privy Council in Gokulchand Dwarka Das Morarka vs. King (AIR 1948 PC 82) is also relevant in this regard. Further in Mansukhlal Vithaldas Chauhan v. State of Gujarat, (1997) 7 SCC 622, Apex Court has held as under:

The High Court put the Secretary in a piquant situation. While the Act gave him the discretion to sanction or not to sanction the prosecution of the appellant, the judgment gave him no choice except to sanction the prosecution as any other decision would have exposed him to an action in contempt for not obeying the mandamus issued by the High Court. The High Court assumed the role of the sanctioning authority, considered the whole matter, formed an opinion that it was a fit case in which sanction should be granted and because it itself could not grant sanction under Section 6 of the Act, it directed the Secretary to sanction the prosecution so that the sanction order may be treated to be an order passed by the Secretary and not that of the High Court. This is a classic case where a brand name is changed to give a new colour to the package without changing the contents thereof. In these circumstances, the sanction order cannot but be held to be wholly erroneous having been passed mechanically at the instance of the High Court.

6) In view of the above, the present petition is found to be misconceived. The same is, accordingly, dismissed.