Accused can challenge validity of prosecution sanction during trial: High Court

06/08/2026

SRINAGAR, Aug 5: The High Court of Jammu & Kashmir and Ladakh has held that an accused retains the right to challenge the validity of a prosecution sanction during the course of trial and that observations made by a trial court at an earlier stage cannot curtail that right.
Justice Shahzad Azeem passed the order while disposing of a petition filed by Ashiq Hussain Mir, who had challenged an order dated October 17, 2023, of the Additional Special Judge, Anti-Corruption Bureau, Srinagar, rejecting his plea regarding the validity of sanction in a corruption case arising out of ACB FIR No. 24/2019. The petitioner was represented by Mr. Z.A. Qureshi, Senior Advocate, assisted by Mr. Anurag Verma, Advocate, while the Union Territory was represented by Mr. Mohsin S. Qadri, Senior Additional Advocate General, assisted by Ms. Maha Majeed, Assisting Counsel, and Mr. Haris Khan, Advocate.
During the hearing, the petitioner's counsel confined the challenge to the contention that the trial court had not examined whether the sanctioning authority had considered the relevant material before granting sanction for prosecution. It was argued that the observations recorded by the trial court could prejudice the petitioner's right to question the sanction during the trial.
The respondents opposed the plea, contending that the issue raised by the petitioner involved disputed questions of fact which could appropriately be examined during the trial and that the petition itself was not maintainable.
Referring to the Supreme Court judgment in State vs. G. Eswaran (AIR 2025 SC 1848), Justice Azeem observed that the validity of a sanction order can always be examined during the course of trial. The court held that an accused is entitled to raise all pleas relating to the sanction, including whether the competent authority had considered the relevant material before granting approval for prosecution.
The High Court further observed that merely because the trial court had made certain observations while rejecting the petitioner's plea, those observations could not deprive the accused of his vested right to challenge the sanction during the trial. Invoking the equitable principle Actus curiae neminem gravabit-an act of the court shall prejudice no one-the court held that the impugned order could not be construed as an obstacle to raising the issue at the appropriate stage.
Disposing of the petition, the High Court directed that the petitioner shall remain free to challenge the validity of the sanction order during the trial. It also clarified that the observations made by the trial court in its October 17, 2023 order shall not bind or influence the trial court while independently examining the validity of the sanction if the issue is raised during the proceedings.

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