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Crl.AppealNo.2295-2296of2010

Crl.AppealNo.2295-2296of2010

Crl.A.Nos.2295-2296 of 2010 -108-discussed anything with the I.O about grantingsanction in the present case. However, the SpecialCourt (POTA) erroneously justified the granting ofsanction on the ground that the learned counsel for A-2 and A-4 before the Special Court (POTA), Mr. R.K.Shah, did not insist on examination of the internalnote and at no stage was such a request made inwriting.76. In the case of Mansukhlal Vithaldas Chauhan v.State of Gujarat 41 , it has been held by this Court asunder:“19. Since the validity of “sanction” dependson the applicability of mind by the sanctioningauthority to the facts of the case as also thematerial and evidence collected duringinvestigation, it necessarily follows that thesanctioning authority has to apply its ownindependent mind for the generation of genuinesatisfaction whether prosecution has to besanctioned or not. The mind of the sanctioningauthority should not be under pressure from anyquarter nor should any external force be acting41 (1997) 7 SCC 622

Crl.A.Nos.2295-2296 of 2010 -109-upon it to take a decision one way or theother. Since the discretion to grant or not togrant sanction vests absolutely in thesanctioning authority, its discretion should beshown to have not been affected by anyextraneous consideration. If it is shown thatthe sanctioning authority was unable to applyits independent mind for any reason whatsoeveror was under an obligation or compulsion orconstraint to grant the sanction, the orderwill be bad for the reason that the discretionof the authority “not to sanction” was takenaway and it was compelled to act mechanicallyto sanction the prosecution.”(emphasis laid by this Court)77. However, the present case does not show that thesanctioning authority had applied its mind to thesatisfaction as to whether the present case requiredgranting of sanction. The prosecution had failed toprove that the sanction was granted by the governmenteither on the basis of an informed decision or on thebasis of an independent analysis of fact onconsultation with the Investigating Officer. Thiswould go to show clear non-application of mind by theHome Minister in granting sanction. Therefore, the

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