Competent Authority Can’t Refuse Prosecution Sanction Contrary To CVC Advice; Must Refer Disagreement To DoPT: Allahabad High Court

The Court upheld the sanction granted to an NHAI employee and dismissed his challenge to the sanction, charge-sheet, cognizance and summoning order in a corruption case.

The Court was hearing a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 challenging a charge-sheet for offences under the Prevention of Corruption Act, 1988 and the Bharatiya Nyaya Sanhita, 2023, the NHAI’s prosecution-sanction order and the Special Judge’s order taking cognizance and summoning the petitioner for trial.

A Bench of Justice Subhash Vidyarthi observed: “A bare perusal of the Office Memorandum dated 01.03.2019 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India, laying down guidelines for dealing with the disagreements between the disciplinary authority and CVC makes it manifest that in cases like the present one, were an authority other than the President is competent to sanction prosecution, and that authority does not propose to accord such sanction, it cannot refuse to grant sanction and it is required to report the case to the CVC and take further action after considering the CVC’s advice”.

The Bench added: If the CBI has sought sanction for prosecution and the CVC has recommended grant of sanction, and yet the competent authority proposes not to grant sanction, the case should be referred to the Department of Personal and Training, Government of India for final decision and the disciplinary authority does not have the authority to take a final decision declining to grant sanction for prosecution of an employee.”

Senior Advocate S.C. Mishra appeared for the petitioner. Advocate Aakash Prasad appeared for the CBI, while Advocate Samidha appeared for the NHAI.

Background

The prosecution arose from a complaint alleging that an NHAI official had demanded a bribe for processing a no-objection certificate for a fuel station. The CBI arranged a trap in which the official allegedly accepted part of the demanded amount. According to the CBI, the official stated that he had received the money on the petitioner’s behalf and was then made to place a controlled telephone call to him.

The CBI subsequently included the petitioner as an accused and sought sanction for his prosecution. Two internal communications within the NHAI expressed the view that sanction should not be granted because the material did not establish demand or acceptance of a bribe by the petitioner. After the CVC advised the NHAI to grant sanction, the competent authority reconsidered the matter and sanctioned the prosecution.

The petitioner contended that the competent authority had already refused sanction twice and could not review those decisions without fresh material. He also argued that the relied-upon conversation did not contain the word referring to money and did not establish a demand for a bribe.

The CBI maintained that the earlier communications were internal notes addressed to the NHAI’s Chief Vigilance Officer and were never communicated externally as orders. The NHAI stated that the CVC had advised it to grant sanction under the procedure prescribed by the DoPT’s Office Memoranda and that the sanction was thereafter granted upon reconsideration.

Court’s Observations

Internal Communications Were Not Orders Refusing Sanction

The Court relied on Sethi Auto Service Station v. DDA (2009), which held that departmental file notings merely express an officer’s viewpoint for internal consideration and become effective orders affecting rights only after approval by the final decision-making authority and communication to the person concerned. The Court noted that this principle was reiterated in Vivek Batra v. Union of India (2017).

The Court also referred to Mahant Prasad Ram Tripathi v. State (2022), which held that an internal communication between departmental authorities and the CVC could not be treated as an order refusing prosecution sanction and that a separate order had to be passed and communicated to the CBI.

Applying those principles, the Court held that the two NHAI communications were addressed internally to its Chief Vigilance Officer, were not issued on the NHAI’s official letterhead, carried neither a letter number nor an official seal and had not been communicated to the CBI or anyone outside the NHAI.

The Court observed: “The communications dated 06.02.2025 and 20.02.2025 sent by Member (Admn) and Disciplinary Authority to the Chief Vigilance Officer, NHAI are not orders declining the request for sanctioning prosecution of the petitioner and these are merely internal communications from the administrative division to the Chief Vigilance Officer of NHAI.”

The Court consequently rejected the petitioner’s contention that the competent authority had previously passed two orders refusing sanction.

Disagreement With CVC Advice Must Be Referred To DoPT

The Court examined the Office Memorandum issued by the DoPT on March 1, 2019 to regulate disagreements between disciplinary authorities and the CVC concerning prosecution sanction.

The Court held that where an authority other than the President was competent to sanction prosecution but did not propose to grant sanction, it was required to report the case to the CVC and act after considering the Commission’s advice under Section 8(1)(g) of the Central Vigilance Commission Act, 2003.

The Court further held that if the CBI had sought sanction and the CVC recommended granting it, but the competent authority still proposed refusal, the matter had to be referred to the DoPT for a final decision. The Court concluded that the NHAI’s competent authority did not possess the power to take a final decision refusing sanction in those circumstances.

CVC Advice Is Advisory But A Valuable Input

The Court relied on Vijay Rajmohan v. CBI (2023), in which the Supreme Court held that CVC advice was advisory but constituted a valuable input in the appointing authority’s decision-making process. The precedent required the appointing authority to independently apply its mind while taking the final decision.

The Court held that the NHAI’s competent authority had considered and accepted the CVC’s advice while independently deciding to grant sanction. The Court observed: “Therefore, the impugned sanction order passed after relying upon the opinion of CVC does not suffer from any illegality as per the law laid down in the case of Vijay Rajmohan v. CBI (supra).”

The Court distinguished Giri Raj Sharma v. State of Uttar Pradesh (2021), which held that a sanctioning authority could not review an earlier order refusing sanction. It held that the precedent did not apply because the earlier NHAI communications were not final orders refusing sanction and the impugned sanction was the only operative order on the issue.

Sanction Was Based On A Broader Body Of Material

The Court rejected the contention that the sanction was granted on the same material considered in the two earlier internal communications. It noted that those communications considered only the post-trap memorandum and the CBI’s report.

The Court stated that the sanction order was passed after examining the complaint, verification report, pre-trap and post-trap memoranda, statements recorded under Section 180 BNSS and the overall facts and circumstances. It therefore rejected the petitioner’s contention that the sanction was based on the same limited material considered in the two internal communications.

No Failure Of Justice Shown At Threshold

The Court referred to Parkash Singh Badal v. State of Punjab (2007), which distinguished between absence of sanction and an allegation that sanction was invalid because of non-application of mind. The Court noted that while absence of sanction could be raised at the threshold, alleged invalidity was ordinarily a question to be raised during trial.

The Court also relied on State of Bihar v. Rajmangal Ram (2014) and State of Madhya Pradesh v. Virender Kumar Tripathi (2009) for the proposition that criminal proceedings should not be interrupted midway because of an error, omission or irregularity in sanction unless it had occasioned a failure of justice.

The Court held that the petitioner had not shown that the sanction order had caused any failure of justice. It distinguished State of Karnataka v. Ameerjan (2007), observing that the precedent concerned an appeal arising after conviction, whereas the petitioner sought quashing of the sanction and the entire proceedings at the initial stage without facing trial.

Material Disclosed A Prima Facie Case

The Court rejected the petitioner’s argument that the absence of the word referring to money from the conversation prevented cognizance. It held that at the cognizance and summoning stage, the trial court was required only to determine whether the allegations and supporting material disclosed a prima facie case requiring adjudication, rather than whether the material was sufficient to secure conviction.

The Court observed: “At the stage of taking cognizance and summoning an accused person, the trial Court is merely required to satisfy itself that the prosecution allegations and the material produced in support thereof makes out a prima facie case, which warrants to be adjudicated in trial.”

The Court held that a collective reading of the telephone conversations and the remaining material justified cognizance and summoning. It found no error or illegality in the Special Judge’s order requiring the petitioner to face trial.

Revocation Of Suspension Did Not Affect Criminal Prosecution

The Court relied on State (NCT of Delhi) v. Ajay Kumar Tyagi (2012), which held that exoneration in departmental proceedings did not automatically result in quashing of a criminal prosecution because the two proceedings were conducted by different entities and were not part of the same hierarchy.

The Court held that the criminal prosecution was not founded solely upon a finding in departmental proceedings. It therefore concluded that revocation of the petitioner’s suspension on the basis of an internal administrative communication did not affect the validity of the CBI prosecution after sanction had been granted upon the CVC’s advice.

Conclusion

The Court held that the petitioner had failed to establish any error or illegality in the NHAI’s order sanctioning his prosecution or in the Special Judge’s order taking cognizance and summoning him for trial. It dismissed the petition.

The Court clarified that its observations would not affect the trial court’s decision on the merits of the case.

Cause Title: Jay Pratap Singh Chauhan v. CBI Through Superintendent of Police and Head of Branch, Lucknow and Another (Neutral Citation: 2026:AHC-LKO:72445)

Appearances

Petitioner: Senior Advocate S.C. Mishra; Advocates Nadeem Murtaza, Bhupendra Singh Bisht, Manu Gupta, Yash Vardhan Gupta and Saurabh Upadhyay

Respondents: Advocates Aakash Prasad, Himanshu Singh and Anshul Verma; Advocate Samidha

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