SANCTION FOR PROSECUTION UNDER VARIOUS ACTS(Reported in 2015 (2) MLJ (Crl) Page 45)- R. KARUNANIDHI, Advocate
(Madurai Bench of Madras High Court)
This Essay’s endeavor is to discuss sanction contained in the various legislations and verdicts of the different courts in India with regard to the Government Servants. Before going to discuss the legislation fundamentally we need to see whether this sanction is discriminative or not. Article 14 of the Constitution of India does not render Section 197 of Criminal Procedure Code, ultra vires as the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties, while ordinary citizens not so engaged do not require this safeguard AIR 1956 SC 44. Section 197(1) does not create any arbitrary discrimination; on the other hand, it makes a reasonable differentia i.e., public servants not removable from their respective offices save by or with the sanction of a State Government or the Central Government, are put in one class and the public servants who are removable from their respective offices even without such sanction are put in another class. The reason for this classification quite obviously is that the public servants who hold responsible positions and who discharge important functions shall alone be afforded certain amount of protection from the harassment resulting from vexatious prosecutions, while those who discharge comparatively unimportant functions or hold less responsible positions would not be accorded such protection. Such a classification can in no sense be regarded as arbitrary or unreasonable and the section is not, therefore, inconsistent with article 14 of the Constitution.
No sanction required to prosecute a Retired Public servant
The Hon’ble Supreme Court held in State of Punjab –Vs-Labh Singh (2015(1) MLJ (Crl) 112))No sanction required to prosecute a Retired Public servant under Prevention of Corruption Act, but it is necessary to prosecute him under Penal Code. The Supreme Court said that as the point on law is clear that sanction to prosecute the public servant for the offences under the POC Act is not required if the public servant had already retired on the date of cognizance by the court. However the sanction is required for offences under IPC. Unlike section 19 of the POC Act, the protection under section 197 of Cr.P.C. is available to the concerned public servant even after retirement.
No form of sanction but application of mind necessary :
Under Section 197(1), no set form of sanction is necessary8. In a case under Section 6 of the Prevention of Corruption Act, it is stated by the Supreme Court that it should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and, therefore, unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case9. As laid down by the Supreme Court, a public servant can be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. A judge neither acts nor purports to act as a Judge in receiving a bribe though the judgment which he delivers may be such an act; nor does a Government Medical Officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining though the examination itself may be such an act10. The acid test is as to whether the public servant can reasonably be inferred to have acted by virtue of his office. What is important is the quality of the act. The question whether an Offence was committed in the course of official duty or under colour of office depends on the facts of each case11. The Supreme Court held, where the accused, Minister of Electricity, Government of Kerala, is alleged to have supplied certain Units of electricity without the consent of the Government, that the alleged criminal conspiracy has direct nexus with discharge of his official duties and that as such sanction is required for his prosecution under Section 197 Cr.P.C12. The disciplinary proceedings against government servants are taken under Service rules framed by Government under Article 309 of Constitution. Besides, a public servant can also be prosecuted for bribery and corruption in a criminal court. With a view to expedite such trials, the prevention of Corruption act, 1947 (now replaced with P.C. Act) makes certain provisions. As it is in the interest of public that corruption be eradicated, so also it is in the public interest that honest public servants should be able to discharge their duties free from false, frivolous, and malicious accusations. PCA thus seeks to balance both objectives. One hand, it seeks to provide for certain safeguards against frivolous trials, other hand it seeks to provide for expeditious trial of corruption cases. One such safeguard contained in Section 17 of PCA is that before a public servant can be prosecuted for any specific offence13, sanction of State Government is necessary in case of a person who is employed in connection with the affairs of a state and is not removable from his office save by or with the sanction of the State Government Grant of sanction is only an administrative function. Facts collected during the course of investigation have to be brought before the sanctioning authority and the sanctioning authority has to consider the material. The grant of sanction being an administrative act, the need to provide an opportunity of hearing to the accused, does not arise14. Similar is in case of central Government. Explaining the provision Supreme Court has said that sanction of that competent authority alone is necessary which is competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motive. Further the authority, entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other material before according sanction. In Mohd. Iqbal Ahmed v. state of Andra pradesh15 SC has emphasised on two significant aspects of of sanction for prosecution. First, any case instituted without a proper sanction must fail as the entire proceedings are rendered void abinitio. Therefore the prosecution must prove that valid sanction has been granted by the sanctioning authority. Secondly, the sanctioning authority must be satisfied that a case for sanction has been made out constituting the offence. the sanctioning authority at the time of giving sanction must be aware of the facts constituting the offence and must apply its mind. The grant of sanction is not an idle formality. It is a sacrosanct act which affords protection to the Government Servants against frivolous prosecution. In State of Maharastra v. R.S. Nayak16 it was held that protection under Section 197 is available only when alleged act done by public servant is reasonably connected with discharge of his official duty17. For the interest of democratic government and its functioning, the Governor must act in such a case on his own. Difference between sanction under Section 195 and sanction under Sections 96 and 197: A court granting sanction under Section 195(1)(b) in connection with offences in a judicial proceeding in such court, acts in its judicial capacity in granting the sanction upon legal evidence, whereas the Government granting sanctions under Sections 196 and 197 acts purely in its executive capacity, and the sanction need not be based on legal evidence.
Prevention of Corruption Act, 1988
Under Section 19 of the Prevention of Corruption Act, 1988, it is necessary for the prosecuting authority to have the previous sanction of the appropriate administrative authority for launching prosecution against a public servant. For ready reference, the text of the Section is reproduced below:-
19(1) No court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction - (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his offence save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his offence, save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office.
Fresh sanction after re-investigation
A sanction for prosecution given on the basis of the material collect during an investigation will not be rendered void if the investigation was later found to be invalid. However, if the reinvestigation reveals any new facts, it is desirable that sanctioning authority should consider afresh whether the public servant should be prosecuted after taking into account all the facts revealed by fresh investigation. If the fresh investigation does not reveal any new facts and there is no change in the nature of the offence for which sanction for prosecution was accorded earlier, the previous sanction will hold good and it will not be necessary for the competent authority to grant a fresh sanction after valid reinvestigation (AIR 1962 Bombay 205).
According to the ruling of the Supreme Court in Nagpur City Corporation vs. Ram Chandra and other [SC 396 of 1980-SLR 1981 (2)], even where the accused public servant is acquitted and exonerated of an offence, such acquittal does not bar a departmental authority from holding or continuing disciplinary proceedings against the accused public servant.
Sanction not necessary for bribery :
It has been settled by the Privy Council that sanction under Section 197, is not necessary before a public servant could be prosecuted for an offence under Section 161, I.P.C. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to be within the scope of his official duty21. The test as to the necessity for sanction is whether the public servant, if challenged, can reasonably claim that what he does; he does in virtue of his office. A public servant charged with an offence under Section 120-B read with Section 161, I.P.C., cannot justify his act of receiving bribe as an act done by him by virtue of the office that he held22. However, it was held by Karnataka High Court that where the investigating officer had called an accused for interrogation and the accused alleged that the investigating officer had demanded money, the act complained of having been done while discharging official duties, this provision will apply23.
Section 6 of THE ARMED FORCES (SPECIAL POWERS) ACT, 1958.
Armed Forces (Special Powers) Act (AFSPA) : Act was passed on September 11, 1958 by the Parliament of India. Due to following reasons : 1. Failure of the administration and the local police to tackle local issues. 2. Maintenance of Peace and Tranquility. It gives Army officers legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government's judgment on why an area is found to be "disturbed" subject to judicial review. Enforced in Jammu and Kashmir in 1990, the law provides army officers legal immunity for their actions. The law also gives security forces the power to arrest people and search their homes without any warrant, as well as to use deadly force against people. Questions that arise, In Case of fake encounter of 17-year-old Tufail Mattoo, was killed by a tear gas canister which struck his head during a protest in Srinagar in June, 201033. Tear gas, rubber bullets and water cannon are used all over the world in situations where protests turn violent but in India, live ammunition seems to be the first and only line of defence. Even tear gas canisters are so poorly designed here that they lead to fatalities. Though the Army has arrested the soldiers responsible for the fake encounter, the only reason they had the nerve to commit such a heinous crime was because they were confident they would get away with it. The army officers involved in the kidnapping and murder of five Kashmiri civilians there continue to be at liberty despite being charge-sheeted by the CBI. The Ministry of Defence has refused to grant sanction for their prosecution and has taken the matter all the way to the Supreme Court in an effort to ensure its men do not face trial. Even a non-commissioned officer can shoot to kill based on themere suspicionthat it is necessary to do so to" maintain public order"34. Question that is pertinent is What was the message that went out as a result? Probably we need to think to get a proper answer. On 13th September 2010, Cabinet Committee on Security is set to decide on the J&K government's demand for partial withdrawal of the Armed Forces Special Powers Act. But still J&K is facing the problem till date. We at times wonder what could be done in order to avoid such things in future and Hope Peace return backs to Jammu & Kashmir. This is one such instance among the number of instances which is happening on day to day basic in different parts of our country. We must always remember and use the power given by the statute or Acts by our legislation judiciously in order to make this place a wonderful place in the world to live in.
Issue in Kashmir: Indian troops and agencies are killing innocent Kashmiri people with impunity .Killing of Villagers in fake encounter, teenager Tufail Ahmad Matoo was killed allegedly by police. The killings have again put Kashmir on boil and could trigger widespread protests across the Muslim majority region where rebel violence is waning but anti-Indian sentiment still runs deep32.
Protection to person acting under Act.—No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.
Tamil Nadu Panchayats Act, 1994
A. Mariappan Versus District Collector/Inspector of Panchayats, Virudhunagar & Another 2006 (2) MLJ(Crl) 1285
Para 6. While so, Section 230 of the Tamil Nadu Panchayats Act, 1994 in short act deals with sanction of prosecution. It reads as follows: 230. Sanction of prosecution (1) When the president or the executive authority or the chairman or vicechairman of a panchayat union council or district panchayat or the commissioner or the secretary or any member is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognisance of such offence except with the previous sanction of the Government. (2) When according previous sanction under subsection(1), it shall be open to the Government to direct by order that the president, executive authority, chairman, vicechairman or commissioner or the secretary as the case may be, shall not discharge his duties as such until the disposal of the case.” 7. Plain reading of the section clarifies that no Court shall take cognisance except with the previous sanction of the Government against the president or the executive authority or chairman or vice chairman of the Panchayat on accusation of criminal offence alleged to have been committed by him while action or purporting to act in discharging on their official capacity. 8. Sub section 2 of Section 230 of the Act clarifies that whenever a sanction under subsection (1) is accorded, it shall be open to the Government by an order to direct the president or the executive authority as the case may be not to discharge his duties until the disposal of the criminal case. 9. The core question in this Writ Petition is when a sanction can be granted by the authority under Section 230 of the Act and whether sanction is accorded. 10. The petitioner is challenging the impugned order. 11. The impugned order is issued under Section 230(2) of the Act discharging the petitioner from the pose of president and directing the vice president of the Panchayat to discharge the functions of the president. 12. Heard the learned counsel for the petitioner and the learned counsel for the Additional Government Pleader. 13. Point Admittedly, the District collector is the Inspector of Panchayats. Cahpter X of the Act deals with controlling authorities and Section 199 onwards deals with powers of inspecting officers including the Inspector. 14. Section 203 of the Act deals with emergency powers of Collectors, the Inspectors. 15. Section 204 of the Act authorises the Inspector to initiate action on violations. 16. Section 205 of the Act clarifies that the Inspector can remove the president either on his own or on a representation and the conditions for such removal are highlighted in the Section itself. 17. While so, Section 230 of the Act deals with sanction for prosecution against president for criminal offences. 18. Thus, the first respondent/the District Collector of Virudhunagar District, who is the Inspector of the Panthuvarapatti Panchayat is having powers as mentioned supra. But, while exercising his power under Section 230 of the Act, he has to follow the mandatory requirements as stated under Section 230 of the Act. If the first respondent is initiating action against the petitioner and invoking the provisions either under Section 203 or 204 or 205 of Act, it is a different case. 19. In the instant case, the impugned order has been passed under Section 230 (2) of the Tamil Nadu Panchayats Act 1994. When the provisions of Section 230 are invoked by the first respondent, he has to follow the mandatory requirements. 20. In the impugned order at para 1 and 2, the allegations are mentioned and charges 1 and 2 are also noted. While so, it is stated in the impugned order that for the said misappropriation of funds sanction was accorded to prosecute him under Section 230(2) of the Act as per reference 3rd cited. Unfortunately, there is no such reference in the impugned order. The references are only two. One is about inspection of the Assistant Director on 10.1.2006 and the second one is the proceedings of the District Collector on 10.1.2006 about the action taken against the other person. Thus, there is no reference of 3rd in the impugned order. 21. The order discloses that on the basis of a complaint by the Block Development Officer, a case has been registered by police. It further reads as per the Section under 230(2) of the Act, the petitioner is ordered not to function as president till the disposal of the criminal case and the vice president is directed to function as president. 22. Mandatory provision of Section 230(1) is that the sanction is necessary to take cognisance and the sanction has to be issued by the Government. There is no dispute that the District Collector is a part and parcel of the governance of the State. 23. While so, sub section 2 of Section 230 of the Act clarifies that only after according the previous sanction, the Government can direct the president not to discharge his duties. Thus, the sanction is essential before issuing the impugned order and the sanction order is not produced before this Court. 24. The first respondent did not choose to file any counter affidavit. Reasons are not known. However, the second respondent, who is the vice president of the Village filed a counter affidavit. It is not disclosing that when the sanction was accorded. 25. A plain reading of the impugned order discloses that there was an inspection by the Assistant Director on 10.1.2006 and thereafter, proceedings have been issued by the first respondent on the same day and the said proceedings are with reference to the suspension of part time worker. While so, the third reference is not produced before the Court. The details of 3rd reference are not mentioned in the impugned order. Hence, the Court is unable to verify whether there is a sanction. If so, who has accorded the sanction and when it was accorded. 26. Further, the learned Addl. Govt. Pleader and the learned counsel for the petitioner stated before this Court that investigation is still pending. If investigation is still pending, it is absurd to contend that sanction has been accorded. Normally, according sanction is the last step before laying charge sheet. The first step is registration of a case. Thereafter, investigation has to be proceeded and when a case has been made out, investigator has to file a charge sheet. Whenever public servants are to be charge sheeted, sanction is necessary under Section 197 of the Code of Criminal Procedure. So also, whenever Panchayat officials are to be prosecuted, sanction is necessary under Section 230 of the Act. 27. According sanction is not a mechanical act. The real test for the applicability of the Section is not the offence is being committed by public servants but it is committed while acting or purporting to act in the discharge of his official duties. Thus, after collecting the entire evidence, the file has to be verified by the sanctioning authority by reading the evidence of witnesses, perusing the documents and applying judicial mind whether sanction is necessary to prosecute public servants.
28. Therefore, the contention that sanction has been accorded even when the investigation is pending is not permissible.
29. If the first respondent is of the opinion that allowing the petitioner to discharge any public functions is detrimental to the interest of Panchayat, he has to issue orders strictly in accordance with other provisions of Panchayat Act but not by violating the mandatory provisions under Section 230(2) of the Panchayat Act.
30. For the foregoing reasons, the impugned order is set aside. Accordingly, the Writ Petition is allowed.
The approval of the Central Government is not necessary in a matter where inquiry/investigation into the crime under the PC Act is being monitored by this Court.
Manohar Lal Sharma v. Principal Secretary & Ors.; [(2014) 2 SCC 532]]
Delhi Special Police Establishment Act, 1946 - Section 6A -
Approval of Central Government - The fact that the investigation is monitored
by the constitutional court is itself an assurance that investigation/inquiry
by the CBI is not actuated with ulterior motive to harass any public servant
and the investigating agency performs its duties and discharges its
responsibility of fair and impartial investigation uninfluenced by extraneous
considerations. The approval of the Central Government is not necessary in a
matter where inquiry/investigation into the crime under the PC Act is being
monitored by this Court.
The Supreme Court on Tuesday held that the approval of the Central Government was not necessary under Section 6A of the Delhi Special Police Establishment Act (which governs the Central Bureau of Information) for investigation and prosecution of senior officials where inquiry/investigation into the crime under the Prevention of Corruption Act was being monitored by the Court.
65. In light of the above discussion, our answer to the question is in the negative and we hold that the approval of the Central Government is not necessary under Section 6A of the DSPE Act in a matter where inquiry/investigation into the crime under the PC Act is being monitored by this Court. This position holds good in cases which are directed by the Court to be registered and the inquiry/investigation thereon is actually being monitored by this Court.
Dr. Subramanian Swamy & Another Versus Director, Central Bureau of Investigation & Others 2014 (4) MLJ 603, 2014 (8) SCC 682
nder: “Section 6-A. Approval of Central Government to conduct inquiry or investigation.- (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 1
71. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.
86. Section 156 of the Cr.P.C. enables any officer in charge of a police station to investigate a cognizable offence. Insofar as noncognizable offence is concerned, a police officer by virtue of Section 155 of Cr.P.C. can investigate it after obtaining appropriate order from the Magistrate having power to try such case or commit the case for trial regardless of the status of the officer concerned. The scheme of Section 155 and Section 156 Cr.P.C. indicates that the local police may investigate a senior Government officer without previous approval of the Central Government. However, CBI cannot do so in view of Section 6-A.
95. Various provisions under different statutes were referred to
by Mr. L. Nageswara Rao where permission of the government is required before
taking cognizance or for institution of an offence. Section 197 of Cr.P.C. was
also referred to, which provides for protection to Judges and public servants
from prosecution except with the previous sanction by the competent authority.
It may be immediately stated that there is no similarity between the impugned
provision in Section 6-A of the DSPE Act and Section 197 of Cr.P.C. Moreover,
where challenge is laid to the constitutionality of a legislation on the
bedrock or touchstone of classification, it has to be determined in each case
by applying well- settled two tests: (i) that classification is founded on
intelligible differentia and (ii) that differentia has a rational relation with
the object sought to be achieved by the legislation. Each case has to be
examined independently in the context of Article 14 and not by applying any
general rule.
96. A feeble attempt was made by Mr. K.V. Viswanathan, learned Additional
Solicitor General that Section 6-A must at least be saved for the purposes of
Section 13(1)(d)(ii) and (iii) of the PC Act, 1988. In our opinion, Section 6-A
does not satisfy the well-settled tests in the context of Article 14 and is not
capable of severance for the purposes of Section 13(1)(d)(ii) and (iii).
97. Having considered the impugned provision contained in Section 6-A and for
the reasons indicated above, we do not think that it is necessary to consider
the other objections challenging the impugned provision in the context of
Article 14.
98. In view of our foregoing discussion, we hold that Section 6-A(1), which
requires approval of the Central Government to conduct any inquiry or
investigation into any offence alleged to have been committed under the PC Act,
1988 where such allegation relates to (a) the employees of the Central
Government of the level of Joint Secretary and above and (b) such officers as
are appointed by the Central Government in corporations established by or under
any Central Act, government companies, societies and local authorities owned or
controlled by the Government, is invalid and violative of Article 14 of the
Constitution. As a necessary corollary, the provision contained in Section 26
(c) of the Act 45 of 2003 to that extent is also declared invalid.
Section 340 in The Code Of Criminal Procedure, 1973
340. Procedure in cases mentioned in section 195.
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195.
He also referred to Section 340 of Cr.P.C. which allows the court to adjudge whether perjury was committed, and if it was, then whether it required prosecution. He relies upon the decision of this Court in Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr.; [(2005) 4 SCC 370]
Time limit in 61Section 19 of the P.C. Act 1988 for its working in a reasonable manner.
Dr. Subramanian Swamy –VS- Dr. Manmohan Singh & another (2012 (3) SCC 64)
The Hon’ble Supreme Court of India has pleased to say in Dr Subramanian Swami Vs Dr Manmohan Singh , “(a) All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction for the prosecution of a public servant under section 19 of the P.C. Act must be decided within a period of three months of the receipt of the proposal by the concerned authority. (b)Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time limit. ©At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.”
22. In my view, the Parliament should consider the Constitutional imperative of Article 14 enshrining the rule of law wherein ‘due process of law’ has been read into by introducing a time limit in 61Section 19 of the P.C. Act 1988 for its working in a reasonable manner. The Parliament may, in my opinion, consider the following guidelines: a)All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction for the prosecution of a public servant under section 19 of the P.C. Act must be decided within a period of three months of the receipt of the proposal by the concerned authority. b)Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to 62intimate them about the extension of the time limit. c)At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.
(ASOK KUMAR GANGULY) 11. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights,
19. There are instances where as a result of delayed grant of sanction prosecutions under the P.C. Act against a public servant has been quashed. See Mahendra Lal Das vs. State of Bihar and Others, (2002) 1 SCC 149, wherein this Court quashed the prosecution as the sanctioning authority granted sanction after 13 years. Similarly, in the case of Santosh De vs. Archna Guha and Others, (1994) Supp.3 SCC 735, this Court quashed prosecution in a case where grant of sanction was unduly delayed. There are several such cases. The aforesaid instances show a blatant subversion of the rule of law. Thus, in many cases public servants whose sanction proposals are pending before authorities for long periods of time are being allowed to escape criminal prosecution.
Delay in granting sanction proposal thwarts a very valid social purpose, namely, the purpose of a speedy trial with the requirement to bring the culprit to book. Therefore, in this case the right of the sanctioning authority, while either sanctioning or refusing to grant sanction, is coupled with a duty. The sanctioning authority must bear in mind that what is at stake is the public confidence in the maintenance of rule of law which is fundamental in the administration of justice. Delay in granting such sanction has spoilt many valid prosecution and is adversely viewed in public mind that in the name of considering a prayer for sanction, a protection is given to a corrupt public official as a quid pro quo for services rendered by the public official in the 58past or may be in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds.
Sanction to prosecute politicians, bureaucrats: SC refuses to strike down law
Manzoor Ali Khan Versus Union of India & Others 2014 (6) MLJ 241,
This petition, by way of public interest litigation, seeks direction to declare Section 19 of the Prevention of Corruption Act, 1988 (“PC Act”) unconstitutional and to direct prosecution of all cases registered and investigated under the provisions of PC Act against the politicians, M.L.As, M.Ps and Government officials, without sanction as required under Section 19 of the PC Act.
The Supreme Court on Wednesday refused to declare as unconstitutional the requirement of sanction before prosecuting politicians and public servants, while also holding that authorities must speedily decide requests of sanctions to prevent abuse of this protection meant only for “honest” persons.
Public servants can be prosecuted without prior sanction: SC
Choudhury Parveen Sultana Versus State of West Bengal & Another 2009 (3) SCC 398
The main ground of challenge was that being in the employment of the State Government the respondent No.2 enjoyed the protection of Section 197 Cr.P.C. and that no Court could take cognizance of the offence alleged to have been committed by the respondent No.2 except with the previous sanction of the State Government. It was also contended that the complaint disclosed that the offence was alleged to have been committed by the respondent No.2 during the course of investigation in connection with Behrampore Police Station Case No.348 dated 9.11.2005, and, accordingly, such offence, if at all committed, had been committed by the respondent No.2 while discharging official duties which brought him within the protective umbrella of Section 197 Cr.P.C. In support of the aforesaid contention made on behalf of the respondent No.2 reliance was placed on the decision of this Court in Sankaran Moitra vs. Sadhna Das and another [(2006) 4 SCC 584] wherein after considering various case law on the subject the majority view was that the important criteria to be applied with regard to the invocation of Section 197 of the Code was that the act complained of must have been performed in discharge of or in the purported discharge of duty. This Court ultimately, came to the conclusion that dispensing with jurisdictional or statutory requirements could ultimately affect the adjudication itself and could result in loss of public confidence in the institution. The High Court was, therefore, of the view that in the facts of the case it was quite clear that the proceedings before the Magistrate had been vitiated in the absence of sanction having been obtained for prosecution of the respondent No.2 in terms of Section 197 Cr.P.C. The High Court, accordingly, quashed the proceedings and the cognizance taken on the basis thereof. The appellant is before us against the said order of the High Court.
Paragraph : 17. We have already indicated that we are unable to accept such a view. In our view, the offences complained of cannot be said to part of the duties of the Investigating Officer while investigating an offence alleged to have been committed. It was no part of his duties to threaten the complainant or her husband to withdraw the complaint. In order to apply the bar of Section 197 Cr.P.C. each case has to be considered in its own fact situation in order to arrive at a finding as to whether the protection of Section 197 Cr.P.C. could be given to the public servant. The fact situation in the complaint in this case is such that it does not bring the case within the ambit of Section 197 and the High Court erred in quashing the same as far as the respondent No.2 is concerned. The complaint prima facie makes out offences alleged to have been committed by the respondent No.2 which were not part of his official duties.
A bench comprising Justice Altamas Kabir and Justice Markandey Katju said, "all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of section 197 CrPC. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him".
In order to apply the bar of section 197 CrPC each case has to be considered in its own fact situation in order to arrive at a finding as to whether the protection of section 197 CrPC could be given to the public servant, said bench setting aside an order of the Calcutta HC. The HC had said that the previous sanction of the state government was necessary for prosecuting Sahabul Hussain as he was a public servant and belonged to the West Bengal Police Service.
He was posted as Deputy Superintendent of Police in the state who alleged to have threatened to the husband of the appellant to give tutored statement in a criminal case.
On a complaint, the trial court, however had initiated proceedings without taking sanction of the concerned state official. It was set aside by the high court. Against high court order, the appellant had came to the apex court.
The bench rejected the plea of state government as well.
It had said that the acts complained of was performed by the Hussain during the course of investigation, which was part of the official duties required to be discharged by him and hence his case came squarely within the protective umbrella of section 197 CrPC.
B. Vinod Versus K.S. Eshwarappa & Others CDJ 2014 Kar HC 911
In the instant case where petitioners and respondents were represented by Shyam Sundar and M.T. Nanaiah, the Court has clubbed many petitions on same line of facts and charges which involves misuse of official position, acquiring land in violation of the Karnataka Land Reforms Act, 1961, entering into benami transactions and commission of offences which attracts various sections of IPC and Prevention of Corruption Act 1988 by respondents who are public servants holding offices of great importance.
In a criminal revision petition filed on the grounds of misuse of official position and amassing wealth disproportionate to their known sources, against one of the political leaders named B.S. Yeddyurappa who was then Deputy Chief Minister of Karnataka and his son B.Y. Raghvendra who is also a Member of Parliament representing Shimoga since the year 2009, the Court considered the important issue of requirement of sanctions for prosecuting any public servant under Section 197 (1) CrPC as a matter of course, in every case and held that in situations, where it was no duty of public servant to commit a criminal act in discharge of his or her public duty then sanctions under the aforesaid section is no bar to the prosecution unless expressly provided in a particular statute.
The Court while rejecting the order of the lower court which said that prior sanction under Section 192(1) CrPC is required to prosecute the public servants in the instant case, held that questions as to necessity of sanctions for prosecution will be determined by the trial court and can be raised at any stage of trial, not necessarily as soon as complaint is filed.
Chandan Kumar Basu Versus State of Bihar CDJ 2014 SC 556
The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. ...
OFFENCES COMMITTED OUT SIDE INDIA
Section 188 Crl.P.C. defines that when an offence is committed outside the India by a citizen of India whether on the high sea or elsewhere or by a person not being a citizen of India on any ship or air craft registered in India, he may be dealt with in respect of such offence as if it had been committed in India. No such offence shall be inquired into or tried in India except the previous sanction of the Central Government.
AIR 1993 SC 1637 = (1993)3 SCC 609 – Ajay Agarwal Vs. Union of India.
In the above case, it has been held that the sanction to prosecute is not a condition precedent for taking cognizance, but before trial begins, the sanction to be obtained.
From conjoint reading of Section 4 and 188 Cr.P.C., it is clear that if an offence is committed by a citizen of India, outside the country, it is also subject to the jurisdiction of the Courts in India. A.V. Mohanrao Vs. Kishan Rao – AIR 2002 SC 2653.
Section 195(1) (a) & (b) Cr.P.C., gives exception to the general rule that anybody can launch criminal prosecution as mentioned u/s. 154 Cr.P.C.
When an offence is committed over a document outside the Court and if such document is pressed into service in a judicial proceeding definitely the police officer has got every right to investigate into the offence. But if a document is in custody of the Court in any proceeding and if any offence is committed over that document, the general power of police officer to investigate into such offence has been curtailed, except on the complaint given by the concerned Court cognizance can not be taken. The conflict views expressed by various Courts came to an end after the authoritative pronouncement by the constitutional bench of the Hon’ble Apex Court reported in Iqbal Singh Vs ----------
Section 196(1) Cr.P.C., says that no Court shall take cognizance of any offence punishable under Chapter VI or under Section 153-A, Section 295-A or sub-section (1) of Section 505 of IPC or a criminal conspiracy to commit such offence or any such abetment as described in Section 108-A of IPC except with the previous sanction of the Central Government or of the State Government.
Likewise, Section 196 (1-A) Cr.P.C., says that no Court shall take cognizance of any offence punishable u/s. 153-B or sub-section (2) or (3) of Section 505 of IPC or a criminal conspiracy to commit such offence except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.
Section 196(2) Cr.P.C., says that no Court shall take cognizance of the offence of any criminal conspiracy punishable u/s. 120-B of IPC other than a criminal conspiracy to commit offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings. Here, the general power of the learned Judicial Magistrate in taking cognizance has been checked.
In other cases, there is no bar for initiation of proceedings but sanction is required to take cognizance of offence. Here, as per Section 196(2) Cr.P.C., even to initiate the proceedings u/s. 120-B of IPC as covered by the above provision, the consent of the State Government or the District Magistrate in writing is condition precedent.
SANCTION TO PROSECUTE PUBLIC SERVANTS:
Section 197 Cr.P.C., is a protection to the public servants. It says that when any person who is or was a judge or magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Central Government or State Government as the case may be.
OFFENCES AGAINST MARRIAGE :
Section 198 Cr.P.C., says that no Court shall take cognizance of an offence punishable under Chapter XX of IPC except upon a complaint made by some person aggrieved by the offence.
It is an exception to the general rule that anybody can set the Criminal Law on motion.
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There is a restriction to take cognizance of an offence punishable under Chapter XXI of IPC except upon the complaint by the aggrieved person as per Section 199 Cr.P.C.
Bar to take cognizance :
Section 468 Cr.P.C., specifies the period of limitation. The period of limitation shall be six months
(i) If the offence is punishable with fine only
(ii) One year if the offence is punishable with imprisonment for a term not exceed one year
(iii) Three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
In some minor acts also there is a bar to take cognizance except upon sanction to prosecute. Hence the above points have to be borne in mind before opening the case. Because, some of the cases may fall within the above category
Object of the Previous Sanction;
The intention of the legislature is in providing for a sanction is to afford a reasonable protection to the public servant in the discharge of their official’s functions. The object of the previous sanction is not a shield for the guilty person by raising the technical plea whereas this is safeguard for the innocent. In enacting a law, prohibiting the taking of cognizance of offences by a court, unless certain conditions were complaint with, the legislature did not purport to condone the offence. It was primarily concerned to see that the prosecution for offences in cases covered by the prohibition shall not comment without complying with the conditions. Such as previous sanction from competent authority in the case of public servant the authority namely state government or central government may refused to accord such sanction on the ground that the prosecution is frivolous or vexatious or on the ground that in the public interest it would be inexpedient to do so. Without some safeguard of this kind a public servant may fined impossible to carry on his official’s duties efficiency. (jaswant singh Vs State of Punjab) (Air 1958 SC 124)
Necessity of sanction;
Before the prevention of corruption Act, 1947, was enacted, it was held that no sanction under criminal procedure code, 1898 was necessary for prosecution for an offence under section 161 of IPC due to the reason that a public servant in taking bribe cannot be said to be acting or purporting to act in the discharge of his official duty.
Sanctioning authority; Cannot be lower than the appointing authority in respect of those public servant to whom Art. 311 Applicable. Section 6 of IPC cannot override provision of constitution (953, 954) Ram Krishnan prorjapati – Vs – State of UP 2000 (10) Section 43 (page 45)
THE CUSTOMS ACT, 1962 (52 of 1962)
SECTION 137. Cognizance of offences. – (1) No court shall take cognizance of any offence under section 132, section 133, section 134 or section 135 or section 135A, except with the previous sanction of the Commissioner of Customs. (2) No court shall take cognizance of any offence under section 136, - (a) where the offence is alleged to have been committed by an officer of customs not lower in rank than Assistant Commissioner of Customs, except with the previous sanction of the Central Government; (b) where the offence is alleged to have been committed by an officer of customs lower in rank than Assistant Commissioner of Customs except with the previous sanction of the Commissioner of Customs. (3) Any offence under this Chapter may, either before or after the institution of prosecution, be compounded by the Chief Commissioner of Customs on payment, by the person accused of the offence to the Central Government, of such compounding amount and in such manner of compounding as may be specified by rules. Provided that nothing contained in this sub-section shall apply to- (a) a person who has been allowed to compound once in respect of any offence under sections 135 and 135A; (b) a person who has been accused of committing an offence under this Act which is also an offence under any of the following Acts, namely:— (i) the Narcotic Drugs and Psychotropic Substances Act, 1985(61 of 1985); (ii) the Chemical Weapons Convention Act, 2000 (34 of 2000); (iii) the Arms Act, 1959 (54 of 1959); (iv) the Wild Life (Protection) Act, 1972 (53 of 1972); (c) a person involved in smuggling of goods falling under any of the following, namely:— (i) goods specified in the list of Special Chemicals, Organisms, Materials, Equipment and Technology in Appendix 3 to Schedule 2 (Export Policy) of ITC (HS) Classification of Export and Import Items of the Foreign Trade Policy, as amended from time to time, issued under section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992); (ii) goods which are specified as prohibited items for import and export in the ITC (HS) Classification of Export and Import Items of the Foreign Trade Policy, as amended from time to time, issued under section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992); (iii) any other goods or documents, which are likely to affect friendly relations with a foreign Stateorare derogatory to national honour; (d) a person who has been allowed to compound once in respect of any offence under this Chapter for goods of value exceeding rupees one crore; (e) a person who has been convicted under this Act on or after the 30th day of December, 2005
INCOME-TAX ACT, 1961
Prosecution to be at instance of 63[Chief Commissioner or Commissioner]. Section:279.
(1) A person shall not be proceeded against for an offence under section 275A [, section 275B], section 276, section 276A, section 276B, section 276BB, section 276C, section 276CC, section 276D, section 277 [, section 277A] or section 278 except with the previous sanction of the Commissioner or Commissioner (Appeals) or the appropriate authority: Provided that the Chief Commissioner or, as the case may be, Director General may issue such instructions or directions to the aforesaid income-tax authorities as he may deem fit for institution of proceedings under this sub-section. Explanation.—For the purposes of this section, “appropriate authority” shall have the same meaning as in clause (c) of section 269UA.] [(1A) A person shall not be proceeded against for an offence under section 276C or section 277 in relation to the assessment for an assessment year in respect of which the penalty imposed or imposable on him under clause (iii) of sub-section (1) of section 271 has been reduced or waived by an order under section 273A.] [(2) Any offence under this Chapter may, either before or after the institution of proceedings, be compounded by the Chief Commissioner or a Director General.][(3) Where any proceeding has been taken against any person under subsection (1), any statement made or account or other document produced by such person before any of the income-tax authorities specified in [clauses (a) to (g)] of section 116 shall not be inadmissible as evidence for the purpose of such proceedings merely on the ground that such statement was made or such account or other document was produced in the belief that the penalty imposable would be reduced or waived, [under section 273A] or that the offence in respect of which such proceeding was taken would be compounded.] [Explanation.—For the removal of doubts, it is hereby declared that the power of the Board to issue orders, instructions or directions under this Act shall include and shall be deemed always to have included the power to issue instructions or directions (including instructions or directions to obtain the previous approval of the Board) to other income-tax authorities for the proper composition of offences under this section.
EMPLOYEES’ STATE INSURANCE ACT, 1948
Section 86. Prosecutions (1) No prosecution under this Act shall be instituted except by or with the previous sanction of the Insurance Commissioner 39[or of such other officer of the Corporation as may be authorised in this behalf by the 129[Director-General of the Corporation]]. 130[(2) No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the First Class shall try any offence under this Act.] (3) No court shall take cognisance of any offence under this Act except on a complaint made in writing in respect thereof 131[* * *].
CENTRAL SALES TAX ACT, 1956
Section 11. Cognizance of offences (1) No court shall take cognizance of any offence punishable under this Act or the rules made there under except with the previous sanction of the Government within the local limits of whose jurisdiction the offence has been committed or of such officer of that Government as it may, by general or special order, specify in this behalf; and no court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any such offence.
Indian Stamp Act, 1899
Section 70. Institution and conduct of prosecutions
(1) No prosecution in respect of any offence punishable under this Act or any Act hereby repealed, shall be instituted without the sanction of the Collector or such other 93[the 94[State Government] generally, or the Collector specially, authorizes in that behalf.
(2) The Chief Controlling Revenue-authority, or any officer generally or specially authorized by it in this behalf, may stay any such prosecution or compound any such offence.
(3) The amount of any such composition shall be recoverable in the manner provided by section 48.
THE TAMIL NADU KEROSENE (REGULATION OF TRADE) ORDER, 1973
25. PREVIOUS SANCTION FOR PROSECUTION No person shall be prosecuted for contravention, attempt to contravene, or abet the contravention of any of the provisions of this order, or of the terms and conditions of the licence or registration certificate, issued to him under this order or the terms and conditions applicable to authorisation issued by the Government or the Licensing authority or the authorised officer except with the previous sanction of the Commissioner / or the Deputy Commr. (CS) (City) (Madras) / or the Collector concerned or such other officer as may be authorised by the Collector under clause (i.a.) of Section 2 of the Essential Commodities Act 1955 (Central Act 10 of 1955) to perform the functions and exercise the powers of the Collector under the said Act.
for initiating the proceeding for the contravention of clause 14 of the Tamil Nadu Kerosene (Regulation of Trade) Order 1973 (hereinafter referred to as "order") and consequentially for the offence under section 7 of the Essential Commodities Act, there is specific provision under clause 25 of the order contemplating previous sanction for prosecution.
THE LOKPAL AND LOKAYUKTAS ACT, 2013
1. (1) This Act may be called the Lokpal and Lokayuktas Act, 2013. (2) It extends to the whole of India. (3) It shall apply to public servants in and outside India. (4) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
23. (1) Notwithstanding anything contained in section 197 of the Code of Criminal Procedure, 1973 or section 6A of the Delhi Special Police Establishment Act, 1946 or section 19 of the Prevention of Corruption Act, 1988, the Lokpal shall have the power to grant sanction for prosecution under clause (a) of sub-section (7) of section 20. (2) No prosecution under sub-section (1) shall be initiated against any public servant accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, and no court shall take cognizance of such offence except with the previous sanction of the Lokpal. (3) Nothing contained in sub-sections (1) and (2) shall apply in respect of the persons holding office in pursuance of the provisions of the Constitution and in respect of which a procedure for removal of such person has been specified therein. (4) The provisions contained in sub-sections (1), (2) and (3) shall be without prejudice to the generality of the provisions contained in article 311 and sub-clause (c) of clause (3) of article 320 of the Constitution.
Significantly, the Lokpal and Lokayutas Bill 2011, passed by the Lok Sabha two months ago, had dispensed with prior sanction for launching prosecution in cases inquired into by the Lokpal. The idea that the law must differ for public servants and private citizens is an anachronism, one that has no basis in principle and has no defence in practice.
sanction was accorded by an incompetent authority
S. Mahendran Versus State by the Inspector of Police 2008 (3) MLJ(Crl) 767
Therefore, the sanction was accorded by an incompetent authority in this case and thereby this fundamental error invalidates the cognizance of the case itself as without jurisdiction. Therefore, this Court is left with the inevitable conclusion to quash the proceedings.
. In yet another decision in STATE OF GOA
VS.BABU THOMAS reported in (2005) 8 SCC 130), the Hon'ble Apex Court while
dealing with the provision under the Prevention of Corruption Act has held as
follows:
"12. As already noticed, the sanction order is not a mere irregularity,
error or omission. The first sanction order dated 2-1-1995 was issued by an
authority that was not a competent authority to have issued such order under
the Rules. The second sanction order dated 7-9-1997 was also issued by an
authority, which was not competent to issue the same under the relevant rules,
apart from the fact that the same was issued retrospectively w.e.f. 14-9-1994,
which is bad. The cognizance was taken by the Special Judge on 29-5-1995.
Therefore, when the Special Judge took cognizance on 29-5-1995, there was no
sanction order under the law authorizing him to take cognizance. This is a
fundamental error which invalidates the cognizance as without
jurisdiction."
12. Therefore, in view of the above well settled principle of law laid down by
the Hon'ble Apex Court, the sanction was accorded by an incompetent authority
in this case and thereby this fundamental error invalidates the cognizance of
the case itself as without jurisdiction. Therefore, this Court is left with the
inevitable conclusion to quash the proceedings and accordingly, the proceedings
pending in C.C.No.1945 of 2005 on the file of the District Munsif-cum-Judicial
Magistrate, Ambattur, is hereby quashed. It is open to the respondent to obtain
sanction in accordance with law if the respondent desires so and proceed with
the matter.
His Lordships John Michael Cunha discussed his first question in the case of State, by the Superintendent of Police, Vigilance & Anti-Corruption, -Vs- Selvi. J. Jayalalitha and others Verdict Dated, this the 27.09.2014
Whether the sanction for prosecution of A-1 is in accordance with law ?
It is a settled position of law that a person holding the office of the Chief Minister is a “Public Servant” within the meaning of Sec. 2(c) of the Prevention of Corruption Act. In the case of M.Karunanidhi vs. Union of India and others (AIR 1979 SC 898), Constitution Bench of the Apex Court on a consideration of the Constitutional provisions and in particular to Article 164 and 167 has laid down that a Chief Minister or a Minister is a public servant in respect of whom the Constitution provides that he will get his salary from the Government Treasury so long as he holds his office and he is also a public servant within the meaning of Sec. 21 of the Penal Code. Sec.2(c) of the P.C.Act also provides that any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty is a public servant.
33.2) It is borne on record, that A-1 preferred a Writ Petition No. 14644/97 before the Hon'ble High Court of Madras seeking to quash the sanction issued by the Governor for the prosecution of A-1. This petition came to be dismissed with the observation that, “A perusal of sanction proceedings themselves would show that the Governor of Tamil Nadu had independently applied her mind to every aspect of the material and had granted sanction.” Further, the Hon'ble High Court has held in the said order that, “The impugned sanction proceedings to prosecute the A-1 cannot be challenged in view of the Constitutional immunity provided under Article 361 of the Constitution besides holding that, her Excellency, the Governor of Tamil Nadu is the authority and competent to sanction the prosecution and the proceedings are in no way vitiated or suffer with any illegality.” Hence, the dispute regarding the legality and validity of the sanction having been set at rest, A-1 is estopped from agitating the matter over again. That apart, in a recent decision rendered by the Hon'ble Supreme Court of India, reported in 2013 (3) SCC.1, it is held that, “In the matter of according sanction to prosecute Chief Minister or State Ministers, the Governor can act upon his own discretion.” Hence, the determination of the legality and validity of the sanction order having already attained finality, without entering into any further discussion, I hold that the sanction for the prosecution of A-1 is valid and in accordance with law.
Conclusion :
All people are equal under the law, but the provisions relating to prosecution sanctions in India would suggest that some people are more equal than others. Section 19 of the Prevention of Corruption Act prevents courts from taking cognizance of offences allegedly committed under the Act by a public servant without prior sanction of the government. And Section 197 of the Code of Criminal Procedure lays down the general requirement of prior sanction while prosecuting public servants. Such provisions were conceived to ensure that public servants are not harassed and their work not stymied by vexatious and frivolous complaints. But in practice, these protective measures have functioned as a shield against prosecution, encouraging dishonest bureaucrats and ministers to flout the law with impunity.
A magistrate has power to take cognizance of an offence, and barring the same for want of prosecution sanction tantamount to obstruction in exercise of proper jurisdiction. It is generally argued that this provision prevents unnecessary harassment to public servants while 90% of public servants having direct contact with public hence prone to the risk of prosecution are not covered under the provision but serving public without any hitch. There are no such protections available to public servants in USA, UK etc yet they serve public therefore no such protection in India is required at all. However if a public servant be falsely implicated in any criminal case he enjoys an equal right to invoke jurisdiction of High Court u/s 482 Cr P C, get the proceedings quashed and claim compensation like an ordinary citizen.
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