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Sanction for prosecution

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Sanction for prosecution

  1. 1. SANCTION FOR PROSECUTION SEBI. S GOVT. LAW COLLEGE ERNAKULAM.
  2. 2. SANCTION  Sanction is a condition precedent to the institution of the prosecution of a public servant.  Sanction can be called as a solemn and sacrosanct act which affords protection to the Government servant.  The object of sanction for prosecution is to protect a public servant or a police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings.  Criminal laws in India thus by way of sanctions allow for protective discrimination in favour of public officials.  It is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.  Under various laws, sanctions are required to investigate and prosecute public officials and Sanction lifts the bar for prosecution.
  3. 3. SANCTION FOR PROSECUTION UNDER PREVENTION OF CORRUPTION ACT, 1988 AND UNDER CRIMINAL PROCEDURE CODE, 1973  The Prevention of Corruption Act, 1988 is the prime legislation dealing with the instances of corruption done by the public servants.  The objective of the Prevention of Corruption Act is to reduce the corruption in India in various government agencies and public sector businesses by combating them.  Previous sanction necessary for prosecution of a public servant under prevention of corruption Act is explained under section 19 of the Act and the provision of sanction in criminal procedure code is explained under Section 197 of the code.  The object of Section 197 of the Code is to guard against vexatious proceedings against Judges, Magistrates and public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution.
  4. 4. PROVISION OF SANCTION FOR PROSECUTION UNDER PREVENTION OF CORRUPTION ACT,1988 SECTION 19 The requirement of sanction has salutary object of protecting an innocent public servant against unwarranted and mala fide prosecution. No court shall take cognizance of an offence punishable under sections 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 office 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 office 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.  Court is competent to take cognizance of an offence
  5. 5. SANCTION UNDER SECTION 197 OF CR.P.C Under section 197 of Code of Criminal Procedure (Cr.P.C), prior sanction from a competent officer is needed to prosecute a government servant for alleged criminal act done in discharge of his official duty and "no court shall take cognizance of such offence except with the previous sanction." For claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then
  6. 6. PUBLIC SERVANT  Public Servant : The word ‘Public Servant’ has been defined under Section 2(c) of the Prevention Of Corruption Act, 1988. Public servant include:  Any person in the service or pay of the Government or remunerated by the Government for the performance of any public duty or any person in the service or pay of a local authority.  Any person in the service or pay of a corporation established by or under a Central, Provincial or State Act.  Any Judge, including any person empowered by law to discharge any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner.  Any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;
  7. 7.  Any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election.  Any person who holds an office by virtue of which he is authorised or required to perform any public duty.  Any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government.  Any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board.
  8. 8. Any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations. CASE LAW: PUBLIC SERVANT & SANCTION A public servant cannot be prosecuted for acts done in connection with his official duty. Jaya Singh v. K.K. Velayutham, 2006 (55) ACC 805. Rakesh Kumar Mishra v. State Of Bihar And Ors on 3 January, 2006 It was held by the Supreme Court that the use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty.
  9. 9. WHETHER A MINISTER OR CHIEF MINISTER CAN BE CONSIDERED A PUBLIC SERVANT The Chief Minister and the Ministers are public servants as they hold public office and get salary from the Government funds for the public duty performed by them. M. Karunanidhi v. Union of India, AIR 1979 SC 898 In this case, a five judge bench of the Supreme court held that the holder of a public office such as the Chief Minister is a public servant in respect of whom the Constitution provides that he will get his salary from the Government Treasury so long he holds his office on account of the public service that he discharges. The salary given to the Chief Minister is coterminous with his office and is not paid like other constitutional functionaries such as the President and the Speaker. These facts, therefore, point to one and only one conclusion and that is the Chief Minister is in the pay
  10. 10. POSITION OF MLAAND MP R. S. Nayak v. A. R. Antulay In this case, the Chief Minister was accused to have committed offence under Section 161 and 165 of the IPC and Section 5 of the Act. The question that needed to be answered was whether there is requirement of sanction to prosecute as the person alleged has ceased to be the chief minister but is still a sitting MLA. The court opined that there is no such need for the sanction as he is no more in the capacity of public servant in which he had committed the said offence. The accused in such case must continue to be a public servant till the date cognizance is taken by the court. It was held that MLAs are excluded as public servant under IPC as they are not paid by the executive government for his duty. Also, legislature is not considered to be within the ambit of Government as per Section 21(12) of IPC. M. Karunanidhi v. Union of India, 20 February 1979 In this case, again the question regarding whether MLAs are public servants came before the Court.
  11. 11. The court conceded that MLA is not in the service of State Government, thus not a public servant. The sanctioning authorities in such cases would be the Central or State Governments under which that servant works. However, the ministers are considered to be public servants as they discharge their official duties as per the norms of State Government. P. V. Narasimha Rao v. State In this case, the congress party was alleged to have given bribe to MPs to vote against the non-confidence motion moved in Lok Sabha. Here the court opined that the extended definition of public servan under Section 2(c)(viii) of the Act includes MPs and hence they are considered to be public servant for the purpose of this act. The court further adds on to conclude that the definition is much wider and more people can be covered under list of public servants.
  12. 12. GOVERNOR COMPETENT TO GRANT FOR PROSECUTION OF CHIEF MINISTER OR MINISTERS  Governor is competent to grant sanction for prosecution of Chief Minister or Ministers for offences committed under the P.C. Act, 1988 and in proper cases Governor may act independently of or contrary to the advice of his Council of Ministers in exercise of his discretionary powers under Article 163 of the constitution. Case law M.P. Special Police Establishment v. State of M.P. & Others, (2004) 8 SCC 788  In this case, it was observed by the Court that the Council of Ministers has to first consider grant of sanction. It is presumed that a high authority like the
  13. 13.  However, on those rare occasions where on facts the bias becomes apparent or the decision of Council of Ministers is shown to be irrational and based on non- consideration of relevant factor, the Governor would be right, on the facts of that case, to act in his own discretion and grant sanction. In this view of the matter, appeals are allowed.  The decisions of the Single Judge and Division Bench cannot be upheld and are accordingly set aside. The Writ Petitions filed by the two Ministers will stand dismissed. For the reasons aforementioned the Court directed that the Order of the Governor sanctioning prosecution should be given effect to and that of the Council of Ministers refusing to do so may be set aside.
  14. 14. WHO CAN GRANT SANCTION FOR PROSECUTION UNDER SECTION 19 OF THE PC ACT, 1988 It is explained under Section 19(2) of the PC Act, 1988: The authority which is competent to remove the public servant from his office at the time when the offence was alleged to have been committed is the authority which is supposed to give sanction for prosecution. For example: Central government which is the competent authority to remove a person will be the authority to give sanction for prosecution in that respective case. Dr. Subramanian Swamy v. Dr. Manmohan Singh and another, AIR 2012 SC 1185. The Appellant vide several letters to the Respondent No. 1, Dr. Manmohan Singh, sought to accord sanction to prosecute A. Raja, the ex-Minister for Communication and Information Technology under the P.C Act, 1988, for alleged grant of licences in violation of Guidelines for United Access Services Licence issued by the Ministry of Communication and Information Technology resulting in huge loss to the Government. In this case, it was held that the sanctioning authority is that authority which is competent to remove a
  15. 15. SANCTION NOT REQUIRED FOR PROSECUTION OF A MINISTER AFTER HIS RESIGNATION No sanction under Section 19 of the P.C. Act, 1988 for prosecution of a Minister, after his resignation, for offences committed by him during his tenure as Minister is required. M.P. Special Police Establishment v. State of M.P. & Others, (2004) 8 SCC788 In this case, constitutional bench of Supreme Court held that no sanction under Section19 of the P.C. Act, 1988 for prosecution of a Minister, after his resignation, for offences committed by him during his tenure as Minister is required. No sanction has been sought under Section 19 of the Act of 1988 presumably for the reason that no sanction there under is required as they have ceased
  16. 16. DEEMED SANCTION UNDER SECTION 19  Dr. Subramanaan Swamy v. Dr. Manmohan Singh and another, AIR 2012 SC 1185 The directions issued by the Hon'ble Supreme Court is that: (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 PC 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. (c) 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.
  17. 17. Shashikant Prasad v. State, 2013 (83) ACC 215. In this case, where CBI had submitted a charge-sheet to the competent authority in the food grain scam of UP for grant of prosecution sanction under Section 19 of the P.C. Act, 1988 for offences under Section 409, 420, 467, 468, 120-B IPC and under 13(2) of the P.C. Act, 1988 but the sanction for the prosecution was not granted by the competent authority within a period of four months. Relying on two Supreme Court decisions reported in Vineet Narain & Another v. Union of India & Another, (1998) 1 SCC 226 and Dr. Subramanya Swamy v. Dr. Manmohan Singh and another, AIR 2012 SC 1185, it has been held by the Lucknow Bench of the Honourable Allahabad High Court that since the State Government had not taken any decision in regard to sanction of prosecution of the accused on the charge-sheet submitted by the CBI and the four months period fixed for grant of sanction by the Apex Court had already expired, hence the trial court was right in presuming the "Deemed Sanction" and had rightly issued process to the accused persons by taking
  18. 18. (d) 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 charge sheet or complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.“ The same view was expressed by a full judge bench Supreme Court in Vineet Narain v. Union of India, (1998) 1 SCC 226. DEEMED SANCTION UNDER SECTION19 AFTER THREE OR FOUR MONTHS TIME LIMIT: Whether trial court is competent to proceed with the case on the basis of deemed sanction to prosecute the accused, a prosecution sanction is not accorded by the competent authority or State within the period of four months in terms of the direction issued by the Apex Court in Vineet Narain & Another v. Union of India & Another, (1998) 1 SCC 226
  19. 19. RELEVANT CONSIDERATIONS FOR GRANT OF SANCTION & DUTY OF SANCTIONING AUTHORITY The only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true. This observation was made by the Supreme Court in Dr. Subramanian Swamy v. Dr. Manmohan Singh and another, AIR 2012 SC 1185 DUTY OF PROSECUTION AND SANCTIONING AUTHORITY  The Hon'ble Supreme Court has summarized the role of the prosecution and the sanctioning authority before according sanction u/s 19 of the P.C. Act, 1988 in CBI v. Ashok Kumar Aggarwal, 2014 (84) ACC 252 • The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements,
  20. 20. DUTY OF PROSECUTION AND SANCTIONING AUTHORITY  The record so sent should also contain the material or document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.  The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.  The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.  The order of sanction should make it evident that the authority had been aware of all relevant facts and materials and had applied its mind to all the relevant material.  In every individual case, the prosecution has to establish and satisfy the Court by leading evidence that the entire relevant facts had been placed before the sanctioning
  21. 21. SANCTION U/S 19(1) FOR PROSECUTION NOT TO BE GRANTED IF THE PROSECUTION IS SIMPLY VEXATIOUS : Sanction under Section 19(1) of prosecution cannot be granted if the prosecution is simply vexatious nor the court can issue a positive direction to the sanctioning authority to give sanction for prosecution. This observation is made by the Supreme Court in Sanjaysinh Ramrao Chavan v. Dattatraya Phalke & Others, (2015) 3 SCC 123. POWER U/S 19 OF THE P.C. ACT, 1988 OF SANCTION TO PROSECUTE CANNOT BE DELEGATED BY THE COMPETENT AUTHORITY  Power under Section19 of the P.C. Act, 1988 of sanction to prosecute cannot be delegated by the competent authority. Sanction cannot be granted on the basis of report given by some other officer or authority. Manish Trivedi v. State of Rajasthan, AIR 2014 SC 648 In this case, it was held by the Supreme Court that sanction to prosecute cannot be delegated by the competent authority.
  22. 22. SATISFACTION OF THE SANCTIONING AUTHORITY SHOULD BE BASED ON MATERIAL PRODUCED : Dr. Subramanian Swamy v. Dr. Manmohan Singh and Another, AIR 2012 SC 1185 In this case, Court made the following observation:  Grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter.  What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant.  If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction.  If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction. In either case, the decision taken on the complaint made by a citizen is required to be communicated to him and if he feels aggrieved by such decision, then he can
  23. 23. ONLY PRIMA FACIE SATISFACTION OF SANCTIONING AUTHORITY NEEDED FOR GRANT OF SANCTION  Grant of sanction under Section 19(1) of the P.C. Act, 1988 for prosecution is administrative function. Only prima facie satisfaction of the sanctioning authority is needed. State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 199. In this case the Supreme Court held that: a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
  24. 24. c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him. d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. SANCTION UNDER SECTION 19 OF THE P.C. ACT IS A PRE-CONDITION FOR ORDERING INVESTIGATION AGAINST A PUBLIC SERVANT UNDER SECTION 156(3) OF CR.P.C. EVEN AT PRE-COGNIZANCE STAGE L. Narayana Swamy v. State Of Karnataka & Ors., SC september 06, 2016.  Supreme Court has held that an order directing further investigation under Section 156(3) of the Cr.P.C. cannot be passed in the absence of valid sanction.
  25. 25.  The Court further observed that the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed.  When public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty.  The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied.  The mandatory character of the protection afforded to a public servant is brought out by the expression, ‘no court shall take cognizance of such offence except with the previous sanction’. Use of the words ‘no’ and ‘shall’ makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and
  26. 26.  The very cognizance is barred. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty. SPECIAL JUDGE CANNOT ORDER REGISTRATION OF FIR U/S 156(3) CR.P.C FOR OFFENCES UNDER P.C. ACT, 1988 WITHOUT PRIOR SANCTION ORDER OF COMPETENT AUTHORITY U/S 19(1) OF THE P.C. ACT, 1988 : State of UP v. Paras Nath Singh, (2009) 6 SCC 372 Anil Kumar and Ors v. M.K.Aiyappa and Anr on 1 October, 2013 Army Headquarters v. CBI (2012) 6 SCC 228 The Honourable Supreme Court in these case held that Special Judge cannot order registration of FIR under Section 156(3) Cr.P.C for offences under P.C. Act, 1988 without prior sanction order of competent authority under Section 19(1) of the P.C. Act, 1988.
  27. 27. SANCTION FOR PROSECUTION OF PUBLIC SERVANT FOR OFFENCES U/S 420, 409, 467, 468, 471 IPC NOT REQUIRED : Chandan Kumar Basu v. State of Bihar, 2014 (86) ACC 856 In this case, Supreme Court held that Sanction for prosecution of public servant for offences under 420, 409, 467, 468, 471 IPC not required. STAGE OF RAISING PLEA OF SANCTION  Interpreting the provisions under Section 196, 197, 156 Cr.P.C., it has been held by the Supreme Court that the plea of sanction can be raised at the time of taking cognizance of the offence or any time thereafter.  But the plea of sanction cannot be raised or Sec. 197 Cr.P.C. is not attracted at the stage of registration of FIR, investigation, arrest, remand of the accused under 167 Cr.P.C. or submission of the police report under 173(2) Cr.P.C.  When a case is under IPC and PC Act, 1988, question as to need of sanction under 197 Cr.P.C. not necessarily to be raised as soon as the complaint is lodged. It can be raised at
  28. 28.  If the cognizance of the offence has been taken without sanction, the plea of want of sanction can be raised by the accused after the commitment of the case and when the accused are called upon to address the court under 227 and 228 Cr.P.C. The Supreme Court has made this observations in State of Karnataka v. Pastor P. Raju, AIR 2006 SC 2825, K. Kalimuthu v. State by DSP, 2005 (3) SCJ 682, Birendra K. Singh v. State of Bihar, 2000 (4) ACC 653 (SC). STAGE OF NECESSITY OF SANCTION IN COMPLAINT CASE Rakesh Kumar Mishra v. State of Bihar (2006) SCC 557 Center for Public Interest Litigation v. Union of India, AIR 2005 SC 4413  In these cases, the accused, a police officer, had conducted a search without warrant and Magistrate had taken cognizance against him of the offences under Sections 342, 389, 469, 471, 120-B IPC without sanction for prosecution under Section 197 Cr.P.C
  29. 29. .  The Honourable Supreme Court held that sanction under S.197 Cr.P.C for prosecution of the police officer was necessary. Protection of S.197 Cr.P.C is available to a public servant when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable Act. Therefore, the concept of Section 197 Cr.P.C does not get immediately attracted on institution of the complaint case. The test to determine whether omission or neglect to do that act would have brought on the charge of dereliction of his official duty. COURT MAY WHEN DEFER TO DECIDE THE QUESTION OF SANCTION U/S 197 CRPC AT A LATER STAGE OF THE CASE Romesh Lal Jain v. Naginder Singh Rana & Others, (2006) SCC 294 In this case, the Supreme Court held that where ex facie no
  30. 30. If the validity or otherwise of an order of sanction is required to be considered having regard to the facts and circumstances of the case and furthermore when a contention has to be gone into as to whether the act alleged against the accused has any direct nexus with the discharge of his official act, it may be permissible in a given situation for the court to examine the said question at a later stage. SPECIAL JUDGE UNDER P.C. ACT, 1988 CAN ORDER REGISTRATION OF FIR AND INVESTIGATION THEREOF U/S 156(3) CR.P.C Special Judge under P.C. Act, 1988 is empowered to grant an application under156(3) Cr.P.C. involving offences under the P.C. Act, 1988 and under IPC. He can also take cognizance on a complaint by private person.
  31. 31. SANCTION U/S 197 CRPC NOT REQUIRED WHEN SANCTION U/S 19 OF THE PC ACT, 1988 HAS ALREADY BEEN GRANTED:  Neera Yadav v. CBI on 2 August, 2017 A Full Bench of the Allahabad High Court has held that: For prosecution under Prevention of Corruption Act, 1988, once sanction under Section 19 of the Act is granted, there is no necessity for obtaining further sanction under Section 197 of the Cr.P.C. AUTHORITY COMPETENT TO GRANT SANCTION U/S 19 OF THE P.C. ACT, 1988 CAN ALSO GRANT SANCTION U/S 197 CRPC: Ramesh Lal Jain v. Naginder Singh Rana & Others, (2006) 1 SCC 294 Sanction required under Section 197 Cr.P.C and sanction required under the 1988 Act stand on different footings. The sanction under the Code of Criminal Procedure is required to be granted by the State and under the Prevention of Corruption Act,1988 it can be granted also by the authorities specified in Section 19 thereof.
  32. 32. TEST FOR NECESSITY OF COMPOSITE SANCTION U/S 19 OF THE P.C. ACT, 1988 AND U/S 197 CR.P.C. Test to determine for sanction order amount to a composite order, there must be an immediate or proximate connection between the P.C. Act and the IPC offences for which accused is charged. The test to be applied in such a case would be whether the offences under IPC are also required to be proved in relation to the offences under the P.C. Act, 1988. WHEN SECTION 197 Cr.P.C IS ATTRACTED.  The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants.  The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for any thing done by them in the discharge of their official duties.
  33. 33. Center for Public Interest Litigation & Another v. Union of India & Another, AIR 2005 SC 4413  In this case, it was held that before invoking Section 197, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties.  One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.  This aspect makes it clear that the concept of S.197 does not get immediately attracted on institution of the complaint case.
  34. 34. SANCTION U/S 197 CRPC REQUIRED ONLY WHEN THE OFFENCE COMMITTED IS ATTRIBUTABLE TO OR HAS DIRECT NEXUS WITH THE OFFICIAL DUTY OF THE PUBLIC SERVANT.  An order of sanction in terms of Section 197 Cr.P.C is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same. Ramesh Lal Jain v. Naginder Singh Rana & Others, (2006) 1 SCC 294.  In this case, it was held by the Court that for invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion
  35. 35. SANCTION AGAINST RETIRED PUBLIC SERVANT NOT REQUIRED S.A. Venkataraman v. The State. [1958] SCR 1037 Under the provisions of the Prevention of Corruption Act, 1947, it was laid down that the protection under the concerned provisions would not be available to a public servant after he had demitted his office or retired from service. The Court further observed that if an offence under S.161 of the IPC was committed by a public servant, but, at the time a court was asked to take cognizance of the offence, that person had ceased to be a public servant, and a previous sanction would be unnecessary. The words in S. 6(1) of the Act are clear enough and they must be given effect to. There is nothing in the words used in s. 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had
  36. 36. R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684 In this case, a five judge bench of the Supreme Court held that if a public servant has ceased to be a public servant on the date of cognizance of the offence by the court, sanction for his prosecution is not required. Sanction for prosecution of retired public servant is not required if the alleged act of corruption was committed by the Minister during his tenure as such Minister. The Court made this observations in M.P. Special Police Establishment v. State of M.P. & Others, (2004) 8 SCC 788 , Habibulla Khan v. State of Orissa, AIR 1995 SC 1123 PRIOR SANCTION FOR PROSECUTION OF RETIRED PUBLIC SERVANT NOT NECESSARY Dr. Subramanian Swamy v. Dr. Manmohan Singh and Another, AIR 2012 SC 1185 The Supreme Court observed that if a person who is employed and is not removable from his office by an authority other than the Central Government or the State Government, as the case may be, sanction to prosecute is required to be obtained either from the Central Government or the State Government. The emphasis is on the words "who is employed" in connection
  37. 37. The Court further observed that if he is not employed then Section 19 nowhere provides for obtaining such sanction. In case where the person is not holding the said office as he might have retired, superannuated, been discharged or dismissed then the question of removing would not arise.  Admittedly, when the alleged offence was committed, the petitioner was appointed by the Central Government. He demitted his office after completion of five years' tenure. Therefore, at the relevant time when the charge-sheet was filed, the petitioner was not holding any office.  Hence, there is no question of obtaining any previous sanction of the Central Government. Similar observation was made in: Balakrishnanan Ravi Menon v. Union of India, (2007) 1 SCC 45. Prakash Singh Badal v. State of Punjab, AIR 2007 SC 1274
  38. 38. SANCTION NOT REQUIRED FOR PROSECUTION OF A MINISTER AFTER HIS RESIGNATION :  No sanction under Section 19 of the P.C. Act, 1988 for prosecution of a Minister, after his resignation, for offences committed by him during his tenure as a Minister.  In recent incident of Ex-Maharashtra Home Minister Anil Deshmukh, where Bombay High Court held that sanction not required for prosecution of a minister after his resignation. Case law M.P. Special Police Establishment v. State of M.P. & Others, (2004) 8 SCC 788  In this case it was held by a five judge bench of the Supreme Court that no sanction under Section 19 of the P.C. Act, 1988 for prosecution of a Minister, after his resignation, for offences committed by him during his tenure as Minister is required.
  39. 39. SANCTION FOR PROSECUTION OF A RETIRED PUBLIC SERVANT IS ESSENTIAL U/S 197 CRPC BUT NOT FOR OFFENCES UNDER P.C. ACT, 1947 OR P.C. ACT, 1988 : Rakesh Kumar Mishra v. State of Bihar, (2006) 1 SCC 557 Necessity of obtaining sanction under Section 197 Cr.P.C for prosecution of a retired public servant is must. But an accused facing prosecution for offences under the P.C. Act, 1947 or the P.C. Act, 1988 cannot claim any immunity on the ground of want of sanction if he ceased to be a public servant on the date when the court took cognizance of the said offences. The correct legal position, therefore, is that an accused facing prosecution for offences under the Prevention of Corruption Act, 1988 cannot claim any immunity on the ground of want of sanction if he ceased to be a public servant on the date when the court took
  40. 40. RETIRED PUBLIC SERVANT & SEC. 197 CRPC  It was held by Supreme Court in State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 and State of Himachal Pradesh v. M.P. Gupta (2004) 2 SCC 349 that if the accused public servant had ceased to be a public servant on the date when the court took cognizance of the offences under the P.C. Act, Section 197 Cr.P.C. is not attracted. The same view was expressed in S.K. Zutshi v. Sri Bimal Debnath, (2004) 8 SCC 31 INSTANCES WHEN SANCTION U/S 19 OF P.C ACT NOT REQUIRED Vishwa Nath Chaturvedi v. Union of India & Others (2013) 2 SCC 16  Where the public servants in the State of U.P were found to have committed offences in a planned, deliberate and intentional manner to usurp public fund for their own vested interests in relation to food grains scam, it has been held that such indulgence in corrupt practice by public servants is their private conducts and for that they cannot claim protection u/s 19 of the P.C Act, 1988 and no sanction for their prosecution is required.
  41. 41. ERROR IN SANCTION WHEN NOT MATERIAL Ashok Tshering Bhutia v. State of Sikkim, 2011 CrLJ 1770 (SC)  In the absence of anything to show that the error or irregularity in sanction under Section 19 of the P.C Act, 1988 has caused failure of justice and once cognizance has been taken, it cannot be said that cognizance has been taken on invalid police report. SANCTION WHEN PUBLIC SERVANT HOLDING MORE THAN ONE PUBLIC OFFICE : R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684. Where the public servant was holding more than one public office and the question of sanction for misusing or abusing one of his public offices arose, it has been held by the Honourable Supreme Court that sanction of authority competent to remove him from office allegedly misused or abused alone is necessary and not of all competent authorities. STAGE OF SANCTION U/S 197 CRPC :
  42. 42. STAGE OF SANCTION UNDER SECTION 19 OF THE PC ACT, 1988  Necessity of grant of sanction u/s 19 of the PC Act, 1988 is required not only at the stage of taking cognizance of the offence under the Act but also at the stages before it.  Dr. Subramanian Swamy v. Dr. Manmohan Singh and Another, AIR 2012 SC 1185 SANCTION OF PROSECUTION WITHOUT APPLICATION OF MIND  Where the accused public servant was prosecuted and convicted for offences under 161 I.P.C. and under P.C. Act 1988 but there was no application of mind by the sanctioning authority, the conviction was set aside on the ground of non application of mind before according sanction by the sanctioning authority.
  43. 43. Order granting sanction should be demonstrative of fact of proper application of mind. The sanctioning authority must judge whether the public servant should receive the protection under the P.C. Act 1988 or not. The Court made these observations in  State of Karnataka v. Ameer Jan, 2007 (59) ACC 811  Bishambhar Dayal Srivastava v. State of U.P 1982 SCR (1)1137  Ramesh Lal Jain v. Naginder Singh Rana,(2006)1 SCC 294  State of H.P. v. Nishant Sareen, 2011 (72) ACC 423  The Supreme Court in these instances held that an order granting or refusing sanction must be preceded by application of mind on the part of appropriate authority
  44. 44. QUESTION OF VALIDITY OF SANCTION ORDER CAN BE RAISED DURING TRIAL Dinesh Kumar v. Chairman, Airport Authority of India & Another, AIR 2012 SC 858.  In case of trial of accused under PC Act, 1988, it has been held by the Hon'ble Supreme Court that the question of validity of sanction order passed by the sanctioning authority under Section19 of the PC Act, 1988 can be raised during the trial of the case. SANCTION SUBSEQUENT TO DISCHARGE OF ACCUSED Balbir Singh v. State of Delhi, 2005 (85) DRJ 52 In this case, it was held that If the accused was discharged for want of sanction (under POTA), court can proceed subsequent to obtaining sanction. SANCTION BY INCOMPETENT AUTHORITY Sanction granted by an officer not competent to do so is a nullity. If the officer granting sanction was not conferred the delegated powers of the sanctioning authority, the same is nullity. Sanction must be granted by an officer competent to remove the accused from office. The same observation was
  45. 45. SANCTION ORDER TO BE SPEAKING  In Krishnamurthy v. State of Karnataka, 2005(3) SCJ 660, it was held that when the sanction order for prosecution of the accused under the P.C. Act is eloquent and speaks for itself, it is valid. NO SANCTION REQUIRED FOR OFFENCE U/S. 12 OF THE P.C. ACT, 1988 Abetment of any offence punishable u/s. 7 or 11 is in itself a distinct offence. Sec. 19 of the P.C. Act, 1988 specifically omits Sec. 12 from its purview. Courts do not take cognizance of an offence punishable u/s. 7, 10, 11, 13, 15 alleged to have been committed by a public servant except with the previous sanction of the government. No such sanction is required in cases of offence punishable u/s. 12 of the P.C. Act, 1988. In State Through CBI v. Parmeshwaran Subramani, 2009 (67) ACC 310 it was held that no sanction is required for
  46. 46. RELEVANT DATE FOR SANCTION OF PROSECUTION The relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Sec. 6 of the P.C. Act 1947 is the date on which the Court is called upon to take cognizance of the offence of which he is accused. The five judge bench of Supreme Court expressed same view in R.S. Nayak v. A.R. Antulay, AIR 1984 S.C. 684. NATURE OF ORDER OF SANCTION IS ADMINISTRATIVE In the cases of (i) State of Bihar v. P.P. Sharma, IAS and another, AIR 1991 SC 1260 (ii) State of Maharashtra & others v. Ishwar Piraji Kalpatri, AIR 1996 SC 722 and (iii) State of Punjab & another v. Mohammed Iqbal Bhatti, (2009) 17 SCC 92, it has been held by the Hon'ble Supreme Court that the order of sanction passed under Section 197 Cr.P.C and under Section 19 of the Prevention of Corruption
  47. 47. REVIEW OF PREVIOUS ORDER GRANTING OR REFUSING SANCTION :  In the case of State of Punjab & Another v. Mohammed Iqbal Bhatti on 31 July, 2009, a question had arisen for consideration of the Hon'ble Supreme Court as to whether the sanctioning authority has power of review in the matter of grant of sanction under Section 197 of the Cr.P.C and under Section 19 of the Prevention of Corruption Act, 1988.  The facts of the above case were that the accused Mohammed Iqbal Bhatti was posted and working as Block Development and Panchayat Officer in the State of Punjab and on an FIR being lodged and completion of investigation thereof, a charge-sheet was prepared against him by the investigating
  48. 48.  Governor of the State of Punjab was the appointing authority of the public servant or accused.  Sanction for prosecution was refused. The matter was, however, after change of government placed before the competent authority once again without any fresh or new material and sanction to prosecute the public servant or accused was granted.  Questioning the validity of the aforesaid order granting sanction for prosecution, the public servant or accused filed a Writ Petition before the Hon'ble Punjab & Haryana High Court and the same was allowed by observing that "the State had no power of review and in any event, the impugned order could not have been passed as the State while passing its earlier order had exhausted its jurisdiction.  The State of Punjab then challenged the aforesaid order of the Hon'ble Punjab & Haryana High Court by filing an appeal before the Hon'ble Supreme Court.
  49. 49. Dismissing the appeal, the Hon'ble Supreme Court observed that:  The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary.  On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the sanctioning authority or otherwise.  The legality or validity of the order granting sanction would be subject to review by criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts.  The source of power of an authority passing an order of sanction must also be considered.  The State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction under Section 197 Cr.P.C, the same, however, would not mean that power once exercised cannot be exercised once again.
  50. 50. ADMINISTRATIVE REVIEW OF PREVIOUS ADMINISTRATIVE ORDER PERMISSIBLE :  In the case of R.R. Verma & others v. Union of India & others, AIR 1980 SC 1461, the Hon'ble Supreme Court has ruled that "it is not correct to say that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. Again, if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a court.  It is, therefore, clear that administrative review of an administrative order is legally possible provided there is any fresh or new material necessitating such review.  The nature of the order granting or refusing sanction for prosecution is administrative, therefore, review of an earlier order granting or refusing sanction is permissible under law if the same is required on the basis of new material or evidence produced before the authority concerned.
  51. 51.  In Deepak Khinchi v. State of Rajasthan, 2012 (77) ACC 919, it was observed that review of previous Sanction order permissible only on fresh material.  Sanction to prosecute on review of previous order can be considered only when fresh materials have been collected.  Previous order refusing sanction can be reviewed on production of fresh material.  A Division Bench of the Hon'ble Himachal Pradesh High Court in the case of Omkar Sharma v. State of HP & others, 2003 CrLJ 1024 has held that once sanction for prosecution of public servant was refused by competent authority, the same cannot be revised or reviewed on same materials. REVIEW OF PREVIOUS ORDER REFUSING SANCTION NOT PERMISSIBLE CASE LAW  Naresh Chandra Gupta v. Chief Engineer, Hydel and Others, 2010 (6) ALJ 380
  52. 52. • A Junior Engineer of UP Power Corporation was apprehended taking bribe of Rs. 70/- in the year 1979 and his prosecution for offences under Section 161, 162, 120-B of the IPC and under Section 5(2) of the Prevention of Corruption Act, 1947 was proposed. • Sanction for his prosecution was refused by the Chief Engineer on the ground that the trap laid on the accused Junior Engineer had legal defects. • The successor Chief Engineer found that his predecessor had travelled beyond his powers in refusing the sanction for prosecution of the accused Junior Engineer and granted sanction to prosecute him for the said offences. • Quashing the order of sanction passed by the successor Chief Engineer, a Division Bench of the Hon'ble Allahabad High Court observed that in administrative decisions, however, the power of review or recall is not to be presumed, until it is conferred by statute.
  53. 53.  The concession of the powers of review or recall in administrative matters, unless expressly conferred by the Statute, or where the order is vitiated on misrepresentation and fraud, will lead to frequent change of orders and uncertainty in governance. If the Chief Engineer (Hydel), Lucknow was not satisfied with the order passed by his predecessor refusing sanction to prosecute the petitioner on the grounds that he was not entitled to look into the evidence or the opinion of the Investigating officer, the matter could have been referred by him to the State Government. SANCTION FOR PROSECUTION AS REQUIRED U/S. 197 CR.P.C. & U/S. 19 OF THE P.C. ACT, 1988 & STAGE OF RAISING PLEA OF SANCTION Interpreting the provisions under Section 196, 197, 156 Cr.P.C., it has been held by the Supreme Court that the plea of sanction can be raised at the time of taking cognizance of the offence or any time thereafter.
  54. 54. But the plea of sanction cannot be raised or Sec. 197 Cr.P.C. is not attracted at the stage of registration of FIR, investigation, arrest, remand of the accused u/s. 167 Cr.P.C. or submission of the police report u/s. 173(2) Cr.P.C. When a case is under IPC and PC Act, 1947, question as to need of sanction u/s. 197 Cr.P.C. not necessarily to be raised as soon as the complaint is lodged. It can be raised at any stage and from stage to stage. If the cognizance of the offence has been taken without sanction, the plea of want of sanction can be raised by the accused after the commitment of the case and when the accused are called upon to address the court u/s. 227 and 228 Cr.P.C. In cases such as State of Karnataka v. Pastor P. Raju, AIR 2006 SC 2825, K. Kalimuthu v. State by DSP, 2005 (3) SCJ 682, Birendra K. Singh v. State of
  55. 55. SANCTIONS U/S 197 CRPC & U/S 19 OF PC ACT, 1988 ARE DIFFERENT : Sanction contemplated in Section 197 Cr.P.C concerns a public servant who "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" whereas the offences contemplated in the Prevention of Corruption Act, 1988 are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 Cr.P.C. Section 197 of the Cr.P.C & Section 19 of the PC Act operate in conceptually different fields. The Supreme Court differentiated this in Kalicharan Mahapatra v. State of Orissa, AIR 1998 SC 2595, Dr. Subramanian Swamy v. Dr. Manmohan Singh and
  56. 56. SANCTION UNDER SECTION 19 OF THE PREVENTION OF CORRUPTION ACT AND UNDER SEC 197 OF CODE OF CRIMINAL PROCEDURE CODE  Sanction is not required under section 19 of the P.C Act, if the public servant is no longer in service at the time the Court takes the cognizance of the offence, but is required under Section 197 Cr. P.C even where the public servant is no longer in service at the time the Court takes cognizance of the offence.  Under Section 19 of the P.C Act, sanction for prosecution is required for an offence punishable under section 7, 10, 11, 13, 15 of the Act, while under Section 197(1) Cr.P.C sanction is required for an offence committed while acting or purporting to act in the discharge of his official duty, and not otherwise.
  57. 57. CERTAIN SHORTCOMINGS OF SECTION 19 NEED OF SANCTION – UNNECESSARY BURDEN UPON PROSECUTION Under Section 19 it is provided that there is need of obtaining prior sanction from the relevant authorities in instances of corruption. No Court can take cognizance of the offences committed under the Act if this requirement is not complied with by the prosecution. The pre-requisite of taking sanction before taking cognizance is mandatory to the court. This prerequisite cannot be avoided in any case. We have seen in a number of instances that there is unnecessary delay in prosecuting public servants because of this provision. Equality before law and Equal Protection of Law are the cardinal principles of natural justice. But by making prior sanction necessary has attacked these principles considerably. There are some reasons in favour of making sanction necessary.
  58. 58. They should be given some protection to follow their duty without any fear of malicious or frivolous prosecution. The Hon‘ble Supreme Court has upholded the validity of the Section 19 many a times. i. Vineet Narain v. Union of India 1 SCC 226 It was held that a mere possibility of abuse cannot be a ground to declare a provision, otherwise valid, to be unconstitutional and that the exercise of power has to be regulated to effectuate the purpose of law. The most recent case is Manzoor Ali Khan v. Union of India where the Supreme Court has established the validity of the Section. In Manzoor Ali Khan v. Union of India , 30 August, 2018 The Hon‘ble Supreme Court has established the validity of the pre-requisite of sanction. The Court held that: ―Requirement of sanction has the object of protecting an innocent public servant against
  59. 59. Undoubtedly, there can be no tolerance to corruption which undermines core constitutional values of justice, equality, liberty and fraternity. At the same time, need to prosecute and punish the corrupt is no ground to deny protection to the honest. Mere possibility of abuse cannot be a ground to declare a provision, otherwise valid, to be unconstitutional. The Court further observed that a fine balance has to be maintained between need to protect a public servant against mala fide prosecution on the one hand and the object of upholding the probity in public life in prosecuting the public
  60. 60. The problem is that this Section is used as a shield to protect corrupt public servants from prosecution. The connivance of corrupt public servants with politicians is harming the object of the Act badly and some guidelines are needed in this regard. There are many instances where the accused got undue benefit of this provision and were left outside the reach of law and due process. The petitioner in Manzoor Ali Khan v. Union of India has given reference of following cases where many persons holding key top most positions in government were indicted even by the Supreme Court, but yet they could not be prosecuted because of non-approval of sanction for prosecution: i. Common Cause v. Union of India on 9 March, 2018 ii. Shiv Sagar Tiwari v. Union of India on 8 November, 1996 iii. M.C. Mehta v. Union of India (Taj Corridor Case) iv. Prakash Singh Badal v. State of Punjab on 6 December, 2006 v. Lalu Prasad Yadav v. State of Bihar and Others 2001 (2)
  61. 61. REPORT OF THE COMMITTEE ON DRAFT NATIONAL POLICY ON CRIMINAL JUSTICE, 2007 REGARDING SANCTION The Committee was appointed by Ministry of Home Affairs, Government of India under the Chairmanship of Prof (Dr.) N. R. Madhava Menon. The committee in its report observed that Corruption is largely responsible for delays in giving sanction. In this regard, the requirement of prior sanction to initiate action against corrupt public servants is unacceptable yet, it is retained in practice. Committee observed that political corruption is been noticed in giving sanction for prosecution of higher officials is common in India. The National Policy should find alternative methods to protect bonafide action of honest officials and the need to amend the present provisions of the Act granting sanctions.
  62. 62. REPORT OF THE SELECT COMMITTEE OF RAJYA SABHA ON THE PREVENTION OF CORRUPTION (AMENDMENT) BILL, 2013 It was presented in the Rajya Sabha on 12th August, 2016. In this report, the Section19 of Prevention of Corruption Act, 1988 was proposed to be amended. The suggestions include:  Sanction for initiating investigation against a public servant to be granted by Lokpal or Lokayukta.  Extending protection of prior sanction of the Competent Authority to retired government servants and providing for timeline for granting sanction by that Competent Authority.
  63. 63. 69 th RAJYA SABHA REPORT, 2014 It was a committee report on personnel, public grievances, law and justice under the chairmanship of Shantaram Naik. OBSERVATIONS AND SUGGESTIONS REGARDING SANCTIONING FOR PROSECUTION IN THE REPORT INCLUDE: Protection to Honest Public Servant  The safeguard of prior sanction for prosecution provided under Section 19 of the Act to protect public servant against malicious and vexatious prosecution for any bonafide omission or commission in the discharge of official duty.  The affording of such protection need to be based on careful appraisal of the facts and the process of decision making involved.  It was proposed to amend the said Section for extending the same protection to public servant after
  64. 64. Section 6A of DSPE Act, 1946 also protects honest civil servant from harassment in prosecution for things done in bonafide performance of public duty. It is proposed to extend the protection of prior approval of the Central Government before conducting any inquiry or investigation by Central Bureau of Investigation in respect of offences under the Prevention of Corruption Act, 1988 to civil servant holding such senior policy level position even after they cease to hold such position due to retirement, reversion, etc. It is also proposed to amend S. 10 to provide inter-alia that no request can be made, by a private person for the previous sanction of the appropriate Government or competent authority unless such person has filed a complaint in a competent court; and the court has directed the complainant to obtain the sanction for prosecution. In the case of a request from a private person, the appropriate Government or competent authority shall not accord
  65. 65. Any request for sanction for prosecution of a public servant will has to be decided by appropriate Government or Competent Authority within three months extendable by one month where consultation with Attorney General or Advocate General of State is necessary. SANCTION OF PROSECUTION BY APPROPRIATE GOVERNMENT OR COMPETENT AUTHORITY With sanction for prosecution of Government servants under Section 19 of the Prevention of Corruption Act, 1988 sanction required under Section 197 of the Code of Criminal Procedure, 1973 may be dispensed with or vice- versa. The Bill does not provide for action or punishment against sanctioning authority failing to meet time line prescribed under Section 19 of proposed Bill for giving sanction of prosecution. Special order spelling out reasons for denial for sanction for prosecution to be included in Section 19 of the proposed Bill. Delay in grant of sanction of prosecution by appropriate Government or competent authority beyond the
  66. 66. Sanctioning authority meticulously examine issues and material placed before it before giving sanction for prosecution so that prosecution is not hit in future by issues relating to sanction not being proper or without a speaking order. • Sanctioning authorities should not be summoned by the Court rather material or document placed before him for sanctioning prosecution may be produced before the Court. • Immunity and security to sanctioning authorities may be provided in the Act to exercise their discretion appropriately. Transferring power of sanction for investigation by Central Bureau of Investigation to Central
  67. 67. Delegation of sanction of prosecution to Empowered Committee comprising the Central Vigilance Commission and Departmental Secretary to Government. In the case of sanction against Secretary to Government, the Empowered Committee would comprise Cabinet Secretary and Central Vigilance Commission. Similar arrangement may also be made at State level. In case of refusal of sanction of prosecution reasons may be recorded and placed before the respective legislature. Prior sanction need not be taken in the cases of trap and disproportionate asset. Retiring as well as serving public servant should be treated at par regarding sanction of prosecution.
  68. 68. CONCLUSION We have encountered with the defects of this provision a number of times. This provision is proving to be a big hindrance in booking the criminals under the Prevention of Corruption Act. It is the cardinal principle of Criminal Justice system that once a crime is committed, the accused shall be booked and prosecuted, and to be punished if proved guilty. But the prior requirement of sanction is defeating the object of this principle. No special privilege or liberty should be given to the public servants in this context. Sometimes the process is so pathetic that creates the effect of acquittal even without holding any trial because of non-grant of sanction by the concerned authority because of various reasons. Another fallacy of the Act is that no proper guidelines or measures are provided under the Act about the process of sanction. There is urgent need of amending this provision of the Act, if not; introduction of proper guidelines or measures is the prime need in this context.
  69. 69. THANK YOU

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