Corruption causes considerable damage to the economy of the nation. The roots
of corruption are so deep that it is an uphill task to eradicate them. It is
only possible if and only if each citizen in our country follows the philosophy
To quench the thirst of greed and lust one must be drenched in
the shower of honesty and the foundation of the sublime lover should sprinkle
the magic drops on the eyes for the reality of life. Unless one tries to find a
golden key to open the gates of wisdom, the heavenly life remains as a myth and
we all are making futile efforts to attain divinity in our life.
The public man
should have crystal clear and transparent personality. Caesar’s wife must be
. - State v. Bangarappa
, AIR 2001 SC 222 (223)
Hopefully, all those imbued with a deep commitment to public service join the
ranks of public servants. Such public servants are required or expected to
discharge their public duties with an acute sense of integrity, fair play and
objectivity. But, alas, this is not so. There are public servants and public
servants who do not measure up to this benchmark.
Section 19 of the Prevention of corruption Act,1988 obligates previous sanction
necessary from the competent authority for prosecution of offences committed by
public servants under the said Act. Previous sanction is mandatory only for
prosecution and not for initiating investigation/inquiry. Also, it is restricted
only to serving public servants. Retired servants with impeccable integrity and
a fine track record of possessing robust decision -making abilities have
suffered the brunt of lack of protection under the law.
The Prevention of Corruption Act. 1988 provided for prevention of corruption and
for matters connected therewith. The ratification by India of the United Nations
Convention Against Corruption. the international practice on treatment of the
offence of bribery and corruption and judicial pronouncements had necessitated a
review of the existing provisions to the Act and the need to amend it so as to
till in gaps in description and coverage of the offence of bribery so as to
bring it in line with the current international practice and also to meet more
effectively, the country’s obligations under the aforesaid Convention. The
Government, therefore, brought forward the Amending Bill.
Section 19 of the PC Act creates a need for prior sanction to prosecute public
servants on corruption charges; i.e., prior government approval before judicial
proceedings can begin. This provision has a cousin in the general law on
criminal procedure – Section 197 of the Criminal Procedure Code 1973 [Cr.P.C.].
There used to be two points of difference between these provisions.
Section 19 PC Act only applied to active public servants, while Section 197 Cr.P.C. covered both active and retired public servants. Second, Section 19 PC
Act applied in almost all cases under that law, while Section 197 Cr.P.C.
applied to all kinds of cases, but only if the allegations concerned acts /
omissions of the public servant in discharge / purported discharge of official
The 2018 amendments to Section 19 PC Act have eliminated the first
distinction; now sanction to prosecute cases under the PC Act will also apply to
public servants employed “at the time of commission of the alleged offence”.
Section 19 PC Act will now also carry different rules on sanction in cases that
are not instituted by law enforcement, giving public servants more opportunities
to stop proceedings at the outset.
The provision of section 19 aims to balance two conflicting interests viz firstly,
It has long been recognised that public servants, who take bona fide decisions,
should be encouraged and provided protection in the event of false anonymous or
pseudonymous complaints/allegations or unsustainable inquiries initiated against
And secondly it is aimed that investigation into an allegation of crime is
not stifled at the threshold due to the power wielded by a public servant
Section 19 of the (Amended)Act, 2018 reads as follows:
(1) No court shall take cognizance of an offence punishable under sections
7,11,13 and 15 (section 10 now excluded) alleged to have been committed by a
public servant except with the previous sanction, save as otherwise provided in
the Lokpal and Lokayuktas Act, 2013-
(a) in the case of a person who is employed, or as the case may be, was at
the time of commission of the alleged offence 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, or as the case may be, was at
the time of commission of the alleged offence 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.
“Provided that no request can be made, by a person other than a police officer
or an officer of an investigation agency or other law enforcement authority, to
the appropriate Government or competent authority, as the case may be, for the
previous sanction of such Government or authority for taking cognizance by the
court of any of the offences specified in this sub-section, unless-
(i) such person has filed a complaint in a competent court about
the alleged offences for which the public servant is sought to be prosecuted;
(ii) the court has not dismissed the complaint under section 203 of
the Code of Criminal Procedure, 1973 and directed the complainant to obtain the
sanction for prosecution against the public servant for further proceeding:
Provided further that in the case of request from the person other than a police
officer or an officer of an investigation agency or other law enforcement
authority, the appropriate Government or competent authority shall not accord
sanction to prosecute a public servant without providing an opportunity of being
heard to the concerned public servant.
Provided also that the appropriate Government or any competent authority shall,
after the receipt of the proposal requiring sanction for prosecution of a public
servant under this sub-section, endeavour to convey the decision on such
proposal within a period of three months from the date of its receipt.
Provided also that in case where, for the purpose of grant of sanction for
prosecution, legal consultation is required, such period may, for the reasons to
be recorded in writing, be extended by a further period of one month.
Further the Explanation to the sub clause 1 , provides for who would be included
in the expression "public servant", states that it will include —
(a) who has ceased to hold the office during which the offence is alleged to
have been committed; i.e the retired employees
also comes under the ambit of
this section. Earlier it was restricted only to serving public servants.
servants with impeccable integrity and a fine track record of possessing robust
decision -making abilities have suffered the brunt of lack of protection under
the law. There have been instances too where unsustainable
inquiries/investigations have been initiated against public servants–serving and
post-retirement–on account of false complaints/allegations.
In such cases,
previous sanction for prosecution does not really help in that till such stage
of seeking previous sanction for prosecution arrives, the damage has already
been done to the image and reputation of a public servant by the initiation of a
preliminary enquiry (PE) or regular case (RC).
This process also included
unnecessary arrests in some cases of such public servants. It has long been
recognized that public servants, who take bona fide decisions, should be
encouraged and provided protection in the event of false allegations or
unsustainable inquiries initiated against them.
(b) who has ceased to hold the office during which the offence is alleged to
have been committed and is holding an office other than the office during which
the offence is alleged to have been committed. Abhay Singh Chautala v. C.B.I
7 SCC 141
(2) Where for any reason whatsoever any doubt arises as to whether the
previous sanction as required under sub-section (1) should be given by the
Central Government or the State Government or any other authority, such sanction
shall be given by that Government or authority which would have been competent
to remove the public servant from his office at the time when the offence was
alleged to have been committed.
So on the analysis of section 19, it can be construed as the object of the
section 19 of the act is to maintain a fine balance i.e. to protect a public
servant against a mala fide prosecution on one hand and the object of upholding
the probity in public life in prosecuting the public servant against whom
the prima-facie material in support of allegation of corruption exists, on the
Thus the primary objective is to protect the honest officers from
the tormenting harassment and mortification at the hands of those complainants
whom couldn’t be obliged by the said public servant. It is not merely a
formality rather an important safeguard to ensure discouragement of frivolous,
doubtful and impolite prosecution.
Previous sanction is mandatory only for
prosecution and not for initiating investigation/inquiry
. Moreover there is no
provision either in this act or in the CrPC, 1973 to start an investigation by
lodging an F.I.R. or through a court- initiated investigation under section
156(3) of CrPC.
The author is a second year law Student at Faculty of Law, University of
Delhi, further he is enlisted as a Para Legal Volunteer with Delhi State Legal