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Previous Sanctions To Prosecute Corrupt Sarkari Babus - Section 19 of Prevision of Corruption Act, 1

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 of contentment.

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 above suspicion. - 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.

First, 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 duties.

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 them.

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; and

(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.

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. 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 (2011) 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 other hand.

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.

References:

  1. http://www.egazette.nic.in/writereaddata/2018/187644.pdf
  2. https://www.livelaw.in/news-updates/no-need-to-seek-sanction-for-prosecution-for-a-retired-public-servant-allahabad-hc-read-judgment-149768
  3. http://www.legalservicesindia.com/law/article/1214/32/The-Prevention-of-Corruption-Amendment-Bill-2018
  4. https://economictimes.indiatimes.com/news/politics-and-nation/prevention-of-corruption-act- no-reason-for-not-taking-bold-decisions-now/articleshow/65157230.cms
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 Services Authority.

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