CHAPTERV NATURE AND SCOPE OF THE "SANCTION" TO PROSECUTE THE PUBLIC SERVANTS : There are many precautions necessary to initiate and proceed with a prosecution under The Prevention of Corruption Act, 1988. The first thing is sanction from the proper authority, before launching criminal prosecution under this Act. A. SANCTION A perusal of the provisions of the 1988, Act reveals that Section 19*1 of the Act constitutes an absolute bar except with the previous sanction to take cognizance of the offences under the Act irrespective of 1. Section 19 provides : (1) 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 sanction of the State Government, of that government; 191 (f.n. 1 contd..) (c) in the . case of any other person, of the authority competent to remove him from his office.' (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. (3) Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974) (a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure , of justice ; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. 192 the capacity of the public servant. This Act is a special enactment under which Public Servant, can be prosecuted for certain matters even if not covered under the Indian Penal Code, 186.0. The legislature therefore, simultaneously take adequate precautions as safeguards to such public servant by prescribing a mandatory provision relating to sanction, under Section 19 of the Act of 1988, which corresponds to Section 6 of the Act of 1947, except Sub-section (3) and (4) which are new. 1. Form of Sanction : There is no specific Form prescribed for according sanction under the Act. In Gokul chand Dwarkadas Morarka v. King2. The Privy Council held that there is no particular form of sanction as laid down in Section 6 of the Act of 1947 [now section 19 of the Act of- 1988]. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution, must prove by extraneous evidence that those facts were placed before the sanctioning (f.n. 1 contd..) Explanation : For the purposes, of this section, (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance, of a specified authority , or with the sanction, of a specified person or any requirement of a similar nature. 2. A.I.R. 1948 EC. 82 193 authority since the sanction is given in respect of the offence charged. The Supreme Court in Biswa Bushan Naik v. The State of Orissa3, laid down that under Section 6 of the Act of 1947 [Now Section 19 of the Act of 1988] it is not necessary for the sanction to be in any particular form. However when the facts are not set in the sanction, it has to be proved that sanction was given in respect of the facts constituting the offence charged. 2. Object of sanction for the prosecution : Discussing the object of the provision for sanction in Taswanth Singh v. State of Punjab4, the Supreme Court held that the authority giving the sanction should be able to consider for itself the evidence, before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. The court further held that it should be clear from the form of the sanction that the sanctioning authority considered the evidence and all circumstances of the case before it and then sanction was granted. Therefore, unless the matter can be proved by other evidence in the sanction itself, the facts should be referred to, 3. A.I.R. 1954 S.C. 359. 4. A.I.R. 1958 S.C. 124 194 indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case5. In Shiv Rai v. ^ Delhi Administration6, the Supreme Court once again considered the subject and re-affirmed the. guidelines given by it in Taswanth Singh’s Case7. In this case also the sanction order Ex. p. 13 not only stated the facts of the prosecution case in detailed which are necessary to the constitute the offence but the sanctioning authority after carefully examining the C.D. File, statement of witnesses etc., came to the conclusion that the accused who are public servants, have to be prosecuted in a court of law and upon a consideration thereof the authority decided to sanction prosecution. Therefore, it satisfies all the essential requirement of the sanction. In Somnath v. Union of India8, the Supreme Court again considered the matter and observed that for a sanction to be valid it must be established that sanction was given in respect of the facts 5. Map. 126. 6. A.I.R. 1968S.C. 1490. .. 7. Supra, n. 4. 8. 1971 Cri. L.J. 36. 195 constituting the offence with which the accused is proposed to be charged. Thought it is desirable, that the facts should be referred to in the sanction itself, nonetheless if they do riot appear on the face of it, the prosecution must establish aliunde by evidence that those facts, were placed , before the sanctioning authority. In this case, the sanction order, Ex. p.13 contains all the details in regard to the allegations made against the accused separately and they are in respect of facts constituting the offence with which the accused are proposed to be charged. In a subsequent decision in Mohd. Iqbal Ahmed v. State of A.B9. the Supreme Court restated the said law as under10: "... what the court has to see is whether or not the sanctioning authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. of sanction is not acrimonious exercise The grant idle formality but a or solemn an and sacrosanct act which affords protection to 9. 1979 Cri. L.J. 633 10. IcL at p. 635. A.I.R. 1979 S.C. 677. 196 Government Servants against frivolous prosecution and must therefore be strictly complied with before any. prosecution can be launched'against the public-servant concerned.” . Similarly in Raghu Bir Singh v. State of Harvana11. wherein the Supreme Court held that the prosecution must fail for an infirmity iri the sanction order. In State bv public prosecutor v. K.N. Vadalingam12. K.M. Natarajan, }. has held that the sanctioning authority has applied its mind to the facts and circumstances of the case before granting sanction for prosecution. In Perivasamv v. Inspector. Vigilance and Anticorruption Department13, wherein this case Swamy Durai, J. had held that the sanction order must contain the details as to on what basis the sanctioning authority satisfied itself that the case for sanction was made out. In State of Tamilnadu v. Damodaran14 the Supreme Court has observed that when the relevant records namely the statements under 11. A.I.R. 1974 S.C. 1516. See also Mansukhlal Vithaldas Chanhan v. State of Guiarat, 1977 Cri. L.J. 4059. 12. (1994) 1 Mad. L.W. (Cri) p,ll. 13. 1994 Cri. L.J. 753. 14. 1992 Cri. L.J. 522. - . 197 ' Section 161 of Code of Criminal Procedure, 1973 were produced before sanctioning authority and the sanctioning authority had granted sanction after perusal, the court is not justified in reaching the conclusion that the sanctioning authority had not applied its mind and mechanically granted sanction. In subsequent case namely Raia Singh v. The State15, the Supreme Court held that the sanctioning authority should apply its mind to the facts alleged arid only after being satisfied that the sanction was a necessary,. the sanction order should be signed. In this case, the sanction order gives the details of the records and his statement about perusal of the records before granting sanction. In Madan Mohan Singh v. State of Uttar Pradesh16, the Supreme Court held that the burden of proving that the requisite sanction has been obtained rests on the prosecution and such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts may appear on the face of the sanction or may be proved by extraneous evidence. Where the facts constituting the offence do not 15. 1995 Cri. L.J. 9554992 Cri. L.J. 522 relied on and followed. 16. A.I.R. 1954 S.C. 637 : 1954 Cri. L.J. 1656. 198 appear on the face of the letter sanctioning prosecution, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the. offence were placed before the sanctioning authority. Where this is not done, the sanction must be held to be defective and an invalid sanction cannot confer jurisdiction upon the court to try the case”. Likewise in Shri Vinod Lai v. State of H.R17. the issue involved is whether the court is empowered to take cognizance of offence under Section 13 of the Prevention of Corruption Act, 1988 without the grant of previous sanction for prosecution by the competent authority as required under Section 19 of the Act of 1988 is valid or not? The Himachal Pradesh High Court held that a trial without a valid sanction renders the proceedings ab initio void. D.B Sood, J. observed that1® : "... the close scrutiny of the provision provides for previous sanction for prosecution in case of a person employed in connection with the affairs of the union or State Government or other authority, is analogous to Section 6 of the 17. 1995 Cri. LJ. 2603. 18. Id* at pp. 2606 & 2607. 199 Prevention of Corruption Act 1947 (Old Act) except clause 19(3) Act of 1988 the (New Act) which provides that on the ground of irregularity of sanction,. no finding, of the court can. be reversed. Simultaneously, it has also been provided that no court can stay the proceedings . in these cases because of irregularity in sanction or an any other ground. In Catina of case, the Apex Court has held that the burden of proof is on the prosecution to show that the sanction granted for prosecution of an offender is valid. Such burden includes proof that the sanctioning authority had given sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority. The fact that the sanctioning authority signed the sanction for the prosecution on the file and not the formal sanction produced in the court makes no. material difference. I am supported in taking this View by . the observations made by their Lordships of the. Supreme Court in State of Rajasthan v. Tarachand Jain, 1973 SCC (Cri) 774 : 1973 Cri. L.J.1396. 200 The policy underlying. Section 6 Corresponding to Section 19 (New) of the Act of 1988 and similar sections like Section 197 of the code is that there should not be unnecessary harassment of the public, servant. The object as indicated above is to save the public Servant from frivobus and unsubstantiated. allegation. Existence of valid sanction is pre­ requisite to the taking of cognizance of the enumerated offences alleged to have been committed by the public servant. In the absence of such sanction, the court would have no jurisdiction to take cognizance of the offences. Thus, a trial without a sanction renders the proceedings ab initio void. A trial without a valid sanction where one is necessary under the above said provisions, jurisdiction by the court. is a trial without The said observations have been made in para 19 in the case of R.S. ■ Naik v. A.R. Antalav. A.I.R. 1984 S.C. 684 : 1984 Cri. LJ. 613...” In Raghubir Singh v. State of Haryana19, the Supreme Court held that “while it is true that provision for. sanction before prosecution of public servant should not be an umbrella for protection of corrupt 19. A.I.R. 1974, S.C. 1516 : 1974 Cri. L.J. 1062. 201 officers but a shield against reckless or malevolent harassment of officials whose upright discharge of duties may provoke unpleasantness. and hostility, that is an area of law reform covered, we find by the 47th report of. the Law Commission of India”. The Supreme Court in Mohd. Iqbab Ahmed v. State of Andhra Pradesh20, held that the grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned. The Supreme Court further held that in this case, since the prosecution sanction has been accorded mechanically and thus it can not be considered valid and legal. In Bhagirathi Routrav v. State of Orissa21, the Orissia High court held that it is well settled that where the law prescribes sanction 20. AXIL 1979 S.C. 677 : 1979 Cri. L.J. 633. See also M.S. Reddv v. State Inspector of Police, A.C.B., Nellore, Cri. L.J. 1993 p. 558. 21. 1991 Cri L.J. 209 at 212. See also Md. Sabir Hussain v. State of Orissa. (1983) 56 Cut L.T. 288 and Pumachandra Behera v. State (1989) 68 Gut. L.T. 625. 202 as the condition precedent to a prosecution, the court must not only be satisfied that the required sanction has been, accorded but that the sanctioning authority has accorded it after applying its mind to the facts constituting the offence. The Supreme Court in Mansukhlal Vithaldas v. State of Gujarat22, held that the grant of sanction for the prosecution under Section 19 of the Prevention of Corruption Act, 1988 cannot be an empty formality and an application of mind was imperative. Punjab and Haryana High Court in Gian Prakash Sharma v. C.B.I. Chandigarh23, held that the sanctioning authority should apply its mind independently to the facts and circumstances of the case and also the materials on the record before taking an appropriate decision for granting or refusing the sanction for prosecution. Likewise the A.R High Court, in T Bathaiah v. State24, held that when sanctioning authority has applied his mind by looking into all materials placed before him, then the order granting sanction, for prosecution is proper. 22. 1997 (7) S.C.C. 622. See also State of Bihar, v. PR Sharma, A.I.R. 1991 S.C, 1260 and State v. R.C. Anand, 2004 Cri L.T. 3121. 23. 2004 Cri. L.J. 3817. 24. 1995 Cri. L.J. 1665. 203 In an earlier case namely, Anand Gonal Gurve v. State of Maharashtra25, where in the validity of sanction to prosecute was challenged. The court held that when there is no evidence as to what material was placed before sanctioning authority and also lack of evidence as to what material was considered by the sanctioning authority while granting sanction and under these circumstances grant of sanction is vitiated. B.U. Wahane, J. said26: “There is no evidence to show that material was placed before Shri Sathe, Conservator of Forest, and there is also no evidence to show that what material has been considered by Shri Sathe while granting sanction for prosecution of the appellant / accused. Therefore, the alleged sanction Exh. 236 is bad in law. The prosecution of the appellant / accused, therefore, being without a valid sanction, without compliance of the Section 6 of the Act, the entire trial including the conviction and sentence recorded against him, is void ab initio Further said : “It needs mention that though the sanction for . prosecution was accorded by Shri Sathe, Conservator of Forest (EW. 14), to prosecute the appellant / accused for the offence punishable under Section 409, 420, 120 (b) of the Indian Penal Code arid under Section 5(1) (c) (d) read with Section 5(2) of the prevention of corruption Act 1947 the learned trial court has framed the charges under Section 468 read with S.34, 465 and 471 read with S.34 of the Indian Penal Code, and also under S. 5(1) (c) read with S.5(2) of the prevention of Corruption Act 1947. It is thus crystal clear that no sanction was accorded by appointing and dismissing authority, i.e., Shri Sathe, the Conservator of Forest, under Sections 468, 465 and 471. Therefore, the trial under these sections is ab initio illegal In L.K. Advani v. Central Bureau of Investigation27. Mohd. Shamin, J. observed that28: "... Now the question . which falls for determination is as to whether the prosecution was under an obligation to obtain a sanction 27. 1997 Cri. L.J. 2559. 28. kL at pp. 2570 & 2571. 205 before launching the prosecution against, Shri . V.C. Shukla. Shri Shukla is being prosecuted in the present case for the offences which he is alleged to have committed during the period from February 1990 to January 1991 as per the charge framed against him on August 19, 1996. Shri V.C. Shukla was a member of Parliament from December 31, 1984 to July 26, 1989. Thereafter he was a member of Lok Sabha from December 2, 1989 to March 13, 1991. The Parliament was. constituted on June 20, 1991. Shri V.C. Shukla was a member of Parliament on the date of the presentation of the charge sheet against him on January 23, 1996. Thus the offences alleged against Shri VC. Shukla were in respect commission January 1991. of acts between of omission February 1990 and and The above said period fall within his Tenure as a member of the Lok Sabha during the period from December 2, 1989 to March 13, 1991 i.e., 9th Lok Sabha. The said Lok Sabha was dissolved on March 13, 1991. Thus the date on which the charge sheet was filed Shri Shukla was no more a member of the erstwhile Lok Sabha i.e., 9th Lok Sabha. He was a member of a newly Constituted House. Hence it can be safely concluded there from that. the acts of omission and commission were committed 206 by him in his capacity as a member of the earlier Lok Sabha i.e.,. the 9th Lok Sabha. I am therefore of the view that no sanction was required on the date of the charge sheet i.e., January 23, 1996 for his prosecution in respect' . of the acts of omission and commission alleged to have been committed during the period from February, 1990 to January 1991, as he was, now a member of newly Constituted Lok Sabha [10th Lok Sabha].” Mohd. Shamim, J. further observed that :29 "... I am fortified in my above view by the observations of their Lordship of the Supreme Court as reported in K. Veeraswamy’s Cas [1991 (3) SCC 655] wherein it was observed by their Lordship of the Supreme Court (Para 62) after relying on the observations in S.A. Venkataraman v. State, A.l.R. 1958 S.C. 107 : [1958 Cri. L.J. 254] that no sanction for prosecution of the appellant under Section 6 was necessary since he had retired from the service on attaining the age of superannuation and was not a public servant on the date of filing of the charge sheet. To reproduce the exact words, their Lordship opined....:” 29. IdL at p. 2571. 207 ...“The scope of Section 6 was first considered by this court in S.A. Venkataraman case, where it was observed [at p. 1048] that Section 6 of the Act must be considered with reference to the words used in the section independent of any constitution which may have been placed by the decisions on the words used in Section 197 of Cr. PC. 1973. The court after analysing the terms of the section further observed [at. p. 1046] than there is nothing in words used in Section 6(1) even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein the case of a person who had ceased to be a public servant at the time. The court was asked to take cognizance, although he had been such a person at the time, the offence was committed...” 208 In a recent case namely Pravin Kumar v. State30, the Goa Bench of Bombay High Court, restated that granting of Section under Section 19, for the prosecution of Public Servant is not an empty formality and emphasising its importance N.A., Britto, J. said31 : There is no doubt that granting of sanction is not an empty formality and it is essential that the. provisions as regards the grant of sanction should be observed completely, the object of granting sanction being that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances of. the case must be sanctioned or not. the 30. It is necessary for sanctioning authority . to 2005 Cri. L.J. 2714. consider the See also State v. R.C. Anand, 2004 Cri. L.J. 3121; State of Bihar v. EE Sharma, (1992) Supp. (1) S.C.C. 222; Kalpnath Rai v. State (through C.B.I.) (1997) (8) S.C.C. 732 ; State (Anti-corruption Branch) Govt, of N.C.T. of Delhi and another v. Dr. R.C. Ananad and another, (2004) 4A.C.E. 612. 31. kL at p. 2719. 209 evidence before it and all the circumstances of the case whether the sanction is required to be given or not. As far as this case is concerned, the sanction has been given by under- secretary on behalf of the president of India, in the Ministry of Defence of Government of India. Whether such an under Secretary was authorised to convey the sanction under the Rules of Business is a matter which would be required to be gone into at the trial and not at the prima facie stage of framing the charge. The sanction dated 24-9-2003 issued by order and in the name of the president of India and signed by the XJnder-Secretary to the Government of India in the Ministry of Defence dated 24-9-2003 has been produced and the same on the face of it at the prime facie stage, has got to be considered as a valid sanction obtained for prosecuting the accused...” 210 3. Essential Pre-Requisites of a valid Sanction : The Supreme Court in Anand Gopal Gurve laid down the following as the essential Pre-Requisities of a valid Sanction :32 A sanction must be given by a competent authority after perusal of record. For the prior sanction no type-design form or prescribed form or particular set of words has been prescribed. Hence in accordance with commonsense and the requirement of justice, all that the order of sanction must show that all relevant material were placed before the sanctioning authority, which has considered those materials and passed the order as a consequence of it. The object of this sanction is nothing more than to ensure the discouragement of frivolous, doubtful and impolitic prosecution33. Since appointing authority has inherent power to remove the employee, therefore he is competent to give sanction34. The decision of 32. Anand Gopal Gurve v. State of Maharashtra. 1992 Cri. L.J. 3064 at 3070 . (Bom). 33. Public Prosecutor v. G. Sadha Gopalan, A.I.R. 1953 Mad. 785. 34. State of Maharashtra v. Rambhau Fakera Paunase. 1999 Cri. L.J.,475 at 476. (Bom). 211 Supreme Court in laswanth Singh v. State of Punjab35, is an authority for the proposition that the sanction under the prevention of Corruption Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness. The object of this provision is that the authority giving the sanction should be able to considered for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden and that it should be clear from the form 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. In Niranian Khatua v. State of Orissa36, the court authoritatively decided that where the terms of a sanction are as imperative as those of Section 19 of the 1988 Act. (Old Section 6 of the 1947 Act), a valid sanction is a condition precedent to a valid prosecution. In Indu Bhushan Chatteriee v. State37, wherein the court 35. 1958 S.C.J. 355. 36. 1990 (2) Crimes 648 at 656 (Cri). 37. A.I.R. 1955 Cal. 430 212 held a valid sanction means sanction given after a consideration of relevant facts. Those facts, it.has been laid down, may appear on the face , of the sanction itself and where they do so appear the task of prosecution is easy. Where they do not appear on the face of the sanction, the prosecution has liberty of proving such facts by other evidence but it is not liberty alone. It is also a duty because unless the prosecution proves by reference to other evidence that sanctioning authority had in fact applied his. mind to the relevant facts a proper sanction cannot be made and it cannot be proved that the foundation of prosecution had been well and truly laid. In a subsequent case, State of Orissa v. Mrutuniava Panda38, wherein the Supreme Court held when there is no material showing that failure of justice occasioned due to error or irregularity in sanction, then sanction is valid and conviction also valid. M.K. Mukherjee, J. said39: 38. A.I.R. 1998 S.C. 715. 39. Ibid: See also Panchasari Shidramappa Yeligar v. Shiggaon Taluk Shikshana Samithi, (20001 5 Kant. L.J.174 ; M. Nagarai v. State of Karnataka. 2002 Cri. L.J. 903. 213 “On perusal of the impugned Judgement we find that the High Court’s attention was not drawn to the provisions of Section 465 of the code of Criminal Procedure 1973 which expressly lays down, inter alia, that any error or irregularity in any sanction for the prosecution shall not be a . ground for reversing an order of conviction by the appellate court unless in the opinion of that court a failure of justice has in fact been occasioned thereby. The section further lays down that in determining whether any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall . . have regard to the fact whether the objection could and should have been raised at an earlier stage of the proceedings. In view of the above provisions the High Court was required to decide, after recording a finding that there was some error or irregularity in the sanction, whether such error or irregularity occasioned a failure of justice and further whether such objection regarding the validity of the sanction was raised in the trial court. Admittedly, the above point was not raised in the trial court nor do we find anything on record from which it can be said that the error or irregularity in the sanction (even if we assume that the finding of the High Court in this regard is correct) did occasion any failure of justice. In that view of the matter it must be said that the High Court was not at all justified in acquitting the respondent on the 214 ground that there was no valid sanction to prosecute him. Since on facts, the concurrent findings of the courts below are based on proper appreciation of evidence and supported by cogent reasons. the judgement of the High Court has got to be reversed...” In State of Tamil Nadu v. Rajendran40, sanction was accorded by the City Commissioner of Police, Madras. commenced. On that basis the trial The High Court found that all the relevant materials including the statements recorded by the Investigating Officer was not placed for consideration before the City Commissioner of Police, Madras, because only a report of the vigilance department was placed before him. The High Court came to the finding that although the personal Assistant to the City Commissioner of Police, Madras has deposed that proper sanction was accorded by the City Commissioner of Police after going through the detailed report of vigilance, but the statements recorded during the investigation was not placed before sanctioning authority and therefore, there was no proper application of mind by sanctioning authority, as such sanction was invalid. 40. (1998) 9 S.C.C. 268. 215 In C.S. Krishna Murthy v. State of Karnataka41, the Supreme Court held that the ratio is, sanction Order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate, to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No. 40 and has deposed about his application of mind and after going through the report of Superintendent of Police, C.B.I. and after discussing the matter with his legal department, he accorded sanction, it is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions- Judge is not correct and the view taken by learned Single Judge of the High Court is justified. The issue in Sukhdev Singh lamwal v. State of Maharashtra42 is whether sanction accorded under old Act, 1947 can be 41, A.I.R. 2005 S.C. 2790. 42. 2004 Cri. L.J. 4338. See also Tagan M. Seshadri v. State of Tamilnadu. A.I.R. 2002 S.C. 2399. 216 treated as sanction under New Act,. 1988. held that there is not a valid sanction. The Bombay High Court Hence framing of charge and conduct of trial under New Act, 1988 vitiates the trial and therefore . conviction and sentence imposed upon the accused is liable to be set aside. D.G! Deshpande, J. observed that43: "... where the sanctioning authority clearly and specifically admits that. the sanction accorded under the old Act of 1947. was If that is so, reference to the new Act of 1988 to the sanction is of no help because the sanction is the outcome of application of mind of the sanctioning authority and if the sanctioning authority on applying it’s mind comes to a conclusion and grants sanction to prosecute the appellant under the old Act, the prosecution cannot be permitted to argue that the sanction should be taken as one under the new Act. The act of giving sanction is not an act, mechanical or stereo type act,-and therefor, sanction under the Act of 1947 cannot be taken or treated as sanction under the new Act 1988...” 43. Id* at p. 4341. 217 4. Right to hearing and according sanction to prosecute : In Hariraman v. State44, wherein the Madras High Court held that opportunity , of hearing before the sanction is granted is not required. Whereas the Bombay High Court in a case namely State of Maharashtra v. R.K. Porker45, held that where sanction is to be given for prosecution of the accused for possession of property disproportionate to his known source of. income, then the accused must be given an. opportunity to explain sources of his assets, before sanction for the prosecution is given. The Supreme Court in State of Maharashtra v. Ishwar Piraii Kalpatri46 following Deepak Chowdarv47. held that there is no provision in law otherwise which makes it obligatory of an opportunity of being heard to be given to person against whom report of a case under Section 44. 1995 Cri. L.J. 3527 at 3533 (Mad). See also Babu Ahmed v. State. 1985 Cri L.J. N.O.C. 78 (Delhi). 45. 1995 Cri. L.J. 2521 at 2522 (Bom). 46. A.I.R. 1996 S.C. 722 : 1996 Cri L.J. 1127. • 47. Supdt., of Police (C.B.I.) v. Deepak Chowdarv. A.I.R. 1996 S.C. 186. 218 5(1) (e) of the Prevention of Corruption Act, 1947 (corresponding to Section 13(1) (e) of the Act of 1988) is to be lodged. In fact the opportunity which is to be afforded, to the delinquent officer under Section 5(1) (e) to satisfactorily explaining about his assets and resources is before the court, when the trial begins and not at an earlier stage. Thus the finding that principles of natural Justice had been violated, as no opportunity was given before the registration of the case, would be clearly unwarranted. In State M.R v. Dr. Krishan Chandra Saksena48 the. Supreme Court held that it is now well settled that at the stage of granting of sanction the accused need not be heard. Criminal proceedings should not be quashed before the stage of trial on a mere ground of invalid sanction. If in an evidence the sanction is found invalid, the proceedings would result in favour of the accused. It is submitted that the veiw of the Supreme Court that a delinquent official is not legally entitled for an opportunity of hearing at the stage of grant of sanction for prosecution requires reconsideration and a second look. 48. The denial of opportunity of-hearing to the (1997) 1 Crimes 4 (S.C.) 219 delinquent is not only against the legal maxim “Audi Alterm Partem”, which envisages, that nobody should be unheard, hut also runs counter to the principles of natural. Justice which are foundations of Rule of Law. If the delinquent official succeeds to produce cogent and clinching evidence before the concerned competent authority, it may not allow the prosecution and the public servant thus spared the mental agony of a criminal trial. It may be pointed out that the object underlying the opportunity of hearing at the stage of prosecution sanction obviously help the competent authority to decide with an open mind, whether it is necessary to allow prosecution. If it decides not to allow prosecution the matter ends there, which saves much time of the court as also human effort and cost. Once the immediate authority does not accord sanction, the Superior authority should refrain from interfering in the discretion of the former unless there are good and valid reasons to do so. Such reasons of not agreeing with the immediate sanctioning authority, in all fairness, should be recorded in the sanction order itself for the appreciation of the trial court. This in fact save honest and innocent government servants from harassment and trauma of false accusation49. 49. Som Dutt Vasudeya, “Is a delinquent legally entitled for hearing, at the stage of grant of sanction by the competent authority for. his prosecution in a case under the prevention of corruption Act, 1988?”, Cri L.J. 2004 Journal p.215 at p. 218. 220 5. Burden of proving the requisite Sanction : A Sanction order for the Prosecution of a Public Servant, is. a public document, falling under Section. 74 o'f. the Indian Evidence Act. Hence it can be proved either filing the original or its certified copy, in accordance with the provisions of Section 77 of the Indian Evidence Act. The burden of proving the requisite sanction lies on the prosecution. . The Supreme Court had an occasion to considered this issue in Madan Mohan v. State of Uttar Pradesh50, wherein the Supreme Court held that the Burden of proving the requisite sanction lies on the prosecution and such burden includes proof that the sanctioning authority had given the sanction in reference to facts on which the proposed prosecution was to be based and added that these facts may appear on the face of the sanction or may be proved by extraneous evidence that the material facts constituting the offence have been placed before the sanctioning authority. Where it is not done, the sanction will be defective or invalid and it cannot confer jurisdiction upon the court to try the case. In Madhab Patnaik v. The State51, the court held that where the facts of the case have riot been clearly referred to on the face of the sanction, the prosecution will have to prove by extraneous evidence that 50. A.I.R., 1954 S.C. 637. 51. A.I.R. 1955 Pat. 317. 221 all the facts necessary to enable to sanctioning authority to decide whether sanction should be accorded or not were placed before him. Then the sanction has fulfilled the requirements of law. In Konsam Tharongou Singh v. The Union of Territory of Manipur52, the court held that when the facts constituting the offence were neither referred to on the face of the sanction nor is it proved by extraneous evidence that they were placed before the sanctioning authority and the order of sanction indicates that the sanctioning authority granted the sanction of prosecution on the belief that grant of sanction by him was mere formality and that he could safely relive on the opinion of the police that it is a fit case for prosecution then such a sanction was invalide. Likewise, the Supreme Court in The State of Punjab v. M.L. Puri53, the validity of a sanction accorded by the Chief Minister has to be decided both on the basis whether the Chief Minister had seen the case file and also on the basis whether the Chief Secretary could be said to have signed the sanction order. Where the materials placed before the court did not show that the Chief Minister had seen the case file, it was held by the Supreme Court that the sanction was not properly proved. Further the Supreme Court in State of Rajastan v. Tarachand Jain54, held that : . 52. 1971 Cri. L.J. 802. 53. 1975 Cri. L.J. 1425. 54. A.I.R. 1973 S.C. 2113. 222 "... The burden of proof that the requisite sanction had been obtained rests. upon the prosecution. Such burden includes proof that the sanctioning authority. had given the sanction in reference to the facts on which the proposed prosecution was to be based. . These facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after these facts had . been placed before the sanctioning authority...”. A valid sanction is regarded as a condition precedent to a valid prosecution of a public servant under the Act of 198855. The burden of proving that the requisite sanction for the prosecution has been obtained from the competent authority rests on the prosecution and such burden includes proof that the sanctioning authority had given the sanction in reference to the facts , on which the proposed prosecution was to be based. It is plain that the sanction must be correlated to facts on which the prosecution is to be launched. Where the prosecution instead of proving what facts were placed before the sanctioning authority withholds them from the court, then sanction must be hold to be defective and an invalid sanction cannot confer Jurisdiction upon the 55. Ali Hasan v. State of U.R. 1991(1) Crimes 406 at 410. 223 court to try the case56. However it is not necessary for the prosecution to examine the sanctioning authority in the witness Box57. Though it is not necessary, to examine the sanctioning authority in the, witness box, on account of Section 74 of Indian Evidence Act58 in every case but in 56. Gokulchand Dwarkadas Morarka v. King. A.I.R. 1948 EC. 82. See also State of Raiastan v. Tarachand Tain. (1973) 2 S.C. W.R. 262. 57. Vishwanath v. State of Maharashtra. (1995) 2 Mah. L.R. 689 the Bombay High Court held that the sanction order in the present case does show a clear-cut application of mind, it will be open for this court to accept the said sanction order. One look at the sanction order will show that facts constituting the offence have been properly written out there and the authority was none else but a District and Sessions Judge himself has choosen to grant the sanction. That by itself is sufficient to hold that the sanction was given with an adequate application of mind. Hence failure to examine sanctioning authority not fatal to the prosecution case. 58. Section 74 of Indian Evidence Act.: Public Documents : The following documents are public documents (1) Documents forming the acts or records, of the Acts (i) of the Sovereign authority ; (ii) of official bodies and tribunals ; and (iii) of public officers, legislative, Judicial and executive, of any part of India or of the commonwealth, or of a foreign country. (2) Public records kept in any state of private documents. Case :Banamali Das v. Raiendra Chandra. A.I.R. 1975. S.C. 1863. S.C. held Section 74 provides that documents forming the Acts or records of the acts of Public Officers are Public Documents. 224 appropriate cases where sanction does not disclose it that it was given after perusal of entire evidence on record, prosecution if fails to examine such authority it may vitiate trial59. Hence the burden of. proof is on the. prosecution to show that the sanction accorded in a given case is valid in law60. B. ROLE OF SANCTION AUTHORITY61 : Effective, speedy and successful prosecution is the need of the hour. But it must also be borne in mind that there should not be unnecessary harassment of innocent public servant. The reason why sanction has been made essential for prosecution of a public servant is to protect him from the harassment, which he may have to undergo at the behest of the disgruntled person.. 59. Shivachallappa v. State of Maharashtra. 1993 Mah. L.J. 573 at 578. Same view is expressed in Chitarania T. Mirke v. State of Maharashtra. 1993 Mah. L.J. 602 at 605. 60. N.M. Raiendran v. States 1996(3) Crimes 32. See also Suraimal v. State (Delhi Administration). 1980 M.L.J. (Cri.) 73 S.C.; Iqbal Ahmed v. State of A.P.. A.I.R. 1979 S.C. 677; State of Tamilnadu v. Damodaran. 1992 Cri. L.J. 522 S.C. 61. I.A. Ansari, Effective and Successful Prosecution of Corruption Cases”, Cri L.J. (2000) p. 132 at p. 134. 225 There are instances, where prosecution has been launched with due sanction, but. the case ends in discharge. This shows public money was wasted on a trial, which could have been avoided if the sanctioning authority had applied its mind judiciously and if he had the benefit of proper legal advice of a competent prosecution counsel. There is yet another aspect of the matter which needs some attention. Many a time cases remain pending not only for months but for years together for the purpose of granting sanction. The sanctioning authority shall be vigilant enough to. dispose of the matter either by granting sanction or refusing to grant the same. If possible appropriate provisions may be made in law that if the sanctioning authority does not grant sanction after a prescribed period, then the sanction shall be deemed to have been rejected. A close scrutiny of Section 19 of the Prevention of Corruption Act, 1988 shows that no time'limit is prescribed for granting of sanction order. The Supreme Court in order to fill the lacunae, for the first time in Vineet Narain v. Union of India62, popularly known as “Hawala case”, held that sanction order is to be passed within 3 months. J.S. Verma, C.J.I. observed that63: "... Time limit of three months for grant of sanction for prosecution must be strictly adhered . : to. However, additional time- of one month may ­ be allowed where , consultation is required with the Attorney General or any other officer in the A.G.’s Office- ...” In l.V. Reddy v. State64, the issue before the Andhra PradeshHigh Court for consideration is about the obtaining of sanction beyond the period stipulated i.e. 3 months by the Supreme' Court in Vineet Narain’s case65 and also beyond the period stipulated by the Central Vigilance Commissioner pursuant to the Supreme Court direction the Vigilance Commissioner fixed time frame of one month for granting sanction by way of departmental instructions. The High Court of Andhra Pradesh held that for violation of departmental instructions accused cannot complain. Consequently failure to issue sanction within time frame of one month does not render sanction order void or invalid. S.R.K. Prasad, J. observed that66: 64. 2003 Cri. L.J. 540. 65. Supra n. 62. 66. Id. at p.546. 227 It is only the Supreme Court that fixed the time limit for granting of sanction order: in the aforesaid decision.. Pursuant to the same, the Vigilance Commissioner has fixed his own time limit for issuing sanction orders. The statute does not contemplate of issuing sanction orders within a particular period of time. At best, the circulars and directions issued by the Vigilance Commissioner only amount to departmental instruction given to them. For violation of departmental accused instructions, cannot, complain if a departmental officer failed to attend to his duty or does not perform his duty within the stipulated time, he is liable for the departmental action. When statute does not prescribe a time limit for sanction orders, the accused cannot department rules. take advantage of the He can complain against the officers by their lethargy and neglect of duty, which may lead to initiation of departmental enquiry against punishment. them and consequential When Supreme Court wanted three months time to be fixed for issuing the sanction orders, the Vigilance Commissioner fixed only one month time. The moment the Vigilance 228 Commissioner fixed the time, the directions of the Supreme Court will not be in operation, as necessary rules are framed for' fixing the time limit by the Department. In that view of the matter, the Supreme Court directives hold good only up to the time the lanunae is filled up by the Department by framing the rules. The directions given by the Vigilance Commissioner have to be viewed and considered in that angle. . Non fixing of the time in the statute for issuing sanction orders will only lead to one conclusion. The failure to issue sanction orders within the time frame does not render the sanction orders invalid or void..” The Supreme Court had an occasion to discuss this issue, in Mansukhlal Vithaldas Chauhan v. State of Guiarat67, where in this case the Supreme Court observed normally, when the sanction is held to be bad, the case is remitted back to the authority for re-consideration of the matter and to pass a fresh order of the sanction. 67. (1997) 3 Crimes 301 (S.C.). 229 1. Whether the Court has the power to take away the discretion of sanctioning authority : This issue came before the Supreme Court in Mansukhalal Vithaldas Chauhari v. State of Guiarat68, the Supreme Court held that the Section 19 of the Prevention of Corruption Act, 1988 has given the sanctioning authority, the discretion to grant the sanction or not to sanction for the prosecution of accused. Such discretion cannot be taken away by the High Court. The Supreme Court further held that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction, whether sanction for prosecution has to be granted or not ? The Supreme Court further ruled that the High Courts should not usurp the discretion of the public authority under the law to take a decision in this regard. The Supreme- Court made it clear that the High Courts do not have the power to direct the sanctioning authority to accord necessary approval for prosecution but they could certainly quash the arbitrary order and issue a direction to the authority to exercise its own discretion in accordance with law. 68. Ibid., 230 2. Authority to grant sanction - Authority competent to remove : Who has to grant sanction ? Authority competent to remove should grant sanction; To start with, it is necessary to discuss the meaning of the words “to remove him from his office” appearing in Section 6(2) of the 1947 Act, now in Section 19(2) of the 1988 Act. The words “to remove him from his office’ are significant and would clearly show that the authority contemplated therein is the one competent to remove that public servant from his office and not only public servant holding the office held by the accused. Section 6 of the 1947 Act cannot override the provisions of the Constitution and Consequently, sub-section (2) thereof can be made applicable to only such cases where it can be ascertained with reasonable certainty as to who had actually appointed the accused person, or where by change in rules, the authority who had actually appointed him was no longer competent to remove,him from his office69. 69. . Baijnath v. The State. A.I.R. 1956 Bhopal 36 at pp. 38 to 40. 231 A sanction accorded by an authority not competent to do so is no sanction in the eye o£ law and such a defect is not a mere technical defect, but goes to the very root of the matter vitiating the entire proceedings70. To grant sanction against a Chief Minister is exclusive function of the Governor and none else71. Section 6(1) (c) stipulated that the removing authority will be the sanctioning authority. In view of Article 311(1)72 of the Constitution, the removing authority cannot be subordinate in rank to the appointing authority. Answering the question whether the removing authority can be higher in rank to the appointing authority, Misra, J. held in Sampuran Singh v. State of Punjab73. 70. Union of India v. A'.D. Bali. 1978 Cri. L.J. NOC 14. 71. T. Tavalalitha v. Dr. M. Chenna Reddy. 1995 (2) Mad. L.J. p. 187. . 72. Article 311 (1). No person who is a member of a civil service of the union or an all India service of a State or holds a civil post under the union or a state shall be dismissed or removed by an authority, subordinate to that by which he was appointed, 73. A.I.R. 1982 S.C. 1407. 232 “There is no quarrel with the proposition of law laid down in the case, but the. question for determination here is who is the sanctioning authority within the meaning of Section 6(1) (c) of the 1.947 Act. Section 6(1)(c) of the said Act stipulates that removing authority will be the ... sanctioning authority. So by necessary implication the removing authority may be higher in- rank to the appointing authority74”. The vital issues regarding sanction under Section 6 of the 1947 Act are decided in R.S. Navak. v. A.R. Antulav75. The first issue is whether sanction for prosecution is necessary in a case where the accused is ceased to be a public servant on the date of taking cognizance. The court held that when the offence is alleged to have been committed, the accused was a public servant, when he has ceased to be a public servant, no sanction would be necessary for. taking cognizance of the offence against, him. The . court made it clear that if the accused has ceased to be a public servant, at the time when the court is called upon to take cognizance of the offence alleged to have been committed by him as a public servant, section 6 of the 1947 Act is . not attracted76. 74.. IcL p. 1408. . 75. . A.I.R. 1984 S.C. 684. See also S.A. Venkataratnam v. State. A;I.R. 1958 S.C. 107. 76. IcL P- 694. 233 The Supreme Court had an opportunity to decide another vital issue, where accused is holding more than one public offices, whether prosecution for sanction is to be obtained from the authority competent to remove, accused, from the office which the accused is allegedly misused or abused or sanction is to be obtained from all the competent authorities. Deciding this issue Desai, J. said : upon a true construction of Section 6, it is implict therein that sanction of that competent authority alone would be necessary which is competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motive and for which a prosecution is intended to be launched against him77”. In T. Guruswami v. State78, an offence is alleged to have been committed by the accused / appellant while employed in N.MD.C., a Government of India undertaking. Subsequently accused resigned from N.M.D.C. and joined a post under Director General of Geological Survey of India. Regarding proper authority to sanction for prosecution, Ramanujula Naidu, J. of Andhra Pradesh High Court held : 77. IcL P- 698. 78. 1979 Cri. L.J. NOC 204. 234 "... N.M.D.C. which would have been competent to remove. accused form service at the time when . the offence was alleged to have been committed and not Director General of Geological Survey79.” The same question arose on similar facts in V.K. Sharma v. Delhi Adminsitration80. The appellant was a quasi permanent lower division clerk of the Central Secretariat Clerical Service, Grade II and was borne on the Cadre of Community Development and Co-operation. EW. Iyer was the Deputy Secretary of the Department. But the appellant has been at the time of committing the alleged offence of accepting Rs. 80/ - as bribe when he was working in the post of Rationing Inspector having been appointed to that post some time back. The issue involved in this case was whether the sanction obtained by the prosecution from the Deputy Secretary of that department was valid or not or whether sanction was to be obtained from the Chief Controller of the Rationing. Uphelding the judgement of High Court, the Supreme Court held : “The appellant was an employee of the Central ■. Secretariat at the time of commission of offence but was appointed to the temporary post of 79. IbkL. ‘ 80. A.I.R. 19.75 S.C. 899. - : 235 Inspector Rationing .... Even assuming that the appellant did not come to the Rationing Department as a loanee from the Central Secretariat, there is no difficulty in appreciating ; . . . . that he must have . come temporarily to the Rationing Department with his: lien on his post in the Central Secretariat. While dismissing the appeal held that P.W. Iyer was the competent authority to accord sanction for the prosecution of the case81.” If any doubt arises whether the sanction is to be given by the Central Government or State Government or any other authority, it shall be given by appropriate Government or the authority which was competent to remove that person from the office. In RV Narasimha Rao v. State (C.B.I. /S.RE.)82 in this case the Supreme Court held that an authority competent to remove a public servant necessarily contemplates an authority competent to appoint him. The authority to remove a Member of Parliament is the President of India, under the provisions of Article 103 of the Constitution of India83. In a subsequent 81. Id, at p. 901. 82. (1998) 4 Supreme Today 5. 83. Article 103 of the Constitution of India : Decision on questions as to disqualifications of members : (1) If any question arises as to whether- a member of either House of Parliament has become subject to any of the disqualifications 236 case, Superintendent of Police v. Sonam Wangdi84, the issue before the court is who is the competent authority to grant sanction for prosecution i.e., either Central Government or State Government.? The court held tht the respondent, Sonam Wangdi, on the date of taking cognizance was employed in connection with the affairs of union and was. not removable from his office except by the Central Government hence the competent authority to grant sanction to prosecute is Central Government. R.K. Patra, J. of Sikkim High Court observed that85:. "... At this stage, let me consider whether sub-section (2) of Section 19 of the Act which lays down that for any reason if any doubt arises as to whether the previous sanction are required under sub-section (2) should be given by the Central Government or the State Government such sanction shall be given by that government which would have been competent to remove the (f.n. 83 Contd..) . mentioned in clause (1) of Article 102, the question, shall be referred . for the decision of the President and his decision shall be final (2). . Before giving any decision on any such question, the President shall obtain the opinion of the Election' Commission and shall act according. to such opinion. 84. . 2004 Cri. L.J. 4349 (Sikkim). 85. IcL at p. 4352. 237 public servant from his office at the time when the offence was alleged to have been committed would at all be applicable to the case at hand. From the above, it may be seen that it is hot the case of the prosecution that during the period (from 1st September, 1976 to 8th March, 1978) when the respondent was a State Government employee, he acquired assets which were disproportionate to his known sources of income for which he could , not satisfactorily account. The gravamen of the charge is that on 30th September, 1994 (the end of the check, period) he was found in possession of assets disproportionate to his known sources of income for which he could not satisfactorily account. In other words, the respondent on 30th September, 1994 is . alleged to have committed the offence under Section 13(1) (e) of the Act and he being still in service is removable from his office only with the sanction of the Central Government and therefore,, that government (Central Government) is the competent authority to give sanction. The allegations on which the . prosecution case is based are clear and unambiguous and in the facts and circumstances there being no doubt as 238 to the authority which is competent to sanction . prosecution, there is no need to take resort to sub ^section (2) of Section 19 of the Act. It has . been held by the Supreme Court in Mansukhlal Vithaldas Chauhan v. State of Guiarat. 1997 Cri. L.j. 4059 (1997 Cri. L.J.4059) that subjection (2) of Section . 6 of the 1947 Act (corresponding to Section- 19(2) of the Act) is clarificatory in nature in as much as it provides that if - any doubt arises whether the sanction is to be given by the Central- Government or the State Government or any other authority, it shall be given by the appropriate Government or the authority, which was competent to remove that person from the office on the date on which the offence was. committed..” R.K. Patra, J. further held that86: "... In view of the fact that when the court was called upon to take cognizance of the offence, the respondent was employed in connection with 86. ,]cL at p. 4353. See also S.K. Bhatta v. C.B.I. 2004 Cri. L.J.,4730 (Delhi); State of Karnataka v. C.S. Krishna Murthv, 2004 Cri. L.J. 3440 (Kant). 239 the affairs of the union and was not removable from his office except by or by sanction of the Central Government, in any considered opinion the competent authority to grant sanction to prosecute him under Section 13(1) (e) of the Act is the Central Government and that authority has rightly accorded sanction...” In Section 19 of the 1988 Act (New Act) except sub-sections (3) and (4) which are. new, there is no other change. Now sanction under Section 19 of the 1988 Act, cannot be challenged in any court, unless failure of Justice has, in fact, occasioned and unless the objection, if possible has been raised at an earlier stage in the proceedings. Not only this no proceedings can be stayed even unless in the opinion of the court any failure of Justice has occasioned. C. SANCTION UNDER SECTION 19 OF THE ACT [OLD SECTION- 6] VIS-A-VIS SECTION 197, Cr.P.C. 1973: The basic difference between sanction under Section 197 of Cr.RC. 1973 and .Section 19 of the Act of 1988 [Old Section 6] is as follows : to attract sanction under Section 197 of Cr.RC. the alleged 240 offence is to be committed while acting or purporting to act in discharge of his official duty i.e., when the act complained of is integrally connected with the discharge of his, official, duty. However the Court in Amrik Singh v. State of Pepsu87 held that : . It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of Cr.P.C. nor even every act done by him while he is actually engaged in the performance of his official duties. But if the act complained of is directly concerned with his official duties so that... it could be claimed to have been done by virtue of his office, then sanction would be necessary and that would be so, irrespective of whether it was in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which 87. A.I.R. 1955 S.C. 309. 241 would have to be investigated at the trial and could not arise at the stage of the grant of sanction...,”88 Relying on Amrik Singh’s Case the court in Bhagwan Prasad Srivastava v. N.R Mishra89 held that there was nothing to show that this act was a part of the official duty of the civil surgeon and that no sanction was required under Section 197 Cr.EC. for prosecution of the civil surgeon90. In subsequent case the court quite categorically reiterated that existence of valid sanction is a pre-requisite, to the taking of the cognizance of the offence91. In the absence of such sanction the court would have no Jurisdiction to take the cognizance of the offence. So trial without valid sanction under Section 6 [Now Section 19] is a trial without Jurisdiction. 88. Id* p. 312. See also A.D. Parthasarathv v. T.K. Khurdukar. 1975 Cri. L.J. 1290 (A.RH.C.); Bakshish Singh v. Gurmi Kaur (1987) 4 S.C.C. 613; Madari Singh v. PB. Basuk, 1982 Cri. L.J. 1203. 89. A.I.R. 1970 S.C. 1661. In this case a Civil Assistant Surgeon had filed a complaint against another civil surgeon that while in operation theatre the civil surgeon, appellant abused the complainant, respondent, before patients and hospital staff and ordered, the hospital cook to “turn out this badmash” and the cook actually pushed out the complainant.: 90. IcLj, p. 1664. See also Pukhrai v. State of Raiasthan, A.I.R. 1973 S.C. 2591. . 91. ,R.S. Navak v. A.R. Antulav. 1984 2 S.C.C. 183 at p. 201. See also Madhya Pradesh Special Police Establishment v. State. 2003 Cri.L.J. 4610. 242 1. Distinction between Section 19 (old Section 6) of the Act and Section 197 Criminal Procedure . Code92 : : Two major changes have been introduced by Section 197, Cr.EC. The first of these changes is that while under Section 197, Cr.EC. sanction of the Central Government or the State Government, as the case may be, was only necessary for the prosecution of public servants who were not removable from their offices save with the sanction of Central Government or the State Government respectively, no such qualification is contained in Section 19 (old Section 6) in which the words used are “committed by a public servant”. Thus under the Criminal Frocedure Code, no sanction was ever required to prosecute a public servant removable by lesser authority than the State or Central Government, whereas now under Section 19 (old Section 6) of the Act the sanction of the appropriate authority is necessary for the prosecution of any public servant however subordinate, allowed to have committed an offence under Sections 7 or 11 or 12 (old Sections 161 or Section 165 or Section 165-A Indian Fenal Code or under Section 5 of the 92. R.B. Sethi and R.L. Anand’s, The Prevention of Corruption Act, 1988 and Accomplice. (8th Edn. 1997), pp. 492 & 493.7 243 Prevention of Corruption Act, 1947). The second change is that introduced by the omission in Section 19 (old Section 6) of the Act, the words appearing in. Section 197, “while acting or purporting to act in discharge of his official duty”. This omission appears to be deliberate and to have been made in consequence of the decisions of various High Courts and the Fedaral Court to the effect that an officer who had accepted a bribe or embezzled Government property was neither acting nor purporting to act in the discharge of his official duty, and that therefore, no sanction for his prosecution was necessary. The sanction of appropriate authority under Section 19 [old Section 6] of the Act is therefore, now necessary for the prosecution of any public servant under the Act93, irrespective of the question whether the public servant was acting or purporting to act in the discharge of his official duty94. In State of Bihar v. RP. Sharma95.. the Supreme Court observed that96: 93. State v. Gurucharam Singh. A.I.R. 1952 Pun} 89. 94. Gruru Swamv v. State TSpecial Police Establishment!, (1979) 1 Andh. Pra. L.J. 326. ' ' 95. 1991 Cri. L.J. 1438. 96. IcL at p; 1450. 244 “...The sanction under Section 197, Cr.P.C. is not an. empty formality. It is essential that the provisions therein are to be observed with complete strictness. The objects of obtaining sanction is that the authorities concerned should be able, to consider for itself the material before the investigating officer comes to the conclusion that the prosecution in the circumstances be sanctioned or forbidden. To comply with the provisions of Section 197 Cr.P.C. it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction. Section 197 does not require the sanction to be in any particular form. If the facts constituting the offence charged are not shown on the face of sanction, it is open to the prosecution, if challenged to prove before the court that these facts were placed before the sanctioning authority. It should be clear from the form of sanction that the sanctioning authority considered the relevant material placed before it. and after a consideration of all the circumstances of the case, it sanctioned the prosecution...”. ... 245 In R- Balakrishna Pillai v. State of Kerala97, learned Chief Justice Ahmadi has referred to the Law Commission Report which suggested an amendment to Section 197 of the code. The observation of the Law Commission in paragraph 15 of 123 of its Report read thus : “It appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is 97. (1996) 1 S.C.C. 478. The Supreme Court while disposing this case observed that a minister of a state is paid from its public exchequer, he is paid , for doing the duty entrusted to him as a minister and, therefore, on the analogy of the observation relating to the Chief Minister, as made, by a constitutional Bench of the Supreme Court in M. Karunanidhi v. Union of India 1979 (3) S.C.R. 254, wherein it was held that a Chief Minister was a public servant with in the meaning of Section 21 of the Indian Penal Code and Section 197 of the code of Criminal Procedure, 1973. Therefore like that of Chief Minister, the minister must also be held to a public servant and hence he is entitled for the protection, under Section 197 of the Code. See also Namdeo Kashinath & Another v. H.G. Vartak & Another. A.I.R. 1970 Bombay 385; Hariharaprasad v. State of Bihar. 1972 Cri.L.j. 707; B. Saha & Others v. M.S. Kochar. 1979 (4) S.C.C. 177. 246 the public interest in seeing that, official acts do not lead to needless or vexatious prosecutions. It should be left to the Government to determine from that point of view the question of the. expediency of prosecuting any public servant”. Their Lordship after referring to the above Report have observed : “It was in pursuance of this observation that the expression ‘was’ came to be employed after the expression ‘is’ to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted.” In State through Anti-Corruption Bureau. Government of Maharashtra. Bombay v. Krishan Chand Khushalchand-Iagtiani98. the Supreme Court held that it must be remembered that the object of Section 6(1)(c) of the 1947 Act [Now Section 19 of the 1988 Act] or for that matter Section 197 of. the Criminal Procedure Code 1973 is that there should be no unnecessary harassment of a public- servant, the idea is to save the public servant from the harassment which may be caused to him if each and every aggrieved or disgruntled person is allowed to institute a criminal complaint against him. The protection is no absolute or unqualified, if the authority competent to remove such 98. (1996) 4 S.C.C. 472 at p. 478. 247 public servant accords previous sanction, such prosecution can be instituted and proceeded with. The law presumes and the court must also presume until the contrary is established that such authority will act fairly and objectively and will accord sanction only where- he is satisfied that the charges against the public servant requires to be enquired into by a court. The authority is presumed to, and expected to, act consistent with public interest and the interest of law both of which demand that while a public servant be not subjected to harassment, genuine charges and allegations should be allowed to be examined by the courts. Both the considerations aforesaid should be present in the mind of the authority while deciding the question of grant of previous sanction required by Section 6(1) (c) of the 1947 [Now Section 19 of the 1988 Act] of the Act or, for that matter, Section 197 of the Criminal Procedure Code, 1973. 2. Object of Section 197 of Cr.P.C.99: Section 197 creates a bar against frivolous proceedings. Even before, such criminal proceedings are launched, it is considered proper to obtain , the opinion of superior authority. 99. Section 197 says, “when a. Buddhi Kota Subbarao, “Sanction given to prosecute or persecute?”, The Hindu, July Sth, 1997 (open page) p. 25. 248 public- servant 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 Central Government or the State Government as the case may be. The sanction of the Central Government or the State Government is necessary, when three conditions are satisfied : (a) The accused must be a judge, magistrate or public servant (b) The accused must be a public servant removable from his office only with the sanction of the State Government or Central Government and (c) He must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is Only when all the three criteria are satisfied that the applicability of Section 197 will comes in. It is only then the ban imposed on the court from taking cognisance without a valid sanction from the authority concerned comes into operation. The fact that the accused is a public servant is not sufficient to attract the provisions of Section 197. Thus, whether sanction is required in a particular case is a question of fact. On. the other hand, whether. a person is a public Servant is a mixed question of law and fact and it requires evidence for its determination. The term “office” occurring in Section 197(1) should not be construed as a private office, but a public office. 249 Against false, frivolous and mala fide prosecutions, there are two types of safeguards, One originate in the fundamental rights guaranteed in the Constitution and the other from the mandatory, procedures prescribed in the Criminal Procedure Code, and the Special Acts. For instance, the Official Secrets Act, 1923 and the Atomic Energy Act, 1962. Courts are not permitted to take cognisance of an. offence, until the mandatory procedures prescribed by the law . are complied with. What the police should and should not do at the time of investigation, arrest, detention and framing of charges, are also prescribed in the Criminal Procedure Code and the Special Acts. Unfortunately, these safeguards do not work with equal effectiveness, for the resourceful and the resourceless. Sanction to prosecute a public servant is an additional safeguard provided to public servants. The Prime Minister,. the ChiefMinister and the Ministers of the Union and State. Cabinet are considered public servants. The Public Servants, who are in the service and pay of the Government, or exercising various public functions, have many exclusive privileges. There are several offences which can only be committed by the public servants. However, the larger interest of the efficiency of state administration demands that, public servants should 250 be free to perform their official duty fearlessly and undeterred by any apprehension of their possible prosecution at the instance of any person to whom annoyance, of injury may have been caused by the legitimate acts done in the discharge of their official duties. There is, therefore, need to give protection to public servants against frivolous, vexatious or false prosecution for offence alleged to have been committed by them, while discharging their official duties. Such a protection is provided through the provisions of. Section 197 of the Criminal Procedure Code. The object of this legal provision is to enable the more important categories of Public Servants performing onerous and responsible functions to act fearlessly by protecting them from false, vexations or mala fide prosecutions, says the Law Commission Report, also100. In S.C. Narairi v. Union of India101, the Supreme Court quashed a prosection which was pending for 14 years without going into question of requirement of sanction, under Section 197 of the code of Criminal Procedure, 1973. 100. See 41st Law Commission Report, p. 120, Para 15.123. 101. ' 1992 Cri. L.J. 560 (S.C.). 251 D. BRIEF SUMMARY OF THE CHAPTER : There are many precautions necessary to initiate and proceed with a prosecution under the Prevention of Corruption Act, 1988. The first thing is sanction from the proper authority, before launching criminal prosecution under this Act. There , is rto specific Form prescribed for according sanction under this Act. Granting of Sanction is not an empty formality and it is essential that the provisions as regards the grant of sanction should be observed completely, the object of granting sanction being that the authority giving the sanction should be able to consider for itself the evidence, before it comes to a conclusion that the prosecution in the circumstances of the case must be sanctioned or not. The larger interest of the efficiency of State administration demands that public servants should be free to perform their official duty fearlessly and undeterred by any apprehension of their possible prosecution at the instance of any person to whom annoyance of injury may have been caused by the legitimate acts done in the discharge of their official duties. Hence there is need to give protection to public servants against frivolous, vexatious or false prosecution for offence alleged to have been committed by them, while discharging their official duties. This enables them to discharge onerous and responsible functions fearlessly. . ' Even if prosecution is going to be launched against the accused- public servant, he deserves hearing at the stage of the grant of prosecution sanction to avoid false and vexatious prosecution. This is 252 in tune with the one of the Principles of Natural Justice, “Audi Alterm Partem”, (No man shall be condemned unheard). Effective,, speedy and successful prosecution is the need of the hour. The sanctioning authority should play a vital role in this context. The sanctioning authority, should be vigilant enough to. dispose of the matter either by granting sanction to prosecute the public servant or. refusing to grant the same. A close scrutiny of Section 19 of the Prevention of Corruption Act, 1988 shows that no time-limit is prescribed for granting of sanction order. The Supreme Court in order to fill the lacunae, for the first time in Vineet Narain case, popularly known as Hawala case held that sanction order is to be passed within 3 months. Sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction, whether sanction for prosecution has to be granted or not. Courts should not usurp the discretion of the sanctioning authority and direct the sanctioning authority to accord necessary approval for prosecution but they could certainly quash the arbitrary order and issue a direction to the sanctioning authority to exercise its own discretion in accordance with law. $ ^ 4: -f 253 $