Statute puts a mandate on the Prosecuting agency to acquire a Sanction order, from an Authority competent to issue the said Order, so as to initiate prosecution against Public Servants. When and how did the concept of Sanction ascended? What Change did it bring?

After the first war of Independence of India in 1857, the British Crown took over the administration in India, which was initially under the control of East India Company. Though the British Rulers had passed the regulating act of 1773 under which a Supreme Court was established in Calcutta (now Kolkata) and later in Madras (now Chennai) and Bombay (now Mumbai). These Supreme Courts used to apply British Procedural Law while deciding the cases. However once the British Crown took over the administration of India, Criminal Procedure Code 1861 was passed by the British Parliament. Though a large number of amendments were carried out in the same, thus necessitating an exhaustive consolidation of all those amendments and uniform law of procedure for whole of India was consolidated by Code Of Criminal Procedure 1882, which was replaced by Code of Criminal Procedure 1898. However after independence of India, Code Of Criminal Procedure 1898 was replaced by Code of Criminal Procedure 1973

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Similarly, the Penal Code for India i.e. Indian Penal Code 1860 was passed on the recommendation of the first Law Commission of India Est. 1834, under the Charter Act of 1833, under the chairmanship of Lord Thomas Babington Macaulay and it came into force in British India during the early British Raj period in 1862. Incorporation of a Penal Code for India played an essential role in the concept of offences by Public Servant and also in their Statutory Protection from being prosecuted qua those offences.

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However, In 1947 Prevention of Corruption Act, was notified (as Act 2 of 1947) w.r.t. certain acts which are defined as offences attributable to Public Servants apart from the offences, already punishable under Sections 161 to 165A of Indian Penal Code 1860, those offences were defined in Section 5(1)(a) to Section 5(1)(e). Incidentally, the Criminal Procedure Code 1898, had also prohibited, the prosecution of Judges and Public Servants by the courts, by creating a rider to it’s (Court’s) power to take cognizance of the offences alleged to have been committed by a Public Servant, contemplated under sections 161 to 165A of Indian Penal Code, without the sanction of the Government Under Section 197. The Prevention of Corruption Act 1947, created another rider qua the power of the courts to take cognizance with respect to offences alleged to have been committed by Public Servants, until or unless sanction to prosecute from the competent authority had been obtained by the prosecuting agency (be it the offence Punishable Under Section 161 or Section 164 or Section 165 of the Indian Penal Code 1860; or under Section 5(2) or Section 5(3A) of Prevention of Corruption Act 1947) in the form of Section 6 of Prevention of Corruption Act 1947.

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Therefore, one can safely infer or conclude that Public servants were given free hand to comply with the public duties uptil 1947 (i.e. a period of 49 years), and the Public Servants were provided protection from prosecution under the respective Penal provisions and the concept of accountability was overlooked. Subsequently, the Criminal Procedure Code 1898, was amended and a new Criminal Procedure Code 1973 was notified however the protection of sanction which has now become 75 years old concept, continued in the form of protection under section 197 Criminal Procedure Code 1973 as well as under section 6 of Prevention of Corruption Act 1947.

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Further, on 9th September 1988, Prevention of Corruption Act 1947 was replaced by Prevention of Corruption Act 1988, the concept of Sanction was Introduced in the form of Section 19 of the Prevention of Corruption Act 1988. Uptill 26th July 2018, the Prevention of Corruption Act 1988 under Section 19 and Section 197 of the Criminal Procedure code 1973 puts a mandate on the Prosecuting agency to acquire a Sanction order from an Authority competent to issue the said Order so as to initiate prosecution against Public Servants defined under Section 2 of Prevention of Corruption Act 1988. Incidentally, Prevention of Corruption Act 1988, also caused repeal of Section 161 of Indian Penal Code to Section165A of Indian Penal Code and in lieu thereof, created specific sections as part of Prevention of Corruption Act 1988 as the offences. 

With an amendment in the Prevention of corruption Act 1988, introduced on 26th July 2018, the Prevention of Corruption (Amendment) Act 2018 flipped the entire existing scenario with regard to the issue of ‘Sanction’ and ‘Public Servants’ being provided protection from prosecution in the absence of sanction. This is evident from the following:-

PRE-AMENDMENT PROVISIONS OF SANCTION

Section 19 of the Prevention of Corruption Act obligates procuring Sanction, from the competent authority, for prosecution of offences committed by public servants under the said Act. Procuring sanction is mandatory only for prosecution and not for initiating investigation/inquiry. Also, it is restricted only to Serving Public Servants.

FUNDAMENTAL REASONS FOR AMENDING THE PROVISIONS RELATING TO SANCTIONS

It has long been recognised that public servants taking bonafide decisions must be encouraged and provided protection in the event of false allegations or unsustainable inquiries, initiated against them. 

Retired Public 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 prosecution had been initiated against Retired Public Servants, on account of false complaints/allegations. In such cases, mere launch of prosecution followed by a rigorous trial, even if leads to acquiring an order of Acquittal does not help; as the damage has already been done to the image and reputation of a Public Servant by the initiation of such prosecution. Needless to say that in some cases investigation process includes custodial interrogation.

Statutory requirement to acquire a valid sanction is a pre-requisite for taking cognizance of offences. Trial without valid sanction is a trial without jurisdiction by the court. Thus this proposition of law ultimately indicates that it would be appropriate to decide the said question at an initial stage itself, instead of going through a sumptuous and prolonged trial and thereafter concluding that the Sanction was defective and did not meet the statutory criteria. 

A forgotten conclusion relating to process of seeking an accord of Sanction, is to the effect that it is the Competent Authority of the Public Servant only, which can decide as to whether any alleged act of a Public Servant constitutes an abuse of his office, by him (Public Servant). Neither the courts nor the officers invested with power to investigate (Investigating Agency) can decide or usurp such a decision. The concept of accord of previous Sanction of the Competent Authority originated from the fundamentals of Service Law & Regulations, under which a Public Servant is expected to perform his duties. The amendment introduced by the Prevention of Corruption (Amendment) Act 2018, brought the said concept of Service Law and Service Regulations in the statute books, particularly relating to criminal offences and the respective trial qua Public Servants.

PRESENT CONCEPT OF SANCTION

The provisions in the Prevention of Corruption (Amendment) Act, 2018 which deals with the mandate of previous sanction are reiterated for ready reference: 

CHAPTER V 
SANCTION FOR PROSECUTION AND OTHER MISCELLANEOUS PROVISIONS 

19. Previous sanction necessary for prosecution.—(1) No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction 1[save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]— 

(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-

• 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
• 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: 

Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribed such guidelines as it considers necessary. Explanation.—For the purposes of sub-section (1), the expression “public servant” includes such person—

(a) who has ceased to hold the office during which the offence is alleged to have been committed; or 

(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. 

(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 Criminal Procedure, 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. 

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.

FEATURES OF SANCTION

First Star Feature

The Hon’ble Supreme court of India in its comprehensive Judgment of CBI v. Ashok Kumar Aggarwal[1], has elaborated the Legal phenomenon of ‘Sanction’ as:

• The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statement, and statement of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
• The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
• The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
• The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
• In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.”

Second Star Feature

With the amendment dated 26.07.2018, an interesting issue of Law emerged, requiring Judicial pronouncement i.e. ‘Whether the court, while exercising powers under Section 3 and Section 5 of the Prevention of corruption Act, can continue the trial, without the order of Sanction having been proved on record.’ or in alternate, ‘Whether continuation of a trial in absence of a legitimate order of Sanction valid’.

Section 19 of the Prevention of Corruption Act, (both Pre-amendment and Post-Amendment) relates to the procedure whereby the Special Judge exercising its power under Section 3 to Section 5 of The Prevention of Corruption Act, takes cognizance of the offence

The necessary corollary is that Section 19 is the procedural provision, which regulates the power entrusted upon Special Judge, by the virtue of Section 3 to Section 5 of The Prevention of Corruption Act, to take cognizance.

Third Star Features

In view of the fact that the validity of “Sanction” depends on the applicability of mind by the Sanctioning Authority upon observing the facts of each of the case and also upon the material and evidence collected during investigation, it further states, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not.

Further, the mind of the Sanctioning Authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other.

Discretion to grant or not to grant sanction vests absolutely upon the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is observed during the trial that that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint while granting the sanction; then, such sanction order will be considered bad in Law, for the reason that the discretion of the authority of ‘whether to grant or not to grant sanction?’, was taken away.

Hon’ble supreme Court of India in the matter of Mansukhlal Vithaldas Chauhan v/s State of Gujarat[2]; observed that, “the validity of “Sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution.”

Further the apex court while deciding the case of State of Tamil Nadu v. MM Rajendran[3] Observed:-

“…Before the High Court, it was alleged by the appellant that the said criminal case was not maintainable for not obtaining proper sanction required to be given by the appropriate authority for proceeding under the Prevention of Corruption Act. The trial court, however, proceeded on the footing that proper sanction was accorded by the City Commissioner of Police, Madras who was the proper authority to grant sanction against the accused. The High Court, has come to the finding that all the relevant materials including the statements recorded by the Investigating Officer had not been placed for consideration by the City Commissioner of Police, Madras because only a report of the Vigilance Department was placed before him. The High Court has also come to the finding that although the Personal Assistant to the City Commissioner of Police, Madras has deposed in the case to substantiate that proper sanction was accorded by the City Commissioner of Police, the witness has also stated that the report even though a detailed one was placed before the Commissioner by him and on consideration of which the Commissioner of Police had accorded the sanction, it appears to us that from such deposition, it cannot be held conclusively that all the relevant materials including the statements recorded by the Investigating Officer had been placed before the Commissioner of Police. It appears that the Commissioner of Police had occasion to consider a report of the Vigilance Department. Even if such report is a detailed one, such report cannot be held to be the complete records required to be considered for sanction on application of mind to the relevant materials on records. Therefore, it cannot be held that the view taken by the High Court that there was no proper sanction in the instant case is without any basis.

It, however, appears to us that if the sanction had not been accorded for which the criminal case could have been initiated against the respondent, there was no occasion either for the trial court or for the appeal court to consider the prosecution case on merits. Therefore, the High Court need not have made the finding on merits about the prosecution case. We make it clear that finding made by the courts on the merits of the case will stand expunged and will not be taken into consideration in future. In our view, the High Court should have passed the appropriate order by dropping the proceeding and not entering into the question of merits after it had come to the finding that the proceeding was not maintainable for want of sanction. It is, however, made clear that it will be open to the appellant-State of Tamil Nadu to proceed afresh against the respondent after obtaining necessary sanction if the State so desires. The appeal is accordingly disposed of.”

The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority.

Sanction is rightly termed as a tool or a weapon
to ensure discouragement of frivolous and vexatious prosecutions and
is also a safeguard for the innocent
but not a shield for the guilty.

The article has been authored by Adv. Harsh K. Sharma and Adv. Lakshya Parasher, from Prosoll Law Inc. Adv. Harsh K. Sharma is the Founder of Prosoll Law Inc.

and has been lead counsel in numerous path-breaking matters pertaining to Criminal Law, especially cases related to Anti-corruption, Trap cases, Bank frauds, Money laundering, cheating, forgery, Disproportionate Assets, and other economic offences. He is also the Standing Counsel for Bar Council of India and an Ex-Member of the Special Committee, Bar Council of Delhi.

Adv. Lakshya Parasher has been working as an Advocate with Prosoll Law Inc., having a keen interest in Criminal Defence Litigation. He has also been at the forefront of dealing with matters originating from the Prevention of Corruption Act.

This article was first published in LiveLaw.