Sample Material of Current Public Administration Magazine
Prosecution of a Public Servant
The conflicting views of the Supreme Court on the
precondition of “sanction” for prosecution of a public servant under Section 19
of the Prevention of Corruption (PC) Act, 1988 have created a legal vortex which
could be exploited by unscrupulous public servants to stifle a criminal
investigation. The independence of criminal investigation from the executive is
a sine qua non for success of a criminal justice system — this assumes even more
significance in corruption cases where allegations are made against a public
servant who is a part of the executive which controls the police.
Section 19 of the PC Act states: “No court shall take
cognisance of an offence… alleged to have been committed by a public servant
except with the previous sanction.” The provision aims to balance two competing
interests. One is the need to ensure that an honest public servant is not
hounded in the performance of his or her duties by frivolous complaints. The
other is that investigation into an allegation of crime isn’t stifled at the
threshold due to the power wielded by a public servant.
Section 19 imposes a bar on the court to take “cognisance” of
an offence till sanction is obtained from the government. The bar is against the
court to take cognisance for the purposes of trial. There is no prohibition
either under the PC Act or the Criminal Procedure Code (CrPC) to start an
investigation by lodging an FIR or through a court-initiated investigation under
Section 156(3) CrPC.
However, a two-judge bench in Anil Kumar vs. M.K. Aiyappa
(2013) 10 SCC 705 appears to have unsettled the law on this subject. The court
held that Section 19, PC Act applies at the threshold itself and an application
under Section 156(3) CrPC for investigation is not maintainable without
obtaining prior sanction of the competent authority. This has recently been
followed by the Supreme Court in L. Narayana Swamy vs State (2016) 9 SCC 598.
While the decisions in Aiyappa and Narayana Swamy take the
view that even an investigation cannot be ordered under Section 156(3) CrPC
without sanction, larger benches of the apex court have taken a diametrically
opposite view. In R.R. Chari vs. State 1951 SCR 312 (3 judges), the court held
that there was no requirement of sanction for ordering an investigation under
Section 156(3)CrPC. In State of Rajasthan vs Raj Kumar (1998) 6 SCC 551, it was
held that there was no requirement for sanction before filing a chargesheet
under Section 173 CrPC.
The larger bench decisions rightly take the view that any
investigation into a crime cannot be stifled at the threshold itself by giving
power to the executive to scuttle it through sanction. A bench of five judges of
the apex court in Subramanian Swami vs Union of India (2014) 8 SCC 682 held that
Section 6A of the Delhi Special Police Establishment Act, which had required
prior sanction for investigation into crimes by high-ranking public servants,
was unconstitutional. It was held that investigation is central to the criminal
justice system and cannot be subverted by imposing a restriction on the police
at the threshold itself. The court held that: “If there is an accusation of
bribery, graft, illegal gratification or criminal misconduct against a public
servant”, the status of the offender is not relevant.
If this is the stated legal position, then there is no
rationale as to why a court should be precluded from directing an investigation
under Section 156(3)CrPC without sanction — but the practical consequences of
Aiyappa and Narayana Swamy result in prohibiting even the issuance of a
direction for investigation by a court under Section 156(3) CrPC. These
judgments could give a handle to the executive to scuttle a potential
investigation; a high-ranked public servant could influence the police not to
set criminal law in motion by registering an FIR. And the hands of the court
would be tied. The court in Aiyappa and Narayana Swamy may have unwittingly left
a loophole for influential public servants accused of corruption to nip an
investigation in the bud.
Interestingly, several high courts have started to openly
The Kerala High Court in Maneesh vs State held the judgment
in Aiyappa was not binding on it. More interestingly, the very judge of the High
Court of Karnataka who penned down the Aiyappa judgment, which was upheld by the
Supreme Court, has in a subsequent judgment in N.C. Shiv Kumar vs State held
that his judgment ignored “settled principles established by earlier judgments
of the apex court rendered by larger benches”.
It is thus imperative that the Supreme Court render an
authoritative pronouncement and correct the apparent anomalies in the state of
the law on sanction.
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