Valid Sanction for Prosecution of Accused

A sanction can be defined as prior written consent that has been obtained from a competent authority, as may be specified under the relevant acts or laws, in order to prosecute the alleged accused person. However, before they grant any sanction, authorities must carefully consider the circumstances and determine that prosecuting the accused is in the public interest.

The litmus test of whether the public servant has acted in virtue of their office depends upon the offense committed by them. The question of whether an offense was committed by them in the course of their official duty or under the guise of their office depends entirely on the facts of each case. However, a public servant charged with bribery cannot justify his act of receiving a bribe as an act done by him by virtue of the office that he held.

Following are the laws under which Sanctions are required for the prosecution of the Accused:

• The Code of Criminal Procedure (CrPC), 1973
• The Prevention of Corruption Act, 1988
• The Prevention of Food Adulteration Act, 1954

The Code of Criminal Procedure, 1973

Before the Prevention of Corruption Act, 1999 became operational, public servants were prosecuted under Section 197(1) of the Code of Criminal Procedure (CrPC), 1973.

The safeguard granted by Section 197 of the CrPC, 1973 aims to shield employees from the initiation of tedious criminal proceedings for offenses that they have allegedly committed while performing or purporting to perform in the capacity of a public employee, subject to the condition that the alleged act was reasonably connected with the discharge of their official duty and was not simply a cover for performing any objectionable acts.

Determining if sanctions are required shall have to be decided from stage to stage.

In the matter of Matajog Dobey vs. H.C. Bhari, the Supreme Court of India stated that considering a need for sanctions under Section 197 of the CrPC, 1973 as soon as a complaint is filed shall not always be necessary. Even doing so based on the allegations mentioned in the complaint shall not be necessary.

This is because complaints may not necessarily disclose that the offense in question was done while the individual was discharging their official duty. The Court added that the need for action would be better understood when facts related to the case are revealed later during the police or judicial inquiry or potentially through the evidence presented by the prosecution before the Court during the trial proceedings.

In the case of Indra Devi vs. State of Rajasthan, the apex Court noted that if an act committed by a public servant is directly in relation to their official duties, it is mandatory to obtain a sanction under Section 197 of CrPC, 1973 from the relevant authorities before prosecuting such an individual. Further, the Supreme Court in the matter of A. Srinivasulu vs. The State Rep. by the Inspector of Police reiterated its position regarding the sanction under Section 197 of the CrPC, 1973 while holding that a sanction under the said Section is required even in cases where the official was acting in excess of their official duties.

Prevention of Corruption Act, 1988

• Under the Prevention of Corruption Act, 1988, only an individual who was a public servant when the alleged offense was committed and when the Court was asked to address the matter would be protected by prior sanctions.
• The provisions of this Section shall not come into effect if the individual was not a public servant when the alleged offense was committed but was simply expected to become a public servant. Section 197 of the CrPC, 1973, which generally guides criminal procedure, is the provision relevant to this topic.

Need for Sanction under the Prevention of Corruption Act, 1988

The goal behind the precondition to obtain a prior sanction under the Prevention of Corruption Act, 1988 is to grant public servants apt protection and save them from hostile or annoying prosecution and protect them from any harassment or problems that may be a result of inapt appreciation of police authorities of the intricacies of how a department works. The public services' morale is impacted when a government servant is prosecuted for a crime that calls into question their honesty and moral character.

In the Prevention of Corruption Act, 1988 a prior sanction is necessary for prosecution of a public officer from:

• Union Government: If the accused individual was working with the affairs of the Union when the alleged offense was committed.
• State Government: If the accused individual was working with the affairs of the State when the alleged offense was committed.
• Or any other individual who has the authority to remove such individuals from their positions.

Further only a police officer or their sub-ordinate from any central or state agency can file a request for sanction to the appropriate Government or competent authority.

In the case of Mohd. Iqbal Ahmed vs. State of Andhra Pradesh, the Apex Court emphasized two significant aspects of sanctions for prosecution.

• Firstly, if any case is filed without mandatory sanctions, it should be dismissed right away as the proceedings are deemed void ab-initio. This clarifies that the prosecution must prove that the relevant authority has granted a valid sanction in order to prosecute the accused.
• Secondly, it is imperative for the sanctioning body to use their own judgement and know about the circumstances surrounding the offense when granting the sanction. Granting sanctions is not simply a formality; it is a sacred act in terms of the law that protects government servants from vexatious proceedings.

Note: It is crucial to note that sanctions under Section 19 of the Prevention of Corruption Act, 1988 are required for offenses that are punishable under Sections 7, 11, 13, and 15 of the Prevention of Corruption Act, 1988. Whereas under Section 197(1) of the CrPC, 1973, sanctions are mandatory for any offense committed by public servants when performing or claiming to perform as per their official roles and not otherwise.

Prevention of Food Adulteration Act, 1954

Under the Prevention of Food Adulteration Act, 1954, without the written approval of either the Central Government, the State Government or a person designated in this regard by general or special order, no prosecution for an offence under the Act, other than an offence under Section 14 or Section 14A of the said Act shall be brought against any accused individual.

In the case of Madan Mohan vs. State of Uttar Pradesh, the apex Court came across the opportunity to consider the validity of sanctions for the purpose of prosecution under the Prevention of Corruption Act, 1988. As per the Supreme Court’s ruling, the responsibility of obtaining the necessary sanctions falls entirely on the prosecution. This responsibility includes the proof that the sanction obtained was granted by the relevant authorities based on the facts enumerated before them.

In addition, the prosecution shall be liable to prove through additional evidence that the relevant facts that constitute the offense were presented to the sanctioning authority in cases where the core facts of the offense are not visible right away. If they fail to do so, the sanction must be deemed defective. As such, the invalid sanction shall bar the Court from presiding over any such matter.

Conclusion

Considering various sections of different Acts aim to safeguard public servants from the unnecessary hassles of criminal proceedings, it is imperative to obtain sanctions to take any action against such individuals. While sanctions to take this matter to Court can be obtained from relevant authorities, before granting the sanction, these authorities shall be responsible to consider the various circumstances around the matter and determine whether it is in public interest to prosecute the accused.