Section 19- previous sanction necessary for prosecution THE PREVENTION OF CORRUPTION ACT, 1988

Section 19 - Previous Sanction Necessary For Prosecution- (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. (POCA) Section 156(3) Cr.P.C.- Empowers the Magistrate to pass directions to the Police/Investigating Agency directing them to register an FIR and commence investigation. Section 156(3) is usually invoked when the police does not register FIR and the request to superior officers in that regard also goes unheeded (Sec154(3) Cr.P.C.)

Anil Kumar & Ors vs M.K Aiyappa & Anr on 1 October, 2013 Bench: K.S. Radhakrishnan, Pinaki Chandra Ghose The question arose in this controversial case was that whether ‘Sanction’ is a necessary precondition for an order for investigation passed u/s 156(3) of the Code of Criminal Procedure, 1973 (CrPC) with respect to an offence under the Prevention of Corruption Act, 1988 (POCA)? In this case, court examined as to whether entertaining and deciding an application u/s 156(3) of the CrPC amounts to ‘taking cognizance’ or not? R.R. Chari vs The State Of Uttar Pradesh- “What is ‘taking cognizance’ has not been defined in Cr.P.C. and I have no desire to attempt to define it. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation under Section 156(3) or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance.” (1951 AIR 207)

‘Sanction’ is meant to be a safeguard to ensure that Public Servants, who by the very nature of their job are susceptible to vexatious and frivolous complaints, are not harassed and allowed to work without a sword of a complaint dangling over their heads. The authority empowered to grant sanction is usually the government/appointing authority capable of removing such Public Servant from office. A perusal of Section 19 of POCA also manifests that it imposes a bar on the court taking ‘cognizance’ of an offence till sanction is obtained from the competent authority. The bar is with respect to the court taking cognizance and no such embargo is placed on initiation of investigation. This is reasonable since no protection is required from investigation, as the police may weed out false complaints at their end itself during investigation, and the case may never come to the stage of ‘taking cognizance’ (After investigation the Police/Investigating Agency may file a closure report and the court may accept the same).

‘No investigation till there is Sanction and No Sanction unless there is Investigation’ An investigation ordered u/s 156(3) CrPC leads to collection of material, which is then considered by the Sanctioning Authority to accord/deny Sanction for Prosecution. If Sanction is required for investigation, then the Sanctioning Authority may have no material before it for grant or denial of Sanction. Further, since Section 19 POCA specifically stipulates ‘Sanction for Prosecution’, as opposed to “Sanction for Investigation’, reading it to be otherwise would be contrary to the express language of the Statute and the legislative intent. State Of Karnataka & Anr vs Pastor P. Raju- “The specified authority empowered to grant sanction does so after applying his mind to the material collected during the course of investigation. There is no occasion for grant of sanction soon after the FIR is lodged nor such a power can be exercised before completion of investigation and collection of evidence”. (SC 2006)

mystery The decision of a two judges bench of the Supreme Court in Anil Kumar vs. M.K. Aiyappa, held that Section 19 of POCA applies at the very threshold and an application under Section 156(3) Cr.P.C. seeking directions to the police to investigate cannot succeed unless prior sanction of the competent authority has been obtained. This effectively turns a ‘Sanction to Prosecute’ into a ‘Sanction to Investigate’, which is contrary to the settled law in R.R.Chari and Devarappally (1976 AIR 1672), amongst countless others.  The larger bench judgments in R.R.Chari and Devarappally were not even brought to the notice of the Court in Aiyappa, rendering it per incuriam. Some High Courts have chosen not to follow Aiyappa. However, Aiyappa has not been expressly declared to be per-incuriam. Section 156(3) clearly being a pre-cognizance stage, there is no requirement for Sanction, otherwise a ‘Sanction to prosecute’ will turn into a ‘Sanction to Register FIR’ or ‘Sanction to Investigate’ which is clearly contrary to the legislative intent and settled judicial position. The interests of stare decisis require an immediate reconsideration of Aiyappa  by the Hon’ble Supreme Court of India.

Manzoor Ali Khan Vs. Union of India & Ors. Supreme court, 2014 Bench: T.S. THAKUR, ADARSH KUMAR GOEL This petition, by way of public interest litigation, was filed to declare Section 19 of the Prevention of Corruption Act, 1988 unconstitutional and to direct prosecution of all cases registered and investigated under the provisions of PC Act against the politicians, M.L.As, M.Ps and Government officials, without sanction as required under Section 19 of the PC Act. It was held in this case that “while it is not possible to hold the requirement of sanction unconstitutional, the competent authority has to take a decision on the issue of sanction expeditiously as already observed. A fine balance has to be maintained between need to protect a public servant against mala fide prosecution on the one hand and the object of upholding the probity in public life in prosecuting the public servant against whom prima facie material in support of allegation of corruption exists, on the other hand.”

The Following Guidelines Were Given: In my view, Parliament should consider the constitutional imperative of Article 14 enshrining the Rule of Law wherein "due process of law" has been read into by introducing a time-limit in Section 19 of the PC Act, 1988 for its working in a reasonable manner. Parliament may, in my opinion, consider the following guidelines: (a) All proposals for sanction placed before any sanctioning authority empowered to grant sanction for prosecution of a public servant under Section 19 of the PC Act must be decided within a period of three months of the receipt of the proposal by the authority concerned. (b) Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in clause (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time-limit. (c) At the end of the extended period of time-limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge-sheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time-limit." The above observations fully cover the issue raised in this petition.

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