Sanction for prosecution

SANCTION FOR PROSECUTION
SEBI. S
GOVT. LAW
COLLEGE
ERNAKULAM.

SANCTION
 Sanction is a condition precedent to the institution of
the prosecution of a public servant.
 Sanction can be called as a solemn and sacrosanct act
which affords protection to the Government servant.
 The object of sanction for prosecution is to protect
a public servant or a police officer discharging official
duties and functions from harassment by initiation of
frivolous retaliatory criminal proceedings.
 Criminal laws in India thus by way of sanctions allow
for protective discrimination in favour of public
officials.
 It is a weapon to discourage vexatious prosecution and
is a safeguard for the innocent, though not a shield for
the guilty.
 Under various laws, sanctions are required to
investigate and prosecute public officials and
Sanction lifts the bar for prosecution.

SANCTION FOR PROSECUTION UNDER
PREVENTION OF CORRUPTION ACT, 1988 AND
UNDER CRIMINAL PROCEDURE CODE, 1973
 The Prevention of Corruption Act, 1988 is the prime
legislation dealing with the instances of corruption done
by the public servants.
 The objective of the Prevention of Corruption Act is to
reduce the corruption in India in various government
agencies and public sector businesses by combating them.
 Previous sanction necessary for prosecution of a public
servant under prevention of corruption Act is explained
under section 19 of the Act and the provision of sanction
in criminal procedure code is explained under Section
197 of the code.
 The object of Section 197 of the Code is to guard against
vexatious proceedings against Judges, Magistrates and
public servants and to secure the opinion of superior
authority whether it is desirable that there should be a
prosecution.

PROVISION OF SANCTION FOR PROSECUTION
UNDER PREVENTION OF CORRUPTION ACT,1988
SECTION 19
The requirement of sanction has salutary object of protecting an
innocent public servant against unwarranted and mala fide
prosecution.
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 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.
 Court is competent to take cognizance of an offence

SANCTION UNDER SECTION 197 OF CR.P.C
Under section 197 of Code of Criminal Procedure (Cr.P.C),
prior sanction from a competent officer is needed to
prosecute a government servant for alleged criminal act
done in discharge of his official duty and "no court shall
take cognizance of such offence except with the previous
sanction."
For claiming protection under Section 197 of the Code, it has
to be shown by the accused that there is reasonable
connection between the act complained of and the
discharge of official duty.
An official act can be performed in the discharge of official
duty as well as in dereliction of it.
For invoking protection under Section 197 of the Code, the
acts of the accused complained of must be such that the
same cannot be separated from the discharge of official
duty, but if there was no reasonable connection between
them and the performance of those duties, the official status
furnishes only the occasion or opportunity for the acts, then

PUBLIC SERVANT
 Public Servant : The word ‘Public Servant’ has been defined
under Section 2(c) of the Prevention Of Corruption Act, 1988.
Public servant include:
 Any person in the service or pay of the Government or
remunerated by the Government for the performance of any
public duty or any person in the service or pay of a local
authority.
 Any person in the service or pay of a corporation established
by or under a Central, Provincial or State Act.
 Any Judge, including any person empowered by law to
discharge any duty, in connection with the administration of
justice, including a liquidator, receiver or commissioner.
 Any arbitrator or other person to whom any cause or matter
has been referred for decision or report by a court of justice or
by a competent public authority;

 Any person who holds an office by virtue of which
he is empowered to prepare, publish, maintain or
revise an electoral roll or to conduct an election or
part of an election.
 Any person who holds an office by virtue of which
he is authorised or required to perform any public
duty.
 Any person who is the president, secretary or other
office-bearer of a registered co-operative society
engaged in agriculture, industry, trade or banking,
receiving or having received any financial aid from
the Central Government or a State Government.
 Any person who is a chairman, member or
employee of any Service Commission or Board, by
whatever name called, or a member of any selection
committee appointed by such Commission or Board
for the conduct of any examination or making any
selection on behalf of such Commission or Board.

Any person who is a Vice-Chancellor or member of
any governing body, professor, reader, lecturer or any
other teacher or employee, by whatever designation
called, of any University and any person whose
services have been availed of by a University or any
other public authority in connection with holding or
conducting examinations.
CASE LAW: PUBLIC SERVANT & SANCTION
A public servant cannot be prosecuted for acts done in
connection with his official duty.
Jaya Singh v. K.K. Velayutham, 2006 (55) ACC 805.
Rakesh Kumar Mishra v. State Of Bihar And Ors on 3
January, 2006
It was held by the Supreme Court that the use of the
expression "official duty" implies that the act or
omission must have been done by the public servant
in the course of his service and that it should have
been in discharge of his duty.

WHETHER A MINISTER OR CHIEF MINISTER
CAN BE CONSIDERED A PUBLIC SERVANT
The Chief Minister and the Ministers are public
servants as they hold public office and get salary from
the Government funds for the public duty performed
by them.
M. Karunanidhi v. Union of India, AIR 1979 SC 898
In this case, a five judge bench of the Supreme court
held that the holder of a public office such as the
Chief Minister is a public servant in respect of whom
the Constitution provides that he will get his salary
from the Government Treasury so long he holds his
office on account of the public service that he
discharges.
The salary given to the Chief Minister is coterminous
with his office and is not paid like other constitutional
functionaries such as the President and the Speaker.
These facts, therefore, point to one and only one
conclusion and that is the Chief Minister is in the pay

POSITION OF MLAAND MP
R. S. Nayak v. A. R. Antulay
In this case, the Chief Minister was accused to have
committed offence under Section 161 and 165 of the IPC
and Section 5 of the Act.
The question that needed to be answered was whether there is
requirement of sanction to prosecute as the person alleged
has ceased to be the chief minister but is still a sitting MLA.
The court opined that there is no such need for the sanction as
he is no more in the capacity of public servant in which he
had committed the said offence.
The accused in such case must continue to be a public servant
till the date cognizance is taken by the court.
It was held that MLAs are excluded as public servant under
IPC as they are not paid by the executive government for
his duty. Also, legislature is not considered to be within the
ambit of Government as per Section 21(12) of IPC.
M. Karunanidhi v. Union of India, 20 February 1979
In this case, again the question regarding whether MLAs are
public servants came before the Court.

The court conceded that MLA is not in the service of State
Government, thus not a public servant.
The sanctioning authorities in such cases would be the Central or
State Governments under which that servant works.
However, the ministers are considered to be public servants as they
discharge their official duties as per the norms of State
Government.
P. V. Narasimha Rao v. State
In this case, the congress party was alleged to have given bribe to
MPs to vote against the non-confidence motion moved in Lok
Sabha.
Here the court opined that the extended definition of public servan
under Section 2(c)(viii) of the Act includes MPs and hence they
are considered to be public servant for the purpose of this act.
The court further adds on to conclude that the definition is much
wider and more people can be covered under list of public
servants.

GOVERNOR COMPETENT TO GRANT FOR
PROSECUTION OF CHIEF MINISTER OR
MINISTERS
 Governor is competent to grant sanction for
prosecution of Chief Minister or Ministers for offences
committed under the P.C. Act, 1988 and in proper
cases Governor may act independently of or contrary
to the advice of his Council of Ministers in exercise of
his discretionary powers under Article 163 of the
constitution.
Case law
M.P. Special Police Establishment v. State of M.P. &
Others, (2004) 8 SCC 788
 In this case, it was observed by the Court that the
Council of Ministers has to first consider grant of
sanction. It is presumed that a high authority like the

 However, on those rare occasions where on facts the
bias becomes apparent or the decision of Council of
Ministers is shown to be irrational and based on non-
consideration of relevant factor, the Governor would
be right, on the facts of that case, to act in his own
discretion and grant sanction. In this view of the
matter, appeals are allowed.
 The decisions of the Single Judge and Division
Bench cannot be upheld and are accordingly set
aside. The Writ Petitions filed by the two Ministers
will stand dismissed. For the reasons aforementioned
the Court directed that the Order of the Governor
sanctioning prosecution should be given effect to and
that of the Council of Ministers refusing to do so may
be set aside.

WHO CAN GRANT SANCTION FOR PROSECUTION UNDER
SECTION 19 OF THE PC ACT, 1988
It is explained under Section 19(2) of the PC Act, 1988:
The authority which is competent to remove the public servant
from his office at the time when the offence was alleged to
have been committed is the authority which is supposed to
give sanction for prosecution.
For example: Central government which is the competent
authority to remove a person will be the authority to give
sanction for prosecution in that respective case.
Dr. Subramanian Swamy v. Dr. Manmohan Singh and
another, AIR 2012 SC 1185.
The Appellant vide several letters to the Respondent No. 1, Dr.
Manmohan Singh, sought to accord sanction to prosecute A.
Raja, the ex-Minister for Communication and Information
Technology under the P.C Act, 1988, for alleged grant of
licences in violation of Guidelines for United Access Services
Licence issued by the Ministry of Communication and
Information Technology resulting in huge loss to the
Government. In this case, it was held that the sanctioning
authority is that authority which is competent to remove a

SANCTION NOT REQUIRED FOR PROSECUTION
OF A MINISTER AFTER HIS RESIGNATION
No sanction under Section 19 of the P.C. Act, 1988 for
prosecution of a Minister, after his resignation, for
offences committed by him during his tenure as
Minister is required.
Others, (2004) 8 SCC788
In this case, constitutional bench of Supreme Court
held that no sanction under Section19 of the P.C. Act,
1988 for prosecution of a Minister, after his
resignation, for offences committed by him during his
tenure as Minister is required.
No sanction has been sought under Section 19 of the
Act of 1988 presumably for the reason that no
sanction there under is required as they have ceased

DEEMED SANCTION UNDER SECTION 19
 Dr. Subramanaan Swamy v. Dr. Manmohan Singh and
another, AIR 2012 SC 1185
The directions issued by the Hon'ble Supreme Court is that:
(a) All proposals for sanction placed before any Sanctioning
Authority, empowered to grant sanction for the
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 concerned authority.
(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 (a) above.
(c) 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.

Shashikant Prasad v. State, 2013 (83) ACC 215.
In this case, where CBI had submitted a charge-sheet to the
competent authority in the food grain scam of UP for grant of
prosecution sanction under Section 19 of the P.C. Act, 1988
for offences under Section 409, 420, 467, 468, 120-B IPC
and under 13(2) of the P.C. Act, 1988 but the sanction for the
prosecution was not granted by the competent authority
within a period of four months.
Relying on two Supreme Court decisions reported in
Vineet Narain & Another v. Union of India & Another, (1998) 1
SCC 226 and Dr. Subramanya Swamy v. Dr. Manmohan
Singh and another, AIR 2012 SC 1185,
it has been held by the Lucknow Bench of the Honourable
Allahabad High Court that since the State Government had
not taken any decision in regard to sanction of prosecution
of the accused on the charge-sheet submitted by the CBI
and the four months period fixed for grant of sanction by
the Apex Court had already expired, hence the trial court
was right in presuming the "Deemed Sanction" and had
rightly issued process to the accused persons by taking

(d) 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 or complaint in the court
to commence prosecution within 15 days of the expiry of
the aforementioned time limit.“
The same view was expressed by a full judge bench
Supreme Court in Vineet Narain v. Union of India,
(1998) 1 SCC 226.
DEEMED SANCTION UNDER SECTION19 AFTER
THREE OR FOUR MONTHS TIME LIMIT:
Whether trial court is competent to proceed with the case
on the basis of deemed sanction to prosecute the accused,
a prosecution sanction is not accorded by the competent
authority or State within the period of four months in
terms of the direction issued by the Apex Court in Vineet
Narain & Another v. Union of India & Another, (1998) 1
SCC 226

RELEVANT CONSIDERATIONS FOR GRANT OF
SANCTION & DUTY OF SANCTIONING AUTHORITY
The only thing which the Competent Authority is required to see
is whether the material placed by the complainant or the
investigating agency prima facie discloses commission of an
offence.
The Competent Authority cannot undertake a detailed inquiry to
decide whether or not the allegations made against the public
servant are true.
This observation was made by the Supreme Court in Dr.
Subramanian Swamy v. Dr. Manmohan Singh and another,
AIR 2012 SC 1185
DUTY OF PROSECUTION AND SANCTIONING
AUTHORITY
 The Hon'ble Supreme Court has summarized the role of the
prosecution and the sanctioning authority before according
sanction u/s 19 of the P.C. Act, 1988 in
CBI v. Ashok Kumar Aggarwal, 2014 (84) ACC 252
• The prosecution must send the entire relevant record to the
sanctioning authority including the FIR, disclosure statements,

DUTY OF PROSECUTION AND SANCTIONING
AUTHORITY
 The record so sent should also contain the material or
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 and 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

SANCTION U/S 19(1) FOR PROSECUTION NOT TO BE
GRANTED IF THE PROSECUTION IS SIMPLY
VEXATIOUS :
Sanction under Section 19(1) of prosecution cannot be granted if
the prosecution is simply vexatious nor the court can issue a
positive direction to the sanctioning authority to give sanction
for prosecution.
This observation is made by the Supreme Court in Sanjaysinh
Ramrao Chavan v. Dattatraya Phalke & Others, (2015) 3 SCC
123.
POWER U/S 19 OF THE P.C. ACT, 1988 OF SANCTION TO
PROSECUTE CANNOT BE DELEGATED BY THE
COMPETENT AUTHORITY
 Power under Section19 of the P.C. Act, 1988 of sanction to
prosecute cannot be delegated by the competent authority.
Sanction cannot be granted on the basis of report given by
some other officer or authority.
Manish Trivedi v. State of Rajasthan, AIR 2014 SC 648
In this case, it was held by the Supreme Court that sanction to
prosecute cannot be delegated by the competent authority.

SATISFACTION OF THE SANCTIONING AUTHORITY
SHOULD BE BASED ON MATERIAL PRODUCED :
Dr. Subramanian Swamy v. Dr. Manmohan Singh and Another,
AIR 2012 SC 1185
In this case, Court made the following observation:
 Grant or refusal of sanction is not a quasi judicial function and
the person for whose prosecution the sanction is sought is not
required to be heard by the Competent Authority before it takes
a decision in the matter.
 What is required to be seen by the Competent Authority is
whether the facts placed before it which, in a given case, may
include the material collected by the complainant or the
investigating agency prima facie disclose commission of an
offence by a public servant.
 If the Competent Authority is satisfied that the material placed
before it is sufficient for prosecution of the public servant, then
it is required to grant sanction.
 If the satisfaction of the Competent Authority is otherwise,
then it can refuse sanction. In either case, the decision taken on
the complaint made by a citizen is required to be communicated
to him and if he feels aggrieved by such decision, then he can

ONLY PRIMA FACIE SATISFACTION OF SANCTIONING
AUTHORITY NEEDED FOR GRANT OF SANCTION
 Grant of sanction under Section 19(1) of the P.C. Act, 1988 for
prosecution is administrative function. Only prima facie
satisfaction of the sanctioning authority is needed.
State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 199.
In this case the Supreme Court held that:
a) It is incumbent on the prosecution to prove that the valid
sanction has been granted by the sanctioning authority after
being satisfied that a case for sanction has been made out.
b) The sanction order may expressly show that the sanctioning
authority has perused the material placed before him and, after
consideration of the circumstances, has granted sanction for
prosecution.

c) The prosecution may prove by adducing the
evidence that the material was placed before the
sanctioning authority and his satisfaction was arrived
at upon perusal of the material placed before him.
d) Grant of sanction is only an administrative function
and the sanctioning authority is required to prima
facie reach the satisfaction that relevant facts would
constitute the offence.
SANCTION UNDER SECTION 19 OF THE P.C.
ACT IS A PRE-CONDITION FOR ORDERING
INVESTIGATION AGAINST A PUBLIC SERVANT
UNDER SECTION 156(3)
OF CR.P.C. EVEN AT PRE-COGNIZANCE STAGE
L. Narayana Swamy v. State Of Karnataka & Ors., SC
september 06, 2016.
 Supreme Court has held that an order directing
further investigation under Section 156(3) of the
Cr.P.C. cannot be passed in the absence of valid
sanction.

 The Court further observed that the jurisdiction of a
Magistrate to take cognizance of any offence is provided by
Section 190 of the Code, either on receipt of a complaint, or
upon a police report or upon information received from any
person other than a police officer, or upon his knowledge
that such offence has been committed.
 When public servants are concerned, the cognizance of any
offence, by any court, is barred by Section 197 of the Code
unless sanction is obtained from the appropriate authority,
if the offence, alleged to have been committed, was in
discharge of the official duty.
 The section not only specifies the persons to whom the
protection is afforded but it also specifies the conditions
and circumstances in which it shall be available and the
effect in law if the conditions are satisfied.
 The mandatory character of the protection afforded to a
public servant is brought out by the expression, ‘no court
shall take cognizance of such offence except with the
previous sanction’. Use of the words ‘no’ and ‘shall’ makes
it abundantly clear that the bar on the exercise of power of
the court to take cognizance of any offence is absolute and

 The very cognizance is barred. A court, therefore, is
precluded from entertaining a complaint or taking notice of
it or exercising jurisdiction if it is in respect of a public
servant who is accused of an offence alleged to have been
committed during discharge of his official duty.
SPECIAL JUDGE CANNOT ORDER REGISTRATION OF
FIR U/S 156(3) CR.P.C FOR OFFENCES UNDER P.C.
ACT, 1988 WITHOUT PRIOR SANCTION ORDER OF
COMPETENT AUTHORITY U/S 19(1) OF THE P.C. ACT,
1988 :
State of UP v. Paras Nath Singh, (2009) 6 SCC 372
Anil Kumar and Ors v. M.K.Aiyappa and Anr on 1
October, 2013
Army Headquarters v. CBI (2012) 6 SCC 228
The Honourable Supreme Court in these case held that
Special Judge cannot order registration of FIR under
Section 156(3) Cr.P.C for offences under P.C. Act, 1988
without prior sanction order of competent authority
under Section 19(1) of the P.C. Act, 1988.

SANCTION FOR PROSECUTION OF PUBLIC SERVANT
FOR OFFENCES U/S 420, 409, 467, 468, 471 IPC NOT
REQUIRED :
Chandan Kumar Basu v. State of Bihar, 2014 (86) ACC 856
In this case, Supreme Court held that Sanction for prosecution
of public servant for offences under 420, 409, 467, 468, 471
IPC not required.
STAGE OF RAISING PLEA OF SANCTION
 Interpreting the provisions under Section 196, 197, 156
Cr.P.C., it has been held by the Supreme Court that the plea
of sanction can be raised at the time of taking cognizance of
the offence or any time thereafter.
 But the plea of sanction cannot be raised or Sec. 197 Cr.P.C.
is not attracted at the stage of registration of FIR,
investigation, arrest, remand of the accused under 167
Cr.P.C. or submission of the police report under 173(2)
Cr.P.C.
 When a case is under IPC and PC Act, 1988, question as to
need of sanction under 197 Cr.P.C. not necessarily to be
raised as soon as the complaint is lodged. It can be raised at

 If the cognizance of the offence has been taken without
sanction, the plea of want of sanction can be raised by the
accused after the commitment of the case and when the
accused are called upon to address the court under 227
and 228 Cr.P.C.
The Supreme Court has made this observations in State of
Karnataka v. Pastor P. Raju, AIR 2006 SC 2825, K.
Kalimuthu v. State by DSP, 2005 (3) SCJ 682, Birendra
K. Singh v. State of Bihar, 2000 (4) ACC 653 (SC).
STAGE OF NECESSITY OF SANCTION IN
COMPLAINT CASE
Rakesh Kumar Mishra v. State of Bihar (2006) SCC 557
Center for Public Interest Litigation v. Union of India, AIR
2005 SC 4413
 In these cases, the accused, a police officer, had
conducted a search without warrant and Magistrate had
taken cognizance against him of the offences under
Sections 342, 389, 469, 471, 120-B IPC without sanction
for prosecution under Section 197 Cr.P.C

.
 The Honourable Supreme Court held that sanction under
S.197 Cr.P.C for prosecution of the police officer was
necessary. Protection of S.197 Cr.P.C is available to a public
servant when the alleged act done by the public servant is
reasonably connected with the discharge of his official duty
and is not merely a cloak for doing the objectionable Act.
Therefore, the concept of Section 197 Cr.P.C does not get
immediately attracted on institution of the complaint case.
The test to determine whether omission or neglect to do that act
would have brought on the charge of dereliction of his official
duty.
COURT MAY WHEN DEFER TO DECIDE THE QUESTION
OF SANCTION U/S 197 CRPC AT A LATER STAGE OF
THE CASE
Romesh Lal Jain v. Naginder Singh Rana & Others, (2006) SCC
294
In this case, the Supreme Court held that where ex facie no

If the validity or otherwise of an order of sanction is
required to be considered having regard to the facts
and circumstances of the case and furthermore when
a contention has to be gone into as to whether the act
alleged against the accused has any direct nexus with
the discharge of his official act, it may be permissible
in a given situation for the court to examine the said
question at a later stage.
SPECIAL JUDGE UNDER P.C. ACT, 1988 CAN
ORDER REGISTRATION OF FIR AND
INVESTIGATION THEREOF U/S 156(3) CR.P.C
Special Judge under P.C. Act, 1988 is empowered to
grant an application under156(3) Cr.P.C. involving
offences under the P.C. Act, 1988 and under IPC.
He can also take cognizance on a complaint by private
person.

SANCTION U/S 197 CRPC NOT REQUIRED WHEN
SANCTION U/S 19 OF THE PC ACT, 1988 HAS
ALREADY BEEN GRANTED:
 Neera Yadav v. CBI on 2 August, 2017
A Full Bench of the Allahabad High Court has held that:
For prosecution under Prevention of Corruption Act, 1988,
once sanction under Section 19 of the Act is granted, there is
no necessity for obtaining further sanction under Section 197
of the Cr.P.C.
AUTHORITY COMPETENT TO GRANT SANCTION U/S 19
OF THE P.C. ACT, 1988 CAN ALSO GRANT SANCTION
U/S 197 CRPC:
Ramesh Lal Jain v. Naginder Singh Rana & Others, (2006) 1
SCC 294
Sanction required under Section 197 Cr.P.C and sanction
required under the 1988 Act stand on different footings.
The sanction under the Code of Criminal Procedure is required
to be granted by the State and under the Prevention of
Corruption Act,1988 it can be granted also by the authorities
specified in Section 19 thereof.

TEST FOR NECESSITY OF COMPOSITE SANCTION U/S 19 OF
THE P.C. ACT, 1988 AND U/S 197 CR.P.C.
Test to determine for sanction order amount to a
composite order, there must be an immediate or
proximate connection between the P.C. Act and the IPC
offences for which accused is charged.
The test to be applied in such a case would be whether
the offences under IPC are also required to be proved in
relation to the offences under the P.C. Act, 1988.
WHEN SECTION 197 Cr.P.C IS ATTRACTED.
 The protection given under Section 197 is to protect
responsible public servants against the institution of
possibly vexatious criminal proceedings for offences
alleged to have been committed by them while they are
acting or purporting to act as public servants.
 The policy of the legislature is to afford adequate
protection to public servants to ensure that they are not
prosecuted for any thing done by them in the discharge
of their official duties.

Center for Public Interest Litigation & Another v. Union of
India & Another, AIR 2005 SC 4413
 In this case, it was held that before invoking Section 197, it
must be shown that the official concerned was accused of an
offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duties.
 One safe and sure test in this regard would be to consider if
the omission or neglect on the part of the public servant to
commit the act complained of could have made him
answerable for a charge of dereliction of his official duty, if
the answer to this question is in the affirmative, it may be
said that such act was committed by the public servant while
acting in the discharge of his official duty and there was
every connection with the act complained of and the official
duty of the public servant.
 This aspect makes it clear that the concept of S.197 does not
get immediately attracted on institution of the complaint case.

SANCTION U/S 197 CRPC REQUIRED ONLY WHEN THE
OFFENCE COMMITTED IS ATTRIBUTABLE TO OR HAS
DIRECT NEXUS WITH THE OFFICIAL DUTY OF THE
PUBLIC SERVANT.
 An order of sanction in terms of Section 197 Cr.P.C is required
to be obtained when the offence complained of against the
public servant is attributable to the discharge of his public duty
or has a direct nexus therewith, but the same would not be
necessary when the offence complained of has nothing to do
with the same.
Ramesh Lal Jain v. Naginder Singh Rana & Others, (2006) 1
SCC 294.
 In this case, it was held by the Court that for invoking
protection under Section 197 of the Code, the acts of the
accused complained of must be such that the same cannot be
separated from the discharge of official duty, but if there was
no reasonable connection between them and the performance
of those duties, the official status furnishes only the occasion

SANCTION AGAINST RETIRED PUBLIC SERVANT NOT
REQUIRED
S.A. Venkataraman v. The State. [1958] SCR 1037
Under the provisions of the Prevention of Corruption Act,
1947, it was laid down that the protection under the
concerned provisions would not be available to a public
servant after he had demitted his office or retired from
service.
The Court further observed that if an offence under S.161 of
the IPC was committed by a public servant, but, at the time a
court was asked to take cognizance of the offence, that
person had ceased to be a public servant, and a previous
sanction would be unnecessary.
The words in S. 6(1) of the Act are clear enough and they must
be given effect to. There is nothing in the words used in s.
6(1) to even remotely suggest that previous sanction was
necessary before a court could take cognizance of the
offences mentioned therein in the case of a person who had

R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684
In this case, a five judge bench of the Supreme Court held that if
a public servant has ceased to be a public servant on the date of
cognizance of the offence by the court, sanction for his
prosecution is not required.
Sanction for prosecution of retired public servant is not required
if the alleged act of corruption was committed by the Minister
during his tenure as such Minister.
The Court made this observations in M.P. Special Police
Establishment v. State of M.P. & Others, (2004) 8 SCC 788 ,
Habibulla Khan v. State of Orissa, AIR 1995 SC 1123
PRIOR SANCTION FOR PROSECUTION OF RETIRED
PUBLIC SERVANT NOT NECESSARY
Dr. Subramanian Swamy v. Dr. Manmohan Singh and Another,
AIR 2012 SC 1185
The Supreme Court observed that if a person who is employed
and is not removable from his office by an authority other than
the Central Government or the State Government, as the case
may be, sanction to prosecute is required to be obtained either
from the Central Government or the State Government.
The emphasis is on the words "who is employed" in connection

The Court further observed that if he is not employed
then Section 19 nowhere provides for obtaining such
sanction. In case where the person is not holding the
said office as he might have retired, superannuated,
been discharged or dismissed then the question of
removing would not arise.
 Admittedly, when the alleged offence was committed,
the petitioner was appointed by the Central
Government. He demitted his office after completion
of five years' tenure. Therefore, at the relevant time
when the charge-sheet was filed, the petitioner was
not holding any office.
 Hence, there is no question of obtaining any previous
sanction of the Central Government.
Similar observation was made in:
Balakrishnanan Ravi Menon v. Union of India, (2007)
1 SCC 45.
Prakash Singh Badal v. State of Punjab, AIR 2007 SC
1274

SANCTION NOT REQUIRED FOR PROSECUTION
OF A MINISTER AFTER HIS RESIGNATION :
 No sanction under Section 19 of the P.C. Act, 1988
for prosecution of a Minister, after his resignation,
for offences committed by him during his tenure as a
Minister.
 In recent incident of Ex-Maharashtra Home
Minister Anil Deshmukh, where Bombay High Court
held that sanction not required for prosecution of a
minister after his resignation.
Case law
Others, (2004) 8 SCC 788
 In this case it was held by a five judge bench of the
Supreme Court that no sanction under Section 19 of
the P.C. Act, 1988 for prosecution of a Minister, after
his resignation, for offences committed by him
during his tenure as Minister is required.

SANCTION FOR PROSECUTION OF A RETIRED PUBLIC
SERVANT IS ESSENTIAL U/S 197 CRPC BUT NOT FOR
OFFENCES UNDER P.C. ACT, 1947 OR P.C. ACT, 1988 :
Rakesh Kumar Mishra v. State of Bihar, (2006) 1 SCC
557
Necessity of obtaining sanction under Section 197 Cr.P.C
for prosecution of a retired public servant is must. But
an accused facing prosecution for offences under the
P.C. Act, 1947 or the P.C. Act, 1988 cannot claim any
immunity on the ground of want of sanction if he
ceased to be a public servant on the date when the court
took cognizance of the said offences.
The correct legal position, therefore, is that an accused
facing prosecution for offences under the Prevention of
Corruption Act, 1988 cannot claim any immunity on
the ground of want of sanction if he ceased to be a
public servant on the date when the court took

RETIRED PUBLIC SERVANT & SEC. 197 CRPC
 It was held by Supreme Court in State of Orissa v. Ganesh
Chandra Jew, (2004) 8 SCC 40 and State of Himachal
Pradesh v. M.P. Gupta (2004) 2 SCC 349 that if the accused
public servant had ceased to be a public servant on the date
when the court took cognizance of the offences under the
P.C. Act, Section 197 Cr.P.C. is not attracted. The same view
was expressed in S.K. Zutshi v. Sri Bimal Debnath, (2004) 8
SCC 31
INSTANCES WHEN SANCTION U/S 19 OF P.C ACT NOT
REQUIRED
Vishwa Nath Chaturvedi v. Union of India & Others (2013) 2
SCC 16
 Where the public servants in the State of U.P were found to
have committed offences in a planned, deliberate and
intentional manner to usurp public fund for their own vested
interests in relation to food grains scam, it has been held that
such indulgence in corrupt practice by public servants is
their private conducts and for that they cannot claim
protection u/s 19 of the P.C Act, 1988 and no sanction for
their prosecution is required.

ERROR IN SANCTION WHEN NOT MATERIAL
Ashok Tshering Bhutia v. State of Sikkim, 2011 CrLJ 1770
(SC)
 In the absence of anything to show that the error or
irregularity in sanction under Section 19 of the P.C Act,
1988 has caused failure of justice and once cognizance
has been taken, it cannot be said that cognizance has been
taken on invalid police report.
SANCTION WHEN PUBLIC SERVANT HOLDING
MORE THAN ONE PUBLIC OFFICE :
R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684.
Where the public servant was holding more than one public
office and the question of sanction for misusing or
abusing one of his public offices arose, it has been held
by the Honourable Supreme Court that sanction of
authority competent to remove him from office allegedly
misused or abused alone is necessary and not of all
competent authorities.
STAGE OF SANCTION U/S 197 CRPC :

STAGE OF SANCTION UNDER SECTION 19 OF THE PC
ACT, 1988
 Necessity of grant of sanction u/s 19 of the PC
Act, 1988 is required not only at the stage of
taking cognizance of the offence under the Act
but also at the stages before it.
 Dr. Subramanian Swamy v. Dr. Manmohan
Singh and Another, AIR 2012 SC 1185
SANCTION OF PROSECUTION WITHOUT
APPLICATION OF MIND
 Where the accused public servant was
prosecuted and convicted for offences under 161
I.P.C. and under P.C. Act 1988 but there was no
application of mind by the sanctioning authority,
the conviction was set aside on the ground of
non application of mind before according
sanction by the sanctioning authority.

Order granting sanction should be demonstrative of fact of
proper application of mind.
The sanctioning authority must judge whether the public
servant should receive the protection under the P.C. Act
1988 or not.
The Court made these observations in
 State of Karnataka v. Ameer Jan, 2007 (59) ACC 811
 Bishambhar Dayal Srivastava v. State of U.P 1982 SCR
(1)1137
 Ramesh Lal Jain v. Naginder Singh Rana,(2006)1 SCC
294
 State of H.P. v. Nishant Sareen, 2011 (72) ACC 423
 The Supreme Court in these instances held that an
order granting or refusing sanction must be preceded by
application of mind on the part of appropriate authority

QUESTION OF VALIDITY OF SANCTION ORDER CAN
BE RAISED DURING TRIAL
Dinesh Kumar v. Chairman, Airport Authority of India &
Another, AIR 2012 SC 858.
 In case of trial of accused under PC Act, 1988, it has been
held by the Hon'ble Supreme Court that the question of
validity of sanction order passed by the sanctioning
authority under Section19 of the PC Act, 1988 can be raised
during the trial of the case.
SANCTION SUBSEQUENT TO DISCHARGE OF
ACCUSED
Balbir Singh v. State of Delhi, 2005 (85) DRJ 52 In this case,
it was held that If the accused was discharged for want of
sanction (under POTA), court can proceed subsequent to
obtaining sanction.
SANCTION BY INCOMPETENT AUTHORITY
Sanction granted by an officer not competent to do so is a
nullity. If the officer granting sanction was not conferred the
delegated powers of the sanctioning authority, the same is
nullity. Sanction must be granted by an officer competent to
remove the accused from office. The same observation was

SANCTION ORDER TO BE SPEAKING
 In Krishnamurthy v. State of Karnataka, 2005(3) SCJ 660, it
was held that when the sanction order for prosecution of the
accused under the P.C. Act is eloquent and speaks for itself,
it is valid.
NO SANCTION REQUIRED FOR OFFENCE U/S. 12 OF
THE P.C. ACT, 1988
Abetment of any offence punishable u/s. 7 or 11 is in itself a
distinct offence. Sec. 19 of the P.C. Act, 1988 specifically
omits Sec. 12 from its purview.
Courts do not take cognizance of an offence punishable u/s. 7,
10, 11, 13, 15 alleged to have been committed by a public
servant except with the previous sanction of the
government. No such sanction is required in cases of
offence punishable u/s. 12 of the P.C. Act, 1988.
In State Through CBI v. Parmeshwaran Subramani, 2009 (67)
ACC 310 it was held that no sanction is required for

RELEVANT DATE FOR SANCTION OF PROSECUTION
The relevant date with reference to which a valid sanction is
sine qua non for taking cognizance of an offence committed
by a public servant as required by Sec. 6 of the P.C. Act
1947 is the date on which the Court is called upon to take
cognizance of the offence of which he is accused. The five
judge bench of Supreme Court expressed same view in R.S.
Nayak v. A.R. Antulay, AIR 1984 S.C. 684.
NATURE OF ORDER OF SANCTION IS
ADMINISTRATIVE
In the cases of (i) State of Bihar v. P.P. Sharma, IAS and
another, AIR 1991 SC 1260 (ii) State of Maharashtra &
others v. Ishwar Piraji Kalpatri, AIR 1996 SC 722 and (iii)
State of Punjab & another v. Mohammed Iqbal Bhatti,
(2009) 17 SCC 92, it has been held by the Hon'ble Supreme
Court that the order of sanction passed under Section 197
Cr.P.C and under Section 19 of the Prevention of Corruption

REVIEW OF PREVIOUS ORDER GRANTING
OR REFUSING SANCTION :
 In the case of State of Punjab & Another v.
Mohammed Iqbal Bhatti on 31 July, 2009, a
question had arisen for consideration of the
Hon'ble Supreme Court as to whether the
sanctioning authority has power of review in
the matter of grant of sanction under Section
197 of the Cr.P.C and under Section 19 of the
Prevention of Corruption Act, 1988.
 The facts of the above case were that the
accused Mohammed Iqbal Bhatti was posted
and working as Block Development and
Panchayat Officer in the State of Punjab and on
an FIR being lodged and completion of
investigation thereof, a charge-sheet was
prepared against him by the investigating

 Governor of the State of Punjab was the appointing
authority of the public servant or accused.
 Sanction for prosecution was refused. The matter
was, however, after change of government placed
before the competent authority once again without
any fresh or new material and sanction to prosecute
the public servant or accused was granted.
 Questioning the validity of the aforesaid order
granting sanction for prosecution, the public servant
or accused filed a Writ Petition before the Hon'ble
Punjab & Haryana High Court and the same was
allowed by observing that "the State had no power of
review and in any event, the impugned order could
not have been passed as the State while passing its
earlier order had exhausted its jurisdiction.
 The State of Punjab then challenged the aforesaid
order of the Hon'ble Punjab & Haryana High Court
by filing an appeal before the Hon'ble Supreme
Court.

Dismissing the appeal, the Hon'ble Supreme Court observed
that:
 The High Court in its judgment has clearly held, upon
perusing the entire records, that no fresh material was
produced. There is also nothing to show as to why
reconsideration became necessary.
 On what premise such a procedure was adopted is not
known. Application of mind is also absent to show the
necessity for reconsideration or review of the earlier
order on the basis of the materials placed before the
sanctioning authority or otherwise.
 The legality or validity of the order granting sanction
would be subject to review by criminal courts. An order
refusing to grant sanction may attract judicial review by
the Superior Courts.
 The source of power of an authority passing an order of
sanction must also be considered.
 The State in the matter of grant or refusal to grant
sanction exercises statutory jurisdiction under Section
197 Cr.P.C, the same, however, would not mean that
power once exercised cannot be exercised once again.

ADMINISTRATIVE REVIEW OF PREVIOUS
ADMINISTRATIVE ORDER PERMISSIBLE :
 In the case of R.R. Verma & others v. Union of India &
others, AIR 1980 SC 1461, the Hon'ble Supreme Court has
ruled that "it is not correct to say that the power to review
must be conferred by statute either specifically or by
necessary implication is applicable to decisions purely of an
administrative nature. Again, if administrative decisions are
reviewed, the decisions taken after review are subject to
judicial review on all grounds on which an administrative
decision may be questioned in a court.
 It is, therefore, clear that administrative review of an
administrative order is legally possible provided there is
any fresh or new material necessitating such review.
 The nature of the order granting or refusing sanction for
prosecution is administrative, therefore, review of an earlier
order granting or refusing sanction is permissible under law
if the same is required on the basis of new material or
evidence produced before the authority concerned.

 In Deepak Khinchi v. State of Rajasthan, 2012 (77) ACC
919, it was observed that review of previous Sanction order
permissible only on fresh material.
 Sanction to prosecute on review of previous order can be
considered only when fresh materials have been collected.
 Previous order refusing sanction can be reviewed on
production of fresh material.
 A Division Bench of the Hon'ble Himachal Pradesh High
Court in the case of Omkar Sharma v. State of HP & others,
2003 CrLJ 1024 has held that once sanction for prosecution
of public servant was refused by competent authority, the
same cannot be revised or reviewed on same materials.
REVIEW OF PREVIOUS ORDER REFUSING SANCTION
NOT PERMISSIBLE
CASE LAW
 Naresh Chandra Gupta v. Chief Engineer, Hydel and
Others, 2010 (6) ALJ 380

• A Junior Engineer of UP Power Corporation was
apprehended taking bribe of Rs. 70/- in the year 1979
and his prosecution for offences under Section 161,
162, 120-B of the IPC and under Section 5(2) of the
Prevention of Corruption Act, 1947 was proposed.
• Sanction for his prosecution was refused by the Chief
Engineer on the ground that the trap laid on the
accused Junior Engineer had legal defects.
• The successor Chief Engineer found that his
predecessor had travelled beyond his powers in
refusing the sanction for prosecution of the accused
Junior Engineer and granted sanction to prosecute
him for the said offences.
• Quashing the order of sanction passed by the
successor Chief Engineer, a Division Bench of the
Hon'ble Allahabad High Court observed that in
administrative decisions, however, the power of
review or recall is not to be presumed, until it is
conferred by statute.

 The concession of the powers of review or recall in
administrative matters, unless expressly conferred by the
Statute, or where the order is vitiated on
misrepresentation and fraud, will lead to frequent change
of orders and uncertainty in governance.
If the Chief Engineer (Hydel), Lucknow was not satisfied
with the order passed by his predecessor refusing
sanction to prosecute the petitioner on the grounds that he
was not entitled to look into the evidence or the opinion
of the Investigating officer, the matter could have been
referred by him to the State Government.
SANCTION FOR PROSECUTION AS REQUIRED U/S.
197 CR.P.C. & U/S. 19 OF THE P.C. ACT, 1988 &
STAGE OF RAISING PLEA OF SANCTION
Interpreting the provisions under Section 196, 197, 156
Cr.P.C., it has been held by the Supreme Court that the
plea of sanction can be raised at the time of taking
cognizance of the offence or any time thereafter.

But the plea of sanction cannot be raised or Sec. 197
Cr.P.C. is not attracted at the stage of registration of
FIR, investigation, arrest, remand of the accused u/s.
167 Cr.P.C. or submission of the police report u/s.
173(2) Cr.P.C.
When a case is under IPC and PC Act, 1947, question
as to need of sanction u/s. 197 Cr.P.C. not
necessarily to be raised as soon as the complaint is
lodged. It can be raised at any stage and from stage
to stage.
If the cognizance of the offence has been taken
without sanction, the plea of want of sanction can be
raised by the accused after the commitment of the
case and when the accused are called upon to
address the court u/s. 227 and 228 Cr.P.C.
In cases such as State of Karnataka v. Pastor P. Raju,
AIR 2006 SC 2825, K. Kalimuthu v. State by DSP,
2005 (3) SCJ 682, Birendra K. Singh v. State of

SANCTIONS U/S 197 CRPC & U/S 19 OF PC ACT, 1988 ARE
DIFFERENT :
Sanction contemplated in Section 197 Cr.P.C concerns a
public servant who "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" whereas the
offences contemplated in the Prevention of Corruption
Act, 1988 are those which cannot be treated as acts either
directly or even purportedly done in the discharge of his
official duties.
Parliament must have desired to maintain the distinction
and hence the wording in the corresponding provision in
the former PC Act was materially imported in the new PC
Act, 1988 without any change in spite of the change made
in Section 197 Cr.P.C. Section 197 of the Cr.P.C &
Section 19 of the PC Act operate in conceptually different
fields.
The Supreme Court differentiated this in Kalicharan
Mahapatra v. State of Orissa, AIR 1998 SC 2595, Dr.
Subramanian Swamy v. Dr. Manmohan Singh and

SANCTION UNDER SECTION 19 OF THE
PREVENTION OF CORRUPTION ACT AND
UNDER SEC 197 OF CODE OF CRIMINAL
PROCEDURE CODE
 Sanction is not required under section 19 of the P.C
Act, if the public servant is no longer in service at the
time the Court takes the cognizance of the offence,
but is required under Section 197 Cr. P.C even where
the public servant is no longer in service at the time
the Court takes cognizance of the offence.
 Under Section 19 of the P.C Act, sanction for
prosecution is required for an offence punishable
under section 7, 10, 11, 13, 15 of the Act, while under
Section 197(1) Cr.P.C sanction is required for an
offence committed while acting or purporting to act
in the discharge of his official duty, and not
otherwise.

CERTAIN SHORTCOMINGS OF SECTION 19
NEED OF SANCTION – UNNECESSARY BURDEN UPON
PROSECUTION
Under Section 19 it is provided that there is need of obtaining
prior sanction from the relevant authorities in instances of
corruption.
No Court can take cognizance of the offences committed under
the Act if this requirement is not complied with by the
prosecution.
The pre-requisite of taking sanction before taking cognizance is
mandatory to the court. This prerequisite cannot be avoided in
any case. We have seen in a number of instances that there is
unnecessary delay in prosecuting public servants because of
this provision.
Equality before law and Equal Protection of Law are the cardinal
principles of natural justice. But by making prior sanction
necessary has attacked these principles considerably. There are
some reasons in favour of making sanction necessary.

They should be given some protection to follow their duty
without any fear of malicious or frivolous prosecution.
The Hon‘ble Supreme Court has upholded the validity of the
Section 19 many a times.
i. Vineet Narain v. Union of India 1 SCC 226
It was held that a mere possibility of abuse cannot be a
ground to declare a provision, otherwise valid, to be
unconstitutional and that the exercise of power has to be
regulated to effectuate the purpose of law.
The most recent case is Manzoor Ali Khan v. Union of India
where the Supreme Court has established the validity of the
Section. In Manzoor Ali Khan v. Union of India , 30
August, 2018
The Hon‘ble Supreme Court has established the validity of the
pre-requisite of sanction.
The Court held that: ―Requirement of sanction has the object
of protecting an innocent public servant against

Undoubtedly, there can be no tolerance to
corruption which undermines core
constitutional values of justice, equality, liberty
and fraternity. At the same time, need to
prosecute and punish the corrupt is no ground to
deny protection to the honest.
Mere possibility of abuse cannot be a ground to
declare a provision, otherwise valid, to be
unconstitutional.
The Court further observed that 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

The problem is that this Section is used as a shield to protect
corrupt public servants from prosecution. The connivance of
corrupt public servants with politicians is harming the object
of the Act badly and some guidelines are needed in this
regard.
There are many instances where the accused got undue benefit
of this provision and were left outside the reach of law and
due process.
The petitioner in Manzoor Ali Khan v. Union of India has
given reference of following cases where many persons
holding key top most positions in government were indicted
even by the Supreme Court, but yet they could not be
prosecuted because of non-approval of sanction for
prosecution:
i. Common Cause v. Union of India on 9 March, 2018
ii. Shiv Sagar Tiwari v. Union of India on 8 November, 1996
iii. M.C. Mehta v. Union of India (Taj Corridor Case)
iv. Prakash Singh Badal v. State of Punjab on 6 December,
2006
v. Lalu Prasad Yadav v. State of Bihar and Others 2001 (2)

REPORT OF THE COMMITTEE ON DRAFT NATIONAL
POLICY ON CRIMINAL JUSTICE, 2007 REGARDING
SANCTION
The Committee was appointed by Ministry of Home Affairs,
Government of India under the Chairmanship of Prof (Dr.)
N. R. Madhava Menon.
The committee in its report observed that Corruption is largely
responsible for delays in giving sanction. In this regard, the
requirement of prior sanction to initiate action against
corrupt public servants is unacceptable yet, it is retained in
practice.
Committee observed that political corruption is been noticed
in giving sanction for prosecution of higher officials is
common in India.
The National Policy should find alternative methods to protect
bonafide action of honest officials and the need to amend
the present provisions of the Act granting sanctions.

REPORT OF THE SELECT COMMITTEE OF
RAJYA SABHA ON THE PREVENTION OF
CORRUPTION (AMENDMENT) BILL, 2013
It was presented in the Rajya Sabha on 12th
August, 2016.
In this report, the Section19 of Prevention of
Corruption Act, 1988 was proposed to be
amended.
The suggestions include:
 Sanction for initiating investigation against a
public servant to be granted by Lokpal or
Lokayukta.
 Extending protection of prior sanction of the
Competent Authority to retired government
servants and providing for timeline for granting
sanction by that Competent Authority.

69 th RAJYA SABHA REPORT, 2014
It was a committee report on personnel, public
grievances, law and justice under the chairmanship of
Shantaram Naik.
OBSERVATIONS AND SUGGESTIONS REGARDING
SANCTIONING FOR PROSECUTION IN THE REPORT
INCLUDE:
Protection to Honest Public Servant
 The safeguard of prior sanction for prosecution
provided under Section 19 of the Act to protect
public servant against malicious and vexatious
prosecution for any bonafide omission or commission
in the discharge of official duty.
 The affording of such protection need to be based on
careful appraisal of the facts and the process of
decision making involved.
 It was proposed to amend the said Section for
extending the same protection to public servant after

Section 6A of DSPE Act, 1946 also protects honest civil
servant from harassment in prosecution for things done in
bonafide performance of public duty. It is proposed to
extend the protection of prior approval of the Central
Government before conducting any inquiry or investigation
by Central Bureau of Investigation in respect of offences
under the Prevention of Corruption Act, 1988 to civil
servant holding such senior policy level position even after
they cease to hold such position due to retirement,
reversion, etc.
It is also proposed to amend S. 10 to provide inter-alia that no
request can be made, by a private person for the previous
sanction of the appropriate Government or competent
authority unless such person has filed a complaint in a
competent court; and the court has directed the complainant
to obtain the sanction for prosecution.
In the case of a request from a private person, the appropriate
Government or competent authority shall not accord

Any request for sanction for prosecution of a public servant
will has to be decided by appropriate Government or
Competent Authority within three months extendable by
one month where consultation with Attorney General or
Advocate General of State is necessary.
SANCTION OF PROSECUTION BY APPROPRIATE
GOVERNMENT OR COMPETENT AUTHORITY
With sanction for prosecution of Government servants
under Section 19 of the Prevention of Corruption Act,
1988 sanction required under Section 197 of the Code of
Criminal Procedure, 1973 may be dispensed with or vice-
versa.
The Bill does not provide for action or punishment against
sanctioning authority failing to meet time line prescribed
under Section 19 of proposed Bill for giving sanction of
prosecution.
Special order spelling out reasons for denial for sanction for
prosecution to be included in Section 19 of the proposed
Bill.
Delay in grant of sanction of prosecution by appropriate
Government or competent authority beyond the

Sanctioning authority meticulously examine
issues and material placed before it before
giving sanction for prosecution so that
prosecution is not hit in future by issues relating
to sanction not being proper or without a
speaking order.
• Sanctioning authorities should not be summoned
by the Court rather material or document placed
before him for sanctioning prosecution may be
produced before the Court.
• Immunity and security to sanctioning
authorities may be provided in the Act to
exercise their discretion appropriately.
Transferring power of sanction for investigation
by Central Bureau of Investigation to Central

Delegation of sanction of prosecution to Empowered
Committee comprising the Central Vigilance
Commission and Departmental Secretary to
Government.
In the case of sanction against Secretary to
Government, the Empowered Committee would
comprise Cabinet Secretary and Central Vigilance
Commission. Similar arrangement may also be made
at State level.
In case of refusal of sanction of prosecution reasons
may be recorded and placed before the respective
legislature.
Prior sanction need not be taken in the cases of trap and
disproportionate asset.
Retiring as well as serving public servant should be
treated at par regarding sanction of prosecution.

CONCLUSION
We have encountered with the defects of this provision a
number of times. This provision is proving to be a big
hindrance in booking the criminals under the Prevention
of Corruption Act.
It is the cardinal principle of Criminal Justice system that
once a crime is committed, the accused shall be booked
and prosecuted, and to be punished if proved guilty. But
the prior requirement of sanction is defeating the object
of this principle.
No special privilege or liberty should be given to the public
servants in this context. Sometimes the process is so
pathetic that creates the effect of acquittal even without
holding any trial because of non-grant of sanction by the
concerned authority because of various reasons.
Another fallacy of the Act is that no proper guidelines or
measures are provided under the Act about the process of
sanction. There is urgent need of amending this provision
of the Act, if not; introduction of proper guidelines or
measures is the prime need in this context.

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