Proposed amendment in PC Act for sanction for prosecution – confusion and...

Proposed amendment in PC Act for sanction for prosecution – confusion and contradictions

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Section 19 of the Prevention of Corruption Act, 1988, requires sanction for prosecution of a public servant for offences under the said Act. As per the existing provisions under Section 19, sanction for prosecution is needed only if the public servant is still in service at the time of filing of the chargesheet; and, no such sanction under this section is needed if the public servant has retired or ceases to be in service at the time of filing of the chargesheet (in fact, at the stage of taking cognizance by court). On the other hand, sanction needed under Section 197 of the Cr.P.C. for prosecution of a public servant (to whomsoever this provision is applicable) is required irrespective of whether the public servant continues to be in service or has retired or has ceased to be in service at the time of filing of the chargesheet. Now, an amendment has been proposed to amend Section 19 of the PC Act to require sanction for prosecution under that section even when a public servant has retired or has ceased to be in service at the time of filing of the chargesheet. However, this amendment would not be applicable to all categories of public servants. This proposed amendment is not in line (at least, in its “intent”) with what has been provided under the recently enacted Lokpal and Lokayuktas Act, 2013. It creates confusion and contradictions.

CorruptionFirstly, let me reproduce the existing provision in Section 19(1) of the PC Act:

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, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013—

(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.”

The Prevention of Corruption (Amendment) Bill, 2013 (this particular amendment is retained by the 2015 Amendment Bill), inter alia, proposes following changes in the above provisions:

“(ii) in clause (a), for the words “who is employed”, the words “who is employed, or as the case may be, was at the time of commission of the alleged offence employed” shall be substituted;

(iii) in clause (b), for the words “who is employed”, the words “who is employed, or as the case may be, was at the time of commission of the alleged offence employed” shall be substituted;”

By these amendments, it is intended that the sanction for prosecution would be needed not only for a public servant “who is employed” but also for a public servant “who was at the time of commission of the alleged offence employed”. Thus sanction for prosecution would be needed even after retirement or after the public servant ceases to be in service. However, it can be seen that this proposed amendment will be made only in respect of clauses (a) and (b) of sub-section 19(1), and it will not be made in respect of clause (c) of the said sub-section. This means that sanction for prosecution after retirement would be needed only in the case of those public servants who are not removable from the office save by or with the sanction of the Central Government on the State Government, i.e., mainly Gazetted government officers (or some other higher functionaries directly appointed by Government) who can be removed only by the President or the Governor, as the case may be. This proposed amendment provision will not be applicable to other public servants who can be removed by other authorities, such as non-gazetted government servants as well as officials working in public sector undertakings and other categories of public servants. It is noteworthy that clause (c) of Section 19(1) is not proposed to be amended, and the existing interpretation of Section 19 by the Supreme Court is that sanction for prosecution is needed only for the serving public servants.

This may appear to be a discrimination since if the proposed amendment is passed by the Parliament, sanction for prosecution would be needed after retirement only in case of certain public servants (mainly, Gazetted government officers), while it would not be needed in case of other public servants.

It is noteworthy that a similar discrimination exists for the requirement of sanction for prosecution under Section 197 of Cr.P.C., since this sanction is also needed mainly in the case of those public servants who are not removable from the office save by or with the sanction of the Central Government on the State Government, i.e., mainly Gazetted government officers.

At this juncture, it may also be pointed out that the recently enacted Lokpal and Lokayuktas Act, 2013, has done away with the requirement of sanction for prosecution under Section 197 of Cr.P.C. as well as under Section 19 of the PC Act, for certain categories of offences which are within the purview of Lokpal. Section 23 of the said Act is reproduced below:

23. Power of Lokpal to grant sanction for initiating prosecution.—(1) Notwithstanding anything contained in Section 197 of the Code of Criminal Procedure, 1973 (2 of 1974) or Section 6-A of the Delhi Special Police Establishment Act, 1946 (25 of 1946) or Section 19 of the Prevention of Corruption Act, 1988 (49 of 1988), the Lokpal shall have the power to grant sanction for prosecution under clause (a) of sub-section (7) of Section 20.

(2) No prosecution under sub-section (1) shall be initiated against any public servant accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, and no court shall take cognizance of such offence except with the previous sanction of the Lokpal.

(3) Nothing contained in sub-sections (1) and (2) shall apply in respect of the persons holding office in pursuance of the provisions of the Constitution and in respect of which a procedure for removal of such person has been specified therein.

(4) The provisions contained in sub-sections (1), (2) and (3) shall be without prejudice to the generality of the provisions contained in Article 311 and sub-clause (c) of clause (3) of Article 320 of the Constitution.”

Subsection (7) of Section 20 of the said Act, as referred to in the above Section, is reproduced below:

“(7) A bench consisting of not less than three Members of the Lokpal shall consider every report received by it under sub-section (6) from any agency (including the Delhi Special Police Establishment) and after obtaining the comments of the competent authority and the public servant may—

(a) grant sanction to its Prosecution Wing or investigating agency to file charge-sheet or direct the closure of report before the Special Court against the public servant;

(b) direct the competent authority to initiate the departmental proceedings or any other appropriate action against the concerned public servant.”

Thus, it may be seen that in cases coming under the purview of Lokpal, sanction to file the chargesheet can be given only by the Lokpal and in such cases no section for prosecution is required under the provisions of Section 197 of the Cr.P.C. or under Section 19 of the PC Act, 1988.

Thus, while for certain corruption cases which come within the purview of Lokpal, no sanction for prosecution would be needed under Section 19 of the PC Act, for other corruption cases that are investigated by other agencies, as per the proposed amendment, sanction for prosecution may in future be required to be obtained not only for the serving public servants but also for retired or former public servants (though, as mentioned above, this amended provision would not be applicable to all categories of public servants).

It can, therefore, be seen that the proposed amendments to Section 19 of the Prevention of Corruption Act, 1988, are likely to create more confusion and also create discrimination between different categories of public servants. Moreover, it is ironical that on the one hand it is claimed that corruption is required to be dealt with in a stringent manner, on the other – amendments are being proposed to put restrictions on prosecution of senior officers by requiring sanction for prosecution of senior government officers even after their retirement.

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