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Prosecution sanction is not necessary for the retired public servant

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Criminal Law

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I am a retired public servant. A departmental inquiry was initiated against me when I was in active service. That inquiry was pending and in the meantime, I was retired and facing criminal trial without prosecution sanction. After two years of my retirement, a criminal proceeding has been initiated on the finding of said departmental inquiry. The proceeding is going on without getting sanction under section 19 prevention of corruption act and section 197 crpc. Could I challenge the proceeding in the court?

Question from: Tamil Nadu

Section 19 of the Prevention of Corruption Act protects the public servant against frivolous and malicious prosecution. When the public servant acts in the discharge of his public duty then such protection is necessary. Therefore Section 19 PC Act directs to take a sanction from the competent authority for the prosecution of a public servant. The court cannot take cognisance in devoid of a valid sanction.

Sanction under Prevention of Corruption Act

The protection of section 19 is not available to the retired public servant. Hence, the court can take cognisance of the offence in the absence of a sanction for the prosecution. In State of Punjab v. Labh Singh, (2014) 16 SCC 807; the Supreme Court held that

“The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court.”

The trial court took the cognisance after your retirement. Therefore, you are not entitled to claim the protection of section 19. The sanction for prosecution is mandatory for the serving public servant. Furthermore, the sanction must be valid otherwise it will vitiate the trial. If the sanction is not proper the court will stay the trial and seek afresh sanction from the prosecution. 

You are not a serving officer thus you cannot seek sanction under section 19 of PC Act. In S.A. Venkataraman v. State, 1958 Cri LJ 254 the Supreme Court laid down that the protection under the provisions concerned would not be available to a public servant after he had demitted his office or retired from service.

Take recourse of Section 197 CrPC

However, you cannot claim protection given under section 19 of PC Act but you can still seek sanction under section 197 crpc. Section 197 of the code of criminal procedure provides just like section 19 PC Act. Section 197 crpc requires prosecution sanction for retired public servants. It says that the court shall take cognisance of the offence on the proper sanction of the competent government. The sanction is mandatory for the prosecution of the retired public servants. 

If the prosecution is relating to the act of a public servant done in discharge of his official duty then the sanction is mandatory under section 197 crpc [Inspector of Police v. Battenapatla Venkata Ratnam, (2015) 13 SCC 87].

In Shambhoo Nath Misra v. State of U.P., (1997) 5 SCC 326 the Supreme Court opined that the accused is entitled to getting sanction if the alleged act is integrally connected or inseparably interlinked with the discharge of his official duty. Therefore, you can invoke section 197 crpc. You can challenge the proceeding on these grounds:

  • It is violating section 197 crpc.
  • The prosecution has no proper sanction from the competent authority.
  • The court cannot take cognisance in the absence of proper sanction for prosecution.
  • Accused was a public servant when the alleged acts were done. 
  • The accused had done the alleged act in the discharge of his official duty. 

Acts not done in discharge of official duties

Protection of section 197 crpc is not absolute. It has some restrictions. The alleged act must be integrally connected with the public duty of the accused. If the accused had done the alleged act for his pleasure or benefit then such acts shall not be protected under section 197 crpc. In Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1; the Supreme Court has held that 

The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant’s pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.

in Rajib Ranjan vs. R. Vijaykumar, (2015) 1 SCC 513 the Supreme Court has defined the ambit of section 197 crpc as:

‘18. … even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted.’ ”

File discharge application

You may file a discharge application under section 227 of the crpc. If you have committed the alleged act in the discharge of your official duty then you can claim the protection of section 197 crpc. Then the court cannot proceed further unless the prosecution presents a proper sanction. If the prosecution fails to produce proper sanction then the court will drop the proceeding. 

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

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