Legal Advice

Prosecution sanction is not necessary for the retired public servant

Question: 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?

Advise

Section 19 of the Prevention of Corruption Act provides protection to public servants against frivolous and malicious prosecution when they act in the discharge of their public duty. For this reason, Section 19 requires a sanction from the competent authority for the prosecution of a public servant, and the court cannot take cognizance without a valid sanction.

However, the protection of Section 19 is not available to retired public servants, and the court can take cognizance of offenses in their absence. If a retired public servant is facing prosecution, they cannot claim the protection of Section 19, but they can still seek sanction under Section 197 of the Code of Criminal Procedure.

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. 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.”

Section 197 also requires a prosecution sanction for retired public servants, and if the prosecution relates to an act done in the discharge of official duty, the sanction is mandatory. The accused can challenge the proceeding on the grounds that it violates Section 197, has no proper sanction from the competent authority, and that the court cannot take cognizance without proper sanction.

However, the protection of Section 197 is not absolute, and the alleged act must be integrally connected with the public duty of the accused [Shambhoo Nath Misra v. State of U.P., (1997) 5 SCC 326]. If the act was done for personal pleasure or benefit, it will not be protected under Section 197.

If the accused committed the alleged act in the discharge of their official duty, they can file a discharge application under Section 227 of the Code of Criminal Procedure and claim the protection of Section 197. The court cannot proceed without proper sanction, and if the prosecution fails to produce it, the court will drop the proceedings.


Question: Whether sanction is necessary for the prosecution of employee charged with allegations of disproportionate assets while he was in employment. Concerned authority could not passed any order to sanction prosecution as prosecuting agency has not provided records and material collected during investigation. Chargesheet have been filed after retirement without sanction. Therefore in above circumstances should I challenge the chargesheet and trial.

Asked from: Madhya Pradesh

Sanction for prosecution is not necessary in your case. According to the Prevention of Corruption Act, when a charge sheet is filed after the retirement of a public servant for an offence committed under the act, there is no need for sanction to take cognisance.

However, during the public servant’s service period, the court cannot take cognisance of the offence without proper sanction from the appropriate authority for prosecution. This condition is lifted when the public servant retires and the court takes cognisance of the offence after retirement. Thus, the court can proceed without the need for sanction for prosecution in your case.

Shivendra Pratap Singh

Advocate

High Court Lucknow