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Sec.19 of P.C. Act – Constitutional validity challanged – to avoid delay in sanctioning permission for prosecution against Politicians, M.L.As, M.Ps. and Govt. Officials – Apex court held that it is not possible to hold that the requirement of sanction is 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 and made some guide lines to the parliament (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.”.= WRIT PETITION (C) NO. 305 OF 2007 = Manzoor Ali Khan … Petitioner (s) Versus Union of India & Ors. … Respondent (s) = 2014 – Aug.Part- http://judis.nic.in/supremecourt/filename=41810

Sec.19 of P.C. Act – Constitutional validity challanged – to avoid delay in sanctioning permission for prosecution against Politicians, M.L.As, M.Ps. and Govt. Officials – Apex court held that  it  is  not  possible  to  hold  that  the  requirement  of sanction  is  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 and made some guide lines to the parliament 

(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.”.=

public interest litigation,  seeks  direction

to declare Section 19 of the Prevention of Corruption Act, 1988  (“PC  Act”)

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.=

the petitioner  is  a

practising advocate in the State of Jammu & Kashmir.   In  the  said  State,

several Government officials have been charged for  corruption  but  in  the

absence of requisite sanction, they could not be prosecuted.   Referring  to

several instances including those noticed by this Court in  various  orders,

it is submitted that the provision for sanction  as  a  condition  precedent

for prosecution is being used by the  Government  of  India  and  the  State

Governments to protect dishonest  and  corrupt  politicians  and  Government

officials.  The discretion to grant sanction has been misused.=

Therefore, in every case where an application is made to an  appropriate

authority for grant of prosecution in connection with an offence  under  the

PC Act it is the bounden duty of such authority to apply its  mind  urgently

to the situation and decide  the  issue  without  being  influenced  by  any

extraneous consideration. In doing so, the authority must make  a  conscious

effort to ensure the Rule of Law  and  cause  of  justice  is  advanced.  In

considering  the  question  of  granting  or  refusing  such  sanction,  the

authority is answerable to law and law alone. Therefore, the requirement  to

take the decision with a reasonable dispatch is of the  essence  in  such  a

situation. Delay in granting sanction proposal thwarts a very  valid  social

purpose, namely, the purpose of a  speedy  trial  with  the  requirement  to

bring the culprit to  book.  Therefore,  in  this  case  the  right  of  the

sanctioning  authority,  while  either  sanctioning  or  refusing  to  grant

sanction, is coupled with a duty.=

“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,—

(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.

(2) Where for any reason whatsoever any  doubt  arises  as  to  whether  the

previous sanction as required under sub-section (1) should be given  by  the

Central Government or the State Government  or  any  other  authority,  such

sanction shall be given by that Government or  authority  which  would  have

been competent to remove the public servant from  his  office  at  the  time

when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code  of  Criminal  Procedure,

1973 (2 of 1974),—

(a) no finding, sentence or  order  passed  by  a  special  Judge  shall  be

reversed or altered by a court in appeal, confirmation or  revision  on  the

ground of the absence of, or any error, omission  or  irregularity  in,  the

sanction required under sub-section (1),  unless  in  the  opinion  of  that

court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of  any

error, omission or irregularity in the sanction granted  by  the  authority,

unless it is  satisfied  that  such  error,  omission  or  irregularity  has

resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any  other  ground

and no court shall exercise the  powers  of  revision  in  relation  to  any

interlocutory  order  passed  in  any  inquiry,  trial,  appeal   or   other

proceedings.

(4) In determining under sub-section (3) whether  the  absence  of,  or  any

error,  omission  or  irregularity  in,  such  sanction  has  occasioned  or

resulted in a failure of justice the court shall have  regard  to  the  fact

whether the objection could and should  have  been  raised  at  any  earlier

stage in the proceedings. Explanation.—For the purposes of this section,—

(a) error includes competency of the authority to grant sanction;

(b) a  sanction  required  for  prosecution  includes   reference   to   any

requirement that the prosecution shall be at the  instance  of  a  specified

authority or with the sanction of a specified person or any  requirement  of

a similar nature.”=

Conclusion

76. The sanctioning authority must bear in mind that what  is  at  stake  is

the public confidence in the  maintenance  of  the  Rule  of  Law  which  is

fundamental in  the  administration  of  justice.

Delay  in  granting  such

sanction has spoilt many valid  prosecutions  and  is  adversely  viewed  in

public mind that in the  name  of  considering  a  prayer  for  sanction,  a

protection is given to a corrupt public official  as  a  quid  pro  quo  for

services rendered by the public official in  the  past  or  may  be  in  the

future and the sanctioning authority and the corrupt officials were  or  are

partners in the same misdeeds. 

I may hasten to add that this may not be  the

factual position in this (sic case) but the general demoralising  effect  of

such a popular perception is profound and pernicious.

77.  By  causing  delay  in  considering  the  request  for  sanction,   the

sanctioning authority stultifies judicial scrutiny and determination of  the

allegations  against  corrupt  official  and  thus  the  legitimacy  of  the

judicial institutions is  eroded.

It,  thus,  deprives  a  citizen  of  his

legitimate and fundamental right to get justice by setting the criminal  law

in motion and thereby frustrates his right to access judicial  remedy  which

is a constitutionally protected right.

In this connection,  if  we  look  at

Section 19 of the PC Act, we find that no time-limit is  mentioned  therein.

This has virtually armed the  sanctioning  authority  with  unbridled  power

which  has  often  resulted  in  protecting  the  guilty  and   perpetuating

criminality and injustice in society.

79. Article 14 must be construed as  a  guarantee  against  uncanalised  and

arbitrary power. Therefore,  the  absence  of  any  time-limit  in  granting

sanction in Section 19  of  the  PC  Act  is  not  in  consonance  with  the

requirement of the  due  process  of  law  which  has  been  read  into  our

Constitution by the Constitution Bench decision  of  this  Court  in  Maneka

Gandhi v. Union of India (1978) 1 SCC 248.

80. I  may  not  be  understood  to  have  expressed  any  doubt  about  the

constitutional validity of Section 19 of the PC Act, but in my judgment  the

power under Section 19 of the PC Act must be  reasonably  exercised.  In  my

judgment  Parliament   and   the   appropriate   authority   must   consider

restructuring Section 19 of the PC Act in  such  a  manner  as  to  make  it

consonant with reason, justice and fair play.

81. 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.

12.   Thus while it  is  not  possible  to  hold  that  the  requirement  of

sanction  is  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.

13.   In view of the law laid down by this Court, no further directions  are

necessary.

14.         The       writ       petition       is       disposed        of.

2014 – Aug.Part- http://judis.nic.in/supremecourt/filename=41810

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