No sanction required where the misconduct is in some different capacity than the one which is held at the time of taking cognizance

Supreme Court: Considering the rulings in the judgments of this Court in Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 and Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517, the Court held that an order directing further investigation under Section 156(3) of the Cr.P.C. cannot be passed in relation to public servant in the absence of valid sanction.

In the aforementioned judgments, it was held that Sub-section (3) of Section 19 of Prevention of Corruption Act, 1947 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction, however, does not mean that the requirement to obtain sanction is not a mandatory requirement.

Another question that came before the bench of Dr. A.K. Sikri and N.V. Ramana, JJ for examining was whether a public servant who is not on the same post and is transferred, whether by way of promotion or otherwise to another post, loses the protection under Section 19(1) of the P.C. Act, though he continues to be a public servant, albeit on a different post? Answering the question in affirmative, the Court held that where the public servant had abused the office which he held in the check period but had ceased to hold “that office” or was holding a different office, then a sanction would not be necessary. Where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction. [L. Narayana Swamy v. State of Karnataka, 2016 SCC OnLine SC 908,  decided on 06.09.2016]

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    In the absence of a saving clause in the amended PCAct, the definition of ‘public servant’ in the amended section 19(1) of the PC Act, 2018 clearly indicates ‘a different intention of the legislature’ excluding the applicability of section 6 of the General Clauses Act,1897 as far as the sanction for prosecution is concerned. Accordingly, I am of the view that sanction for prosecution is mandatory for the courts to take cognizance of the offences against the public servants irrespective of whether they are retired or not, in the same post or not, promoted or not and transferred or not in respect of all the cases including those in respect of which FIRs were filed and investigation completed even before the amendment for which chargesheets are to be filed after the amendments came into effect. When the legislative intent is manifest in the amended provision itself in plain words defining the term ‘public servant’ , I dont feel that there is any scope for the courts to indulge in hair-splitting interpretation of section 19 as found in Narayanasamy case.

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