Friday, November 20, 2015

Special Offences - the Corruption Act and Cognizance

A feature common to many special offences created by statutes in India is the requirement to obtain sanction to prosecute the offender before proceeding to trial. Sanction in context of public servants means permission to prosecute them given by their superiors in office. The prosecution presents them a request for sanction outlining the allegations, and the sanctioning authority applies its mind to grant or deny sanction. Conventionally, this is seen as a step to prevent frivolous cases, and allows the executive to remain the best judge of how to handle issues. For if sanction is refused, no trial would follow. The Prevention of Corruption Act, 1988 contains such a requirement in Section 19.

This post considers the following questions: is sanction to prosecute mandatory to proceed against public servants on corruption charges? Is there a need for fresh sanction in case the allegations take a different colour during trial? If the allegations consist of corruption charges as well as other statutory offences which have independent sanction clauses, would multiple sanctions be needed? What is the effect of not obtaining sanction?

Is sanction really mandatory?
If you wish to proceed under the Prevention of Corruption Act, the answer is yes. Section 19 makes it clear that "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" without there being prior sanction. The absolute nature of this requirement was repeatedly criticised because it allowed for further corruption, in that a department could shield one of its own by refusing sanction. To combat this, the provision was amended in 2014 in light of the Lokpal and Lokayuktas Act, 2013. This subsequent statute allows for a prosecution despite absence of sanction, if it is launched by the Lokpal/Lokayukta Office as the case may be.

Fresh Sanction if charges altered?
Some background to criminal procedure would help understand this better. Today, upon completing the investigation the prosecuting agency [CBI in most corruption cases] files what is conventionally called a chargesheet. This proposes that the accused be charged and tried for the specified offences, or that no offences are made out. The judge after hearing arguments on charge decides whether or not the accused should be charged with any offence and may then proceed to trial. The judge may frame charges for offences other than those proposed by the prosecution.

When we have a need for obtaining sanction before a court can take cognizance, this means that the prosecution must obtain that sanction before filing of the Chargesheet. Otherwise the judge would be barred from taking cognizance of the allegations itself. This sanction would naturally be relating to particular allegations made in the Chargesheet - a permission that a prosecution may be allowed against the specified accused for the specified offences. As the judge can differ from this view of the prosecution and frame different charges to those proposed, would that mean the prosecution would first need fresh sanction for the new offences before the actual charge can be framed?

Logically, the answer should be in the affirmative. The sanctioning authority applies its mind to whatever allegations are placed before it by the prosecution. If new allegations are brought forth, it would only be proper for the authority to re-evaluate its stance as well. I say this also because the contrary position could lead to great indiscretion at the hands of miscreant prosecutors. Cases might be brought under the relatively open ended Section 11 [receiving favour generally] or the attempts clause in Section 15, only for the prosecution to later argue its differently and seek the more meaty charges for offences under Sections 7 and 13. As I write, I am currently looking for decisions on this issue, and comments would be welcome.

Dual/Multiple Sanctions?
An example would help here as well. Consider a situation where a private citizen is accused of bribing the public servant. The prosecution decides to charge them together for conspiring to commit offences under the Corruption Act, and independently charge the public servant. Entering into a conspiracy is a separate offence punishable under Section 120-B the IPC, where to prosecute public servants prior sanction is needed under Section 197, Cr.P.C. Would we need sanction under both, if the public servant was to be tried for entering a conspiracy to indulge in his corrupt activities? 

Here's where it gets interesting. Section 197 Cr.P.C. differs remarkably from Section 19 of the Corruption Act. Section 19 applies without discrimination to each case to take cognizance of offences under the Corruption Act. Sanction under Section 197 is only required if the alleged offence was committed "in the discharge or purported discharge of his official duty" [it would take an entire post to discuss the meaning of this phrase]. The scope of Section 197 is wider in one sense though: it applies to retired officers, which Section 19 does not. Given these differences between the two sanction provisions, it seems plausible to argue that they serve different purposes. The Supreme Court has indicated this view has merit [see e.g., Romesh Lal Jain v. Naginder Singh Rana, (2006) 1 SCC 294].

But go back to Section 3 of the Act and you find Special Judges competent to try any offence under the Act as well as any conspiracy/attempt/abetment relating to the offences.  So would we still need separate sanctions in our fact situation, of trying a conspiracy to commit offences? In Romesh Lal Jain the Court wasn't dealing with a charge of conspiracy, so that decision would not apply here. Conspiracy charges were involved in Neera Yadav v. CBI [Allahabad High Court (Full Bench) Decided on 25.01.2006], where this issue was specifically considered. The Full Bench held no separate sanction under the Cr.P.C. would be needed to prosecute the public servant. What is left unclear then, is whether this view holds good only where 120-B is the only IPC offence, or where there is a composite conspiracy to commit other IPC offences along with those under the Corruption Act. The issue hasn't been specifically considered by the Apex Court, mostly because of an increasingly rigid view of the official duty test under Section 197, Cr.P.C.*

What if there is no sanction?
The answer is not a straight one. It depends on many factors: was there no sanction throughout trial, or just a delay in obtaining it? When was the challenge of sanction raised by the accused? It does appear by looking to Section 19(3) of the Act that the Legislature sought to minimise the influence lack of sanction might have on the trial. Very recently, the Supreme Court considered the result of no sanction in Nanjappa v. State of Karnataka [Crl. Appeal No. 1867/2012 decided on 24.07.2015]. The conclusions arrived at by the two judges indicate that the importance of sanction can be seen from a two-tiered perspective. Tier 1 being the trial before the Special Judge, and Tier 2 being the Appellate/Revisional Court hearings. No sanction before cognizance at Tier 1 means the Court is not one of competent jurisdiction and the trial is bad in law. What's more, this argument can be raised at any time during trial, even final arguments. It is good grounds for discharge as well. At Tier 2 though, the importance is markedly reduced, as seen from the restrictions in Section 19(3).**

Sanction is a crucial issue in corruption cases, and this post tried to raise some interesting issues in the field that are currently being considered by courts across the country. Next time, continuing with Section 19, we specifically look at Section 19(3)(c) of the Act.


* Judges have repeatedly observed that it could never be part of an officers duty to commit offences under the IPC therefore sanction under Section 197 Cr.P.C. would not be needed. This, I think, puts the cart before the horse. By assuming that the officer committed the offence while considering the point of sanction the court unconsciously (or very consciously) precludes itself from ever concluding that the act was in the course of duty. The Court also ignores the use of 'purported' in the provision.

** In Nanjappa, the Trial Court acquitted the accused on merits, despite also observing the lack of sanction. The High Court overturned the decision considering the merits, and on sanction observed that the argument ought to have been raised at the outset. The Apex Court reversed the decision purely on the sanction issue in a Criminal Appeal. This is seemingly in clear violation of 19(3)(a): "no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision ...". The decision therefore impliedly suggests that the Supreme Court is not a Court of Appeal for purposes of Section 19. 

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