~ By KV Kailash Ramanathan & Vasishta Ganapathi K
Introduction
Incurring the ire of stakeholders prejudiced by their actions is an inexorable professional hazard in the life of public servants. Whether these acts are rectitudinous or condemnable, someone is aggrieved in the oft zero-sum game of governance. Mercy, while being a quality worthy of Shakespearian glorification, is sparingly shown to public servants, both honest and corrupt. It is to defend public servants from frivolous charges that stringent requirements for sanctions exist under the Prevention of Corruption Act (‘PCA’) and the Criminal Procedure Code (“CrPC”) before they can be prosecuted.
A recent judgment of the Supreme Court in A Sreenivasa Reddy v. Rakesh Sharma and Anr raised an intriguing question. It contemplated a possibility where the sanction is denied under the PCA on the grounds that a prosecution would be frivolous or vexatious. It questioned the effect such a denial would have on the trial of a person for IPC offences alleged on the basis of the same set of facts. The Court pondered whether a finding of frivolousness or vexatiousness to deny prosecution under PCA would axiomatically render prosecution for IPC offences also frivolous or vexatious.
In this piece, the authors take the position that denial of sanction under PCA on the aforementioned grounds will also colour the proposition of prosecuting a public servant for IPC offences. The piece aims to buttress such a position and contend that only such interpretation would aid in attaining the legislative object behind Section 19.
SCOPE AND APPLICABILITY OF SANCTIONS
Before we proceed to the crux of our analysis, it is germane to discuss the sanctioning requirement under the two legislations and their scope of operation. Section 19 of the Prevention of Corruption Act mandates a sanction by the appropriate authority for prosecution under various offences set out in the legislation. Section 197 of the CrPC imposes a similar requirement to prosecute public servants for offences set out in the Indian Penal Code (‘IPC’). The latter is only applicable if the alleged acts have a nexus with their official duties, while the former has no such requirement. When a public servant is prosecuted under the PCA, the charges framed often involve additional charges for IPC offences. Sanction under Section 19 of the PCA is required for offences set out in Sections 7, 11, 13 and 15. As held in R.R Chari v. State of UP, any order or direction by a court for conducting investigation or issuing warrant, does not amount to taking cognizance. Hence, starting an investigation in pursuance of an FIR is not barred, as the requirement of a sanction under Section 19 and Section 197 is only for the court to take cognizance for the purpose of trial.
Factual Inextricability of Offences
In contemplation of a prosecution under the PCA, IPC offences are alleged based on the very same set of facts. The IPC offences are often committed only in furtherance and facilitation of corruption, which is the primary wrong. IPC offences are secondary offences in such a context. Criminal conspiracy, fraud, forgery, etc., even if standalone offences are only modalities to attaining an undue advantage precluded under PCA. A conspiracy or fraud is committed only to carry out corruption, and denial of sanction means the latter itself is not disclosed upon an examination as per S.19. If the proposition to prosecute for the primary offences under the PCA is found to be prima facie frivolous or vexatious, a prosecution for IPC offences in pursuit of corruption cannot stand on an independent, sound footing. The finding of frivolousness or vexatiousness will also colour it, provided the allegations arise from the same set of acts or omissions by the public servant in question. When the factual matrix is so inextricably linked, separating the two classes of offences arising from the same set of acts and deeming one class frivolous while another adequate is an absurd averment.
Secondly, a sanction under the CrPC is a pre-requisite only if an alleged offence contains a nexus with the accused’s duty. When consideration is made for an offence falling within the realm of duty, PCA offences are inherent and bound to arise, as corruption is a malady predicated on the public servant leveraging his office and its concomitant functions to obtain an illegitimate gain. Therefore, at the core of deciding a question of sanction under S.197 lies a perusal of acts performed in the course of discharging public duty, the mainstay of which would already have been considered by the authority in an application for sanction under Section 19. If an IPC offence unconnected to any offence under the PCA arises, it would fail to satisfy the nexus test that binds it to public duty thereby dispensing with the very necessity for sanction under Section 197.
The Jammu and Kashmir High Court’s ruling in Sanjay Kumar Srivastava v. CBI supports the above view. The Court observed that once sanction has been declined by the authority under PCA on the basis of a report of the Central Vigilance Commission (CVC), it is not open to the investigating agency to file a challan on the same set of facts against the accused public servant by dropping the offences under the provisions of Prevention of Corruption Act and confining the challan only to the offences under other penal provisions. It was further noted that
“It has to be borne in mind that the opinion rendered by the Commission, in this case, is relating to the same set of facts as has been made the basis for launching prosecution against the petitioners for the offences under RPC, which are interlinked to the allegations so far as the same relate to the offences under the J&K PC Act.“
It is also apposite to clarify here that the vice versa of the aforementioned contention does not follow. If a sanction under Section 197 of the CrPC is denied for frivolousness, it does not render prosecution under the PCA also frivolous. PCA offences can exist independently of any IPC offence and arise from acts performed in the discharge of public duty performed for obtaining an undue advantage or illegal gratification. If connected to public duty performed for obtaining illegal gratification, IPC offences essentially have a penumbral character in this context even if given a separate existence statutorily.
Integrated Scheme of the Code
The CrPC and PCA, in their combat of the peril of corruption do not operate in separate spheres divorced from each other. The SC in Vijay Rajmohan v. State held that all the five legislations, namely PCA, CrPC, CVC Act (Central Vigilance Commission Act), Delhi Special Police Establishment Act (DSPE Act), and Lokpal Act, form one unified, harmonious code. Their operation in independent spheres can cause conflicts between them and subvert the lofty object of eradicating corruption. Therefore, a determination by the sanctioning authority under the PCA will have to hold value in considering the prospect of sanction under S.197. A positive decline on the grounds that render the very foundation of prosecution for particular acts shaky and undesirable cannot be overruled by a technicality citing a separation of the sanctioning requirements. The legislative intent was to create a unified, harmonious code, not silos of legislative instruments.
S.197 exists independently for two essential purposes. Firstly, to ensure that in cases of prosecution for corruption, no IPC offences are unnecessarily added to the charge sheet to harass the public servant. Secondly, for IPC offences committed in the course of public duty, which involve no undue advantage, no such parallel consideration of material is present, and S.197 alone is the sanctioning pre-requisite.
Standard of Examination to Grant Sanction
The grant of sanction by an appropriate authority is an administrative function, with a scope of review attached to it. The judiciary, therefore, corroborates the validity of a sanction by relying on the application of mind by the sanctioning authority during examination. As held in the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat, the validity of a sanction is dependent upon the material placed before the sanctioning authority and the fact that the sanctioning authority has considered all the relevant facts, material, and evidence. This makes grant of sanction a serious exercise of power by a competent authority. The authority has to be apprised of all the relevant materials and based on these materials decide if there’s a revelation of the alleged offences. The order must reflect decision making on relevant materials and if not, be capable of proof before a court. Hence, an order of sanction must have an ex-facie disclosure that the authority has considered all the material placed before it. This will also ensure non-arbitrariness in the assessment and meet the rigors of administrative function. This requirement has been constant since the inception of anti-corruption laws mandating sanction by the authority, as evident in the case of Jaswant Singh v. The State of Punjab. Therefore, the presence of application of mind confers a degree of legitimacy to the process on the strength of which the same findings may apply to IPC offences alleged from the same facts.
Purposive Construction
The very object behind mandating sanction under PCA is to shield public servants from vengeful reprisals through the initiation of frivolous or vexatious prosecution for corruption. This protection is a sine qua non for them to discharge their duties. In Manzoor Ali Khan v. Union of India, it was held that the object of such a requirement is to balance two competing interests: Firstly, to ensure that public servants are not harassed and obstructed in the performance of their duties and secondly, to ensure that the power held by a public servant is not used to stifle investigations into an allegation of crime. By not extending the same refusal of sanction to IPC offences, a Damocles sword with deleterious consequences continues to hang over their heads even after denial of sanction under PCA. The investigating agencies can simply drop the charges under PCA and proceed under IPC on the same set of facts. They may well circumvent even the requirement for sanction under CrPC by self-contradictorily contending that the acts are not in the course of official duties. Even if the Court rejects such a contention on facts, it would still allow unnecessary harassment. The object of the provision would consequently be defeated. It is settled beyond demur that a provision must be interpreted in a manner that furthers its object.
Conclusion
A decline of sanction under the PCA for frivolousness or vexatiousness should have a colourable impact on prosecution under the IPC. This is in light of the facts as well as the legal code forming an inextricable whole based on which the two class of offences cannot be separated without absurdity. Allowing prosecution under IPC offences after sanction under PCA is outright found to be frivolous would give investigative agencies a route to harass public servants by bringing vexatious prosecutions against them. Such a scenario would defeat the very object of mandating sanction as a pre requisite under the PCA. Therefore, the court must interpret a refusal of sanction under PCA for the aforesaid grounds to also discharge an accused from prosecution under connected/facilitative IPC offences arising out of the same factual matrix.
KV Kailash Ramanathan is a final year BALLB (Hons) student at the National University of Advanced Legal Studies (NUALS), Kochi and Vasishta Ganapathi K is a 2nd year BALLB (Hons) student at the National University of Advanced Legal Studies (NUALS), Kochi.