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Prior Sanction to Prosecute Public Servants
Context:
Citing a recent Supreme Court ruling as a precedent for the former Delhi Chief Minister Arvind Kejriwal, Congress MP P. Chidambaram have approached the Delhi High Court to seek a stay on their respective trials.
More on News:
- While Chidambaram’s trial in the Aircel-Maxis case was stayed on November 20, the High Court continues to deliberate on Kejriwal’s plea related to the excise policy scam.
- The Supreme Court decision, delivered on November 6, introduced a requirement for the Enforcement Directorate (ED) to secure prior sanction before prosecuting public servants for money laundering under the Prevention of Money Laundering Act (PMLA).
What is the Prior Sanction Provision?
- Under Section 197 of the Code of Criminal Procedure (CrPC), 1973, courts are barred from taking cognizance of offenses allegedly committed by judges, magistrates, or public servants acting in the discharge of their official duties unless prior approval has been obtained from the government.
- A similar requirement exists under Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
- This provision is designed to shield public servants from frivolous prosecution.
- However, it does not apply to all acts performed by public servants during their tenure. It covers only those acts directly linked to their official duties.
- For instance, in Devinder Singh vs State of Punjab (2016), the Supreme Court observed that this protection ensures honest officials can perform their duties without fear but cannot be used as a shield for committing crimes.
Recent Supreme Court Verdict:
- In its November 6 decision, a Supreme Court Bench comprising Justices A. S. Oka and Augustine George Masih held that the prior sanction requirement under Section 197(1) of the CrPC extends to the PMLA.
- The ruling was made in a case involving IAS officers Bibhu Prasad Acharya and Adityanath Das, who faced money laundering charges linked to a case implicating former Andhra Pradesh Chief Minister Jagan Mohan Reddy.
- The Court upheld a 2019 Telangana High Court order that set aside a trial court’s cognisance of the case due to the absence of prior sanction under Section 197(1).
- The Supreme Court emphasised that the PMLA does not contain any provision inconsistent with the CrPC regarding prior sanction and noted that Section 65 of the PMLA allows for the application of CrPC provisions unless they conflict with the Act.
- The judgment observed that the accused officers were public servants and that their alleged criminal acts were connected to their official duties, fulfilling the conditions for requiring prior sanction.
Prior Sanction in Other Cases:
- Apart from CrPC Section 197(1), the Prevention of Corruption Act (PCA) also requires prior sanction for prosecuting public officials.
- Under Section 19(1), government approval is mandatory before taking cognizance of offenses like bribery or receiving undue advantage.
- Additionally, Section 17A, introduced in 2018, prohibits the investigation of actions taken by public servants in the discharge of official duties without prior approval.
Implications for ED Cases Involving Public Servants:
- While ED investigations under the PMLA may proceed, trial court cognizance of chargesheets against public servants alleging offenses committed in the course of official duties could be invalidated without prior sanction.
- Convictions in such cases could also be challenged on appeal if the accused successfully argues that the trial lacked the requisite sanction.
- In PK Pradhan vs State of Sikkim (2001), the Supreme Court held that the absence of prior sanction can be raised at any stage of a trial, including after conviction. However, the accused must establish that the alleged act was part of their official duties.
As reiterated in the Bibhu Prasad Acharya judgment, the absence of sanction can be raised even after a special court has taken cognizance of offenses under Section 4 of the PMLA. This ruling underscores the importance of prior sanction in safeguarding the rights of public servants while ensuring accountability.
