Section 197 of the Code of Criminal Procedure of 1908 and of 1973 provide that where public servants, in the course of discharge of duties commit offences, it requires the sanction of the Government to prosecute them.
It is a valid provision because public servants in their discharge of duties are likely to commit offences and they shall not be harassed by prosecution without prior permission from the Government.
Section 197 (a) (1) says when any person who is a Judge within the meaning of Section 19 of the Indian Penal Code or when any magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central Government, is accused of any offence while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence.
But, in 1947 a disastrous and anti-national statute was passed, that too, in the wake of independence-what the Central legislature did while enacting the Prevention of Corruption Act, 1947. It was to give sanctity to corruption-related offences, including possession of questionable assets by public servants, by making it a separate class of offence requiring sanction of the Government for their prosecution, as if bribery and corruption are parts of discharging official duties.
The true legislation ought to have been that commission of such offences is a misuse and abuse of public office by the public servant and such offences do not require sanction. However, the 1947 Act was repealed and substituted by the Prevention of Corruption Act of 1988 of which Section 19 provides for Government sanction as a mandatory requirement for prosecution of public servants.
Several cases, already processed and investigated, remain pending due to the Union and State Governments’ unwillingness to process requests for giving CBI a green signal for prosecution, according to sources in the investigation agency. These requests, some of which have been pending for several years, are a prerequisite before the CBI files charge sheet against the Government servants concerned.
In certain cases, being monitored by the Supreme Court, such as the sanction of petrol pumps by Satish Sharma and the shop allotments by Shiela Kaul, requests for Government sanction were pending for about three months. Besides adding to the backing of arrears in the CBI, the sources add that the Government’s recalcitrance to provide the required sanction makes matters all the more difficult for the investigation agency in these cases which are referred to by the highest court of the land.
In several cases, the investigative agency is unable to proceed further in the case until these sanctions are received. Though, a reminder is routinely sent every 15 days to the concerned authorities in the Government, this often has little effect.
Sanction from the Government is a statutory requirement according to Section 19 of the Prevention of Corruption Act and Section 197 of the Criminal Procedure Code (CrPC) which enshrine the rights of the Government servants provided in Articles 311 of the Constitution.
However, the silver lining is the CBI has been pressing for several years for an amendment in these provisions which fix a time frame for such sanctions. What the courts can do is to declare and strike down Section 19 as an illegal and unconstitutional provision.
(Dr Maharana is a senior faculty member, Jeypore law College, Jeypore, Koraput, Mob.:9438170563)