INDIA Trends and Developments Contributed by: Kamal Shankar, Atul N Menon, Arjun Narang and Shivam Jain, AZB & Partners
aid and advice of the Council of Ministers as obtained under Article 163 of the Constitution of India, but can take independent decisions in exceptional circumstances, as was the case here since the approval was sought to conduct investigation against the Chief Minister. The Court also distinguished the sanction to be tak - en prior to commencement of investigation and the sanction to be taken prior to taking cogni - sance and after the commencement of investi - gation, as provided in Section 218 of the BNSS and Section 19 of the PCA. Need for sanctioning after completion of investigation and before cognisance is taken Section 19 of the PCA requires prior sanc - tion from the relevant government or from the competent authority before prosecuting certain public servants for offences such as bribery or misuse of power. In State of Punjab v Partap Singh Verka, 2024, SCC OnLine SC 1659, the Supreme Court of India upheld the law in that the provisions of Sec - tion 19 of the PCA will have an overriding effect over the general provisions in Sections 190 or 319 CrPC. Section 190 of the CrPC empowers a magistrate to take cognisance of any offence upon receiving a police report, private complaint or information received on the commission of such offence. On the other hand, a sanction as provided under Section 19 is required to be taken by the Special Court before taking cog - nisance; the question of taking cognisance or issuing summons upon merely receiving a com - munication would be insufficient. Section 319 of the CrPC allows the court to sum - mon and try any person who was not initially the accused but against whom evidence emerges during trial for the offence they appear to have committed. While trying an offence under the
PCA, the Special Court cannot summon another person and proceed against them under Section 319 if no sanction is granted by the appropriate authority for prosecution of such person. A court refusing to take cognisance of an offence under Section 19 of the PCA on the grounds that no valid sanction is obtained must still record its findings on the merits of the case. In PI Babu v CBI, Criminal Appeal No 1864/2013, the Supreme Court of India (by way of its order dated 18 January 2024), remanded the matter to the Special Court with a direction to decide the case afresh and to record its findings on each of the issues involved on merits. In this case, the Supreme Court held that, since the Special Court had failed to record any specific findings on merits and acquitted the appellant only on the grounds that the sanction obtained by the prosecution was not valid, the Special Court had committed an error. Introduction of the concept of a “deemed sanction” Similarly, Section 218 of the BNSS provides that “no court shall take cognisance of an offence committed by a public servant in discharge of his official duties and functions, except with the previous sanction of the competent authority”. While the requirement for sanctioning to pros - ecute a public servant under the CrPC existed even before the introduction of the BNSS, the BNSS stipulates that the relevant authority, upon receiving a request for sanction, must decide whether to grant it within a time limit of 120 days. Furthermore, if the competent authority fails to make its decision within the prescribed timeframe, the sanction will be deemed granted, allowing legal proceedings to proceed against the public servant.
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