Sanction for Prosecution: Section 19

Section 19 bars a court from taking cognizance of the principal offences under the Act against a public servant except with the previous sanction of the authority competent to remove him from office. The purpose is to protect a public servant from vexatious prosecution by interposing an authority that can assess whether the material justifies a trial. Two propositions have to be held together, and they pull in different directions: a valid sanction is a condition precedent to cognizance, and yet Section 19(3) forbids an appellate court from reversing a conviction for an error in sanction unless a failure of justice is shown.

1. When Sanction Is Required

1. The offences. Sanction is required for cognizance of offences punishable under Sections 7, 11, 13 and 15, alleged to have been committed by a public servant.
2. The person. A public servant within Section 2(c). A private person charged as a giver, an abettor or a conspirator cannot claim the protection.
3. The authority. In the case of a person employed in connection with the affairs of the Union, the Central Government; of a State, the State Government; and in any other case, the authority competent to remove him from his office.
4. Former public servants. Since 2018 the requirement extends to a person who has ceased to hold the office he held when the offence was committed, the sanction being given by the authority which would have been competent to remove him from that office.
5. A private complaint. A court is not to take cognizance on a complaint by a person other than a police officer or an authority, unless that person has obtained the previous permission the section requires, and the request for sanction is dealt with on the same footing.

The requirement does not apply at the stage of investigation. The screen before investigation is Section 17A, and the two must not be confused; nor does a sanction under Section 19 dispense with approval under Section 17A where the latter applies.

2. Who Is Competent

• The test is the power of removal, not the power of appointment or of supervision. The authority must be the one competent to remove the public servant from the office he held when the offence was committed.
• Central and State employees. The Government concerned, acting through the department administering the service, and in practice on a note placed before the competent authority with the material.
• Employees of corporations, companies and aided bodies. The authority competent to remove under the rules or articles governing the body, which is why the constitution of the employer must be examined in such cases.
• Members of the legislature. There is no authority competent to remove a member, and P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626 held that the requirement cannot operate in such a case, indicating that the prosecuting agency should approach the Chairman of the Council of States or the Speaker of the House of the People as the case may be.
• A doubt as to the authority. Where there is doubt about which authority is competent, the section provides that the sanction shall be given by the authority which would have been competent to remove the public servant at the time of the alleged offence, and a sanction given by the wrong authority is not a sanction at all.

3. Application of Mind

A sanction is not a formality. The authority must consider the material collected during the investigation, apply its mind to it, and reach its own satisfaction that a case is made out. The settled requirements are that the material must be placed before the authority, that the order should show, either on its face or from the record, that it was considered, and that the sanction relate to the offences alleged and to the facts investigated.

• A mechanical sanction is invalid. An order that reproduces the request without any indication that the material was examined, or that is signed by an officer to whom the material was never shown, does not satisfy the section.
• Reasons need not be recorded in the order if the record shows that the material was placed and considered, but an order containing reasons is far easier to sustain.
• Consultation is permissible. The authority may seek the advice of the Central Vigilance Commission or of law officers, and doing so does not amount to an abdication of its own satisfaction.
• The authority may refuse. A refusal is open to challenge in the writ jurisdiction on the ordinary grounds, and the guidelines laid down in Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 require a decision within three months, extendable by one month where legal consultation is required, a timeline now written into the section.

4. Defective and Absent Sanction

5. Raising the Objection

1. At the earliest stage. Section 19(4) requires the court to have regard to the fact that the objection could and should have been raised at an earlier stage, so an objection kept back until appeal carries less weight.
2. Before the trial court, ordinarily at the stage of charge, where the validity of the sanction can be examined on the record placed before the sanctioning authority.
3. On the material before the authority. The question is whether that authority had the material and applied its mind; evidence may be led on the point, and the officer who processed the sanction is commonly examined.
4. Failure of justice is the touchstone at the appellate stage, and it requires the accused to show prejudice in fact and not merely a defect in form.

6. Section 19 Compared

Where a public servant is charged both with offences under this Act and with offences under the general penal law committed in the discharge of duty, both sanctions may be required, and the absence of one does not answer for the other.

7. Related Topics and Provisions