Sanction under the Prevention of Corruption Act and under the Criminal Procedure Statute

Two sanction provisions may apply to a prosecution against a public servant, and they are commonly confused. Section 19 of this Act protects him against cognizance of the offences under the Act. Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced Section 197 of the Code of Criminal Procedure, 1973, protects him against cognizance of offences under the general law alleged to have been committed while acting or purporting to act in the discharge of official duty. The tests are different, and the second does not apply to corruption offences at all.

1. The Comparison

Basis	Section 19 of this Act	Section 218 of the Sanhita
Offences covered	The principal offences under this Act	Any offence under the general law, alleged to have been committed by the public servant while acting or purporting to act in the discharge of official duty
Test of applicability	The status of the accused as a public servant, and the offence charged	A reasonable connection between the act complained of and the discharge of official duty
Who is protected	Public servants within the wide definition in Section 2(c)	Judges, magistrates and public servants not removable from office save by or with the sanction of the Government
Sanctioning authority	The authority competent to remove the public servant from office	The Central or the State Government, as the case may be
Former public servants	Covered since 2018, in respect of acts done while in office	Covered, the protection attaching to the act rather than to continuance in office
Timeline	Three months, extendable by one month	The Sanhita introduced a fixed period, on the expiry of which sanction is deemed to have been granted, which the Code did not provide
Effect of absence	Cognizance is barred; an invalid sanction leaves the court without jurisdiction	Cognizance is barred in respect of the offences to which it applies

2. Why the General Provision Does Not Protect a Bribe Taker

The protection under the general provision attaches only where the act complained of has a reasonable connection with the discharge of official duty, so that the public servant can reasonably claim that what he did was done in the course of performing his duty. Accepting a bribe can never satisfy that test. It is not part of any official duty, it is not something a public servant can claim to have done in performing his functions, and no reasonable connection exists between the demand of money for himself and the discharge of the office.

⚠ The proposition to remember

The general provision is not attracted to offences under this Act, because the acceptance of illegal gratification is not an act done in the discharge of official duty. Sanction for such offences is required under Section 19 and under it alone. Where the same facts also disclose offences under the general law which were committed in the discharge of duty, such as falsifying a record while performing the function of maintaining it, sanction under the general provision may be required for those offences in addition. The two are cumulative and not alternative, and the absence of one does not answer for the other.

3. The Reasonable Connection Test

The question is not whether the act was lawful. An unlawful act may still be one done in purported discharge of duty, which is the whole point of the protection.
The test is whether the act and the duty are so interrelated that the public servant can reasonably claim that he did it in the course of performing his duty.
It is applied to the act complained of, not to the office generally. A police officer using excessive force while making an arrest may be within it; the same officer assaulting a person in a private quarrel is not.
It may be decided at any stage, including after evidence, because the facts establishing the connection may emerge only at trial.

4. Practical Consequences

Identify every offence charged and ask which sanction each requires. A charge sheet alleging offences under this Act together with criminal breach of trust and forgery may need both sanctions, and the objection is taken offence by offence.
A defect in one does not vitiate the whole. Where the sanction under one provision is invalid, the prosecution for the offences it covered fails; the remaining offences, if properly sanctioned or requiring no sanction, continue.
Private persons are unaffected. Neither provision protects a bribe giver, an abettor or a conspirator who is not a public servant.
Section 17A is different again, operating before the investigation rather than before cognizance, and covering only conduct relatable to an official recommendation or decision.

5. Related Topics and Provisions

Topic or provision	Connection
Sanction for Prosecution: Section 19	The provision in full, and invalid sanction
Section 17A: Prior Approval	The screen before investigation
Procedure: Section 22 and the BNSS	The general procedural statute and the transition
Sections 17A and 19, Prevention of Corruption Act, 1988	The provisions discussed
Section 218, Bharatiya Nagarik Suraksha Sanhita, 2023	The general protection, formerly Section 197 of the Code