Under Criminal Procedure Code, 1973, the public servants, including Judges and Magistrates are protected against frivolous or vexatious prosecutions and the courts are barred from taking cognizance of any offence against them without the previous sanction of the Government. This enables the authorities to scrutinse the allegations made against a public servant before any Court taking cognizance of the same. Absence of such sanction by the concerned authority will render the trail without jurisdiction and a nullity[1]. Such protection is also available to the public servants who retired from service, who were, at the time of commission of the alleged offence, employed. It is also pertinent to mention that such order of sanction must be preceded by application of mind on the part of the appropriate sanctioning authority and the same can be challenged on the ground of non-application of mind before a competent court of law[2]. However, no time limit is fixed under the Code regarding the time limit for disposing of such application for sanction. But, in Vineet Narain v. Union of India[3], the Supreme Court fixed a time limit of 3 months for disposing of an application for sanction and an additional time of 1 month can be allowed in cases where consultation is required with the Attorney General or any other law officer in AG’s office[4].
In case where a private complaint is filed under Section 156 (3) of the Criminal Procedure code, the Supreme Court held that, once there was no previous sanction, the magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) of CrPC[5]. But in a subsequent case[6], the Hon’ble Supreme Court referred the matter to a larger bench to decide whether prior sanction for prosecution qua allegation of corruption in respect of public servants is required before setting in motion even the investigative process under Section 156(3) of the Code of Criminal Procedure, 1973 and the same is pending consideration before the Hon’ble Supreme Court.
To avoid such procedural lacunas, the Bharatiya Nagarik Surakshak Sanhita provided for a deeming provision that if a decision is not taken by the Government within 120 days from the date of receipt of request of sanction, it shall be deemed that such sanction have been accorded by such Government[7]. However, the steps to follow after such sanction is something novel in the criminal justice system.
Section 223 of BNSS provides that a Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have committed in course of the discharge of his official functions or duties unless a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged and b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received. In case where a private complaint is instituted under Section 210 of BNSS against a public servant, the judicial magistrate shall only take cognizance only a) after receiving a report containing facts and circumstances of the incident from the superior officer and b) after consideration of the assertions made by the public servants as to the situation that led to the incident so alleged. However, the question of whether a sanction is required to proceed with before taking cognizance of an offence by the public servant in case of a private complaint is also unanswered in BNSS.
Furthermore, the object underlying the provisions of Sections 175 (4) and Section 223 (2) to provide an opportunity to the public servant to make assertions as to the situation and a report from his superior officer is also perplexed. The consequence of this procedure would also lead to a mini-trial before a trial for the following reasons.
- Providing an opportunity to the public servant to make assertions as to the situation by the magistrate is devoid of any purpose as he would put-forth his defences even before any trial is begun.
- Seeking a report from the superior officer is again unwarranted as the same is considered before granting sanction by the concerned authority.
One can understand if such steps are provided to the public servant before the sanctioning authority as the same would enable the sanctioning authority to make a reasoned order which would prevent frivolous cases being filed against the public servant. However, as these steps are provided before a Magistrate, this would only lead to a mini-trial before the actual trial has begun. Nonetheless, the provisions are yet to be tested before the judiciary.
[1] RR Chari v. State of UP 1963 (1) SCR 121.
[2] Mohd. Iqbal Ahmed v. State of Andhra Pradesh – AIR 1979 SC 677
[3] (1998) 1 SCC 226
[4] Subramanian Swamy v. Manmohan Singh (2012) 3 SCC 64
[5] Anil Kumar v. M.K.Aiyappa (2013) 10 SCC 705
[6] Manju Surana v. Sunil Arora – Criminal Appeal No. 457 of 2018
[7] Proviso to Section 218 (1) of BNSS
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