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Allahabad HC: No Sanction Needed to Prosecute a Retired Public Servant
Justice Dinesh Kumar Singh held on Monday that a sanction which is prescribed under Prevention of Corruption Act, 1988 needed for prosecution of a public servant is not needed for a retired public servant.
The present case wherein the petitioner, one Shyam Bihari Tiwari, a retired principal of a government school claimed that he was under the ambit of public servant and thereby mandating a need for sanction prior to prosecuting him. The court refused to recognize this stating, “As per the provisions of Section 19 for taking cognizance of an offence under the Prevention of Corruption Act it is necessary for the public servant to remain in service and in the present matter on the date of taking cognizance the revisionist was not in service as he had retired, hence there was no need to seek prosecution sanction for the revisionist under Section 19 of the Prevention of Corruption Act.”
Since the petitioner was also charge-sheeted under provisions of the Indian Penal Code, it was vehemently argued that a sanction would also be necessary under Section 197 of Code of Criminal Procedure.
The court relied on the Apex Court’s decision in Amrik Singh v. State of Pepsu, AIR 1955 SC 309 wherein it was held that,
“…it is not every offence committed by a public servant that requires sanction for prosecution under Section 197 of the Cr.P.C.; nor even every act done by him while he is actually engaged in the performance of his official duties; but if act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary.”
The petitioner herein was accused of falsifying documents in order to open a spurious school and for misappropriation of funds which were meant to be allocated for scholarship purposes to deserving students. The petitioner also allegedly colluded with a banker and other people to embezzle Rs. 3,48,000/-.
The petitioner was charged accordingly with Sections 409, 201, 120B of IPC and Sections 13(1) and 13(2) of Prevention of Corruption Act, 1988.
The court dismissed the Criminal Revision Application filed under Section 397/401 stating,
“The said act would not fall in the category of having been done in discharge of official duty of the revisionist, therefore, on account of there being no prosecution sanction under Section 197 Cr.P.C., I do not see that there is any infirmity in the prosecution of the accused for the abovementioned offence under Sections 409,201, 120 IPC.”
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