Sanctions under the Prevention of Corruption Act and the Unlawful Activities (Prevention) Act

Sanctions for prosecution are required under certain special laws and certain offences. Under the Unlawful Activities (Prevention) Act, 1967¹ (UAPA), sanction for prosecution is required to ensure a balance between national security interests and the protection of individual rights. Section 45 of the UAPA² mandates prior Government approval before a court can take cognizance of offences under the Act. The purpose of this requirement is to prevent frivolous or malicious prosecutions while allowing the State to scrutinise and approve cases involving serious allegations related to terrorism and national security. Given the stringent provisions and severe punishment under the UAPA, the sanctioning process acts as a safeguard against misuse or politically motivated prosecutions. The requirement of a sanction casts a greater responsibility on the National Investigating Agency (NIA) to submit a well-substantiated case supported by sufficient evidence before initiating prosecution.

Under the Prevention of Corruption Act, 1988³ (PC Act), “sanction” refers to official permission or approval from a competent authority to prosecute a public servant accused of corruption. The authority competent to grant sanction is usually the public servant’s appointing authority or a higher official as per the specific Government hierarchy. If there is any doubt about whether the required sanction should come from the Central Government, State Government, or another authority, the sanction must be given by the authority that had the power to remove the public servant from their position at the time the alleged offence took place. The sanctioning authority must have the legal authority to appoint or remove the accused public servant from their position. This ensures that the decision is made by someone with proper jurisdiction and accountability. Section 19 of the PC Act⁴ governs the requirement of sanction. It specifies that no court can take cognizance of an offence under the Act against a public servant without prior sanction. The prosecution of public servants requires a delicate balance between accountability and protection from frivolous proceedings. The purpose of this protection is to ensure that responsible public officials are not subjected to vexatious criminal proceedings for actions performed in the line of duty. This safeguard ensures that frivolous or baseless prosecutions do not disrupt a public servant’s duties. The purpose of a sanction is to ensure that only genuine cases proceed to trial, protecting public servants from unnecessary harassment.

Timeline for sanctions

In Judgebir Singh v. NIA⁵, the question was whether the accused would be entitled to statutory bail as the charge-sheet was filed without a sanction for prosecution under the UAPA. The Court read into Rule 3 of the UAPA (Recommendation and Sanction of Prosecution) Rules, 2008 (2008 Rules) and interpreted “within 7 working days of the receipt of the evidence gathered by the investigating officer under the Code” to mean the charge-sheet prepared by the investigating officer.

Rule 3 of the Rules 2008 therefore makes it clear that the authority Section 45(2) of the UAPA is obliged in law to apply its mind thoroughly to the evidence gathered by the investigating officer and thereafter, prepare its report containing the recommendations to the Central Government or the State Government for the grant of sanction for prosecution. Therefore, the authority cannot make its report containing the recommendations without looking into the charge-sheet thoroughly containing the evidence gathered by the investigating officer.

The Court held that once a charge-sheet has been filed with all the documents on which the prosecution proposes to rely upon, the investigating officer can send the entire copy and other materials to the sanctioning authority to enable the sanctioning authority to apply his mind to accord sanction. Owing to this, the Court observed that the order of sanction passed by the competent authority can be produced and placed on record subsequent to filing of the charge-sheet.

It may happen that the inordinate delay in placing the order of sanction before the Special Court may lead to delay in trial because the competent court will not be able to take cognizance of the offence without a valid sanction on record but that can always be used as a ground for the accused to argue that his/her right to have a speedy trial is infringed thereby violating Article 21 of the Constitution.⁶ This may entitle the accused to pray for regular bail on the ground of delay in trial. But as held by the Court, the same cannot be a ground to pray for statutory bail under the provisions of Section 167(2) of the Code of Criminal Procedure (CrPC).⁷

In the recent case of Fuleshwar Gope v. Union of India⁸, the main issue revolved around whether the sanction for prosecution under the UAPA was granted properly and whether the Court’s cognizance of the case showed a lack of application of mind. The appellant had argued that the authorities did not follow the timeline outlined in Rule 3 of the 2008 Rules. The appellant’s objection revolved around the short duration taken in recommending and granting the sanction against him which showed a lack of independent review and application of mind by the authorities. However, the Court found no merit in this contention as there was no evidence to suggest that the relevant materials were not placed before the authorities for their consideration. Moreover, in this case, the competence of the authority to grant sanction was not in question.

Therefore, the mere fact that the process was completed within a short timeframe cannot by itself, undermine the credibility or validity of the sanction at that juncture. The Court after perusing previous judgments of various High Courts with respect to the 2008 Rules, held that there should be strict adherence to the timeline mentioned in Rules 3 and 4 of the 2008 Rules and there cannot be any undue delay in procuring sanction for prosecution. The Rules provide a 7-day period within which the authority concerned is to make its recommendation on the basis of materials gathered by the investigating officer and a further 7-days period for the Government to grant sanction for prosecution after perusing the report of the authority. It further stated that this observation shall apply prospectively from the date of the judgment.

In contrast, under the PC Act, the Supreme Court in Vijay Rajmohan v. CBI⁹ has held that the proviso to Section 19 imposes a statutory obligation on the sanctioning authority to decide within three months, extendable by one additional month with recorded reasons and can only be read and understood as a compelling statutory obligation. This means that by causing a delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny, thereby vitiating the process of determination of the allegations against the corrupt official at the most. It clarified that the expiry of the prescribed timeline does not automatically quash the proceedings, but instead allows the aggrieved party to seek appropriate legal remedies against the sanctioning authority.

Challenging the grant of sanction

Courts have often emphasised that granting sanction for prosecution is not just a procedural formality but a serious duty that requires careful consideration. The Supreme Court in CBI v. Ashok Kumar Aggarwal¹⁰ noted the importance of the process of grant of sanction. It has been termed “not an acrimonious exercise but a solemn and sacrosanct act” in the context of the PC Act. The prosecution is required to send the entire relevant record to the sanctioning authority including the first information report (FIR), disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and other relevant material and it should further also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. This principle made it fair for a possibly bias investigation to not cloud the judgment of the sanctioning authority. The next step is for the authority to do a complete and conscious scrutiny of the whole record by independently applying its mind and taking into consideration all the relevant facts while discharging its duty to give or withhold the sanction, keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. When perusing a sanctioning order, it should reveal that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. This onus is on the prosecution at the time of the trial to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.

The courts have consistently clarified the distinction between the absence of sanction and its alleged invalidity, emphasising the proper stage at which these objections can be raised. In CBI v. Pramila Virendra Kumar Agarwal¹¹, the Supreme Court drew a clear line between the complete absence of sanction, which can be questioned at the outset, and the alleged invalidity of sanction on account of non-application of mind, which requires examination during the trial process. The Supreme Court in State of Punjab v. Partap Singh Verka¹², dealt with a situation wherein during the trial, the Special Court issued summons against a doctor after the prosecution filed an application to add him as an accused to the case under Section 319 of the Criminal Procedure Code¹³ (CrPC), based on the complainant’s testimony alleging that the doctor had demanded and received a bribe. While upholding the decision passed by the High Court of Punjab and Haryana setting aside the order issuing summons, the Bench held that courts cannot take cognizance of offences under the PC Act against a public servant, even under Section 319 CrPC, without first fulfilling the mandatory requirements of Section 19 of the PC Act as the entire procedure becomes legally flawed and invalid. The language of Section 19(1) of the PC Act makes it clear that obtaining prior sanction from the appropriate Government is a mandatory prerequisite. In this case the prosecution ought to have secured the necessary sanction before filing the application under Section 319 CrPC.

Absence of sanction as an issue can be raised at the threshold since a mandatory part of a law has not been complied with and therefore the issue ought to be raised immediately. However, invalidity, as an issue, can only be raised at trial as the prosecution has been given the chance to lead its evidence on the same. A mere technicality cannot and should not vitiate a criminal proceeding. In Dinesh Kumar v. AAI¹⁴, the Supreme Court held that the challenge to the invalidity of sanction can always be raised in the course of trial where sanction order exists. The grounds raised can be non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant the sanction.

In Mohd. Iqbal Ahmed v. State of A.P.¹⁵, the Supreme Court while acquitting the accused emphasised on two significant aspects of sanction for prosecution. Firstly, any case instituted without proper sanction must fail as the entire proceedings are rendered void ab initio, and therefore the prosecution must prove that valid sanction has been granted by the sanctioning authority. Secondly, the sanctioning authority must be satisfied that a case for sanction has been made out constituting the offence. In this case, perusing the evidence led, the Court observed that the sanctioning authority’s Resolution showed that it did not mention any facts for granting sanction against the accused, nor did it explain the grounds on which the sanctioning authority made its decision. On the contrary, the document simply stated that the sanction was granted based on a note from the Commissioner of the Municipal Corporation, which was apparently presented to the Committee. In view of this, the accused was acquitted. The basic application of mind is to be seen in a sanctioning order however, the specific offences need not be listed separately in the sanction order, as that is to be done at the stage of framing of charge as held in Parkash Singh Badal v. State of Punjab¹⁶. The law only requires that the sanctioning authority must be provided with all material to make an informed decision.

The Supreme Court recently revisited the scrutiny of such sanctions in State of Punjab v. Hari Kesh¹⁷ at the stage of quashing when the trial had commenced. The case originated from a first information report being registered against a public servant for offences under Sections 7¹⁸ and 13(2)¹⁹ of the PC Act. The prosecution alleged that the accused had abused his official position for personal gain. Initially, Nagar Council, the competent authority to grant sanction for prosecution, refused to provide the necessary sanction. Subsequently, without their being fresh material, a sanction order was issued by the Executive Officer of the Nagar Council, a person deemed not competent to authorise such prosecution. The accused challenged the validity of the second sanction before the High Court of Punjab and Haryana by relying heavily on the Supreme Court’s decisions in Manoranjan Prasad Choudhary v. State of Bihar²⁰ and State of H.P. v. Nishant Sareen²¹. In Manoranjan case²², the Supreme Court while dealing with a special leave petition (SLP) wherein the discharge application was rejected by the trial court, held that the prosecution of a “public servant” without proper sanction from the “competent authority” is vitiated and is liable to be quashed. In Nishant Sareen case²³, the Supreme Court held that once the statutory power under Section 19 of the PC Act has been exercised by the competent authority, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. Basis this, the High Court held that prosecuting a public servant without a valid sanction from the competent authority renders the proceedings legally untenable and therefore quashed the sanction order and set aside all consequent proceedings. The State of Punjab appealed the High Court’s decision to the Supreme Court, arguing that it erred in quashing the sanction order and consequently the trial, particularly when the trial had already commenced, and seven prosecution witnesses had been examined. The State relying on a recent decision of the Supreme Court in State of Karnataka v. S. Subbegowda²⁴, which interpreted Section 19 of the Act to emphasise that procedural irregularities in sanction orders do not automatically invalidate trials unless they result in a demonstrable failure of justice. Once cognizance is taken by the Special Judge and the charge is framed against the accused, the trial can neither be stayed nor scuttled in the midst of it in view of the strictures in Section 19(3) of the PC Act. The explanation provided in Section 19 is that the word “error” includes competency of the authority to grant sanction and sub-section (4) further clarifies that courts must assess whether objections regarding sanction could and should have been raised earlier and whether the alleged error caused substantive prejudice. Procedural safeguards must not become tools for stalling justice and objections to sanction orders should be raised at the time of leading evidence in the trial.

Conclusion

The requirement of sanction under both the UAPA and the PC Act serves as a fundamental procedural safeguard to ensure that prosecution is initiated only after due scrutiny by the competent authority. While both statutes aim to curb serious offenses, the UAPA focusing on threats to national security and sovereignty, and the PC Act targeting corruption among public servants, the sanctioning process under each law has distinct yet overlapping objectives. The sanctioning authorities at the time of granting sanction must be made aware of all the facts constituting the offence and must apply its mind. The stages of proceedings at which an accused could raise the issue with regard to the validity of the sanction would be the stage when the Court takes cognizance of the offence, the stage when the charge is to be framed by the Court or at the stage when the trial is complete. Questions about the competency of the sanctioning authority or procedural irregularities are matter of evidence to be examined during the trial and not grounds for pre-emptively quashing the trial. The grounds for challenging the sanction granted or the lack thereof, and the reasoning behind a sanction will determine the appropriate stage at which it should be raised.