 as well as television to the effect that the person got admitted because of lack of sanction or the criminal motion will be coming to action once there is a sanction. What is the sanctity of sanction is an important facet but since we have Thiru Vikram and associates founder Thiru Vikram with us I will say he will set the ball mode into motion and thereafter we will ask sir to take things forward over to you Thiru Vikram. Good evening sir. Good evening. Good evening Mr. Vikas Chandra. Good evening everybody. It's a great blessing to have a senior advocate Mr. P S Rajagopal sir with us. He has great mastery over service law and the topic chosen is equally good. Sanction is something very important and very frequently the proceedings get stayed when there is no sanction. We have the right person with us to throw light on the entire concept of sanction under the criminal procedure court. Sir once again on behalf of beyond law CLC Mr. Vikas Chitrat and on my personal behalf I extend a very warm welcome to you sir. Thank you very much. Over to you Mr. Vikas Chitrat. And of course I would also extend my warm greetings and welcome to Mr. Ashwini Raj Gopal who has been in the backboard. She will be the technical support to senior advocate. Warm welcome to you also madam. Over to you sir. Thank you. Thank you. Vikas would not be satisfied if I don't speak on something other than service law. That is what I have deciphered in the last one year. He made me speak on disproportionate assets then no one sanctions. Of course this is by fourth appearance on this forum. Friends it has been a great pleasure for me always to be with beyond law CLC and it is giving me an opportunity to put my spare time during this difficult times to good use. When we speak of sanctions in criminal law normally what comes to our mind is sanction to prosecute. But I would try to cover within the time available not only sanction to prosecute but also sanction though called by different names at different stages of the proceedings. Now with the 2018 amendment to the prevention of corruption act what has been introduced is a pre-investigation previous approval. One complaint not only of the civil servants but also of public servants who are not civil servants like maybe ministers maybe consultants who are paid out of paid by the government. There was one complaint that if a very discretionary act like sanctioning of a project award of a contract strictly in accordance with the CBC guidelines also or when the circumstances demand if there is a deviation from the set norms with nothing but carrying on the public works without hindrance in mind. If everyone of these acts are viewed as offenses then the exercise of discretion becomes difficult and then the governance will come to a standstill. This was particularly highlighted both in the press and also in debates in the light of 2G scan. The general feeling was that the actions initiated under the prevention of corruption act in respect of various transactions under 2G scan put the country back by about 10 years as it is public servants would be happy not to exercise discretion but some of them dare to take decisions in public interest and if every exercise of discretion in the hindsight if it is viewed as not a procedural lapse but a criminal misconduct the functioning of the governance functioning and governance would come to a standstill or at any event it will be demoralizing to take bold decisions. Responding to the criticism and the felt need that a safeguard has to be built into the law to see that every exercise of discretion is not fraught with the danger of being subjected to criminal proceedings. Section 17 capital A of the prevention of corruption act was introduced in the year 2018. It requires previous sanction or previous approval of the competent authority for the police to resist an FIR and proceed with the investigation. There is one type of sanction though it is called as approval. Then in the Delhi Special Police Establishment Act there is a provision that is section 6 which says that the central government cannot extend the jurisdiction of the CBI to investigate in any state except with the previous consent of that state government. The word used there is consent. Then there are certain enactments like any number of enactments you would find this employee state insurance act. There remember under the employee state insurance act the accuser will not be a public servant accuser will be an entrepreneur may be an industrialist or a businessman or for that matter any person having his own business or industry to which the provisions of the ESI act would apply. So ESI act says no prosecution under this act shall be instituted except with the previous sanction of the insurance commissioner. Then there are enactments like TADA where again there will be no civil servant generally involved terrorist and disruptive activities act. There also there are two sanctions required. First is while recording the FIR the requirement of subsection one of section 20 capital E of the TADA is that no offense under this act shall be recorded by the police except with the previous approval of the district superintendent of police. Then after investigation at the time of prosecution no court shall take cognizance of any offense under this act without the previous sanction of the inspector of inspector general of police or as the case may be of commissioner of police. Therefore under various penal provisions under various laws certain clauses are that we speak of previous approval before recording the FIR. The gate for investigation is opened by recording of FIR and FIR cannot be registered without previous appeal. Then there are provisions we speak of a ban or a bar on prosecution as in ESI act the employee's provident fund act. There the cognizance is barred except on a complaint filed by a designated officer or an officer of a specified rank. Then even in the matter of investigations say under the prevention of corruption act itself we take if it is offense of processing disproportionate assets then compassily it has to be investigated by deputy superintendent of police. Of course it can be delegated with the permission of the magistrate it can be with an application made to the magistrate it can be entrusted to inspector of police also. Therefore at various places at various stages in the same proceedings permissions and sanctions are recorded. Irrespective of the different phraseology used like consent previous approval sanction all of them mean the same thing in criminal law. The consequences may be different because now with the concept of failure of justice having been incorporated in various provisions of various acts mere breach of these provisions may not be sufficient to get an acquittal or to put it precisely to get a reversal of the order of conviction regarded by the file. There again the concept of errors are irregularities which wish at the proceedings and errors are irregularities which do not wish at the proceedings also crop. Having said what are the various types of concerns approvals previous approval sanctions that are required under the criminal law. Now let me go to what would be the consequence of not following any of these provisions. earliest of the cases is that of H. N. Rizbud where relying on section 190 of the previous court of civil procedure now we are having 73 court earlier to that we had a court. Relying on section 190 of the court Supreme Court held that we have to distinguish between power to investigate and power to take cognizance. This is what the Supreme Court said an illegal investigation or investigation by an officer of a rank below that is mentioned in law. It may be shared the investigation but it would not take away the powers of the court to take cognizance so much for the Supreme Court in substance said even if there is an illegality in investigation that would not be initiating the proceedings because the two stages are different. Investigation is police power and taking cognizance and prosecuting or conducting trial is a judicial power. Insofar as the police powers are concerned mere error in investigation or irregularity in investigation would not bar the court from taking cognizance but then if you are able to establish that investigation by a rank of by an officer of a inferior rank then what is stipulated by law has resulted in miscarriage of justice then it may perhaps be possible for you to get the conviction reversed or even getting a discharge at this stage before commencement of trial. Recently you see some change in the concept no let before going into what is the conceptual changes I would like to just mention on the as an aside the first case that came before Supreme Court after introduction of 17 capital A in prevention of corruption is in case of Raphael deal which is again making noise because there are reports that French government has ordered a judicial inquiry and all that. The proceedings before the Supreme Court was initiated seeking recording of FIR and investigation into offenses alleged to have been committed in Raphael deal. It came before a three judge bench that is again a good thing because we can cite it as a precedent without being afraid that it may be satisfied by another two judge bench because it has to go against either a three judge bench or a larger bench. There the what was the issue was the plea was registered on FIR without insisting on sanction or prior approval under section 17 capital A. Two judgments were written one by Lordship Justice SK Cowell for the chief and himself and another concurring judgment was written by Justice K. M. Joseph. Justice K. M. Joseph in his concurring view stated that section 17 capital A is mandatory without prior or prior approval investigation cannot start. It is a specific bar engrafted in the prevention of corruption act. So one thing that has come about this is what I said it is a slight shift in judicial thinking. Earlier in H. N. Thrasiput they said investigation by an officer of inferior rank does not bar the power of the court to take cognizance. From there there appears to be substantial change in the in the case of Yashwad Sinha versus CBI where this Raphael deal issue came into came into focus. Then another important aspect when I am talking about sanction is who is competent to give sanction. If it is a consent a previous approval under section 17 capital A the authority competent to give sanction is this prayer approval for investigation is the same as the authority competent to grant sanction for prosecution. The two are at a different different stages because one doubt would arise what will happen if 17A permission has been given or approval has been granted with appointing authority whether it would obviate obtaining of sanction to prosecute under section 19. But a certain submission would be that the two are at different stages and they are intended for different they that they are incorporated for different purposes. 17A is absence of prayer approval under section 17 capital A is a bar for recording registering a fire a bar for commencing investigation. Whereas sanction under section 19 is at a different stage where investigation is complete evidence is collected and on the basis of that a sanction has to be issued after application of mind by the appointing authority whether this is a fit case to prosecute because prosecuting a civil servant in fact when I was speaking and disproportionate incidentally I mentioned this prosecuting a civil servant without a just cause would not only demoralize the bureaucracy but the slur or the blotting by the blot back the concerned public servant suffers during the trial will not be erased by ultimate acquittal. Therefore these sanctions prayer or approvals previous sanctions are incorporated in criminal law but the sole purpose that a frivolous vexatious vengeful prosecution should not visit any public servant or any industrialist any entrepreneur therefore to the extent possible these vexatious proceedings will have to be avoided. Then we come to the important question as to who is the authority to sanction and what is his role authority to sanction let us not have any confusion on this. If he is a servant under the services of the state that is central government or state government by virtue of article 311 sanctioning authority cannot be lower than the appointing authority but when it comes to any other public servant it will be only authority who is competent to remove this distinction between the two classes of public servants namely one side the servants of the state second servants of the state enterprises this we have to clearly bear in mind concept of authority sanctioning authority being not inferior to that of the appointing authority would not arise in case of public enterprises it is applicable only in central government and state government because article 300 is applicable to that. In respect of others any authority to whom the powers of removal are delegated under the applicable discipline and appeal rules he is competent. Then what is the role of sanctioning authority? Sanctioning authority is role if you want to understand how significant it is the proper judgment to refer is that of Justice K. Veera Swami versus Union of India I think yes Union of India. In K. Veera Swami's case the question that arose before the Supreme Court was first whether prevention of corruption act is applicable at all to the judges of the higher judiciary. Second question was if it is applicable who is the sanctioning authority because the complexity arose in that case for the reason that all of us are aware now by now we have seen more than one impeachment motion in parliament starting from Justice Veera Swami which my learned friends from Punjab Adhyayurana would be very well aware because this occurred when in respect of an event that occurred then last suggestion Veera Swami was Chief Justice of Punjab Adhyayurana Haryana High Court. I am not on the merits of the matter because on merits of the matter it is for the appropriate authority is designed not for their dockets to campaign. In Justice K. Veera Swami's case arose out of an affair filed against him when he was Chief Justice of the Madrasaika when the matter went to Supreme Court two issues were raised whether the act is applicable second is who is the competent authority sanctioned because sanctioning the removal is by way of an impeachment motion in parliament but ultimate removal from office as a result of successful impeachment motion vest with the president because the law says under the hand of the president this will he will have to be sent home the Supreme Court made a fine distinction and said it is not that you have to take sanction of the parliament to prosecute sanction will be by the president of India but ultimately removal will be by the president there they went on to say what is the reason for which the provision for sanction has been incorporated first they said that it is to protect the public servants from vexatious and frivolous prosecutions and they also said how the sanctioning authority has to apply is my there I leave K. Veera Swami and then I will go to a later day judgment rendered in Ashok Agarwal's case where is the Supreme Court said one two three four five steps they said the entire record of the prosecution including the materials that may take the balance in favor of the accused has to be forwarded to the sanctioning authority then he has to apply his mind and his mind alone not somebody else's mind to the record of the case entire record of the investigation then he has to take an independent decision these are the three requirements of course six or seven steps have been listed by the supreme court some one substance is this most importantly the last sentence is that procedure laid down in cbi manual has to be strictly followed it is very important because in civil law that is in administrative law dealing with civil libraries what we come across is a manual of instruction is not enforceable in a court of law it is only a set of guidelines but for the first time supreme court recognized in Ashok Agarwal's case when it comes to sanction procedures stipulated in the cbi manual has to be strictly followed it's very important what I should say recognition of the procedure or building a safeguard for public service then thing is he should not be acting under any external pressure look this is very very important provision because what happens is sometimes the complainants they rush to the high court and say look I had given a complaint police have invested cbi or police or local police whatever it is they have investigated they have found a case to prosecute but the sanction is not forthcoming sanction is withheld government is sitting or sitting on the files to protect this corrupt civil servant then we have very overzealous high courts also I am not saying that it is only the complainants who will be overzealous there are overzealous high courts also in one case high court of Gujarat issued a mandamus to the government to accord sanction not to examine and take a decision to accord sanction sanctioned to prosecute was issued trial went on and ultimately he was convicted also after conviction by way of SLP when the matter reached in the supreme court supreme court set aside the conviction only on the ground that sanctioning authority in granting sanction acted under the external pressure of not anybody else but the high court what I am trying to say is that pressure from any force is banned in the matter of sanctions even pressure of the high court is good enough to wish it then in a matter of even recording of the FIR in understanding this case it was a case of recording FIR under TADA the superintendent of police prayer approval was required superintendent of police instead of granting approval or not refusing approval he referred the matter to his higher authority who that higher authority is irrelevant and that higher authority said you you approve of FIR is being rejected and I think more is happening then the superintendent of police recording the instructions of the higher authority then he faithfully recorded I referred the matter to the higher authority then on the basis of the advice received I permit recording of the FIR then the supreme court said it is power at wrong hands in the sense power is delegated to one it is accessible by somebody else and this man lends his signature it is non application of mind by the competent authority and application of mind is of somebody else somebody else's mind cannot substitute for the mind of the sanctioning there is one important provision in the even the prevention of corruption act it have not been deleted even after amendment that is subsection 3 of section 19 it says any irregularity in sanction shall not be a ground for reversal of the conviction unless it has resulted in miscarriage of justice this is a very daisy provision and they also define what is meant by irregularity irregularity includes power to sanction that is even if in incompetent authority sanctions it is treated as an irregularity and the conviction cannot be handled solely on the ground of irregularity in the sanction fortunately for all of us and I think fortunately for rule of law also supreme court has not accepted this theory of incompetency to sanction as a mere irregularity supreme court has consistently viewed it as a illegality which is incurable supposing incompetent authority sanctions it is a sanction quorum nonjudice a sanction which is wide ab initio therefore whatever steps are taken after that sanction pursuant to that sanction will be void the concept of administrative law has thus been extended to the sanction aspect not the standing section 19 3 only one caveat there is provided the court before which the appeal or revision goes it has to examine whether defect in sanction could have been pointed out at an earlier stage of the proceedings that means only those who violently allow the trial to take place for 20 years without rising this issue of incompetency in sanction or some other negotiating factor in the sanction they will not be given the benefit of this the sanction being incompetent it has to be raised at the earlier stage of course once you have raised it it may be decided even at the end of the trial but that doesn't follow the accusation no what has happened in the present situation in the present situation i am not saying present means in the last 10 years it has happened it has been happening for quite some time the first of such cases is pertaining to the chief minister of sikkim state what happened was that this i am coming to consent under section six of the cbi actor deli special police establishment act the cbi has no power no power to investigate in a state except with the previous consent of that state that is the section six command what happened was after an election the ruling regime changed and consent was given to investigate the person who was chief minister earlier to the election then affairs were registered investigation was going on when all this was going on next election came and they accused under the previous regime he became the chief minister again say this is the dynamics of democracy this that democracy's dynamism brought the accused to be the chief minister then first thing he did was his government withdrew the consent the question is the question that came up our consideration was what happened what is the effect of withdrawal of the consent because char sheet has not been filed yet the affair has been registered investigation is progress after obtaining consent under section six of the dsp act now what will happen to those affairs supreme court said consent is required to record the fire fire has been recorded therefore your withdrawal of consent to the cbi to investigate in the state will not affect investigations into the fire that are already recorded only thing is after withdrawal of the consent no fresh fire can be registered this is therefore a consent once given even if you withdraw that withdrawal has no bearing on the outcome in respect of sanction to prosecute there is a still stronger bar and change of mind change of mind may occur in different ways and into the different extent what happens this fact of life cbi sends an investigative report to the authority competent to sanction at that point of time the sanctioning authority applies his mind comes to conclude there is no case to sanction the prosecution he rejects and pauses an order refusing to sanction this i am talking from a live case which is incidentally all argued by me then the investigating police it is not necessary for us to go into the detail which police whether it is state police local police or any other police they go and tell the sanctioning authority all right you have become a hero that you have refused to sanction then we will see what they will see indirectly telling we will large enough fire industry of course no they cannot do it under section 17 capital a but we will take care of you that taking care can be in different ways because take the case of a bank where chief general manager is the sanctioning authority he will be due for appointment as the executive director of managing directors and chairman of some other bank cbs says we have sent the file for sanction if you don't sanction we will be told our clearance for your appointment as executive director managing director different pleasure software therefore the law is very clear very clearly settled by the supreme court once a sanction is refused on the same material you cannot grant sanction at a later point of time because you cannot be changing your minds depending upon the pressures that are brought on you once you make up your mind it is final of course sanctioning authorities use a easy easy way out that you know because come let me sanction these cases where they exercise their mind independently they are not many but at the same time they are not scarce also there are cases either they were the principle of law settle is that it is once sanction is refused unless there is some additional material brought to you or noticed by further investigation you cannot grant sign reverse over decision review remember after all sanction is an administrative order it is not a quasi judicial order but contrary to the general view that administrative order can be reviewed any number of times this finality to refusal of sanction has been brought by judicial interpretation of the law at the same time there is also another judicial made law that is sanctioned once given cannot be withdrawn just like consent for for investigation therefore these are two essential three three important facets of sanction is application of mind should be by the competent authority alone not by anybody else second is the application of mind should be to the entire record of the investigation and third is sanctioned once given cannot be withdrawn fourth is sanctioned once refused cannot be given on the same material these are the four important and safeguards are the procedural safeguards that are available in the matter of sanction sanction subject of course to the limitations that are prescribed under section subsection three of section 19 then there is though not called sanction there is another important safeguard that is in the matter of issue of search warrants all of you are aware that in the matter of search warrants the magistrate before issuing search warrant is required in law to apply his mind and then decide whether a search warrant should be issued or not but we have cases and cases where the police investigating police will send the FIR in a sealed cover to the magistrate with a written request or with an inscription on that closure cover itself please do not open the effort cover until filing of the final report that means technically FIR is before the magistrate but substantially what he has before him is a closure cover and not the FIR and looking at the closure cover search warrants are issued throwing the safeguard to the winds because the search is an infringement of right to privacy if that right to privacy has to be invaded there must be a just lawful cause and interference with that right is to be within the test of proportionality all these would require particularly after judgment in case put from his case that there must be application of mind by the magistrate to the contents of the FIR after going through the FIR and the application for issue of search warrant he must be satisfied that if search warrant is not issued justice would suffer without anything of this keeping the FIR in a closure cover as if his eyes are having an x-ray a mechanism he issues search warrant but so far not a single project conviction has been reversed on this ground yes I agree corruption should not be tolerated I agree corruption will have to be rooted out but think of procedural safeguards particularly after judgment in case put some justice case puts from his case therefore this is a matter which requires a fresh look after the judgment of larger bench in justice case puts from his case where privacy has been held to be a fundamental right earlier the view was different that earlier view also arose under a criminal case that is shadowing a person or whether it will invade his right to or invade into right to his privacy that is supreme god said privacy is not a fundamental right the argument was that the police we are not arrested in then the response of the accused was yes sir I have not been arrested but police follow me wherever I go for me whole country is a jail only walls of the jail have been shifted but I am in jail though not technical but the supreme god said that for investigation and all this is permitted now often the right to privacy having been recognized as part of law for part of right to life under article 61 whether the same view would prevail it is a matter to be tested actually section 17 capital A was tested within months of within an year of making of the law but this provision is yet to be tested I hope and look forward to some debate on this in period of time and then some real would be required into these the whether whether the search warrant can be issued even without looking into what is the content of the fire then there are one or two aspects of this sanction that is this arises particularly in the cases governed by article 311 whether an authority higher than the appointing authority can sanction if you see all these governmental rules they normally say appointing authority or the authority to which it is subordinate can remove the public servant from office therefore applying this concept courts have held in government employment an authority higher than the sanctioning authority can issue sanctions but again it should always be remembered that in sectors other than the government that is in respect of persons who are not government employees though I could not find any direct judgment on the point but applying the same analogy it must be permissible for authority higher than the dismissing authority from according sanction also because sanction is not an appeal of the law then the question the question would be whether there can be post facto approval that is there is so much pressure from the cba some incompetent officer would issue the sanction then you would place the matter before the competent authority for post facto approval supreme court has categorically said the concept of approval post facto is not acceptable in the matter of sanction to prosecute finally on these sanctions there is another important aspect because that comes when of course now in so far as the excesses of discretion is concerned that is offense under section 13 1 a amended 13 1 a where it involves excesses of discretion section 17 capital A would apply let us go to the cases where which involve sanction under section 197 of the CRPC that is applicable to the government servants and then public servants and the judges who are who are there of course it may not apply to public servants other than government servant there the question is question came up whether sanction is required in respect of every act or whether it is required only in respect of official acts is relatable to say offense under 13 1 b where acquisition of disproportionate assets luckily section 19 covers that also therefore in some of the prevention of corruption act is concerned that may not apply but in respect of government servants and the like for offenses under criminal procedure for unless the act is having color of official duty sanction is not required now what is color of official duty is the very interesting aspect of criminal law which is always dependent upon the fact situation of a particular case it is said in criminal law every case has to be decided on the facts of it and there is no question of any precedent yes that is correct in so far as evidence is concerned but in so even in the aspect of the question whether 197 sanction is required or not many occasions my experience says it is again dependent on fact situation in one case the allegation was say committing fraud many cases have come on this supreme court said sanction under 197 is not required because committing a fraud is no part of official duty then what is the official duty for example in this i don't know the experience in other states but in my state this appears to me to be a unwarranted protection to the police in the guise of investigation they commit excesses and supreme court says any action taken by a police officer during the course of investigation it is having color of official duty because investigation is official duty therefore if during the course of investigation an excess has been committed then to prosecute the police officer for that crime sanction to process sanction under section 197 is required sometimes you may feel that police are known to be committing excesses why this protection but that is the law there in there are cases medical negligence now when a doctor is performing his duties as government surgeon or government physician if a complaint of if on the offense of medical negligence maybe even death due to medical negligence if that comes negligence alleged is in respect of official duty therefore sanction is required then let us say very interesting case was that a doctor heading the district establishment in health department he was asked to send certain ambulances or cars i don't remember whether it is ambulance or car to a particular purpose then he said look these many ambulances are required in my hospital i do not have those many to spare then the allegation was made that death succumbed and all those things for him and then he was prosecuted supreme court said that he in discharge of official duty said that these many ambulances or vehicles are required for my establishment i do not have as many as you are positioning to spare i have committed in court of official duties therefore cases and cases where the view has been i do not say vacillating because i cannot use that word but i can say there has been yes swing not pendulum is not standing idle or fixed in deciding what is an act done in color of official duty and what is done therefore ultimately sanction whether previous sanction is required or not then depends on facts of each case but in so far as the offences under prevention of correction act are both 17 a and 19 both are mandatory both are required and that it safeguards for prosecution that are available under section 19 three since i have tried to cover as much as possible within 60 minutes and i can see because smiling and if i have permission your permission to stop and then take your questions as the day for thank you very much i have thank you sir can shall i stop now as usually you have taken the entire gamut and just hold on yes sir i said as usual we need less to add that the session covered every aspect what we were thought of and it could be conceived of the only factor which after you were discussing about that you cannot change things i haven't reminded of that service law once you were saying that service law is one of your photos that even under this service law there is a jurisprudence called as you cannot vex a person twice under article just opposing with the article 20 as well in 1971 supreme court which says that let's assume there is a full fledged inquiry and he's exonerated then you cannot keep on charging that same official twice sir the questions here they have not come i will just check it on the youtube whether the sub inspector of police is also coming under the ambit of sanction under section 197 yes any public servant any public servant if it if the incident relates to an event or act which has color of official duty it would definitely come because he's a public servant and the act committed by him is in the in the discharge of his official duties therefore i feel it should come within the ambit of 197 maybe the dismissing authority for psi may be commissioner of police but that should not matter is my respect to you if an attendance takes a bribe whether this action is required when it takes a bribe with 197 is not attracted but section sanction under the 19 the section 19 of the prevention of correction act is attracted 197 may not be because taking a bribe is no part of official but since we'll be charging him under the request but he says if an attender yes yes sir section 197 it reads where any person who is a revend not from the removal from his office save by or with the sanction of the government he's accused of any offense alleged to have been committed by him wise while acting or purporting to act in the discharge of the official duty no take no court shall take cognizance of such offense except with the previous sanction save as pro as otherwise providing local and look like that in the example who is employed or as the case may be whether the time of commission of the alleged offense employed in connection with the affairs of union of the central government in the case of person the who is employed as the case may be in the commission of the alleged offense in connection with the affairs of the state of the state government so state governments are central government sanction is required notwithstanding the fact that for him the disciplinary authority or the appointing authority may be different it would be it would be contrary to the norm of law because if you remember there is the case between a supramani swami and mamma on thing where it was said to investigate a crime committed by giant secretary and above if i cannot be registered without previous sanction of the government there is a supramani what said you cannot create a class within a class therefore what is so great about giant secretaries to treat them as a class apart it set aside the provision that was made another provision of corruption act after that section 17 capital A was introduced which is applicable to every public servant applying the test which led to incorporation of section 17 capital K the word government in section 197 will have to be treated little widely and then it should be applicable to every government servant provided the act involves the color of official duty whatever be the position earlier i know if for example the deputy commissioner of the district or district magistrate as we call our district district collector as we call maybe the removing authority but still he happens to be a government servant and deputy commissioner or district collector would be acting as a delegate of the government therefore 197 would be attracted particularly after supramani swami's case regarding the previous sanction for investigation what is the difference between a public servant and a government servant both are public servants government servant is employed in connection with the affairs of the state and the public servant who is not a government servant is not employed in connection with the affairs of the state but he becomes a public servant because of the provision in the particular enactment which has created that establishment till now till recently we were writing the impression that employee of a private bank is not a public servant but there were two cases decided by the supreme court one year of remission gulli who was chairman of a private sector bank having regard to the public duties that have been performed and having regard to the enlarged definition of the word public servant in the prevention of corruption and chairman of a private sector bank because of his performing public duties is a public servant that is the concept that is introduced then subsequently in respect of a private educational institution a professional college where the allegation was that the prestige of the college are receiving unaccounted donations and more than the fixed fee or more than the declared fee prosecution was launched supreme court held that they are public servants because rendering the professional education is a public duty that is on an interpretation of enlarged definition of public servant under the prevention of corruption now public servant means there are classes and classes of public servants who become public servants because of the definition in IPC they were the because of definition in the prevention of corruption there was a time when MLA or municipal councillor was not a public servant but subsequently the definition was enlarged and now all of them are public servants anybody discharging public duty is a public servant what is public duty that concept changes from time to time to meet the expanding needs of the society and change in societal norms so if you take for example judgment of the supreme court in tme of his case there they used the phrase private educational institutions in a very large meaning in fact at one point well at one place in the judgment in tme of a case they say for the purpose of this judgment any educational institution not receiving governmental aid is a private educational institution but when it comes to supreme court took the view that a trustee has a private engineering college or private medical college or for that matter any private personal college it discharges public functions therefore he's a public servant therefore the definitions of these public servants we have to understand in the light of the question that we are discussing context of that question and then we can rely and we can go back to the definition clause in every enactment the definition would say in this act unless the context otherwise requires therefore definition is subject to context by definition it is subject to context there can be no fixed definition as to who is a public servant who is not a public servant when it goes when it goes to claim security of employment principle of a private educational institution may not be a public servant his service contract may not be enforceable except under some special provision like education acts in some of the states otherwise non enforcement of contractor service as will come his way but when it comes to prevention of corruption act he is treated as a public servant because it definition is by duty and not by terms of employment therefore the concept of public servant is undergoing wide change and the scope as to who is a public servant is ever expanding after a few years maybe you and I oblige and we are discharging the duty public duty of participating in justice delivery system therefore if sunday pc act is applied to us we should be cautious therefore maintain our points this is your friend again mr prabhakar saying that this was again a flow of thoughts and views uninterrupted thanks psr with the valuation of capital in the public sector banks are they still treated as public servants and further he says a corrupt director representing the recognized officers association is found with that in what capacity can he be prosecuted if he has he would be a public servant in so far as his acts as director of concern in the sense suppose he has abused that position to advance wealth then he can very well come under the prevention of corruption for example I can tell you see there is a definition the uh multi state which perform public function though they have earlier view was that only an aided cooperative societies director is a public servant now with the concept of public servant having expanded I don't know whether the effort can be made to bring those directors also within the ambit of the phrase public trial and unless there is an authoritative pronouncement one way or the other we cannot say but in my view perhaps with the expanding horizon of the phrase public servant and if you're able to establish that that union is rendering the public duty or she was doing a public duty and he is he has abused his office then it should be possible to bring them bring such persons under the ambit of the prevention of corruption act this is my changed view in the light of judgment in that private educational institutions case because that was something a very innovative interpretation and I think with the present approach of the judiciary towards allegations of corruption it should be possible one day to bring those also under the permission of corruption I only pray that we are not brought under that Mr. Patil says permission is a description any option to get the direction of the court can you ask the direction that sanction should be given yes in one judgment supreme court has said that that if the competent if the sanctioning authority refuses to sanction that refusal to sanction may be subjective that is the investigative agency can go and secure it to annul it but there is no reported judgment by which the superior judiciary has annuled a refusal to sanction they may at best say that if it comes to conclude that certain aspects of the matter have not been gone into by the sanctioning authority or certain certain materials were not placed before the sanctioning authority at best what can be told by a superior court is perhaps kindly have a reconsideration but even such direction I could not find in fact the court's role is not to direct the person to exercise the discretion in a particular manner process particularly when it is a discretionary thing decision making process can be gone into what can say that you have excluded this relevant material from consideration take that into account and take a fresh decision court itself cannot grant sanction is my view on this having regard to the earlier case law on this subject where any external dictate is yes is to be astute and court's dictate also is to be astute yes you have already covered but still I am taking is bank employee a public servant who is dealing with the bank's money which is a public money he is undoubtedly a public servant in fact if you go to CVC website you will find a larger number of bank officers there as in whose case a sanction has been given or sanction has been withheld out of the various categories of public servants those are whose names are available on website largest number I think are bank officers not that they are more corrupt but they are more easily punishable because they will be at the same discretion during every minute of their work this is if the competent authority in tolerable exercise of power refuses to give sanction to prosecute or register a friar against a public servant does it mean that the servant or the or the complainant or does it mean that the victim or the complainant becomes a medallist or can he have any reports under the law so he can suppose the facts of the case are stopped and especially we are able to establish that the sanction has been given on a explainer's considerations the sanction can be questioned but invariably almost almost invariably where the sanction is initiated except on ground of earlier I had refused like that where it does not require much proven to the facts the approach of this period judiciary has always been in you can rise this issue during the triumph because in one judgment supreme court said sanction of the process sanction of validity of sanction can arise and can be rise at various stages of the prosecution suppose we are saying that it was a malefied exercise of power there's a matter which would depend on evidence and evidence will be when sanctioning authority is in the witness box you have got an opportunity to establish that it is malefied or it is on explainer's considerations those who cross examine the sanctioning authorities would know that all these things are matters which can come only in the cross-examination sanctioning authority and not otherwise however this may not be possible to rise such issue issue at the threshold the it can come only as a in the course of the this is he says if a person has got falsely implicated where the sanction is required to prosecute the SHO who is falsely implicated as a person where is he says if a person is falsely accused does the sanction is sanctioned required to implicate to proceed against the SHO who has falsely implicated a person that is a we have to proceed again as the police officer for false application false implication that are what is known in criminal as malicious prosecution there the sanction would be required and we had a case here where the additional director general of Durudarshan was successful in prosecuting a police officer for false implication the last question ever sub inspector of police uses manhandle and manhandle the person while on duty where the sanction is required to prosecute that inspector uh the general view appears to be uh because it is an act done during the investigation it requires sanction that could be a easy view but where it is where beating is not assaulting is not a part of police duty the pragmatic view would be that it does not require sanction if we have evidence to show that he has really assaulted and even in that case suppose I move the court and court takes cognizance and ultimately it is set aside on the ground that sanction is not required what can happen he cannot be acquitted he can only be discharged and the trial court will be directed to return the papers to obtain sanction and then represent there is no difficulty about that because it is not a sanction required for investigation it is a sanction required for prosecution whereas in respect of sanction required for investigation like 17 capital e of the prevention of corruption and if the sanction is held to be bad during the course of trial then whole investigation has to be read up but not that will not be the case where the sanction is the sanctioning question is for prosecution the result of the investigation will remain intact only thing is to enable the magistrate to take cognizance sanction will have to be obtained and presented as a wrong sanction or non sanction or absence of sanction all those none of those will result in acquittal they can only result in discharge and the concept of double double jay party will not arise if they want to prosecute after obtaining sanction because we would not have suffered we would not have undergone a trial without a trial the public servant would have been discharged therefore it will not be a case of double jay party second prosecution is prohibited but without prosecution at the threshold if a person has been discharged for want of sanction it will not act as a bug thank you sir i will i take you from your friends this thing if the idea came seamlessly and people actually cherish it they were all continuous flow of thoughts and views and we all enjoyed and that's why we keep on asking you to give sessions on different perspectives of law and it's always a pleasure and i always keep on believing that it is only because of this COVID-19 that we could connect with people like you who are having immense knowledge and in this particular part of series to bring on this platform the best of the speakers tomorrow we have the famous speaker CA Dr Grisha Huja you'll be speaking on tax planning under the HUF and succession so do join us tomorrow at 6 30 p.m thank you everyone stay safe stay best thank you thank you very much and with your knowledge i can say you are actually a rajah of knowledge thank you