27. We may also observe that grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction.
This blog has previously commented upon prior sanction or impunity provisions here, here, here and here. Readers may know that although the special impunity clause in s 19 of the PCA applies only to corruption cases, there is a general impunity clause under s 197 of the Criminal Procedure Act, which requires prior governmental sanction for the prosecution of public servants for offences under the Indian Penal Code (for the useful background, see this PRS post). Of course, s 197 was not at issue before the SC, and there was no reason why the court should have extended the 3 month time limit to s. 197 of hte CrPC as well. However, it is unfortunate that in his concurring opinion, Justice Ganguly expressly distinguishes s. 19 of the PCA and s 197 of the CrPC by endorsing an earlier SC authority, which held:
3. The sanction contemplated in Section 197 of the Code concerns a public servant who “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”, whereas the offences contemplated in the PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code.
To be fair, Justice Ganguly is pointing out the distinction to repel a different argument offered by the government. But it can surely be used to argue that the 3 month time limit should apply only to corruption cases under section 19 of the PCA, not other crimes under the IPC. Thus, a police officer who is accused of murder in a fake encounter, for example, will continue to enjoy the impunity offered by s 197. Corruption, it seems, is the only crime worth fighting against these days.
By limiting its ruling to only PCA, the court has undoubtedly missed a glorious opportunity to fetter the scope of the impunity provision under CrPC.
However, it would be interesting to watch the Court's stance on the grant of sanction under Section 6 of Armed Forces Special Powers Act in the ongoing matter of Pathribal killings. An affirmation on part of the Court of Union Government's obligation to take a reasonable, bona fide and a time-bound decision could then be applied to CrPC as well.
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