Is prior sanction needed to prosecute ex-civil servants for offences before 2018 amendment to PC Act? Delhi HC answers

The Delhi High Court on Thursday ruled that the 2018 amendment to the Prevention of Corruption Act, 1988 (PC Act) - which extends the requirement for prior sanction to prosecute former civil servants - will apply retrospectively if the court has not already taken cognisance of the offence.

A Division Bench of Justices Navin Chawla and Ravinder Dudeja said that if the Court has taken cognisance of the offence before the date on which the amendment came into effect - July 26, 2018 - there is no fresh requirement of prior sanction. 

“The relevant date for the application of the amended Section 19(1) of the 1988 Act is with effect from 26.07.2018. The Amendment Act, as far as amendment to Section 19(1) of the 1988 Act, is retrospective to the extent that the benefit thereunder would enure even where the offence is alleged to have been committed prior to its coming into force, however, it is prospective to the effect that, where cognizance of such offence already stands taken before 26.07.2018, the same shall not be reopened and there would be no fresh requirement of prior sanction in such cases. The requirement of taking sanction would be applicable only where the Court is yet to take cognizance of the offence mentioned in Section 19(1) of the Act as on 26.07.2018 and thereafter,” the Court observed. 

The Bench was answering a reference made by a special Central Bureau of Investigation (CBI) court judge concerning the interpretation of Section 19 of the Prevention of Corruption Act, 1988. The reference raised questions on the effect of the Prevention of Corruption (Amendment) Act, 2018. 

The High Court answered 3 of the 4 questions referred to it. Below is the summary of the Court’s answers to those questions:  

1. Whether under the Prevention of Corruption (Amendment) Act, 2018 (which is a Special Statute and overrides the general law), the cognizance of the offence is taken or cognizance of the offence against the offender is taken?

The High Court held that the general principle that cognizance is taken of an offence and not of the offender does not apply to Section 19(1) of the PC Act, 1988, whether before or after its 2018 amendment. 

“Accordingly, no cognizance of an offence under Sections 7, 11, 13 and 15 alleged to have been committed by a public servant can be taken except with a previous sanction granted for the prosecution of such a public servant,” the Bench said. 

2(a): What is the relevant date for application of Prevention of Corruption (Amendment) Act, 2018 in cases pending trial?

2(b): Whether the amendment to Section 19 of Prevention of Corruption Act, 1988 dated 26.07.2018 is to be read retrospectively being beneficial to the accused?

The Court answered both these questions together. It ruled that the date of application of the amendment is July 26, 2018 and that the amendment is retrospective only to the extent that its benefit (protection for former public servants or those holding a different office) applies even where the alleged offence occurred before that date. 

However, the Court added that the amendment is prospective to the effect that it cannot be used to reopen cases where a court had already taken cognisance before July 26, 2018 and no fresh sanction is needed in such matters.

3: Whether sanction as contemplated under Section 19 of the Prevention of the Corruption Act (Amendment) Act, 2018 is necessary for prosecuting a Former/ Ex Public Servant where the cognizance of the offence has already been taken by the competent court prior to 26.07.2018 i.e. the date on which the amendment came into effect?

No. 

“The requirement of taking sanction would be applicable only where the Court is yet to take cognisance of the offence mentioned in Section 19(1) of the Act as on 26.07.2018 and thereafter,” the Bench said. 

Senior Advocate Siddharth Yadav acted as amicus curiae in the case. He was assisted by Advocates Narender Lodiwal and Wasim Ashraf. 

Advocates Aditya Wadhwa and Shivani Pegatraju represented the State. 

Special Public Prosecutor (SPP) Anupam S Sharrma with Advocates Harpreet Kalsi, Prakarsh Airan, Vashisht Rao, Amisha P Dash, Abhiyant Singh and Mayank Tyagi represented the CBI. 

Senior Advocate N Hariharan as well as Advocates Sushil Gupta, Sunita Gupta, Anshika Kumari, Aditi Ranjan, Apoorv Chaudhry, Anuj Chauhan, Sweety Chauhan, Geetika Verma, Harsh Kumar, Sunil Yadav, Harsh K Sharma, Vaibhavi Sharma, Lakshay Parasher, Kashish Jain, Ujjwal Krishna, Ranjeet Singh, Sushil Gupta, Sunita Gupta, Sima Gulati, Manish Vashist, Diksha Narula, Hitendra Nahata, Sudarshan Rajan and Kashish appeared for other respondents. 

[Read Judgment]