Whether Prior Sanction to Prosecute Public Servant is Mandatory? Matter Referred to Larger Bench


March 28, 2018

Case name: Manju Surana v. Sunil Arora & Ors.


Date of Judgement: March 27, 2018

In a petition taken up by Two-Judge Bench of the Supreme Court, the Court was confronted with the crucial issue whether prior sanction to prosecute a public servant for offences under the Prevention of Corruption Act, 1988 is a mandatory provision?

The appellant represented by Senior Counsel, Prashant Bhushan in the case primarily argued that the Apex Court’s ruling in the case of Anil Kumar v. M.K. Aiyappa[1], that no complaint could be forwarded for investigation under Section 156(3) of Code of Criminal Procedure nor could any proceedings be initiated under Section 202 of CrPC. in the absence of prior sanction by the competent authority under Section 19 of the PC Act (previous sanction necessary for prosecution)   read with Section 197 of the CrPC   was per incuriam or in conflict with the long line of earlier judgments on the question as to when the cognizance can be stated to have be taken.

The petitioner in the case stated that there is a distinction between the investigations carried out at pre-cognizance stage, which would not face the requirement of a prior sanction qua a public servant, as against a post-cognizance proceeding which needs prior sanction.

The Supreme Court in view of the arguments advanced was of the view that No doubt the process under Section 156(3) of Code of Criminal Procedure is only one of investigation. The larger question, of whether any such direction can be issued without prior sanction has been referred to a larger bench.

The complete controversy referred to aforesaid and the conundrum arising in respect of the interplay of the Prevention of Corruption Act, 1988 offences read with the CrPC is, thus, required to be settled by a larger Bench.

The case can be accessed here.

[1] (2013) 10 SCC 705