Is previous sanction required to prosecute a retired public servant where cognizance is taken after the amendment to the Prevention of Corruption Act, 1988 came into force?

Yes. Prior to the amendment there was no requirement to obtain previous sanction for prosecuting a retired Government servant, but where the final report is taken cognizance of after the amendment came into force, the amended provisions are squarely applicable. Section 19 then forbids any Court from taking cognizance of an offence punishable under Sections 7, 11, 13 or 15 except with the previous sanction of the competent authority, and Section 19(1)(b) makes the previous sanction of the State Government mandatory for a person employed in connection with the affairs of a State who is not removable from office save by or with the sanction of the State Government. A sanction order accorded by an incompetent authority renders the trial or the proceedings against the accused a nullity, and that validity can be questioned at the very inception of the proceedings or even at the appellate stage.

Prevention of Corruption Act, 1988 — s.19 — s.13(2) read with s.13(1)(e) — Code of Criminal Procedure — s.197 — Tamil Nadu State and Subordinate Services Rules — General Rule 11 — Tamil Nadu Agricultural University Act, 1971 — s.11(3)(b) — Previous sanction — Competent authority — Discharge — Prevention of Corruption Act, 1988 — s.19 — Previous sanction after the amendment — Held: Where cognizance is taken after the amendment to the Act came into force, previous sanction of the competent authority is mandatory, and the earlier position that no previous sanction was required for prosecuting a retired Government servant no longer governs. (¶16, 17) Tamil Nadu State and Subordinate Services Rules — General Rule 11 — Appointment by agreement — Sanction by the appointing authority — Held further: A person appointed under an agreement is not a member of the service in which the post is included, so the competent authority to accord sanction is the Government which appointed him to that post, and not the parent Department. (¶11, 12) Prevention of Corruption Act, 1988 — s.19 — Sanction by an incompetent authority — Proceedings a nullity — Held further: A sanction order issued by an incompetent authority without due application of mind is non est in the eye of law; it renders the proceedings a nullity, and its validity may be questioned at the very inception. (¶19, 22) Code of Criminal Procedure — s.197 — Indian Penal Code — s.109 — Want of sanction — Jurisdictional defect — Held further: The absence of sanction under Section 197 for the offence under the Indian Penal Code is a jurisdictional defect affecting maintainability; with no sufficient materials to frame charges, the accused stand discharged. Criminal Revision Case allowed. (¶23, 26, 28)

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