Sanction acts as a protective measure, shielding public officials from unfair or vengeful prosecution for their actions taken while performing their duties. This mechanism ensures that decisions to initiate prosecution are made thoughtfully and subjected to rigorous review by the appropriate authorities, which may include state or central government officials, governors, presidents, or other appointing entities.

By establishing this process, it aims to maintain the integrity of public service and uphold justice, allowing officials to carry out their responsibilities without the fear of arbitrary legal repercussions. Ultimately, sanction fosters accountability while protecting the interests of public servants.

The necessity for sanction from the appointing authority to prosecute a retired government employee hinges on the specifics of the alleged offence and the relevant legal statutes. According to Section 19 of the Prevention of Corruption Act, 1988, and Section 197 of the Code of Criminal Procedure (CrPC), 1973 (now updated to Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023-BNSS), obtaining prior sanction from the appropriate authority is mandatory for prosecuting a public servant for actions undertaken in the course of their official duties. This provision aims to protect public officials from frivolous or malicious prosecutions for actions taken in good faith while performing their responsibilities.

Once an employee retires, they are no longer classified as a "public servant" under the relevant service laws. As a result, the requirement for prior sanction under Section 19 of the Prevention of Corruption Act and Section 197 of the CrPC (now Section 218 of the BNSS) typically does not apply to them after retirement.

Investigating agencies can file a charge sheet against a retired government employee without prior sanction, as they no longer hold the status of "public servant" under the law. However, the prosecution must establish that the alleged offence justifies criminal charges. Courts will evaluate whether the actions in question were connected to the discharge of official duties or constituted personal misconduct outside the scope of legal protection. If procedural requirements are satisfied, the prosecution can proceed without prior sanction.

If the alleged offence is not directly related to the performance of official responsibilities but pertains to corruption, fraud, or similar criminal behavior, sanctions may not be required for current officials, much less for those who are retired. In some instances, governed by particular state laws or service regulations, there may be extra procedural obligations, but these typically do not take precedence over the general principles set forth by higher courts.

In the case of R. Balakrishna Pillai v. State of Kerala (1996), the Supreme Court ruled that prior approval is not required to prosecute a public servant for offences committed during their time in office after they have retired. This decision clarified that the legal protections granted to serving officials do not extend once their term has ended.

In the case of State of Kerala v. Padmanabhan Nair (1999), the Court further specified that the protections outlined in Section 197 of the Criminal Procedure Code, 1973 (CrPC)- now Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023-BNSS)- are applicable only to public servants who are currently in office. Retired officials are not entitled to these protections, thereby promoting accountability after their retirement.

Likewise, in the case of Sankaran Moitra v. Sadhna Das (2006), the Supreme Court reaffirmed that no prior sanction is needed if the accused is not in office at the time the offence is taken cognizance of by the court or the offence is not related to his official duties, underscoring the time-sensitive nature of the legal protections available to public servants.

In the case of State of Kerala v. Padmanabhan Nair, 5 SCC 690 (Supreme Court, KT Thomas, MB Shah JJ., 14 July 1999, Criminal Appeal No. 632 of 1999), the learned single judge rejected the respondent's arguments, noting that Sections 406 and 409 of the IPC are related offences, both involving criminal breach of trust. It was determined that when a public servant commits an offence under Section 406 (now Section 316 of the BNS), it elevates to Section 409 (now Section 316 of the BNS).

The court clarified that actions constituting criminal conspiracy under Section 120B IPC (now Section 61(2) of the BNS), in conjunction with Section 409, do not fall within a public servant's official duties. Consequently, the High Court's judgment was overturned, allowing the trial to proceed. Additionally, it was held that an accused charged under the Prevention of Corruption Act cannot claim immunity from prosecution due to a lack of sanction, even if they are no longer a public servant at the time the court takes cognizance of the offences.

In the 2023 Bharatiya Nyaya Sanhita (BNS), the provisions regarding criminal breach of trust found in Sections 406 to 409 of the Indian Penal Code (IPC) have been consolidated into a single provision in Section 316.

In the case of A. Sreenivasa Reddy v. Rakesh Sharma & Anr. (Criminal Appeal No. 2339 of 2023), the Supreme Court clarified that under Section 19 of the Prevention of Corruption Act, 1988, prior sanction is required to prosecute serving public servants for corruption, but this requirement lapses upon their retirement. For offences under the Indian Penal Code, however, Section 197 of the Criminal Procedure Code, 1973 mandates sanction if the alleged act relates to the performance of official duties.

The ruling highlights that an act that constitutes a punishable offence cannot be considered an official duty. Nevertheless, if the act, though excessive, has a reasonable connection to the public servant's official responsibilities, the protections provided by Section 197 IPC (now Section 218 of the BNSS) remain applicable. The "safe and sure test" is used to determine whether failing to perform the act would lead to allegations of negligence in duty.

This distinction aims to prevent the misuse of the concept of official duties as a defence for unlawful actions while protecting public servants from unwarranted harassment for legitimate administrative decisions. The judgment also raises questions about cases where sanctions under the Prevention of Corruption Act are denied due to perceived triviality, suggesting that such denials do not automatically invalidate IPC (now BNS) charges, which depend on specific facts and available evidence.

The Court intentionally avoids a definitive stance on this issue, leaving it open for future examination. This choice underscores the need for careful judicial review at each stage of the process. Overall, this judgment stresses the importance of maintaining a balance between holding public servants accountable and protecting them, especially in situations where procedural irregularities are alleged alongside corruption claims.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565