Can’t prosecute public servant for conspiracy when sanction denied for main offence: HC

The Punjab and Haryana High Court has held that a public servant cannot be prosecuted solely for criminal conspiracy if sanction to prosecute him for main offence under the Prevention of Corruption Act (PC Act) has been denied.

The ruling by Justice Manjari Nehru Kaul came in a case where a public servant was sought to be proceeded against for criminal conspiracy, even though sanction for prosecution under the PC Act had been expressly declined by the competent authority and the denial of sanction was not even been challenged

The matter was placed before Justice Kaul after the officer sought the quashing/setting aside of cognizance and summoning order dated February 13 passed by Panchkula Special Judge (CBI), vide which he was summoned for the offence of criminal conspiracy under Section 120-B of IPC.

The Bench was told that the competent authority had granted the sanction against the other accused-officer. But it was expressly denied in the petitioner’s case through a communication dated January 11, 2024.  The petitioner was represented before the court by senior advocate Bipan Ghai with counsel Nikhil Ghai and Pragyat Bhardwaj.

Allowing a petition filed by an officer, Justice Kaul made it clear that “what cannot be done directly cannot be done indirectly.” The court asserted that permitting prosecution under Section 120-B IPC for conspiracy to commit an offence under the PC Act — despite the denial of sanction — would “effectively render the provision of Section 19 of the PC Act (on previous sanction of the appropriate government) nugatory."

Justice Kaul asserted such an approach would circumvent the legislative safeguards designed to protect public servants by enabling “colourable prosecution under Section 120-B” after bypassing the procedural requirement of sanction.

Justice Kaul took a strong exception to the attempt by CBI to proceed against the officer under Section 120-B alone. “Despite the statutory embargo under Section 19 of the PC Act, the CBI now seeks to prosecute the petitioner solely for criminal conspiracy under Section 120-B IPC…. In essence, the object of the alleged conspiracy is an offence for which prosecution stands barred due to the express denial of sanction”.

Emphasising that the protection under Section 19 was substantive and not a mere procedural formality, the court observed, “The statutory protection is not a procedural technicality but a substantive safeguard conferred upon public servants. Once the competent authority, after due application of mind to the material submitted by the investigating agency, declines to grant sanction, the embargo under Section 19(1) becomes operative and bars the court from taking cognizance of the offence.”

Further strengthening the shield against unauthorised prosecution, Justice Kaul remarked: “With sanction expressly refused by the competent authority, to which no challenge has been made by the prosecuting agency, any attempt to prosecute the petitioner for conspiracy alone—when the object of that conspiracy is itself legally non-prosecutable—amounts to a colourable exercise of power. It constitutes a clear attempt to achieve indirectly what the law prohibits directly, thereby undermining the statutory mandate and rendering the protection under Section 19 illusory.”

Haryana Tribune