Allahabad HC: No Sanction Needed To Prosecute Public Servant If Constitutional Court Directs CBI to Investigate Case

Sakina Tashrifwala

Published on: 01 December 2022 at 20:11 IST

According to the Allahabad High Court, no prior sanction under Section 19 Prevention of Corruption Act would be necessary for prosecuting such a public worker when a Constitutional Court deputizes the CBI to conduct an inquiry in a matter and a public servant emerges as an accused for committing such an offence.

In other words, the bench of Justice Dinesh Kumar Singh observed that there is no need to obtain permission under Section 19 of the PC Act from the relevant authority for prosecuting a government or public servant if the CBI has investigated a matter on the direction of the High Court or Supreme Court and has filed a charge sheet against them (serving or retired).

“If the sanction for prosecution of a public servant is mandated in cases where the investigation of the crime has been turned over to the CBI on the Constitutional Court’s order, it may be a fruitless exercise because a State Government that has withdrawn its consent under Section 6 of the DSPE Act may not accord sanction for prosecution of a public servant”

The bench made this observation in response to a request for quashing made by retired government employee Dr. Syed Fareed Haider Rizvi. He asked the court to overturn the trial court’s decision to take cognizance of the charge sheet the CBI had filed against him in an MGNREGA Scam case and issue non-bailable arrest warrants for him.

In essence, the CBI initiated a normal case in response to an Allahabad High Court ruling from 2014 regarding serious irregularities, widespread fraud, and misuse of public funds in connection with the MGNREGA Scheme during the years 2007–2008 and 2008–2009.

The CBI charged the accused/applicant, who was serving as the district development officer in Balrampur at the time, with causing the government to suffer a loss of Rs. 9,24,159 and a commensurate gain for himself.

The accused applicant withdrew from service after reaching the age of superannuation, and the CBI submitted its charge sheet on November 15, 2018. The trial Court issued a non-bailable arrest warrant against him after taking cognizance of the charge sheet upon its filing. The accused came to the HC and protested that very order.

The defense lawyer for the accused argued that because no punishment had been meted out for prosecuting him in this case, the procedures under appeal were subject to being overturned.

The Court made the initial observation that the CBI can investigate an offence either with the State Government’s permission (as required by Section 6 of the Delhi Special Police Establishment Act or in response to a request from Constitutional Courts because the HC or SC’s authority is not constrained by the DSPE Act’s statutory limitations.

Further, the Court noted that a number of States had recently withdrawn their general consent under Section 6 of the DSPE Act for the CBI to investigate an offence; however, it added that despite such withdrawal of consent, the Constitutional Courts could still assign the investigation of a case in those States if they believed the State Police’s ability to conduct an impartial and fair investigation had been called into question.

In light of this, the Court noted that it is possible for a Constitutional Court to order the CBI to look into an offence in a state that has withdrawn its general consent; however, if the name of a public employee turns up as an accused, the State may refuse to grant sanction under Section 19 of the PC Act, making the effort to obtain sanction from the state government futile.

Therefore, the Court continued to hold that no prior sanction under Section 19 PC Act would be required for prosecuting such a public servant in cases where the investigation of an offence has been given to the CBI in accordance with the order passed by the Constitutional Court and the role of a public servant appears as an accused for committing such an offence.

As a result, the plea was rejected, and the applicant was given four days to turn himself in and submit a conventional bail application.

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