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2016 (7) TMI 1247 - SC - Indian LawsProsecuting a Government servant - need for sanction under Section 199 of the Code of Criminal Procedure for the offences under Indian Penal Code and under Section 197 of the Code of Criminal Procedure - Held that:- For the offences under the Corruption Act is under Section 197 of the ‘Code’ and/or sanction mandated under a special statute (as postulated under Section 19 of the Prevention of Corruption Act) would be a necessary pre-requisite, before a Court of competent jurisdiction, takes cognizance of an offence (whether under the Indian Penal Code, or under the concerned special statutory enactment). The procedure for obtaining sanction would be governed by the provisions of the ‘Code’ and/or as mandated under the special enactment. The words engaged in Section 197 of the ‘Code’ are, “...no court shall take cognizance of such offence except with previous sanction...”. Likewise sub-section (1) of Section 19 of the Prevention of Corruption Act provides, “No Court shall take cognizance.. except with the previous sanction...”. The mandate is clear and unambiguous, that a Court “shall not” take cognizance without sanction. The same needs no further elaboration. Therefore, a Court just cannot take cognizance, without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention advanced at the hands of learned counsel for the respondents, that where cognizance is taken under Section 319 of the ‘Code’, sanction either under Section 197 of the ‘Code’ (or under the concerned special enactment) is not a mandatory pre-requisite. According to learned counsel representing respondent no. 2, the position concluded above, would give the impression, that the determination rendered by a Court under Section 319 of the ‘Code’, is subservient to the decision of the competent authority under Section 197. No, not at all. The grant of sanction under Section 197, can be assailed by the accused by taking recourse to judicial review. Likewise, the order declining sanction, can similarly be assailed by the complainant or the prosecution. For the reasons recorded hereinabove, and in view of the conclusions recorded by us in paragraph 17, we are of the view that there is no merit in the instant appeal and the same deserves to be dismissed.
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