(Sept. 18, 2009) It was reported on September 14, 2009, that the Supreme Court of India, setting aside a judgment of the Goa Bench of the Bombay High Court, ruled that nocentral or stategovernment sanction is needed for prosecution of offenses of abetment committed by public servants.
Acceptance or an attempt to accept gratification by a public servant for doing or forbearing to do any official act in the exercise of an official function is an offense under the Prevention of Corruption Act, 1988 (PC Act) (sects. 7, 9, 10, 11, 13, & 15). Under section 19 of the PC Act, however, a court may not take cognizance of such offenses allegedly committed by a public servant without the prior sanction of the central or a state government, as the case may be. Section 12 of the PC Act provides that prosecution of a public servant for abetting the offense is an exception to the section 19 rule and does not require government sanction before prosecution. (20 ENCYCLOPEDIA OF IMPORTANT CENTRAL ACTS AND RULES (Universal law Publishing Co., 2005).)
In the case at hand, at first a special judge of North Goa ruled that government sanction was required for prosecution of an abatement offense. The Goa Bench of the Bombay High Court, agreeing with the North Goa judge's special order discharging the defendant. The Central Bureau of Investigation (CBI) appealed against that decision, arguing that section 19 of the Act specifically excludes section 12 of the Act for purposes of prosecution of an offender for abetment and that the High Court was in error in considering that the omission of the provision in section 19 was erroneous.
The Supreme Court of India accepted the appeal of the CBI and set aside the order of the Bombay High Court, observing that “the language employed in Section 19 of the PC Act is couched in mandatory form directing the court not take cognisance of an offence punishable under Sections 7, 10, 11, 13 and 15 only, alleged to have been committed by a public servant, except with the previous sanction of the government.” The Supreme Court stated that the Bombay High Court had sought, by the process of interpretation, to rewrite the provision of section 19 and further observed that, “the court cannot, on an assumption that there is a defect or an omission in the words used by the Legislature, correct or make up assumed deficiency, when the words are clear and unambiguous.” (No Sanction Needed for Prosecution: SC, THE HINDU, Sept. 14, 2009, available at http://www.hindu.com/2009/09/14/stories/2009091458191000.htm.)