The appeal before the Supreme Court was heard and the court held that the point of law with reference to public servants who had retired was clear that sanction to prosecute the public servant for the offences under the Prevention Of Corruption Act is not required but the sanction is required to prosecute for offences under Indian Penal Code.
In the present case the public servants namely Sikandar Singh and Labh Singh challenged the order dated 07.06.2005 of the Special Judge which framed charges under sections 218/409/465/467/120B IPC and under section 13(1)(C) read with section 13(1)(2) of the Prevention of Corruption Act, 1988. Theyfiled Criminal Revision No.1743 of 2005 in the High Court of Punjab and Haryana.
The High Court took the view that the department had refused sanction to prosecute public servants and yet a challan was presented on the premise that no sanction was required after retirement of those public servants. The High Court observed:
“These petitioners and others have been charged for offence under the Prevention of Corruption Act and also for offences under the Indian Penal Code. Section 197 Cr.P.C. bars cognizance by the Court of an offence by a public servant even after retirement. Even otherwise, it is discriminatory for the petitioners when other co-accused who are still in service, cannot be prosecuted for want of sanction and present petitioners are being prosecuted only because they have retired.”
The High Court allowed the petition and set aside the order dated 07.06.2005 passed by the Special Judge, Patiala. Against this order the State of Punjab filed an SLP in the Supreme Court of India. The stand by them is:
“It is humbly submitted that order passed by Hon’ble High Court is erroneous in law as u/s 197 Cr.P.C. respondents can be convicted and no previous sanction is required as the respondents are no longer in service and have been retired in the years 1999/2000. Secondly, there was no discrimination as the other persons were in service and since respondents have been retired no previous sanction is required. It was also submitted that other persons will also be prosecuted as and when they are retired.”
The Supreme Court said that it did not approve of the stand of the prosecution i.e. it cannot keep waiting till a public servant retires and then choose to file charge-sheet against him after his retirement, thereby setting at naught the protection available to him under Section 19 of the POC Act.
The appeal was partly allowed as the point on law is clear that sanction to prosecute the public servant for the offences under the POC Act is not required if the public servant had already retired on the date of cognizance by the court. However the sanction is required for offences under IPC. Unlike section 19 of the POC Act, the protection under section 197 of Cr.P.C. is available to the concerned public servant even after retirement.
The Court held that the order under appeal passed by the High Court is correct insofar as charges under IPC are concerned but must be set aside as regards charge under POC Act is concerned.