"Whether Prosecution Sanction Required Even If Accused Was Not Holding The Office At The Time Of Taking Cognizance": Supreme Court Issues Notice In HD Kumaraswamy's Plea

The Supreme court has issued notice in a Special Leave Petition filed by HD Kumaraswamy limited to the question as to whether without sanction the Special Judge could have taken cognizance of a complaint under Prevention of Corruption Act.

Challenging the Karnataka High Court judgment which dismissed his petition filed under Section 482 of the Code of Criminal Procedure, the JD (S) Leader had approached the Apex Court.

Before the bench comprising Justices Ashok Bhushan and MR Shah, Senior Advocate Ranjit Kumar, who appeared for Kumaraswamy, contended that, in view of the amendment made in Section 19(1)(b) of the Prevention of Corruption Act in 2018, a sanction was required even though the petitioner was not holding the office at the time when the cognizance was taken.

In this case, one M.S.Mahadeva Swamy filed a private complaint before the Special Judge for Prevention of Corruption Act, at Bangalore City seeking prosecution of HD Kumaraswamy and 18 others for the alleged offences punishable under sections 120-B r/w. 406, 420, 463, 465, 468, 471 of IPC, sections 13(1)(c), 13(1)(d), 13(1)(e) read with 13(2) of Prevention of Corruption Act and under sections 3 and 4 of the Karnataka Land (Restriction of Transfer) Act read with 34 of IPC. Against the order of the Special Court taking cognizance, Kumaraswamy approached the High Court.

One of the issue considered by the High Court was whether the initiation of criminal action against the petitioner is bad in law for want of prior sanction under section 197 Cr.P.C. and section 19 of Prevention of Corruption Act? Referring to an earlier judgment, the High Court observed that sanction under section 197 Cr.P.C. and section 19 of Prevention of Corruption Act is not necessary.

As per the amended Section 19, prosecution sanction is insisted even in the case of a retired public servant or a public servant who has ceased to occupy the post which he held while committing the offence but instead is occupying some other post.  

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