Sanction Shield: BMC Refusal In Oxygen Scam Underscores Hurdles In Prosecuting Corrupt Officials
If investigating a fraud involving a government official was not enough a herculean task, the probing agencies have to clear another task of obtaining sanction to prosecute such officials involved in such crimes, from the respective department.
As per section 218 of Bharatiya Nagarik Suraksha Sanhita (BNSS) and section 197 of the Code of Criminal Procedure (CrPC), it is mandatory for the investigating agency to obtain sanction from the respective department to prosecute the officers.
Economic Offences Wing’s (EOW) recently faced a bigger hurdle, wherein the Brihanmumbai Municipal Corporation (BMC) Commissioner has turned down the request of EOW to prosecute civic officials allegedly involved in the oxygen cylinder procurement scam during the COVID-19 pandemic observing insufficient evidence. The stand taken by BMC was also upheld by the Bombay high court.
The stand taken by the BMC however, has raised a debate, why protect the officers involved in such fraud cases and should it not be left on the judiciary?
Senior retired IPS officer, Praveen Dixit who retired as DGP, Maharashtra and also served as DG, Anti Corruption Bureau, said, “the set rule is that the competent authority is not to work as the judicial officers. He is not supposed to examine the judicial evidence, or merits of the case.” “The sanctioning authority should only see whether there are administrative lapses of if there is a prima facie case against a public servant of indulging in corruption either by way of demand or by accepting the corrupt practice,” Dixit said adding that if found prima facie involvement of the officer, the sanction must be given.
Noted criminal lawyer Vaibhav Baghade, said, “Legally, the department is entitled to refuse to give sanction if they are of the opinion that their officer is roped in malicious cases. The sanction is always at the pivotal position which needs to be granted for the cases under Prevention of Corruption act, to have successful prosecution, but denial is also an equal right of the authority.”
In the cases where the accused has been caught red handed, the authority should give sanction without much delay, however, the rules in cases of frauds differ slightly. “As far as the cases under Prevention of Corruption is concern the rules are very strict, if there is no prosecution sanction there is no case,” Baghade said adding that in the cases of offences registered under, Indian Penal Code or the new code - Bharatiya Nyay Sanhita (BNS), the rules differ slightly.
“Multiple times, the courts have taken the view that whatever incident has taken place, if it was not part of the official duty, the prosecution sanction is not required. The officer is thus not protected, so the case can proceed without sanction,” Baghade said. In such cases, the prosecution is required to prove that the act done was not part of his duty.
The area is a bit gray, said Ujwal Nikam, noted lawyer who has acted as special public prosecutor in several cases. “If I am a public servant, and I have committed a crime while discharging my duty, the prosecution sanction is a must. However, if the crime is beyond my duty, the sanction is not needed,” Nikam said, adding that the investigating officer here has to come up with evidence that the act done by the suspected public servant was beyond his official duty.
A retired senior police official on the condition of anonymity said, “Economic offences and corruption are not considered part of the official duties of administrative officers or government employees. Therefore, investigating agencies do not require prior permission from the head of the concerned department to initiate an inquiry or investigation against such officers or employees in these cases. Since corruption or financial misconduct does not fall under their official responsibilities, departmental approval is not mandatory.”
“However, In a specific case, if administrative heads still deny permission despite a request, the investigating officer can present the necessary evidence before the court and seek permission to proceed with the inquiry against the concerned government officials or employees, A retired senior police officer on the condition of anonymity,” the officer said.
355 cases - Approval for prosecution sanction is pending either with the state government or with the competent authorities
305 cases - Are pending for more than three months.
80 cases- Police department
58 cases - Rural Development Department
47 cases - Revenue Department
45 cases - Urban Development Department
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