Introduction
A Division Bench of the Delhi High Court comprising Justice Navin Chawla and Justice Ravinder Dudeja has delivered an important judgment clarifying the law on the requirement of prior sanction for prosecuting public servants under Section 19 of the Prevention of Corruption Act, 1988, as amended by the Prevention of Corruption (Amendment) Act, 2018. The judgment answers a reference made by the Special Judge (PC Act), CBI-01, Central District, Tis Hazari Courts, Delhi, on four questions of law concerning the scope and retrospective operation of the 2018 amendment.
Background of the Reference
The reference arose under Section 395 read with Section 482 of the Code of Criminal Procedure, 1973. The Special Judge had framed four questions for the High Court’s consideration, essentially asking:
- Whether, under the Prevention of Corruption (Amendment) Act, 2018, cognizance is taken of the offence itself, or of the offence as against a specific offender.
- What the relevant date is for applying the 2018 amendment in cases pending trial, and whether the amendment to Section 19 should be read retrospectively as being beneficial to the accused.
- Whether sanction under the amended Section 19 is necessary to prosecute a former or ex-public servant where cognizance of the offence was already taken by the competent court before 26.07.2018, the date the amendment came into force.
- Any other issue relating to the vires of the 2018 amendment.
The Court proceeded to answer these questions without going into the specific facts of the underlying case, leaving those to be applied by the Special Judge once the legal position was settled.
Evolution of the Law on Sanction
The judgment traces the law from the Prevention of Corruption Act, 1947 through to the 1988 Act and its 2018 amendment. Under Section 6 of the 1947 Act, and later Section 19 of the 1988 Act (prior to 2018), courts had consistently held — starting with S.A. Venkataraman v. State (1957), through R.S. Nayak v. A.R. Antulay (1984), Parkash Singh Badal v. State of Punjab (2007), Abhay Singh Chautala v. CBI (2011), and L. Narayana Swamy v. State of Karnataka (2016) — that prior sanction was required only if the accused was a public servant at the time of the offence and continued to hold that office (or a comparable one) at the time cognizance was taken. If the accused had ceased to be a public servant, or held an entirely different office, no sanction was needed.
The 2018 Amendment Act changed this by inserting the words “or as the case may be, was at the time of commission of the alleged offence employed” into Section 19(1)(a) and (b), and adding an Explanation clarifying that “public servant” includes a person who has ceased to hold the office in question, or who now holds a different office. The effect was to extend the protection of prior sanction to former public servants and to those holding a different post at the time of cognizance — reversing the position taken in the earlier line of Supreme Court judgments.
The Four Questions Answered
On Question 1 (whether cognizance is of the offence or of the offender): Relying on Dilawar Singh v. Parvinder Singh @ Iqbal Singh, the Court held that the general principle that cognizance is taken of an offence and not of the offender does not apply to Section 19(1) of the 1988 Act, whether before or after the 2018 amendment. The Prevention of Corruption Act is a special statute, and the maxim generalia specialibus non derogant applies — Section 19 has an overriding effect over the general provisions of the Cr.P.C. No cognizance of an offence under Sections 7, 11, 13, and 15 committed by a public servant can be taken without previous sanction for the prosecution of that specific public servant.
On Questions 2 and 3 (the relevant date and retrospective effect): This was the heart of the reference, and the Court heard extensive submissions on both sides. Senior Advocate Mr. N. Hariharan argued that the amendment was declaratory and curative in nature, intended to correct earlier judicial interpretation, and should therefore apply retrospectively to reopen even cases where cognizance had already been taken. The CBI, represented by the SPP, argued the opposite — that the amendment created new obligations and disabilities and could only operate prospectively.
The Division Bench sided with the CBI’s position, though with an important nuance. Drawing on Hitendra Vishnu Thakur, Vatika Township, Shyam Sunder, and Zile Singh, among other Supreme Court authorities, the Court held that:
- The amendment does not qualify as a purely “declaratory” statute, because the pre-amendment Section 19(1) was clear and unambiguous — it was a conscious legislative choice, not an omission needing correction.
- The Amendment Act came into force from 26.07.2018 by notification, without any express or implied indication of retrospective application to reopen concluded cognizance.
- The relevant date for the purposes of Section 19(1) is the date on which the Court takes cognizance of the offence — not the date of the alleged offence itself.
The result is a hybrid position: the amended Section 19(1) is retrospective in the sense that its benefit extends even to offences alleged to have been committed before 26.07.2018, but it is prospective in the sense that it does not reopen cases where cognizance was already taken before that date. In other words, sanction is required only where the Court is yet to take cognizance of the offence as on or after 26.07.2018.
On Question 4: The Court declined to answer this question, finding it too general and not specific enough to merit a response.
Key Takeaway
This judgment provides much-needed clarity for pending prosecutions under the Prevention of Corruption Act. For practitioners, the operative test going forward is straightforward: check whether cognizance had already been taken before 26.07.2018. If it had, the 2018 amendment’s expanded sanction requirement does not apply and the matter proceeds as before. If cognizance is yet to be taken, the amended Section 19(1) — including its protection for former public servants and those in a different capacity — governs, and prior sanction must be obtained before the prosecution can proceed.
Citation: Court on its Own Motion v. State, CRL.REF. 1/2019, Delhi High Court, judgment dated 06.08.2026 (Navin Chawla & Ravinder Dudeja, JJ.)
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