The High Court of Delhi, in a division bench comprising Justice Navin Chawla and Justice Ravinder Dudeja, has held that the 2018 amendment to Section 19(1) of the Prevention of Corruption Act, 1988, requiring prior sanction to prosecute former public servants, operates prospectively in cases where cognizance was already taken prior to July 26, 2018. Answering a reference referred by a Special CBI Judge, the Court clarified that while the amended provision applies to offences committed prior to the amendment if cognizance is yet to be taken, pending proceedings where cognizance was already taken before July 26, 2018, cannot be reopened and require no fresh sanction.
Background of the Case
The matter came before the High Court upon a reference made under Section 395 read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) by the Special Judge (PC Act), CBI-01, Central District, Tis Hazari Courts, Delhi. The reference framed questions of law regarding the operational scope and applicability of the Prevention of Corruption (Amendment) Act, 2018, which came into effect on July 26, 2018, specifically in relation to Section 19(1) of the Prevention of Corruption Act, 1988.
To address the reference, the High Court analyzed the statutory evolution of sanction for prosecuting public servants. Historically governed by Sections 161 to 165A of the Indian Penal Code, 1860, and Section 197 Cr.P.C., the law evolved through Section 6 of the Prevention of Corruption Act, 1947, and later Section 19 of the Prevention of Corruption Act, 1988. Under the pre-amended framework, as consistently interpreted by the Supreme Court in S.A. Venkataraman v. State, R.S. Nayak v. A.R. Antulay, Parkash Singh Badal v. State of Punjab, Abhay Singh Chautala v. CBI, and L. Narayana Swamy v. State of Karnataka, prior sanction was required only if the accused was still a public servant in the same capacity on the date the court took cognizance. No sanction was required if the public servant had retired or demitted office by the date of cognizance.
However, the 2018 Amendment Act substituted clauses in Section 19(1) by adding the phrase “was at the time of commission of the alleged offence employed” and inserting an Explanation clarifying that “public servant” includes a person who has ceased to hold office or is holding a different office. This amendment extended sanction protection to former public servants as well.
Arguments of the Parties
Senior Advocate Siddharth Yadav, appearing as Amicus Curiae, submitted that cognizance is taken of an offence and not the offender under general law. However, relying on Dilawar Singh v. Parvinder Singh and State of Goa v. Babu Thomas, he noted that the Prevention of Corruption Act is a special statute where Section 19 overrides Section 190 Cr.P.C., requiring sanction qua specific offenders. Citing SHO, CBI v. B.A. Srinivasan and State of Telangana v. Managipet, he argued that applying the amendment retrospectively would create operational anomalies in ongoing trials.
Senior Counsel N. Hariharan submitted that the 2018 amendment was brought to cure an anomaly and protect former public servants from vexatious prosecution. Placing reliance on Shyam Sunder v. Ram Kumar, NAFED v. Union of India, Podar Cement, Allied Motors, Zile Singh v. State of Haryana, and SBI v. V. Ramakrishnan, he contended that the amendment and its Explanation are declaratory and clarificatory in nature, intended to correct judicial interpretations, and must therefore be given retrospective operation to cover cases where cognizance had already been taken.
Counsel Anuj Chauhan argued that the Legislature intentionally used the word “substitution” in amending Section 19(1). Citing Government of India v. Indian Tobacco Association and Rattan Lal v. State of Punjab, he submitted that substitution amends law from its inception and beneficial provisions conferring protection to accused persons must operate retrospectively.
Special Public Prosecutor Anupam S. Sharrma, appearing for the CBI, opposed retrospective application to concluded cognizance orders. He highlighted that Section 1(2) of the Amendment Act explicitly specified that it would come into force on the notified date (July 26, 2018), relying on Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar. Citing High Court decisions in V.D. Rajagopal v. State of Telangana and Katti Nagaseshanna v. State of A.P., alongside Supreme Court precedents in Nani Gopal Mitra v. State of Bihar, Hitendra Vishnu Thakur v. State of Maharashtra, and CIT v. Vatika Township Pvt. Ltd., he argued that statutes creating new obligations or disabilities on the prosecution must be construed as prospective.
Court’s Analysis
The High Court analyzed the interplay between Section 19(1) of the PC Act and general criminal procedure. Addressing whether cognizance is taken of the offence or the offender under the PC Act, the Court observed that Section 19(1) acts as a specific bar. Citing the Supreme Court’s ruling in Dilawar Singh, the Court noted:
“The Prevention of Corruption Act is a special statute and as the preamble shows, this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions.”
Consequently, the Court held:
“Dilawar Singh (supra) clearly holds that the general law that cognizance of an offence is taken and not of the offender, is not applicable to Section 19(1) of the 1988 Act, whether pre or post its amendment. Accordingly, no cognizance of an offence under Sections 7, 11, 13 and 15 alleged to have been committed by a public servant can be taken except with a previous sanction granted for the prosecution of such a public servant.”
Examining the temporal application of the 2018 Amendment Act, the Bench held that the pre-amended position was a conscious legislative choice, not an omission. Refusing to classify the amendment as a purely retrospective declaratory statute, the Bench observed:
“The Explanation has been added only to remove all doubts for the future and not to undo the past.”
The Court further emphasized that literal statutory interpretation must apply:
“A literal interpretation of the amended Section 19(1) of the 1988 Act does not make it retrospective so as to reopen the cases where cognizance already stands taken by the Court.”
While analyzing precedents including Keshavlal Jethalal Shah v. Mohanlal Bhagwandas and Gottumukkala Venkata Krishamraju v. Union of India, the Court reasoned that inserting a requirement for sanction qua retired officers creates a new duty for the prosecution, making its application prospective regarding past cognizance orders.
Decision of the Court
Summing up its findings, the High Court answered the reference by ruling:
“The relevant date for the application of the amended Section 19(1) of the 1988 Act is with effect from 26.07.2018. The Amendment Act, as far as amendment to Section 19(1) of the 1988 Act, is retrospective to the extent that the benefit thereunder would enure even where the offence is alleged to have been committed prior to its coming into force, however, it is prospective to the effect that, where cognizance of such offence already stands taken before 26.07.2018, the same shall not be reopened and there would be no fresh requirement of prior sanction in such cases. The requirement of taking sanction would be applicable only where the Court is yet to take cognizance of the offence mentioned in Section 19(1) of the Act as on 26.07.2018 and thereafter.”
The High Court refrained from answering the general question on the vires of the 2018 Amendment Act for lack of specificity and directed the case file to be transmitted back to the Special Judge for proceedings on September 10, 2026.
Case Title: COURT ON ITS OWN MOTION v. STATE
Case No.: CRL.REF. 1/2019
Bench: Justice Navin Chawla, Justice Ravinder Dudeja
Date: 06.08.2026
