The Punjab & Haryana High Court has held that a Public Officer can't be prosecuted under Section 120-B IPC for offence of conspiracy if sanction is not granted for substantiative offence under Section 19 of the Prevention of Corruption Act.

The Court was considering a Petition filed under Section 528 of the BNSS, 2023 seeking quashing/setting aside of order of cognizance as well as summoning order passed in an FIR registered under Section 7 of the Prevention of Corruption Act and Section 120-B of the IPC.

The single bench of Justice Manjari Nehru Kaul observed, "In view of the foregoing analysis, this Court is of the considered view that a public servant, in respect of whom sanction to prosecute has not been granted under Section 19 of the PC Act, and who is, therefore, not charged with any substantive offence under the said Act, cannot be proceeded against solely under Section 120-B of the IPC, when the alleged object of the conspiracy is the commission of offences under the PC Act."

The Petitioner was represented by Senior Advocate Bipan Ghai while the Respondent was represented by Advocate Ravi Kamal Gupta.

Facts of the Case

Senior Counsel for the Petitioner contended that by the impugned order hereby cognizance was taken and summoning orders were issued against the Petitioner, suffers from a fundamental legal infirmity. It was submitted that the Trial Court erred in taking cognizance of the case without prior sanction under Section 19 of PC Act, which is a mandatory precondition for prosecuting a public servant for offences under the said Act. It was further submitted that cognizance was taken against the Petitioner solely under Section 120-B of the IPC, in the absence of any substantive offence under the Indian Penal Code being attributed to him. It was asserted that this amounts to a circumvention of the statutory bar imposed by Section 19 of the PC Act.

It was urged that once the competent authority has declined to grant sanction, the Trial Court could not have overridden that decision and in the absence of sanction, no cognizance could have been lawfully taken under Section 7 of the PC Act.

Reasoning By Court

The Court at the outset pointed out that the question for consideration is as to whether a public servant—against whom sanction for prosecution under the Prevention of Corruption Act, 1988 has been expressly declined by the competent authority, where the denial of sanction has not even been challenged by the prosecuting agency and who was not charged with any independent or substantive offence under the Indian Penal Code—can nonetheless be prosecuted solely for criminal conspiracy under Section 120-B IPC, when the sole object of that conspiracy was the commission of an offence under the PC Act.

"Despite the statutory embargo under Section 19 of the PC Act, the CBI now seeks to prosecute the petitioner solely for criminal conspiracy under Section 120-B IPC. As admitted by the learned standing counsel for the CBI, the alleged conspiracy pertains exclusively to the purported demand for illegal gratification—an offence that squarely falls within the ambit of Section 7 of the PC Act. In essence, the object of the alleged conspiracy is an offence for which prosecution stands barred due to the express denial of sanction," the Court observed.

It noted that it is a settled principle of law that while conspiracy constitutes an independent offence under the IPC, it cannot be assessed in isolation from its object.

"The viability of a conspiracy charge is inextricably tied to the lawfulness of the act sought to be achieved. Where the object of the alleged conspiracy is an offence for which the law prohibits prosecution—such as under the PC Act in the absence of valid sanction—the ancillary charge of conspiracy cannot independently survive........It needs to be reiterated that the statutory protection under Section 19 of the PC Act is not a procedural technicality but a substantive safeguard conferred upon public servants. Once the competent authority, after due application of mind to the material submitted by the investigating agency, declines to grant sanction, the embargo under Section 19(1) becomes operative and bars the court from taking cognizance of the offence," the Court held.

Noting that the foundation of the alleged conspiracy rests entirely on an offence under the PC Act and with sanction expressly refused by the competent authority, to which no challenge has been made by the prosecuting agency, the Court stressed that any attempt to prosecute the Petitioner for conspiracy alone—when the object of that conspiracy is itself legally non-prosecutable—amounts to a colourable exercise of power.

"It constitutes a clear attempt to achieve indirectly what the law prohibits directly, thereby undermining the statutory mandate and rendering the protection under Section 19 illusory............It is a well-settled principle of law that what cannot be done directly cannot be done indirectly. Allowing the prosecution of a public servant under Section 120-B IPC for conspiracy to commit an offence under the PC Act, despite the denial of sanction, would effectively render the provision of Section 19 of the PC Act nugatory. Such an approach would circumvent the legislative safeguards designed to protect public servants by enabling a colorable prosecution under Section 120-B IPC, bypassing the procedural requirement of sanction. This would create an anomalous situation where a public servant could be tried for an offence under the PC Act, despite no cognizance being permissible in the absence of sanction. The safeguard of sanction would thus become illusory, and the constitutional protection under Article 14 would be compromised, allowing for the selective and unjust application of penal consequences. Such a scenario would undermine the clear legislative intent, eroding the protective framework designed to shield public servants from unwarranted prosecution," the Court observed.

The Petition was accordingly allowed.

Cause Title: Sachin Ahlawat vs. Central Bureau of Investigation (2025:PHHC:051956)

Appearances:

Petitioner- Senior Advocate Bipan Ghai, Advocate Nikhil Ghai, Advocate Pragyat Bhardwaj

Respondent- Advocate Ravi Kamal Gupta

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Punjab & Haryana High CourtJustice Manjari Nehru Kaul

Sheetal Joon