If there was discharge of A2 and the role attributed is not sufficient then you can go for discharge on same ground. You will get the discharge. You will get discharge on facts rather than technical ground of sanction. You can also challenge sanction here as the earlier A1 has been discharged and there is no prima facie case of sanction
Sanction for Prosecution
I (A1) – State government class 1 Employee My Wife(A2) – State government Public Sector Undertaking employee DVAC filed a Disproportionate Assets Case (DA Case) against me (A1) and my wife (A2) ‘’Sanction of A2’’ ‘’Competent authority does hereby accord sanction under section 19 of Prevention of Corruption Act 1988, for the prosecution of A2, for the offense Punishable under the section 109 IPC r/w 13(2) r/w 13(1)(e) of PC Act 1988 and the substantiative offence thereof, and the taking cognizance of the said offences by a court of competent jurisdiction -My wife (A2) filed a discharge petition. It was allowed by the competent court on the ground of no prima facia case -Now she is discharged from the DA Case. ‘’Sanction of A1’’ ‘’Now, therefore the governor of this state, hereby accord sanction under the section 19 of the prevention of Corruption Act, 1988, for the prosecution of the A1 for the offences punishable under section 109 IPC r/w 13(2) r/w 13(1)(e) of PC Act 1988, (Pre-Amendment) [It is observed that the ingredients of the misconduct fall clearly U/S 13(1)(b) r/w 13(e) of PC Act (Post Amendment)] and the substantiative offences thereof, and for taking cognizance of the said offences by a court of law taking competent jurisdiction. Now, the competent court is going to frame the charge against me under the section 13(2) r/w 13(1)(e) of PC act 1988. My Query as under: 1. Whether sanction accorded (A1) only for 109 here/for me? 2. Whether section 109 IPC is the main charge here/for me? 3. Any deficiency in sanction here? 4. Whether I (A1) can go for discharge on the ground that sanction accorded only for 109 and have not specific sanction for 13(2) r/w 13(1)(e) of PC Act 1988. 5. Since A2 is discharged, there is no section 109 and there was no specific sanction for 13(2) r/w 13(1)(e) of PC Act For A1 -In that ground whether can I go for discharge? -I also request expert lawyers in PC act to clarify my doubt. For proper sanction of me (A1), I think sanction should be obtained as 13(2) r/w 13(1)(e), but they have obtained 109 r/w 13(2) r/w 13(1)(e) of PC act and the substantiative offences thereof, 1. What is the difference between 109 r/w 13(2) r/w 13(2)(e) and 13(2) r/w 13(1)(e) r/w 109 Please Clarify
Asked 4 years ago in Criminal Law
Religion: Hindu
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5 Answers
Your question is, in view of discharged of A2 whether charges against A1 under pc Act can be maintained since sanction under Section 109 is followed by sanction under pc Act. Offences under pc Act are distinct and stand without there being any abettor. Discharge of A2 is no ground for discharge of A1. Charges will be framed against A1 under pc Act dropping charge under Section 109. Sanction under Section 109 is obtained only against A2 as she may not could not have been charged under pc Act.
- Offence under Section 109 is tried to be made out against A2 not against A1.
- When there is only one accused, charge under Section 109 has no application.
- There is no deficiency in sanction.
- Sanction under pc Act is obtained. Only because sanction under pc Act is followed by sanction under 109 does not mean that when A2 is discharged, A1 should also follow the suit.
- There is valid sanction under pc Act.
- R/w. is only used as conjunctive in place of “and”. Nothing more than that it no any legal consequences on the culpability of offence
Dear Sir
Section 109 of the Indian Penal Code provides that "if the unlawful act is committed due to an abetment, and no express provision is made under the Indian Penal Code for punishing such abetment, then the abettor shall be punished with the punishment provided for in the offence".
In this context, since A2 has been discharged from the case under Prevention of Corruption Act, you may also file for a discharge on the same grounds.
Thank you
Perusal of FIR can throw enough light. As such tgere is no defect in the sanction. As A2 has been discharged A1 need not be discharged.
G.RAJAGANAPATHY
High Court of Madras
1. Sanction has been accorded for both differently, however since A2 has been discharged, there is no offence or trial against A2.
2. Besides section 109 IPC, other sections mentioned therein are also included in the charge sheet.
Section 109: Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.—Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation.—An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
3. Unless the case related papers are scrutinized no concrete opinion can be rendered to your query.
4. This reason may not be maintainable for seeking discharge.
5. The discharge of A2 was for some other reason though the charges were same to both, hence discharge cannot be sought on the grounds mentioned by you.
