Vesting investigating powers at senior and responsible officer is the first safe guard. As a further measure of safeguard against misuse of the powers, the Act provides that prosecution shall be launched only after obtaining sanction from the competent authority.

The authority preferring to prosecute under the Prevention of Corruption has to seek the permission of the Disciplinary Authority of the public organization or department of Government in which the accused public servant is employed. Towards this end, the prosecuting authority has to forward a copy of its finding forming the gist of the investigation report, with a list of documentary and oral evidences in support of the charge sheet. In case the investigating agency decides not to prosecute the accused public servant, but to advise the disciplinary authority to proceed internally and institute a departmental inquiry, the agency should furnish a draft charge sheet to be served on the accused by the Department/Public Institution and stipulate that an officer of the investigating agency(normally CBI) would present the evidences in support of the charges before the Inquiry Officer.

Where however CBI chooses to pursue the case in a court before a special judge, the Disciplinary authority is requested to grant sanction for prosecution. The measure acts as a second line of defence against hasty prosecution on account of wrong interpretation of evidences or assumption of procedures or rules. This is because the Disciplinary authority will satisfy that there is a prima facie case against the accused officer and thereafter only grant sanction for prosecution.

However this formality will not be followed in respect of 'trap cases', where the investigating authority is able to catch the corrupt public servant red-handed in the act of getting illegal gratification or such other crime. After the accused is caught in the act, he is arrested straight away and produced before the magistrate.

All purely technical deficiencies in the process of getting sanction will not nullify the legality of the proceedings instituted unless it is proved that such an error has resulted in the denial of justice to the accused.

The detailed provisions of this Section to this effect speak as under:

1. No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, -

   1. in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

   2. in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;

   3. in the case of any other person, of the authority competent to remove him from his office

2. Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-Section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

3. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

   1. no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-Section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

   2. no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

   3. >no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings

4. In determining under sub-Section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

   Explanation.- For the purposes of this Section,-

   1. error includes competency of the authority to grant sanction;

   2. a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.

It is therefore necessary that if at all the accused wants to redress his grievance in respect of technical violations in the procedure or process employed, he must refer to them at the earliest opportunity, when it will be more appropriate to rectify such errors and retrieve the situation. He cannot wait to get negative benefit from the situation at a later stage.

A similar provision for prosecution of Public servants is provided in the Code of Criminal Procedure also under Section 197. However no sanction is required for prosecution of public servants who cease to be in service when the court takes cognisance of the offence.

This is to offset the burden placed on the accused under Section 20 regarding 'presumptions'. When there is an implied obligation under the act for the public servant to explain the circumstances appearing against him if he seeks to disprove these accusation, here is also an opportunity under Section 21 for the public servant to take the witness stand and depose on his behalf. It is an option of the accused to appear as his own witness or not, and neither the prosecution nor the court can compel.

The text of Section 21 reads as under-

Any person charged with an offence punishable under this Act, shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that

1. he shall not be called as a witness except at his own request;

2. his failure to give evidence shall not be made the subject of any comment by the prosecution or give rise to any presumption against himself or any person charged together with him at the same trial;

3. he shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged, or is of bad character, unless-

   1. the proof that he has committed or been convicted of such offence is admissible evidence to show that he is guilty of the offence with which he is charged, or

   2. he has personally or by his pleader asked any question of any witness for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution,

   3. or he has given evidence against any other person charged with the same offence.