PANJIM: The High Court of Bombay at Goa on Monday reserved its order on pleas by PWD Minister Digambar Kamat and former Chief Minister Churchill Alemao challenging the Enforcement Directorate’s prosecution against them in the Louis Berger money laundering case, bringing into focus a fundamental legal question – can a trial proceed against public servants without prior sanction from the competent authority.
Hearing two criminal miscellaneous applications, the single bench of Justice Ashish S Chavan concluded arguments from both sides, with the defence narrowing its attack to what it called a fatal procedural lapse. Counsel for the applicants argued that the Enforcement Directorate had filed its chargesheet and pushed the case forward without first securing mandatory sanction from the Goa Governor — despite the Special Court in Mapusa having already taken cognisance and framed charges against the two leaders in July last year.
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The defence maintained that this omission strikes at the root of the prosecution. As public servants, Kamat and Alemao cannot be prosecuted for alleged acts linked to their official functions without prior approval from the competent constitutional authority, they argued, stressing that such sanction is not a procedural formality but a legal precondition.
The ED, however, countered that the process is underway. Appearing for the agency, Advocate Sidharth Samant told the court that an application seeking sanction has already been moved before the Governor and a decision is awaited, suggesting that the prosecution should not be derailed at this stage.
The legal contest hinges on the interpretation and application of safeguards built into criminal law for public officials. In a significant precedent, the Supreme Court in Bibhu Prasad Acharya and Adityanath Das vs Directorate of Enforcement (2024) held that prior sanction under Section 197 of the CrPC is mandatory before a court can take cognisance of offences involving public servants, even in proceedings initiated under the PMLA. The apex court had quashed the case against two senior IAS officers on precisely this ground, underscoring that the absence of sanction is not a curable defect but a jurisdictional bar.
That ruling now looms large over the Goa proceedings. If applied strictly, it could call into question the very foundation of the ED’s case against Kamat and Alemao, where charges have already been framed without the sanction being in place.
The outcome could determine how rigorously investigative agencies must adhere to statutory safeguards when prosecuting public servants, particularly in high-stakes corruption and money laundering cases. With arguments concluded, the court has reserved its order.
