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Sanction to prosecution is a conditional precedent = whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 Cr.P.C. for investigation by the Deputy Superintendent of Police – Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) Cr.P.C. without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988.= The High Court, after hearing the parties, took the view that the Special Judge could not have taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the Court was acting at a pre-cognizance stage or the post- cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in discharge of his official duties. The High Court, therefore, quashed the order passed by the Special Judge, as well as the complaint filed against the appellant. ;Taking cognizance of an offence= “It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.”; whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage. Section 2(c) of the PC Act deals with the definition of the expression “public servant” and provides under Clauses (viii) and (xii) as under: “(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty. (xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.”= When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. = “19. Previous sanction necessary for prosecution.—(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— a) 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; b) in the case of a person who is employed in connection with the affairs of a State and is not removeable from his office save by or with the sanction of the State Government, of that Government; c) in the case of any other person, of the authority competent to remove him from his office.”- “Section 19(3) – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- a) 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 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; b) xxx xxx xxx c) xxx xxx xxx”= Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. – “Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.”= We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order passed by the High Court. The appeals lack merit and are accordingly dismissed.

  published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40843

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

REPORTABLE

 

 

 

 

 
IN THE SUPREME COURT OF INDIA

 
CRIMINAL APPELLATE JURISDICTION

 
CRIMINAL APPEAL NOS. 1590-1591 OF 2013
(@ Special Leave Petition (Criminal) Nos.6652-6653 of 2013)

 
Anil Kumar & Ors. ….. Appellants

 
Versus

 
M.K. Aiyappa & Anr. ….. Respondents

 

 

 
J U D G M E N T

 

 

 

 

 
K.S. RADHAKRISHNAN, J.

 

 

 
1. Leave granted.

 
2. We are in this case concerned with the question whether the
Special Judge/Magistrate is justified in referring a private complaint
made under Section 200 Cr.P.C. for investigation by the Deputy
Superintendent of Police – Karnataka Lokayukta, in exercise of powers
conferred under Section 156(3) Cr.P.C. without the production of a
valid sanction order under Section 19 of the Prevention of Corruption
Act, 1988.

 
3. The Appellants herein filed a private complaint under Section
200 of Cr.P.C. before the Additional City Civil and Special Judge for
Prevention of Corruption on 9.10.2012. The complaint of the
Appellants was that the first respondent with mala fide intention
passed an order dated 30.6.2012 in connivance with other officers and
restored valuable land in favour of a private person. On a complaint
being raised, the first respondent vide order dated 6.10.2012 recalled
the earlier order. Alleging that the offence which led to issuance of
the order dated 30.6.2012 constituted ingredients contained under
Section 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section
120-B IPC and Section 149 IPC and Section 8, 13(1)(c), 13(1)(d),
13(1)(e), 13(2) read with Section 12 of the Prevention of Corruption
Act, a private complaint was preferred under Section 200 Cr.P.C. On
receipt of the complaint, the Special Judge passed an order on
20.10.2012 which reads as follows :-
“On going through the complaint, documents and hearing the
complainant, I am of the sincere view that the matter requires
to be referred for investigation by the Deputy Superintendent of
Police, Karnataka Lokayukta, Bangalore Urban, under Section
156(3) of Cr.P.C. Accordingly, I answer point No.1 in the
affirmative.

 
Point No.2 : In view of my finding on point No.1 and for
the foregoing reasons, I proceed to pass the following :

 
ORDER

 
The complaint is referred to Deputy Superintendent of
Police – 3 Karnataka Lokayukta, Bangalore Urban under Section
156(3) of Cr.PC for investigation and to report.”

 
4. Aggrieved by the said order, the first respondent herein
approached the High Court of Karnataka by filing Writ Petition
Nos.13779-13780 of 2013. It was contended before the High Court that
since the appellant is a pubic servant, a complaint brought against
him without being accompanied by a valid sanction order could not have
been entertained by the Special Court on the allegations of offences
punishable under the Prevention of Corruption Act. It was submitted
that even though the power to order investigation under Section 156(3)
can be exercised by a Magistrate or the Special Judge at pre-
cognizance stage, yet, the governmental sanction cannot be dispensed
with. It was also contended that the requirement of a sanction is the
pre-requisite even to present a private complaint in respect of a
public servant concerning the alleged offence said to have been
committed in discharge of his public duty.

 
5. The High Court, after hearing the parties, took the view that
the Special Judge could not have taken notice of the private complaint
unless the same was accompanied by a sanction order, irrespective of
whether the Court was acting at a pre-cognizance stage or the post-
cognizance stage, if the complaint pertains to a public servant who is
alleged to have committed offences in discharge of his official
duties. The High Court, therefore, quashed the order passed by the
Special Judge, as well as the complaint filed against the appellant.
Aggrieved by the same, as already stated, the complainants have come
up with these appeals.

 
6. We have heard the senior counsel on either side. Shri Kailash
Vasdev, learned senior counsel appearing for the appellants, submitted
that if the interpretation of the High Court is accepted, then the
provisions of Section 19(3) of the PC Act would be rendered otiose.
Learned senior counsel also submitted that, going through the above
mentioned provision, the requirement of sanction under Section 19(1)
is only procedural in nature and the same can be cured at a subsequent
stage of the proceedings even after filing of the charge-sheet and
hence the requirement of “previous sanction” is merely directory and
not mandatory. Reliance was placed on the judgments of this Court in
R. S. Nayak v. A.R. Antulay (1984) 2 SCR 495 and P. V. Narasimha Rao
v. State (CBI/SPE) (1998) 4 SCC 626. Learned senior counsel further
submitted that the High Court also committed an error in holding that
the sanction was necessary even while the Court was exercising its
jurisdiction under Section 156(3) Cr.P.C. Learned senior counsel
submitted that the order directing investigation under Section 156(3)
Cr.P.C. would not amount to taking cognizance of the offence.
Reference was made to the judgments of this Court in Tula Ram and
Others v. Kishore Singh (1977) 4 SCC 459 and Srinivas Gundluri and
Others v. SEPCO Electric Power Construction Corporation and Others
(2010) 8 SCC 206.

 
7. Shri Uday U. Lalit, learned senior counsel appearing for the
respondents, on the other hand, submitted that the question raised in
this case is no more res integra. Reference was made to the
judgment of this Court in Subramanium Swamy v. Manmohan Singh and
another (2012) 3 SCC 64. Learned senior counsel submitted that the
question of sanction is of paramount importance for protecting a
public servant who has acted in good faith while performing his
duties. The purpose of obtaining sanction is to see that the public
servant be not unnecessarily harassed on a complaint, failing which it
would not be possible for a public servant to discharge his duties
without fear and favour. Learned senior counsel also placed reliance
on the judgment of this Court in Maksud Saiyed v. State of Gujarat and
Others (2008) 5 SCC 668 and submitted that the requirement of
application of mind by the Magistrate before exercising jurisdiction
under Section 156(3) Cr.P.C. is of paramount importance. Learned
senior counsel submitted that the requirement of sanction is a
prerequisite even for presenting a private complaint under Section 200
Cr.P.C. and the High Court has rightly quashed the proceedings and the
complaint made against the respondents.

 
8. We may first examine whether the Magistrate, while exercising
his powers under Section 156(3) Cr.P.C., could act in a mechanical or
casual manner and go on with the complaint after getting the report.
The scope of the above mentioned provision came up for consideration
before this Court in several cases. This Court in Maksud Saiyed case
(supra) examined the requirement of the application of mind by the
Magistrate before exercising jurisdiction under Section 156(3) and
held that where a jurisdiction is exercised on a complaint filed in
terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is
required to apply his mind, in such a case, the Special
Judge/Magistrate cannot refer the matter under Section 156(3) against
a public servant without a valid sanction order. The application of
mind by the Magistrate should be reflected in the order. The mere
statement that he has gone through the complaint, documents and heard
the complainant, as such, as reflected in the order, will not be
sufficient. After going through the complaint, documents and hearing
the complainant, what weighed with the Magistrate to order
investigation under Section 156(3) Cr.P.C., should be reflected in the
order, though a detailed expression of his views is neither required
nor warranted. We have already extracted the order passed by the
learned Special Judge which, in our view, has stated no reasons for
ordering investigation.

 
9. We will now examine whether the order directing investigation
under Section 156(3) Cr.P.C. would amount to taking cognizance of the
offence, since a contention was raised that the expression
“cognizance” appearing in Section 19(1) of the PC Act will have to be
construed as post-cognizance stage, not pre-cognizance stage and,
therefore, the requirement of sanction does not arise prior to taking
cognizance of the offences punishable under the provisions of the PC
Act. The expression “cognizance” which appears in Section 197 Cr.P.C.
came up for consideration before a three-Judge Bench of this Court in
State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372, and this
Court expressed the following view:
“6. ………….And the jurisdiction of a Magistrate to take
cognizance of any offence is provided by Section 190 of the
Code, either on receipt of a complaint, or upon a police report
or upon information received from any person other than a police
officer, or upon his knowledge that such offence has been
committed. So far as public servants are concerned, the
cognizance of any offence, by any court, is barred by Section
197 of the Code unless sanction is obtained from the appropriate
authority, if the offence, alleged to have been committed, was
in discharge of the official duty. The section not only
specifies the persons to whom the protection is afforded but it
also specifies the conditions and circumstances in which it
shall be available and the effect in law if the conditions are
satisfied. The mandatory character of the protection afforded to
a public servant is brought out by the expression, ‘no court
shall take cognizance of such offence except with the previous
sanction’. Use of the words ‘no’ and ‘shall’ makes it abundantly
clear that the bar on the exercise of power of the court to take
cognizance of any offence is absolute and complete. The very
cognizance is barred. That is, the complaint cannot be taken
notice of. According to Black’s Law Dictionary the word
‘cognizance’ means ‘jurisdiction’ or ‘the exercise of
jurisdiction’ or ‘power to try and determine causes’. In common
parlance, it means taking notice of. A court, therefore, is
precluded from entertaining a complaint or taking notice of it
or exercising jurisdiction if it is in respect of a public
servant who is accused of an offence alleged to have been
committed during discharge of his official duty.

 
xxx xxx xxx
xxx xxx xxx”

 

 

 
In State of West Bengal and Another v. Mohd. Khalid and Others (1995)
1 SCC 684, this Court has observed as follows:

 
“It is necessary to mention here that taking cognizance of an
offence is not the same thing as issuance of process. Cognizance
is taken at the initial stage when the Magistrate applies his
judicial mind to the facts mentioned in a complaint or to a
police report or upon information received from any other person
that an offence has been committed. The issuance of process is
at a subsequent stage when after considering the material placed
before it the court decides to proceed against the offenders
against whom a prima facie case is made out.”

 
10. The meaning of the said expression was also considered by this
Court in Subramanium Swamy case (supra). The judgments referred to
herein above clearly indicate that the word “cognizance” has a wider
connotation and not merely confined to the stage of taking cognizance
of the offence. When a Special Judge refers a complaint for
investigation under Section 156(3) Cr.P.C., obviously, he has not
taken cognizance of the offence and, therefore, it is a pre-cognizance
stage and cannot be equated with post-cognizance stage. When a
Special Judge takes cognizance of the offence on a complaint presented
under Section 200 Cr.P.C. and the next step to be taken is to follow
up under Section 202 Cr.P.C. Consequently, a Special Judge referring
the case for investigation under Section 156(3) is at pre-cognizance
stage.

 
11. A Special Judge is deemed to be a Magistrate under Section 5(4)
of the PC Act and, therefore, clothed with all the magisterial powers
provided under the Code of Criminal Procedure. When a private
complaint is filed before the Magistrate, he has two options. He may
take cognizance of the offence under Section 190 Cr.P.C. or proceed
further in enquiry or trial. A Magistrate, who is otherwise competent
to take cognizance, without taking cognizance under Section 190, may
direct an investigation under Section 156(3) Cr.P.C. The Magistrate,
who is empowered under Section 190 to take cognizance, alone has the
power to refer a private complaint for police investigation under
Section 156(3) Cr.P.C.

 
12. We may now examine whether, in the above mentioned legal
situation, the requirement of sanction is a pre-condition for ordering
investigation under Section 156(3) Cr.P.C., even at a pre-cognizance
stage. Section 2(c) of the PC Act deals with the definition of the
expression “public servant” and provides under Clauses (viii) and
(xii) as under:
“(viii) any person who holds an office by virtue of which he
is authorised or required to perform any public duty.

 
(xii) any person who is an office-bearer or an employee of an
educational, scientific, social, cultural or other institution,
in whatever manner established, receiving or having received any
financial assistance from the Central Government or any State
Government, or local or other public authority.”

 

 

 
The relevant provision for sanction is given in Section 19(1) of the
PC Act, which reads as under:

 
“19. Previous sanction necessary for prosecution.—(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—

 
a) 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;
b) in the case of a person who is employed in connection
with the affairs of a State and is not removeable from
his office save by or with the sanction of the State
Government, of that Government;
c) in the case of any other person, of the authority
competent to remove him from his office.”

 
Section 19(3) of the PC Act also has some relevance; the operative
portion of the same is extracted hereunder:
“Section 19(3) – Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974)-

 
a) 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 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;

 
b) xxx xxx xxx

 

 

 

c) xxx xxx xxx”

 
13. Learned senior counsel appearing for the appellants raised the
contention that the requirement of sanction is only procedural in
nature and hence, directory or else Section 19(3) would be rendered
otiose. We find it difficult to accept that contention. Sub-section
(3) of Section 19 has an object to achieve, which applies in
circumstances where a Special Judge has already rendered a finding,
sentence or order. In such an event, it shall not be reversed or
altered by a court in appeal, confirmation or revision on the ground
of absence of sanction. That does not mean that the requirement to
obtain sanction is not a mandatory requirement. Once it is noticed
that there was no previous sanction, as already indicated in various
judgments referred to hereinabove, the Magistrate cannot order
investigation against a public servant while invoking powers under
Section 156(3) Cr.P.C. The above legal position, as already
indicated, has been clearly spelt out in Paras Nath Singh and
Subramanium Swamy cases (supra).

 
14. Further, this Court in Criminal Appeal No. 257 of 2011 in the
case of General Officer, Commanding v. CBI and opined as follows:
“Thus, in view of the above, the law on the issue of sanction
can be summarized to the effect that the question of sanction is
of paramount importance for protecting a public servant who has
acted in good faith while performing his duty. In order that
the public servant may not be unnecessarily harassed on a
complaint of an unscrupulous person, it is obligatory on the
part of the executive authority to protect him….. If the law
requires sanction, and the court proceeds against a public
servant without sanction, the public servant has a right to
raise the issue of jurisdiction as the entire action may be
rendered void ab-initio.”

 

 

 

15. We are of the view that the principles laid down by this Court
in the above referred judgments squarely apply to the facts of the
present case. We, therefore, find no error in the order passed by the
High Court. The appeals lack merit and are accordingly dismissed.

 

 

 
…….……………………….J.
(K.S. Radhakrishnan)

 

 

 

 

 
……………………………J.
(A.K. Sikri)
New Delhi,
October 01, 2013

 

 

 

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