REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 457 OF 2018 (Arising out of SLP (Crl.) No.5838 of 2014)

MANJU SURANA   ….Appellant

Versus

SUNIL ARORA & ORS. ..…Respondents

WITH

CRIMINAL APPEAL NO. 458 OF 2018 (Arising out of SLP (Crl.) No.1092 of 2015)

J U D G M E N T

SANJAY KISHAN KAUL, J.

CRIMINAL APPEAL NO. 457 OF 2018 (Arising out of SLP (Crl.) No.5838 of 2014)

1. Leave granted.

2. The question of law sought to be raised in the appeals is as to

whether prior sanction for prosecution qua allegation of corruption in

respect of a public servants is required before setting in motion even

the investigative process under Section 156(3) of the Code of Criminal

Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’).

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3. In Criminal  Appeal  No………….of 2018 (arising out  of  SLP

(Crl.) No.5838  of  2014),   the appellant submitted a complaint before

the Special Judge (Prevention of Corruption Act, Jaipur Metropolitan

City, Jaipur) under Sections 7 & 13 of the Prevention of Corruption

Act, 1988 (hereinafter referred to as the ‘PC Act’) and Sections 420,

467, 468 & 471 read with Section 120B of the Indian Penal  Code,

1860  (hereinafter  referred  to  as  the  ‘IPC’).   The  appellant  sought

investigation of offences and registration of an FIR against the accused

persons.  The first respondent arrayed as an accused before the Special

Judge  as  “Principal  Secretary  to  the  Government  P.H.E.D.  Chief

Minister” is the first respondent before us, the other persons arrayed as

accused before the Special Judge, being the Superintending Engineer,

Chief Engineer, ex Chief Minister (as she then was), ex Minister of

P.H.E.D.,  Finance  Secretary,  Deputy  Accountant  General  and P.S.L.

Company  through  its  Managing  Director  are  also  before  us,  as  the

Respondents.  It is alleged in the complaint that in the drinking water

project Nos.1 to 8, a conspiracy was hatched for fulfilling the personal

vested interest by way of a tender procedure, which caused loss to the

Government fund.  The last and the 8th accused was stated to be given

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the advantage for personal interest.  It is not necessary for the purpose

of the present controversy to get into the detailed facts but suffice to

say that as per the allegations of the appellant, there was a shortage of

budget for running the projects and the report of respondent No.1, then

the Principal Secretary, dated 20.4.2008 was liable to be perused.  In

order to make payments for the outstanding and running projects, the

Chief Secretary, accused No.1, is stated to have written a proposal to

the  Finance  Department  but  the  Finance  Secretary  expressed  his

inability for making available such huge amounts.  The fund was stated

to have been digressed.

4. It is extremely relevant to note that from the facts, which have

now come to light,  respondent  No.1 herein was neither  holding the

post of the Principal Secretary of the P.H.E.D nor the Chief Secretary

at  the  relevant  stage  of  time  and  the  description  of  his  office  is

consequently not correct.  The first respondent was actually holding the

post of Principal Secretary to the Chief Minister.

5. The Special Judge closed the complaint in terms of order dated

4.2.2014 on account of the fact that the accused persons arrayed as

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respondents  are  either  public  servants  or  have  remained  as  public

servants  and  no  prior  sanction  has  been  granted  by  the  competent

authority under Section 19 of  the PC Act read with Section 197 of the

Cr.P.C.  To  support  this  conclusion,  reliance  was  placed  on  the

judgment of this Court in  Anil Kumar v. M.K. Aiyappa1 opining that

no  complaint  could  be  forwarded  for  investigation  under  Section

156(3)  of  the  Cr.P.C.  nor  could  any proceedings  be  initiated  under

Sections 202 & 202 of the Cr.P.C. in the absence of such sanction.  It

was,  thus,  observed  that  further  proceedings  in  the  case  would  be

conducted on the filing of sanction.

6. The  appellant  preferred  a  revision  petition  against  this  order,

which  has  been  dismissed  by  the  detailed  impugned  order  dated

30.4.2014.  The order really refers to various judicial pronouncements

and then concludes that in view of the judgment in  Anil  Kumar v.

M.K.  Aiyappa2 and  P.  Nallammal  v.  State3 both  for  the  reasons  of

absence of any sanction, as also the revision petition being directed

against  an  interlocutory  order,  the  petition  was  not  maintainable.

1 (2013) 10 SCC 705 2 supra 3 (1999) 6 SCC 559

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Thereafter the present Special Leave Petition has been filed.

7. We have heard learned counsel for the parties.

8. Mr.  Prashant  Bhushan,  learned  counsel  appearing  for  the

appellant sought to question the view taken in Anil Kumar4 and in L.

Narayana  Swamy  v.  State  of  Karnataka5 following  the  earlier

judgment.  The sub-stratum of the argument is that the requirement of

prior sanction for prosecution against the public servant would arise

only when cognizance is taken, while no such sanction was required at

the stage of setting into motion an investigation under Section 156(3)

of the Cr.P.C..  It was, thus, contended that the observations in these

two judgments are  per incuriam or in conflict with the long line of

earlier judgments on the question as to when the cognizance can be

stated to have be taken.  Mr. Bhushan drew our attention to 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  section  7,  10,  11,  13  and15  alleged  to  have  been committed  by  a  public  servant,  except  with  the  previous sanction,-

4 supra 5 (2016) 9 SCC 598

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(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 removable 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.”

9. He  sought  to  emphasise  that  the  bar  is  to  the  court  taking

“cognizance of an offence except with the previous sanction”.

10. We may next refer to Chapter XIV of the Cr.P.C., which is under

the  heading  “Conditions  Requisite  for  Initiation  of  Proceedings”.

Section  190  states  as  to  when  cognizance  would  be  taken  and  is

reproduced for convenience as under:

“190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2 ), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

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(c)  upon  information  received  from  any  person  other  than  a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1 ) of such offences as are within his competence to inquire into or try.”

11. Section 197 of the Cr.P.C. under the same chapter prescribes a

pre-condition of obtaining sanction before the court takes cognizance

against a public servant.  The relevant portion reads as under:

“197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant  not  removable  from his  office  save  by  or  with  the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act  in the discharge of  his official  duty,  no Court  shall  take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be,  was  at  the  time  of  commission  of  the  alleged  offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be,  was  at  the  lime  of  commission  of  the  alleged  offence employed, in connection with the affairs of a State, of the State Government:

Provided that where the alleged offence was committed by a person  referred  to  in  clause  (b)  during  the  period  while  a Proclamation  issued  under  clause  (1)  of  Article  356  of  the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the

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expression "Central Government" were substituted.”

12. Once cognizance is taken the procedure is triggered off under

Chapter XV with the heading “Complaints to Magistrates”.  It would

be suffice to reproduce Section 200 as under:

“200.  Examination  of  complainant.- A  Magistrate  taking cognizance  of  an  offence  on  complaint  shall  examine  upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided  that,  when  the  complaint  is  made  in  writing,  the Magistrate  need  not  examine  the  complainant  and  the witnesses—

(a)  if  a  public  servant  acting  or  purporting  to  act  in  the discharge  of  his  official  duties  or  a  Court  has  made  the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another  Magistrate  under  section  192  after  examining  the complainant and the witnesses, the latter Magistrate need not re-examine them.”

13. The  Magistrate,  if  he  thinks  fit,  may  postpone  the  issue  of

process against  the accused to inquire  the case himself  or  direct  an

investigation  post  taking  cognizance,  as  per  Section  202,  which  is

reproduced herein under:

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“202. Postponement of issue of process.- (1) Any Magistrate, on  receipt  of  a  complaint  of  an  offence  of  which  he  is authorised to take cognizance or which has been made over to him under section 192 , may, if he thinks fit [and shall in a case where the accused is residing at  a place beyond the area in which  he  exercises  his  jurisdiction],  postpone  the  issue  of process against  the accused,  and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit,  for  the purpose of deciding  whether  or  not  there  is  sufficient  ground  for proceeding:

Provided that no such direction for investigation shall be made- (a)  where  it  appears  to  the  Magistrate  that  the  offence complained of is triable exclusively by the Court of Sessions; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200 .

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all hi s witnesses and examine them on oath.

(3)  If  an  investigation  under  sub-section  (1)  is  made  by  a person  not  being  a  police  officer,  he  shall  have  for  that investigation  all  the  powers  conferred  by  this  Code  on  an officer in charge of a police station except the power to arrest without warrant.”

14. Keeping  in  mind  the  aforesaid  provisions,  we  now  turn  to

Chapter  XII  with  the  heading  “Information  to  the  Police  and  their

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powers to investigate”.  Section 156 forms a part of this Chapter and

reads as under:

“156. Police officer's power to investigate cognizable cases.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.”

15. The relevant provision is Section 156(3) of the Cr.P.C. where a

Magistrate is empowered to make an order of investigation in terms of

sub-sections (1) & (2).

16. It is, thus, the submission of Mr. Prashant Bhushan that there is a

distinction  between  the  investigation  carried  out  at  pre-cognizance

stage, which would not face the requirement of a prior sanction qua a

public servant, as against a post-cognizance proceeding which needs

prior sanction.  We may also notice that in terms of sub-section (4) of

Section 5 of the PC Act, for the proceedings before a Special Judge

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under  the  PC  Act,  the  Special  Judge  shall  be  deemed  to  be  a

Magistrate.

17. In the aforesaid context, he referred to a catena of judgments.

We have analyzed those and some other cases dealing with the issue.

Judgments  on  the  nature  of  proceedings  being  an  inquiry  under Section 156(3) of the Cr.P.C.:

18. In  R.R. Chari  v.  State of  U.P.6,  a  three Judges Bench of this

Court, in the inception years of this Court, referred to Gopal Marwari

v. Emperor7qua the observations that the word ‘cognizance’ indicates

the point when a Magistrate or a Judge first takes judicial notice of an

offence.  This was different from initiation of proceedings.  The word

‘cognizance’ was somewhat of an indefinite import and perhaps not

used exactly in the same sense.  Thereafter it proceeded to notice the

observations of Das Gupta, J. in Superintendent and Remembrancer

of  Legal  Affairs,  West  Bengal  v.  Abani  Kumar  Banerjee8 where

observations were made to the effect that what is taking cognizance has

6 1951 SCR 312 7 AIR 1943 Pat 245 8 AIR 1950 Cal 437

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not been defined in the Cr.P.C., but it could be said that any Magistrate

who has taken cognizance of any offence under Section 190(1)(a) of

the Cr.P.C. must not only have applied his mind to the contents of the

petition  but  must  have  done so  for  the  purpose  of  proceeding in  a

particular way as indicated in the subsequent provisions of this Chapter

–  proceedings  under  Section  200  and  thereafter  under  Section

202.However,  when  the  Magistrate  applies  his  mind,  not  for  the

purpose of proceeding under the subsequent sections of this Chapter,

but  for  some  other  kind,  e.g.  ordering  investigation  under  Section

156(3) or issuing a search warrant for the purposes of the investigation,

he  could  not  be  said  to  have  taken  cognizance  of  offence.   The

Supreme Court gives its imprimatur to these observations.

19. Gopal  Das  Sindhi v. State of Assam9 (three Judges Bench), the

decision in R.R. Chari10 was followed.

20. Jamuna  Singh  v.  Bhadai  Shah11 (three  Judges  Bench),the

decision in R.R. Chari12 was followed.

9 AIR 1961 SC 986 10 supra 11 (1964) 5 SCR 37 12 supra

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21. In  Nirmaljit  Singh  Hoon  v.  State  of  W.B.13 (three  Judges

Bench),  it  was sought to be canvassed that  the investigation by the

police being one ordered by the Chief  Presidency Magistrate  under

Section  156(3)  of  the  Cr.P.C.,  that  investigation  was  part  of  the

proceedings  of  the Court.   This  plea was rejected  inter  alia on the

ground that the police authorities have, under Sections 154 & 156 of

the Cr.P.C., a statutory right to investigate into a cognizable offence

without requiring any sanction from a judicial authority.  Secondly, for

taking cognizance under Section190(1)(a) of the Cr.P.C., a Magistrate

must  not  only  have  applied  his  mind  but  must  have  done  so  for

purposes of proceeding under Section 200 and the provisions following

that Section.  The application of mind only for ordering investigation

under Section 156(3) or issuing a warrant for purposes of investigation

could not be said to have taken cognizance of the offence.

22. Devarapally Lakshminarayana Reddy v. V. Narayana Reddy14

(three Judges Bench) – Mr. Prashant Bhushan referred to the aforesaid

judgment for analysis of Section 156(3) of the Cr.P.C.  In para 13, it

13 (1973) 3 SCC 753 14 (1976) 3 SCC 252

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has been observed that when a Magistrate receives a complaint he is

not  bound to  take  cognizance  if  the facts  alleged in  the  complaint,

disclose the commission of an offence.  Only if he forms an opinion

that  the  allegations  therein  disclose  a  cognizable  offence  and  the

forwarding  of  the  complaint  to  the  police  for  investigation  under

Section 156(3) will be conducive to justice and save the valuable time

of the Magistrate from being wasted in enquiring into a matter which

was primarily the duty of the police to investigate, he will be justified

in adopting that course as an alternative to taking cognizance of the

offence, himself.  Thereafter in paras 14 & 17, it has been observed as

under:

“14.  This  raises  the  incidental  question:  What  is  meant  by “taking cognizance of  an offence” by a Magistrate within the contemplation  of  Section  190?  This  expression  has  not  been defined  in  the  Code.  But  from the  scheme  of  the  Code,  the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not  taken  cognizance  of  the  offence  will  depend  on  the circumstances of the particular case including the mode in which the  case  is  sought  to  be  instituted,  and  the  nature  of  the preliminary  action,  if  any,  taken  by  the  Magistrate.  Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and

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the succeeding sections in Chapter XV to the Code of 1973, he is said to have taken cognizance of the offence within the meaning to Section 190(1) (a).  If,  instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of  some other  kind,  such as  issuing a  search warrant  for  the purpose of investigation, or ordering investigation by the police under  Section  156(3),  he  cannot  be  said  to  have  taken cognizance of any offence.”

…. …. …. …. ….

“17. Section 156(3) occurs in Chapter XII, under the caption : “Information  to  the  Police  and  their  powers  to  investigate”; while Section 202 is in Chapter XV which bears the heading: “Of  complaints  to  Magistrates”.  The  power  to  order  police investigation under Section 156(3) is different from the power to direct  investigation  conferred  by  Section  202(1).  The  two operate  in  distinct  spheres  at  different  stages.  The  first  is exercisable at the pre-cognizance stage, the second at the post- cognizance stage when the Magistrate is in seisin of the case. That  is  to  say  in  the  case  of  a  complaint  regarding  the commission of a cognizable offence, the power under Section 156(3)  can  be  invoked  by  the  Magistrate  before  he  takes cognizance  of  the  offence  under  Section  190(1)(a).  But  if  he once  takes  such cognizance  and embarks  upon the  procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section  156(1).  Such  an  investigation  embraces  the  entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence  has  been collected  by the  Magistrate  in proceedings  under  Chapter  XV,  but  the  same  is  deemed insufficient  to  take  a  decision  as  to  the  next  step  in  the prescribed  procedure.  In  such  a  situation,  the  Magistrate  is empowered  under  Section  202  to  direct,  within  the  limits

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circumscribed by that section an investigation “for the purpose of  deciding  whether  or  not  there  is  sufficient  ground  for proceeding”. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.”

23. In  Tula Ram v.  Kishore  Singh15 (two Judges  Bench)  – cited

before us, it was observed that Sections 190 and 156(3) of the Cr.P.C.

are mutually exclusive and work in totally different  spheres.   Thus,

even if a Magistrate receives a complaint under Section 190, he can act

under  Section  156(3)  provided  that  he  does  not  take  cognizance.

Chapter 14 deals with post cognizance stage while Chapter 12, so far

as the Magistrate is concerned, deals with pre-cognizance stage, that is

to say that even when a Magistrate starts acting under Section 190 and

the provisions following, he cannot resort  to Section 156(3).   Thus,

Section 202 would apply only in cases where the Magistrate has taken

cognizance and chooses to inquire into the complaint either himself or

through any other agency.  Before proceeding to do so, there may be a

situation  where  the  Magistrate,  before  taking  cognizance  himself,

chooses to order a pure and simple investigation under Section 156(3)

of the Cr.P.C.

15 (1977) 4 SCC 459

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24. Srinivas  Gundluri  v.  SEPCO  Electric  Power  Construction

Corpn.16 (two Judges Bench) – The Magistrate in the case had merely

allowed the application filed by the complainant under Section 156(3)

of  the  Cr.P.C.  and  sent  the  same  along  with  its  annexure  for

investigation  by  the  police  officer  and  that  was  held  not  to  have

amounted to having taken cognizance.

25. Subramanian  Swamy v.  CBI17 (five  Judges  Bench)  –  It  was

observed  that Section 156 of  the Cr.P.C. enables an officer in charge

of a police station to investigate a cognizable offence. Insofar as non-

cognizable offences are concerned, it was found that the police officer

by  virtue  of  Section  155  Cr.P.C.  can  investigate  it  after  obtaining

appropriate orders from the Magistrate having power to try such case

or  commit  the  case  for  trial  regardless  of  the  status  of  the  officer

concerned. In view thereof, the scheme of Sections 155 and 156 of the

Cr.P.C.  was held to  indicate  that  the local  police  may investigate  a

senior  government  officer  without  previous  approval  of  the  Central

Government.

16(2010) 8 SCC 206 17(2014) 8 SCC 682

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The  Constitution  Bench  while  dealing  with  the  inquiry  and

investigation under the P.C. Act held that there was no basis to classify

the two sets of public servants differently on the ground that one set of

officers is decision-making officers and not the other set of officers.

26. Despite the aforesaid catena of judgments, a different path has

been  traversed  in  two  judgments  of  this  Court  where  the  offences

alleged are under the P.C. Act read with the I.P.C.   

27. In  Anil  Kumar  v.  M.K.  Aiyappa18 (two  Judges  Bench),   the

Court proceeded to examine whether the Magistrate, while exercising

his  powers  under  Section  156(3)  of  the  Cr.P.C.,  could  act  in  a

mechanical  or  casual  manner  and  go  on  with  the  complaint  after

getting the report.  In that context, a reference was made to an earlier

judgment in  Maksud Saiyed v. State of Gujarat19 case, where it was

observed that there was a requirement of the application of mind by the

Magistrate before exercising jurisdiction under Section 156(3) of the

Cr.P.C.  Thereafter the Bench proceeded to draw a conclusion that a

Special Judge/Magistrate cannot refer the matter under Section 156(3)

18 supra 19(2008) 5 SCC 668

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of the Cr.P.C. against a public servant without a valid sanction order.

28. The  Bench  further  proceeded  to  examine  whether  the  order

directing  investigation  under  Section  156(3)  of  the  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 P.C. Act would have to be construed as post-cognizance stage and

not  pre-cognizance  stage  and therefore,  the  requirement  of  sanction

does not arise prior to taking cognizance of the offences of the P.C.

Act.  Insofar as the expression ‘cognizance’, which appears in Section

197  of  the  Cr.P.C.  was  concerned,  a  reference  was  made  to  the

judgment in  State of U.P. v. Paras Nath Singh20.  In that case it was

observed that the jurisdiction of a Magistrate to take cognizance of any

offence is provided by Section 190 of  the Cr.P.C. and so far  as the

public servant was concerned this was clearly barred by Section 197 of

the  Cr.P.C.  unless  the  sanction  was  obtained  from  the  appropriate

authority.  After referring to certain other judgments on the issue of

purport and meaning of the word ‘cognizance’, it was concluded that

‘cognizance’ has a wider connotation and is not merely confined to the

20(2009) 6 SCC 372

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stage of taking cognizance of the offence.

29. The Bench proceeded to discuss Section 19(1) of the P.C. Act as

also Section 19(3) of the P.C. Act, which reads as under:

“19. Previous sanction necessary for prosecution.—

…. …. …. …. …. (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 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;

(b)  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;

(c)  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.”

30. It was sought to be contended that the requirement of sanction

was only procedural in nature and hence directory or else Section 19(3)

of the P.C. Act would be rendered otiose.   This contention was not

found acceptable as sub-section (3) of Section 19 of the P.C. Act had an

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object to achieve, which applied only in circumstances where a Special

Judge had already rendered a finding, sentence or order.  This would

not mean that the requirement to obtain sanction was not a mandatory

requirement.  In the absence of prior sanction, it was observed, that the

Magistrate  cannot  order  investigation  against  a  public  servant  even

while invoking power under Section 156(3) of the Cr.P.C.

31. L.  Narayana  Swamy  v.  State  of  Karnataka21 (two  Judges

Bench)  –  The  judgment  in  Anil  Kumar  v.  M.K.  Aiyappa22 was

followed.   After  discussing  various  other  pronouncements,  it  was

concluded that even while directing an inquiry under Section 156(3) of

the  Cr.P.C., the Magistrate applies his judicial mind to the complaint

and therefore, it would amount to taking cognizance of the matter.

32. Mr. Tushar Mehta, learned Additional Solicitor General sought

to canvas the view taken in the last two judgments referred to aforesaid

to submit  that  application of  mind was necessary to exercise power

under Section 156(3)  of  the Cr.P.C. and that credibility of information

was  to  be  weighed  before  ordering  investigation  (Ramdev  Food

21 (2016) 9 SCC 598 22 supra

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Products (P) Ltd. v. State of Gujarat23).  It was, thus, submitted that

allegation  against  a  public  servant  under  the  P.C.  Act  offences  are

technical in nature and would require a higher evaluation standard and

thus  the  Magistrates  ought  to  apply  their  mind  before  ordering

investigation  against  public  servant.   The  consequences  of  starting

investigation  under  Section 156(3)  of  the Cr.P.C.,  it  was  submitted,

would result in the police registering an FIR (Suresh Chand Jain v.

State of Madhya Pradesh24 and Mohd. Yousuf v. Afaq Jahan25).  Thus,

a situation may arise where a Magistrate may exercise his power under

Section 156(3)  of  the Cr.P.C. in a routine manner resulting in an FIR

being registered against a public servant, who may have no role in the

allegation made.

33. We  have  examined  the  rival  contentions  and  do  find  a

divergence of opinion, which ought to be settled by a larger Bench.

There is no doubt that even at the stage of 156(3), while directing an

investigation, there has to be an application of mind by the Magistrate.

Thus,  it  may not be an acceptable proposition to contend that  there

23(2015) 6 SCC 439 24(2001) 2 SCC 628 25(2006) 1 SCC 627

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would be some consequences to follow were the Magistrate to act in a

mechanical and mindless manner.  That cannot be the test.

34. The catena of judgments on the issue as to the scope and power

of  direction  by  a  Magistrate  under  Chapters  12  &  14  is  well

established.  Thus, the question would be whether in cases of the P.C.

Act, a different import has to be read  qua  the power to be exercised

under Section 156(3)  of  the Cr.P.C., i.e., can it be said that on account

of Section 19(1) of the P.C. Act, the scope of inquiry under Section

156(3)  of  the  Cr.P.C.  can  be  said  to  be  one  of  taking ‘cognizance’

thereby requiring the prior sanction in case of a public servant? It is

trite to say that prior sanction to prosecute a public servant for offences

under the P.C. Act is a provision contained under Chapter 14 of the

Cr.P.C. .   Thus, whether such a purport can be imported into Chapter

12 of the  Cr.P.C. while directing an investigation under Section 156(3)

of  the Cr.P.C.,  merely because  a  public  servant  would be involved,

would beg an answer.

35. The apprehension expressed by the learned ASG possibly arises

from  the  observations  in  Suresh  Chand  Jain  v.  State  of  Madhya

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Pradesh26 followed  in  Mohd.  Yousuf  v.  Afaq  Jahan27.   Thus,  the

observations are to the effect that even at a pre-cognizance stage under

Section 156(3)  of  the Cr.P.C., it is open to the Magistrate to direct the

police to register an FIR and that even if the Magistrate does not say in

so many words while directing investigation under Section 156(3) of

the Code that an FIR should be registered, it is the duty of the officer in

charge of the police station to register the FIR regarding the cognizable

offence disclosed by the complainant because that police officer could

take  further  steps  contemplated  in  Chapter  XII  of  the  Code  only

thereafter.

36. The  complete  controversy  referred  to  aforesaid  and  the

conundrum arising in respect of the interplay of the P.C. Act offences

read with the Cr.P.C. is, thus, required to be settled by a larger Bench.

37. The papers may be placed before Hon’ble the Chief Justice of

India for being placed before a Bench of appropriate strength.

Crl. M.P. 161/2015 in SLP (Crl.) No.5838/2014

26 supra 27 supra

Page 24 of 30

38. We have passed a detailed order making a reference to a larger

Bench insofar as the main matter is concerned.  It may be noticed that

in  the  present  Special  Leave  Petition,  notice  was  issued  to  the

Respondents, except Respondent No. 4. Since the proceedings before

the Magistrate at the threshold were directed to be kept in abeyance

without notice to the Respondent, and thereafter the revision petition

was  dismissed  in  limine by  the  High  Court,  the  occasion  for

Respondent No.1 to have knowledge of the proceedings did not arise.

Respondent  No.1  seeks  deletion  from  the  array  of  parties  in  these

proceedings as he has been wrongly arrayed as a party.

39. The  aforesaid  plea  is  predicated  on  the  averments  in  the

complaint itself, which seeks to make a grievance over the actions of

the  Principal  Secretary,  Public  Health  and  Engineering  Department

(PHED)  in  which  capacity  respondent  No.1  is  stated  to  have  been

arrayed.   It  is  averred  in  the  application  that  respondent  No.1  was

serving as a Secretary and Principal Secretary to the Chief Minister and

not as Principal Secretary, PHED.  In fact, the officer working as the

Principal  Secretary,  PHED  has  not  been  arrayed  as  a  respondent.

There is no allegation made against the Secretary/Principal Secretary to

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the Chief Minister.  The allegation is of collusion of the respondents.

40. In terms of the averments in the application, respondent No.1

sought to point out that there are only two references to him as accused

No.1 - Para 4(iv)  and Para 8.   These are in the context  of  inviting

tenders,  shortage of  budget for  running the current  projects and the

report of stated accused No.1 as the Principal Secretary.  The second

reference is to the stated accused No.1 as the Chief  Secretary,  who

wrote a proposal to the Finance Department whereupon the Finance

Secretary  expressed  his  inability  for  making  available  such  a  huge

amount.  Once again, respondent No.1 was not holding the post of the

Chief Secretary nor is the Chief Secretary then arrayed as a party.

41. Our attention was also drawn to the notings file, which are of the

Chief  Engineer (SP) and approved by the Secretary,  PHED and the

Hon’ble Minister, PHED.  It is, thus, alleged that respondent No.1 was

neither involved with the decision making process nor he held any of

the two posts.

42. The application is sought to be opposed and a counter affidavit

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was filed by the appellant.  It is stated that respondent No.1 is trying to

take undue advantage of the inadvertent mistake of the appellant  in

mentioning his correct designation while filing the criminal complaint.

It is alleged that respondent No.1 was very much involved with the

decision making process.  In any case the merit of the complaint of the

appellant is yet to be examined.

43. On 20.2.2018, we had issued directions for the appellant to place

on record the material placed before the Magistrate in support of the

complaint indicating the alleged involvement of respondent No.1.  In

response thereto, a supplementary affidavit was filed by the appellant.

On this behalf a file noting of 9.5.2008 is referred to.  The discussion

was with regard to the funding of the same project and the presence of

respondent  No.1  is  noted  though  undisputedly  the  minutes  are  not

signed by him while they are signed by other officers.   It  has been

averred that since the Principal Secretary to the Chief Minister had no

role to play in the discussion, why was he/respondent No.1 present?

44. We  may  also  note  the  submission  of  learned  counsel  for

respondent No.1 that in case a situation arises where the Magistrate has

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to proceed on the complaint under Section 156(3) of the Cr.P.C. and

during investigation some material is found, the counsel cannot really

object to the inclusion of the name of respondent No.1 at that stage.

However, inclusion at this stage is stated to be without any material

facts and is an embarrassment, considering the constitutional position

held by respondent No.1.

45. We have given a thought to the respective pleas of the parties.

46. No doubt the process under Section 156(3) of the Cr.P.C. is only

one  of  investigation.   The  larger  question,  of  whether  any  such

direction can be issued without prior sanction has been referred to a

larger bench.  Were the appellant to succeed and were the matter to go

back to the Magistrate and the Magistrate  after  application of  mind

forms an  opinion to  direct  investigation  by the  police,  it  would  be

always open to the Magistrate to include the name of respondent No.1

if such material is found against him.

47. Merely because the appellant has roped in respondent No.1 in

the complaint is not sufficient ground to allow his name to be included

Page 28 of 30

as such.  The complaint is categorical – the role of Secretary, PHED

and the Principal Secretary has been questioned.  That is the mindset

with which the complainant knocked the doors of the criminal courts.

There  was  no  allegation  in  respect  of  any  role  played  by  the

Secretary/Principal Secretary to the Chief Minister.  It cannot be said to

be a mere mis-description of name, which can be corrected. It cannot

be the stand of the appellant that willy-nilly somehow, respondent No.1

must remain arrayed as an accused in those proceedings, even though

the proceedings before the Magistrate are at the stage of only whether

there should be a direction for investigation or not.  It is not that every

officer  in  the Government  has  to  be  arrayed in  respect  of  any role

performed or not.  The mere presence in one meeting of respondent

No.1 and that too when he was not a signatory and really had no role to

play in that capacity, as apparent from the minutes, cannot be now used

to justify his name being included as an accused.  This is clearly an

afterthought.  It is not for the appellant to question as to which officer

should or should not be present.

48. We are, thus, of the view that respondent No.1 needs to be struck

off  from  the  array  of  parties  both  in  the  present  proceedings  and

Page 29 of 30

consequently in the complaint.  We, however, make it clear that if a

situation arises where investigation is directed under Section 156(3) of

the  Cr.P.C. and some material comes to light to array respondent No.1

as an accused, our order would not come in the way.

49. The application  is  accordingly allowed,  leaving the parties  to

bear their own costs.

CRIMINAL APPEAL NO. 458 OF 2018 (Arising out of SLP (Crl.) No.1092 of 2015

50. Leave granted.

51. The matter is referred to a larger Bench along with SLP (CRL.)  

No.5838/2014 in terms of the judgment passed today.

..….….…………………….J.     (J. Chelameswar)

              ...……………………………J.         (Sanjay Kishan Kaul)

New Delhi. March 27, 2018.

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