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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 721 OF 2016

L. NARAYANA SWAMY .....APPELLANT(S)

VERSUS

STATE OF KARNATAKA & ORS. .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 722 OF 2016

J U D G M E N T

A.K. SIKRI, J.

Before adverting to the question of  law that  has been raised in

these appeals (which is common to both the cases), we would like to

traverse through the facts and the background which has led to the filing

of the present appeals.

2. Respondent  No.2 (hereinafter  referred to as the 'complainant')  filed a

complaint on the basis of which a case has been registered against the

appellants, who are accused Nos. 3 and 5, for the offences punishable

under  Section  13(1)(d)  read  with  Section  13(2)  of  the  Prevention  of

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Corruption Act, 1947 (for short, 'P.C. Act') and Sections 120(b), 427, 447

and 506 read with Section 34 of  the Indian Penal Code,  1860.   The

complaint of the complainant contained the following allegations:

3. One Smt.  Amararnmal was the original  owner  of  immovable property

measuring 259.95 acres in Survey No. 597-B and an area measuring

57.30 acres in Survey No. 601-A of Bellari, having purchased the same

from  the  Government  of  India  under  a  registered  sale  deed  dated

January 19, 1940, registered in the office of the Sub-Registrar, Bellari.

The complaint further states that one Smt. Akula Lakshmamma and her

children had obtained money decree against one Pitarnbara Modaliyar

and in the execution of the said decree the decree holder purchased the

land measuring 27.25 acres through court and, thus, became owner of

the said  property  which is  situated at  Survey No.  597-B.  Out  of  this

27.25  acres  of  land,  an  area  measuring  10  acres  of  land  was  later

acquired  by  the  Government  for  forming  high  level  canal  by

Thungabhadra  Project.   However,  the  revenue  authorities  failed  to

demarcate the remaining extent of land measuring 17.25 acres which

forced Smt. Akula Lakshmamma and her children to file a suit seeking

mandatory injunction.  In the meantime, they sold the said 17.25 acres of

land  to  one  Mr.  Parameshwara  Reddy,  father-in-law  of  Mr.  Gali

Janardhana Reddy.  On the same day, i.e. on October 24, 2002, Smt.

Akula  Lakshmamma  and  her  family  members  also  entered  into  an

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agreement for  sale with accused No.6 (Mr. B.  Sriramulu) for  an area

measuring 27.25 acres, which included 10 acres of land that had already

been acquired by the Government.  Thus, accused No.6 entered into

agreement for sale even in respect of the acquired land.  More over,

accused No.6 and Mr. Gali  Janardhana Reddy are close friends and,

therefore, there was no reason to hold that accused No.6 was not aware

of  the  transaction  between  Smt.  Akula  Lakshmamma  and  Mr.

Parameshwara  Reddy.   Accused  No.6  filed  a  suit  for  specific

performance  based  on  the  said  agreement  to  sell  in  which  ex-parte

decree dated April 08, 2003 came to be passed.  On April 21, 2003, Mr.

Parameshwara  Reddy  (with  whom  the  first  agreement  to  sell  was

entered into) sought for change of land use (though in respect of this

very land accused No.6 had filed a suit for specific performance).  The

then Deputy Commissioner accorded his permission for change of land

use vide order dated June 17, 2003.  After this conversion order, Mr.

Parameshwara Reddy gifted the entire land measuring 17.25 acres in

faour of his daughter, Smt. Gali Laxmi Aruna, w/o. Mr. Gali Janardhana

Reddy vide gift deed dated March 21, 2006.  It is alleged that accused

No.6 was fully aware of these facts.  Notwithstanding the same, on the

basis of the ex-parte decree of specific performance obtained by him, he

filed execution petition and obtained the sale  deed from the court  in

respect of the entire 27.25 acres of land.  It was notwithstanding the fact

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that out of this 27.25 acres of land, in respect of which accused No.6

obtained the sale deed, 17.25 acres was claimed by Mr. Parameshwara

Reddy as well and has been gifted to his daughter and the remaining 10

acres of  land had been acquired by the Government.   Not only this,

accused No.6 also applied for conversion of use of this very land and the

authorities passed the order of conversion in his favour as well.  As on

the date of the order of conversion, accused No.6 was holding the post

of Cabinet Minister.  It is alleged that because of this reason he could

obtain  the  order  of  conversion  by  exerting  influence  on  the  revenue

authorities.   Accused  Nos.  3  and  5  (appellants  herein)  are  the

Government  officials  working  as  Assistant  Commissioner  and  Deputy

Director of Land Records respectively.  In respect of the Government

officials,  it  is  alleged  that  accused  No.1,  Revenue  Inspector,  had

conducted spot inspection on January 17, 2011; accused No.3, who is

the Tehsildar, had recommended case for conversion on the same day

and accused No.5, who is the Assistant Commissioner, had given an

endorsement to accused No.6 on the very next day to the effect that

property in question is not  the subject  matter  of  acquisition.   On this

basis, it is alleged that all the officials aided accused No.6 by abusing

their official position.  We may state at this stage itself that the appellants

cannot argue that there are no allegations against them in the complaint

warranting taking cognizance qua them.

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On  the  basis  of  the  aforesaid  allegations,  prayer  was  made  in  the

complaint to secure the presence of accused persons and the complaint

be referred to the Karnataka Lokayukta Police for investigation under

Section  156(3)  of  the  Code  of  Criminal  Procedure,  1973  (for  short,

'Cr.P.C.') since the case required investigatory powers to unearth several

other documents relating to the case.

4. The District and Sessions Judge, Bellari passed order dated June 14,

2003 on the said  complaint  thereby referring the same to  the Police

Inspector, Karnataka Lokayukta Police, Bellary for further investigation

under Section 156(3) of Cr.P.C.  The jurisdictional police registered the

aforesaid case as Crime No. 9/2013 under Section 13(1)(d) read with

Section 13(2) of the P.C. Act and Sections 120(b), 427, 447 and 506

read with Section 34 of the Indian Penal Code, 1860.  The appellants

herein, along with four other persons, filed Criminal Petition No. 10864 of

2013 before the High Court of Karnataka seeking quashing of the said

proceedings.   In this  petition,  order  dated July 08,  2013 was passed

observing that during the pendency of the matter, since the Police had

filed a final report, those petitioners were at liberty to challenge the final

report before the trial court.

5. According to the appellants, this order was passed by the High Court on

erroneous statement made by the counsel as neither the investigation

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was completed nor final report was filed in the court. Therefore, these

appellants filed another Criminal Petition No. 101017 of 2014 seeking

quashing of the entire proceedings.  In the petition, the grounds taken by

the appellants were that there was no allegation of any corrupt practice

in the entire complaint insofar as they are concerned.  It  was further

submitted that before directing further investigation under Section 156(3)

of Cr.P.C. and taking cognizance of the complaint, the trial court should

have satisfied itself that due sanction, as required under Section 19 of

the P.C. Act read with Section 190 of the Cr.P.C., has been obtained and

since  no  such  sanction  was  obtained,  such  an  order  for  further

investigation could not have been passed by the trial court.   

It  may  be  mentioned  that  at  the  time  of  filing  the  complaint,  the

appellants had been transferred from the offices which they were holding

by  virtue  of  their  promotion.   However, they  submitted  that  even  on

transfer  they  continued  to  hold  the  public  office  and,  therefore,

requirement of obtaining sanction was mandatory.

6. The High Court has, however, brushed aside the aforesaid contentions

taken  by  the  appellants  and  dismissed  the  petition  filed  by  them.

Though  the  petition  before  the  High  Court  was  filed  jointly  by  the

appellants,  they  had  chosen  to  file  separate  appeals  in  this  Court

challenging the said judgment.  That is how these two appears filed by

them are aimed at same impugned judgment passed by the High Court.

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7. With this factual background, we advert to the questions of law that arise

for consideration:  

(1)  Whether  an  order  directing  further  investigation  under

Section 156(3)  of  the Cr.P.C.  can  be  passed in  relation to

public servant in the absence of valid sanction and contrary to

the judgments of  this Court  in  Anil  Kumar & Ors.  v.  M.K. Aiyappa & Anr.1 and  Manharibhai Muljibhai Kakadia and Anr. v. Shaileshbhai Mohanbhai Patel and Ors.2?

(2)  Whether a public servant who is not on the same post and

is transferred (whether by way of promotion or otherwise to

another post) loses the protection under Section 19(1) of the

P.C. Act, though he continues to be a public servant, albeit on

a different post?  

8. Since requirement of obtaining sanction is contained in Section 19(1) of

the  P.C.  Act,  it  would  be  proper  to  reproduce  the  same.  For  our

purposes, reproduction of sub-section (1) of Section 19 of the P.C. Act

shall suffice which we reproduce hereinbelow:

“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  [save  as  otherwise  provided  in  the Lokpal and Lokayuktas Act, 2013]—

(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;

1 (2013) 10 SCC 705 2 (2012) 10 SCC 517

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(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. As is clear from the plain language of  the said Section,  the Court  is

precluded from taking “cognizance” of an offence under certain sections

mentioned  in  this  provision  if  the  prosecution  is  against  the  public

servant, unless previous sanction of the Government (Central or State,

as  the  case  may  be)  has  been  obtained.   What  is  relevant  for  our

purposes is that this Section bars taking of cognizance of an offence.

The question is  whether  it  will  cover  within  its  sweep order  directing

investigation under Section 156(3) of the Cr.P.C?  High Court has taken

the view, in the impugned judgment, that bar is from taking cognizance

which  would  not  apply  at  the  stage  of  investigation  by  investigating

officer.  It is observed that sanction is required only after investigation

and that too when, after investigation, it is found that there is substantial

truth in the investigation report  as to what amounts to cognizance of

offence.  The High Court has referred to Section 190 of the Cr.P.C. which

stipulates  that  cognizance  of  an  offence  is  to  be  taken  under  three

contingencies  viz.  (a)  upon  receiving  a  complaint  of  facts  which

constitute such offence, or (b) on the basis of police report stating such

facts which constitute an offence or upon information received from any

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person  other  than  police  officer,  or  (c)  suo  moto when  Magistrate

acquires that  such an offence has been committed.   This position is

clearly discernible from the reading of Section 190 of the Cr.P.C. and we

extract the same hereinbelow:

“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-

1.   upon receiving a complaint  of  facts  which constitute such offence; 2. upon a police report of such facts; 3. 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.”

10. When a complaint is received, the Court records preliminary evidence of

the complainant on the basis of which it  satisfies itself  as to whether

sufficient evidence is placed on record which may prima facie constitute

such offence. Likewise, Police report is filed under Section 173(2) of the

Cr.P.C. on the completion of investigation and on perusal thereof, the

Magistrate  satisfies  himself  about  the  facts  which  constitute  such

offence.  Similar is the position in the third contingency.  On this basis,

the High Court has opined that since prior sanction is required only at

the  time  of  taking  cognizance  which  stage  comes  much  after  the

investigation is ordered under Section 156(3) of Cr.P.C. at the stage of

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giving direction to investigate into the complaint, such a sanction is not

required.   

11. The above view taken by the High Court is contrary to the judgments of

this  Court  in  Manharibhai  Muljibhai  Kakadia  and  Anil  Kumar.   In

Manharibhai  Muljibhai  Kakadia,  the  facts  were  that  the respondent

filed before the CJM a criminal complaint alleging that the appellant had,

by  doing  the  acts  stated,  committed  the  offences  punishable  under

Sections 420, 467, 468, 471 and 120-B IPC.  The CJM, in exercise of his

power under Section 202 CrPC by his order dated 18.06.2004 directed

an enquiry to be made by a police inspector.  The investigating officer

investigated into the matter and submitted a compliant summary report

opining  that  no  offence  was  made  out.   The  CJM  on  16.04.2005

accepted  that  report  and  dismissed  the  complaint.   The  respondent

complainant filed a criminal revision petition thereagainst under Section

397 read with Section 401 CrPC before the High Court.  The appellants

then made an application seeking their impleadment as respondents in

the revision proceedings so that they could be heard in the matter.  On

05.08.2005,  the  High  Court  dismissed  that  application.   Against  that

order, appeal was heard by special leave.  This Court set aside the order

of  the  High  Court  permitting  the  appellants  to  be  impleaded  in  the

revision proceedings.  The Court took note of the provisions of Cr.P.C.

i.e. Section 202, which does not permit an accused person to intervene

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in the course of inquiry by the Magistrate.  However, it  was held that

even while directing inquiry, the Magistrate applies his judicial mind on

the complaint and, therefore, it would amount to taking cognizance of the

matter.  In this context, the Court explained the word “cognizance” in the

following manner:

“34. The word “cognizance” occurring in various sections in the Code is a word of wide import. It embraces within itself all powers and authority in exercise of jurisdiction and taking of authoritative notice of the allegations made in the complaint  or  a police report  or  any information received that  an  offence  has  been  committed.  In  the  context  of Sections  200,  202  and  203,  the  expression  “taking cognizance” has been used in the sense of taking notice of the  complaint  or  the  first  information  report  or  the information  that  an  offence  has  been  committed  on application of judicial mind. It does not necessarily mean issuance of process.”

12. Second judgment in the case of Anil Kumar referred to above is directly

on the point.  In that case, identical question had fallen for consideration

viz. whether sanction under Section 19 of the P.C. Act is a pre-condition

for ordering investigation against a public servant under Section 156(3)

of Cr.P.C. even at pre-cognizance stage?  Answering the question in the

affirmative,  the  Court  discussed  the  legal  position  in  the  following

manner:

“13.  The  expression  “cognizance”  which  appears  in Section  197  CrPC  came  up  for  consideration  before  a three-Judge Bench of this Court in  State of U.P. v. Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200], and  this  Court  expressed  the  following  view:  (SCC  pp. 375, para 6)

“6. … ‘10. … And the jurisdiction of a Magistrate to take

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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.’ [Ed.:  As observed in  State of H.P.  v. M.P. Gupta, (2004) 2 SCC 349, 358, para 10 : 2004 SCC (Cri) 539.] ”

14. In State of W.B. v. Mohd. Khalid [(1995) 1 SCC 684 : 1995 SCC (Cri) 266] , this Court has observed as follows:

“13. 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.” [Ed.: As considered in State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, 734, para 13 : (2006) 3 SCC (Cri) 179.]

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The meaning of the said expression was also considered by this Court in Subramanian Swamy case [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .

15.  The  judgments  referred  to  hereinabove  clearly indicate  that  the  word  “cognizance”  has  a  wider connotation  and  is  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) CrPC,  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 CrPC and the next step to be taken is to follow up under Section 202 CrPC. Consequently,  a  Special  Judge  referring  the  case  for investigation  under  Section  156(3)  is  at  pre-cognizance stage.

xxx xxx xxx

21.   The  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) CrPC. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh [(2009) 6 SCC 372 : (2009)  2  SCC  (L&S)  200]  and  Subramanian  Swamy [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] cases.”

 Having  regard  to  the  ratio  of  the  aforesaid  judgment,  we  have  no

hesitation  in  answering  the  question  of  law, as  formulated  in  para  7

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above, in the negative.  In other words, we hold that an order directing

further  investigation  under  Section  156(3)  of  the  Cr.P.C.  cannot  be

passed in the absence of valid sanction.

13. With this, we now address the second question i.e. whether the public

servant  not  being in  the same post,  when the offence was allegedly

committed, though continuing as a public servant, loses the protection

under Section 19(1) of the P.C. Act? Contention of the respondents was

that sanction under Section 19 of  the P.C. Act  is not required as the

appellants have been transferred from the post which they were holding

at  the  relevant  time.   In  support  of  their  plea  that  even  on

transfer/promotion, the appellants remain public servant, such a sanction

was required, it was submitted that the object of Section 19 of the P.C.

Act is to protect public servant from harassment and, therefore, exercise

of powers under Section 19 of the P.C. Act is not empty formality.  Since

the Government,  as  a sanctioning authority, is  supposed to apply its

mind  to  the  entire  material  and  evidence  placed  before  it  and  on

examination  thereof,  it  is  to  reach  the  conclusion  as  to  whether  the

sanction  is  accorded  or  not.   It  was  also  argued  that  sanction  is  a

weapon  to  ensure  discouragement  of  frivolous  and  vexatious

prosecution and is a safeguard for the innocent but not a shield for the

guilty.  In support of the aforesaid arguments, reliance was placed on

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State  of  Himachal  Pradesh  v.  Nishant  Sareen3 and  Mansukhlal

Vithaldas Chauhan v. State of Gujarat4.   

14. The aforesaid judgments referred to by the appellants state the general

proposition of law and purpose behind Section 19 of the P.C. Act.  On

the other hand, the question that needs to be answered is concerned,

we find that it  had same very question  came up for consideration in

Abhay Singh Chautala  v.  Central Bureau of Investigation5.  In that

case, the appellants were MLAs when charges under the P.C. Act were

framed against  them.  However the charges pertained to wrongdoing

committed during earlier periods of time during which they had also been

MLAs or MPs.  The charges did not pertain to their current tenure as

MLAs during which the charges were framed and trial initiated.  On the

date when charges were framed no sanction under Section 19, P.C. Act

was  obtained.   An  objection  regarding  the  absence  of  sanction  was

raised before the Special Judge, who in the common order held that the

charge-sheet  did  not  contain  the  allegation  that  the  appellants  had

abused their  current  office  as MLAs and,  therefore,  no sanction was

necessary.  The High Court by the impugned order under Section 482

Cr.P.C. did not interfere with the said prosecution.  This Court put its

imprimatur to the aforesaid view of the High Court thereby dismissing

the appeals.  After discussing catena of judgments, it was held that even 3 (2010) 14 SCC 527 4 (1997) 7 SCC 622 5 (2011) 7 SCC 141

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when the appellants in that case held more than one offices during the

check period which they are alleged to have abused; however, there will

be no requirement of sanction if  on the date when the cognizance is

taken, they are not continuing to hold that very office.  It was held that

the relevant time is the date on which the cognizance is taken.  If on that

date, the appellant was not a public servant, there was no question of

any sanction.  It was also held that even if he continues to be a public

servant but in a different capacity or is holding a different office than the

one  which  is  alleged  to  have  been  abused,  still  there  would  be  no

question of sanction.  This can be found from the reading of paragraphs

54 and 56 of the judgment which we reproduce below:

“54.  The  learned  Senior  Counsel  tried  to  support  their argument on the basis of the theory of “legal fiction”. We do not see as to how the theory of “legal fiction” can work in this case. It may be that the appellants in this case held more than one offices during the check period which they are  alleged  to  have  abused;  however,  there  will  be  no question of any doubt if on the date when the cognizance is taken, they are not continuing to hold that very office. The relevant time, as held in S.A. Venkataraman v. State [AIR 1958 SC 107 : 1958 Cri LJ 254], is the date on which the cognizance is taken. If on that date, the appellant is not a public servant, there will be no question of any sanction. If  he continues to be a public  servant  but  in  a different capacity or holding a different office than the one which is alleged to have been abused, still there will be no question of sanction and in that case, there will also be no question of  any  doubt  arising  because  the  doubt  can  arise  only when the  sanction  is  necessary. In  case of  the  present appellants, there was no question of there being any doubt because basically there was no question of the appellants' getting any protection by a sanction.

xx xx xx

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56.  Thus, we are of the clear view that the High Court was absolutely right in relying on the decision in Prakash Singh Badal v. State of Punjab to hold that the appellants in both the appeals had abused entirely different office or offices than the one which they were holding on the date on which cognizance  was  taken  and,  therefore,  there  was  no necessity of sanction under Section 19 of the Act as held in K. Karunakaran v. State of Kerala and the later decision in  Prakash Singh Badal  v. State of Punjab.  The appeals are without any merit and are dismissed.”

15. In  the  aforesaid  extracted  paragraph  54  there  is  a  reference  to  the

judgment of this Court in  S.A. Venkataraman.  In that case, the issue

was  considered  in  the  context  of  the  P.C.  Act  wherein  the  relevant

provision,  corresponding  to  Section  19  of  the  present  P.C.  Act,  was

Section 6.  Interpreting the provisions of Section 6, this Court held that

even when a purported offence is committed by a person at the time he

was a public servant, but he ceases to be a public servant on the date

when  cognizance  of  the  offence  alleged  to  have  been  committed  is

taken by the Court, no such sanction was required.

16. Likewise,  in  the  case  of  Prakash  Singh  Badal  &  Anr.  v.  State  of

Punjab  &  Ors.6,  the  contention  of  the  appellant  in  that  case  that

permission to obtain sanction throughout service was necessary, was

negatived in the following manner:

“24.  The plea is clearly untenable as Section 19(1) of the Act is time and offence related.

Section 19(1) of the Act has been quoted above.

6 (2007) 1 SCC 1

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25.  The underlying principle of Sections 7, 10, 11, 13 and 15 have been noted above. Each of the above sections indicates  that  the  public  servant  taking  gratification (Section 7), obtaining valuable thing without consideration (Section  11),  committing  acts  of  criminal  misconduct (Section  13)  are  acts  performed  under  the  colour  of authority but which in reality are for the public servant's own pleasure or  benefit.  Sections 7,  10,  11,  13 and 15 apply to aforestated acts. Therefore, if a public servant in his  subsequent  position  is  not  accused  of  any  such criminal  acts  then  there  is  no  question  of  invoking  the mischief rule. Protection to public servants under Section 19(1)(a)  has  to  be  confined to  the  time-related  criminal acts  performed  under  the  colour  or  authority  for  public servant's  own  pleasure  or  benefit  as  categorised  under Sections 7, 10, 11, 13 and 15. This is the principle behind the  test  propounded  by  this  Court,  namely,  the  test  of abuse of office.”

17. It  clearly  follows  from the  reading  of  the  judgments  in  the  cases  of

Abhay Singh Chautala  and  Prakash Singh Badal that  if  the public

servant had abused entirely different office or offices than the one which

he was holding on the date when cognizance was taken, there was no

necessity of sanction under Section 19 of the P.C. Act.  It is also made

clear that where the public servant had abused the office which he held

in the check up period, but had ceased to hold 'that office' or was holding

a  different  office,  then  sanction  would  not  be  necessary.   Likewise,

where the alleged misconduct is in some different capacity than the one

which is held at the time of taking cognizance, there will be no necessity

to take the sanction.   However, one discerning factor  which is  to  be

noted  is  that  in  both  these  cases  the  accused  persons  were  public

servants in the capacity of Member of Legislative Assembly / by virtue of

political  office.   They  were  not  public  servants  as  government

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employees.  However, detailed discussion contained in these judgments

would indicate that the principle laid down therein would encompass and

cover the cases of all public servants, including government employees

who  may  otherwise  be  having  constitutional  protection  under  the

provisions of Article 309 and 311 of the Constitution.  To illustrate, we

may quote the following passage from the judgment of this Court in the

case of  R.S. Nayak  v.  A.R. Antulay7,  which is reproduced along with

other paragraphs from the judgment in Prakash Singh Badal:

“23.  Offences  prescribed in  Sections  161,  164 and 165 IPC and Section 5 of the 1947 Act have an intimate and inseparable relation with the office of a public servant. A public servant occupies office which renders him a public servant and occupying the office carries with it the powers conferred on the office. Power generally is not conferred on an individual person. In a society governed by rule of law power is conferred on office or acquired by statutory status and the individual occupying the office or on whom status  is  conferred  enjoys  the  power  of  office  or  power flowing  from  the  status.  The  holder  of  the  office  alone would  have  opportunity  to  abuse  or  misuse  the  office. These sections codify a well-recognised truism that power has the tendency to corrupt. It is the holding of the office which gives an opportunity to use it  for corrupt motives. Therefore, the corrupt conduct is directly attributable and flows  from  the  power  conferred  on  the  office.  This interrelation and interdependence between individual and the office he holds is substantial and not severable. Each of the three clauses of sub-section (1) of Section 6 uses the expression “office” and the power to grant sanction is conferred on the authority competent to remove the public servant from his office and Section 6 requires a sanction before taking cognizance of offences committed by public servant.  The offence would  be  committed  by  the  public servant by misusing or abusing the power of office and it is from  that  office,  the  authority  must  be  competent  to remove him so as to  be entitled to  grant  sanction.  The removal  would  bring  about  cessation  of  interrelation

7 (1984) 2 SCC 183

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between the office and abuse by the holder of the office. The link between power with opportunity to abuse and the holder of office would be severed by removal from office. Therefore, when a public servant is accused of an offence of  taking  gratification  other  than  legal  remuneration  for doing or forebearing to do an official act (Section 161 IPC) or  as  a  public  servant  abets  offences punishable  under Sections  161  and  163  (Section  164  IPC)  or  as  public servant obtains a valuable thing without consideration from person  concerned  in  any  proceeding  or  business transacted  by  such public  servant  (Section  165 IPC) or commits criminal misconduct as defined in Section 5 of the 1947 Act, it is implicit in the various offences that the public servant has misused or abused the power of office held by him as public servant. The expression “office” in the three sub-clauses  of  Section  6(1)  would  clearly  denote  that office  which  the  public  servant  misused  or  abused  for corrupt motives for which he is to be prosecuted and in respect of which a sanction to prosecute him is necessary by  the  competent  authority  entitled  to  remove him from that office which he has abused. This interrelation between the office and its abuse if severed would render Section 6 devoid  of  any  meaning.  And  this  interrelation  clearly provides a clue to the understanding of  the provision in Section 6 providing for sanction by a competent authority who would be able to judge the action of the public servant before removing the bar, by granting sanction, to the taking of  the  cognizance  of  offences  by  the  court  against  the public servant. Therefore, it unquestionably follows that the sanction  to  prosecute  can  be  given  by  an  authority competent  to  remove the  public  servant  from the  office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction  is  not  an  idle  formality  but  a  solemn  and sacrosanct act which removes the umbrella of protection of Government  servants  against  frivolous prosecutions and the  aforesaid  requirements  must  therefore,  be  strictly complied with before any prosecution could be launched against public servants. (See Mohd. Iqbal Ahmad v. State of A.P. [(1979) 4 SCC 172 : 1979 SCC (Cri) 926 : AIR 1979 SC 677 : (1979) 2 SCR 1007] ) The Legislature advisedly conferred power on the authority competent to remove the public  servant  from the  office  to  grant  sanction  for  the

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obvious reason that  that  authority  alone would  be able, when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is  either  frivolous  or  speculative.  That  authority  alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public  servant.  That  authority  would  be  in  a  position  to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done.  That  competent  authority  alone  would  know  the nature  and  functions  discharged  by  the  public  servant holding the office and whether the same has been abused or  misused.  It  is  the  vertical  hierarchy  between  the authority competent to remove the public servant from that office  and  the  nature  of  the  office  held  by  the  public servant  against  whom  sanction  is  sought  which  would indicate  a  hierarchy  and  which  would  therefore,  permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That  is  why  the  Legislature  clearly  provided  that  that authority  alone  would  be  competent  to  grant  sanction which  is  entitled  to  remove  the  public  servant  against whom sanction is sought from the office.”

18. In  the  case  of  the  present  appellants,  there  was no  question  of  the

appellants' getting any protection by a sanction.  The High Court was

absolutely right in relying on the decision in  Prakash Singh Badal to

hold that the appellants in both the appeals had abused entirely different

office or offices than the one which they were holding on the date on

which cognizance was taken and, therefore, there was no necessity of

sanction  under  Section  19,  P.C.  Act.   Where  the  public  servant  had

abused the office which he held in the check period but had ceased to

hold “that office” or was holding a different office, then a sanction would

not be necessary.  Where the alleged misconduct is in some different

capacity than the one which is held at the time of taking cognizance,

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there will be no necessity to take the sanction.

19. Insofar as argument of the appellants that there is no specific averment

in  the  complaint  for  having  committed  the  alleged  act  by  them  is

concerned,  we  are  unable  to  agree  with  this  argument.  As  already

pointed out above, allegations against these two appellants are that after

conducting  spot  inspection  by  accused  No.1  on  17.01.2003,  first

appellant  (accused  No.3)  who  was  working  as  Tehsildar  had

recommended it on same day and thereafter second appellant (accused

No.6)  who  was  working  as  Assistant  Commissioner  had  given  an

endorsement on the very next day to the effect that property is not the

subject  matter  of  acquisition.   On this  basis,  it  is  alleged that  these

officials have abused their official position.  We may record that learned

counsel for the appellants have contended that they merely acted on the

court decree.  However, it may be two innocent explanation on the facts

of this case as alleged in the case inasmuch as it is alleged that these

two appellants did not bother to find out that there were two decrees in

two different names in respect of same land and further that 10 acres of

land in question had already been acquired and could not be the subject

matter of decree.  These were the aspects which were,  prima facie, to

be looked into by these appellants.  On the basis the aforesaid purported

defence, therefore, the proceedings cannot be quashed.  It would be a

matter of evidence on the basis of which culpability of the appellants

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shall be judged.  

20. The aforesaid discussion leads us to the conclusion that the judgment of

the High Court though on the issue of obtaining the sanction at the time

of  taking  cognizance  may  not  be  correct  insofar  as  question  No.1

formulated above is concerned, in the facts of the present case, insofar

as question No.2 is concerned, it is rightly decided.  Effect thereof would

be to hold that sanction was not needed as the appellants, at the time of

taking cognizance, were not holding the post which is alleged to have

been misused.

21. As a consequence, these appeals fail and are, accordingly, dismissed

with no order as to costs.

.............................................J. (A.K. SIKRI)

..............................................J. (N.V. RAMANA)

NEW DELHI; SEPTEMBER 06, 2016.