Full Judgment Text
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
2025 INSC 515
SPECIAL LEAVE PETITION (Crl.) No.520/2021
B.S YEDDIYURAPPA Petitioner(s)
VERSUS
A ALAM PASHA & ORS. Respondent(s)
WITH
SLP(Crl) No. 758/2021
SLP(Crl) No. 2318/2021
SLP(Crl) No. 2753/2021
SLP(Crl) No. 3372/2021
SLP(Crl) No. 9361/2021
SLP(Crl) No. 8675/2022
SLP(Crl) No. 5333-5347/2016
O R D E R
1. We heard these matters at length across several dates
and concluded the hearing on 04.04.2025 framing, inter
alia , the following questions for our consideration:
I. What are the relevant considerations as
contemplated by Section 17A of the Prevention
of Corruption Act, 1988 (for short, “the PC
Act”) which the appropriate authority or
government is expected to look into before
the grant of approval for initiation of any
enquiry, inquiry, or investigation by the
police?
II. Whether the considerations which weigh with
the appropriate authority or government while
granting approval under Section 17A of the PC
Act are fundamentally so different from the
one that a Magistrate is ordinarily expected
to apply while passing an order under Section
156(3) of the Code of Criminal Procedure,
1973 (for short, “the Cr.P.C.”) so as to
preclude the Magistrate from fulfilling the
object underlying Section 17A of the PC Act?
In other words, whether the considerations
under Section 17A of the PC Act are of such
a nature that they are necessarily beyond the
ambit or scope of consideration by a
Magistrate while directing an investigation
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2025.04.21
15:11:56 IST
Reason:
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under Section 156(3) of the Cr.P.C.?
III. As a natural corollary of the aforesaid,
could it be said that once a Magistrate has
applied his mind under Section 156(3) of the
Cr.P.C., the requirement of a prior approval
under Section 17A of the PC Act is
meaningless, redundant and no longer
necessary? Could it be said that a police
officer, despite a direction under Section
156(3) by a Magistrate, would remain
inhibited from conducting any enquiry,
inquiry, or investigation without prior
approval as required by Section 17A? If yes,
how does the standard of application of mind
by the appropriate authority differ from that
of the Magistrate?
IV. In case of a private complaint, whether
Section 19 of the PC Act, more particularly
parts (i) and (ii) of the First Proviso
therein contemplates that sanction would be
required only after the Magistrate first
completes the stage of examining the
complainant and / or causing a magisterial
inquiry wherever necessary in terms of
Section(s) 200 and 202 of the Cr.P.C.
respectively? In other words, whether the
three conditions envisaged under the First
Proviso, namely that a complaint has been
filed as per Part (i) and that the court has
not only not dismissed such complaint but
also explicitly directed the obtainment of
sanction as per Part (ii), necessarily
implies that it is open for the Magistrate to
proceed in terms of Chapter XV more
particularly under Section(s) 200, 202 and
203 even without the grant of sanction under
Section 19 of the PC Act? If so, whether such
an interpretation is limited only for the
purpose of “cognizance” under Section 19 of
the PC Act?
V. Whether, Part (ii) of the First Proviso to
Section 19 of the PC Act, more particularly
the expression “the court has not dismissed
the complaint under section 203” necessarily
envisages that the Magistrate ought to have
first considered the statements of the
complainant and the witnesses(s) and / or of
any magisterial inquiry in terms of
Section(s) 200 and 202 of the Cr.P.C.? In
other words, could it be said that the
Magistrate takes cognizance only after
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deciding not to dismiss the complaint under
Section 203 especially in light of the
decision in Legal Remembrancer v. Abani Kumar
Banerji, reported in 1950 SCC OnLine Cal 49,
which observed thus:
“9. I have for myself no hesitation in
feeling that there is nothing which would
justify our referring the matter to the
Full Bench. As I read s. 190 of the Code
of Criminal Procedure and the subsequent
sections, it seems to me to be clear that
a magistrate is not bound to take
cognizance of an offence, merely because a
petition of complaint is filed before him.
Mr. Mukherji's argument is that a
magistrate cannot possibly take any action
with regard to a petition of complaint,
without applying his mind to it, and taking
cognizance of the offence mentioned in the
complaint necessarily takes place, when the
magistrate's mind is applied to the
petition. Consequently Mr. Mukherji
argues, whenever a magistrate takes the
action, say, of issuing search warrant or
asking the police to enquire and to
investigate, he has taken cognizance of the
case. In my judgment, this is putting a
wrong connotation on the words “taking
cognizance”. What is “taking cognizance”
has not been defined in the Code of
Criminal Procedure, and I have no desire
now to attempt to define it. It seems to
me clear, however, that before it can be
said that any magistrate has taken
cognizance of any offence under s.
190(1)(a) of the Code of Criminal
Procedure, he must not only have applied
his mind to the contents of the petition,
but he must have done so for the purpose
of proceeding in a particular way as
indicated in the subsequent provisions of
this Chapter,—proceeding under s. 200, and
thereafter sending it for enquiry and
report under s. 202. When the magistrate
applies his mind not for the purpose of
proceeding under the subsequent sections of
this Chapter, but for taking action of some
other kind, e.g., ordering investigation
under s. 156(3), or issuing a search
warrant for the purpose of the
investigation, he cannot be said to have
taken cognizance of the offence. My
conclusion, therefore, is that the learned
magistrate is wrong in thinking that the
Chief Presidency Magistrate was bound to
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take cognizance of the case as soon as the
petition of complaint was filed.” (Emphasis
supplied)
VI. Whether it could be said that the First
Proviso to Section 19 of the PC Act is
detached from the substantive part contained
in sub-section (1) of the said provision?
VII. Whether the requirements introduced by
Section 17A and the amended Section 19 of the
PC Act could be said to be retrospectively
applicable? Since the aforesaid procedural
changes were brought in tandem with the
substantive changes in the very offences
itself as provided under Section(s) 7, 11, 13
and 15 respectively of the PC Act by way of
the 2018 Amendment Act, whether the same
necessarily implies that the introduction of
Section 17A as-well as the amendment of
Section 19 were not merely procedural but
also substantive in nature, and thus, only
ought to be applicable prospectively? In
other words, whether the conspectus of
amendments to the PC Act, i.e., Section(s) 7,
11, 13, 15, 17A and 19 respectively is so
intrinsically intertwined with each other in
such a manner that they can neither survive
without each other nor can they be read in
isolation from one another and thus can only
be regarded as nothing but substantive in
nature?
Notwithstanding the fact that the changes
brought about by Section 17A and the amended
Section 19 of the PC Act are substantive in
nature and not merely procedural, could it be
said that the said provisions would
nevertheless have a retrospective effect by
virtue of the said provisions either being
clarificatory and explanatory in nature or
having the effect of providing certain
safeguards and benefits to the accused
persons under the PC Act that ought to enure
to the benefit of an accused
retrospectively?”
2. The context in which the aforesaid issues arise would
be clear from what is narrated below.
3. On 26.04.2012, the first respondent filed a complaint
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against the petitioner and others (who were Government
Servants) alleging commission of offences, inter
alia, punishable under section 13 (1)(c) read with
section 13 (2) of the Prevention of Corruption Act,
1
1988 .
4. At the time of commission of the alleged offences,
the petitioner was Chief Minister, Karnataka, which
office he held from 30.05.2008 to 31.07.2011. By an
order dated 21.05.2012, passed under section 156 (3)
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of Code of Criminal Procedure, 1973 , the complaint
was referred to Lokayukta police for investigation.
Pursuant thereto, FIR was registered alleging
commission of offences under the Indian Penal Code,
1860 (for short IPC) and the PC Act.
5. Pursuant to the investigation, a final report was
submitted, and cognizance was taken on 24.06.2013.
Aggrieved therewith, the petitioner invoked the
jurisdiction of the High Court under section 482 of
the CrPC for quashing the aforementioned FIR and
consequential proceedings by placing reliance on a
decision of this Court in “ Anil Kumar vs. M.K.
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Aiyappa ”, wherein it was held that “once it was
noticed that there was no previous sanction, the
1
PC Act
2
CrPC
3
(2013) 10 SCC 705
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Magistrate cannot order investigation against the
public servant while invoking powers under section
156 (3) of CrPC”.
6. The High Court by its order dated 11.10.2013 allowed
the 482 CrPC petition and quashed the FIR as well as
the subsequent proceedings in absence of sanction by
relying upon the decision of this Court in Aiyappa
(supra).
7. The order dated 11.10.2013 attained finality.
However, on 12.12.2013, the first respondent filed
another complaint making almost identical allegations
by adding that the accused have ceased to hold office
therefore sanction to prosecute them under section 19
of the PC Act is not required.
8. On 26.08.2016, the trial court dismissed the second
complaint, inter alia, on the ground that there was
no sanction.
9. Aggrieved by dismissal of the second complaint, the
first respondent filed a 482 petition before the High
Court, which came to be allowed by the impugned order
dated 05.01.2021.
10. While allowing the 482 petition the High Court,
inter alia, directed that the PCR No.32/2014 shall
stand restored to the file and shall proceed against
the accused, except accused no.3 in respect of whom the
sanction was denied, in accordance with law.
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11. Aggrieved by the aforesaid order of the High
Court, this petition has been filed. Briefly put,
submissions on behalf of petitioner, inter alia, are:
(a) second complaint is not maintainable; (b) sanction
is required in view of amended Section 19 and newly
inserted Section 17-A of the PC Act; (c) Aiyappa’s
(supra) judgment is a good law unless set aside by a
larger Bench where the reference is pending,
therefore, High Court was not justified in interfering
with the order rejecting the complaint.
12. Elaborating upon the aforesaid submissions, on
behalf of the petitioner it was argued that the
allegations in the complaint if are taken at their
face value would relate to a decision taken by a
public servant in discharge of his official functions
or duties and therefore, the bar on investigation as
put by section 17 A of the PC Act, inserted by Act 16
of 2018, with effect from 26.07.2018, would apply even
if we assume that while passing order under Section
156(3) the Magistrate does not take cognizance. But
so long Aiyyapa’s judgment stands, bar of section 19
of PC Act as well as section 197 of CrPC would apply.
13. Elaborating further on the bar of section 19 of
the PC Act, it was argued that pursuant to the
amendment brought to section 19 by Act 16 of 2018, if
the commission of offence relates to the period while
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such person was in service, the protection of section
19 would be available regardless of his continuance
in service.
13. In addition to above, it was argued that insofar
as the offences under the IPC are concerned, the
requirement of sanction under section 197 of the CrPC
is required, even though the accused is no longer in
office.
14. It was also argued that on the question as to
whether the protection of section 17 A would be available
in respect of offences committed prior to the date of
its insertion in the statute book, there is a split
verdict of this Court, and the matter has been referred
to a larger bench in “ Nara Chandrababu Naidu vs. State
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of Andhra Pradesh and Another ”.
15. Besides above, on behalf of the petitioner, it
was argued that though correctness of the decision in
Aiyappa’s case has been doubted and referred to a larger
bench of this court in “ Manju Surana vs. Sunil Arora &
5
Ors. ”, the decision of the larger bench is yet to come.
16. Per contra, on behalf of the respondents, it was
submitted, inter alia, that Aiyappa’s decision is in the
teeth of a three-Judge bench decision of this Court in
4
(2024) SCC OnLine SC 47
5
(2018) 5 SCC 557
8
6
“ R.R. Chari vs. State of Uttar Pradesh ” as also the
settled position that while exercising power under
section 156 (3) of CrPC, the concerned Magistrate does
not take cognizance of the offences, therefore no
sanction is required at that stage.
17. Insofar as bar on investigation placed by section
17 A is concerned, the submission on behalf of
respondents is two-fold. First, it does not proscribe a
court from directing investigation in exercise of its
powers under the CrPC; and second, it would not apply
to Court directed investigation.
18. With regard to the maintainability of the second
complaint, the respondents have relied on a number of
decisions to contend that where the first complaint is
rejected on technical grounds without touching upon the
merits, a second complaint would be maintainable.
19. In the context of the aforesaid submissions, we
had reserved the matter for judgment while framing the
aforesaid questions for consideration.
20. However, while preparing the judgment, on the
issue relating to applicability of Aiyappa’s decision we
came across an order of this court dated 16.04.2024
passed by a coordinate bench of this Court in SLP (Crl)
Nos.3567-3568/2017 “ Shamin Khan vs. Debashish
6
AIR 1951 SC 207; 1951 SCC Online SC 22
9
Chakrabarty & Ors .”, which reads as under:
“Heard learned counsel on both sides. Upon hearing
the learned counsel and on perusing the materials on
record, we find that the question which was already
referred to a larger Bench, as per the judgment in
“Manju Surana vs. Sunil Arora & Ors.” (2018) 5 SCC
557, is involved in this case as well.
The question referred under the judgment in Manju
Surana’s case (supra) is whether, while directing an
investigation in terms of provisions under Section
156(3) of the CrPC, the Magistrate is applying his
mind. In other words, whether the Magistrate takes
‘cognizance at that stage’.
We are of the considered view that scanning of the
provisions under Sections 156(3), 173(2), 190, 200,
202, 203 and 204 of the CrPC would, prima facie,
reveal that while directing for an investigation and
forwarding the complaint therefor, the Magistrate is
not actually taking cognizance. However, since the
said question is referred as per the above judgment,
judicial discipline and propriety dissuade us from
proceeding further with the case and hence, we order
to tag the captioned matters also along with the
matter(s) already referred. Ordered accordingly.
The judgment in Manju Surana (supra) would reveal
that the matters were referred to larger Bench on
27.3.2018. Considering the fact that question
involved is a matter of relevance and such issues
arises frequently for consideration before Courts,
we are of the considered view that an earlier
decision on the question referred is solicited.
Registry is directed to place these matters before
the Hon’ble the Chief Justice of India for
appropriate orders.”
(Emphasis supplied)
20. As for maintaining judicial discipline a
coordinate bench of this Court has refrained from
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proceeding further in deciding the underlying issue ,
which is under reference to a larger bench, we deem it
appropriate to tag these petitions with the referred
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Whether the bar of Section 19 of the PC Act would be applicable on exercise of power under Section 156 (3) of CrPC.
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matter “Manju Surana vs. Sunil Arora & Ors.” (supra).
21. The registry is directed to place these matters
before the Hon’ble Chief Justice of India for
appropriate orders.
……………………………………J.
[J.B. PARDIWALA]
………………………………………J.
[MANOJ MISRA]
NEW DELHI;
April 21, 2025
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