ANIL KUMAR vs. M.K AIYAPPA

1 REPORTABLE

CRIMINAL APPEAL NOS. 1590-1591 OF 2013 (@ Special Leave Petition (Criminal) Nos.6652-6653 of 2013) Anil Kumar & Ors. ….. Appellants Versus M.K. Aiyappa & Anr. ….. Respondents J U D G M E N T K.S. RADHAKRISHNAN, J. JUDGMENT 1. Leave granted. 2. We are in this case concerned with the question whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 Cr.P.C. for investigation by the Deputy Superintendent of Police – Page 1 2 Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) Cr.P.C. without the production of a valid

3. The Appellants herein filed a private complaint under Section 200 of Cr.P.C. before the Additional City Civil and Special Judge for Prevention of Corruption on 9.10.2012. The complaint of the Appellants was that the first respondent with mala fide intention passed an order dated 30.6.2012 in connivance with other officers and restored valuable land in favour of a private person. On a complaint being raised, the first respondent vide order dated 6.10.2012 recalled the JUDGMENT earlier order. Alleging that the offence which led to issuance of the order dated 30.6.2012 constituted ingredients contained under Section 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section 120-B IPC and Section 149 IPC and Section 8, 13(1)(c), 13(1)(d), 13(1)(e), 13(2) read with Section 12 of the Prevention of Corruption Act, a private Page 2 3 complaint was preferred under Section 200 Cr.P.C. On receipt of the complaint, the Special Judge passed an order

Point No.2 : In view of my finding on point No.1 and for the foregoing reasons, I proceed to pass the following : ORDER The complaint is referred to Deputy Superintendent of Police – 3 Karnataka Lokayukta, Bangalore Urban under Section 156(3) of Cr.PC for investigation and to report.” JUDGMENT 4. Aggrieved by the said order, the first respondent herein approached the High Court of Karnataka by filing Writ Petition Nos.13779-13780 of 2013. It was contended before the High Court that since the appellant is a pubic servant, a complaint brought against him without being accompanied by a valid sanction order could not have been entertained by Page 3 4 the Special Court on the allegations of offences punishable under the Prevention of Corruption Act. It was submitted

Special Judge at pre-cognizance stage, yet, the governmental sanction cannot be dispensed with. It was also contended that the requirement of a sanction is the pre- requisite even to present a private complaint in respect of a public servant concerning the alleged offence said to have been committed in discharge of his public duty. 5. The High Court, after hearing the parties, took the view that the Special Judge could not have taken notice of the JUDGMENT private complaint unless the same was accompanied by a sanction order, irrespective of whether the Court was acting at a pre-cognizance stage or the post-cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in discharge of his official duties. The High Court, therefore, quashed the order passed by the Page 4 5 Special Judge, as well as the complaint filed against the appellant. Aggrieved by the same, as already stated, the

Kailash Vasdev, learned senior counsel appearing for the appellants, submitted that if the interpretation of the High Court is accepted, then the provisions of Section 19(3) of the PC Act would be rendered otiose. Learned senior counsel also submitted that, going through the above mentioned provision, the requirement of sanction under Section 19(1) is only procedural in nature and the same can be cured at a subsequent stage of the proceedings even after filing of the JUDGMENT charge-sheet and hence the requirement of “previous sanction” is merely directory and not mandatory. Reliance was placed on the judgments of this Court in R. S. Nayak v. A.R. Antulay (1984) 2 SCR 495 and P. V. Narasimha Rao v. State (CBI/SPE) (1998) 4 SCC 626. Learned senior counsel further submitted that the High Court also Page 5 6 committed an error in holding that the sanction was necessary even while the Court was exercising its jurisdiction

Section 156(3) Cr.P.C. would not amount to taking cognizance of the offence. Reference was made to the judgments of this Court in Tula Ram and Others v. Kishore Singh (1977) 4 SCC 459 and Srinivas Gundluri and Others v. SEPCO Electric Power Construction Corporation and Others (2010) 8 SCC 206. 7. Shri Uday U. Lalit, learned senior counsel appearing for the respondents, on the other hand, submitted that the JUDGMENT question raised in this case is no more res integra . Reference was made to the judgment of this Court in Subramanium Swamy v. Manmohan Singh and another (2012) 3 SCC 64. Learned senior counsel submitted that the question of sanction is of paramount importance for protecting a public servant who has acted in Page 6 7 good faith while performing his duties. The purpose of obtaining sanction is to see that the public servant be not

without fear and favour. Learned senior counsel also placed reliance on the judgment of this Court in Maksud Saiyed v. State of Gujarat and Others (2008) 5 SCC 668 and submitted that the requirement of application of mind by the Magistrate before exercising jurisdiction under Section 156(3) Cr.P.C. is of paramount importance. Learned senior counsel submitted that the requirement of sanction is a prerequisite even for presenting a private complaint under Section 200 Cr.P.C. and the High Court has rightly quashed JUDGMENT the proceedings and the complaint made against the respondents. 8. We may first examine whether the Magistrate, while exercising his powers under Section 156(3) Cr.P.C., could act in a mechanical or casual manner and go on with the Page 7 8 complaint after getting the report. The scope of the above mentioned provision came up for consideration before this

by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, JUDGMENT documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required Page 8 9 nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated

investigation under Section 156(3) Cr.P.C. would amount to taking cognizance of the offence, since a contention was raised that the expression “cognizance” appearing in Section 19(1) of the PC Act will have to be construed as post- cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act. The expression “cognizance” which appears JUDGMENT in Section 197 Cr.P.C. came up for consideration before a three-Judge Bench of this Court in State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372, and this Court expressed the following view: “6. .............And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon Page 9 10

JUDGMENT xxx xxx xxx xxx xxx xxx” Page 10 11 In State of West Bengal and Another v. Mohd. Khalid and Others (1995) 1 SCC 684, this Court has observed as follows: “ It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.” 10. The meaning of the said expression was also considered by this Court in Subramanium Swamy case (supra). The judgments referred to herein above clearly JUDGMENT indicate that the word “cognizance” has a wider connotation and not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post- Page 11 12 cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200

the case for investigation under Section 156(3) is at pre- cognizance stage. 11. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with all the magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under Section 190 Cr.P.C. or proceed further in JUDGMENT enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) Cr.P.C. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a Page 12 13 private complaint for police investigation under Section 156(3) Cr.P.C.

legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage. Section 2(c) of the PC Act deals with the definition of the expression “public servant” and provides under Clauses (viii) and (xii) as under: “(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty. (xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.” JUDGMENT The relevant provision for sanction is given in Section 19(1) of the PC Act, which reads as under: “19. Previous sanction necessary for prosecution .—(1) No court shall take cognizance Page 13 14 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—

Section 19(3) of the PC Act also has some relevance; the operative portion of the same is extracted hereunder: “ Section 19(3) – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- JUDGMENT (a) no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; (b) xxx xxx xxx Page 14 15 (c) xxx xxx xxx” 13. Learned senior counsel appearing for the appellants

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 JUDGMENT noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been Page 15 16 clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).

2011 in the case of General Officer, Commanding v. CBI and opined as follows: “Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.” JUDGMENT 15. We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order passed by the High Court. The appeals lack merit and are accordingly dismissed. Page 16 17 …….……………………….J. (K.S. Radhakrishnan) ……………………………J. (A.K. Sikri) New Delhi, October 01, 2013 JUDGMENT Page 17