Partly allowed

Sri N.C. Shivakumar v. State by Lokayuktha Police

Karnataka HC8 Sept 2016CRL.P/2006/2014

Case brief

AI extract

What is this about?

Private corruption complaints against public servants raised questions of prior sanction and cognizance. The court held that sanction need not accompany a complaint referred for investigation. It quashed unreasoned investigation orders and directed fresh consideration, but dismissed the remaining criminal petition.

What did the court decide?

Investigation referral orders in all petitions except Crl.P.999/2015 quashed; respective courts directed to proceed from presentation of the complaints in accordance with law.

Sri N.C. Shivakumar Vs State by Lokayuktha Police — Corruption | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 08^TH DAY OF SEPTEMBER 2016

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BEFORE

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THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

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CRIMINAL PETITION No.2006 OF 2014

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CONNECTED WITH

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CRIMINAL PETITION No.2005 OF 2014

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CRIMINAL PETITION No.999 OF 2015

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WRIT PETITION No.52901 OF 2013 (GM-RES)

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WRIT PETITION Nos.27692-27693 OF 2015 (GM-RES)

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IN CRL.P.2006/2014

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BETWEEN:

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Sri. N.C.Shivakumar, Son of Sri. N.C.Chandaiah,

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Aged about 39 years, Engineer,

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Hassan Urban Development Authority, Hassan District – 573 201.

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Sri. M.C.Sathyanarayana,

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Son of Late Sri. M.N.Channegowda, Aged about 44 years, Assistant Engineer, Hassan Urban Development Authority, Hassan District – 573 201.

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…PETITIONERS

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(By Shri C.R.Gopalaswamy, Advocate)

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AND:

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State by Lokayuktha Police, Hassan District, Represented by Special Public Prosecutor for Lokayukta, Bangalore – 560 001.

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Sri. N. Annappa, Son of Sri. Ninganna Shetty, Aged about 73 years, Opposite Akashavani, Salagame Road, Hassan Town – 573 201.

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…RESPONDENTS (By Shri Venkatesh S. Arabatti, S.P.P., for Respondent No.1; Respondent No.2 served)

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This Criminal Petition is filed under Section 482 code of Criminal Procedure, 1973, praying to 1) quash the proceedings in PCR No.47/2013 pending on the file of Principal District and Sessions Judge, Hassan, in so far as the petitioner are concerned. 2) quash the First Information Report registered by the first respondent vide Crime No.55/2013 against the petitioners pending on the file of Principal District and Sessions Judge, Hassan (arising out of PCR.No.47/2013). IN CRL.P.2005/2014

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BETWEEN:

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Sri. K.M.Ramesh, Son of Sri Manjegowda, Aged about 44 years, Commissioner,

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Hassan Urban Development Authority, B.M.Road,

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Hassan District – 573 201.

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Sri. M.C.Sathyanarayana, Son of Late Sri. M.N.Channegowda, Aged about 44 years, Assistant Engineer, Hassan Urban Development Authority, B.M.Road, Hassan District – 573 201.

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…PETITIONERS

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(By Shri C.R.Gopalaswamy, Advocate)

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AND:

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State by Lokayuktha Police,

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Hassan District, Represented by Special Public Prosecutor for Lokayukta,

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Bangalore – 560 001.

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Sri. C. Govinde Gowda, Son of Late Sri. Chaluve Gowda, Aged about 70 years, Residing at 3^rd Main Road, 6^th Cross, Hemavathi Nagar, Hassan – 573 201.

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…RESPONDENTS

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(By Shri Venkatesh S. Arabatti, S.P.P., for Respondent No.1; Respondent No.2 served)

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This Criminal Petition is filed under Section 482 code of Criminal Procedure, 1973, praying to 1) quash the proceedings in PCR No.45/2013 pending on the file of Principal District and Sessions Judge, Hassan, in so far as the petitioner are concerned. 2) quash the First Information Report registered by the first respondent vide Crime No.47/2013 against the petitioners pending on the file of Principal District and Sessions Judge, Hassan (arising out of PCR.No.45/2013).

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IN CRL.P.No.999/2015

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BETWEEN:

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C. Narasimha Reddy, Son of Late C. Bhaskar Reddy, Aged about 55 years, Director Finance,

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Karnataka Milk Federation Dairy Circle, M.H.Marigwoda Road, Bangalore – 560 065.

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Presently working as Director, Mother Diary, Yelahanka, Bangalore – 560 065.

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Dattatraya Narasinha Hegde, Son of Narasinha Hegde, Aged about 54 years, Additional Director, Karnataka Milk Federation, Dairy Circle, M.H.Marigowda Road,

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Bangalore – 560 065. …PETITIONERS

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(By Shri Reuben Jacob, Advocate)

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AND:

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Superintendent of Police and Investigating Officer (City Division), Karnataka Lokayukta, M.S.Building, Bangalore – 560 001.

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Mr. Chandrahasu, Son of Hulisiddappa, Aged about 42 years, Residing at Belledoddi Village, M.G.Palya Post, Bidadi Hobli – 562 109. Karnataka.

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Mr. Anand, Son of Byrappa, Aged about 38 years, Goppahalli Village, M.G.Palya Post, Bidadi Hobli – 562 109. Karnataka.

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Mr. P. Nagaraj, Son of Late Puttaswamaiah, Aged about 51 years, Residing at Mayaganahalli, Ramanagar Taluk and District – 562 128. …RESPONDENTS

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(By Shri Venkatesh P.Dalwai, Advocate for Special Public Prosecutor for Respondent No.1; Respondent Nos.2, 3 and 4 served)

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This Criminal Petition is filed under Section 482 code of Criminal Procedure, 1973, praying to quash the PCR No.67/2012 lodged by the respondent Nos. 2 to 4 on the file of XXIII Additional City Civil and Special Judge for Prevention of Corruption Act at Bangalore City vide Annexure-A to the petition, in so far as the petitioners are concerned and etc;

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IN W.P.No.52901 OF 2013

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BETWEEN:

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Sri. B.A.Paramesh, Aged about 52 years, Commissioner, Hassan Urban Development Authority, Hassan – 573 201.

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Presently Commissioner, Chikmagalur Urban Development Authority, Chikmagalur – 577 101.

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…PETITIONER

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(By Shri A. Ravishankar, Advocate)

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AND:

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The State of Karnataka, By Lokayukta Police, M.S.Building,

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Bangalore – 560 001.

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Sri. N. Annappa, Aged about 73 years, Son of Ninganna Shetty, Opposite Akashavani, Salagame Road, Hassan – 573 201.

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…RESPONDENTS

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(Bu Shri B.S.Prasad, Advocate for Respondent no.1; Respondent No.2 served)

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This Writ Petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 code of Criminal Procedure, 1973, praying to quash the order dated 13.8.2013 passed by the Principal District and Sessions Judge and Special Judge for Prevention of Corruption Act, Hassan, on the complaint PCR No.47/2013 vide Annexure-A and etc;

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IN W.P.Nos.27692-27693 OF 2015

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BETWEEN:

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Sri.C.N.Sreedhara,

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Aged 48 years, Son of C.S.Nanjundaiah, Joint Director of Land Records (E and I), office of the Commissioner, Survey Settlement and Land Records, K.R.Circle, Bangalore – 560 001.

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Sri. B.G.Basavaraja, Aged 38 years,

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Son of H.G.Rudrappa, Surveyor, Karnataka Housing Board, Cauvery Bhavan, Bangalore – 560 009.

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…PETITIONERS

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(By Shri S. Subramanya Jois, Senior Advocate along with Shri K.C.Shantakumar, Advocte)

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AND:

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The State of Karnataka, Represented by its Principal Secretary, Revenue Department, M.S.Building, Vidhana Veedhi, Bangalore – 560 001.

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The Commissioner, Department of Survey Settlement And Land Records, K.R.Circle, Bangalore – 560 001.

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Sri. Leo Aroza, Aged 52 years, Son of A. Jon Aroza, Vice President, “Anjali Priyadarshini”, Azad Road, Kushavathi, Thirthahalli, Shimoga District.

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The Deputy Superintendent of Police, Karnataka Lokayukta, Shimoga – 577 202.

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…RESPONDENTS

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(By Smt. Anitha, Government Pleader for Respondent Nos. 1 and 2;

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Shri R.B.Deshpande, Advocate for Respondent No.3; Shri B.S.Prasad, Advocate for Respondent No.4)

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These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India read with Section 482 code of Criminal Procedure, 1973, praying to call for the records relating to concerning and connected with the PCR No.1/2015 on the file of the Principal District and Sessions Judge, Shivamogga, vide Annexure-H, peruse the same and quash the entire proceedings in the PCR No.1/2015 on the file of the Principal District and Sessions Judge, Shivamogga, vide Annexure-H as void in so far as the same concern the petitioners only.

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These petitions having been heard and reserved on 22.08.2016 and coming on for pronouncement of orders this day, the Court delivered the following:-

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ORDER

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These petitions are heard and disposed of together as the

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legal issue that arises for consideration is the same.

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The facts of the case in Crl.P.2006/2014 and Crl.P.2005/2014 are stated to be as follows:

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The petitioners are said to be arrayed as accused no.2 &

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3 and 4 & 5, respectively, in a pending case before the Court

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of the Special Judge and the Principal District and Sessions Judge, Hassan, in PCR 45/2013.

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The petitioners in the first of these petitions are said to be working as engineers and the petitioners in the second petition are said to be the Commissioner and Assistant Engineer, respectively, in the Hassan Urban Development Authority. It is alleged that they had failed in their duty in not preventing one Shivabasavaiah to encroach upon a public road and having put up construction. Thus, it was alleged, that there was dereliction of duty and was an offence under the provisions of the Prevention of Corruption Act, 1988. (Hereinafter referred to as the ‘PqC Act’, for brevity). In this regard, on the basis of a complaint, alleging the above circumstances, the Special Judge is said to have directed the Investigating Officer, Lok

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Ayukta Police to investigate and report. Thereupon a First Information Report (FIR) is registered. The legality of the said proceedings is questioned on the ground that reference of a case for investigation by the Court under Section 156(3) of the Code of Criminal Procedure, 1973, (Hereinafter referred to as the ‘CrPC’, for brevity), without a prior sanction is impermissible and illegal.

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In the writ petition in WP 52901/2013, the facts as stated are that one Annappa had lodged a private complaint before the District and Sessions Judge and Special Judge under the Prevention of Corruption Act, Hassan, against the petitioner alleging offences punishable under Section 13(1)(c) and (d) read with Section 13(2) of the PC Act and Sections 409,420 read with Section 149 of the Indian Penal Code, 1860 (Hereinafter referred to as the ‘IPC’, for brevity). That the petitioner who was the Commissioner, Urban Development Authority, Hassan, was guilty of dereliction of duty and of having aided and abetted two individuals in putting up

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construction in gross violation of sanctioned plans and in encroaching upon a public road.

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The Special Judge is said to have referred the complaint for investigation by the Lokayuktha Police, in terms of Section 156(3) of the CrPC, which is sought to be challenged on the ground that there was no prior sanction, to have enabled the court to take any such measure.

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In the writ petitions in WP 27692 and 27693 of 2015,

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the facts as stated are, that the petitioners are public servants against whom a private complaint is said to have been lodged before the District and Sessions Judge and Special Judge under the Prevention of Corruption Act, Shimoga, of having facilitated the Puttige Mutt to illegally occupy forest land. The court having directed investigation by the police, in terms of Section 156(3) of the CrPC, the present petition is filed challenging the said proceedings.

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In the petition in Crl.P.999/2015, the facts as stated are, the petitioners are said to be employees of the Karnataka

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Milk Federation (KMF) working in the cadre of Director and Additional Director. They are accused of irregularities in the procurement of raw materials used in the manufacture of cattle feed especially cotton de- oiled cake. There were also allegations of the commission of offences punishable under Sections 7,8 and 9 of the PC Act and Sections 403, 405, 409, 171-B and 166 of the IPC. There were three other accused along with the petitioners. On a private complaint alleging as above, the District and Sessions Judge and the Special Judge for Prevention of Corruption Act, has directed the Lokayuktha Police to investigate and report in terms of Section 156(3) of the CrPC. The same is questioned on identical grounds as in the other petitions above.

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Heard the learned Senior Advocate Shri Subramanya Jois appearing for the counsel for the petitioners in WP 2769293/2015, Shri C.R.Gopalaswamy and Shri Reuben Jacob for other petitioners, and Shri Venkatesh Dalawai and Shri Venkatesh Arbatti for the respondents.

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It is contended that taking into account the scheme envisaged under the CrPC, and from a conjoint reading of Sections 156, 190, 197 and 200 thereof, it is evident that if a private complaint is preferred before a magistrate, duly accompanied by a sanction order, he would have several options as are contained in Sections 200 and 202 read with Section 190 of the CrPC. The magistrate may invoke his power under Section 156(3) of the CrPC and refer the matter for investigation by the police. In the instant cases on hand, there is no indication that there has been any application of mind by the concerned Court, in arriving at a decision that the matter is one which warrants an investigation by the police. There is also an instance where the Court below has addressed the complaint at length and assigned reasons in proceeding to direct investigation by the police. It is contended that in both instances, there is a violation of the law.

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It is contended on behalf of the petitioners that the impugned criminal proceedings have been instituted without obtaining or producing the previous sanction from the competent authority as required under Section 19 of the PC Act. In the absence of production of such sanction, the Special Judge had erred in directing investigation of the complaint by the Lok ayuktha Police, under Section 156(3) of the CrPC. The same is contrary to the law laid down in Anil Kumar v. M K Aiyappa, (2013)10 SCC 705 . In that, it is the view of the Apex Court that the previous sanction of the competent authority is a necessary precondition for instituting criminal proceedings against a public servant under the PC Act.

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Secondly, it is contended that when the Court below has, in Crl.P.999/2015, made a detailed reference to the facts of the case as emanating from the complaint and has thus taken cognizance of the offence and there after has proceeded to direct an investigation under Section 156(3) CrPC., which is

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clearly contrary to the manner in which cognizance is taken of a complaint under the CrPC.

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Hence it is contended that the proceedings pending before the court below be quashed.

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On the other hand, it is contended on behalf of the

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prosecution that it is fallacious to proceed on the basis that the complaint should be accompanied by an order of sanction in order that the same be acted upon by the Court, in a case involving an offence punishable under the provisions of the PC Act. It may also be impractical in many cases. It is pointed out that the law as laid down by the Apex Court in CBI v. Ashok Kumar Aggarwal, AIR 2014 SC 827 , is to the effect that the sanctioning authority is required to make a complete and conscious scrutiny of the whole record placed before it. The sanction order is to indicate that the authority has considered all relevant facts and applied its mind. And that the prosecution is under an obligation to place the entire record before the sanctioning authority and satisfy the Court that the authority has

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applied its mind. Thus, it is contended, in a private complaint that may contain the basic information to demonstrate, prima facie, that a cognisable offence punishable under the provisions of the PC Act when is filed before the court, could not be trashed for want of a prior sanction. Even if sanction were sought, the complaint would fall foul of the above requirement, on the basis of which the sanctioning authority acts. Therefore, the court having directed an investigation by the police is the proper course of action as it is only then material would be made available, either to satisfy the sanctioning authority to grant sanction and the court to take cognisance. The court in directing an investigation under Section 156(3) CrPC, cannot be said to have taken cognisance of the case. (See : Anil Kumar v. M.K. Aiyappa, (2013)10 SCC 705)

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It is contended that in the case of P.V.Narasimha Rao v. State. AIR 1998 SC 2120, the Apex Court has laid down as regards the rigour of prohibition contained in Section 19(1) of the PC Act being reduced by Section 19(3) thereof, because

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under Clause (a) of Section 19(3), it is provided that 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 of sanction required under Section 19(1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. This would show that the requirement of sanction under Section 19(1) is a matter relating to the procedure and the absence of the sanction does not go to the root of the jurisdiction of the court.

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It is further contended that the stage for considering whether on account of the complaint not being accompanied by an order of sanction has occasioned a failure of justice, which alone would vitiate the proceedings, is at the trial, as laid down in State of MP v. Virendra Kumar Tripathi, (2009) 15 SCC 533.

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It is also contended that the question relating to the need of sanction is not necessarily to be considered as soon as the

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complaint is lodged and on the allegations contained therein. The question may have to be determined from stage to stage. Reliance is placed on Matajog Dobey v. H. C. Bhari, AIR 1956 SC 44 and Parkash Singh Badal v. State of Punjab, AIR 2007 SC 1274, in support of the aforesaid proposition.

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In Matajog Dobey 's case, a constitution bench of the Apex Court has held thus:

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“20. Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in Hori Ram's case and also in Sarjoo Prasad v. The Emperor, AIR 1946 FC 25. Sulaiman, J. says that as the prohibitions is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding.

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But a careful perusal of the later parts of their judgments shows that they did not intend to lay down

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any such proposition. Sulaiman, J. refers (at page 52) to the prosecution case as disclosed by the complaint or the ‘police report’ and he winds up the discussion in these words:

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"Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground".

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The other learned Judge also states at p.55, "At this stage we have only to see whether the case alleged against the appellant or ‘sought to be proved’ against him relates to acts done or purporting to be done by him in the execution of his duty".

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It must be so. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.

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Whether sanction is necessary or not may have to be determined from stage to stage. The

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necessity may reveal itself in the course of the progress of the case.”

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It is contended that the later judgments of the Apex Court have completely overlooked the above dictum as there is no reference to the same in State of UP v. Paras Nath Singh, ( 2009)6 SCC 372, Subramanyam Swamy v. Manmohan Singh, AIR 2012 SC 1185 , Army Headquarters v. CBI, (2012) 6 SCC 228, M.K. Aiyappa v. State of Karnataka, 2014(2) KCCR 1412 , all of which have consistently laid down that without a prior sanction, the magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) CrPC.

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Hence it is contended that the petitions be dismissed.

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In the light of the above rival contentions, the points

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that arise for consideration are :

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a. What is the judicial process involved in the Court of the Special Judge directing an investigation by the police, under

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Section 156(3) of the CrPC, when a private complaint against a public servant, alleging offences punishable under the provisions of the PC Act, is filed ?

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b. When can it be said that the court has taken

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'cognizance' of the case ?

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c. Whether the complaint against a public servant should be accompanied by an Order of sanction ?

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As regards the first point for consideration hereinabove,

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it is well settled that when a complaint is filed before a magistrate and when he applies his mind for proceeding under the various provisions of Chapter XVI of the CrPC, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose, but for purposes of ordering investigation under Section 156(3), or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. (See : R.R. Chari v. State of UP, 1951 SCR 312, Gopal

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Das Sindhi v. State of Assam, AIR 1961 SC 986 and Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541)

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It is also the settled legal position that even to make a reference to police for investigation, the magistrate has to apply his mind as to whether the allegations in the complaint are sufficient to make such order for investigation under Section 156(3) CrPC. Where jurisdiction is exercised on a complaint filed in terms Section 156(3) or Section 200 CrPC, the magistrate is required to apply his mind. (See : Maksud Saiyed v. State of Gujurat, (2008) 5 SCC 668 and Pepsi Foods Ltd.v. Special Judicial Magistrate , (1998) 5 SCC 749.)

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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. This is clear from the use of the words "may take cognizance". The words may give a discretion to the magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the

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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.

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We then come to the second point for consideration as to what is meant by "taking cognizance of an offence" by a magistrate within the meaning of Section 190 CrPC ?

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This expression has not been defined either under the CrPC or the PC Act. But from the scheme of the Code, the 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.

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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

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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. When on receiving the complaint, the magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XVI CrPC, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a).

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If, instead of proceeding under Chapter XIV, 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.

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We may also consider the distinction between a police investigation ordered under Section 156(3) and the one directed under Section 202 CrPC. The power to order police investigation under Section 156(3) is different from the power

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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 postcognizance 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).

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It is to be kept in view that an order made under subsection (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

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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, with in the limits 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 the police report, but to assist the magistrate in completing proceedings already instituted upon a complaint before him. (See : Deverapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252 )

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In considering the question whether a complaint alleging offences punishable under the provisions of the PC Act, should be accompanied by an order of sanction, it is noticed that the Apex court has held in Anil Kumar v. M. K. Aiyappa, (supra) that in the light of the opinions in State of UP v. Paras Nath

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Singh, Subramaniam Swamy v. Manmohan Singh and Army Headquarters v. CBI , (supra) that in the absence of a previous sanction, the magistrate is precluded from even receiving a complaint, it is necessary to refer to a Constitution bench judgment of the Apex Court in, Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44. In the said judgment while addressing the question as to when the need for sanction is to be considered in a given case, it was held as follows :

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But a careful perusal of the later parts of their judgments shows that they did not intend to lay down any such proposition. Sulaiman, J. refers (at page 52) to the prosecution case as disclosed by the complaint or the ‘police report’ and he winds up the discussion in these words:

Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.”

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Further, in the case of Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252, a three judge bench decision of the Apex court, it is laid down as follows :

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“13. It is well settled 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. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with “must take cognizance". The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds 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

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will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.

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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 the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has in the

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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.”

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It may then be noticed that the mandate contained in Section 197 CrPC as well as under Section 19 of the PC Act, that no court shall take cognizance of an offence against a public servant, without the previous sanction of the Government, is similarly worded. It is evident from the above decision in Devarapalli Lakshminarayana Reddy (supra), that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. It is also clear that when the court chooses to direct investigation by the police in terms of Section 156(3) of the CrPC , the court is not construed to have taken cognizance of the case. It is indeed necessary for the court to apply its mind to ascertain if there is a case made out even to direct an investigation. But the degree of examination of the case does not extend to what is necessary

¶198

¶199

to take cognizance of the case. There is a clear demarcation of the extent and the degree to which the magistrate applies his mind to the facts of the case in either of the two situations as above, this is the reason why it should be spelt out by the magistrate as to the mode he has chosen to adopt in dealing with the case and to state as to what he has deduced from a reading of the complaint and to therefore conclude that it is a case which requires investigation by the police.

¶200

In other words, the protection afforded to a public servant under Section 197 CrPC or Section 19 of the PC Act, is presumed to be present to the mind of the Court and such protection is not allowed to be lightly breached. The magistrate is thus expected to be ever vigilant in firstly examining that the allegations in the complaint indicate the possible commission of any offence is made out at all. Secondly, he would examine if a case for investigation is made out. Thirdly, even if there is a report submitted on any such investigation, the magistrate or the special judge would have to examine whether there is a

¶201

¶202

case for taking cognizance. Hence, it cannot be said that a complaint should be preceded by a sanction, on the presumption that the public servant should not face any kind of investigation, without there being an order of sanction. For it is to be kept in view that no case can be said to be instituted unless cognizance is taken of it by the court.

¶203

As regards the opinions expressed in the cases of Paras Nath, Subrmaniam Swamy, Army Head quarters and M.K. Aiyappa we may briefly examine the same.

¶204

In Paras Nath Singh' s case, a three judge bench of the Apex Court was dealing with a case where the State had challenged the judgment of a High Court, acquitting the accused who had stood trial for offences punishable under Sections 409 and 468 IPC.

¶205

The trial court had convicted the accused. In appeal to the Sessions Court, the conviction was set aside on three

¶206

¶207

grounds, one of the grounds was that the order of sanction - obtained to prosecute the accused was invalid.

¶208

In examining the scope of protection afforded to a public

¶209

servant under Section 197 CrPC, the Apex court has expressed thus :

¶210

“ 6. “10. Prior to examining whether the Courts below committed any error of law in discharging the accused it may not be out of place to examine the nature of power exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197(1) and (2)of the Code reads as under:

¶211

"197(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 -

¶212

(a) in the case of 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;

¶213

¶214

(b) 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 a State, of the State Government.

¶215

xxx xxx xxx

¶216

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government."

¶217

The Section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set into motion. For instance no prosecution can be initiated in a Court Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than 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

¶218

¶219

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' make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. 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 committed during discharge of his official duty. (Emphasis supplied)

¶220

11. Such being the nature of the provision the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty

¶221

¶222

done by an officer in his official capacity. In B. Saha and Ors. v. M.S.Kochar (1979 (4) SCC 177) it was held :(SCC pp. 184-85 para 17)

¶223

’17. The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."

¶224

Use of the expression, `official duty' implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or mission done by a public servant in service but restricts its scope of

¶225

¶226

operation to only those acts or omissions which are done by a public servant in discharge of official duty.

¶227

12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which

¶228

¶229

the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H.C.Bhari (AIR 1956 SC 44) thus"

¶230

’17. The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty….

¶231

19. ... There must be a reasonable connection between the act and the discharge of official duty the act must bear such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."

¶232

13. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then the act must be held as official to which applicability of Section 197 of the Code cannot be disputed.

¶233

14. In S.A.Venkataraman v. The State (AIR 1958 SC 107) and in C.R.Bansi v. The State of Maharashtra (1970 (3) SCC 537) this Court has held that :

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¶235

"14. …There is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in-the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed."

¶236

21. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the legal position in S.R. Munnipalli v. Bombay (1955 (1) SCR 1177) and in Amrik Singh v. State Pepsu (1955 RD-SC 9) that it is not every offence committed by a public servant, which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad, etc. v. State of Bihar (1972 (3) SCC 89) as follows:

¶237

“66. As far as the offence of criminal conspiracy punishable under Section 120-8, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of

¶238

¶239

a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."

¶240

22. Above views are reiterated in State of Kerala v. Padmanabhan Nair (1999 (5) SCC 690). Both Amrik Singh (supra) and S.R. Munnipalli (supra) were noted in that case. Sections 467,468 and 471 IPC relate to forgery of valuable security, Will etc; forgery for purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar.

¶241

This position was highlighted in State of H.P. v. M.P. Gupta (2004 (2) SCC 349), at SCC pp. 357-362, paras 10-14 & 21-22.”

¶242

It is to be noticed that there is reference to the dictionary meaning of the expression "cognizance", to highlight the fact that the magistrate ought to proceed with extreme circumspection in respect of a complaint against a public servant. The said decision has not laid down that the magistrate

¶243

¶244

takes cognizance of the complaint the moment that he receives

¶245

it. In this regard the discussion in Devarapalli Lakshminarayana Reddy (supra), also by a three judge bench, is explicit. Cognizance is not taken when the magistrate receives the complaint and directs the complaint to be investigated by the police. It is only after receipt of a report and if the magistrate chooses to take cognizance thereafter, that a case is said to be instituted.

¶246

In Subramaniam Swamy's case, the Apex court was concerned with the questions, whether a complaint can be filed by a citizen for prosecuting a public servant for an offence under the PC Act and whether the competent authority to grant sanction to prosecute the public servant is required to take a decision within the time specified and as indicated in the case of Vineet Narain v. Union of India, (1998) 1 SCC 226 .

¶247

The discussion in the said judgment as regards taking of cognizance of the complaint is to be found at paragraphs 20 to 26. The same is reproduced hereunder :

¶248

¶249

“20. The argument of the learned Attorney General that the question of granting sanction for prosecution of a public servant charged with an offence under the 1988 Act arises only at the stage of taking cognizance and not before that is neither supported by the plain language of the section nor the judicial precedents relied upon by him. Though, the term `cognizance' has not been defined either in the 1988 Act or the CrPC, the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is "taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially". In R.R. Chari v. State of U.P.. (1951) SCR 312, the three Judge Bench approved the following observations made by the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abni Kumar Banerjee:

¶250

"What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire 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 section

¶251

¶252

190(1)(a), Criminal Procedure Code, 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 section 2- and thereafter sending it for inquiry and report under section 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 section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."

¶253

21. In Mohd. Khalid's case, (AIR 1995 SC 785), the Court referred to Section 190 of the CrPC and observed :

¶254

"In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word `cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different

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thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons."

¶257

22. In Pastor P. Raju's case,(AIR 2006 SC 2825), this Court referred to the provisions of Chapter XIV and Sections 190 and 196 (1-A) of the Cr.PC and observed :

¶258

"There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173 CrPC. If a criminal case is registered, investigation of the offence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no violation of Section 196 (1-A) CrPC and no illegality of any kind would be committed. "

¶259

The Court then referred to some of the precedents including the judgment in Mohd. Khalid's case(AIR 1995 SC 785) and observed :

¶260

"It is necessary to mention here that taking cognizance of an offence is not the same thing as

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¶262

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."

¶263

23. In Kalimuthu's case (AIR 2005 SC 2257), the only question considered by this Court was whether in the absence of requisite sanction under Section 197 CrPC, the Special Judge for CBI cases, Chennai did not have the jurisdiction to take cognizance of the alleged offences. The High Court had taken the view that Section 197 was not applicable to the appellant's case. Affirming the view taken by the High Court, this Court observed :

¶264

"The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases

¶265

¶266

where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted."

¶267

24. In Raj Kumar Jain's case,(AIR 1998 SC 2985), this Court considered the question whether the CBI was required to obtain sanction from the prosecuting authority before approaching the Court for accepting the report under Section 173(2) of the CrPC. This question was considered in the backdrop of the fact that the CBI, which had investigated the case registered against the respondent under Section 5(2) read with Section 5(1)(e) of the 1947 Act found that the allegation made against the respondent could not be substantiated. The Special Judge declined to accept the report submitted under Section 173(2) CrPC by observing that the CBI was required to place materials collected during investigation before the sanctioning authority and it was for the concerned authority to grant or refuse sanction. The Special Judge opined that only after the decision of the sanctioning authority, the CBI could submit the report under Section 173(2). The High Court dismissed the petition filed by the CBI and confirmed the order of the Special Judge. This Court referred to Section 6(1) of the 1947 Act and observed:

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¶269

"From a plain reading of the above section it is evidently clear that a court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions. Viewed in that context, the CBI was under no obligation to place the materials collected during investigation before the sanctioning authority, when they found that no case was made out against the respondent. To put it differently, if the CBI had found on investigation that a prima facie case was made out against the respondent to place him on trial and accordingly prepared a charge-sheet (challan) against him, then only the question of obtaining sanction of the authority under Section 6(1) of the Act would have arisen for without that the Court would not be competent to take cognizance of the charge-sheet. It must, therefore, be said that both the Special Judge and the High Court were patently wrong in observing that the CBI was required to obtain sanction from the prosecuting authority before approaching the Court for accepting the report under Section 173(2) CrPC."

¶270

¶271

25. In our view, the decisions relied upon by the learned Attorney General do not have any bearing on the moot question whether respondent No.1, being the Competent Authority to sanction prosecution of respondent No.2, was required to take appropriate decision in the light of the direction contained in Vineet Narain's case.

¶272

26. Before proceeding further, we would like to add that at the time of taking cognizance of the offence, the Court is required to consider the averments made in the complaint or the charge sheet filed under Section 173. It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. However, before issuing the process, it that it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the Court may direct the issue of process to the respondent and take further steps in the matter. If it is a charge-sheet filed under Section 173 CrPC, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during

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investigation, would disclose the offence for which cognizance would be taken by the Court. Thus, it is not the province of the Court at that stage to embark upon and sift the evidence to come to the conclusion whether or not an offence has been made out. “

¶275

It is evident that the court has not disagreed with the position that the court does not take cognizance of the offence when it merely issues a search warrant for the purpose of investigation or orders investigation under Section 156 (3) CrPC, on receipt of the complaint. The decision has also affirmed the position that the question relating to the need of sanction under Section 197 CrPC is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein.

¶276

In so far as the aspect whether the question of sanction has to be considered with reference to Section 19 of the PC Act or with reference to Section 197 CrPC and whether the scheme

¶277

of both the sections could be viewed as being similar is addressed thus :

¶278

¶279

“37.…….Apart from that the learned Attorney General in the course of his submission proceeded on the basis that the question of sanction has to be considered with reference to Section 19 of the Prevention of Corruption Act (hereinafter "the P.C. Act") or with reference to Section 197 of the Code of Criminal Procedure, 1973 (hereinafter "the Code"), and the scheme of both the sections being similar (Vide paragraph 3 of the supplementary written submission filed by the learned Attorney General). In fact, the entire submission of the learned Attorney General is structured on the aforesaid assumption. I fail to appreciate the aforesaid argument as the same is contrary to the scheme of Section 19 of the P.C. Act and also Section 197 of the Code. In Kalicharan Mahapatra vs. State of Orissa reported in (1998) 6 SCC 411, this Court compared Section 19 of P.C. Act with Section 197 of the Code. After considering several decisions on the point and also considering Section 6 of the old P.C.Act, 1947 which is almost identical with Section 19 of the P.C. Act, 1988 and also noting Law Commission's Report, this Court in paragraph 13 of Kalicharan (supra) came to the following conclusions:

¶280

"13. The sanction contemplated in Section 197 of the Code concerns a public servant who "is accused

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of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", whereas the offences contemplated in the PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code."

¶283

38. The above passage in Kalicharan (supra) has been quoted with approval subsequently by this Court in Lalu Prasad vs. State of Bihar reported in 2007 (1) SCC 49 at paragraph 9, page 54. In paragraph 10, (page 54 of the report) this Court held in Lalu Prasad (supra) that "Section 197 of the Code and Section 19 of the Act operate in conceptually different fields".

¶284

39. In view of such consistent view by this Court the basic submission of the learned Attorney General to the contrary is, with respect, untenable. “

¶285

¶286

Though it has been held in Kalicharan Mahapatra v. State of Orissa (1998) 6 SCC 411 and quoted with approval in Lalu Prasad v. State of Bihar , (2007) 1 SCC 49 , that Section 197 of the CrPC and Section 19 of the PC Act operate in conceptually different fields, it would not make any difference in so far as how a complaint, that is presented before a Special Judge under the PC Act, is dealt with. As for instance a private complaint may contain allegations of facts which may warrant an investigation by the police before the Judge decides to take cognizance of the case. Whereas the material allegations and any supporting material may not be sufficient to satisfy the competent authority to grant prior sanction, for the complaint to be accompanied by the same. Therefore , when in the earlier part of the judgment in Subramaniam Swamy's case the court has accepted that the magistrate could order an investigation without taking cognizance of the case and that the question of sanction need not be considered as soon as the complaint is lodged, cannot be reconciled with the further view which

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appears to suggest that there could be a hybrid procedure to be followed in the manner of taking cognizance of an offence under the provisions of the PC Act , in proceeding to lay down that the Court need not 'take notice ' of a complaint, not accompanied by an order of prior sanction.

¶289

Further, as regards the aspect whether in taking cognizance under the PC Act, the court is guided by the provisions under Section 190 CrPC , it is held thus :

¶290

“The other contention of the learned Attorney General is that in taking cognizance under the P.C.Act the Court is guided by the provisions under Section 190 of the Code and in support of that contention the learned Attorney General relied on several judgments. However, the aforesaid submissions were made without noticing the judgment of this Court in the case of Dilawar Singh vs. Parvinder Singh alias Iqbal Singh and Another (2005) 12 SCC 709. Dealing with Section 19 of P.C. Act and Section 190 of the Code, this Court held in paragraph 8 at page 713 of the report as follows:

¶291

"......The Prevention of Corruption Act is a special statute and as the preamble shows, this Act has been enacted to consolidate and amend the law relating to the

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prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See Godde Venkateswara Rao v. Govt. of A.P., State of Bihar v. Dr. Yogendra Singh and Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth.) Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190......"

¶294

However, it is to be noticed that the facts in Dilawar Singh v. Parvinder Singh , supra, were such that the court has been constrained to hold forth as above.

¶295

The facts were that on a complaint made by his wife, a case was registered against Parvinder Singh under Sections 406 and 498A IPC. Parvinder Singh had in turn lodged a complaint alleging that an Assistant Sub-Inspector (ASI) and a home guard came to his house and forcibly took him to the Police station. He was beaten and tortured. Some of his relatives

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¶297

arrived there and requested that he be spared. It was also alleged that the ASI had told them that they should speak to the Station House Officer (SHO), Dilawar Singh, who was also present. Dilawar Singh on being approached is said to have demanded a bribe of Rs.20,000/-, but accepted Rs.15,000/-. The amount was then said to be given to the ASI.

¶298

Parvinder Singh was said to have been medically examined and a case was registered under Section 13(2) of the PC Act. A charge sheet was submitted after investigation, against the ASI. A closure report was said to have been filed against the SHO, Dilawar Singh.

¶299

It is said that the necessary sanction was obtained to prosecute the ASI. After the statement of the complainant was recorded, he is said to have filed an application under Section 319 CrPC to summon Dilawar Singh as a co-accused. The Special Judge had dismissed the application. A revision petition was filed before the High Court, which was allowed. This was on the footing that once cognizance is taken of the

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offence, the task of the court is to find out the real offenders and hence it was held that no prior sanction was required to initiate proceedings against Dilawar Singh.

¶302

It was then urged before the Supreme Court that in the absence of a sanction under section 19 of the PC Act, the appellant could not be proceeded against. In accepting the contention, the Apex Court has held thus:

¶303

“4. In our opinion, the contention raised by the learned counsel for the appellant is well founded. Subsection (1) of Section 19 of the Act, which is relevant for the controversy in dispute, reads as under:

¶304

"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, -

¶305

(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;

¶306

(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 sanction of the State Government, of that Government;

¶307

¶308

(c) in the case of any other person, of the authority competent to remove him from his office."

¶309

This section creates a complete bar on the power of the Court to 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 of the competent authority enumerated in clauses (a) to (c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction for prosecution has to be granted with respect to a specific accused and only after sanction has been granted that the Court gets the competence to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant. It is not possible to read the section in the manner suggested by learned counsel for the respondent that if sanction for prosecution has been granted qua one accused, any other public servant for whose prosecution no sanction has been granted, can also be summoned to face prosecution.

¶310

5. In State v. Raj Kumar Jain, (1998)6 SCC 551, the Court was examining the scope of Section 6(1) Prevention of Corruption Act, 1947, which is

¶311

¶312

almost similar to sub-section (1) of Section 19 of the Act. After quoting the provisions of Section 6(1) Prevention of Corruption Act, 1947, it was held as under in para 5 of the report :

¶313

"5. From a plain reading of the above section it is evidently clear that a Court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions."

¶314

6. In Jaswant Singh v. State of Punjab, AIR 1958 SC 124, sanction had been granted for prosecution of the accused for an offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947, but no sanction had been granted for his prosecution under Section 5(1)(a) of the said Act. It was held that no cognizance could be taken for prosecution of the accused under Section 5(1)(a) of the Prevention of Corruption Act, 1947, as no sanction had been granted with regard to the said offence, but the accused could be tried under Section 5(1)(d) of the

¶315

¶316

said Act as there was a valid sanction for prosecution under the aforesaid provision.

¶317

7. In State of Goa v. Babu Thomas, (2005)8 SCC 130, decided by this Bench on 29.9.2005, it was held that in absence of a valid sanction on the date when the Special Judge took cognizance of the offence, the taking of the cognizance was without jurisdiction and wholly invalid. This being the settled position of law, the impugned order of the High Court directing summoning of the appellant and proceeding against him along with Jasbir Singh ASI is clearly erroneous in law.

¶318

8. The contention raised by learned counsel for the respondent that a Court takes cognizance of an offence and not of an offender holds good when a Magistrate takes cognizance of an offence under Section 190 Cr.P.C. The observations made by this Court in Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 were also made in that context. The Prevention of Corruption Act is a special statute and as the preamble shows this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim Generalia specialibus non derogant would apply

¶319

¶320

which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See Godde Venkateswara Rao v. Govt. of Andhra Pradesh,, AIR 1966 SC 828, State of Bihar v. Yogendra Singh, AIR 1982 SC 882 and Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, AIR 1984 SC 1543). Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319 Cr.PC. A Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 31 CrPC if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person.

¶321

9. For the reasons mentioned above, we are of the opinion that the impugned order of the High Court directing summoning of the appellant Dilawar Singh is wholly illegal and cannot be sustained. The appeals are accordingly allowed. The impugned order dated 3.7.2002 of the High Court is set aside and the order

¶322

¶323

dated 7.1.2002 of the Special Judge, Barnala, is restored.”

¶324

The consideration of the complaint and steps involved in the court taking cognizance of offences alleged under the provisions of the PC Act would yet be required to conform to the CrPC, subject to Section 22 of the PC Act. The above decision does not lay down that this exercise is to be diluted or short circuited.

¶325

In Anil Kumar v. M.K. Aiyappa, the Apex court has noticed as follows :

¶326

“15. The judgments referred to herein above clearly indicate that the word “cognizance” has a wider connotation and not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 Cr.P.C. and the next step to be taken is to follow up under Section 202 Cr.P.C. Consequently, a

¶327

¶328

Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage.

¶329

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

¶330

The court has then proceeded to consider whether the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) CrPC, even at a precognizance stage. And has held that if there was no previous sanction the magistrate cannot order investigation against a public servant while invoking power under Section 156 (3)

¶331

¶332

CrPC. The decisions in Paras nath Singh and Subramaniam Swamy are relied upon.

¶333

Incidentally, the Apex court has affirmed the Order passed by the undersigned in the above case of M.K. Aiyappa . But in retrospect, it is seen that the settled legal position is that when the court merely refers the complaint for investigation, the court does not take cognizance, the need for a sanction is not warranted. The bar is for the court to take cognizance without a sanction and it cannot be construed that even the very receipt of a complaint is barred. The dictionary meaning assigned to the expression "cognizance " has been misapplied, in ignoring settled principles established by earlier judgments of the Apex Court , rendered by larger benches.

¶334

Hence the point as to whether the private complaint against a public servant must be accompanied by an order of sanction is answered in the negative.

¶335

¶336

In the light of the discussion hereinabove and as it is found that in all the above petitions, except in Crl.P. 999/2015, the courts below, in the respective petitions, have passed a cryptic order directing investigation of the complaint under Section 156(3) CrPC , without indicating the reasons for such a decision, the said impugned orders are quashed. The respective courts shall proceed from the stage of presentation of the complaint, in accordance with law.

¶337

In so far as Crl.P. 999/2015 is concerned, though this court has already quashed the very proceedings against some of the other accused in the very same proceedings, the present petition is dismissed in the light of the discussion hereinabove.

¶338

Sd/- JUDGE

¶339

nv*

Sri N.C. Shivakumar v. State by Lokayuktha Police

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Sri N.C. Shivakumar v. State by Lokayuktha Police

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