Powers and Limitations in Exercise of Jurisdiction under Section 156(3) CrPC with Regard to Public Servant

In matters relating to prevention of corruption cases where a direction is sought from the court under Section 156(3) CrPC¹ for registration of FIR/investigation against a public servant there has always been a question which has been posed before the courts as to whether or not in such cases there is a requirement of previous sanction under Section 19 of the Prevention of Corruption Act² before the court concerned passes any order under Section 156(3) CrPC for registration of FIR against such public servant.

The confusion has persisted for the reason that Section 19 of the Prevention of Corruption Act starts with a complete bar on “cognizance of an offence” unless previous sanction, as prescribed therein, is taken from the competent authority, however the term “cognizance” is not defined anywhere in CrPC or any other statute and thus leaves us to fall back upon the definition as provided in various judgments, and accordingly adds up to the confusion.

That the Supreme Court in Anil Kumar v. M.K. Aiyappa³ observed that the word “cognizance” has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. It observed that while exercising powers under Section 156(3) CrPC the Magistrate/Special Judge do not act in mechanical manner. It framed a specific issue in para 17 to examine as to whether requirement of sanction is a precondition for ordering investigation under Section 156(3) CrPC (the reference specifically being to the public servant) and after examining the issue is held that “[o]nce it is noticed that there was no previous sanction … the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) CrPC”. The said judgment became law of the land and various courts throughout the country started following the same.⁴ However, there have been some instances where some of the High Courts⁵ have preferred to deviate and instead of following M.K. Aiyappa⁶ have followed the earlier judgments of the Supreme Court given by the larger Bench, on the same issue.

Reference to larger Bench

This fact that the larger Benches of the Supreme Court in their previous judgments have held something contrary to what has been held by the 2-Judge Bench of the Supreme Court in M.K. Aiyappa case⁷ was brought to the notice of the Supreme Court in Manju Surana v. Sunil Arora⁸ and it was recorded that the 3-Judge Bench of the Supreme Court in R.R. Chari v. State of U.P.⁹ (as early as in March 1951) while examining the requirement of previous sanction as required in Section 6 of the Prevention of Corruption Act, 1947¹⁰, with attempt to define the meaning of term “cognizance” the Supreme Court relied upon the observation made by Das Gupta, J. in Legal Remembrance v. Abani Kumar Banerjee¹¹ to note that:

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 190(1)(a) of the Criminal Procedure Code¹², 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 200¹³ and thereafter, sending it for inquiry and report under Section 202¹⁴. 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.

The three-Judge-Bench of the Supreme Court accordingly held that “In our opinion that is the correct approach to the question before the court.” The said principle was followed by another 3-Judge Bench of the Supreme Court in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy¹⁵ speaking through Sarkaria, J. discussed the scheme of CrPC in relation to Sections 156(3) and 200 CrPC and held that if the Magistrate did not apply his mind on complaint for deciding whether or not there is sufficient ground for proceeding but only for ordering an investigation under Section 156(3) then cognizance cannot be said to have been taken. The judgment of R.R. Chari¹⁶ has been followed by other 3-Judge Bench decisions of the Supreme Court¹⁷.

That when this fact was brought to the notice of the Supreme Court that finding in M.K. Aiyappa¹⁸ has been given by the 2-Judge Bench of the Supreme Court without noting the findings given by various 3-Judge Bench decisions of the Supreme Court in its earlier judgment the 2-Judge Bench of the Supreme Court in Manju Surana¹⁹ referred the issue for adjudication by a larger Bench of the Supreme Court. The Supreme Court in Manju Surana case²⁰ observed that:

32. … There is no doubt that even at the stage of Section 156(3), while directing an investigation, there has to be an application of mind by the Magistrate. Thus, it may not be an acceptable proposition to contend that there would be some consequences to follow, were the Magistrate to act in a mechanical and mindless manner. That cannot be the test.

It has further observed that:

33. The catena of judgments on the issue as to the scope and power of direction by a Magistrate under Chapters XII²¹ and XIV²² CrPC is well established. Thus, the question would be whether in cases of the Prevention of Corruption Act, a different import has to be read qua the power to be exercised under Section 156(3) CrPC i.e. can it be said that on account of Section 19(1) of the Prevention of Corruption Act, the scope of inquiry under Section 156(3) CrPC can be said to be one of taking “cognizance” thereby requiring the prior sanction in case of a public servant?

Interestingly, the Supreme Court while making the said reference to the larger Bench, to some extent, doubted the reasoning given in both the line of precedents but as the reference has not been decided till date and the reasoning in both lines of judgments have been doubted in the reference order therefore the confusion persisted as to which line of judgment is to be followed during the pendency of the reference.

That various High Courts²³ have continued to follow the reasoning given in M.K. Aiyappa²⁴ whereas some have distinguished M.K. Aiyappa²⁵ and have followed the line as given by R.R. Chari²⁶ line of judgments. This has rather led to further confusion on this particular field of law.

Law to follow during pendency of reference

That the question which arises is as to what should be the way out during the pendency of reference of a law point for adjudication by the larger Bench. The 2-Judge Bench of the Supreme Court²⁷ has held that precedential status of binding precedent when it stands referred to larger Bench for reconsideration remains unaltered until the reference is decided. However, despite the law being settled on the point that what is to be followed during the pendency of the reference is the law of the land, the problem in the present case has been that out of the two lines of judgment which line should be followed by the courts during pendency of reference. The argument in favour of following M.K. Aiyappa²⁸ has been that it specifically examines the interplay of Section 19 of the Prevention of Corruption Act and Section 156(3) CrPC and the fact that the Supreme Court in reference order has stated that even for passing an order under Section 156(3) there would be an application of mind and if so then even as per the reasoning of R.R. Chari²⁹ there would be “cognizance” which could be said to have been taken. Further, R.R. Chari³⁰ is a judgment under the Prevention of Corruption Act, 1947³¹ when the substantive offences were provided in IPC³² and the said Act of 1947 and relevant provisions of IPC from Sections 161 to 165-A³³ have been repealed and omitted by Sections 30³⁴ and 31³⁵ of the Prevention of Corruption Act, 1988 and accordingly the law governing the field, during the pendency of reference, would be the law as laid down by the Supreme Court in M.K. Aiyappa case³⁶.

That although the reasons mentioned above and several other reasons and logic could be applied for following the M.K. Aiyappa³⁷ line of judgments and as mentioned above several High Courts have been following the said line of judgments holding the previous sanction for prosecution under Section 19 of the Prevention of Corruption Act to be prerequisite for ordering investigation under Section 156(3) CrPC against a public servant, but the author would humbly like to differ as in my view the law of the land would be the law laid down by the larger Bench of the Supreme Court in its previous judgment i.e. R.R. Chari³⁸ line of judgment as the said judgment is still a binding precedent even when it has been passed in relation to the pari materia provision of earlier statute.

This is a settled law that a precedent in relation to an interpretation of law would not lose its value only because the law concerned has been substituted by a new law. In fact the Constitution Bench of the Supreme Court has even relied on the interpretations provided by courts for a pari materia provision in the repealed statute as well,³⁹ thus considering that in R.R. Chari⁴⁰ the Supreme Court was dealing with Section 6 of the Prevention of Corruption Act, 1947 which is pari materia to Section 19 of the Prevention of Corruption Act (pre-2018 Amendment⁴¹) therefore the same would have binding effect. Moreover, this being an admitted position that in M.K. Aiyappa case⁴² the 2-Judge Bench of the Supreme Court has not referred to any of the previous judgments of the 3-Judge Bench of the Supreme Court on the same issue, therefore the same could be termed as per incuriam because as the Constitution Bench of the Supreme Court in Shah Faesal v. Union of India⁴³ has held that rule of per incuriam literally means judgment passed in ignorance of a relevant statute or binding precedent; or that it is not possible to reconcile the judgment with a previous binding ruling of Coordinate or larger Bench.

The impact of the Prevention of Corruption (Amendment) Act, 2018

It has also been seen that what is lost sight is the fact that immediately after the reference made by the Supreme Court in Manju Surana case⁴⁴ (on 27-3-2018) Parliament brought a major amendment in the Prevention of Corruption Act on 26-7-2018 wherein the language of Section 19 of the Prevention of Corruption Act has been changed considerably. The Statement of Objects and Reasons of the Prevention of Corruption (Amendment) Act, 2018 reads that:

Further, in the light of a recent judgment of the Supreme Court, the question of amending Section 19 of the Act to lay down clear criteria and procedure for sanction of prosecution, including the stage at which sanction can be sought, timelines within which order has to be passed, was also examined by the Central Government and it is proposed to incorporate appropriate provisions in Section 19 of the Act.

Thus, what becomes relevant here is that while reading the language of the amended provision (Section 19) one has to bear in mind that the legislature while introducing the said amendment wanted to specifically provide for the “clear criteria and procedure for sanction of prosecution, including the stage at which sanction can be sought”, moreover the legislature has been alive of the “recent judgment of the Supreme Court” while bringing the said amendment in Section 19 of the Prevention of Corruption Act. The first proviso to Section 19(1) provides as under—

Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless—

(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and

(ii) the court has not dismissed the complaint under Section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding.

(emphasis supplied)

Thus, as per the proviso inserted by the amendment except of the police officer or the person involved with investigation no private person can apply for grant of sanction for prosecution of any public servant, except of one exception provided in the proviso. The Exception to the general rule is that a private person can apply for grant of sanction if he satisfies two conditions—

(a) He is a complainant in the case concerned.

(b) After the complaint has been filed to have been filed in proper jurisdiction, the complainant and his witnesses are examined on oath i.e. the preliminary evidence is tendered before the court and court after applying its mind has found that there is sufficient ground to proceed against the accused persons and decides not to dismiss the complaint and even after that there shall be a direction by the court to the said complainant to seek sanction for prosecution of the accused persons.

Thus, unless the said two conditions are not satisfied, a sanction for prosecution is not required under the law and can accordingly not be read into it. Moreover, the principle as laid down in M.K. Aiyappa⁴⁵ could not be applied now firstly because it has been delivered in reference to language of pre-amended Section 19 of the Prevention of Corruption Act, and secondly that application of the same in terms of the post-Amendment language of Section 19 would be hit by latin maxim lex non cogit ad impossibilia which roughly translates into “a man cannot be compelled to do what is impossible”, the same is also understood as “doctrine of impossibility”. That after the insertion of aforesaid proviso to Section 19(1) of the Prevention of Corruption Act, 1988 any request by a “private person” for grant of sanction would not even be maintainable if the same is sought at the stage of Section 156(3) CrPC because the same could only be sought after the stage of Section 203 CrPC and that too when the court directs for the same, at any stage prior to that there is neither any requirement for the same nor is it maintainable in law. There is a specific bar in the proviso which reads that “no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority”. Further, the bare reading of proviso makes it clear that even the learned Judge could not ask for such a sanction unless he reaches to the stage of Section 204 CrPC. Therefore, the court cannot expect the complainant to do something which is impossible i.e. to ask for sanction for prosecution for passing direction under Section 156(3) CrPC when the law bars any request for sanction by any private person at that stage.

That the amendment has actually clarified that it does not matter how the process in criminal law has actually started (whether by FIR or by complaint), what matters is that sanction for prosecution would only be required when all the evidences are collected (whether on the basis of investigation conducted in FIR or by way of sworn affidavit and examination of witnesses in complaint case) and at least one responsible person has applied his mind on the evidence so collected and then arrives at the finding that alleged accused persons should be prosecution (in FIR case the investigation officer applies his mind and decides whether to file closure or to file charge-sheet and in complaint case the Magistrate would decide under Section 203 whether to dismiss the complaint or proceed ahead) and it is only at that stage the sanction for prosecution would be sought, as clarified under the amended Section 19. Moreover, this further has a logic behind the same, as when sanction is sought after completion of entire investigation and after collection of all evidences on the allegation levied and when the same has also been evaluated by one of the competed authority (Magistrate/investigation officer) then the sanctioning authority would have full evidence before it and thus would be in better position to evaluate the things and make an informed decision.

That the Karnataka High Court in a recent judgment⁴⁶ has also held that even with regard to the pre-Amendment cases, during the pendency of reference of Manju Surana case⁴⁷, it is the law as laid down by R.R. Chari case⁴⁸ which has to be followed. Moreover, since post-Amendment the language of Section 19 has been changed therefore as per that prior sanction for prosecution is not required before passing an order under Section 156(3) CrPC against a public servant.

Conclusion

Thus, keeping in view that in Manju Surana case⁴⁹ the Supreme Court has already referred the issue in relation to the requirement of previous sanction for prosecution before passing an order under Section 156(3) CrPC against a public servant to a larger Bench and the fact that the judgment in M.K. Aiyappa case⁵⁰ has been passed admittedly without making note of the previous binding precedents of the 3-Judge Bench in R.R. Chari case⁵¹ and Devarapalli case⁵², the law which is to be followed should be the law as laid down by the said 3-Judge Bench of the Supreme Court. Moreover, as Section 19 of the Prevention of Corruption Act has been amended by Parliament on 26-7-2018 with a specific aim to provide “clear criteria and procedure for sanction of prosecution, including the stage at which sanction can be sought” therefore the argument in relation to the claim of there being a mandatory requirement to seek previous sanction under Section 19 of the Prevention of Corruption Act before passing an order under Section 156(3) CrPC in relation to a public servant has been put to rest by Parliament itself and now in all cases post-amendment the literal reading of statute is to be given, which lifts any such protection from the public servants.