In a judgment having far reaching consequences, the Supreme Court held that a Magistrate cannot order investigation against a public servant in a corruption complaint if there is no sanction given by the government. The decision will have an impact on many investigations pending in the country and most of them will become invalidated because none of the investigations are started with previous sanctions.
A bench of Justices K S Radhakrishnan and A K Sikri said, “Once 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) Cr.PC (for directing probe)”.
In the instant case, a private complaint was filed by Anil Kumar of Hesaraghatta before a Special Lokayukta Court under section 200 (Cr.PC). In the complaint it was alleged that M K Aiyappa (Bangalore Urban Deputy Commissioner) with mala fide intention passed an order in connivance with other officers and restored valuable land in favor of a private person. The Lokayukta police arrested Aiyappa on the charges of cheating, forgery and criminal conspiracy. Aggrieved by the order he appealed in the High Court challenging the Lokayukta’s order of investigation as per section 156 (3) of CrPC, stating prior sanction was necessary. The High Court quashed the FIR stating prior sanction was a must before a Lokayukta Court orders probe against government servant.
U U Lalit, senior counsel appearing for the respondents submitted that, ‘question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duties. The purpose of obtaining sanction is to see that the public servant be not unnecessarily harassed on a complaint, failing which it would not be possible for a public servant to discharge his duties without fear and favor.’
Section 19 of the Prevention of Corruption Act reads as follows;
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, -
(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;
(b) In the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) In the case of any other person, of the authority competent to remove him from his office.
In the section it is clearly mentioned that the sanction is a sine qua non for taking cognizance of the offence only. The argument was that the sending a complaint for investigation under Section 156(3) does not amount to taking cognizance. But the Supreme Court relying on State of Uttar Pradesh v. Paras Nath Singh held 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 Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage.”
The Bench upholding the decision of the High Court said, “If the law requires sanction and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio”.
But the judgment raises many questions, mainly
(a) What will be the fate of pending investigations which are initiated on the basis of the orders from Magistrate under S.156(3)? [It is common knowledge that ‘sanction’ is normally applied once investigation is started and since the sanctioning authority has to apply the mind some materials must be there]
(b) Can subsequent sanction will re-validate the earlier order under S.156(3) on the basis of which the investigation has started(without sanction)?
(c) Does the complainant wait till getting the sanction to approach the Magistrate to initiate the proceedings against a corrupt public servant? [There are instances where as a result of delayed grant of sanction prosecutions under the Prevention of Corruption Act against a public servant have been quashed. See - Mahendra Lal Das v. State of Bihar wherein Supreme Court quashed the prosecution as the sanctioning authority granted sanction after 13 years. Similarly, in the case of Santosh De v. Archna Guha Court quashed prosecution in a case where grant of sanction was unduly delayed]
(d) Is it legal to set different standards for setting the criminal law in motion like if the complainant goes to the police, there is no need of sanction; if he goes to the Magistrate, there must be sanction?