Magistrate Can’t Order Further Investigation Against Public Servant Sans Valid Sanction: SC [Read Judgment]

However, it said if the public servant had abused an entirely different office (or offices) other than the one which he was holding on the date when cognizance was taken, there is no necessity of government sanction. 

A two-judge Bench of the Supreme Court has held that a Magistrate cannot order further investigation under Section 156(3) of the Code of Criminal Procedure in relation to public servant in the absence of valid sanction.

The Bench also held that if the public servant had abused an entirely different office (or offices) other than the one which he was holding on the date when cognizance was taken, then there is no necessity of sanction under Section 19 of the Prevention of Corruption Act.

The Bench comprising Justice A.K. Sikri and Justice N.V. Ramana considered the following questions in the appeal:

(1) Whether an order directing further investigation under Section 156(3) of the CrPC can be passed in relation to public servant in the absence of valid sanction and contrary to the judgments of this court in Anil Kumar & Ors. vs M.K. Aiyappa & Anr. and Manharibhai Muljibhai Kakadia and Anr. vs Shaileshbhai Mohanbhai Patel and Ors.?

(2) Whether a public servant who is not on the same post and is transferred (whether by way of promotion or otherwise to another post) loses the protection under Section 19(1) of the PC Act, though he continues to be a public servant, albeit on a different post?

In Anil Kumar vs Aiyappa, a two-judge Bench of Justice K.S. Radhakrishnan and Justice A.K. Sikri held that 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) CrPC.

Also Read: Need for Sanction before passing an order for investigation u/s 156(3) of the Criminal Procedure Code, 1973 By Justice UL Bhat

In the present case, the Bench held that an order directing further investigation under Section 156(3) of the CrPC cannot be passed in the absence of valid sanction.

Regarding the second question, the Bench, relying on Abhay Singh Chautala’s case and Prakash Singh Badal’s case, held that if the public servant had abused an entirely different office or offices other than the one which he was holding on the date when cognizance was taken, there was no necessity of sanction under Section 19 of the PC Act.

Also Read: Anil Kumar’s Case is per-incurium By M.A.Rashid

The Bench reiterated that where the public servant had abused the office which he held in the check period but had ceased to hold “that office” or was holding a different office, then a sanction would not be necessary. The Bench further clarified that where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction.

The Bench dismissed the appeals, holding that sanction was not needed as the appellants, at the time of taking cognizance, were not holding the post which is alleged to have been misused.

Read the Judgment here.