Prior Sanction Required For Referring A Complaint Against Public Servants For Investigation U/S 156(3) CrPC: Calcutta High Court

In a significant development, the Calcutta High Court on Thursday observed that a prior sanction for prosecuting public servants is required before setting in motion even the investigative process under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC). 

The Court was adjudicating upon an appeal moved by former IPS officer Nazrul Islam seeking initiation of criminal proceedings against Chief Minister Mamata Banerjee and other top officials of the State for purportedly forging a Supreme Court verdict in order to deprive him of his promotion. 

Justice Tirthankar Ghosh observed that the provision of Section 197 CrPC which prescribes for a prior sanction has been incorporated in order to enable public servants to discharge their duties without any fear or favour and thus must be compiled with before initiating investigation. 

"Having regard to the subject matter by way of which the petitioner has attempted to invoke the provisions of Section 156(3) of the Code of Criminal Procedure against the public servants this Court is of the opinion that as the provision of Section 197 of the Code of Criminal Procedure has been incorporated in the statute, the same has been for a meaningful purpose of allowing the public servants to discharge their duties without fear or favour or without any anticipation of being harassed because of the rigours of law. Therefore, ordinarily a valid sanction would be required in a proceeding where the provisions of Section 156(3) Cr.P.C. are invoked against public servants", the Court ruled. 

The Court also noted that the issue in consideration as to whether prior sanction for prosecution qua allegation of corruption in respect of public servants is required before setting in motion the investigative process under Section 156(3) CrPC has been referred to a Larger Bench vide the Supreme Court judgment in Manju Surana v. Sunil Arora & Ors. 

It may be noted that the Supreme Court in two earlier judgments- L. Narayana Swamy v. State of Karnataka & Ors and Anil Kumar & Ors v. M.K. Aiyappa & Anr had held that if there is no previous sanction the Magistrate cannot order investigation against the public servant while invoking powers under Section 156(3) of Cr.P.C. 

On Thursday, Justice Ghosh opined that the Supreme Court in Manju Surana had not declared the dictum laid down in two earlier judgments i.e. in L. Narayana Swamy and Anil Kumar to either per incuriam or a bad law. 

"The aforesaid two judgments has settled the ratio in respect of valid sanction and an application under Section 156(3) Cr.P.C. The subsequent judgment in Manju Surana (supra) case has referred the issue to a Larger Bench but did not declare the ratio laid down in the earlier two judgments as either per incuriam or a bad law", the Court underscored. 

The Court thus held that in case a reference has been made on a point of law then the last of the judgment which is the authority on the point would be valid and accordingly observed, 

"The submission of the learned Advocate General that in case a reference has been made on a point of law then the last of the judgment which is authority on the point would be valid is the correct proposition to be followed by this Court, as was held in M.S. Bhati v. National Insurance Company Ltd., (2019) 12 SCC 248; P. Sudhakar Rao & Ors. v. U. Govinda Rao & Ors, (2013) 8 SCC 693; Ashoke Sadarangani & Anr. v. Union of India and Ors., (2012) 11 SCC 321; Harbhajan Singh & Anr. v. State of Punjab & Anr., (2009) 13 SCC 608."

Background 

In the instant case, the Court was adjudicating upon an appeal against the order dated September 27, 2013 issued by the learned Chief Metropolitan Magistrate, Calcutta wherein an application moved by the petitioner under Section 156(3) CrPC had been rejected on the ground that prior sanction under Section 197 CrPC had not been taken. 

The petitioner had alleged that offence of forgery and various other criminal offences had been committed by a host of public servants- (i) Basudeb Banerjee, Home Secretary, Govt. Of West Bengal; (ii) A. Sengupta, WBCS (Exe), Joint Secretary, Vigilance Cell, P&AR Department, Govt. Of West Bengal; (iii) Sanjay Mitra, Chief Secretary, Govt. Of West Bengal; (iv) Mamata Banerjee, Chief Minister and Minister in charge of Home Department and P&AR Department, Govt. Of West Bengal; (v) S.N. Haque, Additional Chief Secretary, ARD Department, Govt. Of West Bengal; (vi) Naparajit Mukherjee, DG&IGP WB Police Directorate. 

Observations

The Court opined that no material had been enclosed to show that the concerned public servants who have been named in the application under Section 156(3) Cr.P.C. had authored such allegedly forged documents. 

"..as such by any stretch of imagination it cannot be held that the individuals were acting with a guilty mind for any purpose of inflicting injury upon the petitioner, far less to say that their act and action can be foundation of a criminal case inviting an investigation to be conducted against them", the Court observed. 

Reliance was also placed on the Supreme Court judgment in Anil Kumar and Others v. M. K. Aiyappa and Another wherein it had been held that there is a mandatory character of the protection afforded to a public servant and the word 'cognizance' has a wider connotation and is not merely confined to the stage of taking cognizance under Section 190 of CrPC. 

"The Hon'ble Supreme Court while laying down the ratio relating to requirement of sanction prior to an order being passed under Section 156(3) of the Code of Criminal Procedure in respect of public servants interpreted the word 'cognizance' appearing in the Code of Criminal Procedure and to that effect it has been held that there is a mandatory character of the protection afforded to a public servant and the word 'cognizance' has a wider connotation and is not merely confined to the stage of taking cognizance under Section 190 of the Code of Criminal Procedure", the Court elucidated further. 

Thus, the Court observed that prior sanction for prosecuting public servants is required before setting in motion the investigative process under Section 156(3) CrPC. However, the Court clarified that in the instant case, the substantive offences as alleged have not been made out, so the issue of sanction is an additional consideration.

"Accordingly there is no illegality in the order dated 27.09.2013 passed by the learned Chief Metropolitan Magistrate, Calcutta and as such no interference is called for", the Court ordered further. 

 Case Title: Dr. Nazrul Islam v. Basudeb Banerjee & Ors

Case Citation: 2022 LiveLaw (Cal) 16

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