A Division Bench(DB) of the High Court of Kerala has declared that the SC judgment in Anil Kumar vs Ayyappa - which held that prior sanction was necessary for the Special Judge to even forward the complaint under Section 156(3) CrPC- holds the filed, despite a subsequent SC decision referring this point to a larger bench for consideration.
The HC DB of Justice A M Shaffique and P Somarajan was considering references made to it by various single benches on the point whether sanction was required for forwarding a complaint under Section 156(3) CrPC. The referring benches observed that the dictum in Anil Kumar v Ayyappa seemed contrary to SC precedents holding that Magistrate cannot be held to have taken cognizance while acting under Section 156(3) CrPC.
While the references were pending before the Division Bench, a Supreme Court bench comprising Justice J Chelameswar and S K Kaul on March 27, 2018 referred the question 'whether prior sanction for prosecution qua allegation of corruption in respect of a public servants is required before setting in motion even the investigative process under Section 156(3) of the Code of Criminal Procedure, 1973' for the consideration of a larger bench. This was done in the case Manju Surana v Sunil Arora and others.
Therefore, the HC bench had to consider whether Anil Kumar v Ayyappa had binding force, despite the reference made in Manju Surana case. The HC DB noted that Manju Surana had observed on the basis of few SC decisions that "a situation may arise where a Magistrate may exercise his power u/s 156(3) of Cr.P.C in a routine manner resulting in an FIR being registered against a public servant, who may have no role in the allegation made".
The HC proceeded to observe :
"Therefore, in Manjju Surana (supra) itself, despite having taken note of the earlier three-Judge Bench judgments, the view expressed in Anil Kumar (supra) was not found to be per incuriam on account of other judgments which indicated that there should be application of mind by the Magistrate while exercising power u/s 156(3) of Cr.P.C and also the consequences for not exercising such power properly when a complaint is being filed against a public servant.
It is in the said background the Apex Court in Manjju Surana (supra) observed that even at the stage of S.156(3), while directing an investigation, there has to be an application of mind by the Magistrate".
The HC also took note of that fact that Section 17A inserted in Prevention of Corruption Act as per 2018 amendment mandated prior sanction even for launching investigation against public servant.
"until a final decision is taken in the reference in Manjju Surana (supra), the dictum laid down in Anil Kumar (supra) holds the field", concluded the judgment.
Applying this, the bench ordered that investigation can proceed only after obtaining prior sanction.