Sanction to prosecute Public Servant, not required at pre cognizance stage ; Supreme Court Jt in Anil Kumar v. Aiyappa is per incuriam : Kerala HC
Kerala High Court in Maneesh E. Vs State of Kerala has apparently taken a contrary view about issue whether sanction needs to be obtained before forwarding a complaint against Public servant for investigation or not, from that taken by another Single Bench in the case against Kerala CM.
In Oommen Chandy’s case, against whom an investigation was ordered by Vigilance Court, Justice P. Ubaid of Kerala High Court, suspending that order had observed that necessity of requisite sanction under Section 19 of the Prevention of Corruption Act needs to be looked into.
In the case that came before Justice Kemal Pasha, the issue was whether a Magistrate Court can reject a complaint merely by highlighting the reason that the relief sought for is one for forwarding the same to the police under Section 156(3) CrPC.
Single Bench observes Supreme Court Judgment in Anil Kumar case is per incuriam
The Single Judge observed thus “it seems that the court below has relied on the decision in Anil Kumar v. Aiyappa [2013 (4) KLT 125 (SC)] by taking a view that even for forwarding the complaint for investigation, sanction is required. The court below has not cared to consider the decision of the Constitution Bench in Nand Ram Agarwala v. H.C. Bhari and others [Matajog Dobey vs. H.C.Bhari AIR 1956 SC 44], where in an identical situation, it was held that 'sanction was required at the stage of taking cognizance only and not prior to it'. The Court observed that the decision in Anil Kumar case, the decision of the Constitution Bench was not considered.
Maintainability of Complaints
Holding that the rejection of complaint by the magistrate was not proper, the Court observed “even when the only relief sought for in the complaint is to get the complaint forwarded under Section 156(3) Cr.P.C., it cannot be said that the complaint is not maintainable, if it reflects sufficient grounds to bring out the offences under the Prevention of Corruption Act. In cases wherein the contents of the private complaint reveal sufficient grounds to invite an offence, the mere fact that the complainant has sought for the relief of forwarding it to the police under Section 156(3) Cr.P.C., does not make the complaint not maintainable. When the contents reveal offences, courts are competent to take cognizance of the offences involved or to forward the matter under Section 156 (3) Cr.P.C. When the contents do not reveal any offence, and the relief sought for is solely for getting it forwarded to the police under Section 156(3) Cr.P.C., it can be said that such a complaint is not maintainable.”
Also Read the Article “Sanction for referring a Complaint (against public servant)for investigation under S.156(3) of the CrPC – Anil Kumar’s Case [(2013)10 SCC 705] is per-incurium by M.A.Rashid, Founder LiveLaw
Read the Judgment here.