IMPORTANT POINT
The larger question, whether any direction for investigation u/s 156(3), CrPC can be issued without prior sanction, referred to a larger bench.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 156(3) – Directing investigation – Magistrate has to apply mind. (Para 31)
       (b) Prevention of Corruption Act, 1988 – Section 19 r/w section 197, Code of Criminal Procedure, 1973 – On account of Section 19(1), PC Act whether inquiry u/s 156(3) Cr.P.C. can be said to be one of taking ‘cognizance’ thereby requiring the prior sanction in case of a public servant – Divergence of opinion – Requires to be settled by large Bench. (Para 34, 36)
       (2013) 10 SCC 705; (1999) 6 SCC 559; (2016) 9 SCC 598; 1951 SCR 312; AIR 1943 Pat 245; AIR 1950 Cal 437; AIR 1961 SC 986; (1964) 5 SCR 37; (1973) 3 SCC 753; (1976) 3 SCC 252; (1977) 4 SCC 459; (2010) 8 SCC 206; (2014) 8 SCC 682; (2008) 5 SCC 668; (2009) 6 SCC 372; (2015) 6 SCC 439; (2001) 2 SCC 628; (2006) 1 SCC 627 – Referred
       (c) Code of Criminal Procedure, 1973 – Section 156(3) – Respondent no. 1 described as Principal secretary PHED and Chief Secretary whereas he was Principal Secretary to Chief Minister – Held, wrongly arrayed in the proceedings – His name directed to be struck off. (Para 48)
       Facts of the case:
       The question in these appeals is as to 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.
       Finding of the Court:
       There is divergence of opinion on the issue. Matter should be referred to larger Bench.
       Result: Crl. M.P. 161/2015 allowed. Matter in Cr. Appeal 457 of 2018 and 458 of 2018 referred to larger Bench.

Judgement Key Points

The legal document discusses a significant issue regarding whether prior sanction from competent authorities is required before a Magistrate can issue directions for investigation under Section 156(3) of the Criminal Procedure Code, particularly in cases involving allegations of corruption against public servants under the Prevention of Corruption Act. The core question is whether initiating an investigation under this section constitutes taking 'cognizance' of the offence, which would necessitate prior approval or sanction, especially when the accused is a public servant.

The Court recognizes that there is divergence of opinion on this matter and has decided to refer the issue to a larger bench for a definitive ruling (!) (!) . It is clarified that the power to direct an investigation under Section 156(3) is at the pre-cognizance stage and requires an application of judicial mind by the Magistrate (!) (!) . The Court emphasizes that such an order is in the nature of a direction to the police to investigate and does not amount to taking 'cognizance' of the offence itself (!) .

Furthermore, the document highlights that the requirement of prior sanction under the Prevention of Corruption Act is a mandatory procedural step before a court can take cognizance of offences committed by public servants in their official capacity (!) (!) . It is also noted that even when a Magistrate exercises powers under Section 156(3), if material against a public servant is found during investigation, subsequent proceedings may include that officer as an accused, provided there is sufficient evidence (!) (!) .

In the specific case discussed, the Court finds that the inclusion of a particular respondent as an accused was unwarranted due to lack of material evidence and the respondent’s absence from the decision-making process. The Court orders that the respondent be struck off from the list of accused in the proceedings, but clarifies that if investigation later reveals sufficient grounds, such inclusion may still be possible (!) .

Overall, the document underscores the importance of applying judicial caution and ensuring procedural compliance, especially regarding the involvement of public servants in corruption cases, and calls for a larger judicial authority to settle the legal principles involved.

JUDGMENT

SANJAY KISHAN KAUL, J.

CRIMINAL APPEAL NO. 457 OF 2018 (Arising out of SLP (Crl.) No.5838 of 2014)

1. Leave granted.

2. The question of law sought to be raised in the appeals is as to 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 (hereinafter referred to as the ‘Cr.P.C.’).

3. In Criminal Appeal No………….of 2018 (arising out of SLP (Crl.) No.5838 of 2014), the appellant submitted a complaint before the Special Judge (Prevention of Corruption Act, Jaipur Metropolitan City, Jaipur) under Sections 7 & 13 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘PC Act’) and Sections 420, 467, 468 & 471 read with Section 120B of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’). The appellant sought investigation of offences and registration of an FIR against the accused persons. The first respondent arrayed as an accused before the Special Judge as “Principal Secretary to the Government P.H.E.D. Chief Minister” is the first respondent before us, the other persons arrayed as accused before the Special Judge, being the Superintending Engineer, Chief Engineer, ex Chief Minister (as she then was), ex Minister of P.H.E.D., Finance Secretary, Deputy Accountant General and P.S.L. Company through its Managing Director are also before us, as the Respondents. It is alleged in the complaint that in the drinking water project Nos.1 to 8, a conspiracy was hatched for fulfilling the personal vested interest by way of a tender procedure, which caused loss to the Government fund. The last and the 8th accused was stated to be given the advantage for personal interest. It is not necessary for the purpose of the present controversy to get into the detailed facts but suffice to say that as per the allegations of the appellant, there was a shortage of budget for running the projects and the report of respondent No.1, then the Principal Secretary, dated 20.4.2008 was liable to be perused. In order to make payments for the outstanding and running projects, the Chief Secretary, accused No.1, is stated to have written a proposal to the Finance Department but the Finance Secretary expressed his inability for making available such huge amounts. The fund was stated to have been digressed.

4. It is extremely relevant to note that from the facts, which have now come to light, respondent No.1 herein was neither holding the post of the Principal Secretary of the P.H.E.D nor the Chief Secretary at the relevant stage of time and the description of his office is consequently not correct. The first respondent was actually holding the post of Principal Secretary to the Chief Minister.

5. The Special Judge closed the complaint in terms of order dated 4.2.2014 on account of the fact that the accused persons arrayed as respondents are either public servants or have remained as public servants and no prior sanction has been granted by the competent authority under Section 19 of the PC Act read with Section 197 of the Cr.P.C. To support this conclusion, reliance was placed on the judgment of this Court in Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 opining that no complaint could be forwarded for investigation under Section 156(3) of the Cr.P.C. nor could any proceedings be initiated under Sections 202 & 202 of the Cr.P.C. in the absence of such sanction. It was, thus, observed that further proceedings in the case would be conducted on the filing of sanction.

6. The appellant preferred a revision petition against this order, which has been dismissed by the detailed impugned order dated 30.4.2014. The order really refers to various judicial pronouncements and then concludes that in view of the judgment in Anil Kumar v. M.K. Aiyappa (supra) and P. Nallammal v. State, (1999) 6 SCC 559 both for the reasons of absence of any sanction, as also the revision

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2018 Supreme(SC) 257

IMPORTANT POINTThe larger question, whether any direction for investigation u/s 156(3), CrPC can be issued without prior sanction, referred to a larger bench.

Cases Referred (17)

IMPORTANT POINT
The larger question, whether any direction for investigation u/s 156(3), CrPC can be issued without prior sanction, referred to a larger bench.