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High Court of Karnataka
THE HONOURABLE MR. JUSTICE N. KUMAR
Noor Mohammed Panali
Versus
The Deputy Superintendent of Police & Another
Writ Petition No. 3855 of 2007 (GM-POLICE) C/W WP No. 2608, 3733, 3368, 3833, 3760, 4025 & 4026 of 2007
Decided on : 29-07-2011
In case of public servants cognizance of any offence by any Court is barred by Section 197 of Criminal Procedure Code or Section 19 of Act. The mandatory character of protection afforded to public servants is brought out by expression "no Court shall take cognizance of such offence except with previous sanction". Use of words "no"and "shall" make it abundantly clear that bar on exercise of power of Court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, complaint cannot be taken notice of. ’Cognizance’ in context in which it is used means ’jurisdiction’ or exercise of jurisdiction’ or ’power to try and determine causes’. The Court therefore is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.
A valid sanction is a pre-requisite to taking of cognizance of enumerated offences alleged to have been committed by a public servant. The bar is to taking of cognizance of offence by Court. Therefore, when Court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute public servant for offence alleged to have been committed by him as public servant. Accused must be a public servant when he is alleged to have committed offence of which he is accused. If it is contemplated to prosecute public servant who has committed such offences, when Court is called upon to take cognizance of offence, a sanction ought to be available otherwise, Court would have no jurisdiction to take cognizance of offence. A trial without a valid sanction, where one is necessary, under Section 19 is a trial without jurisdiction by Court. A trial without a sanction renders proceedings ab initio void.
The terminus a quo for a valid sanction is time when Court is called upon to take cognizance of offence. If, therefore, when offence is alleged to have been committed, accused was a public servant but by time Court is called upon to take cognizance of offence committed by him as public servant, he has ceased to be a public servant, no sanction would be necessary for taking cognizance of offence against him. At time a Court is asked to take cognizance not only offence must have been committed by a public servant but person accused is still a public servant removable from his office by a competent authority, before provisions of Section 19 can apply. The relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by public servant as required by Section 19 is date on which Court is called upon to take cognizance of offence of which he is accused.
Therefore, no sanction is required to file FIR or to register an FIR. No sanction is required to investigate after registering an FIR and also no sanction is required to file charge sheet before jurisdictional Court. Sanction is required, before Court takes cognizance of offence alleged to have been committed by public servant under Act and before issue of process. If at that point of time, if accused continues to be a public servant and if there is no sanction under Section 19 of Act, Court has no jurisdiction to take cognizance of offence committed under Act. If it takes cognizance of such offence and issues process, it is one without jurisdiction, void, ab initio and non est in eye law. It will have no legal effect. The Court is vested with power to take cognizance of an offence under Act, only when there is sanction accorded by appropriate Government or appropriate authority. In spite of it, if it exercise power, illegality is committed and very object behind this provision making sanction mandatory would be defeated, i.e., harassment to public officials in discharge of their official duties.
1. In all these writ petitions, the petitioners who are public servants are seeking the relief of quashing of their chargesheets filed in Court or FIR filed with the jurisdictional police and in cases where the Court has taken cognizance of the offences and issued process, they want all such proceedings to be quashed on the ground that sanction under Section 19 of the prevention of Corruption Act, 1998 is not granted/refused.
2. W.P. Nos. 2608/07, 3733/07, and 3855/07 are cases where chargesheets are filed without sanction, still the Court has taken cognizance of the offence and issued process to the accused.
3. In W.P. Nos. 3368/07, 3833/07, 3760/07, 4025/07 and 4026/07 the sanction sought for is expressly refused, still chargesheet are filed, the Court has taken cognizance of the offence and issued process to the accused.
4. At the time of hearing all these writ petitions, the learned Counsel appearing for the parties submitted that it would be appropriate for this Court to decide the question of necessity of sanction as a preliminary point, so that depending on the answer to the said question, the cases could be decided on merits separately. Therefore, in all these cases the preliminary point that arise for consideration is as under:
“Whether the Court can take cognizance of offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant without the previous sanction of the Central Government/State Government/Authority competent to remove him from office?”
5. Sri B.V. Acharya, learned Senior Counsel appearing for some of the petitioners, contended that, under the scheme of Prevention of Corruption Act, 1988, for short, hereinafter referred to as the ‘Act’, no Court shall take cognizance of an offence punishable under the Act alleged to have been committed by public servant except with the prior sanction of the Central Government/State Government/competent authority to remove him from his office. Previous sanction is a condition precedent for taking cognizance of the offence by the Court. Without sanction, if the Court were to take cognizance of the offence and issue process to the accused, the entire proceedings before the Court is void, ab initio. In the instant cases, not only the Government has not accorded any sanction to prosecute the public servant, but has refused sanction. In spite of the same, chargesheet is filed and the Court has taken cognizance of the offence punishable under the Act and has issued process. Therefore, he submits that the entire proceedings before the Court is required to be quashed.
6. The learned Counsel appearing for the other petitioners adopting the aforesaid argument, further contended that though no sanction is required to file FIR or to conduct investigation, when once the sanction is refused by the Government, the police authorities have to close the case. By not doing so, they have kept these public servants under tension and tormenting them. Therefore, even those FIRs are liable to be quashed.
7. In support of their contentions they relied on the judgment of the Constitution Bench of the Apex Court in the case of R.S. Nayak Vs. A.R. Antulay and Others reported in AIR 1984 SC 684 and also subsequent judgments where the aforesaid legal position has been reiterated by the Apex Court.
8. Per contra, Sri Ravivarma Kumar, learned Senior Counsel appearing for the respondent contended that, as is clear from Section 19 of the Act, no sanction is required to register FIR to conduct investigation and to file chargesheet before the jurisdictional Court. Though in Antulay’s case, the Apex Court has held that when valid sanction is sine quo non for prosecuting a public servant, in the case of Lalu Prasad Alias Lalu Prasad Yadav Vs. State of Bihar reported in (2007) 1 SCC 49, the Supreme Court has laid down that in the cases covered under the Act in respect in public servants, the sanction is of automatic nature and therefore the grant of sanct
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