IMPORTANT POINTS :
When a Special Judge refers a complaint for investigation u/s 156(3) Cr.P.C. obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage-When a Special judge takes cognizance of the offence on a complaint presented u/s 200 Cr.P.C., and next step to be taken is to follow up u/s 202 Cr.P.C. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage

SHAFFIQUE, J.

1. All these cases are referred to this Court to consider the question relating to the stage at which sanction under section 19(1) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act') is to be taken from the competent authority.

2. The short facts of the cases which we are dealing with are as under:-

WP(C) No. 4389/2014 has been filed seeking to quash Exts.P1, P2 and P3 and to declare that Exts.P2 and P3 are contrary to Sec.19(1) of the PC Act. Ext.P1 in the case is a complaint dated 6/7/2009 submitted by the 4th respondent before the Enquiry Commissioner and Special Judge, Thiruvananthapuram filed under Sections 200 and 190(1)(a) of the Code of Criminal Procedure (Cr.P.C.) inter alia alleging that the petitioner herein was involved in bribery and corruption and therefore he sought to take appropriate action against the petitioner. Pursuant to the said complaint, by Ext.P2 order dated 18/9/2009, the Enquiry Commissioner and Special Judge forwarded the complaint u/s 156(3) of Cr.P.C. to the Director, Vigilance and Anti-Corruption Bureau, Thiruvananthapuram for investigation and report. The Vigilance and Anti Corruption Bureau had registered FIR No.1/2011 on 24/3/2011, a copy of which is produced as Ext.P3, wherein, it is stated that on a preliminary enquiry conducted by the Vigilance and Anti-Corruption Bureau, Kollam unit, it was revealed that one Sri.K.Sahadevan and the petitioner herein while working as Executive Engineer and Assistant Executive Engineer respectively at the office of the Public Works Department entered into a criminal conspiracy with the third accused Sri.K.K.Sunil Kumar in 3rd pursuance of which, accused Nos.1 and 2 facilitated the accused during the course of execution of the work to obtain undue pecuniary gain of Rs.9,56,303/-, which amounts to offences punishable u/s 13(1)(d) r/w 13(2) of the PC Act and Sections 471 and 477A of I.P.C. The petitioner while challenging the aforesaid complaint, order and the FIR contended that the conduct of the investigation is contrary to the judgment in Anil Kumar v. M.S.Aiyappa [2013 (4) KLT 125(SC)] wherein the Apex Court held that the Special Judge/Magistrate cannot refer a complaint for investigation u/s 156(3) of the Cr.P.C. against a public servant without a valid sanction order from the Government.

3. The learned Single Judge while hearing the matter, by order dated 17/12/2015, observed that the judgment in Anil Kumar (supra), is directly in conflict with the view enunciated by four earlier three-Judge Bench rulings in R.R.Chari v. State of U.P. (AIR 1951 SC 207), Gopal Das Sindhi v. State of Assam (AIR 1961 SC 986), Jamuna Singh and Others v. Bhadai Shai (AIR 1964 SC 1541) and Devarapalli Lakshminarayana Reddy v. V.Narayana Reddy (AIR 1976 SC 1672). Thereafter, the learned Single Judge after referring to Sundeep Kumar Bafna v. State of Maharashtra [2014) 2 KLT 809 (SC)] observed that when the High Courts are encountered with two or more mutually irreconcilable decisions of the Supreme Court, then the inviolable recourse is to apply the earliest view as the subsequent one would fall in the category of per incuriam. Accordingly, in para 20 of the order, questions have been formulated for consideration and it was felt that the matter be placed before a bench of two Judges to give a considered opinion on the said questions, which are as under:-

“(1) Whether the legal position adumbrated by two-Judge Bench ruling of the Apex Court in the case Anil Kumar & Ors. v. M.K.Aiyappa & Anr. reported in (2013) 10 SCC 705, is directly in conflict with the considered view in that regard enunciated by the four previous three-Judge Bench rulings of the Apex Court in the cases R.R.Chari v. State of U.P, reported in AIR 1951 SC 207, paras 9 & 10; Gopal Das Sindhi v. State of Assam, reported in AIR 1961 SC 986, paragraph 7; Jamuna Singh & Ors. v. Bhadai Shah, reported in AIR 1964 SC 1541, paras 8, 10 & 11; Devarapalli Lakshminarayana R