Calcutta High Court (Appellete Side)
Dr. Nazrul Islam vs Basudeb Banerjee & Ors on 25 January, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH
CRR 625 of 2016
Dr. Nazrul Islam
-vs.-
Basudeb Banerjee & Ors.
Petitioner in person : Dr. Nazrul Islam
Heard on : 16.08.2021, 02.09.2021, 07.09.2021,
09.09.2021, 13.09.2021, 16.09.2021,
21.09.2021, 23.09.2021, 27.09.2021,
08.10.2021, 06.12.2021, 13.12.2021,
14.12.2021 &15.12.2021
Judgment on : 25.01.2022
Tirthankar Ghosh, J:-
The present revisional application has been preferred against the order
dated 27.09.2013 passed by the learned Chief Metropolitan Magistrate,
Calcutta, in connection with case no. C/31586/13.
By the said order the learned Chief Metropolitan Magistrate was pleased
to reject the application under Section 156(3) of Code Criminal Procedure filed
at the instance of the petitioner, wherein the offences referred to were under
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Sections 166/167/218/219/463/464/465/466/471 of the Indian Penal Code,
allegedly being committed by the opposite parties namely; (i) Basudeb
Banerjee, Home Secretary, Govt. Of West Bengal; (ii) A. Sengupta, WBCS (Exe),
Joint Secretary, Vigilance Cell, P&AR Department, Govt. Of West Bengal; (iii)
Sanjay Mitra, Chief Secretary, Govt. Of West Bengal; (iv) Mamata Banerjee,
Chief Minister and Minister in charge of Home Department and P&AR
Department, Govt. Of West Bengal; (v) S.N. Haque, Additional Chief Secretary,
ARD Department, Govt. Of West Bengal; (vi) Naparajit Mukherjee, DG&IGP WB
Police Directorate. The learned Magistrate was pleased to observe that no
offence under the said Sections were committed by the opposite parties and
also observed that even if it is presumed that the offences were committed
sanction would be required under Section 197 of the Code of Criminal
Procedure.
The petitioner being aggrieved approached this Court against the order
passed by the learned Magistrate. The first contention of the petitioner is that
the substantive offences so alleged were committed by the opposite parties and
for the purpose of investigation no sanction is required. In order to
substantiate his argument the petitioner contended that in this case the
opposite parties/accused entered into criminal conspiracy, prepared incorrect
documents, prepared incorrect translation, forged the contents of his book,
forged the Supreme Court judgment and used them as genuine for injuring him
which by no stretch of imagination can be said to be work done in discharge of
their official duties.
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Petitioner appearing in person emphasized that sanction is required at
the stage of cognizance and for the purpose of investigation no sanction is
required. Additionally he submitted that even if sanction is required that can
be made available at any stage but an offence cannot be deterred from being
investigated for want of sanction, to this effect the petitioner relied upon P.K.
Pradhan -Vs. - State of Sikkim, (2001)6 SCC 704; State of H.P. -Vs.- M.P.
Gupta (2004) 2 SCC 349; Choudhury Parveen Sultana -Vs.- State of W.B. &
Anr. (2009) 3 SCC 398; Inspector of Police & Anr.-Vs.-Battenapatla Venkata
Ratnam & Anr. (2015) 13 SCC 87; Punjab State Warehousing Corporation-Vs.-
Bhushan Chander & Anr., (2016) 13 SCC 44.
The main thrust of argument by relying upon the aforesaid judgments
was that the principles decided by the Larger Benches of the Hon'ble Supreme
Court do not require sanction to be granted particularly with reference to the
acts committed by the accused persons and for the purpose of investigation of
the same.
The next argument which was advanced by the petitioner is that even if it
is presumed that sanction is necessary the same would be required at the time
of taking cognizance and not at the time when the learned Magistrate considers
an application on the issue of requirement of investigation under Section
156(3) of the Code of Criminal Procedure. It was contended that as the order
was passed on 27.09.2013 the judgment of Anil Kumar & Ors. -Vs.-M.K.
Aiyappa & Anr., (2013) 10 SCC 705 was not operating in the field and as such
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the said law will not be applicable to the present case. Elaborating his
argument the petitioner stated that if the order of the learned Magistrate is
closely scrutinized it would be clear that there was no analysis regarding the
application of the Sections for which the offences were allegedly committed and
the learned Magistrate cryptically observed that no offence has been made out.
On the point of sanction it was contended that learned Magistrate held that the
provision of Section 197 of Cr.P.C. is applicable, which, however, is contrary to
the law as the subject manner of the proceeding before the Magistrate related
to requirement of investigation in respect of the offences alleged to have been
committed by the accused/opposite parties.The order of the Magistrate was
self-contradictory and the same being illegal should be set aside.
Petitioner reiterated that in his case the Supreme Court judgments were
used in a manner for the purpose of preparing charges which are not available
in the Supreme Court judgment and can be presumed to have been prepared,
framed and used for the purpose of inflicting injury upon him. Contention of
the petitioner regarding the translation of his book is that such contents were
not available and they were cryptically taken from different pages and inserted
within inverted comas for inflicting injury upon him. According to him the
substantive sentences complained of under Sections
166/167/218/219/463/464/465/466/471 of the Indian Penal Code, clearly
applies in the present case and accused/opposite parties knowing fully well in
a concerted manner entered into a criminal conspiracy for depriving him of his
promotion which he was entitled under the Law.
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The petitioner thereafter joined issue in respect of the judgment of the
Hon'ble Supreme Court in Anil Kumar (supra) and L. Narayana Swamy-Vs.-
State of Karnataka & Ors., (2016) 9 SCC 598, and submitted that the ratio of
the said judgments which states that no order for investigation under Section
156 (3) of the Code of Criminal Procedure can be ordered against a public
servant without a valid sanction is not a good law, in view of the earlier
judgments of the Supreme Court as also the subsequent judgment of the
Supreme Court in Manju Surana -Vs.- Sunil Arora & Ors., (2018) 5 SCC 557.
Drawing attention of this Court to the initial paragraphs of Anil Kumar (supra)
and L. Narayana Swamy (supra) petitioner submitted that both the judgments
were on the basic foundation of requirement of sanction under the Prevention
of Corruption Act, as such the principles laid down therein may not be
applicable to the present case. The petitioner also pointed out that the subject
matter of the case originated from complaint under Section 200 of the Code of
Criminal Procedure and the same is distinguishable as Section 200 of Cr.P.C.
falls under Chapter XV of Cr.P.C. which is under the heading "Complaints to
Magistrate" while Section 156(3) Cr.P.C. falls under Chapter XII of Cr.P.C.
which is under the heading "Information to the police and their powers to
investigate". The two Chapters operating in different fields have separate
manner of application and a judgment delivered or a law pronounced in respect
of the proceeding under Section 200 of Cr.P.C. cannot be applicable in respect
of the proceeding under Section 156(3) Cr.P.C. It was further contended that
Section 19 of the Prevention of Corruption Act and Section 197 of the Code of
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Criminal Procedure are completely different and are to be considered in a
separate perspective. To that effect the petitioner also tried to draw the analogy
in respect of investigation to be conducted under Section 156(3) of the Code of
Criminal Procedure and Section 202 of the Code of Criminal Procedure.
Petitioner relied upon several judgments of the Hon'ble Supreme Court,
by referring to R.R. Chari v. State of Uttar Pradesh., AIR 1951 SC 207 he
stressed on the issue that no illegal act can be said to bedone in discharge of
any official duty.
Petitioner submitted that all the necessary requisites or compliances
required for initiation of a case under Section 156(3) of the Code of Criminal
Procedure were complied with according to the settled principles of law in
Lalita Kumari -Vs.- Government of Uttar Pradesh and Ors., (2014) 2 SCC 1
case and Priyanka Srivastava & Anr. -Vs. -State of Uttar Pradesh and Ors.,
(2015) 6 SCC 287 case. It was thereafter contended that the provisions of
Section 156(3) of Cr.P.C. are in the nature of reminder to the police authorities
to do their work in accordance with law, it would be fallacy of the system if the
Superintendent of Police can order an investigation under Section 154(3) of
Cr.P.C. against public servants and the Officer-in-charge of a police Station can
conduct investigation against public servants under Section 156(1) of Cr.P.C.
but a Magistrate even after finding that the offences have been made out
cannot proceed without a valid sanction. According to him sanction is never
pre-requisite for initiation of investigation and the legislative object cannot be
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diluted for the purpose of protecting the illegal acts of public servants,
reference has been made to the judgment of the Hon'ble Supreme Court in
Subramanian Swamy -Vs.- Director Central Bureau of Investigation & Anr.,
(2014) 8 SCC 682. By drawing the attention of the Court to paragraph 98 of the
said judgment, which is as follows:
"98. Having considered the impugned provision contained in Section
6-A and for the reasons indicated above, we do not think that it is
necessary to consider the other objections challenging the impugned
provision in the context of Article 14."
It has been submitted that no distinction can be created on ground of
corruption or any illegal act of a public servant, however, how high he may be.
Petitioner reiterated that it is a settled principle of law that ordering
investigation under Section 156(3) Cr.P.C. is pre-cognizance function and as
such the question of sanction do not arise, to that effect reliance has been
placed on R.R. Chari (supra); Gopal Das Sindhi & Ors. -Vs.- State of Assam &
Anr., AIR 1961 SC 986; Jamuna Singh & Ors.-Vs.- Bhadai Shah, AIR 1964 SC
1541; Nirmaljit Singh Hoon-Vs.- State of West Bengal & Anr., (1973) 3 SCC
753; Devarapalli Lakshminarayana Reddy & Ors.-Vs.- V. Narayana Reddy &
Ors., (1976) 3 SCC 252.
It has also been submitted that during contemporary period there were
other judgments of the Hon'ble Supreme Court which do not lay down similar
proposition, to that effect petitioner has relied upon Madhao & Anr.-Vs.- State
8
of Maharashtra & Anr., (2013) 5 SCC 615. Attention has been drawn to
paragraph 19 which is as follows:
"19. Where a Magistrate chooses to take cognizance he can adopt any
of the following alternatives:
(a) He can peruse the complaint and if satisfied that there are
sufficient grounds for proceeding he can straightaway issue process
to the accused but before he does so he must comply with the
requirements of Section 200 and record the evidence of the
complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an
enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an
enquiry by any other person or an investigation by the police."
It was contended that in Jayant & Ors.-Vs.- State of Madhya Pradesh,
(2021) 2 SCC 670, by referring to Anil Kumar (supra) the Hon'ble Supreme
Court deviated from the findings made therein and observed that ordering
investigation under Section 156(3) Cr.P.C. was a pre-cognizance function and
stressed on paragraph 13 of the said judgment which is as follows:
"13. Applying the law laid down by this Court in the cases referred to
hereinabove, it cannot be said that at this stage the learned Magistrate
had taken any cognizance of the alleged offences attracting the bar
under Section 22 of the MMDR Act. On considering the relevant
provisions of the MMDR Act and the Rules made thereunder, it cannot
be said that there is a bar against registration of a criminal case or
investigation by the police agency or submission of a report by the
9
police on completion of investigation, as contemplated by Section 173
CrPC."
Petitioner summarized his argument in the backdrop of the factual
circumstances and submitted that :
a) The accused persons forged part of the Supreme Court judgment
as also different parts of his books and used the same as genuine
in the charge-sheet for causing damage/injury to him and as
suchhas made themselves liable for offences under Section
465/466/471 of the Indian Penal Code.
b) The accused persons being public servants translated different
parts of his book for preparation of the charge-sheet in a manner
which they knew to be incorrect and with the intention of causing
injury to the petitioner,thus making themselves liable for
offencespunishable under Section 167 of the Indian Penal Code.
c) As per the relevant laws (Rule 8, Rule 6(a) a summary of
submission [Rule 8(6)(a) of AIS (D&A) rules 1969 read with DP &
AR Letter No 11018/8/81-AIS (III) Dated 25-11-1981, and Para 34
of SC judgment in State of Punjab vs VK Khanna (AIR 2001 SC
343)], the authority was bound to apply its mind on written
statement of defence submitted by a party for deciding whether
further inquiry was necessary. The laws provide the opportunity to
the petitioner to get the charges dropped by explaining
thissatisfactorily in written statement of defence. Denying such
10
opportunity, the accused persons prepared incorrect
documents/record for passing the orderfor injuring the
petitioner,thereby committing the offencespunishable under
Section 167/218 of the Indian Penal Code.
d) Though there was no charge and no statement of violation of Rule6
of AIS (Conduct) Rules 1968 in the charge-sheet the authorities
prepared incorrect documents/record by alleging such violation
and thereby committed cognizable offences under Sections
167/218 of the Indian Penal Code.
e) In the Memorandum dated 14th December, 2012 the accused
persons being public servants prepared the documents/records in
a manner which they knew to be incorrect for the purpose of
causing injury to the petitioner, making them liable for cognizable
offences under Section 167/218 of the Indian Penal Code.
f) The petitioner thereafter referred to the minutes of the Screening
Committee meeting dated 05.12.12 and submitted that the
observation made by the committee being "not received from the
borrowing department/authority", "not available for assessment",
was incorrect as the petitioner submitted his self-assessment for
PAR for 2010-2011 in time and the same was in the custody of the
accused persons. According to the petitioner the accused persons
were bound to make assessment on self-assessment and overall
record and the same was not done for the purpose of injuring him,
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which makes them liable for offences under Section 167/218 of the
Indian Penal Code.
g) The bench mark fixed by the Committee which is three
outstanding PARs in last five years was with the purpose of
injuring the petitioner as the same was against the AIS Rules,
2007. This assessment was more important because of the fact
that the accused persons were working as members of the
Screening Committee and for the purpose of deciding whether
ADGP was fit to be promoted to the rank of DGP, this was
purposely done and an incorrect document/record was prepared
with the intention of injuring the petitioner making themselves
liable for offences under Section 167/218 of the Indian Penal Code.
There were other instances regarding act and action of the
Screening Committee which have been detailed in the application
under Section 156(3) of the Code of Criminal Procedure which
according to the petitioner has made the members of the
Committee liable for commission of offences under Section
167/218 of Indian Penal Code. Another contention of relevance is
that one of the accused Basudeb Banerjee, IAS was not in the rank
of Additional Chief Secretary or Chief Secretary and as such was
not liable to be a member of the Screening Committee for
promotion to DG Rank, his attendance in the meeting as a
member, signing the minutes as Principal Secretary which is an
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offence under Section 166 of the Indian Penal Code. Petitioner
thereafter, narrated several acts of the Committee for
substantiating the offences under Section 166 of the Indian Penal
Code being made out, so far as the accused members are
concerned.
h) The petitioner referred to Maneka Gandhi -Vs.- Union of India &
Anr., (1978) 1 SCC 248 and also Maharashtra State Financial
Corporation-Vs.- M/s. Suvarna Board Mills & Anr., (1994) 5 SCC
566 and submitted that he was denied the principles of natural
justice and the foundation of the same makes out an offence under
Section 166 of the Indian Penal Code. To that effect the petitioner
also stated that the same offences are made out as no list of
witnesseswere attached to the charge-sheet which is mandatory
according to the rules.
i) The next point which was argued by the petitioner related to
criminal conspiracy and by referring to State -Vs.-Nalini & Ors.,
(1999) 5 SCC 253wherein it has been observed"that a conspiracy is
always hatched in secrecy and it is impossible to adduce direct
evidence of the same. The offence can be only proved largely from
the inference drawn from acts or illegal omission committed by the
conspirators in pursuance of a common design". The petitioner with
reference to the observations of the Hon'ble Supreme Court
referred to notification of the Home Department and certain orders
13
issued by the West Bengal Police Directorate, as also PressReports
and submitted that the violation itself will speak that without any
conspiracy the same is not possible. After not getting any remedy
from DG and IGP, Home Secretary and Chief Secretary, petitioner
sent his representation dated 01.07.2018 to the Chief Minister
describing the offences committed against him by way of
conspiracy. A draft information of the FIR was sent by the
petitioner for initiation of a case, however, neither he was informed
that there was any factual/legal error nor any communication was
made to him from the higher Office and the same is not possible
without any conspiracy. The petitioner, therefore, claims that it is
well established that a conspiracy existed with the Senior Officers
who were members of the Screening Committee and the Chief
Minister and the same was with the purpose of injuring him.
Petitioner added that the overall act and actions of all the opposite
parties/accused persons taken as a whole has made out
cognizable offences under Section 120B read with Section
167/218, 471/466 and 471/465 of the Indian Penal Code. The
observation of the Magistrate that no offence is made out was
without any reason and as a clear case of cognizable offences has
been made out, the officer-in-charge was duty bound to respect the
Constitution Bench judgment in Lalita Kumari (supra) and the
Officer-in-charge or his superior Officer having not done the same,
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the Magistrate was obliged to direct an order of investigation into
the alleged act of the accused/opposite parties.
Learned Advocate General appearing on behalf of the State vehemently
opposed the contents advanced by the petitioner and submitted that none of
the Sections under the Indian Penal Code for which the petitioner claims that
police investigation is required are maintainable or applicable. According to
him the application under Section 156(3) of the Code of Criminal Procedure
which was preferred before the learned Magistrate is without any substance
and as such no offence can be said to be committed. Supporting the order
passed by the learned Magistrate while rejecting the application under Section
156(3) of the Code of Criminal Procedure, it has been submitted that the
learned Magistrate rejected the application of the petitioner on two counts
firstly, for no offence being made out and secondly, sanction was required for
passing direction for investigation.
In order to substantiate his contentions learned Advocate General firstly,
relied upon a judgment delivered by the Coordinate Bench of this High Court in
CRR No. 3493 of 2017 and submitted that a Coordinate Bench has already
held that in respect of the same contentions that is the judgment of the Hon'ble
Supreme Court and passages from the book written by the petitioner no offence
has been made out. Additionally he submitted that if a charge has been framed
against the petitioner by way of forgingthe Supreme Court judgment or from
the paragraphs of a book written by the petitioner in that case the charges
15
would not stand but in this case the charges have been held to be proved
against the petitioner. It has also been submitted that being aggrieved by the
judgment in CRR No. 3493 of 2017 the petitioner appealed before the Hon'ble
Supreme Court being Special Leave to appeal (Crl.) No. 3715/2021 which was
dismissed on 24.09.2021 by the Hon'ble Supreme Court.
Learned Advocate General also drew the attention of this Court to the
Judgment delivered by a Division Bench of this Court in W.P.C.T. 40-43 of
2014 with C.O.C.T. 1 of 2014, wherein it has been categorically observed "We
fail to reason, once the petitioner could not come within the zone of consideration
his attack to the selection process is of no consequence." Relying upon the
appeal preferred in the Hon'ble Supreme Court by the petitioner in respect of
the judgment delivered by the Division Bench in Special Leave to appeal (C)
No.(s) 9724-9728/2014, Learned Advocate General submitted that the order
passed therein on 08.09.2014 would reflect that the Special Leave petition was
also dismissed and as such the Division Bench order of this Court stands to be
correct.
The other issue which was strenuously contended by the learned
Advocate General is that in Anil Kumar & Ors. -Vs. - M.K. Aiyappa & Anr.,
(2013) 10 SCC 705, the Hon'ble Supreme Court in paragraphs 17 and 21
observed as follows:
"17. We may now examine whether, in the abovementioned legal
situation, the requirement of sanction is a precondition for ordering
16
investigation under Section 156(3) CrPC, even at a pre-cognizance
stage.
21. The learned Senior Counsel appearing for the appellants raised the
contention that the requirement of sanction is only procedural in nature
and hence, directory or else Section 19(3) would be rendered otiose. We
find it difficult to accept that contention. Sub-section (3) of Section 19
has an object to achieve, which applies in circumstances where a
Special Judge has already rendered a finding, sentence or order. In
such an event, it shall not be reversed or altered by a court in appeal,
confirmation or revision on the ground of absence of sanction. That does
not mean that the requirement to obtain sanction is not a mandatory
requirement. Once it is noticed that there was no previous sanction, as
already indicated in various judgments referred to hereinabove, the
Magistrate cannot order investigation against a public servant while
invoking powers under Section 156(3) CrPC. The above legal position,
as already indicated, has been clearly spelt out in Paras Nath
Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200] and Subramanian
Swamy [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC
(L&S) 666] cases."
Learned Advocate General also submitted that the said view was
approved by the Hon'ble Supreme Court in a subsequent judgment of
L. Narayana Swamy -Vs. - State of Karnataka &Ors., (2016) 9 SCC
598,to that effect reliance was placed in paragraphs 10.1, 15 and 16
which are as follows:
"10.1 (i) Whether an order directing further investigation under Section
156(3) CrPC can be passed in relation to public servant in the absence
of valid sanction and contrary to the judgments of this Court in Anil
Kumar v. M.K. Aiyappa [Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC
17
705 : (2014) 1 SCC (Cri) 35] and Manharibhai Muljibhai
Kakadia v. Shaileshbhai Mohanbhai Patel [Manharibhai Muljibhai
Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517 : (2013)
1 SCC (Cri) 218] ?
15. The above view taken by the High Court is contrary to the
judgments of this Court in Manharibhai Muljibhai
Kakadia [Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai
Patel, (2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218] and Anil
Kumar [Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 : (2014) 1
SCC (Cri) 35] . In Manharibhai Muljibhai Kakadia [Manharibhai
Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC
517 : (2013) 1 SCC (Cri) 218] , the facts were that the respondent filed
before the CJM a criminal complaint alleging that the appellant had, by
doing the acts stated, committed the offences punishable under
Sections 420, 467, 468, 471 and 120-B IPC. The CJM, in exercise of his
power under Section 202 CrPC by his order dated 18-6-2004 directed
an enquiry to be made by a police inspector. The investigating officer
investigated into the matter and submitted a complaint summary report
opining that no offence was made out. The CJM on 16-4-2005 accepted
that report and dismissed the complaint. The respondent complainant
filed a criminal revision petition thereagainst under Section 397 read
with Section 401 CrPC before the High Court. The appellants then made
an application seeking their impleadment as respondents in the revision
proceedings so that they could be heard in the matter. On 5-8-2005
[Manharbhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel,
2005 SCC OnLine Guj 280] , the High Court dismissed that application.
Against that order, appeal was heard by special leave. This Court set
aside [Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai
Patel, (2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218] the order of the High
Court permitting the appellants to be impleaded in the revision
18
proceedings. The Court took note of the provisions of CrPC i.e. Section
202, which does not permit an accused person to intervene in the
course of inquiry by the Magistrate. However, it was held that even
while directing inquiry, the Magistrate applies his judicial mind on the
complaint and, therefore, it would amount to taking cognizance of the
matter. In this context, the Court explained the word "cognizance" in the
following manner: (Manharibhai Muljibhai Kakadia case [Manharibhai
Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC
517 : (2013) 1 SCC (Cri) 218] , SCC p. 533, para 34)
"34. The word "cognizance" occurring in various sections in the Code is
a word of wide import. It embraces within itself all powers and
authority in exercise of jurisdiction and taking of authoritative notice of
the allegations made in the complaint or a police report or any
information received that an offence has been committed. In the context
of Sections 200, 202 and 203, the expression "taking cognizance" has
been used in the sense of taking notice of the complaint or the first
information report or the information that an offence has been
committed on application of judicial mind. It does not necessarily mean
issuance of process."
16. The second judgment in Anil Kumar [Anil Kumar v. M.K.
Aiyappa, (2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] referred to above
is directly on the point. In that case, identical question had fallen for
consideration viz. whether sanction under Section 19 of the PC Act is a
precondition for ordering investigation against a public servant under
Section 156(3) CrPC even at pre-cognizance stage? Answering the
question in the affirmative, the Court discussed the legal position in the
following manner: (SCC pp. 711-12 & 713-14, paras 13-15 & 21)
"13. The expression "cognizance" which appears in Section 197 CrPC
came up for consideration before a three-Judge Bench of this Court
in State of U.P. v. Paras Nath Singh [State of U.P. v. Paras Nath
19
Singh, (2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200] and this Court
expressed the following view: (SCC p. 375, para 6)
'6. ... "10. ... And the jurisdiction of a Magistrate to take cognizance of
any offence is provided by Section 190 of the Code, either on receipt of
a complaint, or upon a police report or upon information received from
any person other than a police officer, or upon his knowledge that such
offence has been committed. So far as public servants are concerned,
the cognizance of any offence, by any court, is barred by Section 197 of
the Code unless sanction is obtained from the appropriate authority, if
the offence, alleged to have been committed, was in discharge of the
official duty. The section not only specifies the persons to whom the
protection is afforded but it also specifies the conditions and
circumstances in which it shall be available and the effect in law if the
conditions are satisfied. The mandatory character of the protection
afforded to a public servant is brought out by the expression, "no court
shall take cognizance of such offence except with the previous
sanction". Use of the words "no" and "shall" makes it abundantly clear
that the bar on the exercise of power of the court to take cognizance of
any offence is absolute and complete. The very cognizance is barred.
That is, the complaint cannot be taken notice of. According to Black's
Law Dictionary the word "cognizance" means "jurisdiction" or "the
exercise of jurisdiction" or "power to try and determine causes". In
common parlance, it means taking notice of. A 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." [Ed.: As observed in State of H.P. v. M.P. Gupta,
(2004) 2 SCC 349, 358, para 10 : 2004 SCC (Cri) 539] '
20
14. In State of W.B. v. Mohd. Khalid [State of W.B. v. Mohd. Khalid,
(1995) 1 SCC 684 : 1995 SCC (Cri) 266] , this Court has observed as
follows:
'13. It is necessary to mention here that taking cognizance of an
offence is not the same thing as issuance of process. Cognizance is
taken at the initial stage when the Magistrate applies his judicial mind
to the facts mentioned in a complaint or to a police report or upon
information received from any other person that an offence has been
committed. The issuance of process is at a subsequent stage when after
considering the material placed before it the court decides to proceed
against the offenders against whom a prima facie case is made out.'
[Ed.: As considered in State of Karnataka v. Pastor P. Raju, (2006) 6
SCC 728, 734, para 13 : (2006) 3 SCC (Cri) 179]
The meaning of the said expression was also considered by this Court
in Subramanian Swamy case [Subramanian Swamy v. Manmohan
Singh, (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S)
666] .
15. The judgments referred to hereinabove clearly indicate that the
word "cognizance" has a wider connotation and is not merely confined
to the stage of taking cognizance of the offence. When a Special Judge
refers a complaint for investigation under Section 156(3) CrPC,
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 under Section 200 CrPC and the next step to be
taken is to follow up under Section 202 CrPC. Consequently, a Special
Judge referring the case for investigation under Section 156(3) is at pre-
cognizance stage.
***
21. The learned Senior Counsel appearing for the appellants raised the
contention that the requirement of sanction is only procedural in nature
and hence, directory or else Section 19(3) would be rendered otiose. We
find it difficult to accept that contention. Sub-section (3) of Section 19
has an object to achieve, which applies in circumstances where a
Special Judge has already rendered a finding, sentence or order. In
such an event, it shall not be reversed or altered by a court in appeal,
confirmation or revision on the ground of absence of sanction. That does
not mean that the requirement to obtain sanction is not a mandatory
requirement. Once it is noticed that there was no previous sanction, as
already indicated in various judgments referred to hereinabove, the
Magistrate cannot order investigation against a public servant while
invoking powers under Section 156(3) CrPC. The above legal position,
as already indicated, has been clearly spelt out in Paras Nath
Singh [State of U.P. v. Paras Nath Singh, (2009) 6 SCC 372 : (2009) 2
SCC (L&S) 200] and Subramanian Swamy [Subramanian
Swamy v. Manmohan Singh, (2012) 3 SCC 64 : (2012) 1 SCC (Cri)
1041 : (2012) 2 SCC (L&S) 666] cases."
Having regard to the ratio of the aforesaid judgment [Anil
Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] ,
we have no hesitation in answering the questions of law, as formulated
in para 10 above, in the negative. In other words, we hold that an order
directing further investigation under Section 156(3) CrPC cannot be
passed in the absence of valid sanction."
It has been pointed out on behalf of the State that in the case of Manju
Surana -Vs. - Sunil Arora & Ors., (2018) 5 SCC 557, the judgment of Anil
Kumar (supra) and L. Narayana Swamy (supra) felt for consideration and in the
said case the Hon'ble Supreme Court referred the case to a Larger Bench for
settling the issue. Reliance has been placed on paragraphs 32, 33 and 35
which are set out below:
"32. We have examined the rival contentions and do find a divergence
of opinion, which ought to be settled by a larger Bench. There is no
doubt that even at the stage of Section 156(3), while directing an
investigation, there has to be an application of mind by the Magistrate.
Thus, it may not be an acceptable proposition to contend that there
would be some consequences to follow, were the Magistrate to act in a
mechanical and mindless manner. That cannot be the test.
33. The catena of judgments on the issue as to the scope and power of
direction by a Magistrate under Chapters XII & XIV is well established.
Thus, the question would be whether in cases of the PC Act, a different
import has to be read qua the power to be exercised under Section
156(3) CrPC i.e. can it be said that on account of Section 19(1) of the PC
Act, the scope of inquiry under Section 156(3) CrPC can be said to be
one of taking "cognizance" thereby requiring the prior sanction in case
of a public servant? It is trite to say that prior sanction to prosecute a
public servant for the offences under the PC Act is a provision contained
under Chapter XIV CrPC. Thus, whether such a purport can be imported
into Chapter XII CrPC while directing an investigation under Section
156(3) CrPC, merely because a public servant would be involved, would
beg an answer.
35. The complete controversy referred to aforesaid and the conundrum
arising in respect of the interplay of the PC Act offences read with CrPC
is, thus, required to be settled by a larger Bench. The papers may be
placed before the Hon'ble the Chief Justice of India for being placed
before a Bench of appropriate strength."
According to the State the issue which could not be decided by the
Hon'ble Supreme Court and has been referred to Larger Bench, the petitioner
has called upon this Court to decide i.e. whether in an application under
Section 156(3) of the Code of Criminal Procedure, the Magistrate is empowered
to direct investigation without a valid sanction againstthe public servants. It
has been contended that in case a reference has been made on a point of law
then in that case last of the judgment which is an authority on the point
would be followed till the reference is decided by a Larger Bench. To that effect
reliance has been placed on M.S. Bhati -Vs. - National Insurance Company
Ltd., (2019) 12 SCC 248, and the attention of the Court has been drawn to
paragraphs 10 and 11 which are as follows:
"10. The learned counsel further submitted on the alternative plea that
the decision in Mukund Dewangan [Mukund Dewangan v. Oriental
Insurance Co. Ltd., (2017) 14 SCC 663] has been reserved for
reconsideration by a larger Bench in Bajaj Alliance General Insurance
Co. Ltd. v. Rambha Devi [Bajaj Alliance General Insurance Co.
Ltd. v. Rambha Devi, (2019) 12 SCC 816] by a two-Judge Bench of
this Court on 3-5-2018.
11. The law which has been laid down by a three-Judge Bench of this
Court in Mukund Dewangan [Mukund Dewangan v. Oriental
Insurance Co. Ltd., (2017) 14 SCC 663] binds this Court. As a matter of
judicial discipline, we are duty-bound to follow that decision which
continues to hold the field."
The learned Advocate General concluded his argument by submitting
that the revisional application is not maintainable on the questions of law as
raised by the petitioner and as such is liable to be dismissed.
On an overall appreciation of the points canvassed by both the sides the
issues which are required to be dealt with are:
a) Whether the allegations made in the application under Section
156(3) of the Code of Criminal Procedure taken in its entirety
makes out any offence for investigation;
b) Whether a valid sanction is required prior to an order of
investigation being passed under Section 156(3) of the Code of
Criminal Procedure against public servants;
c) Lastly if an issue has been referred to a Larger Bench of the
Hon'ble Supreme Court by way of a reference what would be the
consequences in respect of pending proceedings.
So far as the first point is concerned the petitioner tried to emphasize
before this Court that the substance which was inserted within inverted comas
by relying upon the Supreme Court judgment was never there in the said form
in the referred judgment and as such it can be said that the Supreme Court
judgment was forged and the same was intentionally prepared with the ulterior
object of inflicting injury upon him. The other factual aspect of the allegations
made by the petitioner related to the books authored by him, wherein within
inverted comas insertions were made which were not available in the book and
the translation so prepared were purposely done for the purpose of inflicting
injury upon him. It would not be out of place to state that the foundation of
such allegation were in respect of charges which were brought against the
petitioner and on an entire evaluation of the facts laid down by both the sides it
is transparent that the said charges were subject matter of challenge before all
the forum including the Hon'ble Supreme Court of India and were never
interfered with. The subject matter of charge(s), its language, its contents are
part of a proceedings relating to the service/promotion of the petitioner. The
said charges would either stand to be correct or are to be dropped if they are
incorrect. The issue of such charges and its contents are exclusively for the
purpose of determining the issues relating to the service/promotion of the
petitioner, until and unless the petitioner is able to show that such charges
have been interfered with, it is very difficult for a criminal Court to presume
that the charges so brought against him were prepared, forged for the purpose
of inflicting injury upon him. To that extent, the emphasis of the petitioner on
Section 167 and Section 218 of the Indian Penal Code relating to preparing of
incorrect document or record cannot overcome the preliminary test as a
Division Bench of the Hon'ble High Court had decided the issue and which was
subsequently affirmed by the Hon'ble Supreme Court in appeal. No materials
have been enclosed to show that the public servants who have been named in
the application under Section 156(3) Cr.P.C. authored such documents.
Further a charge is usually framed in the language, mode and manner by the
authority who brings accusation against the delinquent. It is for the answering
party to dislodge such claim. As the petitioner has failed to dislodge such claim
of the enquiring authority, disciplinary authority or the Screening Committee it
can be concluded that there are no substance to justify any offence alleged to
have been committed by them either under Section 167 of I.P.C or under
Section 218 of I.P.C. For the same reasons it can be held that the allegations of
forgery under Sections 465/466/471 of the Indian Penal Code which were
made against the officials of the State who were part of the Committee as also
the Chief Minister of the State have no manner of application in the present
case. The petitioner also tried to implicate some of the officers by alleging that
they were not competent to be in the Screening Committee or the Board as
their seniority and designation did not permit them to be considering the
promotion for the rank and designation of the petitioner or other participants
for which it was being considered. A specific allegation under Section 166 of
the Indian Penal Code has been made to that effect. It would be trite to state
that under the Indian Penal Code there are specific provisions stating "Nothing
is an offence which is done by any person who is justified by law, or who by
reason of a mistake of fact and not by reason of a mistake of law in good faith,
believes himself to be justified by law, in doing it."
Petitioner while making the allegations failed to take into account that
the Board or the Screening Committee was constituted by an administrative
order and they have taken a decision, the constitution of the body of persons
who acted as a Board or a Screening Committee were never interfered with
either by the Division Bench of this Court or by the Hon'ble Supreme Court
and as such by any stretch of imagination it cannot be held that the
individuals were acting with a guilty mind for any purpose of inflicting injury
upon the petitioner, far less to say that their act and action can be foundation
of a criminal case inviting an investigation to be conducted against them.
So far as the issue of sanction is concerned petitioner from the inception
emphasized that it cannot be a duty of a public servant to commit forgery in
discharge of his official duty, to that effect petitioner relied upon the following
judgments of the Hon'ble Supreme Court, P.K. Pradhan -Vs. - State of Sikkim,
(2001)6 SCC 704; State of H.P. -Vs.- M.P. Gupta, (2004) 2 SCC 349;
Choudhury Parveen Sultana -Vs.- State of W.B. & Anr., (2009) 3 SCC 398;
Inspector of Police & Anr.-Vs.-Battenapatla VenkataRatnam & Anr. (2015) 13
SCC 87; Punjab State Warehousing Corporation-Vs.-Bhushan Chander & Anr.,
(2016) 13 SCC 44, wherein it has been settled that corruption or any illegal act
cannot be done in discharge of official duty and as such sanction may not be
warranted in such cases.
The factual foundation on which the petitioner has approached the
learned Magistrate for invoking its jurisdiction under Section 156(3) of the
Code of Criminal Procedure invites this Court to refer and rely upon some of
the judgments wherein the Hon'ble Apex Court was pleased to hold the
necessity of Section 197 of the Code of Criminal Procedure.
In Baijnath -Vs.- State of Madhya Pradesh, AIR 1966 SC 220 it was
observed: "It is the quality of the act that is important and if it falls within the
scope and range of his official duties the protection contemplated by Section 197
of the Criminal Procedure Code will be attracted. An offence may be entirely
unconnected with the official duty as such or it may be committed within the
scope of the official duty. Where it is unconnected with the official duty there can
be no protection. It is only when it is either within the scope of the official duty or
in excess of it that the protection is claimable."
While approving the requirement of Section 197 of the Code of
Criminal Procedure the Hon'ble Apex Court in Rizwan Ahmed Javed
Shaikh & Ors. -Vs. - Jammal Patel & Ors., (2001) 5 SCC 7 relying upon
the earlier judgment of B. Saha & Ors. -Vs. - M.S. Kochar, (1979) 4 SCC
177 referred to the following paragraphs:
"18. In sum, the sine qua non for the applicability of this section
is that the offence charged, be it one of commission or omission,
must be one which has been committed by the public servant
either in his official capacity or under colour of the office held by
him.
20. Speaking for the Constitution Bench of this Court,
Chandrashekhar I Aiycr, J., restated the same principle, thus: [
Matogoj Dobey case (Supra), p 49]
[I]n the matter of grant of sanction under Section 197, the offence
alleged to have been committed must have something to do, or
must be related in some manner, with the discharge of official
duty .... There must be a reasonable connection between the act
and the dis-charge of official duty; the act must bear such
relation to the duty that the accused could lay a reasonable but
not a pretended or fanciful claim, that he did it in the course of
the performance of his duty. (emphasis supplied)."
Similarly, in Sankaran Moitra -Vs. - Sadhna Das & Anr., (2006) 4
SCC 584 by a majority judgment the Hon'ble Supreme Court was pleased
to approve in favour of the public servants for requirement of sanction
under Section 197 (1) of the Code of Criminal Procedure and in
paragraph 21 it has been observed as follows:
"21. In Bakhshish Singh Brar v. Gurmej Kaur [(1987) 4 SCC
663 : 1988 SCC (Cri) 29] this Court stated that it was necessary
to protect the public servants in the discharge of their duties.
They must be made immune from being harassed in criminal
proceedings and prosecution, and that is the rationale behind
Section 196 and Section 197 of the Code. But it is equally
important to emphasise that rights of the citizens should be
protected and no excesses should be permitted. Protection of
public officers and public servants functioning in discharge of
their official duties and protection of private citizens have to be
balanced in each case by finding out as to what extent and how
far is a public servant working in discharge of his duties or
purported discharge of his duties, and whether the public servant
has exceeded his limit. In the recent decision in Rakesh Kumar
Mishra v. State of Bihar [(2006) 1 SCC 557 : (2006) 1 SCC (Cri)
432] this Court after referring to the earlier decisions on the
question stated: (SCC p. 564, para 12)
"The section has, thus, to be construed strictly, while
determining its applicability to any act or omission in the
course of service. Its operation has to be limited to those duties
which are discharged in the course of duty. But once any act or
omission has been found to have been committed by a public
servant in the discharge of his duty then it must be given
liberal and wide construction so far its official nature is
concerned."
A similar authority on this point regarding the requirement of
Section 197 of the Code of Criminal Procedure in respect of public
servant was held in Abdul Wahab Ansari -Vs. - State of Bihar & Anr.
(2000) 8 SCC 500.
Thus, the requirement of Section 197 of the Code of Criminal
Procedure or a valid sanction is not alien in its applicability according to
the facts of the case. The present case is one wherein the averments in
the application under Section 156(3) of the Code of Criminal Procedure,
primarily expresses all the grievance of the petitioner regarding the
decision of the public servants and the manner in which he has been
deprived of his promotion. The aforesaid judgments of the Hon'ble
Supreme Court makes it transparent that the want of sanction is not
restricted to any act done by the public servant only in discharge of his
official duty but also in purport of such official duty. The test to be
applied for the Court is whether it is a fanciful claim or a bona fide claim.
The facts of the case itself reflect that the public servants were working
in discharge of their official duties as such they are entitled to the benefit
of Section 197 of the Code of Criminal Procedure and for this reasons the
judgments relied upon by the petitioner Madhao & Anr.-Vs.- State of
Maharashtra & Anr., (2013) 5 SCC 615and Jayant & Ors. -Vs.- State of
Madhya Pradesh, (2021) 2 SCC 670are not applicable to the facts of the
present case.
A further contention which wasadvanced on behalf of the petitioner is
that even if sanction is required the same can be granted at any stage and for
the purpose of consideration of an application under Section 156(3) of the Code
of Criminal Procedure sanction is not at all required, as it has been settled that
sanction is a consideration prior to taking cognizance of the offence and not at
the stage when the investigation commences. To that effect petitioner relied
upon the judgments of the Hon'ble Supreme Court in Manju Surana (supra)
and the decisions relied upon by the Hon'ble Supreme Court being R.R. Chari
(supra), Gopal Das Sindhi & Ors. (supra), Jamuna Singh & Ors. (supra),
Nirmaljit Singh Hoon (supra), Devarapalli Lakshminarayana Reddy & Ors.
(supra), Tula Ram & Ors. -Vs. - Kishore Singh, AIR 1977 SC 2401; Srinivas
Gundluri & Ors. -Vs. -Sepco Electric Power Construction Corporation & Ors.,
(2010) 8 SCC 206 and Subramanian Swamy (supra) to arrive at its finding of a
divergent view with the previous judgments being Anil Kumar (supra) and L.
Narayana Swamy (supra).
The Hon'ble Supreme Court while laying down the ratio relating to
requirement of sanction prior to an order being passed under Section 156(3) of
the Code of Criminal Procedure in respect of public servants interpreted the
word 'cognizance' appearing in the Code of Criminal Procedure and to that
effect it has been held that there is a mandatory character of the protection
afforded to a public servant and the word 'cognizance' has a wider connotation
and is not merely confined to the stage of taking cognizance under Section 190
of the Code of Criminal Procedure. The following paragraphs which are relevant
for consideration on the issue in Anil Kumar (supra) are referred as follows:
"11. The scope of Section 156(3) CrPC came up for consideration
before this Court in several cases. This Court in Maksud Saiyed
case [(2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692] examined the
requirement of the application of mind by the Magistrate before
exercising jurisdiction under Section 156(3) and held that where
jurisdiction is exercised on a complaint filed in terms of Section 156(3)
or Section 200 CrPC, the Magistrate is required to apply his mind, in
such a case, the Special Judge/Magistrate cannot refer the matter
under Section 156(3) against a public servant without a valid sanction
order. The application of mind by the Magistrate should be reflected in
the order. The mere statement that he has gone through the complaint,
documents and heard the complainant, as such, as reflected in the
order, will not be sufficient. After going through the complaint,
documents and hearing the complainant, what weighed with the
Magistrate to order investigation under Section 156(3) CrPC, should be
reflected in the order, though a detailed expression of his views is
neither required nor warranted. We have already extracted the order
passed by the learned Special Judge which, in our view, has stated no
reasons for ordering investigation.
12. We will now examine whether the order directing investigation
under Section 156(3) CrPC would amount to taking cognizance of the
offence, since a contention was raised that the expression "cognizance"
appearing in Section 19(1) of the PC Act will have to be construed as
post-cognizance stage, not pre-cognizance stage and, therefore, the
requirement of sanction does not arise prior to taking cognizance of the
offences punishable under the provisions of the PC Act.
13. The expression "cognizance" which appears in Section 197 CrPC
came up for consideration before a three-Judge Bench of this Court
in State of U.P. v. Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2
SCC (L&S) 200] , and this Court expressed the following view: (SCC pp.
375, para 6)
"6. ... '10. ... And the jurisdiction of a Magistrate to take cognizance of
any offence is provided by Section 190 of the Code, either on receipt of
a complaint, or upon a police report or upon information received from
any person other than a police officer, or upon his knowledge that such
offence has been committed. So far as public servants are concerned,
the cognizance of any offence, by any court, is barred by Section 197 of
the Code unless sanction is obtained from the appropriate authority, if
the offence, alleged to have been committed, was in discharge of the
official duty. The section not only specifies the persons to whom the
protection is afforded but it also specifies the conditions and
circumstances in which it shall be available and the effect in law if the
conditions are satisfied. The mandatory character of the protection
afforded to a public servant is brought out by the expression, 'no court
shall take cognizance of such offence except with the previous
sanction'. Use of the words 'no' and 'shall' makes it abundantly clear
that the bar on the exercise of power of the court to take cognizance of
any offence is absolute and complete. The very cognizance is barred.
That is, the complaint cannot be taken notice of. According to Black's
Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the
exercise of jurisdiction' or 'power to try and determine causes'. In
common parlance, it means taking notice of. A 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.' [Ed.: As observed in State of H.P. v. M.P. Gupta,
(2004) 2 SCC 349, 358, para 10 : 2004 SCC (Cri) 539.] "
14. In State of W.B. v. Mohd. Khalid [(1995) 1 SCC 684 : 1995 SCC
(Cri) 266] , this Court has observed as follows:
"13. It is necessary to mention here that taking cognizance of an
offence is not the same thing as issuance of process. Cognizance is
taken at the initial stage when the Magistrate applies his judicial mind
to the facts mentioned in a complaint or to a police report or upon
information received from any other person that an offence has been
committed. The issuance of process is at a subsequent stage when
after considering the material placed before it the court decides to
proceed against the offenders against whom a prima facie case is
made out." [Ed.: As considered in State of Karnataka v. Pastor P.
Raju, (2006) 6 SCC 728, 734, para 13 : (2006) 3 SCC (Cri) 179.]
The meaning of the said expression was also considered by this Court
in Subramanian Swamy case [(2012) 3 SCC 64 : (2012) 1 SCC (Cri)
1041 : (2012) 2 SCC (L&S) 666] .
15. The judgments referred to hereinabove clearly indicate that the
word "cognizance" has a wider connotation and is not merely confined
to the stage of taking cognizance of the offence. When a Special Judge
refers a complaint for investigation under Section 156(3) CrPC,
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 under Section 200 CrPC and the next step to be
taken is to follow up under Section 202 CrPC. Consequently, a Special
Judge referring the case for investigation under Section 156(3) is at
pre-cognizance stage.
16. A Special Judge is deemed to be a Magistrate under Section 5(4) of
the PC Act and, therefore, clothed with all the Magisterial powers
provided under the Code of Criminal Procedure. When a private
complaint is filed before the Magistrate, he has two options: he may
take cognizance of the offence under Section 190 CrPC or proceed
further in enquiry or trial. A Magistrate, who is otherwise competent to
take cognizance, without taking cognizance under Section 190, may
direct an investigation under Section 156(3) CrPC. The Magistrate, who
is empowered under Section 190 to take cognizance, alone has the
power to refer a private complaint for police investigation under Section
156(3) CrPC.
21. The learned Senior Counsel appearing for the appellants raised
the contention that the requirement of sanction is only procedural in
nature and hence, directory or else Section 19(3) would be rendered
otiose. We find it difficult to accept that contention. Sub-section (3) of
Section 19 has an object to achieve, which applies in circumstances
where a Special Judge has already rendered a finding, sentence or
order. In such an event, it shall not be reversed or altered by a court in
appeal, confirmation or revision on the ground of absence of sanction.
That does not mean that the requirement to obtain sanction is not a
mandatory requirement. Once it is noticed that there was no previous
sanction, as already indicated in various judgments referred to
hereinabove, the Magistrate cannot order investigation against a public
servant while invoking powers under Section 156(3) CrPC. The above
legal position, as already indicated, has been clearly spelt out
in Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200]
and Subramanian Swamy [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041
: (2012) 2 SCC (L&S) 666] cases."
Thus, it has been categorically observed by the Hon'ble Supreme Court
that if it is noticed there was no previous sanction the Magistrate cannot order
investigation against the public servant while invoking powers under Section
156(3) of Cr.P.C. This issue felt for consideration in L. Narayana Swamy (supra)
case and in paragraph 16 of the said judgment after taking into account the
observations, finding, ratio of Anil Kumar (supra) it has been held "In other
words be held that an order directing further investigation under Section 156(3)
of Cr.P.C. cannot be passed in the absence of valid sanction." The aforesaid two
judgments has settled the ratio in respect of valid sanction and an application
under Section 156(3) Cr.P.C. The subsequent judgment in Manju Surana
(supra) case has referred the issue to a Larger Bench but did not declare the
ratio laid down in the earlier two judgments as either per incuriam or a bad law.
To that extent the submission of the learned Advocate General that an issue
which could not be decided subsequently by the Hon'ble Supreme Court
cannot be decided by a High Court on the mere asking of the petitioner, cannot
be brushed aside. The submission of the learned Advocate General that in case
a reference has been made on a point of law then the last of the judgment
which is authority on the point would be valid is the correct proposition to be
followed by this Court, as was held in M.S. Bhati -Vs. - National Insurance
Company Ltd., (2019) 12 SCC 248; P. Sudhakar Rao & Ors. -Vs. - U. Govinda
Rao & Ors, (2013) 8 SCC 693; Ashoke Sadarangani & Anr. -Vs. - Union of
India and Ors., (2012) 11 SCC 321; Harbhajan Singh & Anr. -Vs. - State of
Punjab & Anr., (2009) 13 SCC 608.
Having regard to the subject matter by way of which the petitioner has
attempted to invoke the provisions of Section 156(3) of the Code of Criminal
Procedure against the public servants this Court is of the opinion that as the
provision of Section 197 of the Code of Criminal Procedure has been
incorporated in the statute, the same has been for a meaningful purpose of
allowing the public servants to discharge their duties without fear or favour or
without any anticipation of being harassed because of the rigours of law.
Therefore, ordinarily a valid sanction would be required in a proceeding where
the provisions of Section 156(3) Cr.P.C. are invoked against public servants.
However, in this casesubstantive offences as alleged have not been made out,
so the issue of sanction is an additional consideration.
Accordingly there is no illegality in the order dated 27.09.2013 passed by
the learned Chief Metropolitan Magistrate, Calcutta and as such no
interference is called for.
Hence, the Revisional Application fails.
Thus, CRR 625 of 2016 is dismissed.
Pending application, if any, is consequently disposed of.
Department is directed to communicate this order to the Ld. Trial Court
and sendthe LCR forthwith to the Court below.
All parties shall act on the server copy of this judgment duly downloaded
from the official website of this Court.
Urgent Xerox certified photocopy of this judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(Tirthankar Ghosh, J.)
