Karnataka High Court
Sri Abraham T J vs Sri B S Yediyurappa on 7 September, 2022
Bench: S.Sunil Dutt Yadav
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER 2022
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
CRIMINAL PETITION No.5659/2021
Between:
Sri Abraham T.J.
S/o Late Sri Joseph T.A.
Aged about 58 years
#2326, 'Ashirwad'
2nd 'A' Cross, 16th 'B' Main
H.A.L. 2nd Stage
Indiranagara
Bengaluru - 560 008. ... Petitioner
(By Sri Vikas Upadhyay, Advocate a/w
Sri Ashwin Kumar Nair, Advocate and
Sri Gaurav G.K. Advocate,
Sri Akash V.T., Advocate,
Smt. Anusha Nandish, Advocate)
And:
1. Sri B.S. Yediyurappa
S/o Late Sri Siddalingappa,
Aged about 77 years
Room No.323A, 3rd Floor,
Vidhana Soudha,
Bengaluru - 560 001.
Also At:
R/at: #381, Dhavalagiri,
6th Cross, 80 Ft. Road,
2
RMV Second Stage,
Dollars Colony
Bengaluru - 560 094.
2. Sri B.Y. Vijayendra
S/o Sri B.S. Yediyurappa
Aged about 37 years
Residing at #1, 12,
Yamuna Bai Road, Madhava Nagar
Gandhi Nagar
Bengaluru - 560 001.
3. Sri Shashidar Maradi,
S/o Virupakashappa
Yamakanamardi
Major
R/at No.A1001
Vaishnavi Splendour Apartment
Poojari Layout, Geddalahalli
RMV 2nd Stage,
Bengaluru - 560 094.
4. Sri Sanjay Sree
Son-in-Law of Sri Virupakashappa
Yamakanamardi and
Smt. Padmavathi
Major
Care of and Resident of:
A1001, Vaishnavi Splendour Apartment
Poojari Layout, Geddalahalli
RMV 2nd Stage,
Bengaluru - 560 094.
5. Sri Chandrakanth Ramalingam
S/o Ramalingam
Major
No.705, ETA Garden
Binny Mills Road
Bengaluru - 560 023.
3
6. Sri S.T. Somashekar,
Members of Legislative Assembly
Yeshwanthpura Assembly
Constituency
S/o Thimmegowda
Aged about 63 years
#154, 4th Main Road, 2nd Cross,
Near HP Petrol Bunk,
Jagajyothi Layout
Gynana Bharathi Post
Bengaluru - 560 056.
7. Dr. G.C. Prakash I.A.S.,
Father name not known to the
Complainant
Aged about 59 years
Presently the Regional Commissioner,
Mysuru
High View, Vinoba Road
Opposite Kalamandir,
Mysuru,
Karnataka - 570 005.
8. Sri K. Ravi
Father name not known to the
Complainant
Major
Proprietor
37th Crescent Hotel
Race Course Rd.,
Opp. Mallige Hospital
High Grounds
Bengaluru - 560 001.
9. Sri Virupakashappa
Yamakanamardi
Husband of Smt. Padmavathi
Major
R/at: A1001,
4
Vaishnavi Splendour Apartment
Poojari Layout, Geddalahalli
RMV 2nd Stage,
Bengaluru - 560 094.
Also at:
No.52, Madhura Estate,
Keshwapur,
Hubli - 580 023. ... Respondents
(By Sri C.V. Nagesh, Senior Advocate for
Sri Sandeep S. Patil and
Smt. Swamini G. Mohanambal, Advocates for R1 & R2;
Sri Manmohan P.N., Advocate for
Sri Vinay N., Advocate for R5;
Sri A.S. Mahesha, Advocate for R6;
Sri Nagendra Naik, Advocate for
Sri Amar Correa, Advocate for R7;
Sri Siddharth B. Muchandi, Advocate for R4;
Sri Srinivasa C., Advocate for R8;
Sri Vinayaka B., Advocate for R3 and R9;
Sri Venkatesh S. Arbatti, Amicus Curie)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash the Order dated 08.07.2021
passed by the Court Hon'ble LXXXI Addl. City Civil and
Sessions Judge, at Bengaluru (CCH-82) in P.C.R.
No.40/2021 and whereby the Private Complaint filed by
the Petitioner under Section 200 Cr.P.C. and direct to
same to be restored and to register FIR against the
Accused persons, for the offences punishable under
Sections 7, 8, 9, 10 and 13 of the Prevention of Corruption
Act, 1988 and Sections 383, 384, 415, 418, 420, 34 &
120B of the Indian Penal Code, 1860.
This Criminal Petition having been heard and
reserved on 21.06.2022 coming on for pronouncement of
orders this day, the Court, made the following:
5
ORDER
S. SUNIL DUTT YADAV. J
THIS ORDER HAS BEEN DIVIDED INTO THE FOLLOWING
SECTIONS TO FACILITATE ANALYSIS:
A. WHETHER SANCTION OF THE COMPETENT AUTHORITY 25
IS REQUIRED BEFORE PASSING AN ORDER FOR
INVESTIGATION UNDER SECTION 156(3) OF
CR.P.C.?
CONSEQUENCES OF ORDER OF REFERENCE
AND DECIDING THEREAFTER;
COGNIZANCE AND ORDER FOR INVESTIGATION 46
UNDER SECTION 156(3) OF CR.P.C.;
PARI MATERIA PROVISIONS OF P.C. ACT, 1947
AND P.C. ACT, 1988;
CONSIDERATION OF JUDGMENTS RELIED UPON 65
BY RESPONDENTS AND CITED BY AMICUS
CURIAE;
B. WHETHER REQUIREMENT OF PREVIOUS APPROVAL 68
FROM THE REQUISITE AUTHORITY BEFORE
CONDUCTING ANY ENQUIRY, INQUIRY OR
INVESTIGATION INTO AN OFFENCE UNDER
SECTION 17A OF P.C. ACT, WOULD ACT AS A BAR
ON THE SPECIAL JUDGE FOR PASSING AN
ORDER UNDER SECTION 156(3)OF CR.P.C.
VIS-À-VIS THE PUBLIC SERVANTS, i.e.,
ACCUSED NOS.1, 6 AND 7?
C. WHETHER IN THE ABSENCE OF ANY RESPONSE 74
FROM THE COMPETENT AUTHORITY REGARDING
GRANT OF SANCTION SOUGHT AGAINST
ACCUSED NOS. 6 AND 7 OUGHT THE SPECIAL
JUDGE HAVE PROCEEDED ON THE PREMISE OF
DEEMED SANCTION AS CONTENDED?
D. WHETHER THE SPECIAL JUDGE HAS ERRED IN 84
DISMISSING THE COMPLAINT IN ITS ENTIRETY
EVEN AS AGAINST ACCUSED OTHER THAN
PUBLIC SERVANTS, VIZ., ACCUSED NOS. 2, 3,
4, 5, 8 AND 9 ONLY ON THE GROUND OF
REJECTION OF SANCTION AGAINST ACCUSED
NO.1 AND ABSENCE OF SANCTION FOR
PROSECUTION OF ACCUSED NOS.6 AND 7?
IN RE. XYZ V. STATE OF MADHYA PRADESH AND 89
ANOTHER;
OFFENCES UNDER THE PREVENTION OF MONEY
LAUNDERING ACT.
REJECTION OF SANCTION AS REGARDS ACCUSED 94
NO.1.
I. FACTS OF THE CASE:-
The petitioner has called in question the validity
of the order dated 08.07.2021 passed by the Court of
LXXXI Addl. City Civil and Sessions Judge, Bengaluru
(CCH-82) in PCR No.40/2021, whereby the Private
Complaint filed under Section 200 of the Code of
Criminal Procedure, 1973 ('Cr.P.C.' for brevity) and
the interim application filed by the Complainant under
Section 156(3) of Cr.P.C. have been found to be not
maintainable in the absence of valid sanction and
accordingly, the complaint and the application have
been dismissed.
2. The petitioner has been referred to as
'Complainant' and the respondents have been referred
to as 'Accused' for the sake of convenience.
3. The Complainant has sought for restoration
of the complaint and to register the First information
Report ('FIR') against the accused for the offences
punishable under Sections 7, 8, 9, 10 and 13 of the
Prevention of Corruption Act, 1988 ('P.C. Act' for
brevity) and under Sections 383, 384, 415, 418, 420
read with Section 34 and Section 120B of the Indian
Penal Code, 1860 ('IPC' for brevity).
4. The facts as made out in the complaint are
that the Complainant had lodged information in
accordance with Section 154 of Cr.P.C. on 19.11.2020
before the Anti Corruption Bureau, Bengaluru ('ACB'
for brevity) against the accused alleging the
commission of offence as referred to above.
5. It is further stated that the ACB had issued
notice to the Complainant seeking for certain
documents and clarification and despite such
clarification, the information/complaint lodged before
the ACB came to be closed and an endorsement dated
15.12.2020 came to be issued in that respect.
6. Accordingly, the Private Complaint came to
be filed before the Special Court seeking to take
cognizance of the offences as follows:-
(i) Sections 7, 8, 9, 10 and 13 of the P.C.
Act;
(ii) Sections 383, 384, 415, 418, 420 read
with Sections 34 and 120B of IPC;
(iii) Sections 3 and 4 of the Prevention of
Money Laundering Act, 2002 ('PMLA'
for brevity).
7. A further prayer was also sought to direct
the Investigating Agency to register FIR under Section
156(3) of Cr.P.C. to conduct investigation and proceed
in accordance with law.
8. It is submitted that the Complainant had
approached Governor of Karnataka seeking sanction
for prosecuting Accused No.1 and had also
approached the Chief Secretary, Government of
Karnataka seeking sanction to prosecute
Dr. G.C. Prakash, I.A.S., (Accused No.7) and had
approached the Speaker of Karnataka Legislative
Assembly seeking sanction for prosecuting Accused
Nos. 1 and 6.
9. It is submitted that since the Authorities
concerned have not responded regarding the grant of
sanction, the Complainant, on the premise of deemed
sanction, placing reliance on the judgment in Vineet
Narain and Others v. Union of India and
Another1 ['Vineet Narain'] and the decision of Apex
Court in Subramanian Swamy v. Manmohan Singh
and Another2 ['Subramanian Swamy'], has sought to
proceed legally.
(1998) 1 SCC 226.
(2012) 3 SCC 64.
10. The learned Special Judge has observed at
para-18 of the impugned order as follows:-
"18. I have gone through the materials
placed by the complainant and analyzed the
submissions made by the complainant. No
doubt, there are some material to refer the
complaint for investigation under Section 156(3)
of Cr.P.C. But before proceeding to refer the
complaint for investigation under Section 156(3)
of Cr.P.C., this Court has to examine the law laid
down by the Hon'ble Apex Court with regard to
the requirement of sanction. To appreciate these
aspects, the following points arise for my
determination:-
(1) Whether an order for directing the
investigation under Sec.156(3) of Cr.P.C.,
can be passed in relation to public servant
in the absence of valid sanction?
(2) Whether the sanction will be
deemed to have been granted, if no
decision is taken within a prescribed
period for referring the case for
investigation under section 156(3) of
Cr.P.C.?
(3) What order?
11. The facts in the complaint make out three
acts of criminality, viz.,
(a) That Work Order was issued in
favour of M/s. Ramalingam Construction
Company Pvt. Ltd., the Company owned by
Accused No.5 and a sum of Rs.12.00 Crore
was demanded by Accused No.7 on behalf of
Accused No.1. That Accused No.5 had
allegedly paid/delivered a sum of Rs.12.00
Crore in cash to Accused No.8. That Accused
No.7 received that sum of Rs.12.00 Crore
from Accused No.8 to be handed over to
Accused No.1 through Accused No.2.
(b) Simultaneously Accused No.5 was
also interacting and was involved in
communications with Accused No.3 - the
grandson of Accused No.1. Accused No.3 is
stated to have represented to Accused No.5
that he would ensure that Accused No.1 uses
his influence in obtaining the contracts in
Government Departments, to release funds
from the Government Departments and to
expedite and speed up the file clearances/
movements in various Government
Departments where the Company owned by
Accused No.5 viz., M/s. Ramalingam
Construction Company Pvt. Ltd., has dealings
with. For this purpose, Accused No.5 had
allegedly paid illegal gratification/bribe money
of Rs.12.50 Crore to Accused No.3 for
influencing Accused No.1 to exert pressure on
the Government Departments.
(c) That Accused Nos.1 to 4 had
indulged in money laundering by using shell
companies and an amount of
Rs.5,01,08,677/- was transferred to a shell
company and a sum of Rs.3,41,00,000/- was
transferred from the shell company to the
bank account of other shell companies owned
by the family members of Accused No.1.
12. After recording the above said facts, the
learned Special Judge, referring to the judgment of
Apex Court in Anil Kumar and Others v. M.K.
Aiyappa and Another3 ['Aiyappa'], has recorded a
finding that an order of reference for investigation
under Section 156(3) of Cr.P.C. cannot be made
without valid sanction under Section 19(1) of the P.C.
Act. Learned Special Judge also refers to the
judgment in L. Narayana Swamy v. State of
Karnataka and Others4 ['L. Narayana Swamy'].
The learned Special Judge then refers to the judgment
in Manju Surana v. Sunil Arora and Others5
(2013) 10 SCC 705.
(2016) 9 SCC 598.
(2018) 5 SCC 557.
['Manju Surana'] where Aiyappa (supra) has been
referred to a larger Bench of the Apex Court and
concludes that till the matter is decided by the larger
Bench, it must be taken that prior sanction is
mandatory to forward the complaint for investigation
under Section 156(3) of Cr.P.C.
13. The Special Court records a finding at
para-37 of the impugned order that the request for
sanction has been turned down by the Hon'ble
Governor vide order dated 23.06.2021 as regards
Accused No.1. The learned Special Judge further
concludes that sanction is necessary for directing
investigation under Section 156(3) of Cr.P.C. for
proceeding against Accused Nos. 1, 6 and 7, who are
public servants. With the aforesaid reasoning, the
Special Court held that the Complaint under Section
200 of Cr.P.C. as well as the interim application filed
under Section 156(3) of Cr.P.C. are dismissed as not
being "maintainable in the absence of valid
sanction...."
II. SUBMISSIONS oF PARTIES:-
II(A). SUBMISSIONS oF COMPLAINANT:
14. Following are the submissions made on
behalf of the Complainant:-
14.1. The Complaint ought not to have been
dismissed in its entirety as the proceedings against
Accused Nos. 2 to 5, 8 and 9 are not affected by the
aspect of sanction for prosecution, as they were
private persons.
14.2. The aspect of deemed sanction has not
been considered as regards Accused Nos. 6 and 7 and
if according to law, the deemed sanction is to be
accepted, the proceedings were to continue against all
public servants (Accused Nos. 6 and 7), except
Accused No. 1 as regards whom there is a specific
order of rejection of sanction. The deemed sanction is
to be construed in light of the observations made by
the Apex Court in Vineet Narain (supra) and
Subramanian Swamy (supra).
14.3. REQUIREMENT OF SANCTION WHILE MAKING
REFERENCE UNDER SECTION 156(3) OF CR.P.C.
(i) There is no requirement of sanction under
Section 19(1) of P.C. Act at the stage of passing an
order referring the matter for investigation under
Section 156(3) of Cr.P.C. Reliance is placed on the
judgment in R.R.Chari v. State of Uttar Pradesh6
['R.R.Chari'], wherein the Apex Court while dealing
with the provisions of the Prevention of Corruption
Act, 1947 held that there is no requirement for
obtaining sanction for prosecution before making an
order of reference for investigation under Section
156(3) of Cr.P.C. Reliance is also placed on the
AIR 1951 SC 207.
judgment of Apex Court in Devarapalli
Lakshminarayana Reddy and Others v.
V. Narayana Reddy and Others7 ['Devarapalli'].
(ii) The judgment of Apex Court in Aiyappa
(supra) which holds that even for making an order of
reference, sanction is required to be obtained, has
been referred to a larger Bench in Manju Surana
(supra). Pending such reference, the matter is to be
decided as per the law prevailing as on date of
reference, accordingly, the applicable law is the law
laid down by the Apex Court consisting of Bench of
Three Judges, in R.R.Chari (supra) and Devarapalli
(supra).
(iii) The question of obtaining sanction by a
private person does not arise by virtue of Proviso to
Section 19(1) subsequent to 2018 Amendment to
Section 19 of the P.C. Act.
(1976) 3 SCC 252.
(iv) The distinction that is sought to be made,
as regards the complaint filed before the Magistrate
on refusal of Police Authorities to register the FIR on
receiving the information under Section 154 of Cr.P.C.
on the one hand, and an order of investigation under
Section 156(3) of Cr.P.C. vis-à-vis information not
acted upon by the Police Authorities under Section
154 of Cr.P.C., as regards the aspect of sanction, is
legally untenable. Whereas, the Police Authorities
acting on information may register FIR and investigate
and place the Final Report before the Court for taking
cognizance of offence and the restriction is only on the
Court to insist for obtaining sanction before taking
cognizance. On the other hand, where the Police
Authorities had wrongfully refused to take action in
registering the FIR upon information being made
regarding the commission of cognizable offence, the
private Complainant may approach the Magistrate
seeking reference of investigation under Section
156(3) of Cr.P.C. or may seek appropriate relief by
filing a complaint under Section 200 of Cr.P.C. In
such circumstance, when the Magistrate seeks to
make an order of reference of investigation, insistence
on sanction is not required and doing so, would be an
arbitrary insistence on the private Complainant.
14.4. As regards the contention of accused
public servants that approval under Section 17A of
P.C. Act ought to be obtained prior to the Police
Authorities being directed to investigate by order of
the Magistrate under Section 156(3) of Cr.P.C., it is
submitted that the bar under Section 17A is only on
the Police Officer as regards enquiry, inquiry or
investigation and not a bar on the Court to order the
same.
14.5. It is further submitted that the question of
obtaining sanction either under Section 19(1) or
approval under Section 17A of the P.C. Act would not
arise, where the acts constitute misuse of public
offices and corruption, which has no nexus with the
performance of public duties as in the present case.
The bar under Section 17A as contended by the
accused public servants would not extend to
registration of FIR and may come into play only as
regards enquiry, inquiry or investigation post
registration of FIR.
II(B). SUBMISSIONS OF ACCUSED NOS.1 AND 2:-
15. Following are the submissions made on
behalf of Accused Nos.1 and 2:-
15.1. The obtaining of sanction is a sine qua non
for taking of cognizance by the Court of the alleged
offence. An order of the Court making reference for
investigation involves application of mind and is to be
construed as taking cognizance and accordingly, even
while making an order for investigation under Section
156(3) of Cr.P.C., sanction is required to be obtained
in terms of Section 19(1) of the P.C. Act, as held in
Aiyappa (supra).
15.2. The Apex Court in Manju Surana (supra)
has noticed the divergence of opinion between the law
as laid down in R.R.Chari (supra) and Devarapalli
(supra) on one hand, and that of Aiyappa (supra) on
the other but has still not declared the judgment in
Aiyappa (supra) per incuriam and accordingly, till the
reference is answered, the law as laid down in
Aiyappa (supra) needs to be followed.
15.3. Insofar as the complaints against the
public servants under the provisions of the P.C. Act,
the legal mandate under Section 17A would require a
private Complainant to present the complaint only
after obtaining previous approval of the appropriate
Government/Competent Authority.
15.4. As regards Accused No.2, who is a private
individual, it is contended that where there is no
sanction for prosecution as regards the offences made
out against public servants, the question of
proceeding against the private individuals with respect
to offences under the P.C. Act or I.P.C does not arise.
II(C). SUBMISSIONS OF ACCUSED NO.5:-
16. In the absence of sanction for prosecution
as against the Accused Nos. 1, 6 and 7, the question
of proceeding against the private individual is
impermissible as regards the offences under the P.C.
Act and I.P.C. In light of the principle that cognizance
is of the offences and not the offenders, the question
of proceeding against the private accused in the
absence of sanction of prosecution for the public
servants is impermissible.
III. ANALYSIS:
17. In the present case, the following questions
arise for consideration of this Court:-
(A) WHETHER SANCTION OF THE COMPETENT
AUTHORITY IS REQUIRED BEFORE PASSING AN
ORDER FOR INVESTIGATION UNDER SECTION
156(3) OF CR.P.C.?
(B) WHETHER REQUIREMENT OF PREVIOUS APPROVAL
FROM THE REQUISITE AUTHORITY BEFORE
CONDUCTING ANY ENQUIRY, INQUIRY OR
INVESTIGATION INTO AN OFFENCE UNDER
SECTION 17A OF P.C. ACT, WOULD ACT AS A
BAR ON THE SPECIAL JUDGE FOR PASSING AN
ORDER UNDER SECTION 156(3) OF CR.P.C.
VIS-À-VIS THE PUBLIC SERVANTS, i.e., ACCUSED
NOS.1, 6 AND 7?
(C) WHETHER IN THE ABSENCE OF ANY RESPONSE
FROM THE COMPETENT AUTHORITY REGARDING
GRANT OF SANCTION SOUGHT AGAINST ACCUSED
NOS. 6 AND 7, OUGHT THE SPECIAL JUDGE HAVE
PROCEEDED ON THE PREMISE OF DEEMED
SANCTION AS CONTENDED?
(D) WHETHER THE SPECIAL JUDGE HAS ERRED IN
DISMISSING THE COMPLAINT IN ITS ENTIRETY EVEN
AS AGAINST THE ACCUSED OTHER THAN PUBLIC
SERVANTS, VIZ., ACCUSED NOS. 2, 3, 4, 5, 8 AND
9 ONLY ON THE GROUND OF REJECTION OF SANCTION
AGAINST ACCUSED NO.1 AND ABSENCE OF
SANCTION FOR PROSECUTION OF ACCUSED NOS.6
AND 7?
III(A). WHETHER SANCTION OF THE COMPETENT
AUTHORITY IS REQUIRED BEFORE PASSING AN
ORDER FOR INVESTIGATION UNDER SECTION
156(3) OF CR.P.C.?
18. In the present case, the learned Special
Judge has proceeded to dismiss the application
seeking investigation by Police Authorities. The
complaint has also been dismissed on the premise
that without sanction for prosecution of the public
servant, the question of making an order of reference
for investigation by the Police Authorities does not
arise. The learned Special Judge has relied on the
judgment of Apex Court in Aiyappa (supra) as
regards the above aspect.
19. It is necessary to notice that when
information is provided to the Police Authorities
regarding commission of a cognizable offence, the
Police Authorities may take note of the same in terms
of Section 154 of Cr.P.C. and register FIR. Further
proceedings would follow culminating in the Final
Report under Section 173(2) of Cr.P.C. after
completion of investigation. Both the above
provisions are found in Chapter-XII of Cr.P.C.
20. Section 190 of Cr.P.C. provides for taking
of cognizance of offence by the Magistrate as follows:-
(a) Upon receiving complaint of facts
which constitutes the offence;
(b) Upon Police Report of such facts;
(c) Upon information received from any
person other than Police Officer, or
upon his own knowledge, that such
offence has been committed;
21. It is relevant to note that where the Police
Authorities have registered FIR and upon
investigation, the Final Report is filed, further process
is resumed by the Magistrate by taking cognizance of
the offences on the basis of such report in terms of
Section 190(1)(b) of Cr.P.C., which provision falls
within Chapter XIV of Cr.P.C. The Magistrate then
issues process under Section 204 of Cr.P.C. which falls
in Chapter XVI as against the accused persons.
22. On the other hand, when no action is taken
by the Police Authorities on the basis of information
received, the informant/complainant is at liberty to
approach the Magistrate by filing a complaint and
upon receiving complaint of facts which constitute
such offence in terms of Section 190(1)(a) of Cr.P.C.,
the Magistrate, before him, has choice between two
courses of action, i.e.,
22.1. Firstly, the Magistrate may take
cognizance under Section 190(1)(a) of Cr.P.C. and
proceed in terms of Chapter-XV of Cr.P.C. to examine
the Complainant and his witnesses under Section 200
of Cr.P.C. The Magistrate may then follow further
procedure including, if required, enquire into the case
himself or direct investigation either by the Police
Officer or by such person as he thinks fit, in terms of
Section 202 of Cr.P.C. The purpose of postponement
of issue of process and inquiry or investigation as
contemplated under Section 202 of Cr.P.C. is to
enable the Magistrate to make up his mind whether
case is made out for further proceeding for dismissal
of the complaint under Section 203 of Cr.P.C. or by
issuance of process under Section 204 of Cr.P.C.
The issuance of process under Section 204 is
under Chapter-XVI of Cr.P.C. and this stage is a point
of convergence as regards further proceeding to issue
process against the accused persons either on the
basis of a Final Report under Section 173(2) of Cr.P.C.
in Chapter-XII of Cr.P.C. or by issuance of process to
the accused persons preceded by procedure under
Chapter-XV of Cr.P.C., where action was set into
motion at the instance of a Private Complaint.
22.2. Secondly, where the Magistrate, on
presentation of a complaint in terms of Section
190(1)(a) of Cr.P.C. is of the view that investigation
into the offences alleged is required and which is to be
followed by a police report to enable the Magistrate to
make out a case to take cognizance under Section
190(1)(b) of Cr.P.C., 'may' make a reference for
investigation by the Police Authorities under Section
156(3) of Cr.P.C.
Section 156(3) of Cr.P.C. further specifies that
the order for investigation by the Police is to be made
by the Magistrate empowered to take cognizance
under Section 190 of Cr.P.C.
Upon order being made for investigation, the
Police Authorities may proceed in terms of Chapter-XII
of Cr.P.C and submit a Final Report under Section
173(2) of Cr.P.C, pursuant to which, if cognizance is
taken under Section 190(1)(b) of Cr.P.C., process is
issued to the accused persons under Section 204 of
Cr.P.C.
23. As regards the procedure prescribed under
the P.C. Act, Section 5(3) provides that provisions of
Cr.P.C. shall, so far as they are not inconsistent with
the P.C. Act, be applicable to the proceedings before
the Special Court.
24. Section 19 of the P.C. Act provides for
previous sanction being necessary for prosecution of a
public servant at the stage where cognizance of the
offence is taken. Relevant portion of Section 19(1)
reads as follows:-
"19(1)No court shall take cognizance of
offence punishable under Section 7, 11, 13 and
15 alleged to have been committed by a public
servant, except with the previous sanction...."
24.1. The proviso to Section 19(1) of P.C. Act
which was inserted by way of amendment vide Act 16
of 2018, is relevant for the present case and is
extracted herein below:-
"Provided that no request can be made, by
a person other than a police officer or an officer of
an investigation agency or other law enforcement
authority, to the appropriate Government or
competent authority, as the case may be, for the
previous sanction of such Government or
authority for taking cognizance by the court of
any of the offences specified in this sub-section,
unless--
(i) such person has filed a complaint in
a competent court about the alleged offences
for which the public servant is sought to be
prosecuted; and
(ii) the court has not dismissed the
complaint under section 203 of the Code of
Criminal Procedure, 1973 (2 of 1974) and
directed the complainant to obtain the
sanction for prosecution against the public
servant for further proceeding:
Provided further that in the case of
request from the person other than a police
officer or an officer of an investigation agency or
other law enforcement authority, the appropriate
Government or competent authority shall not
accord sanction to prosecute a public servant
without providing an opportunity of being heard
to the concerned public servant."
25. Simultaneously, it would be appropriate to
refer to the requirement of sanction under the Code of
Criminal Procedure, 1973 as regards any offence
alleged to have been committed by a public servant.
Section 197 of Cr.P.C. provides that no Court shall
take cognizance of such offence except with the
previous sanction of the appropriate Government/
competent authority.
26. Accordingly, what emerges on a reading of
Section 19(1) of P.C. Act and Section 197 of Cr.P.C. is
that no Court can take cognizance of offences as
regards a public servant except with previous
sanction.
27. Where the Magistrate is seeking to take
cognizance on Police Report in terms of Section
190(1)(b) of Cr.P.C., the sanction for prosecution is
required. Section 19(1) of P.C. Act would also require
sanction for prosecution before the Special Court
takes cognizance of offences under Sections 7, 11, 13
and 15 of P.C. Act.
28. However, where the Special Court seeks to
take cognizance of an offence under Section 19 of P.C.
Act on the basis of complaint of facts under Section
190(1)(a) of Cr.P.C. and follows the procedure laid
down in Chapter-XV of Cr.P.C., the requirement of
sanction is only at the stage where the Special Court
has not dismissed the complaint under Section 203 of
Cr.P.C. and the Court directs the Complainant to
obtain sanction for prosecution to enable further
proceeding by issuance of process to the accused
persons under Section 204 of Cr.P.C. This is the
procedure as laid down by virtue of Amendment Act
16 of 2018 by insertion of the proviso to Section 19(1)
of the P.C. Act, extracted supra.
29. Accordingly, the sanction for prosecution as
contemplated under Section 19(1) of P.C. Act is
required to be obtained where the Special Court takes
cognizance of the offences on the basis of Police
Report or prior to issuance of process to the accused
persons under Section 204 of Cr.P.C., where the
Special Judge has proceeded under Chapter XV as
regards a Private Complaint. Further, detailed
discussion on the aspect of whether application of
mind while passing an order under Section 156(3) of
Cr.P.C. would amount to taking cognizance is
discussed at para-31 onwards.
30. CONSEQUENCES OF ORDER OF REFERENCE AND
DECIDING THEREAFTER.
30.1. The question then arises as to the course
of action to be adopted in light of reference made in
Manju Surana (supra). Both sides at the time of oral
submissions have advanced arguments on merits.
The Complainant has stated that the Court need not
wait till the reference is answered and must decide as
per the prevailing law. The respondents though on
one hand have stated that the Court must stay its
hand, but nevertheless have submitted that various
High Courts have disposed off matters even during the
pendency of reference applying the law in Aiyappa
(supra) and the same is to be applied in the present
case also. Accordingly, the parties were heard at
length and it was decided to adjudicate the matter on
merits.
30.2. In light of the reference, the question
remains as to the present law that is to be applied
while deciding the matter till the reference is settled.
30.3. When the matter is referred to a larger
Bench for the purpose of settling the legal position,
either for laying down the law in light of an important
legal issue having significant implication or where
there are divergent opinions emanating from
judgments of Co-ordinate Benches, how the matters
are to be decided in the interregnum, requires
consideration.
30.4. It is the settled position that adjudication
of an issue which is a subject matter of reference is to
be made in terms of the prevailing law without waiting
for answering of the reference unless the Court
making reference indicates otherwise. The Apex
Court, in the passing, in Harbhajan Singh and
Another v. State of Punjab and Another8 at
para-15 has observed that the Court need not wait till
the larger Bench decides the matter when judgment of
the Court is referred, to adjudicate on the correctness
of the concerned issue.
30.5. The Apex Court in the case of State of
Maharashtra and Another v. Sarva Shramik
Sangh, Sangli and Others9 has reiterated at
(2009) 13 SCC 608.
(2013) 16 SCC 16.
para-27 that when a reference is pending before the
larger Bench, the dispute will have to be decided in
terms of the 'interpretation of law presently holding
the field'.
30.6. The question as to the prevailing law to be
applied would require an enquiry into the divergent
views, if any, and the judgment of larger Bench would
be binding. The Apex Court in Mattulal v. Radhe
Lal10 has observed at para-11 that it is the judgment
of the larger Bench that requires to be followed. The
same view has been expressed unequivocally by a
Bench of Five Judges of the Karnataka High Court in
Govindanaik G. Kalaghatigi v. West Patent Press
Co. Ltd. and Another11 while answering the question
as to which judgment has to be followed, has held
that the judgment of the larger Bench would be
binding. This position of law is merely the reiteration
(1974) 2 SCC 365.
ILR 1979 KAR 1401 (FB).
of the law laid down in Union of India and Another
v. K.S.Subramanian12 ['K.S.Subramanian'], the
observations in para-12 is of relevance and is as
follows:-
"12. ... But, we do not think that the High Court
acted correctly in skirting the views expressed by
larger benches of this Court in the manner in which
it had done this. The proper course for a High
Court, in such a case, is to try to find out and
follow the opinions expressed by larger benches of
this Court in preference to those expressed by
smaller benches of the Court. That is the practice
followed by this Court itself. The practice has now
crystallized into a rule of law declared by this
Court. If, however, the High Court was of opinion
that the views expressed by larger benches of this
Court were not applicable to the facts of the instant
case it should have said so giving reasons
supporting its point of view."
(1976) 3 SCC 677.
30.7. The above legal position would however
have to yield to the terms of the order of reference.
The reference in Manju Surana (supra) is made in
the words of the Apex Court as follows:-
"35. The complete controversy
referred to aforesaid and the conundrum
arising in respect of the interplay of the PC
Act offences read with Cr.P.C., 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."
30.8. In Manju Surana (supra), the Court
notices the stand in Aiyappa (supra); that even at
the stage of 156(3) of Cr.P.C., the passing of order for
investigation by Police Authorities involves application
of mind and accordingly, considering the
consequences it could be construed that such an order
could amount to taking of cognizance and accordingly,
sanction would be required.
30.9. The Court in the order making reference
in Manju Surana (supra) has noticed the similar
stand in Maksud Saiyed v. State of Gujarat and
Others13['Maksud Saiyed'] at para-25 while referring
to the view in the above two judgments and observes
as follows:-
"25. Despite the aforesaid catena of
judgments, a different path has been traversed
in two judgments of this Court where the
offences alleged are under the PC Act read with
IPC."
The Apex Court at para-21 refers specifically to
the contention of the then learned Additional Solicitor
General regarding the consequences of starting
investigation under Section 156(3) of Cr.P.C. resulting
in FIR being registered and in light of the same,
addressing the contention that higher evaluation
standard would be required while exercising power to
(2008) 5 SCC 668.
refer for investigation under Section 156(3) and
observes as follows:-
"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.
(emphasis supplied)
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."
(emphasis supplied)
30.10. Thus a proper reading of the order of
reference would reveal the following:-
(i) While passing an order at the stage of
156(3) of Cr.P.C., there would be consequences, more
so, where a Magistrate may act in a mechanical and
mindless manner. However, that cannot be a test as
noted in para-32.
(ii) The aspect of prior sanction to prosecute a
public servant for the offences under the P.C. Act is a
provision under Chapter XIV of Cr.P.C. (see para-33).
Accordingly, the Court has voiced its opinion that for
the purposes of Section 19 of the P.C. Act the
question of sanction would arise only as regards stage
at Chapter XIV of Cr.P.C.
(iii) Reference is made only to decide whether
requirement of prior sanction required as regards the
stage at Chapter XIV can be imported even as regards
the stage at Chapter-XII [where order directing
investigation is passed under Section 156(3) of
Cr.P.C.] merely because a public servant is involved.
30.11. Accordingly, it is very clear and is an
accepted position that, prior sanction contemplated
under Section 19(1) of P.C. Act is at the stage of
Chapter XIV, i.e. cognizance under Section 190 of
Cr.P.C. Whether it could be extended to order under
Section 156(3) of Cr.P.C. is the question that is
referred to be decided by the larger Bench.
Accordingly, there is no ambiguity that prior sanction
is required only at the stage of taking cognizance in
terms of Section 190 of Cr.P.C. for the purpose of
Section 19(1) of P.C. Act. This is however subject to
the caveat that the Amendment in 2018 to the P.C.
Act subsequent to Manju Surana (supra) would
prescribe that sanction is required where the Special
Judge proceeds under Chapter XV as regards a Private
Complaint only at the stage of issuance of notice
under Section 204 of Cr.P.C. in terms of proviso to
Section 19 of the P.C. Act introduced by way of
amendment.
30.12. The Court while making reference has
clarified as regards the particular case that was being
dealt with by observing at para-45 as follows:-
"45. ...We, however, make it clear that
if a situation arises where investigation is
directed under Section 156(3) CrPC and some
material comes to light to array Respondent 1
as an accused, our order would not come in
the way."
Thus the Court has clarified that the order of
reference would not come in the way of ordering
investigation under Section 156(3) of Cr.P.C. i.e., the
question of sanction for passing an order under
Section 156 would not arise, as it is that very question
that has been referred to the larger Bench and is still
to be determined.
30.13. Accordingly, the order of reference is
clear as to the purpose and scope of the reference.
31. COGNIZANCE AND ORDER FOR INVESTIGATION
UNDER SECTION 156(3) OF CR.P.C.
At the outset, it is to be noted that following
discussion would arise if the legal position is to be
ascertained in the absence of the order of reference.
31.1. In light of the scheme contained in the
Code of Criminal Procedure, 1973 reference to
cognizance of offences is found under Section 190 of
Cr.P.C. A question has often cropped up as to
whether an order for investigation under Section
156(3) would also constitute an act of taking
cognizance?
31.2. The Courts have held that an act of taking
cognizance as envisaged under Section 190(1)(b) of
Cr.P.C., constitutes cognizance. On the other hand,
an order of the Court under Section 156(3) of Cr.P.C.
referring the matter for investigation under
Chapter-XII of Cr.P.C., being at an intermediary
stage, and culminating in the Final Report under
Section 173(2) of Cr.P.C. to be submitted to the Court
for further consideration under Section 190(1)(b) of
Cr.P.C. has been held as not constituting an act of
taking cognizance.
31.3. An order referring the complaint for
investigation under Section 156(3) of Cr.P.C. would
also require application of mind in light of
consequences that would follow, viz., registration of
FIR.14
31.4. As the term 'cognizance' in common
parlance and usage literally means "taking note of"
and accordingly, any act whereby the Court applies its
mind including ordering investigation, is also asserted
by the Accused as being sufficient to constitute taking
of cognizance of the offence.
31.5. An extension of such reasoning has
resulted in Courts in some instances insisting on
requirement of previous sanction even at the stage
where order is passed for investigation under Section
156(3) of Cr.P.C.
This position has been referred to by the Apex Court in Maksud Saiyed (supra) ¶13.
31.6. The Apex Court in Aiyappa (supra) has
held that an order under Section 156(3) of Cr.P.C.,
being a product of application of mind, would require
obtaining of sanction. In Manju Surana (supra), the
Apex Court has noticed the divergent views on the
same aspect and has referred the matter to be settled
by a larger Bench.
31.7. The Apex Court in Manju Surana (supra)
has noticed in L. Narayana Swamy (supra), wherein
the judgment in Aiyappa (supra) was followed
holding that an order directing investigation under
Section 156(3) of Cr.P.C., would amount to taking
cognizance of offence.
The Apex Court has also noticed the other view
that an order passed under Section 156(3) of Cr.P.C.
would not constitute taking of cognizance. In this
regard, the Apex Court has referred to the following
judgments:-
(a) R.R. Chari v. State of Uttar Pradesh15
[R.R.Chari'] (three-Judge Bench);
(b) Gopal Das Sindhi and Others v. State of
Assam and Another16 ['Gopal Das Sindhi']
(three-Judge Bench);
(c) Jamuna Singh and Others v. Bhadai Shah17
['Jamuna Singh'] (three-Judge Bench);
(d) Nirmaljit Singh Hoon v. State of West
Bengal and Another18 ['Nirmaljit Singh Hoon']
(three-Judge Bench).
All of the above referred decisions hold that
application of mind for ordering investigation under
Section 156(3) of Cr.P.C. would not constitute taking
cognizance of offences, unlike an order taking
cognizance under Section 190(1)(b) of Cr.P.C. As the
Magistrate while passing order under Section 156(3)
of Cr.P.C. has applied his mind, for the purposes of
15 AIR 1951 SC 207.
16 AIR 1961 SC 986.
AIR 1964 SC 1541.
(1973) 3 SCC 753.
proceeding under Chapter XII and not Section 190
(Chapter XIV of Cr.P.C.), which alone constitutes
taking cognizance of offences.
31.8. If the legal position is to be discerned
sans the order of reference, the question as to
whether application of mind at the stage of an order
being passed under Section 156(3) of Cr.P.C. could be
construed to be cognizance, in light of the protection
conferred upon public servants under Section 19(1) of
P.C. Act, is an aspect to be considered in light of the
prevailing law. It is in this context that the string of
judgments which state that cognizance is taken only
as contemplated under Sections 190(1)(a), 190(1)(b)
and 190(1)(c) of Cr.P.C. and if that were to be so, the
sanction would arise only at such stage which falls
within Chapter-XIV of Cr.P.C. and would not arise
where an order is made under Section 156(3) falling
under Chapter-XII of Cr.P.C., requires to be noticed.
31.9. It must be noted that the order of
reference for investigation under Section 156(3) of
Cr.P.C. also would culminate in a Final Report under
Section 173(2) of Cr.P.C. This Final Report is placed
before the Magistrate and cognizance in terms of
Section 190(1)(b) of Cr.P.C. is taken upon such
Report. If that were to be so, the question of taking
cognizance for making an order of reference under
Section 156(3) of Cr.P.C. technically would be
premature, as the order would be at a stage under
Chapter-XII of Cr.P.C.
31.10. The Apex Court in R.R.Chari (supra) has
approved the observations of the Calcutta High Court
and concluded the correct position of law in the
following words:-
"10. After referring to the observations
in Emperor v. Sourindra Mohan Chuckerbutty it
was stated by Das Gupta, J. in Superintendent
and Remembrancer of Legal Affairs, West
Bengal v. Abani Kumar Banerjee [AIR 1950 Cal
437] as follows: "What is taking cognizance
has not been defined in the Criminal Procedure
Code and I have no desire to attempt to define
it. It seems to me clear however that before it
can be said that any Magistrate has taken
cognizance of any offence under Section
190(1)(a) of the Criminal Procedure Code, he
must not only have applied his mind to the
contents of the petition but he must have done
so for the purpose of proceeding in a particular
way as indicated in the subsequent provisions
of this Chapter--proceeding under Section 200
and thereafter sending it for inquiry and report
under Section 202. When the Magistrate
applies his mind not for the purpose of
proceeding under the subsequent sections of
this Chapter, but for taking action of some
other kind e.g. ordering investigation under
Section 156(3), or issuing a search warrant for
the purpose of the investigation, he cannot be
said to have taken cognizance of the offence".
In our opinion that is the correct approach to
the question before the court."
31.11. The same position of law has been
reiterated by the Apex Court in Gopal Das Sindhi
(supra), Nirmaljit Singh Hoon (supra) and Jamuna
Singh (supra).
31.12. The Apex Court in Manju Surana
(supra) also notices the judgment of L. Narayana
Swamy (supra) (Bench of Two Judges) which follows
the judgment in Aiyappa (supra) and concludes that
even while directing an investigation under Section
156(3) of Cr.P.C., the Magistrate applies his judicial
mind to the complaint and therefore the question
whether it could be construed as taking cognizance of
the offence, is a matter to be decided while answering
the reference.
31.13. The judgments in the line of R.R.Chari
(supra) on one hand and that of Aiyappa (supra) on
the other now requires a detailed analysis. At the
outset, it is to be noticed that the judgment in
R.R.Chari (supra) and other judgments19 in the same
line are by Benches of three Judges. Since the
judgments in Aiyappa (supra) and L. Narayana
Swamy (supra) are delivered by Bench of two Judges,
it would be the former judgments that would be
binding, which could be the position in terms of the
law laid down in K.S.Subramanian (supra).
31.14. However, it ought to be noticed that the
line of judgments following R.R.Chari (supra) lay
down the law, that taking cognizance of offence would
only be where cognizance is taken under Section 190
under Chapter-XIV of Cr.P.C. and that an order of
reference for investigation under Section 156(3) under
Chapter-XII of Cr.P.C., would not amount to an act of
taking cognizance of the offence. Whereas, the
judgments in Aiyappa (supra) and L. Narayana
Gopal Das Sindhi (supra); Jamuna Singh (supra); Nirmaljit Singh Hoon (supra);
Swamy (supra) are based on the premise that an
order of reference for investigation under Section
156(3) of Cr.P.C. would involve the application of
mind by the Magistrate, which by itself would fall
within the expanded meaning of taking cognizance
and accordingly, sanction under Section 19(1) of the
P.C. Act would be required even at that stage.
31.15. Accordingly, the questions raised in the
above referred two sets of judgments are in fact not
an identical question, though both converge at a
common point as to at what stage the sanction is to
be obtained. In Aiyappa (supra), the Court concludes
that prior to passing an order under Section 156(3) of
Cr.P.C., sanction is required to be obtained.
31.16. The Apex Court in Manju Surana
(supra) also notices the arguments relating to
consequences of registering an FIR soon after
reference is made under Section 156(3) of Cr.P.C. and
it is in that context the question as to equating order
of taking cognizance vis-à-vis the order at the stage of
reference for investigation under Section 156(3) of
Cr.P.C. in light of Section 19(1) of P.C. Act and it is
observed that the requirement of sanction at such
stage may also require consideration.
31.17. At the cost of repetition, the Apex Court
while referring to the judgments in the line of
Aiyappa (supra) and L. Narayana Swamy (supra)
specifically observes that law laid down in the said two
judgments is divergent to the line of judgments in
R.R.Chari (supra). The observations at para-25 of
Manju Surana (supra) reads as follows:-
"25. Despite the aforesaid catena of
judgments, a different path has been
traversed in two judgments of this Court
where the offences alleged are under the PC
Act read with IPC."
31.18. It must be noticed that the judgment in
R.R.Chari (supra) is the law laid down by the larger
Bench and ought to be followed.
31.19. Insofar as offences under Sections 8, 9
and 10 of P.C. Act, in light of the Amendment in 2018
to Section 19(1) of the P.C. Act, no previous sanction
is required and if the Special Judge were to proceed
against the accused as regards such offence, the
question of previous sanction will not arise.
31.20. If that were to be so, the question of
insisting sanction for prosecution at the stage of
passing the order under Section 156(3) of Cr.P.C.
would not arise. Accordingly, the bar as noticed in
Aiyappa (supra) as regards such stage cannot be
read in as a restriction on the power of the Court.
31.21. The same legal position has been
reiterated by the Apex Court in Jayant and Others v.
State of Madhya Pradesh20 while considering the
question of whether an order for investigation under
Section 156(3) of Cr.P.C. would be hit by the bar of
taking cognizance under Section 22 of the Mines and
Minerals (Development and Regulation) Act, 1957
['MMRD Act' for brevity'].
Section 22 of MMRD Act reads as follows:-
"22. Cognizance of offences.--No court shall
take cognizance of any offence punishable
under this Act or any Rules made thereunder
except upon complaint in writing made by a
person authorised in this behalf by the Central
Government or the State Government."
The Apex Court finally concludes at paras-12 to
15 as follows:-
"12. Having heard the learned counsel for the
parties and having perused the relevant provisions of
the law as also the judicial pronouncements, we are
of the view that the High Court has not committed
(2021) 2 SCC 670
any error in not quashing the order passed by the
learned Magistrate and not quashing the criminal
proceedings for the offences under Sections 379 and
414. It is required to be noted that the learned
Magistrate in exercise of the suo motu powers
conferred under Section 156(3) CrPC directed the In-
charge/SHO of the police station concerned to
lodge/register the crime case/FIR and directed
initiation of investigation and directed the In-
charge/SHO of the police station concerned to
submit a report after due investigation.
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 police on completion of
investigation, as contemplated by Section 173 CrPC.
14. At this stage, it is required to be noted
that as per Section 21 of the MMDR Act, the offences
under the MMDR Act are cognizable.
15. As specifically observed by this Court in
Anil Kumar [Anil Kumar v. M.K. Aiyappa, (2013) 10
SCC 705 : (2014) 1 SCC (Cri) 35] , 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."
31.22. Accordingly, the question of insisting on
sanction while passing orders on reference for
investigation under Section 156(3) of Cr.P.C. would
not arise and accordingly, the dismissal of complaint
itself on such ground is impermissible.
32. PARI MATERIA PROVISIONS OF P.C. ACT,
1947 AND P.C. ACT, 1988
32.1. As regards the contention that R.R.Chari
(supra) was decided in the context of Section 6 of the
Prevention of Corruption Act, 1947, while the present
case concerns the provisions of Section 19 of the
Prevention of Corruption Act, 1988, it must be noted
that the judgments pronounced with respect to
pari materia provisions under different statutes, are
still binding. The Apex Court in the case of Madras
Bar Association v. Union of India and
Another21['Madras Bar Association, 2015'] (Bench of
five Judges), while dealing with the challenge to the
constitution of NCLT and NCLAT under the Companies
Act, 2013, referred to the judgment in Union of
India v. R. Gandhi, President, Madras Bar
Association22 ['Madras Bar Association, 2010'] as
regards to the constitution of NCLT and NCLAT under
the Companies Act, 1956.
32.2. The Apex Court while dealing with the
challenge relating to qualification for appointment of
Members of the Tribunal under the Companies Act,
2013 stated that the provisions were analogous to
(2015) 8 SCC 583.
(2010) 11 SCC 1.
Sections 10-FD, 10-FE, 10-FF, 10-FL, 10-FR and 10-FT
under the Companies Act, 1956.
32.3. Noticing the judgment in Madras Bar
Association, 2010 (supra) wherein the analogous
provisions of the Companies Act, 1956 was considered
and attack as regards the constitutional validity was
rejected, the Court in Madras Bar Association,
2015 (supra) decided a similar attack as regards
pari materia provisions in Companies Act, 2013
following the reasoning in Madras Bar Association,
2010.
32.4. The extension of interpretation of
pari materia provisions in P.C. Act, 1947 to the
provisions of P.C. Act, 1988 is not without earlier
precedent. The Apex Court in Kalicharan
Mahapatra v. State of Orissa23 has held that
Section 19(1) of the P.C. Act, 1988 is in pari materia
(1998) 6 SCC 411.
to the provisions of Section 6(1) of P.C. Act, 1947 and
had extended and applied the ratio in
S.A.Venkataraman v. State24 to the interpretation
of Section 19(1) though in the context of requirement
of sanction as regards the prosecution of a retired
official.
32.5. In the present case, Section 6 of the P.C.
Act, 1947 and Section 19 of P.C. Act, 1988 are
identical as regards to the bar to taking of cognizance
and are extracted as hereinbelow:-
Prevention of Corruption Act, 1947 Prevention of Corruption Act, 1988
6. Previous sanction necessary for 19. Previous sanction necessary for
prosecutions.- (1) No Court shall take prosecution. - (1) No court shall take
cognizance of an offence punishable cognizance of an offence punishable
under Section 161 or Section 164 or under Sections 7, 11, 13 and 15 alleged
Section 165 of the Indian Penal Code or to have been committed by a public
under sub-section (2) or sub-section servant, except with the previous
(3A) of Section 5 of this Act, alleged to sanction save as otherwise provided in
have been committed by a public the Lokpal and Lokayuktas Act, 2013 (1
servant, except with the previous of 2014) -
sanction, (emphasis supplied) (emphasis supplied)
AIR 1958 SC 107.
32.6. The words "no court shall take cognizance
of an offence" is found in both the statutes and being
pari materia provisions, the interpretation in
R.R.Chari (supra) is applicable on all fours to Section
19(1) of the Prevention of Corruption Act, 1988.
33. CONSIDERATION OF JUDGMENTS RELIED UPON
BY RESPONDENTS AND CITED BY AMICUS
CURIAE
33.1. The respondent Nos.1 and 2 have filed a
memo dated 30.05.2022 and have enclosed copies of
the judgment in Anil Kumar B.H. v. Lokayukta
Police25 ['Anil Kumar B.H.'] [judgment of this Court];
Dr.Nazrul Islam v. Basudeb Banerjee and
Others26 ['Dr.Nazrul Islam'] (judgment of Calcutta
High Court); Muhammed V.A. v. State of Kerala,
represented by the Chief Secretary and Others27
['Mohammed V.A.'] (judgment of Kerala High Court);
W.P.No.24574/2013 [GM-RES] dated 25.11.2021.
(2022) SCC Online Cal 183.
(2018) SCC Online (Ker) 7417.
33.2. Reliance is placed on the above judgments
to contend that in all of the judgments referred to
above, the High Courts have referred to the law laid
done in Aiyappa (supra) despite the same having
been referred to a larger Bench and have decided the
matter and accordingly, it is contended that the same
requires to be adopted in the present case also.
33.3. At the outset, it must be noted that in all
the above judgments, the Courts have failed to take
note of the express and plain reading of the order of
reference as noted in the discussion supra at
paras - 30.10 to 30.13.
33.4. That apart, the judgments referred to are
dealt with as follows:-
(i) Insofar as the judgment in Anil Kumar
B.H. (supra), the judgment of Co-ordinate Bench has
failed to take note of the earlier judgment on the
identical aspect in Sri N.C. Shivakumar and others
v. State by Lokayuktha Police, Hassan District28
['N.C.Shivakumar']. The Court in N.C.Shivakumar
(supra) dealing with a batch of matters has considered
all the aspects in detail and has unequivocally held
that an order for investigation under Section 156(3) of
Cr.P.C. cannot be construed that the Court has taken
cognizance and accordingly, no order of sanction is
required while referring to the judgment in R.R.Chari
(supra).
(ii) In the case Dr.Nazrul Islam (supra) and
Muhammed V.A. (supra), both, the Calcutta High
Court as well as Kerala High Court have no doubt
applied the law in Aiyappa (supra) but in light of the
reasoning assigned in the present matter, this Court is
of the view that the judgment in Dr.Nazrul Islam
(supra) and Muhammed V.A. (supra) do not take
2016 SCC OnLine Kar 3565.
note of the terms of the order of reference. Even
otherwise, the Courts do not take note of the law laid
down in R.R.Chari (supra) and accordingly, the views
of other High Courts are to be differed with.
In fact, the Kerala High Court though refers to
R.R.Chari (supra), does not specifically advert to the
position of law laid down in R.R.Chari (supra), which
is impermissible, as the judgment in R.R.Chari
(supra) is that of a larger Bench.
III(B). WHETHER REQUIREMENT OF PREVIOUS APPROVAL
FROM THE REQUISITE AUTHORITY BEFORE
CONDUCTING ANY ENQUIRY, INQUIRY OR
INVESTIGATION INTO AN OFFENCE UNDER SECTION
17A OF P.C. ACT, WOULD ACT AS A BAR ON THE
SPECIAL JUDGE FOR PASSING AN ORDER UNDER
SECTION 156(3) OF CR.P.C. VIS-À-VIS THE
PUBLIC SERVANTS, i.e. ACCUSED NOS.1, 6 AND 7?
34. The Accused Nos. 1, 6 and 7 have
contended that the bar under Section 17A of P.C. Act
for conducting investigation, enquiry or inquiry would
result in an embargo upon the Special Judge in
proceeding to pass an order under Section 156(3) of
Cr.P.C. and accordingly, seek to support the impugned
order on such ground as well, though the Special
Judge has not adverted to such issue.
35. Section 17A of the P.C. Act reads as
hereunder:-
"17A. Enquiry or Inquiry or
investigation of offences relatable to
recommendations made or decision taken
by public servant in discharge of official
functions or duties.--
No police officer shall conduct any enquiry
or inquiry or investigation into any offence
alleged to have been committed by a public
servant under this Act, where the alleged
offence is relatable to any recommendation
made or decision taken by such public servant
in discharge of his official functions or duties,
without the previous approval--
(a) in the case of a person who is or was
employed, at the time when the offence was
alleged to have been committed, in connection
with the affairs of the Union, of that
Government;
(b) in the case of a person who is or was
employed, at the time when the offence was
alleged to have been committed, in connection
with the affairs of a State, of that Government;
(c) in the case of any other person, of the
authority competent to remove him from his
office, at the time when the offence was alleged
to have been committed:
Provided that no such approval shall be
necessary for cases involving arrest of a person on
the spot on the charge of accepting or attempting
to accept any undue advantage for himself or for
any other person:
Provided further that the concerned authority
shall convey its decision under this section
within a period of three months, which may, for
reasons to be recorded in writing by such authority,
be extended by a further period of one month."
36. A bare perusal of Section 17A of P.C. Act
would indicate the following:-
i. The bar for enquiry, inquiry or
investigation into an offence under the
P.C. Act is on the Police Officer.
ii. The offence must be relatable to "any
recommendation made or decision
taken by such public servant in
discharge of his official functions or
duties."
37. The bar for enquiry, inquiry or investigation
is only a fetter on the power of the Police Authorities
and wherever the Court itself is in seisin of a Private
Complaint and proceeds to order for investigation by
the Authorities pursuant to order under Section
156(3) of Cr.P.C., such bar under Section 17A of the
P.C. Act would not be an embargo on the Court's
power. Accordingly, the bar under Section 17A of P.C.
Act would kick in only post registration of FIR when
Police are required to commence investigation.
38. In the present case, the private
Complainant is before the Court and not before the
Police Authorities. When the Special Judge has
already entertained the opinion at para-18 of the
impugned order that there are "some material to refer
the complaint for investigation", there is no reason for
bar under Section 17A of P.C. Act to prohibit the Court
from referring the matter for investigation. Upon such
direction and order, if passed under Section 156(3) of
Cr.P.C., the Police Authorities are obligated to register
FIR which is the commencing point of investigation.
39. Once FIR is registered, the Police
Authorities however cannot move forward for
conducting enquiry, inquiry or investigation without
previous approval as mandated under Section 17A of
P.C. Act.
An important aspect that requires to be noticed
is that Section 17A of P.C. Act comes into play as an
embargo on the Police Authorities only where the
alleged offence is relatable to any recommendation
made or decision taken by the public servant in
discharge of his official functions or duties.
40. In the present case, the relevant facts to
determine as to whether the alleged offence is
relatable to recommendation made or decision taken
in discharge of official functions or duties are to be
seen by the Special Judge to whom the Court
proposes to remand the matter.
41. Hence, the impugned order cannot be
supported by the contention that lack of approval
under Section 17A of P.C. Act would also prohibit the
Special Judge from passing order under Section
156(3) of Cr.P.C.
42. It is however clarified that once FIR is
registered and the Police Authorities entertain any
doubt as to the bar of 17A of P.C. Act to commence
investigation, it is always open to the Investigating
Authorities to obtain clarification from the Special
Judge in that regard.
43. It is also clarified that, if the Special Judge
upon remand decides to proceed as regards the
Private Complaint under Chapter XV of Cr.P.C., the
bar under Section 17A being a bar only on the Police
Authorities will not operate.
III(C). WHETHER IN THE ABSENCE OF ANY RESPONSE
FROM THE COMPETENT AUTHORITY REGARDING
GRANT OF SANCTION SOUGHT AGAINST ACCUSED
NOS. 6 AND 7 OUGHT THE SPECIAL JUDGE HAVE
PROCEEDED ON THE PREMISE OF DEEMED
SANCTION AS CONTENDED?
44. It is the assertion of the Complainant that
as against Accused No.7, the request for sanction was
made on 20.11.2020 as per Document No.19 to the
Chief Secretary, Government of Karnataka and as
regards Accused No. 6, similar requisition was made
to the Hon'ble Speaker of Karnataka Legislative
Assembly on 25.11.2020. Till filing of the complaint
on 02.06.2021, no reply having been received on the
same, it is the contention of the Complainant that the
concept of deemed sanction is to be applied by relying
on the observations made in Subramanian Swamy
(supra).
45. It has been contended by the Complainant
that absence of any decision on the requisition of
sanction as against Accused No. 7 (Dr. G.C. Prakash,
IAS) and Accused No. 6 (Chairman BDA / M.L.A.),
despite lapse of sufficient time, ought to be construed
as deemed sanction in light of the observations made
in Subramanian Swamy (supra). It has been
contended that the absence of decision within three
months from the date of receipt of request for grant of
sanction ought to result in deemed sanction.
46. It must be noted that the aspect of deemed
sanction is a concept referred to in Subramanian
Swamy (supra) at para-81 as follows:-
"81. In my view, Parliament should consider
the constitutional imperative of Article 14
enshrining the Rule of Law wherein "due process
of law" has been read into by introducing a time-
limit in Section 19 of the PC Act, 1988 for its
working in a reasonable manner. Parliament
may, in my opinion, consider the following
guidelines:
(a) All proposals for sanction placed before any
sanctioning authority empowered to grant
sanction for prosecution of a public servant
under Section 19 of the PC Act must be
decided within a period of three months of the
receipt of the proposal by the authority
concerned.
(b) Where consultation is required with
the Attorney General or the Solicitor
General or the Advocate General of the
State, as the case may be, and the same
is not possible within the three months
mentioned in clause (a) above, an
extension of one month period may be
allowed, but the request for consultation
is to be sent in writing within the three
months mentioned in clause (a) above. A
copy of the said request will be sent to
the prosecuting agency or the private
complainant to intimate them about the
extension of the time-limit.
(c) At the end of the extended period
of time-limit, if no decision is taken,
sanction will be deemed to have
been granted to the proposal for
prosecution, and the prosecuting
agency or the private complainant
will proceed to file the charge-
sheet/complaint in the court to
commence prosecution within 15
days of the expiry of the
aforementioned time-limit.
(emphasis supplied)
47. The 2018 Amendment to Section 19 of P.C.
Act provides for processing of request for sanction as
follows:-
"Provided also that the appropriate
Government or any competent authority shall,
after the receipt of the proposal requiring sanction
for prosecution of a public servant under this sub-
section, endeavour to convey the decision on such
proposal within a period of three months from the
date of its receipt:
Provided also that in case where, for the
purpose of grant of sanction for prosecution, legal
consultation is required, such period may, for the
reasons to be recorded in writing, be extended by
a further period of one month:
Provided also that the Central Government
may, for the purpose of sanction for prosecution
of a public servant, prescribe such guidelines as it
considers necessary."
48. It is apparent that despite the observations
of the Apex Court as regards proposed guidelines
including deemed sanction under para-81(c) of
Subramanian Swamy (supra), the Parliament has
only incorporated the duty to consider as
"....endeavour to convey the decision on such
proposal within a period of three months from
date of its receipt."
49. Further, wherever legal consultation is
required for reasons to be recorded in writing, the
time could be extended by a further period of one
month. No further consequence of not taking a
decision on the request for sanction is provided for
under the statutory scheme. Accordingly, the
question of deemed sanction as asserted with respect
to Accused Nos. 6 and 7 does not arise.
50. As regards the contention that the sanction
giving Authorities often sit upon such requests
endlessly prejudicing a fair trial, it must be noted that
the observations of Apex Court in Subramanian
Swamy (supra) would indicate that undue delay in
taking a decision would be contrary to Article 14 of the
Constitution of India. The observation at paras-75 to
79 would be of relevance and are extracted
hereinbelow:-
"75. Therefore, in every case where an
application is made to an appropriate authority
for grant of prosecution in connection with an
offence under the PC Act it is the bounden duty
of such authority to apply its mind urgently to
the situation and decide the issue without
being influenced by any extraneous
consideration. In doing so, the authority must
make a conscious effort to ensure the Rule of
Law and cause of justice is advanced. In
considering the question of granting or refusing
such sanction, the authority is answerable to
law and law alone. Therefore, the requirement
to take the decision with a reasonable dispatch
is of the essence in such a situation. Delay in
granting sanction proposal thwarts a very valid
social purpose, namely, the purpose of a
speedy trial with the requirement to bring the
culprit to book. Therefore, in this case the right
of the sanctioning authority, while either
sanctioning or refusing to grant sanction, is
coupled with a duty.
76. The sanctioning authority must bear
in mind that what is at stake is the public
confidence in the maintenance of the Rule of
Law which is fundamental in the administration
of justice. Delay in granting such sanction has
spoilt many valid prosecutions and is adversely
viewed in public mind that in the name of
considering a prayer for sanction, a protection
is given to a corrupt public official as a quid pro
quo for services rendered by the public official
in the past or may be in the future and the
sanctioning authority and the corrupt officials
were or are partners in the same misdeeds. I
may hasten to add that this may not be the
factual position in this (sic case) but the
general demoralising effect of such a popular
perception is profound and pernicious.
77. By causing delay in considering the
request for sanction, the sanctioning authority
stultifies judicial scrutiny and determination of
the allegations against corrupt official and thus
the legitimacy of the judicial institutions is
eroded. It, thus, deprives a citizen of his
legitimate and fundamental right to get justice
by setting the criminal law in motion and
thereby frustrates his right to access judicial
remedy which is a constitutionally protected
right. In this connection, if we look at Section
19 of the PC Act, we find that no time-limit is
mentioned therein. This has virtually armed
the sanctioning authority with unbridled power
which has often resulted in protecting the
guilty and perpetuating criminality and
injustice in society.
78. There are instances where as a result
of delayed grant of sanction prosecutions
under the PC Act against a public servant has
been quashed. See Mahendra Lal Das v. State
of Bihar [(2002) 1 SCC 149 : 2002 SCC (Cri)
110] wherein this Court quashed the
prosecution as the sanctioning authority
granted sanction after 13 years. Similarly,
in Santosh De v. Archna Guha [1994 Supp (3)
SCC 735 : 1995 SCC (Cri) 194] this Court
quashed prosecution in a case where grant of
sanction was unduly delayed. There are several
such cases. The aforesaid instances show a
blatant subversion of the Rule of Law. Thus, in
many cases public servants whose sanction
proposals are pending before the authorities
for long periods of time are being allowed to
escape criminal prosecution.
79. Article 14 must be construed as a
guarantee against uncanalised and arbitrary
power. Therefore, the absence of any time-
limit in granting sanction in Section 19 of the
PC Act is not in consonance with the
requirement of the due process of law which
has been read into our Constitution by the
Constitution Bench decision of this Court
in Maneka Gandhi v. Union of India [(1978) 1
SCC 248] .
51. In the event of decision not being taken
within a reasonable period of time, the only remedy
open would be to obtain appropriate direction in
exercise of writ jurisdiction. Needless to state that
where the request for sanction is pending
consideration, the proceedings before the Special
Court is to be kept in abeyance.
52. Accordingly, the contention that the Special
Court ought to have continued the proceedings
against Accused Nos.6 and 7 on the premise of
deemed sanction, cannot be accepted.
53. Further, in light of the discussion at
para-61.3 infra, the Complainant could not have
approached the Authorities on his own seeking for
sanction in light of stipulation under Section 19 of the
P.C. Act. Accordingly, the question of deemed
sanction even otherwise does not arise in the present
case.
III(D). WHETHER THE SPECIAL JUDGE HAS ERRED IN
DISMISSING THE COMPLAINT IN ITS ENTIRETY
EVEN AS AGAINST THE ACCUSED OTHER THAN
PUBLIC SERVANTS, VIZ., ACCUSED NOS. 2, 3,
4, 5, 8 AND 9 ONLY ON THE GROUND OF
REJECTION OF SANCTION AGAINST ACCUSED
NO.1 AND ABSENCE OF SANCTION FOR
PROSECUTION OF ACCUSED NOS.6 AND 7?
54. It is the contention of the Complainant that
the dismissal of complaint for lack of sanction against
Accused No.1 should not have any consequence as
regards the complaint against Accused Nos.2, 3, 4, 5,
8 and 9, who are non-public servants who are alleged
to have committed offences under Sections 7, 8, 9
and 10 of the P.C. Act.
55. It must be noted that the Apex Court in
State through Central Bureau of Investigation,
New Delhi v. Jitender Kumar Singh29 ['Jitender
Kumar Singh'] in the discussion from para-26 onwards
has opined that the offences under Sections 8, 9, 12
of P.C. Act can be committed by a public servant or by
a private person or by combination of both.
56. It is further observed that the proceedings
under the P.C. Act even against a private person
involved in an offence under the P.C. Act is required to
(2014) 11 SCC 724.
be tried only by a Special Court and by no other
Court. It is further pointed out that the existence of
public servant for facing the trial before the Special
Court is not sine qua non and even in absence of
public servant, the private persons can be tried for the
offences under the P.C. Act as well as non-P.C. Act
offences. The relevant observations at paras-29 and
30 of Jitender Kumar Singh (supra) is as below:-
"29. It is thus clear that an offence under
the PC Act can be committed by either a public
servant or a private person or a combination of
both and in view of the mandate of Section
4(1) of the PC Act, read with Section 3(1)
thereof, such offences can be tried only by a
Special Judge. For example:
(i) A private person offering a bribe to a
public servant commits an offence under
Section 12 of the Act. This offence can be tried
only by the Special Judge, notwithstanding the
fact that only a private person is the accused
in the case and that there is no public servant
named as an accused in that case.
(ii) A private person can be the only
accused person in an offence under Section 8 or
Section 9 of the said Act. And it is not necessary
that a public servant should also be specifically
named as an accused in the same case.
Notwithstanding the fact that a private person is
the only accused in an offence under Section 8 or
Section 9, it can be tried only by a Special Judge.
30. Thus, the scheme of the PC Act makes it
quite clear that even a private person who is
involved in an offence mentioned in Section 3(1)
of the PC Act, is required to be tried only by a
Special Judge, and by no other court. Moreover, it
is not necessary that in every offence under the
PC Act, a public servant must necessarily be an
accused. In other words, the existence of a public
servant for facing the trial before the Special
Court is not a must and even in his absence,
private persons can be tried for PC as well as non-
PC offences, depending upon the facts of the
case. We, therefore, make it clear that it is not
the law that only along with the junction of a
public servant in the array of parties, can the
Special Judge proceed against private persons
who have committed offences punishable under
the PC Act."
57. In the present case, considering that the
allegation made in the complaint is also as regards the
offences under Sections 8, 9 and 10 of P.C. Act (see
prayer of PCR No.40/2021), the dismissal of complaint
against the public servants ought not to have resulted
in closure of complaint as against non-public servants
accused.
58. Accordingly, in light of the discussion
holding that order under Section 156(3) of Cr.P.C.
could be passed without previous sanction under
Section 19 of P.C. Act, even if cognizance is not taken
against a public servant, i.e. Accused Nos. 6 and 7
due to lack of sanction or even where sanction is
rejected as regards Accused No.1, there is no
embargo on the Special Court to take cognizance and
continue the proceedings as against non-public
servants accused as regards the offences alleged to
have been committed by them under the provisions of
the P.C. Act. and IPC.
IV. OTHER ASPECTS:-
59. IN RE. XYZ V. STATE OF MADHYA PRADESH
AND ANOTHER30:-
59.1. Before concluding, it would be appropriate
to observe regarding the course of action that the
Special Judge may choose to adopt when he intends
to proceed further from the stage of presentation of
Private Complaint before him as is being ordered.
59.2. In the present case, the offences being
cognizable and the Police Authorities having failed to
take action regarding the offences, the complainant
has approached the Court by way of a Private
Complaint requesting registration of FIR against the
Accused and to proceed further to investigate.
2022 SCC OnLine SC 1002.
Accordingly, the complainant's grievance as also
regarding non-registration of FIR is sought to be
redressed by calling upon the Court to order for
registration of FIR on the basis of the Private
Complaint. In such a scenario, the appropriate course
of action wherein once the Special Judge is of the view
that cognizable offences are made out, would be to
pass order under Section 156(3) of Cr.P.C. rather
than following the procedure under Chapter XV of
Cr.P.C. Though Section 156(3) of Cr.P.C. uses the
word "may", which would imply that the Magistrate
has discretion to order for investigation, such power
must be exercised judiciously and where the
Magistrate finds the commission of a cognizable
offence which would indicate the need for Police
investigation, Magistrate ought to exercise jurisdiction
under Section 156(3) of Cr.P.C. to direct the Police to
investigate.
59.3. The observations made by the Apex Court
in XYZ v. State of Madhya Pradesh and Others
(supra) at paras-22 to 24 are as follows:-
"22. In the present case, the narration
of facts makes it clear that upon the
invocation of the jurisdiction of the
Magistrate under Section 156(3) of CrPC,
the JMFC came to the conclusion that
serious allegations had been levelled
against the accused by the appellant and,
that, from a perusal of the documents in
this regard, the statements of the
complainant were satisfactory. After taking
note of the fact that the police had at an
earlier stage reported that the occurrence of
an incident or offence was not found, the
JMFC opined that, from the facts which were
set out by the complainant in the complaint,
prima facie, the occurrence of an offence
was shown.
23. It is true that the use of the word
"may" implies that the Magistrate has
discretion in directing the police to
investigate or proceeding with the case as a
complaint case. But this discretion cannot
be exercised arbitrarily and must be guided
by judicial reasoning. An important fact to
take note of, which ought to have been, but
has not been considered by either the Trial
Court or the High Court, is that the
appellant had sought the production of
DVRs containing the audio-video recording
of the CCTV footage of the then Vice-
Chancellor's (i.e., the second respondent)
chamber. As a matter of fact, the Institute
itself had addressed communications to the
second respondent directing the production
of the recordings, noting that these
recordings had been handed over on his
oral direction by the then Registrar of the
Institute as he was the Vice-Chancellor. Due
to the lack of response despite multiple
attempts, the Institute had even filed a
complaint with PS Gole Ka Mandir on 29
October 2021 for registering an FIR against
the second respondent for theft of the
DVRs.
24. Therefore, in such cases, where not
only does the Magistrate find the
commission of a cognizable offence alleged
on a prima facie reading of the complaint
but also such facts are brought to the
Magistrate's notice which clearly indicate
the need for police investigation, the
discretion granted in Section 156(3) can
only be read as it being the Magistrate's
duty to order the police to investigate. In
cases such as the present, wherein, there is
alleged to be documentary or other
evidence in the physical possession of the
accused or other individuals which the
police would be best placed to investigate
and retrieve using its powers under the
CrPC, the matter ought to be sent to the
police for investigation."
60. OFFENCES UNDER THE PREVENTION OF MONEY
LAUNDERING ACT, 2002
60.1. The Special Judge in the impugned order
has referred to the offences under the provisions of
PMLA. It must be noted that the question of
proceeding as regards to the offences under the PMLA
would not arise as the Special Court is debarred from
taking cognizance of any offence under Section 4
except upon a complaint made by officers mentioned
under Section 45 of PMLA.
60.2. Accordingly, the Special Judge cannot
direct proceedings for the offences under PMLA and
liberty is reserved to the Complainant to initiate
appropriate proceedings as per permissible procedure
in accordance with law.
61. REJECTION OF SANCTION AS REGARDS ACCUSED
NO.1
61.1. It is noticed that the Complainant has
approached the Governor and sought for sanction for
prosecution as regards Accused No.1, who was the
Chief Minister at the relevant point of time.
61.2. It is noticed that sanction for prosecution
has been rejected on 24.06.2021 and the same has
been communicated to the Complainant.
61.3. It must be noted that in terms of Section
19 of the P.C. Act, no request can be made for
sanction by a person other than "Police Officer or an
Officer of an Investigation Agency or other law
enforcement authorities, ....", which is however
subject to the further rider that such person other
than the Police Officer may be called upon to obtain
sanction from the appropriate Authority by the Court
where complaint filed by him has not been dismissed
under Section 203 of Cr.P.C. and the Court intends to
continue proceedings against the Accused (this would
arise where the Magistrate decides to follow the
procedure under Chapter XV of Cr.P.C. as regards to
the Private Complaint).
61.4. In light of the above, the Complainant
approaching the Governor for sanction is of no legal
significance, as he was not competent to seek for
sanction.
61.5. Accordingly, the rejection of such request
is liable to be ignored, as such request was not made
either by the Police Officer or an Officer of
Investigation Agency or other law enforcement
Authorities; nor pursuant to the order of Court as
contemplated under First Proviso to Section 19 of the
P.C. Act.
61.6. Thus, the rejection of sanction for
prosecution would not come in the way of continuance
of proceedings against Accused No.1 upon restoration
of the complaint. Sanction as regards Accused No.1
would be an aspect for consideration at the
appropriate stage as per law as has been made out in
terms of the discussion above.
62. In the result, the following:-
ORDER
62.1. Accordingly, the petition is allowed in part.
The impugned order dated 08.07.2021 is set aside
and the complaint, i.e. P.C.R. No.40/2021 stands
restored to the file of LXXXI Addl. City Civil and
Sessions Judge, Bengaluru (CCH-82). The Special
Court may proceed from the stage post presentation
of the Private Complaint, keeping in mind the above
discussion.
62.2. The Court places on record its appreciation
for the assistance by the learned Advocates appearing
on both sides, including that of learned Senior Counsel
Sri C.V.Nagesh appearing on behalf of respondent
Nos.1 and 2. The Court also records its appreciation
for the painstaking effort of Amicus Curiae
Sri Venkatesh S. Arbatti.
Sd/-
JUDGE
VGR
