Kerala High Court
A.K.Sreekumar vs State Of Kerala on 24 March, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
Monday, the 24th day of March 2025 / 3rd Chaithra, 1947
CRL.MC NO. 4677 OF 2022
CRMP 318/2021 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
PETITIONER/COMPLAINANT
A.K.SREEKUMAR, AGED 43 YEARS, EDAPPALLYKURATH
HOUSE, PUTHUPPALLY.P.O., KOTTAYAM, PRESENTLY RESIDING AT KANDATHIL
TOURIST HOME COMPLEX, SASTHRI ROAD, KOTTAYAM, PIN - 686011.
RESPONDENTS/STATE & RESPONDENTS
1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-, PIN - 682031.
2. MAR KURIAKOSE SEVERIOSE MAR APREM SEMINARY, CHINGAVANAM
P.O., KOTTAYAM, PIN - 686531.
3. PRASAD JOSEPH, KOYICKAL HOUSE, ANGADY P.O., RANNY., PIN - 689674.
4. BOBY KURIAN THEKKATHIL (HOUSE), RANNI P.O.., PIN - 689672.
5. SAJAN ABRAHAM, NICHUVELIL HOUSE, THIRUVALLA P.O., PIN - 689101.
6. T.O.ABRAHAM THOTTATHIL (HOUSE), THURUTHYKKADU P.O., MALLAPPALLY.,
PIN - 689597.
7. BINU KURUVILA KALLEMANNIL HOUSE, WEST OTHARA P.O., THIRUVALLA, PIN -
689551.
8. FR.V.A.ABRAHAM ILAYSSERIL HOUSE, KUTTOOR P.O., THIRUVALLA, PIN -
689102.
9. FR.MATHEW UTHUPPAN CHERUKARAYATH, MAZHUKKEER, THIRUVALLA, PIN -
689121.
10. FR.JAIN THOMAS, KULATHUKAL (HOUSE), THURUTHIKKADU, MALLAPPALLY,, PIN
- 689597.
This Criminal Miscellaneous Case coming on for orders upon perusing
the petition and this court's order dated 09.07.2024 in Crl M.C 4677/2022
and upon hearing the arguments of M/S.SOORAJ T.ELENJICKAL, RENOY VINCENT,
HELEN P.A., ARUN ROY & SHAHIR SHOWKATH ALI, Advocates for the petitioners
and of the PUBLIC PROSECUTOR for the first respondent, and of M.K.SREEKESH
appointed as Amicus Curiae, the Court passed the following:
1
Crl. M.C. No. 4677 of 2022
RAJA VIJAYARAGHAVAN V & P.V.BALAKRISHNAN, JJ.
--------------------------------------------------------
---------------------------------------------
Dated this the 24th day of March 2025.
REFERENCE ORDER
Raja Vijayaraghavan, J.
This matter is placed before us on a reference made by the learned
Single Judge. The following questions have been raised for our
consideration:
(a) When the Hon'ble Supreme Court has in Jayant referred to the proposition
laid down in AnilKumar [2013) 10 SCC 705] and laid down a dictum that an
order directing investigation is not tantamount to taking cognizance,
whether it is possible to construe sanction under Section 19 of the P.C. Act
as a prerequisite for passing a direction for investigation under Section
156(3) of the Cr.P.C overlooking that the law laid down by the Supreme
Court in Jayant [(2021) 2 SCC 670] aligns with the ratio laid down by the
Constitution Bench and Larger Benches of the Supreme Court.
(b) Whether the law laid down by the Division Bench of this Court in
Muhammed [(2019) 1 KLT 156] that pending adjudication of the reference
made by the Supreme Court in Manju Surana [(2018) 5 SCC 557], this
Court is bound to follow the law laid down by the Supreme Court in
AnilKumar [2013) 10 SCC 705] continues to be a binding law in the light of
the subsequent judgment of the Supreme Court in Jayant [2021) 2 SCC
670]wherein the Supreme Court has laid down the proposition that an
embargo on taking cognizance imposed by the statute does not impede
investigation.
(c) Whether the ratio laid down in AnilKumar [2013) 10 SCC 705] is applicable
to cases, post amendment of the P.C Act (vide: Act 16 of 2018), when by
inserting Section 17-A and Section 19 (1) (11) to the P.C. Act, the
legislature has expressly conveyed its otherwise implicit intent to treat the
stage of the investigation as different from the stage cognizance for the
purpose of the P.C. Act.
(d) Whether the expression "cognizance" in Section 19 of the P.C Act is liable to
be construed bearing in mind that the said expression derives its meaning
from the context expressly referred therein, i.e., "prosecution".
2. Before we make an endeavour to answer the questions
posed by the learned Sessions Judge, we feel it would be appropriate to
narrate the sequence of events which led to the referral.
3. In Anil Kumar and others v M.K. Aiyappa and
Another1 a Two-Judge Bench of the Apex Court was concerned with the
question of whether the Special Judge/Magistrate is justified in referring a
private complaint made under Section 200 of the Cr.P.C for investigation
by the Deputy Superintendent of Police, Karnataka Lokayukta, in exercise
of powers conferred under Section 156(3) of the Cr.P.C without the
production of a valid sanction order under Section 19 of the Prevention of
Corruption Act, 1988 ('PC Act' for brevity).
4. One of the questions considered by the Apex Court in the
said judgment was whether the order directing investigation under Section
156(3) of the Cr.P.C would amount to taking cognizance of the offence.
This was because, a contention was raised that the expression
[(2013) 10 SCC 705]
"cognizance" appearing in Section 19(1) of the PC Act has to be construed
as a post-cognizance stage and not at a 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.
5. The Apex Court after noting the precedents in State Of
Uttar Pradesh v. Paras Nath Singh2, State of W.B v. Mohd.
Khalid3, Subramanian Swamy v. Manmohan Singh4, and Maksud
Saiyed v. State of Gujarat5 observed in paragraph 10 of the judgment
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) of the
Cr.P.C, obviously, he has not taken cognizance of the offence and,
therefore, it is a pre-cognizance stage and cannot be equated with the
post-cognizance stage.
6. After noting the previous precedents, and after observing as
above in paragraph 15 of the judgment, the Apex Court in paragraph
No.17 considered the specific question as to whether the requirement of
sanction is a precondition for ordering investigation under Section 156(3)
of the Cr.P.C., even at a pre-cognizance stage. After referring to Section
2(c) and Section 19 of the Act and after relying on the previous
[(2009) 6 SCC 372]
[(1995) 1 SCC 684]
[(2012) 3 SCC 64]
[(2008) 5 SCC 668]
precedents noted above and that in General Officer Commanding
Rashtriya Rifles v. CBI6, it was held that the requirement to obtain
sanction is a mandatory requirement. The Appeal was accordingly
dismissed holding that the learned Special Judge was well justified in
insisting on a sanction order irrespective of whether the Court was acting
at a pre-cognizance stage or the post-cognizance stage.
7. It would be apposite to note at this juncture the subsequent
judgment rendered by the Apex Court in L. Narayana Swamy v. State
of Karnataka And Others7, wherein one of the questions which came
up for consideration was, whether an order directing further investigation
under Section 156(3) of the Cr.P.C. can be passed in relation to a public
servant in the absence of valid sanction and contrary to the judgments of
the Apex Court Court in Anil Kumar (supra) and Manharibhai
Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel8. After referring
to all previous precedents, the Apex Court went on to hold that an order
directing further investigation under Section 156(3) of the Cr.P.C cannot be
passed in relation to public servants in the absence of valid sanction and is
contrary to the judgments of this Court in Anil Kumar (supra) and
Manharibhai Muljibhai Kakadia (supra). One of the contentions raised
in Narayana Swamy (supra) was that the Trial Court was not justified in
[(2012) 6 SCC 228]
[(2016) 9 SCC 598]
[(2012) 10 SCC 517]
ordering further investigation under Section 156(3) of the Cr.P.C and
taking cognizance of the complaint, without insisting that due sanction, as
required under Section 19 of the PC Act r/w. Section 190 of the Cr.P.C, has
been obtained. The Apex Court answered the question of law holding as
under:
Having regard to the ratio of the aforesaid judgment (Anil
Kumar v. M.K. Aiyappa (2013) 10 SCC 705), 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.
8. Immediately thereafter, the very same question cropped up
for consideration in Manju Surana v Sunil Arora and Others9. The
neat question of law framed in the said case is as under:
"The question of law sought to be raised in the appeals is
as to whether prior sanction for prosecution qua allegation of
corruption in respect of public servants is required before setting
in motion even the investigative process under Section 156(3) of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
"CrPC").
9. Essentially, the substratum of the argument was that the
requirement of prior sanction for prosecution against the public servant
would arise only when cognizance is taken, while no such sanction was
required at the stage of setting into motion an investigation under Section
[(2018) 5 SCC 557]
156(3) of the Cr.P.C. It was, thus, contended that the observations in Anil
Kumar (supra) and L. Narayana Swamy (supra) are either per incuriam
or in conflict with the long line of earlier judgments on the question as to
when the cognizance can be stated to have been taken. Reliance was
placed on earlier larger bench decisions such as R.R Chari v. State Of
Uttar Pradesh10, Legal Remembrancer, West Bengal v. Abani
Kumar Banerji11, Gopal Das Sindhi v. State of Assam12, Nirmaljit
Singh Hoon v. State of W.B.13 Devarapally Lakshminarayana
Reddy v. V. Narayana Reddy14, Tula Ram v. Kishore Singh15 and
Srinivas Gundluri v. SEPCO Electric Power Construction Corpn.16
10. The Apex Court in Manju Surana (supra) noted that there
is indeed a divergence of opinion and the same ought to be settled by a
Larger Bench and orders were passed accordingly. The observations made
by the Apex Court in paragraph Nos. 32 and 33 of the judgment while
passing an order of reference are pertinent:
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
[AIR 1951 SC 207]
[AIR 1950 Cal 437]
[AIR 1961 SC 986]
[(1973) 3 SCC 753]
[(1976) 3 SCC 252
(1977) 4 SCC 459
[(2010) 8 SCC 206]
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. (emphasis supplied)
11. The conflict has not yet been resolved by a Larger Bench.
12. While matters were pending as aforesaid, questions were
referred to a Division Bench of this Court to consider the question relating
to the stage at which sanction under Section 19(1) of the PC Act is to be
taken from the competent authority. It appears that the learned Single
Judge who heard the matters leading to the reference felt that the
judgment in Anil Kumar (supra) is directly in conflict with the view
enunciated by four earlier Three-Judge Bench rulings in R.R. Chari v.
State of U.P. (supra), Gopal Das Sindhi (supra), Jamuna Singh and
Others v. Bhadai Shah17, and Devarapalli Lakshminarayana Reddy
(supra).
13. Their Lordships of the Division Bench in Muhammed V.A
and Others v. State of Kerala and Others18 noted that after passing of
the judgment in Anil Kumar (supra), an amendment was brought to the
PC Act whereby Section 17A was inserted with effect from 26/07/2018
which provided for the procedure to be followed while conducting an
enquiry or inquiry or investigation of offences relating to recommendations
made or decision taken by public servant in discharge of official duties.
This Court also noted that amendments were also brought in Section 19 of
the PC Act. Their Lordships of the Division Bench noted the judgment in
Manju Surana (supra) and observed that until a final decision is taken by
a Larger Bench, the dictum laid down in Anil Kumar (supra) would hold
the field.
14. While so the Judgment in Jayant v State of M.P19 was
pronounced by the Apex Court. It would be appropriate to refer to the
facts involved in Jayant (supra) to understand the context in which the
matter came up before the Apex Court. A surprise inspection was
conducted by the Mining Inspectors and seized some minor minerals. The
minerals were seized and the tractor/trolleys were handed over to the
[AIR 1964 SC 1541]
[2019 (1) KHC 239]
[(2021) 2 SCC 670]
Police Station for safe custody. For prosecuting the violators separate
complaints were filed under Rule 53 of the M.P. Minor Mineral Rules, 1966
and the same was submitted before the Mining Officers with a proposal for
compounding the cases in terms of the Rules. The Mining Officers
submitted the proposal before the Collector who approved the proposal,
consequent to which the offence was compounded by depositing the
amounts. Later, based on a newspaper clipping and consequent to public
outcry, the Judicial Magistrate of the First Class, in exercise of powers
conferred under Section 156(3) of the Cr.P.C., suo motu ordered the
registration of a Criminal Case and for initiation of investigation and
submission of report. Based on the said order, separate FIRs were
registered. The accused approached the High Court seeking to quash the
proceedings on the ground that, in view of the bar under Section 22 of the
MMDR, the order passed by the learned Magistrate directing the
registration of the FIR is liable to be quashed. The issue raised before the
Apex Court essentially was whether compounding of offences under the
Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act)
precludes the State from initiating separate criminal proceedings under the
Indian Penal Code. The incidental question that came up for consideration
is the following.
(i) Whether in case of illegal mining/transportation of minor
minerals, after compounding of offence, issuance of direction by
the Magistrate under Section 156(3) CrPC for investigation of the
offences, amounts to taking cognizance and whether the same is
hit by Sections 22 and 23-A of the MMDR Act, as well as Rule 53
of the 1996 Rules, and whether it impinges/affects the powers of
the authorised person to compound the offence under Rule 18 of
the 2006 Rules?
15. The Apex Court considered the question as to when and at
what stage the Magistrate can be said to have taken cognizance, attracting
the bar under Section 22 of the MMDR Act. The Apex Court considered
Section 22 of the MMDR Act and also noted the principles of law laid down
in Krishna Pillai v. T.A. Rajendran20, Manohar M. Galani v. Ashok
N. Advani21, S.K Sinha, Chief Enforcement Officer v. VIDEOCON
International Ltd.22, Legal Remembrancer, West Bengal (supra),
R.R Chari (supra), Nirmaljit Singh Hoon (supra), Devarapalli
Lakshminarayana Reddy (supra), and Subramanian Swamy (supra).
Finally, reliance was placed on paragraphs Nos. 12 to 15 in Anil Kumar
(supra) and it was held that when a Special Judge refers a complaint for
investigation under Section 156(3) of the Cr.P.C, obviously, he has not
taken cognizance of the offence and, therefore, it is a pre-cognizance stage
and cannot be equated with post-cognizance stage.
16. It appears that this observation in Jayant (supra) is what
[1989 SCC OnLine 423]
[(1999) 8 SCC 737]
[(2008) 2 SCC 492]
has persuaded the learned Single Judge who passed the order of referral
to hold that the Apex Court has clarified what has been said in Anil
Kumar (supra) and hence the Courts are bound to follow the principles in
Jayant (supra) and not Anil Kumar (supra) insofar as sanction under
Section 19 of the PC Act as a pre-requisite for passing a direction for
investigation under Section 156(3) of the Cr.P.C stage is concerned. It
needs to be borne in mind at this juncture that the "ratio decidendi" in Anil
Kumar (supra) as a binding precedent is that the Magistrate cannot order
an investigation against a public servant while invoking powers under
Section 156(3) of the Cr.P.C without a valid sanction order. Furthermore,
before the Bench that decided Jayant (supra), the fact that in Manju
Surana (supra), a coequal Bench had posed pertinent questions with
regard to the interplay between Section 19 of the PC Act and Section
156(3) of the Code and had referred the matter to a Larger Bench to
resolve the controversy was not brought to the notice. It needs to be
mentioned that in Anil Kumar (supra), L. Narayana Swamy (supra)
and Manju Surana (supra), the question of sanction under Section 19 of
the PC Act was the issue that had come up for consideration whereas, in
Jayant (supra), the question that had come up for consideration was a
prosecution under the MMDR Act.
17. In B. Shama Rao v. Union Territory of Pondicherry23, it
[AIR 1967 SC 1480]
was observed that a decision is binding not because of its conclusions but
in regard to its ratio and the principles laid down therein.
18. Now we shall come to Section 17A of the PC Act, which
reads as under:
"17A. (1) 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.
19. The words 'inquiry', 'enquiry', and 'investigation' have been
used in Section 17A.
20. To understand the scope of inquiry, one only needs to take
note of the directions Lalita Kumari v. Government of U.P.24 wherein
directions were issued to conduct a preliminary inquiry prior to registration
of the offence. It would be apposite to refer to the directions in paragraph
No. 120 of the judgment:
120. In view of the aforesaid discussion, we hold:
120.1 The registration of FIR is mandatory under Section 154 of
the Code, if the information discloses commission of a cognizable
offence and no preliminary inquiry is permissible in such a
situation.
120.2 If the information received does not disclose a cognizable
offence but indicates the necessity for an inquiry, a preliminary
inquiry may be conducted only to ascertain whether cognizable
offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable
offence, the FIR must be registered. In cases where preliminary
inquiry ends in closing the complaint, a copy of the entry of such
closure must be supplied to the first informant forthwith and not
[(2014) 2 SCC 1]
later than one week. It must disclose reasons in brief for closing
the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering an
offence if cognizable offence is disclosed. Action must be taken
against erring officers who do not register the FIR if information
received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases preliminary inquiry is to
be conducted will depend on the facts and circumstances of each
case. The category of cases in which preliminary inquiry may be
made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months' delay in
reporting the matter without satisfactorily explaining the
reasons for delay. (emphasis supplied)
21. Insofar as "inquiry" is concerned, the same has been defined
in the Code of Criminal Procedure as Section 2(g) which reads as under:
2(g) "inquiry" means every inquiry, other than a trial,
conducted under this Code by a Magistrate or Court;
22. "Investigation" has been defined in the Code under Section
2(h) as follows:
2(h)- "investigation" includes all the proceedings under
this Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is
authorised by a Magistrate in this behalf;
23. A careful perusal of Section 17A of the PC Act reveals that
the prohibition for making an enquiry or inquiry or investigation is against
the action initiated by the Police Officer and not against the action initiated
by the Court. It is only at the stage when the Police Officer embarks upon
preliminary enquiry to assess whether the first information alleges the
commission of an offence, 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, that prior approval from
competent authority is required to be obtained as a prerequisite. In the
absence of approval, the Police Officer is statutorily prohibited from
conducting enquiry, inquiry or investigation. This necessarily implies that
without approval u/s. 17A, the Police cannot enquire/inquire/investigate
into any offence of the nature enumerated in Section 17A under the PC
Act. The object of Section 17A of the PC Act is to protect a public servant
from frivolous and malicious prosecution.
24. A Division Bench of the High Court of Madhya Pradesh in
Baini Prasad Chansoriya v. State of M.P.25, lucidly explained the
implication of Section 17A, its aims and object, and its interplay with the
principles of law laid down in Anil Kumar (supra). The observations made
therein are pertinent and the same reads as under:
9. The decision in Anil Kumar (supra) does not lay down
the law in respect of Section 17-A of PC Act. Pertinently, the
pre-amended PC Act extended protection of sanction to public
servants only once i. e. at the stage of taking cognizance of the
offence by trial Court but not at pre-cognizance stage. However,
the protection of sanction at the pre-cognizance stage was made
available by means of purposive interpretation by the judicial
verdict in Anil Kumar (supra). Insertion of Section 17-A in PC Act
w.e.f. 26.07.2018, protection at the pre-cognizance stage became
statutorily available. Therefore, to ascertain the extent and
sweep of the protection and prohibition prescribed at
pre-cognizance stage by Section 17-A, the words and phrases
employed therein will alone have to be looked into.
9.1 On coming into effect of Section 17-A from
26.07.2018, the statutory prohibition became operational but only
against the police to conduct any enquiry/inquiry/investigation
into any offence of the nature contemplated by Sec. 17-A, unless
approval for doing so is obtained from authority competent to
remove the accused.
9.2 Thus, the textual interpretation of Section 17A reveals
in clear terms that the statutory bar to conduct
enquiry/inquiry/investigation, without approval, is against Police
Officer but not against the Court.
9.3 It is thus clear that neither enquiry (informal enquiry
2022 SCC OnLine MP 5991
as contemplated in para 120 (ii), (v), (vi) & (vii) of Apex Court's
decision in Lalita Kumari v. Govt. of U.P. (supra) nor inquiry
(formal inquiry as defined in Sec. 2(g) of Cr. P.C.) nor
investigation can be conducted by Police Officer in the absence of
grant of approval by the competent authority. Therefore, on
receipt of complaint, containing allegation of commission of
offence under PC Act arising from allegation of "recommendation
made" or "decision taken" by a public servant, a Police Officer is
statutorily prohibited from conducting
enquiry/Inquiry/investigation unless approval is obtained from
competent authority u/S. 17-A.
9.4 Importantly the statutory prohibition u/S 17-A against
the Police Officer does not restrict the Special Court from
entering into the realm of enquiry/inquiry which may be
necessary prior to registration of offence even in the absence of
approval from competent authority u/S 17-A.
9.5 However, the extent of enquiry/inquiry which a
Special Court can conduct in the absence of approval is merely to
achieve the object of ascertaining whether contents of Section
156(3) application prima facie reveal commission of offence of
the nature contemplated u/S 17-A and punishable under PC Act
or not.
9.6 If the Special Court finds that 156(3) application
reveals commission of offence of nature contemplated by Section
17-A of PC Act, then before the next step of directing police to
submit report or to register offence or to conduct enquiry can be
given, approval as sine qua non ought to be obtained from
competent authority u/S 17-A.
9.7 Responsibility of obtaining approval from the
competent authority u/S. 17-A lies on the shoulders of the
complainant who prefers the application 156(3) Cr. P.C.
9.8 However, in view of 2nd proviso to Section 17-A, if the
approval is not granted by the competent authority within three
months extendable by one month, the complainant is not left
remediless. The complainant can very well approach the superior
court for seeking appropriate writ/direction.
10. The aforesaid steps taken by Special Court on an
application u/S 156(3)Cr. P.C. alleging offences under PC Act
arising from acts of recommendation made or decision taken will
not run contrary to the decision of Apex Court in Anil Kumar
(supra). .........
25. Now we shall endeavour to answer the questions posed by
the learned Single Judge.
26. We have heard Sri. Sooraj Thomas, the learned counsel
appearing for the petitioner, Sri. A. Rajesh, the learned Special Government
Pleader (Vigilance), and Smt. S. Rekha, the learned Senior Government
Pleader appearing for the respondents.
27. The first question is whether in the light of the observations
in Jayant (supra) that an order directing investigation will not be
tantamount to taking cognizance, it is possible to construe sanction under
Section 19 of the PC Act as a pre-requisite for passing a direction for
investigation under Section 156(3) of the Cr.P.C.
28. It appears that the learned Single Judge was of the view
that the binding precedents in Anil Kumar and L. Narayana Swami
(supra) do not lay down the correct position in view of the observations in
Jayant (supra).
29. In Sumatibai v. Paras Finance Co. Regd. Partnership
Firm Beawer (Raj)26, the Apex Court has observed that the ratio of any
decision must be understood in the background of the facts of that
particular case. After referring to previous precedents, it was observed as
under:
11. In Ambica Quarry Works v. State of Gujarat [(1987) 1
SCC 213] vide para 18 this Court observed : (SCC p. 221)
"18. ... The ratio of any decision must be
understood in the background of the facts of that
case. It has been said long time ago that a case is
only an authority for what it actually decides, and not
what logically follows from it."
12. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd.
[(2003) 2 SCC 111] vide para 59 this Court observed : (SCC p.
130)
"59. ... It is also well settled that a little difference in
facts or additional facts may make a lot of difference
in the precedential value of a decision."
13. As held in Bharat Petroleum Corpn. Ltd. v. N.R.
Vairamani [(2004) 8 SCC 579] a decision cannot be relied on
without disclosing the factual situation. In the same judgment
this Court also observed : (SCC pp. 584-85, paras 9-12)
"9. Courts should not place reliance on decisions
without discussing as to how the factual situation fits
[(2007) 10 SCC 82]
in with the fact situation of the decision on which
reliance is placed. Observations of courts are neither
to be read as Euclid's theorems nor as provisions of a
statute and that too taken out of their context. These
observations must be read in the context in which
they appear to have been stated. Judgments of courts
are not to be construed as statutes. To interpret
words, phrases and provisions of a statute, it may
become necessary for judges to embark into lengthy
discussions but the discussion is meant to explain and
not to define. Judges interpret statutes, they do not
interpret judgments. They interpret words of statutes;
their words are not to be interpreted as statutes. In
London Graving Dock Co. Ltd. v. Horton [1951 AC 737
(HL)] (AC at p. 761) Lord MacDermott observed : (All
ER p. 14 C-D)
30. In Haryana Financial Corpn. v. Jagdamba Oil Mills27,
the Apex Court cautioned the Courts that the judgments of Courts cannot
be considered as statutes and the factual situation will have to be assessed
before applying the legal principles.
19. Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. Observations
of courts are not to be read as Euclid's theorems nor as provisions
of the statute. These observations must be read in the context in
which they appear. Judgments of courts are not to be construed
as statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for Judges to embark upon
lengthy discussions but the discussion is meant to explain and not
[(2002) 3 SCC 496]
to define. Judges interpret statutes, they do not interpret
judgments. They interpret words of statutes, their words are not
to be interpreted as statutes. In London Graving Dock Co. Ltd. v.
Horton [1951 AC 737 ) Lord MacDermot observed :
"The matter cannot, of course, be settled merely
by treating the ipsissima verba of Willes, J., as though
they were part of an Act of Parliament and applying the
rules of interpretation appropriate thereto. This is not to
detract from the great weight to be given to the
language actually used by that most distinguished
Judge."
20. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER
294 ] Lord Reid said, "Lord Atkin's speech ... is not to be treated
as if it were a statutory definition. It will require qualification in
new circumstances". Megarry, J. in (1971) 1 WLR 1062 observed:
"One must not, of course, construe even a reserved judgment of
even Russell, L.J. as if it were an Act of Parliament." And, in
Herrington v. British Railways Board [(1972) 2 WLR 537 [sub nom
British Railway Board v. Herrington, (1972) 1 All ER 749 (HL)]]
Lord Morris said : (All ER p. 761c)
"There is always peril in treating the words of a
speech or a judgment as though they were words in a
legislative enactment, and it is to be remembered that
judicial utterances are made in the setting of the facts
of a particular case."
21. Circumstantial flexibility, one additional or different fact
may make a world of difference between conclusions in two cases.
Disposal of cases by blindly placing reliance on a decision is not
proper.
22. The following words of Hidayatullah, J. in the matter of
applying precedents have become locus classicus : (Abdul Kayoom
v. CIT [AIR 1962 SC 680], AIR p. 688, para 19)
"19. ... Each case depends on its own facts and
a close similarity between one case and another is not
enough because even a single significant detail may
alter the entire aspect. In deciding such cases, one
should avoid the temptation to decide cases (as said by
Cardozo) by matching the colour of one case against
the colour of another. To decide, therefore, on which
side of the line a case falls, the broad resemblance to
another case is not at all decisive."
* * *
"Precedent should be followed only so far as it
marks the path of justice, but you must cut the dead
wood and trim off the side branches else you will find
yourself lost in thickets and branches. My plea is to
keep the path to justice clear of obstructions which
could impede it."
31. In Central Board of Dawoodi Bohra Community v.
State of Maharashtra28, a Five Judge Bench of the Apex Court while
interpreting the Doctrine of Stare Decisis and the Binding effect of the Law
laid down by the Apex Court laid down the following principles in
paragraph No. 12 of the judgment.
12. Having carefully considered the submissions made by
the learned Senior Counsel for the parties and having examined
the law laid down by the Constitution Benches in the above said
decisions, we would like to sum up the legal position in the
following terms:
(2005) 2 SCC 673
(1) The law laid down by this Court in a decision
delivered by a Bench of larger strength is binding on any
subsequent Bench of lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree or
dissent from the view of the law taken by a Bench of larger
quorum. In case of doubt all that the Bench of lesser
quorum can do is to invite the attention of the Chief Justice
and request for the matter being placed for hearing before
a Bench of larger quorum than the Bench whose decision
has come up for consideration. It will be open only for a
Bench of coequal strength to express an opinion doubting
the correctness of the view taken by the earlier Bench of
coequal strength, whereupon the matter may be placed for
hearing before a Bench consisting of a quorum larger than
the one which pronounced the decision laying down the law
the correctness of which is doubted. (emphasis supplied)
(3) The above rules are subject to two exceptions:
(i) the abovesaid rules do not bind the discretion of the
Chief Justice in whom vests the power of framing the roster
and who can direct any particular matter to be placed for
hearing before any particular Bench of any strength; and
(ii) in spite of the rules laid down hereinabove, if the matter
has already come up for hearing before a Bench of larger
quorum and that Bench itself feels that the view of the law
taken by a Bench of lesser quorum, which view is in doubt,
needs correction or reconsideration then by way of
exception (and not as a rule) and for reasons given by it, it
may proceed to hear the case and examine the correctness
of the previous decision in question dispensing with the
need of a specific reference or the order of the Chief Justice
constituting the Bench and such listing. Such was the
situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli
Devi [(2002) 7 SCC 273].
32. It would be profitable to note that the Apex Court held that
if a Bench of coequal strength expresses an opinion doubting the
correctness of the view taken by the earlier Bench of coequal strength,
whereupon the matter may be placed for hearing before a Bench
consisting of a coram larger than the one which pronounced the decision
laying down the law, the correctness of which is doubted. Following
Central Board of Dawoodi Bohra Community (supra), the Apex Court
in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage
(P) Ltd.29, while considering the question of whether the law laid down by
a Bench of a larger strength is binding on a subsequent Bench of lesser or
equal strength, it was held that a coequal bench cannot ignore an earlier
binding precedent.
33. In State of Kerala v. Kunhikkamma30, a Full Bench of
this Court took note of the observations in Sandeep Kumar Bafna v.
State of Maharashtra31, National Insurance Co. Ltd. V. Pranay
Sethi32, observed that a decision or a judgment would be per incurium if it
is not possible to reconcile its ratio with that of a previously pronounced
[(2015) 16 SCC 20]
[(2024) 3 KHC 24]
[(2014) 16 SCC 623]
[(2017) 16 SCC 680]
judgment of a coequal or a Larger Bench. The observations in Paragraph
No. 20 of the judgment are relevant.
20. In Sandeep Kumar Bafna v. State of Maharashtra (2014
(16) SCC 623) the Apex court held that a decision or a judgment
would be per incuriam if it is not possible to reconcile its ratio with
that of a previously pronounced judgment of a co - equal or a
larger Bench. A Constitution Bench of the Hon'ble Supreme Court
in National Insurance Company Ltd. v. Pranay Sethi (2017 (16)
SCC 680) held that a later coordinate bench holding differently
from the earlier one cannot be taken as a binding precedent. A
Bench of coordinate strength is expected to follow the view taken
by an earlier Bench. It was further held that a decision will be per
incuriam when any provision in a statute, rule or regulation was
not brought to the notice of the Court and also if it is not possible
to reconcile its ratio with that of a previously pronounced
judgment of a coequal or larger Bench.
34. In the case on hand, we find that Anil Kumar (supra) was
approved and followed by Narayana Swamy (supra) and the correctness
of the same was considered in Manju Surana (supra). However, in
Manju Surana (supra), the non-consideration of R.R. Chari
(Three-Judge Bench decision) in Anil Kumar (Two-Judge Bench decision)
impelled the Apex Court to doubt the precedential value of Anil Kumar
(supra) before referring the case to Larger Bench. As noted in Manju
Surana (supra), the question was essentially whether in cases of offences
under the PC Act, a different import has to be read qua the power to be
exercised under Section 156(3) of the Cr.P.C and whether on account of
Section 19 of the PC Act, the scope of enquiry under Section 156(3) of the
Cr.P.C. can be said to be one of taking "cognizance" thereby requiring the
prior sanction in case of a public servant. Another question posed was
whether such a purport can be imported into Chapter XII Cr.P.C. while
directing an investigation under Section 156(3) of the Cr.P.C. merely
because a public servant was involved. In Jayant (supra), the issue that
came up for consideration was different and is in respect of a proceeding
under the MMDR Act. We are of the view that since Anil Kumar and
Narayana Swamy (supra), explicitly and directly dealt with Section 19 of
the PC Act and answered the question of whether any direction can be
passed by the Magistrate under Section 156(3) of the Cr.P.C. alleging
offence under PC Act without prior sanction, the said judgment will have to
be followed as a binding precedent in matters concerning the Prevention of
Corruption Act, 1988 and particularly in insisting for sanction under Section
19 prior to referring the matter to the police under Section 156 (3) of the
Code. It also needs to be borne in mind that in Jayant (supra) the Hon'ble
Supreme Court had only followed Anil Kumar (supra) and the
observations made in the said judgment and not doubted the ratio or the
principles laid down therein. Furthermore, the matter is now pending
consideration of a Larger Bench consequent to the referral made in Manju
Surana (supra). We are of the view that Anil Kumar (supra) would still
hold the field as held in Mohammed (supra). The first and second
questions are answered accordingly.
35. As we have already held that the courts are bound to follow
Anil Kumar (supra) until the reference in Manju Surana (supra) is
answered, one way or the other by the Larger Bench, we do not think it
necessary to answer the questions posed as 3 and 4, as it is purely
academic.
The reference is answered accordingly.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
P.V.BALAKRISHNAN,
JUDGE
PS/19/03/25
24-03-2025 /True Copy/ Assistant Registrar
