Kerala High Court
State Of Kerala vs Neyyattinkara P Nagaraj on 21 November, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 21ST DAY OF NOVEMBER 2025 / 30TH KARTHIKA, 1947
CRL.MC NO. 7741 OF 2025
AGAINST THE ORDER IN CRMP NO.1356 OF 2024 OF ENQUIRY
COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM
PETITIONER/ACCUSED:
M.R.AJITH KUMAR, AGED 58 YEARS,
ADDITIONAL DIRECTOR GENERAL OF POLICE POLICE
HEADQUARTERS, VAZHUTHACAUD, PRESENTLY EXCISE
COMMISSIONER EXCISE COMMISSIONERATE
THIRUVANANTHAPURAM, PIN - 695010.
BY ADVS.
SRI.R.ANIL
SRI.B.RAMAN PILLAI (SR.)
SHRI.SUJESH MENON V.B.
SRI.THOMAS SABU VADAKEKUT
SHRI.MAHESH BHANU S.
SHRI.RESSIL LONAN
SHRI.ANANTH KRISHNA K.S.
SHRI.GEORGE VINCI JOSE
RESPONDENTS/STATE AND DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR VACB, HIGH COURT
OF KERALA, ERNAKULAM, PIN - 682031.
2 NEYYATINKARA P NAGARAJ,
AYYAPPA NIVAS, OPPOSITE OF NEYYATINKARA COURT COMPLEX,
NEYYATTINKARA VILLAGE, THIRUVANATHAPURAM, PIN - 695121.
3 P.V ANWAR, S/O P.V SHOUKATHALI RAFI NIVAS,
PERAKAMANNA P.O, MALAPPURAM, PIN - 676541.
(ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 17/09/25
IN CRL.M.A.2/2025 IN CRL.M.C.7741/2025.)
2025:KER:89496
Crl.M.C.Nos.7741/2025 & 8392/2025 2
BY ADVS.
SHRI.M.P.SHAMEEM AHAMED FOR R2
SHRI.MUHAMMED FIRDOUZ A.V. FOR R3
SRI.T.V.SREEJITH FOR R2
SHRI.AHAMED IQBAL FOR R2
SHRI.LIBIN VARGHESE FOR R3
P.NARAYANAN, SPL. P.P. TO DGP
SHRI.SAJJU.S., SENIOR G.P.
DIRECTOR GENERAL OF PROSECUTION SRI T.A SHAJI,
SPECIAL PUBLIC PROSECUTOR SRI RAJESH.A FOR VACB.
SENIOR PUBLIC PROSECUTOR SMT.REKHA.S FOR VACB
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.10.2025, ALONG WITH Crl.MC.8392/2025, THE COURT ON 21.11.2025
PASSED THE FOLLOWING:
2025:KER:89496
Crl.M.C.Nos.7741/2025 & 8392/2025 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 21ST DAY OF NOVEMBER 2025 / 30TH KARTHIKA, 1947
CRL.MC NO. 8392 OF 2025
CRIME NO.VE/08/2024/SIU-I OF THIRUVANANTHAPURAM
AGAINST THE ORDER DATED 14.08.2025 IN CRMP NO.1356 OF 2024 OF
ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE),
THIRUVANANTHAPURAM
PETITIONER/RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE
VIGILANCE AND ANTI CORRUPTION BUREAU (VACB) SPECIAL
INVESTIGATION UNIT -1 POOJAPPURA, THIRUVANANTHAPURAM,
PIN - 695012.
BY ADVS.
DIRECTOR GENERAL OF PROSECUTION SRI T.A.SHAJI
P.NARAYANAN, SPL. G.P. TO DGP
SHRI.SAJJU.S., SENIOR G.P.
SPECIAL PUBLIC PROSECUTOR SRI RAJESH.A FOR VACB.
SENIOR PUBLIC PROSECUTOR SMT.REKHA.S FOR VACB
RESPONDENT/PETITIONER/COMPLAINANT:
NEYYATTINKARA P NAGARAJ
AYYAPPA NIVAS, OPPOSITE TO NEYYATTINKARA COURT COMPLEX,
NEYYATTINKARA VILLAGE, THIRUVANANTHAPURAM,
PIN - 695121.
BY ADVS.
SHRI B.RAMAN PILLA SENIOR COUNSEL
SHRI.M.P.SHAMEEM AHAMED
SHRI.AHAMED IQBAL
SHRI.MUHAMMED ASHIQUE
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.10.2025, ALONG WITH Crl.MC.7741/2025, THE COURT ON 21.11.2025
PASSED THE FOLLOWING:
2025:KER:89496
Crl.M.C.Nos.7741/2025 & 8392/2025 4
"C.R"
A. BADHARUDEEN, J.
================================
Crl.M.C No.7741 of 2025-G
and
Crl.M.C.No.8392 of 2025
================================
Dated this the 21st day of November, 2025
COMMON ORDER
Crl.M.C.No.7741 of 2025-G has been filed under Section 528 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS' for short) by the
petitioner, who is arrayed as the 1 st accused in Crl.M.P.No.1356/2024 on
the files of the Enquiry Commissioner and Special Judge,
Thiruvananthapuram. The 1st respondent is State of Kerala and the 2nd
respondent is the complainant in the above Crl.M.P. Allowing
Crl.M.Appl.No.2/2025, additional 3rd respondent also was impleaded,
since it was found that he had filed complaint and the same resulted in
Annexure 6 and 7 orders therein. The prayer in this petition is to quash
Annexure 5 private complaint (Crl.M.P.No.1356/2024) and Annexure A8
order dated 14.08.2025.
2. Crl.M.C.No.8392/2025 has been filed by the State of
2025:KER:89496
Kerala arraying the complainant in Crl.M.P.No.1356/2024 as the sole
respondent. The prayers in Crl.M.C.No.8392/2025 are as under:
"i. Set side Annexure IV order dated 14.08.2025
to the extent it makes derogatory and disparaging
remarks/observations against the competent authorities in the
Government and also to the extent it orders to proceed with the
complaint without obtaining prosecution sanction u/s.19 of the
PC Act, 1988.
ii. Expunge the disparaging and adverse
remarks or observations made by the Special Court in
paragraphs 77 to 81, 91 to 97 and 106 to 110 of Annexure IV
order against the competent authority in the Government and
constitutional functionaries who were not parties to the
proceedings.
iii. Pass such other order or further relief as this
Hon'ble Court may deem fit and proper in the interest of
justice."
3. I shall refer the parties in these matters as M.R.Ajith
Kumar, the petitioner in Crl.M.C.No.7741/2025, the 2 nd respondent,
Neyyattinkara P.Nagaraj in Crl.M.C.No.7741/2025 as complainant and Sri
P.V.Anwar as the additional 3rd respondent. State of Kerala represented by
VACB will be referred as `prosecution'.
2025:KER:89496
4. Heard the learned Senior Counsel for the accused Sri
B.Raman Pilla appearing for M.R.Ajith Kumar; Sri M.P.Shameem
Ahamed, appearing for Neyyattinkara P.Nagaraj and Advocate Sri
Muhammed Firdouz, appearing for P.V Anwar. Also heard the learned
Director General of Prosecution representing State of Kerala. Perused the
documents.
5. I shall refer the Annexures referred in Crl.M.C.No.7741
of 2025, for discussion.
6. As per Annexure 5 Crl.M.P.No.1356/2024, Sri
Neyyattinkara P.Nagaraj filed complaint before the Vigilance Special
Court, Thiruvananthapuram arraying M.R.Ajith Kumar as the 1 st accused,
one P.Sasi, as the 2nd accused and other accused persons to be revealed
during investigation. The allegation in Annexure A5 is that the accused
persons therein committed offences punishable under Section 7(c) and
Section 13(1)(e) read with 13(2) of the Prevention of Corruption
Amendment Act, 2018 (`PC Act, 2018' for short) w.e.f 26.07.2018 read
with Section 34 of the Indian Penal Code, 1860 (`IPC' for short).
According to Neyyattinkara P.Nagaraj, he is a public spirited citizen and
2025:KER:89496
as a member of the society he used to file public interest litigation before
various forum with a view to raise various genuine grievances of general
public to render justice. He has highlighted certain cases, showing his
intervention in this regard. Coming to the crux of the allegation as
extracted by the complainant, the same reads as under:
"That the 1st Accused while working as a public servant in
the capcity of Deputy Police Superindent (DSP), Police
Superindent(SP), Deputy Inspector General (DIG) of Police, Addl.
Director General of Police (ADGP) Law and order,
Thiruvananthapuram and other Districts in Kerala Police
Department Service during the period 1994-2024 with the intention
of amasing enormous assets by any means and in pursuance there
of, the accused abused his official portions by corrupt and illegal
means performed dishonestly public duty, acquired huge assets
during the said period, purchased 10 cents of landed property (Rs.7
Crores) in his name and 12 cents of property for Rs.8,40,00,000/- in
his benami brother-in-law's name which fetch Rs.70,00,000/- per
cent in posh area near Kowdiar Palace-Golf Links road, comprised
in Peroorkada Village, Thiruvananthapuram city and the Accused is
constructing a 3 storied big mansion having 12000 Square feet
spending crores of rupees in the 10 cents of property plot, the
accused's wife Sreedevi Ajithkumar and 2 children (one son and one
daughter) and brother in law who were having no independent
source of income during the said period of which assets worth
crores of rupees including movable immovable properties is found
2025:KER:89496
and disproportionate to his known source of income for which he
could not satisfactorily account for, in excess of his total income
during the said check period, and amassed wealth in connection
with corrupt and illegal means in solar cheating cases, nexus with
gold smuggling mafia, accepting bribes for avoiding prosecution
etc. the accused could not satisfactorily account for the possession
of the said disproportionate assets, the expenditure and thereby the
accused has committed offences punishable under the above
provisions of law. The offending properties are situated near to the
private helipad of Business Tykoon M.A Yusaf Ali, Managing
Director, Lulu Mall Group of Companies Overseas.. The plots
values are day by day increasing in this area."
He has produced document Nos.1 to 3 along with the complaint.
7. When the complaint was lodged by Sri Neyyattinkara
P.Nagaraj, the prosecution produced Annexure 6 Vigilance enquiry report
dated 06.03.2025 and Annexure 7 enquiry report dated 05/10/2024
submitted by the high level team, before the Special Court. The learned
Special Judge while pursuing the complaint addressed Annexures 6 and 7
reports which were originated prior to filing of Annexure 5 complaint and
raised the following points for determination as extracted in paragraph 47
of Annexure 8 order.
"47. The points for consideration are;
(1) Whether the complainant has the locus standi
2025:KER:89496
to file the complaint alleging an offence under the PC ACT,
1988 (Amended in 2018)?
(2) Whether a private complaint without attaching
a sanction, from the competent authority, alleging offences
punishable under the Prevention of Corruption Act, 1988
(amended Act 2018) by a public servant would be
maintainable before the Special Judge constituted under
the Act to try the offences under the Act?
(3) Whether the report filed by the enquiry officer
has to be accepted or rejected?
(4) If the report is not acceptable, can this court
direct the Director, VACB, to register a case and
investigate the offence punishable under the P.C. Act, 1988
(amended in 2018)?
(5) Whether the complaint allegations, the
documents he produced, the materials collected by the
enquiry officer, and produced before the court, would show
a prima facie case to proceed further with the complaint?
(6) If the fourth option is not available, can this
court proceed with the complaint following the procedure
of Sec 223 of BNSS, 2023?"
8. Thereafter the learned Special Judge vehemently
discussed regarding the allegations in the complaint and the findings in
Annexures 6 and 7, and finally passed the following order:
2025:KER:89496
"(1) The complainant has the locus standi to file the
complaint alleging an offence under the PC ACT,
1988(Amended in 2018) against the respondents.
(2) A private complaint without attaching a sanction,
from the competent authority, alleging offences punishable
under the Prevention of Corruption Act, 1988 (amended Act
2018) by a public servant would be maintainable before the
Special Judge constituted under the Act to try the offences
under the Act, 1988.
(3) The inquiry report is not acceptable and is
rejected.
(4) This court does not have the power to direct the
Director, VACB, to register a case and investigate the offence
punishable under the P.C. Act, 1988 (amended in 2018).
(5) The complaint allegations, the documents he
produced, the materials collected by the enquiry officer, and
produced before the court, would show a prima facie case.
6) There are sufficient materials to proceed further
following the procedure of Section 223 of BNSS, 2023."
9. While canvassing quashment of Annexure 5 complaint as well as
Annexure 8 order, the learned Senior Counsel Sri B.Raman Pilla pointed
out that in this matter before filing of Annexure 5 complaint, as per
Annexure 1 dated 01.09.2024 Sri M.R.Ajith Kumar addressed the Chief
2025:KER:89496
Minister of Kerala requesting to address the allegation raised against him
by P.V.Anwar (former member of the Kerala Legislative Assembly)
complaining that the allegations are baseless. Similarly, as per Annexure 2
petition dated 01.09.2004 Sri M.R.Ajith Kumar addressed the then D.G.P
and State Police Chief, seeking the same relief. Accordingly, Annexure 3
G.O.(Rt) No.3911/2024/GAD dated 03.09.2024 was issued by the
Additional Secretary, Government of Kerala constituting a high level
committee to conduct an enquiry regarding the allegations in the complaint
raised by Sri P.V.Anwar. As on 19.01.2024 as per Annexure 4 G.O(Rt)
No. 147/2024/VIG dated 19.09.2024, on finding that the allegations were
having vigilance angle, a detailed enquiry by the VACB was
recommended. According to the learned Senior Counsel, as the outcome
of the same, Annexures 6 and 7 reports were filed finding that the entire
allegations raised by Sri P.V.Anwar, pointing out 5 specific allegations,
were baseless. The learned Senior Counsel Sri B.Raman Pillai submitted
further that the petitioner is not a complainant at the time when Annexures
3 and 4 Government Orders were issued though in this regard Advocate
M.P.Shameem Ahamed submitted that Neyyattikara P.Nagaraj also lodged
2025:KER:89496
a complaint on 28.09.2024. Evidently Annexures 3 and 4 Government
Orders were issued to enquire into the allegations of Sri P.V.Anwar. Even
though Annexures 6 and 7 reports were filed on the basis of an enquiry
conducted in terms of Annexures 3 and 4 Government Orders, no
challenge was raised by Sri P.V.Anwar against the said reports. In this
connection, Sri Muhammed Firdouz A.V, the learned counsel for Sri
P.V.Anwar submitted that, in fact, Sri P.V.Anwar came to know about
filing of the reports just before filing of Crl.M.C No.7741/2025 by Sri
M.R.Ajith Kumar and thereby he did not obtain an opportunity to
challenge the same before this Court. It is also pointed out that he has
serious objection to the reports which gave clean chit to M.R.Ajith Kumar,
without support of any materials, and it is at this juncture he has been
forced to get himself impleaded as additional 3rd respondent in this matter.
10. Sri B.Raman Pilla, the learned Senior Counsel has taken attention
of this Court to Annexure 9, enqiry proceedings initiated as well as
Annexures 10 to 18, to impeach the credibility of Sri P.V.Anwar. I am not
inclined to give much emphasis to those documents as the same have no
much significance.
2025:KER:89496
11. The point argued by Sri B.Raman Pilla is that when a
private complaint is lodged before a Special Court, the Special Court must
insist for production of sanction under Section 19 of the PC Act, 2018,
either to forward the same to police for investigation or to proceed under
Section 223 of BNSS. He also argued that as far as Annexures 6 and 7
reports are concerned, either of the same were not originated at the
instance of the complainant or the same were not filed before the Special
Court with a prayer either to accept or reject the same. Therefore, the
Special Court while dealing with a private complaint, doesn't have any
authority to address on the illegality of Annexures 6 and 7 reports to hold
that the same are either acceptable or the same are liable to be rejected.
Therefore, for the said reason, the findings entered into by the Special
Court, as to Annexures 6 and 7 are without jurisdiction and the said
finding is liable to be set aside. It is pointed out by the learned Senior
Counsel further that, in this matter, by addressing the complaint as well as
Annexures 6 and 7 reports, the learned Special Judge decided to proceed
under Section 223 of BNSS as well as the subsequent provisions, thereby
the Special Court took cognizance of the matter without the sanction under
2025:KER:89496
Section 19 of the PC Act, 2018. Therefore, Annexure 8 order is illegal.
He also justified Annexures 6 and 7 reports to contend that the complaint
as such is liable to be quashed. In this connection, the learned Senior
Counsel pointed out grounds D, E, F, G H and I in special. The same are
as under:
"D. In Anil Kumar V. M.K.Aiyappa reported in
(2013)10 SCC 705 the Hon'ble Supreme Court considering the
correctness of the view of the High Court of Karnataka that the
special judge could not have taken notice of the private complaint
unless the same was accompanied by a sanction order,
irrespective of whether the court was acting at a pre-cognizance
stage or the post cognizance stage, if the complaint pertains to a
public servant and the order of the High court quashing the
complaint and the order of the Special Judge (para 5 of the
judgment). The Hon'ble Supreme Court dismissed the challenge
against the above order of High Court and interalia held that The
judgments refereed to hereinabove clearly indicate that the word
"cognizance" has wider connotation and is not merely confined to
the stage of taking cognizance of the offence (para 15). The
Hon'ble Supreme Court concluded that "once it is noticed that
there was no previous sanction, as already indicated in various
judgments referred hereinabove, the Magistrate cannot order
investigation against a public servant while invoking powers
under section 156(3) Cr.P.C." ( para 21).
E. In L Narayanaswamy Vs. State of Karnataka and
2025:KER:89496
others reported in (2016)9 SCC 598 one of the questions of law
framed by the Hon'ble Supreme Court was
"10.1 (i) Whether an order directing further
investigation under section 156(3) Cr PC can be
passed in relation to public servant in the absence of
valid sanction and contrary to the judgments of this
Court in Anil Kumar V. M.K.Aiyappa and
Manharibhai Muljibhai Kakadia V. Shaileshbhai
Mohanbhai Patel?"
After quoting with approval the dictum laid down in the above
decisions the Hon'ble Supreme Court held that " Having regard
to the ratio of the aforesaid judgment, 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".
F. The dictum laid down in Anil Kumar V.
M.K.Aiyappa (2013)10 SCC 705 and Narayanaswamy Vs. State
of Karnataka (2016)9 SCC 598 was considered by another bench
of Hon'ble Supreme Court in Manju Surana vs. Sunil Arora
reported in (2018)5 SCC 557 and it was held as follows:
"33. The catena of judgments on the issue
as to the scope and power of direction by a
Magistrate under Chapter 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 taking
"cognizance" thereby requiring the prior sanction in
case of 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 be an answer".
2025:KER:89496
After holding so the Hon'ble Supreme Court opined that the "
The complete controversy referred aforesaid and the conundrum
arising in respect of interplay of the PC Act offences read with
CrPC is thus required to be settled by a larger bench"( para 35)
and the matter was directed to be placed before Hon'ble the
Chief Justice of India for being placed before a bench of
appropriate Strength. The above judgment show the bench
wanted to resolve the controversy regarding the directions by
special courts to proceed under chapter 12 of CrPC and there
was no doubt regarding proceeding under Chapter 14 or 15 of
CrPC. The fact that the controversy was referred to a larger
bench only in relation to Chapter 12 shows that law is settled
regarding proceedings under other chapters, such as Chapter 14
or 15. Specifically, it is clear that sanction is a prerequisite to
proceed under those chapters. It may be noted that the impugned
judgment relates to exercise of power by the Special Judge under
Chapter XVI of BNSS which corresponds to Chapter XV of
CrPC. It is pertinent to note that the question referred is not yet
decided and it is still pending consideration of the larger bench.
G. On two occasions, one occasion in December 2018
and recently in March 2025, two different Division Benches of
the Hon'ble High Court of Kerala had occasion to decide the
method to be adopted by the Special Courts till a decision is
taken by the larger bench of Hon'ble Supreme Court. The law
was clearly and categorically declared by the division bench on
both occasions in Muhammed V.A. and others V. State of
Kerala and others reported in 2019(1)KHC 239 and
A.K.Sreekumar V. State of Kerala that the dictum laid down in
Anil Kumar V. M.K.Aiyappa (2013)10 SCC has to be followed
till a final decision is taken by the Supreme Court. In this context
it may be noted that one of the questions referred to the division
bench which decided A.K.Sreekumar V. State of Kerala was
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
2025:KER:89496
stage of the investigation as different from the stage
cognizance for the purpose of the P.C. Act.
The Division while answering the above reference held that the
courts are bound to follow Anil Kumar until the reference in
Manju Surana is answered and opined that it is necessary to
answer the other questions as the same are purely academic.
H. The opening phrase in Section 223 of BNSS " A
magistrate having jurisdiction while taking cognisance of an
offence ..." leaves no doubt that the section applies to stage of
taking cognizance. The phrase " while taking cognizance" in the
section indicates that the particular section is applicable only
during the process of taking cognizance, not at any other stage.
The fact being so the finding in the impugned order that " there
are sufficient materials to proceed further following the
procedure of section 223 of BNSS,2023" is legally erroneous and
unsustainable without sanction from the competent authority.
I. It is most respectfully submitted that any Court which
is considering a complaint can indeed deal with a complaint
either in a pre-cognizance stage or post-cognizance stage and in
the light of the above clear judicial pronouncements when the
complaint is against the public servant the law is clear that
sanction is prerequisite to proceed regardless of the stage. In any
view of the matter the impugned order is legally unsustainable
whether considered as one passed in the pre-cognizance stage or
post-cognizance stage."
12. Thus the arguments at the instance of the learned Senior
Counsel appearing for Sri M.R.Ajith Kumar is that the Apex Court in Anil
Kumar v. M.K.Aiyappa (supra) considered the finding of the High Court
by quashing the order passed by the Special Judge after holding that the
Special Judge could not have taken notice of a private complaint against a
public servant unless the same was accompanied by a sanction order under
Section 19(1) of the PC Act, 1988, irrespective of whether the court was
2025:KER:89496
acting at a pre cognizance stage or at the post cognizance stage. While
addressing correctness of the said order, the Apex Court held in paragraph
Nos.11 and 15 that where jurisdiction is exercised on a complaint filed in
terms of Section 156(3) or Section 200 Cr.P.C, the Magistrate is required
to apply his mind, and in such a case, the Special Judge/Magistrate cannot
refer the matter under Section 156(3) Cr.P.C for investigation against a
public servant without a valid sanction order under Section 19(1) of the
PC Act, 1988. Further it was held that the above word `cognizance' has a
wider connotation and is not merely confined to the stage of taking
cognizance of the offence. When a Special Judge under the Prevention of
Corruption Act, 1988 refers a complaint for investigation under Section
156(3) Cr.P.C, obviously, he has not taken cognizance of the offence and,
therefore, it is a pre-cognizance stage and cannot be equated with post-
cognizance stage. It was held further that when a Special Judge takes
cognizance of the offence on a complaint presented under Section 200
Cr.P.C, the next step to be taken is to follow up under Section 202 Cr.P.C.
Therefore, the contention of the learned Senior Counsel appearing for
M.R.Ajith Kumar is that the decision to proceed under Section 200 Cr.P.C
2025:KER:89496
or under Section 223 of BNSS is akin to taking cognizance. Apart from
that the learned Senior Counsel raised a contention that either to forward a
complaint filed before a Special Judge under the PC Act for investigation
under Section 156(3) Cr.P.C or under Section 175(3) BNSS, sanction
under Section 19(1) is mandatory. For the same reasons, when the Special
Judge applied his mind to proceed further even if it is held as pre-
cognizance stage, for which also sanction under Section 19(1) is
mandatory and, therefore, Annexure 8 order is illegal.
13. Advocate M.P.Shameem Ahamed, who appears for Sri
Neyyattinkara P.Nagaraj repelled the contentions at the instance of the
learned Senior Counsel appearing for M.R.Ajith Kumar on multiple
grounds. According to Advocate M.P.Shameem Ahamed, after issuance of
Annexures 3 and 4 orders, as on 28.09.2024, Sri Neyyattinkara P.Nagaraj
also filed a complaint raising serious allegations against Sri M.R.Ajith
Kumar. According to him, as per Annexure 6 report, subordinate officers
of Sri M.R.Ajith Kumar carried out enquiry in a biased manner on the
allegations and collected materials to support the contentions raised by Sri
M.R.Ajith Kumar by ignoring the materials which would fasten crimial
2025:KER:89496
culpability on him. According to Advocate M.P.Shameem Ahamed, the
reports have no impact on the private complaint Annexure 5 filed by Sri
Neyyattinkara P.Nagaraj and when such a complaint had been filed, a duty
is cast upon the Special Judge either to forward the same to the police for
investigation or to proceed under Section 223 of BNSS.
14. Advocate M.P.Shameem Ahamed also submitted that in this
case, the Special Court rightly relied on the decisions reported in [2018
KHC 6224 : 2018 (2) KLT 315 : 2018 (5) SCC 557], Manju v. Sunil
Arora and others; [2013 KHC 4790 : 2013 (4) KLT 125, 2013 (10) SCC
705], Anil Kumar and Others v. M.K.Ayyappa and Another, and found
that the complaint could not be forwarded for investigation without
sanction.
15. At this juncture, the learned Special Judge addressed the
complaint with a view to proceed further under Section 223 of BNSS.
According to Advocate M.P.Shameem Ahamed, Annexures 6 and 7
reports, in fact, were produced by the Legal Advisor for the Vigilance &
Anti Corruption Bureau to negate the sustainability of the allegations in
Annexure 5 complaint and thereby the Special Court was inclined to
2025:KER:89496
address the same in order to see as to whether the reports were acceptable
or not and finally found that the same were not acceptable for the reasons
detailed in the impugned order. The specific point argued by Advocate
M.P.Shameem Ahamed is that the argument advanced by the learned
Senior Counsel for the petitioner that, by the impugned order the Special
Judge took cognizance of the offences as per Annexure 5 complaint is
erroneous and according to him the Special Court didn't take cognizance of
the offences and the complaint is at the pre-cognizance stage till the
Special Court decides after examination of witnesses and documents to
summon the accused. Placing a decision of the Apex Court reported in
[MANU/SC/1017/2025], Kallu Nat v. State of U.P and Ors., the specific
point raised by the learned Advocate M.P.Shameem Ahamed is that, for
the purpose of taking cognizance of an offence on the basis of a complaint
received under Section 190(1)(a) of the Cr.P.C or under Section 210(1)(a)
of BNSS, a Magistrate is required to examine upon oath, the complainant
and any witnesses, and reduce in writing the substance of their
examination. This inquiry which is conducted by the Magistrate/Special
Judge under Section 200 of Cr.P.C or under Section 223 of BNSS, cannot
2025:KER:89496
always mean, that cognizance of the offence alleged in the complaint has
been taken by it, as the Magistrate is still empowered to take recourse to
Section(s) 201 to 203 of Cr.P.C or under Sections 224 to 226 of BNSS,
whereby he may simply bring the inquiry before it to and end, without an
intention of proceeding further in terms of the Cr.P.C or BNSS. According
to him, in the instant case, since the learned Special Judge, by the
impugned order, only decided to proceed under Section 223 of BNSS and
not reached the subsequent stages, it is not correct to say that the learned
Special Judge took cognizance of the matter without obtaining sanction
under Section 19(1) of the PC Act, 2018. According to the learned
Advocate M.P.Shameem Ahamed, in order to say that the Special Court
took cognizance of the case, it is necessary for the court to go further by
examining upon oath the complainant and the witnesses present and the
decision taken thereafter is the stage when one could say that the Special
Court took cognizance of the offences. Apart from Kallu Nat v. State of
U.P and Ors.'s case (supra), the learned Advocate M.P.Shameem Ahamed
placed another decison of the Apex Court reported in [2025 Supreme (SC)
660 : 2025 KLT (OnLine) 1789 : 2025 LiveLaw(SC) 450],
2025:KER:89496
B.S.Yeddiyurappa v. A Alam Pasha & Ors., where the Apex Court
considered a question as under:
"In case of a private complaint, whether Section 19
of the PC Act, more particularly parts (i) and (ii) of the First
Proviso therein contemplates that sanction would be required
only after the Magistrate first completes the stage of
examining the complainant and/or causing a magisterial
inquiry wherever necessary in terms of Section(s) 200 and
202 of the Cr.P.C respectively? In other words, whether the
three conditions envisaged under the First Proviso namely
that a complaint has been filed as per Part (i) and that the
court has not only not dismissed such complaint but also
explicitly directed the obtainment of sanction as per Part (ii),
necessarily implies that it is open for the Magistrate to
proceed in terms of Chapter XV more particularly under
Section(s) 200, 202 and 203 even without the grant of
sanction under Section 19 of the PC Act? If so, whether such
an interpretation is limited only for the purpose of
"cognizance" under Section 19 of the PC Act?"
16. In paragraph 21, the Apex Court held as under:
"We are of the considered view that scanning of the provisions
under Sections 156(3), 173(2), 190, 200, 202, 203 and 204 of the Cr.P.C
would, prima facie, reveal that while directing for an investigation and
forwarding the complaint therefor, the Magistrate is not actually taking
2025:KER:89496
cognizance. However, since the said question is referred as per the
above judgment, judicial discipline and propriety dissuade us from
proceeding further with the case and hence, we order to tag the
camptioned matters also along with the matter(s) already referred.
Ordered accordingly.
The judgment in Manju Surana (supra) would reveal that the
matters were referred to larger Bench on 27.03.2018. Considering the
fact that question involved is a matter of relevance and such issues arise
frequently for consideration before Courts, we are of the considered view
that an earlier decision on the question referred is solicited.
Registry is directed to place these matters before the Hon'ble
the Chief Justice of India for appropriate orders."
17. Another decision of the Apex Court reported in
[MANU/SC/0703/2015 : (2015) 9 SCC 609], S.R.Sukumar v. S.Sunaad
Raghuram, also has been placed by the learned Advocate M.P.Shameem
Ahamed, the learned counsel for Neyyattinkara P.Nagaraj, to contend that
even after examination of the witness or witnesses, as provided under
Section 223 of BNSS, no cognizance is said to be taken. He has placed the
decision of this Court reported in [2025(1) KHC 596 : 2025(1) KLT 811]
Suby Antony v Susha; for which also much relevance was placed by the
learned Special Judge in Annexure 8.
18. The learned counsel appearing for Sri P.V. Anwar
2025:KER:89496
elaborated on the allegations raised in the complaint filed by Sri P.V.
Anwar and submitted that no effective enquiry or investigation was
conducted as regards to the specific allegations. It is pointed out that a
subordinate officer under the control of Sri M.R. Ajithkumar had collected
materials to justify him, which resulted in Annexure 6 report. According
to the learned Senior Counsel for the petitioner, the petitioner has the
freedom to challenge Annexures 6 and 7 independently and without
prejudice to the same, he has been contesting this matter. Otherwise, the
finding of the Special Court rejecting the reports is to be confirmed
permitting the Special Court to go further with Annexure 5 complaint.
19. The crucial question that arises for consideration herein
is as to, when a Magistrate or a Special Judge under the Prevention of
Corruption Act can be said to have taken cognizance of a case in a private
complaint filed under Section 190 Cr.P.C or under Section 210 of the
BNSS before a Magistrate or a Special Judge? In this connection, it is
relevant to refer Section 210 of BNSS and corresponding Section 190 of
Cr.P.C, which read as under:
"Section 210 of BNSS :
Cognizance of offences by Magistrate.-(1) Subject to the
2025:KER:89496
provisions of this Chapter, any Magistrate of the first class, and any
Magistrate of the second class specially empowered in this behalf under
sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts, including any complaint
filed by a person authorised under any special law, which constitutes such
offence;
(b) upon a police report (submitted in any mode including
electronic mode) of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence has been
committed
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance under sub-section (1)
of such offences as are within his competence to inquire into or try. "
"Section 190 of Cr.P.C:
"(1) Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of the second
class specially empowered in this behalf under Sub-Section (2),
may take cognizance of any offence--
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person
other than a police officer, or upon his own knowledge, that such
offence has been committed.
(2) The Chief Judicial Magistrate may empower
any Magistrate of the second class to take cognizance under Sub-
Section (1) of such offences as are within his competence to
inquire into or try."
2025:KER:89496
Similarly Section 223 of BNSS and corresponding Section 200 of Cr.P.C
also are relevant. The same are extracted as under:
"Section 223 of BNSS:
Examination of complainant.
(1) A Magistrate having jurisdiction while taking cognizance of
an offence on complaint shall examine upon oath the
complainant and the witnesses present, if any, and the substance
of such examination shall be reduced to writing and shall be
signed by the complainant and the witnesses, and also by the
Magistrate:
Provided that no cognizance of an offence shall be taken by the
Magistrate without giving the accused an opportunity of being
heard:
Provided further that when the complaint is made in writing, the
Magistrate need not examine the complainant and the witnesses
--
(a) if a public servant acting or purporting to act in the
discharge of his official duties or a Court has made the
complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to
another Magistrate under section 212:
Provided also that if the Magistrate makes over the case to
another Magistrate under section 212 after examining the
complainant and the witnesses, the latter Magistrate need not
re-examine them.
(2) A Magistrate shall not take cognizance on a complaint
against a public servant for any offence alleged to have been
committed in course of the discharge of his official functions or
duties unless--
(a) such public servant is given an opportunity to make
assertions as to the situation that led to the incident so alleged;
and
2025:KER:89496
(b) a report containing facts and circumstances of the incident
from the officer superior to such public servant is received."
Section 200 of Cr.P.C
"A Magistrate taking cognizance of an offence on complaint
shall examine upon oath the complainant and the witnesses present, if
any, and the substance of such examination shall be reduced to
writing and shall be signed by the complainant and the witnesses, and
also by the Magistrate;
Provided that, when the complaint is made in writing, the Magistrate
need not examine the complainant and the witnesses,
1. if a public servant acting or purporting to act in the
discharge of his official duties or a Court has made the
complaint; or
2. if the Magistrate makes over the case for inquiry or trial
to another Magistrate under section 192;
Provided further that if the Magistrate makes over the
case to another Magistrate under section 192 after
examining the complainant and the witnesses, the latter
Magistrate need not re-examine them."
20. Section 200 of BNSS provides for the procedure for
Magistrate taking cognizance of an offence on complaint. The Magistrate
is not bound to take cognizance of an offence merely because a complaint
has been filed before him when in fact the complaint does not disclose a
2025:KER:89496
cause of action. The language in Section 200 Cr.P.C "a Magistrate taking
cognizance of an offence on complaint shall examine upon oath the
complainant and the witnesses present, if any..." clearly suggests that
taking cognizance of an offence is the first step, then in continuation of the
same, the Court shall examine the complainant upon oath to decide upon
whether summons to be issued under Section 204 of Cr.P.C or to dismiss
the complaint under Section 203 of Cr.P.C. Similarly the language in
Section 223 of BNSS 'a Magistrate having jurisdiction while taking
cognizance of an offence on complaint shall examine upon oath the
complainant and the witnesses present, if any' also would suggest that
taking cognizance of the offences by applying the mind of the Magistrate
or Special Judge is the first step to proceed with the examination of the
complainant and witnesses. On completion of the examination of the
witnesses, the Magistrate or the Special Judge can either dismiss the
complaint under Section 226 of BNSS or to issue process under Section
227 of BNSS. In this connection, proviso to Section 223 of BNSS also is
relevant. It has been provided that no cognizance of an offence shall be
taken by the Magistrate without giving the accused an opportunity of being
2025:KER:89496
heard. In Suby Antony v. R1 & Ors. (supra), this Court held that the
purpose behind the proviso is to provide an opportunity to the Magistrate
to assimilate the correct facts, for deciding whether or not to take
cognizance of the offence. It was further held that a plain reading of
Section 223(1) would indicate that the accused need be issued with notice
only at the stage of taking cognizance. It was held further that taking
cognizance under Section 223 of BNSS would come after the recording of
the sworn statement, at that juncture, a notice was required to be sent to the
accused, since the proviso would mandate grant of an opportunity of
hearing.
21. It is not in dispute that mere presentation of the
complaint and receipt of the same in the court do not mean that the
Magistrate has taken cognizance of the offence. In Narsingh Das Tapadia
v. Goverdhan Das Partani and Anr. MANU/SC/0555/2000 : AIR 2000
SC 2946, it was held that the mere presentation of a complaint could not
be held to mean that the Magistrate had taken the cognizance. In
Subramanian Swamy v. Manmohan Singh and Anr.
MANU/SC/0067/2012 : (2012) 3 SCC 64, the Apex Court explained the
2025:KER:89496
meaning of the word 'cognizance' holding that "... in legal parlance
cognizance is taking judicial notice by the court of law, possessing
jurisdiction, on a cause or matter presented before it so as to decide
whether there is any basis for initiating proceedings and determination of
the cause or matter judicially".
22. Section 200 of Cr.P.C or Section 223 of BNSS
contemplates a Magistrate taking cognizance of an offence on complaint to
examine the complaint and examine upon oath the complainant and the
witnesses present, if any. Then normally three courses are available to the
Magistrate. The Magistrate can either issue summons to the accused or
order an inquiry under Section 202 of Cr.P.C or under Section 225 of
BNSS or dismiss the complaint under Section 203 of Cr.P.C or under
Section 226 of BNSS. Upon consideration of the statement of complainant
and the material adduced at that stage if the Magistrate is satisfied that
there are sufficient grounds to proceed, he can proceed to issue process
under Section 204 of Cr.P.C or under Section 226 of BNSS. Section 202 of
Cr.P.C or Section 225 of BNSS contemplates 'postponement of issue of
process'. It provides that the Magistrate on receipt of a complaint of an
2025:KER:89496
offence of which he is authorised to take cognizance may, if he thinks fit,
postpones the issue of process for compelling the attendance of the person
complained against, and either inquire into the case himself, or have an
inquiry made by any Magistrate subordinate to him, or an investigation
made by a police officer, or by some other person for the purpose of
deciding whether or not there is sufficient ground for proceeding. If the
Magistrate finds no sufficient ground for proceeding, he can dismiss the
complaint by recording briefly the reasons for doing so, as contemplated
under Section 203 Cr.P.C or under Section 226 of BNSS. A Magistrate
takes cognizance of an offence when he decides to proceed against the
person accused of having committed that offence and not at the time when
the Magistrate is just informed either by complainant by filing the
complaint or by the police report about the commission of an offence.
23. In S.K.Sinha, Chief Enforcement Officer v. Videocon
International Ltd And Ors. MANU/SC/7011/2008 : (2008) 2 SCC 492,
considering the scope of expression "cognizance" it was held that the
expression "cognizance" has not been defined in the Code. But the word
`cognizance' is of indefinite import. It has no esoteric or mystic
2025:KER:89496
significance in criminal law. It merely means "become aware of" and when
used with reference to a court or a Judge, it connotes "to take notice of
judicially". It indicates the point when a court or a Magistrate takes
judicial notice of an offence with a view to initiating proceedings in
respect of such offence said to have been committed by someone.
24. A three Judge Bench of the Apex Court in the case of
R.R. Chari v. State of Uttar Pradesh MANU/SC/0025/1951 : 1951 SCR
312, while considering what the phrase 'taking cognizance' mean,
approved the decision of Calcutta High Court in Superintendent and
Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee
MANU/WB/0167/1950 : AIR 1950 Cal. 437, wherein it was observed
that:
...What is "taking cognizance" has not been defined in
the Code of Criminal Procedure and I have no desire
now 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), Code of Criminal Procedure, 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
2025:KER:89496
in a particular way as indicated in the subsequent
provisions of this Chapter,-proceeding Under Section
200, and thereafter sending it for enquiry 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....
The same view was reiterated by the Apex Court in Jamuna Singh
and Ors. v. Bhadai Sah [MANU/SC/0092/1963 : (1964) 5 SCR 37]
and Nirmaljit Singh Hoon v. State of West Bengal and Anr.
[MANU/SC/0196/1972 : (1973) 3 SCC 753].
25. Elaborating upon the words expression "taking cognizance" of
an offence by a Magistrate within the contemplation of Section 190 of
Cr.P.C, in Devarapally Lakshminarayana Reddy and Ors. v. V.
Narayana Reddy and Ors. MANU/SC/0108/1976 : AIR 1976 SC
1672, the Apex Court held as under:
...But from the scheme of the Code, the content and
2025:KER:89496
marginal heading of Section 190 and the caption of Chapter
XIV under which Sections 190 to 199 occur, it is clear that a
case can be said to be instituted in a court only when the court
takes cognizance of the offence alleged therein. The ways in
which such cognizance can be taken are set out in Clauses (a),
(b) and (c) of Section 190(1). Whether the Magistrate has or
has not taken cognizance of the offence will depend on the
circumstances of the particular case including the mode in
which the case is sought to be instituted, and the nature of the
preliminary action, if any, taken by the Magistrate. Broadly
speaking, when on receiving a complaint, the Magistrate
applies his mind for the purposes of proceeding Under Section
200 and the succeeding sections in Chapter XV to the Code of
1973, he is said to have taken cognizance of the offence within
the meaning to Section 190(1)(a). It, instead of proceeding
under Chapter XV, he has, in the judicial exercise of his
discretion, taken action of some other kind, such as issuing a
search warrant for the purpose of investigation, or ordering
investigation by the police Under Section 156(3), he cannot be
said to have taken cognizance of any offence.
26. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. And
Anr. MANU/SC/0524/2005 : (2005) 7 SCC 467 wherein the Apex
Court held as under:
"10. In the instant case, the Appellant had filed a detailed
complaint before the Magistrate. The record shows that the Magistrate
took cognizance and fixed the matter for recording of the statement of the
2025:KER:89496
complainant on 1-6-2000. Even if we assume, though that is not the case,
that the words "cognizance taken" were not to be found in the order
recorded by him on that date, in our view that would make no difference.
Cognizance is taken of the offence and not of the offender and, therefore,
once the court on perusal of the complaint is satisfied that the complaint
discloses the commission of an offence and there is no reason to reject the
complaint at that stage, and proceeds further in the matter, it must be held
to have taken cognizance of the offence. One should not confuse taking of
cognizance with issuance of process. Cognizance is taken at the initial
stage when the Magistrate peruses the complaint with a view to ascertain
whether the commission of any offence is disclosed. The issuance of
process is at a later stage when after considering the material placed
before it, the court decides to proceed against the offenders against whom
a prima facie case is made out. It is possible that a complaint may be filed
against several persons, but the Magistrate may choose to issue process
only against some of the accused. It may also be that after taking
cognizance and examining the complainant on oath, the court may come
to the conclusion that no case is made out for issuance of process and it
may reject the complaint... '
27. In Kallu Nat v. State of U.P and Ors.'s case (supra), the
Apex Court referred the earlier decision reported in
[MANU/SC/0025/1951 : 1951 INSC 20 : AIR 1951 SC 207], R.R.Chari v.
State of U.P as well as the decision reported in [MANU/SC/0163/1977 :
1977 INSC 192 : (1977) 4 SCC 459], Tula Ram v. Kishore Singh and
other decisions, where it was held that when the Magistrate applies his
2025:KER:89496
mind not for the purpose of proceeding under Section 200 and subsequent
Sections of Chapter XV of the Cr.P.C, he must be held to have taken
cognizance of the offence as above mentioned, in R.R.Chari v. State of
U.P's case (supra). But for the action taken in some other kind, for
ordering investigation or issuing a search warrant, he cannot be said to
have taken cognizance of the offence. In Kallu Nat v. State of U.P
and Ors.'s case (supra), the Apex Court considered other decisions in
paragraph 38 and 39 as under:
"38. This Court in Rameshbhai Pandurao Hedau v. State of
Gujarat, reported in MANU/SC/0183/2010 : 2010:INSC:157 : (2010) 4
SCC 185, held that a direction for investigation Under Section 156(3)
is to ascertain whether the Magistrate shall take cognizance. Whereas,
an investigation Under Section 202 is for ascertaining whether there
are sufficient grounds for the Magistrate to proceed further. The
relevant observations read thus;
22. It is now well settled that in ordering an
investigation Under Section 156(3) of the Code, the
Magistrate is not empowered to take cognizance of the
offence and such cognizance is taken only on the basis of
the complaint of the facts received by him which includes a
police report of such facts or information received from any
person, other than a police officer, Under Section 190 of the
Code. Section 200 which falls in Chapter XV, indicates the
2025:KER:89496
manner in which the cognizance has to be taken and that
the Magistrate may also inquire into the case himself or
direct an investigation to be made by a police officer before
issuing process.
23. Reference was also made to the decision of
this Court in Mohd. Yousuf v. Afaq Jahan [
MANU/SC/8888/2006 : 2006:INSC:1 : (2006) 1 SCC 627 :
(2006) 1 SCC (Cri) 460. where it has been held that when a
Magistrate orders investigation under Chapter XII of the
Code, he does so before he takes cognizance of the offence.
Once he takes cognizance of the offence, he has to follow
the procedure envisaged in Chapter XV of the Code. The
inquiry contemplated Under Section 202(1) or investigation
by a police officer or by any other person is only to help the
Magistrate to decide whether or not there is sufficient
ground for him to proceed further on account of the fact
that cognizance had already been taken by him of the
offence disclosed in the complaint but issuance of process
had been postponed.
xxx
25. The power to direct an investigation to the
police authorities is available to the Magistrate both Under
Section 156(3) Code of Criminal Procedure and Under
Section 202 Code of Criminal Procedure The only
difference is the stage at which the said powers may be
invoked. As indicated hereinbefore, the power Under
Section 156(3) Code of Criminal Procedure to direct an
investigation by the police authorities is at the pre-
2025:KER:89496
cognizance stage while the power to direct a similar
investigation Under Section 202 is at the post- cognizance
stage.
39. In Ramdev Food Products Pvt. Ltd. v. State of Gujarat,
reported in MANU/SC/0286/2015 : 2015:INSC:218 : (2015) 6 SCC
439, three-Judge Bench of this Court underscored the difference in
meaning of the term "investigation" Under Section 156(3) as compared
to Section 202 of the Code. The relevant observations read thus:
21. On the other hand, power Under Section
202 is of different nature. Report sought under the said
provision has limited purpose of deciding "whether or not
there is sufficient ground for proceeding". If this be the
object, the procedure Under Section 157 or Section 173 is
not intended to be followed. Section 157 requires sending
of report by the police that the police officer suspected
commission of offence from information received by the
police and thereafter the police is required to proceed to
the spot, investigate the facts and take measures for
discovery and arrest. Thereafter, the police has to record
statements and report on which the Magistrate may
proceed Under Section 190. This procedure is applicable
when the police receives information of a cognizable
offence, registers a case and forms the requisite opinion
and not every case registered by the police.
xxx
22.1. The direction Under Section 156(3) is to be issued,
only after application of mind by the Magistrate. When the
Magistrate does not take cognizance and does not find it
2025:KER:89496
necessary to postpone the issuance of process and finds a
case made out to proceed forthwith, direction under the
said provision is issued. In other words, where on account
of credibility of information available, or weighing the
interest of justice it is considered appropriate to
straightaway direct investigation, such a direction is
issued.
xxx
37. In Nagawwa v. Veeranna Shivalingappa
Konjalgi [ MANU/SC/0173/1976 : 1976:INSC:125 :
(1976) 3 SCC 736 : 1976 SCC (Cri) 507], referring to
earlier judgments on the scope of Section 202, it was
observed : (SCC p. 740, para 3) 3 . "In Chandra Deo
Singh v. Prokash Chandra Bose [ MANU/SC/0053/1963 :
1963:INSC:9 : AIR 1963 SC 1430 : (1963) 2 Cri LJ 397 :
(1964) 1 SCR 639] this Court had after fully considering
the matter observed as follows : (AIR p. 1433, para 8)
'8.... The courts have also pointed out in these cases that
what the Magistrate has to see is whether there is
evidence in support of the allegations of the complainant
and not whether the evidence is sufficient to warrant a
conviction. The learned Judges in some of these cases
have been at pains to observe that an enquiry Under
Section 202 is not to be likened to a trial which can only
take place after process is issued, and that there can be
only one trial. No doubt, as stated in sub-section (1) of
Section 202 itself, the object of the enquiry is to ascertain
2025:KER:89496
the truth or falsehood of the complaint, but the Magistrate
making the enquiry has to do this only with reference to
the intrinsic quality of the statements made before him at
the enquiry which would naturally mean the complaint
itself, the statement on oath made by the complainant and
the statements made before him by persons examined at
the instance of the complainant.' Indicating the scope,
ambit of Section 202 of the Code of Criminal Procedure
this Court in Vadilal Panchal v. Dattatraya Dulaji
Ghadigaonkar [ MANU/SC/0059/1960 : 1960:INSC:108 :
AIR 1960 SC 1113 : 1960 Cri LJ 1499] observed as
follows : (AIR p. 1116, para 9).
"9. .... Section 202 says that the Magistrate
may, if he thinks fit, for reasons to be recorded in
writing, postpone the issue of process for compelling
the attendance of the person complained against and
direct an inquiry for the purpose of ascertaining the
truth or falsehood of the complaint; in other words,
the scope of an inquiry under the Section is limited to
finding out the truth or falsehood of the complaint in
order to determine the question of the issue of process.
The inquiry is for the purpose of ascertaining the truth
or falsehood of the complaint; that is, for ascertaining
whether there is evidence in support of the complaint
so as to justify the issue of process and commencement
of proceedings against the person concerned. The
Section does not say that a regular trial for adjudging
the guilt or otherwise of the person complained
2025:KER:89496
against should take place at that stage; for the person
complained against can be legally called upon to
answer the accusation made against him only when a
process has issued and he is put on trial.'
Same view has been taken in Mohinder Singh v. Gulwant
Singh [ MANU/SC/0363/1992 : 1991:INSC:342 : (1992) 2
SCC 213 : 1992 SCC (Cri) 361], Manharibhai Muljibhai
Kakadia v. Shaileshbhai Mohanbhai Patel
[MANU/SC/0819/2012 : 2012:INSC:439 : (2012) 10 SCC 517
: (2013) 1 SCC (Cri) 218], Raghu Raj Singh Rousha v. Shivam
Sundaram Promoters (P) Ltd. [ MANU/SC/8476/2008 :
2008:INSC:1459 : (2009) 2 SCC 363 : (2009) 1. SCC (Cri)
801] and Chandra Deo Singh v. Prokash Chandra Bose
[ MANU/SC/0053/1963 : 1963:INSC:9 : AIR 1963 SC 1430 :
(1963) 2 Cri LJ 397 : (1964) 1 SCR 639.."
28. Thus the law emerges from a vast majority of decisions
is that when a Magistrate applies his mind to the contents of the complaint
for the purpose of proceeding in a particular way, as indicated in Section
200 of Cr.P.C or under Section 223 of BNSS and subsequent provisions,
then cognizance is said to be taken. When the Magistrate applies his mind
not for the purpose of proceeding in the subsequent but for taking action of
some other kind, for instance ordering investigation or issuing a search
warrant for the purpose of the investigation, it could not be said to have
2025:KER:89496
taken cognizance of the offence. It is true that the learned counsel
M.P.Shameem Ahamed would contend that when the Magistrate decided
to examine the complaint under Section 223 of BNSS and even started
examination of the complainant and witnesses, it could not be said that the
cognizance has been taken and the stage of taking cognizance is
subsequent to and before ordering issuance of summons.
29. The decisions cited by Advocate M.P.Shameem Ahamed
referred herein above lay down that the object of examination of the
complainant is to find out whether the complaint is justifiable or is
vexatious. Merely because the complainant was examined, that does not
mean that the Magistrate has taken cognizance of the offence.
"Cognizance" therefore has a reference to the application of judicial mind
by the Magistrate in connection with the commission of an offence and not
merely to a Magistrate learning that some offences had been committed.
Only upon examination of the complainant, the Magistrate will proceed to
apply the judicial mind whether to take cognizance of the offence or not.
Under Section 200 of Cr.P.C, when the complainant is examined, the
Magistrate cannot be said to have ipso facto taken the cognizance, when
2025:KER:89496
the Magistrate was merely gathering the materials on the basis of which he
will decide whether a prima facie case is made out for taking cognizance
of the offence or not.
30. Thus the view as discernible from the verdicts referred to
by Advocate M.P.Shameem Ahamed could be gathered from the decision
in Kallu Nat v. State of U.P and Ors.'s case (supra) and other similar
decisions placed by him.
31. However, as pointed out earlier and as argued by the
learned Senior Counsel Sri B.Raman Pilla, the vast majority of the
decisions hold the other view. Generally, in the majority decisions,
`Cognizance of an offence' means taking notice of the accusations and
applying the judicial mind to the contents of the complaint and the material
filed therewith. It is neither practicable nor desirable to define as to what is
meant by taking cognizance; whether the Magistrate has taken cognizance
of the offence or not, will depend upon the facts and circumstances of a
particular case. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd.
And Anr.'s case (supra), the Apex Court held that when a private
complaint filed before a Magistrate was posted on 01.06.2000, the
2025:KER:89496
Magistrate took cognizance and fixed the matter for recording the
statement. Further it was held that cognizance would be taken not for the
offender but for the offence and once the court on perusal of the complaint
is satisfied that the complaint discloses the commission of an offence and
there is no reason to reject the complaint at that stage and proceeds further
in the matter, it must be held to have taken cognizance of the offence. It
was also held that one should not confuse the terms `taking cognizance'
with `issuance of process'. It was held further that cognizance is taken at
the initial stage then the Magistrate peruses the complaint with a view to
ascertain whether the offence is disclosed. Similarly issuance is a process
at a later stage, when, after considering the materials placed before the
court, the court decides to proceed against the offenders against whom a
prima facie case is made out.
32. In Ground A(f) of Crl.M.C.No.7741/2025, it has been
contended that "the reliance placed by the court below on Subhy Antony v.
Susha is totally misplaced. Moreover the dictum laid in the above
judgment is perincuriam and contrary to the settled position of law based
on various judgments. Reverting back, "taking cognizance of an offence"
2025:KER:89496
means that the Magistrate or the Special Judge must have judicially
applied the mind to the contents of the complaint and indicates that
Magistrate takes judicial notice of an offence. If it is said that when the
Magistrate decided to proceed further under Section 200 Cr.P.C or under
Section 223 of BNSS and subsequent sections after judicially applying his
mind to the contents of the complaint, then the Magistrate should have
taken judicial notice of an offence, that is the Magistrate took cognizance
of the offence. Be it so, a notice as per the proviso to Section 223 of the
BNSS shall be issued, providing an opportunity to the accused, before the
Magistrate decides to proceed with the complaint and not after completion
of the examination of the complaint and witnesses. Thus providing
opportunity of hearing to the accused is mandatory in terms of proviso to
Section 223 of BNSS in such a way.
33. In the instant case, going through the lengthy order
passed by the learned Special Judge, running into 114 pages, it could be
gathered that the Special Judge elaborately addressed Annexures 6 and 7
reports, with a view to either accept or reject the same and finally rejected
the same. While doing the said exercise, the learned Special Judge, in
2025:KER:89496
relief No.5, it has been categorically observed that the complaint
allegations, the documents produced, the materials collected by the
enquiry officer and produced before the Court, would show a prima facie
case and, therefore, there are sufficient materials to proceed further under
Section 223 of BNSS and thus by the order, the learned Special Judge took
cognizance of the offences, for which no sanction under Section 19(1) has
so far been issued.
34. If at all the view taken in the judgments referred by
Advocate M.P.Shameem Ahamed is given emphasis, it is necessary to
consider the argument of the learned Senior Counsel for M.R.Ajith Kumar
also. Thus the arguments at the instance of the learned Senior Counsel
appearing for Sri M.R.Ajith Kumar is that the Apex Court in Anil Kumar
v. M.K.Ayyappa (supra) considered the finding of the High Court by
quashing the order passed by the Special Judge after holding that the
Special Judge could not have taken notice of a private complaint against a
public servant unless the same was accompanied by a sanction order under
Section 19(1) of PC Act, 1988, irrespective of whether the court was
acting at a pre cognizance stage or at post cognizance stage. While
2025:KER:89496
addressing correctness of the said order, the Apex Court held in paragraph
Nos.11 and 15 that where jurisdiction is exercised on a complaint filed in
terms of Section 156(3) or Section 200 of Cr.P.C, the Magistrate is
required to apply his mind, and in such a case the Special
Judge/Magistrate cannot refer the matter under Section 156(3) Cr.P.C for
investigation against a public servant without a valid sanction under
Section 19(1) of the PC Act, 1988. Further it was held 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 under the
Prevention of Corruption Act, 1988 refers a complaint for investigation
under Section 156(3) Cr.P.C, obviously he has not taken cognizance of the
offence and, therefore, it is a pre-cognizance stage and cannot be equated
with post-cognizance stage. It was held further that when a Special Judge
takes cognizance of the offence on a complaint presented under Section
200 Cr.P.C, the next step to be taken is to follow under Section 202
Cr.P.C. Therefore, the contention of the learned Senior Counsel for
M.R.Ajith Kumar is that decision to proceed under Section 200 Cr.P.C or
under Section 223 of BNSS is akin to taking cognizance. Apart from that
2025:KER:89496
the learned Senior Counsel raised a contention that either to forward a
complaint filed before a Special Judge under the PC Act for investigation
under Section 156(3) Cr.P.C or under Section 175(3) BNSS sanction under
Section 19(1) is mandatory. He also argued that for the same reasons,
when the Special Judge decided to proceed further on the complaint even
if it is held the stage as "pre-cognizance stage" for which also sanction
under Section 19(1) is mandatory and, then also Annexure 8 order is
illegal. In this connection, it is not in dispute that the decision in Anil
Kumar v. Ayyappa (supra) was considered in [(2018) 5 SCC 557], Manju
Surana v. Sunil Arora & Ors. and the question was referred to a larger
Bench for an authoritative verdict on the point. That apart, as per the
decision in B.S.Yeddiyurappa v. A Alam Pasha & Ors.'s case (supra) also
the Apex Court raised 8 questions with reference to Sections 17A and 19
of the P.C Act, 2018 as well as under Sections 156(3) and 200 to 203 of
Cr.P.C and referred the same also to be considered by a larger Bench in
view of the decision in Manju Surana (supra). In fact, the questions
referred to the larger Bench in B.S.Yeddiyurappa v. A Alam Pasha &
Ors.'s case (supra) are also questions involved in this case, awaiting an
2025:KER:89496
authoritative pronouncement on those issues.
35. The PC (Amendment) Act, 2018, incorporated additional
provisions to address contingencies, including situations where a person
lodges a complaint in a competent court regarding an alleged offence for
which a public servant is to be prosecuted. It has been provided that when
a person has filed a complaint in a competent court alleging commission of
offences for which the public servant is sought to be prosecuted, the
procedure provided under the first proviso to Section 19(1) clause (i) and
(ii) to be followed. It has been provided that such a person has filed a
complaint in a competent court about the alleged offences for which the
public servant is sought to be prosecuted and the court has not dismissed
the complaint under Section 203 of Cr.PC and the Court has directed the
complainant to obtain the sanction under Section 19(1) for prosecution
against the public servant for further proceeding. Second proviso to
Section 19 of PC Act, 2018 states 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
2025:KER:89496
without providing an opportunity of being heard to the concerned public
servant.
36. Thus in the instant case, when the Special Judge, on
receipt of the complaint, decided not to forward the complaint for
investigation by the police under Section 175(3) of BNSS, following the
ratio in Anil Kumar v. M.K.Aiyappa's case (supra) (the correctness of the
same is now pending before a larger Bench of the Apex Court), he ought
to have directed the complainant to produce sanction in terms of Section
19(1) r/w the first proviso clauses (i) and (ii) to proceed further. If so, the
impugned order, whereby the learned Special Judge decided to proceed
under Section 223 of the BNSS on finding a prima facie case on applying
his mind without sanction, amounts to an order taking cognizance, and
therefore, the same is non-est in the eye of law and is liable to be set aside.
37. Coming to Annexures 6 and 7 reports, in fact, the
Special Court has no power to address on its legality and the complainant
or aggrieved persons could very well take up the matter before
Constitutional Court to consider the same, to set aside the same and in
such a proceedings the Constitutional Court can either set aside or reject or
2025:KER:89496
accept the same. Thus the constitutional court has the power to address on
its sustainability. Since the learned Special Judge, while considering
Annexure 5, was not inclined to accept the inquiry reports for the reasons
stated therein and was not empowered to do so, the finding of the Special
Court that the inquiry reports were not acceptable and could not be
considered is also non-est and as such the same would not sustain in the
eye of law. Therefore, the said finding also is liable to be set aside.
38. As regards to the contention raised by the learned Senior
Counsel Sri B.Raman Pilla, appearing for Sri M.R.Ajithkumar, to quash
the complaint, viz., Annexure 5, in consonance with the findings in
Annexures 6 and 7, the same also cannot be considered by this Court
without a specific challenge against the reports, particularly, when the
learned counsel for Sri P.V.Anwar categorically made a submission that
Sri P.V.Anwar is having grievance on Annexures 6 and 7 reports, for
which he would seek appropriate legal remedies before this Court. On
perusal of the allegations in Annexure 5 complaint along with the
allegations raised by Sri P.V.Anwar, it is evident that the investigation or
inquiry sought is regarding the amassment of enormous assets by Sri
2025:KER:89496
M.R.Ajith Kumar during 1994-2004 (reckoned as the check period). But
in the complaint lodged by Sri P.V.Anwar, in fact, a check period was not
stated as stated in Annexure 5. Therefore, it is too premature for this Court
to quash Annexure 5 complaint. Thus the said prayer is liable to fail.
39. For the reasons stated as aforesaid, all the observations in
paragraph Nos.106 and 107 of the impugned order as against the Chief
Minister, who finally accepted the reports as part of official duty, also are
liable to be expunged.
40. In the result,
I) (i) Crl.M.C.No.7741/2025 is allowed in part. The
prayer to quash Annexure 5 is dismissed and Annexure 8 order is set aside.
Consequently, Annexure 5 is relegated to the stage of pre-cognizance with
liberty to the learned Special Judge to proceed further on the same, after
getting sanction under Section 19(1) of the PC Act, 2018 at the instance of
the complainant. In this regard, the complainant is free to apply before the
competent authority and to produce the same before the Special Court.
(ii) In so far as Annexures 6 and 7 reports are
concerned, the finding of the Special Court that the same are not
acceptable is set aside, subject to the right of the aggrieved persons, to
challenge its legality, as per law.
II) Crl.M.C.No.8392/2025 is allowed and all the
observations made against the Chief Minister in Annexure 8 order
2025:KER:89496
including the observations in paragraph Nos.77 to 81, 91 to 97, 106 and
107 of Annexure 8 order are expunged.
Registry is directed to forward a copy of this order to the Enquiry
Commissioner and Special Judge, Thiruvananthapuram, for information
and compliance.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
2025:KER:89496
PETITIONER's ANNEXURES
Annexure - 1 TRUE COPY OF THE PETITION DATED 01.09.2024
FILED BY THE PETITIONER BEFORE THE HON'BLE
CHIEF MINISTER OF KERALA.
Annexure - 2 TRUE COPY OF THE PETITION DATED 01.09.2024
FILED BEFORE THE STATE POLICE CHIEF.
Annexure - 3 TRUE COPY OF THE G.O.(RT)NO. 3911/2024/GAD
DATED 03.09.2024 CONSTITUTING A HIGH LEVEL
TEAM.
Annexure - 4 THE TRUE COPY OF THE G.O.(RT) NO.147/2024/VIG
DATED 19.09.2024.
Annexure - 5 TRUE COPY OF THE COMPLAINT NUMBERED CRL.M.P
1356/2024 FILED BEFORE THE COURT OF ENQUIRY
COMMISSIONER AND SPECIAL JUDGE.
Annexure - 6 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY
THE HIGH LEVEL TEAM DATED 06.03.2025.
Annexure - 7 TRUE COPY OF THE REPORT OF VACB.
Annexure - 8 CERTIFIED COPY OF THE ORDER OF THE COURT OF
THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE,
THIRUVANANTHAPURAM DATED 14.08.2025 IN
CRL.M.P.NO.1356 OF 2024.
Annexure - 9 True copy of the judgment in Adv.Nagarj P. V.
Bar Council of Kerala and Others reported in
2013(1) KHC 687.
Annexure - 10 True copy of the judgment of this Hon'ble
Court dated 26.06.2025 in W.P.(crl) No.1366
of 2024.
Annexure - 11 True copy of the F.I.R in Crime no.971 of
2025 of Malappuram Police Station.
Annexure - 12 True copy of the F.I.R in Crime no.1005 of
2024 of Karukachall police station.
Annexure - 13 True copy of the affidavit of R3 before the
Election Commission.
Annexure - 14 True copy of the statement filed by R3 before
the Taluk land Board, Thamarassery.
Annexure - 15 True copy of the proceedings of the Taluk
Land Board Thamarassery dated 26.09.2023.
Annexure - 16 True copy of the FIR in Crime no.349 of 2016
of Pookottumpadam Police Station.
Annexure - 17 True copy of the judgment of this Hon'ble
Court in W.P.(c) No.29917 of 2016.
Annexure - 18 True copy of the F.I.R in Crime no.588 of
2025:KER:89496
2017 Manjeri Police Station.
Annexure - 19 The true copy of the judgment of this Hon'ble
Court dated 13.11.2018 in W.P.(c) No. 11213
of 2018.
Annexure - 20 True copy of the judgment of this Hon'ble
Court dated 05.12.2018 in RP No.1001 of 2018
in WP© 11213 of 2018.
Annexure - 21 The true copy of the common judgment of this
Hon'ble Court dated 9.06.2020 in W.P.(C) Nos.
Annexure - 22 The true copy of the order of the Ombudsman
of Local Self-Government Institutions dated
25/01/2022.
Annexure - 23 True copy of the F.I.R in Crime No.316 of
2020 of Pookoottumpadam police station.
Annexure - 24 True copy of the report of Inspector of
Police, Pookoottumpadam Police Station dated
30.11.2020.
Annexure - 25 True copy of the statement filed by the
Standing Counsel for the department in W.P.
(c) No. 29537 of 2021.
Annexure - 26 The true copy of the communication from Chief
Manager NAD to the Edathala Grama Panchayath.
Annexure - 27 The true copy of the stop memo issued by the
Edathala Grama Panchayath.
Annexure - 28 True copy of the FIR in Crime no.873 of 2024.
Annexure - 29 A true copy of the FIR in crime no.22 of 2025
of Nilambur Police Station.
Annexure - 30 True copy of the F.I.R in Crime No.1316 of
2024 of Mancherry Police Station.
RESPONDENTs' ANNEXURES
ANNEXURE R3 A copy of the order from the Central Government
to all state Chief Secretaries, dated October
10, 2024.
ANNEXURE R3 B copy of the application for the report, dated
April 12, 2024.
ANNEXURE R3 C copy of the complaint, dated August 15, 2023.
ANNEXURE R3 D Partial investigation report dated July 2,
2025.
ANNEXURE R3 E Order of the JFCM 9 dated July 9, 2025.
ANNEXURE R3 F Copy of this second interim report, filed by
the Palarivattom Police Inspector Dated
21/08/2025.
2025:KER:89496
ANNEXURE R3 G1 Copy of the seizure mahazar 1 prepared by
Inspector Binu of Karipur Police Station
dated 12/12/2023.
ANNEXURE R3 G2 Copy of the seizure mahazar 2 prepared by
Inspector Binu of Karipur Police Station
dated 12/12/2023.
ANNEXURE R3 H Copy of the sale deed dated 19/12/2016
executed between the petitioner and
Shivaprasad.
ANNEXURE R3 I Copy of the sale deed dated 29/12/2016
executed between the petitioner Leila Ashok.
ANNEXURE R3 J Copy of the statement by the petitioner
before the investigation officer Vigilance
dated 26/11/2024.
Exhibit R2(a) A copy of the Guideline No. 428/10/2021-AVD-
14 (B), dated 18.10.2024, issued by the
Department of Personnel and Training
2025:KER:89496
PETITIONER's ANNEXURES
Annexure I COPY OF G.O(RT) NO: 3911/2024/GAD DATED 03-
09-2024.
AnnexureII COPY OF G.O(RT) NO: 147/2024/VIG DATED
THIRUVANANTHAPURAM 19-09-2024.
Annexure III COPY OF THE VIGILANCE ENQUIRY REPORT NO:
VE/8/2024/SIU-1 OF THIRUVANANTHAPURAM DATED
06-03-2025
Annexure IV CERTIFIED COPY OF THE ORDER OF THE SPECIAL
COURT IN CRLMP NO: 1356/2024 DATED 14-08-2025
RESPONDENT's ANNEXURES
Annexure R1 (a) A copy of the guideline No.428/10/2021-AVD-14
(B) dated 18.10.2024 issued by the Department
of Personnel and Training.
Annexure R1 (b) Copy of the relevant pages from the vigilance
manual.
Annexure R2 (c) Copy of the relevant pages of Kerala
Vigilance Manual.
