Police Investigation can’t hold against Public Officer without Government Consent
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Table of Content:
- Background of the case
- Issues Raised
- Statutory Provisions involved
- The Contention of the parties
- The decision of the court
- Case Laws:
- S. Nayak v. A.R. Antulay [(1984) 2 SCR 495]
- V. Narasimha Rao v. State (CBI/SPE) [(1998) 4 SCC 626]
- Subramanium Swamy v. Manmohan Singh and another [(2012) 3 SCC 64]
- Tula Ram and Others v. Kishore Singh [(1977) 4 SCC 459]
- Srinivas Gundluri and Others v. SEPCO Electric Power Construction Corporation and Others (2010) 8 SCC 206.
- Maksud Saiyed v. the State of Gujarat and Others [(2008) 5 SCC 668]
- State of Uttar Pradesh v. Paras Nath Singh [(2009) 6 SCC 372]
- State of West Bengal and Another v. Mohd. Khalid and Others [(1995) 1 SCC 684]
Anil Kumar & ors vs M.K. Aiyappa & Anr.
[Criminal Appeal No. 1590-1591/ 2013 @ Special Leave Petition (Criminal) No. 6652- 6653/2013]
Background of the case
On 9th October 2012, the appellant filed a private complaint was filed before a special judge under section 200 of the Crpc for the prevention of corruption. The complainant alleged that Respondent No. 1 on 30th June 2012 passed an order with a mala fide intention for the restoration of valuable land to some private person.
Upon the filing of the complainant the Respondent No. 1 passed an order on 6th October 2012 to recall their previous order. The complaint was filed under section 406, 409, 420, 426, 463, 465, 468, 471, 474 read with section 120 B of the IPC along with Section 8, 13 (1) (c), 13 (1) (d), 13 (1) (e), 13 (2) read with section 12 of the Prevention of Corruption Act. Upon receiving the complaint the special judge passed an order:
“On-going through the complaint, documents and hearing the complainant, I am of the sincere view that the matter requires to be referred for investigation by the Deputy Superintendent of Police, Karnataka Lokayukta, Bangalore Urban, under Section 156(3) of Crpc. Accordingly, I answer point NO.1 in the affirmative. Point NO.2 : In view of my finding on point NO.1 and for the foregoing reasons, I proceed to pass the following : ORDER The complaint is referred to Deputy Superintendent of Police 3 Karnataka Lokayukta, Bangalore Urban under Section 156(3) of Crpc for investigation and to report.”
Aggrieved from the order of the special judge respondent knocks on the door of the Karnataka High Court via writ petition. The appellant contended that the special judge doesn’t have a jurisdiction to entertain the complaint of the complainant against him for the offence punishable under the prevention of corruption act without the valid sanction of the government as he is a public servant. It was added that the requirement of governmental sanction is a pre requisite which is necessary even to file a private complaint against a public servant while he was discharging his public duty.
High Court held that the special judge acted beyond its power as he entertains a complaint without governmental sanction against a public officer and therefore it quashed the order of investigation made by the special judge. The complainant approached the Supreme Court against the order of the High Court.
Issues Raised
- Whether the special judge/ Magistrate is justified in referring a private complaint made under section 200 Crpc for investigation by the Deputy Superintendent of Police?
- Whether the special judge/ magistrate is authorized to exercise its power under section 156 (3) of Crpc against a public servant without the government’s sanction?
- Is the requirement of taking the government’s sanction is a pre-condition at the pre- cognizance stage?
Statutory Provisions Involved
Section 200 of Code of Criminal Procedure, 1973
“A Magistrate taking cognizance of an offence on the 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-
- if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or 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.”
Section 156 (3) of the Code of Criminal Procedure, 1973
“Police officer’s power to investigate cognizable case.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.”
Section 19 of the Prevention of Corruption Act, 1988
“Previous sanction necessary for prosecution.—
- No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13, and 15 alleged to have been committed by a public servant, except with the previous sanction,—
- in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
- in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
- In the case of any other person, of the authority competent to remove him from his office.
- Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
- no finding, sentence, or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation, or revision on the ground of the absence of, or any error, omission, or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
- no court shall stay the proceedings under this Act on the ground of any error, omission, or irregularity in the sanction granted by the authority unless it is satisfied that such error, omission, or irregularity has resulted in a failure of justice;
- no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal, or other proceedings.
- In determining under sub-section (3) whether the absence of or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.”
The Contention of the Parties
Submissions of the Appellant
Learned Counsel Shri Kailash Vasdev submitted on behalf of the appellant that:
- If the High Court interpretation is accepted by this court then it defeats the purpose of Section 19 (3) of the Prevention of Corruption Act.
- The requirement of government sanction under section 19 (1) is a directory and not mandatory as it can be obtained at subsequent stage of the proceedings by relying on the judgment of R. S. Nayak v. A.R. Antulay [(1984) 2 SCR 495] and P. V. Narasimha Rao v. State (CBI/SPE) [(1998) 4 SCC 626]
- The order of the High Court is erroneous in nature by stating the requirement of sanction is mandatory even when the court was exe3rcising its jurisdiction under section 156 (3) of the code of criminal procedure as the order for investigation passed under the said provision doesn’t amount to taking cognizance of it by referring the judgments of Tula Ram and Others v. Kishore Singh [(1977) 4 SCC 459] and Srinivas Gundluri and Others v. SEPCO Electric Power Construction Corporation and Others (2010) 8 SCC 206.
Submissions of the Respondents
Learned Counsel Shri Uday U. Lalit submitted on behalf of the respondents that:
- By relying upon the judgment of Subramanium Swamy v. Manmohan Singh and another [(2012) 3 SCC 64] it was contended that the question raised before the court is not something that has not been examined before.
- With respect to the public servant while he/ she was discharging his/ her official duty the sanction of the government is of paramount importance in order to provide protection to them while he/ she was acting in good faith.
- The objective behind providing protection to the public servant is not to unnecessarily harass them.
- By placing reliance on Maksud Saiyed v. the State of Gujarat and Others [(2008) 5 SCC 668] the requirement of application of mind by the magistrate before exercising his jurisdiction under section 156 (3) of the Crpc is of paramount importance.
- It was contended that the requirement of obtaining sanction is a prerequisite even before filing a private complaint under section 200 Crpc.
The Decision of the court
The court by putting an emphasis on the judgment of State of Uttar Pradesh v. Paras Nath Singh [(2009) 6 SCC 372] held that
“the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied.”
Further, the court also relies on the ruling of the State of West Bengal and Another v. Mohd. Khalid and Others [(1995) 1 SCC 684] in which it was stated that cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.
The apex court specifies that application of mind is necessary before passing an order by a magistrate and a magistrate cannot exercise its power under section 156 (3) of Crpc in respect of the public servant without obtaining a prior sanction from the government.
Hence the Supreme Court dismissed the appeal filed by the appellant on the ground of merits by upholding the judgment passed by the Karnataka High Court.