ANIL KUMAR & ORS.versusM. K. AIYAPPA & ANR.

                    [2013] 9 S.C.R. 869


                  ANIL KUMAR & ORS.                              A
                            v.
                  M. K. AIYAPPA & ANR.
        (Criminal Appeal Nos. 1590-1591 of 2013)
                    OCTOBER 01, 2013
                                                                 B
     [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

    Code of Criminal Procedure, 1973:

     ss.197 rlw ss.190, 200 and 156(3) CrPC and s.19 of the C
PC Act - Complaint u/s 200 against a public servant -
Previous sanction not obtained - Special Judge directing
investigation to be conducted by DSP, Lokayukta - Held:
Once it is noticed that there was no previous sanction, the
Magistrate cannot order investigation against a public servant
while invoking powers u!s." 156(3) Cr.P.C. - The Special Judge 0
has stated no reason for ordering investigation -- High Court
has rightly quashed the order of Special Judge as well as the
complaint - Prevention of Corruption Act, 1988 - s. 14.

    ss.156(3) rlw s.190 - Power of Magistrate to order           E
investigation - Held: A Magistrate, who is otherwise
competent to take cognizance, has the power to refer a private
complaint for police investigation u/s. 156(3) Cr.P.C. -- When
a Special Judge refers a complaint for investigation u/s.
156(3) Cr.P.C., obviously, he has not taken cognizance of the    F
offence and, therefore, it is a pre-cognizance stage and
cannot be equated with post-cognizance stage.

    The Appellants filed a complaint u/s 200 of Cr.P.C.
before the Additional City Civil and Special Judge G
alleging commission of offences under Prevention of
Corruption Act, 1988. The Special Judge passed an order
referring the complaint for investigation by the Deputy
Superintendent of Police, Karnataka Lokayukta u/s.
                             869
                                                                 H
    870      SUPREME COURT REPORTS             [2013] 9 S.C.R.


A   156(3) of Cr.P.C. The first respondent filed writ petitions
    before the High Court, which quashed the order passed
    by the Special Judge, as well as the complaint.

       In the instant appeal filed by the complainants, the
8 question  for consideration before the Court was: whether
  the Special Judge/Magistrate was justified in referring a
  private complaint made u/s. 200 Cr.P.C. for investigation
  by the Deputy Superintendent of Police, Karnataka
  Lokayukta, in exercise of powers conferred u/s. 156(3)
C Cr.P.C. without the production of a valid sanction order
  u/s. 19 of the Prevention of Corruption Act, 1988.

          Dismissing the appeals, the Court

          HELD: 1.1 This Court in Maksud Saiyed has held that
o where jurisdiction is exercised on a complaint filed in
  terms of s. 156(3) or s. 200 Cr.P .C., the Special Judge/
  Magistrate is required to apply his mind and cannot refer
  the matter u/s. 156(3) against a public servant without a
  valid sanction order. The application of mind by the
E Magistrate should be reflected in the order. What weighed
  with the Magistrate to order investigation u/s. 156(3)
  Cr.P.C., should be reflected in the order, though a detailed
  expression of his views is neither required nor warranted.
  In the instant case, the Special Judge has stated no
F reasons for ordering investigation. [Para 8] [876-C-F]

         Maksud Saiyed v. State of Gujarat and Others 2007
                  =
    (9) SCR 1113 (2008) 5 sec 668 - relied on.

       1.2 When a private complaint is filed before the
G Magistrate, he has two options: He may take cognizance
  of the offence u/s. 190 Cr.P.C. or proceed further in
  enquiry or trial. A Magistrate, who is otherwise competent
  to take cognizance, without taking cognizance u/s 190,
  may direct an investigation u/s. 156(3) Cr.P .C. The
H Magistrate, who is empowered u/s. 190 to take
       ANIL KUMAR & ORS. v. M. K. AIYAPPA             871


cognizance, alone has the power to refer a private            A
complaint for police investigation uls. 156(3) Cr.P.C. When
a Special Judge refers a complaint for investigation uls.
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. [Para       B
10- 11] [878-E-F; 879-A-B]

    1.3 Sub-s. (3) of s. 19 of the PC Act has an object to
achieve, which applies in circumstances where a Special
Judge has already rendered a finding, sentence or order.      C
In such an event, it shall not be reversed or altered by a
court in appeal, confirmation or revision on the ground
of absence of sanction. That does not mean that the
requirement to obtain sanction is not a mandatory
requirement. Once it is noticed that there was no
previous sanction, the Magistrate cannot order                D
investigation against a public servant while invoking
powers uls. 156(3) Cr.P.C. [Para 13] [880-G-H; 881-A-B]

     1.4 The High Court, has rightly held that the Special
Judge could not have taken notice of the private              E
complaint unless the same was accompanied by a
sanction order, irrespective of whether the court was
acting at a pre-cognizance stage. Therefore, there is no
error in the order passed by the High Court. [Para 5 and
15] [874-E-F; 881-F]                                          F

   State of Uttar Pradesh vs. Paras Nath Singh 2009 (8)
SCR 85   =(2009) 6 SCC 372; Subramanium Swamy vs.
Manmohan Singh and anottrer 2012 (3) SCR 52 = (2012) 3
sec 64 - relied on.
                                                              G
    R.S. Nayak v. A.R. Antulay (1984) 2 SCR 495 and P. V.
Narasimha Rao v. State (CBl/SPE) 1998 (2) SCR
870 = (1998) 4 SCC 626 Tula Ram and Others v. Kishore
                         =
Singh 1978 (1) SCR 615 (1977) 4 SCC 459 and Srinivas
Gundluri and Others v: SEPCO Electric Power Construction      H
    872      SUPREME COURT REPORTS              [2013] 9 S.C.R.


A Corporation and Others 2010 (9) SCR 278 = (2010) 8 SCC
  206; State of West Bengal and Another v. Mohd. Khalid and
  Others 1994 (6) Suppl. SCR 16 = (1995) 1 SCC 684;
  General Officer, Commanding v. CBI 2012 (5) SCR 599 =
  2012 (6) sec 228 - cited.
B
                      Case Law Reference:
          (1984) 2 SCR 495          cited              para 6
          1998 (2) SCR 870          cited              para 6
c         1978 (1)'5CR 615          cited              para 6
          2010 (9) SCR 278          cited              para 6
          2012 (3) SCR 52           relied on          para 7

D         2007 (9) SCR 1113         relied on          para 7
          2009 (8) SCR 85           relied on          para 9
          1994 (6) Suppl. SCR 16 cited                 para 9
          2012 (5) SCR 599          cited              para 14
E
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1590-1591 of 2013.

      From the Judgment and Order dated 21.05.2013 of the
F High Court of Karnataka at Bangalore in Writ Petition Nos.
  13779-780 of 2013 (GM-RES).       .

       Kailash Vasdev, Girish Ananthamurthy, Preshant Jain,
    Umrao Singh Rawat, Vaijayanthi Girish for the Appellants.

G       Uday U. Lalit, Sandeep Patil, Nishant Patil (for Guntur
    Prabhakar) for the Respondents.

          The Judgment of the Court was delivered by

          K.S. RADHAKRISHNAN, J. 1. Leave granted.
H
         ANIL KUMAR & ORS. v. M. K. AIYAPPA                873
              [K.S. RADHAKRISHNAN, J.)

     2. We are in this case concerned with the question            A
whether the Special Judge/Magistrate is justified in referring a
private complaint made under Section 200 Cr.P.C. for
investigation by the Deputy Superintendent of Police -
Karnataka Lokayukta, in exercise of powers conferred under
Section 156(3) Cr.P.C. without the production of a valid           8
sanction order under Section 19 of the Prevention of Corruption
Act, 1988.

      3. The Appellants herein filed a private complaint under
Section 200 of Cr.P.C. before the Additional City Civil and
Special Judge for Prevention of Corruption on 9.10.2012. The C
complaint of the Appellants was that the first respondent with
mala fide intention passed an order dated 30.6.2012 in
connivance with other officers and restored valuable land in
favour of a private person. On a complaint being raised, the
first respondent vide order dated 6.10.2012 recalled the earlier D
order. Alleging that the offence which led to issuance of the
order dated 30.6.2012 constituted ingredients contained under
Section 406, 409, 420, 426, 463, 465, 468, 471, 474 read
with Section 120-8 IPC and Section 149 IPC and Section 8,
13(1)(c), 13(1)(d), 13(1)(e), 13(2) read with Section 12 of the E
Prevention of Corruption Act, a private complaint was preferred
under Section 200 Cr.P.C. On receipt of the complaint, the
Special Judge passed an order on 20.10.2012 which reads as
follows:-

          "On going through the complaint, documents and           F
    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 Cr.P.C.
    Accordingly, I answer point No.1 in the affirmative.           G

           Point No.2 : In view of my finding on point No.1 and
    for the foregoing reasons, I proceed to pass the following:

                                                                   H
    874       SUPREME COURT REPORTS                [2013] 9 S.C.R.


A                                  ORDER

                The complaint is referred to Deputy Superintendent
          of Police - 3 Karnataka Lokayukta, Bangalore Urban under
          Section 156(3) of Cr. PC for investigation and to report." ·
B      4. Aggrieved by the said order, the first respondent herein
  approached the High Court of Karnataka by filing Writ Petition
  Nos.13779-13780 of 2013. It was contended before the High
  Court that since the appellant is a pubic servant, a complaint
  brought against him without being accompanied by a valid
C sanction order could not have been entertained by the Special
  Court on the allegations of offences punishable under the
  Prevention of Corruption Act. It was submitted that even though
  the power to order investigation under Section 156(3) can be
  exercised by a Magistrate or the Special Judge at pre-
D cognizance stage, yet, the governmental sanction cannot be
  dispensed with. It was also contended.that the requirement of
  a sanction is the pre-requisite even to present a private
  complaint in respect of a public servant concerning the alleged
  offence said to have been committed in discharge of his public
E duty.

        5. The High Court, after hearing the parties, took the view
  that the Special Judge could not have taken notice of the private
  complaint unless the same was accompanied by a sanction
F 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 who is alleged to have committed
  offences in discharge of his official duties. The High Court,
  therefore, quashed the order passed by the Special Judge, as
  well as the complaint filed against the appellant. Aggrieved by
G the same, as already stated, the complainants have come up
  with these appeals.

       6. We have heard the senior counsel on either side. Shri
  Kailash Vasdev, learned senior counsel appearing for the
H appellants, submitted that if the interpretation of the High Court
       ANIL KUMAR & ORS. v. M. K. AIYAPPA                  875
            [K.S. RADHAKRISHNAN, J.]

is accepted, then the provisions of Section 19(3) of the PC Act A
would be rendered otiose. Learned senior counsel also
submitted that, going through the above mentioned provision,
the requirement of sanction under Section 19(1) is only
procedural in nature and the same can be cured at a
subsequent stage of the proceedings even after filing of the B
charge-sheet and hence the requirement of "previous sanction"
is merely directory and not mandatory. Reliance was placed on
the judgments of this Court in R. S. Nayak v. A.R. Antulay
(1984) 2 SCR 495 and P. V. Narasimha Rao v. State (CBI/
SPE) (1998) 4 sec 626. Learned senior counsel further c
submitted that the High Court also committed an error in holding
that the sanction was necessary even while the Court was
exercising its jurisdiction under Section 156(3) Cr.P.C. Learned
senior counsel submitted that the order directing investigation
under Section 156(3) Cr.P.C. would not amount to taking
                                                                  0
cognizance of the offence. Reference was made to the
judgments of this Court in 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.
                                                                  E
      7. Shri Uday U. Lalit, learned senior counsel appearing for
the respondents, on the other hand, submitted that the question
raised in this case is no more res integra. Reference was made
to the judgment of this Court in Subramanium Swamy v.
Manmohan Singh and Another (2012) 3 SCC 64. Learned F
senior counsel submitted that the question of sanction is of
paramount importance for protecting a public servant who has
acted in good faith while performing his duties. The purpose
of obtaining sanction is to see that the public servant be not
unnecessarily harassed on a complaint, failing which it would G
not be possible for a public servant to discharge his duties
without fear and favour. Learned senior counsel also placed
reliance on the judgment of this Court in Maksud Saiyed v.
 State of Gujarat and Others (2008) 5 sec 668 and submitted
that the requirement of application of mind by the Magistrate H
    876      SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A   before exercising jurisdiction under Section 156(3) Cr.P.C. is
    of paramount importance. Learned senior counsel submitted
    that the requirement of sanction is a prerequisite even for
    presenting a private complaint under Section 200 Cr.P.C. and
    the High Court has rightly quashed the proceedings and the
B   complaint made against the respondents.

         8. We may first examine whether the Magistrate, while
    exercising his powers under Section 156(3) Cr.P.C., could act
    in a mechanical or casual manner and go on with the complaint
C   after getting the report. The scope of the above mentioned
    provision came up for consideration before this Court in several
    cases. This Court in Maksud Saiyed case (supra) examined
    the requirement of the application of mind by the Magistrate
    before exercising jurisdiction under Section 156(3) and held
    that where a jurisdiction is exercised on a complaint filed in
D   terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate
    is required to apply his mind, in such a case, the Special Judge/
    Magistrate cannot refer the matter under Section 156(3) against
    a public servant without a valid sanction order. The application
    of mind by the Magistrate should be reflected in the order. The
E   mere statement that he has gone through the complaint,
    documents and heard the complainant, as such, as reflected
    in the order, will not be sufficient. After going through the
    complaint, documents and hearing the complainant, what
    weighed with the Magistrate to order investigation under
F   Section 156(3) Cr.P.C., should be reflected in the order, though
    a detailed expression of his views is neither required nor
    warranted. We have already extracted the order passed by the
    learned Special Judge which, in our view, has stated no
    reasons for ordering investigation.
G
         9. We will now examine whether the order directing
    investigation under Section 156(3) Cr.P.C. would amount to
    taking cognizance of the offence, since a contention was raised
    that the expression "cognizance" appearing in Section 19(1)
H   of the PC Act will have to be construed as post-cognizance
       ANIL KUMAR & ORS. v. M. K. AIYAPPA                 877
            [K.S. RADHAKRISHNAN, J.]

stage, not pre-cognizance stage and, therefore, the             A
requirement of sanction does not arise prior to taking
cognizance of the offences punishable under the provisions of
the PC Act. The expression "cognizance" which appears in
Section 197 Cr.P.C. came up for consideration before a three-
Judge Bench of this Court in State of Uttar Pradesh v. Paras    B
Nath Singh (2009) 6 SCC 372, and this Court expressed the
following view:

    "6 .............. And the jurisdiction of a Magistrate to take
    cognizance of any offence is provided by Section 190 of
    the Code, either on receipt of a complaint, or upon a police C
    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 D
    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 E
    and the effect in law if the conditions are satisfied. The
    mandatory character of the protection afforded to a public
    servant is brought out by the expression, 'no court shall
    take cognizance of such offence except with the previous
    sanction'. Use of the words 'no' and 'shall' makes it F
    abundantly clear that the bar on the exercise of power of
    the court to take cognizance of any offence is absolute and
    complete. The very cognizance is barred. That is, the
    complaint cannot be taken notice of. According to Black's
    Law Dictionary the word 'cognizance' means 'jurisdiction' G
    or 'the exercise of jurisdiction' or 'power to try and
    determine causes'. In common parlance, it means taking
    notice of. A court, therefore, is precluded from entertaining
    a complaint or taking notice of it or exercising jurisdiction
    if it is in respect of a public servant who is accused of an H
    878         SUPREME COURT REPORTS              [2013] 9 S.C.R.


A         offence alleged to have been committed during discharge
          of his official duty.

          xxx    )()()(               xxx
          xxx    )()()(               xxx"
B
    In State of West Bengal and Another v. Mohd. Khalid and
    Others (1995) 1 SCC 684, this Court has observed as follows:

          "It is necessary to mention here that taking cognizance of
c         an offence is not the same thing as issuance of process.
          Cognizance is taken at the initial stage when the
          Magistrate applies his judicial mind to the facts mentioned
          in a complaint or to a police report or upon information
          received from any other person that an offence has been
          committed. The issuance of process is at a subsequent
D         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."

       10. The meaning of the said expression was also
E considered by this Court in Subramanium Swamy case
  (supra). The judgments referred to herein above clearly indicate
  that the word "cognizance" has a wider connotation and not
  merely confined to the stage of taking cognizance of the
  offence. When a Special Judge refers a complaint for
F 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. When a Special Judge takes cognizance of the offence
  on a complaint presented under Section 200 Cr.P.C. and the
G next step to be taken is to follow up under Section 202 Cr.P.C.
  Consequently, a Special Judge referring the case for
  investigation under Section 156(3) is at pre-cognizance stage.

         11. A Special Judge is deemed to be a Magistrate under
    Section 5(4) of the PC Act and, therefore, clothed with all the
H
        ANIL KUMAR & ORS. v. M. K. AIYAPPA                       879
             [K.S. RADHAKRISHNAN, J.]

magisterial powers provided under the Code of Criminal                   A
Procedure. When a private complaint is filed before the
Magistrate, he has two options. He may take cognizance of the
offence under Section 190 Cr.P.C. or proceed further in enquiry
or trial. A Magistrate, who is otherwise competent to take
cognizance, without taking cognizance under Section 190, may             B
direct an investigation under Section 156(3) Cr.P.C. The
Magistrate, who is empowered under Section 190 to take
cognizance, alone has the power to refer a private complaint
for police investigation under Section 156(3) Cr.P.C.

     12. We may now examine whether, in the above mentioned
                                                                         c
legal situation, the requirement of sanction is a pre-condition
for ordering investigation under Section 156(3) Cr.P.C., even
at a pre-cognizance stage. Section 2(c) of the PC Act deals
with the definition of the expression "public servant" and
provides under Clauses (viii) and (xii) as under:                        D

    "(viii) any person who holds an office by virtue of which he
    is authorised or required to perform any public duty.

    (xii) any person who is an office-bearer or an employee of           E
    an educational, scientific, social, cultural or other institution,
    in whatever manner established, receiving or having
    received any financial assistance from the Central
    Government or any State Government, or local or other
    public authority."
                                                                         F
The relevant provision for sanction is given in Section 19(1) of
the PC Act, which reads as under:

            "19. Previous sanction necessary for
    prosecution.-(1) No court shall take cognizance of an                G
    offence punishable under Sections 7, 10, 11, 13 and 15
    alleged to have been committed by a public servant,
    except with the previous sanction-

      (a)    in the case of a person who is employed in
             connection with the affairs of the Union and is not         H
    880          SUPREME COURT REPORTS               [2013] 9 S.C.R.


A                 removable from his office save by or with the
                  sanction of the Central Government, of that
                  Government;

           (b)    in the case of a person who is employed in
B                 connection with the affairs of a State and is not
                  removeable from his office save by or with the
                  sanction of the State Government, of that
                  Government;

           (c)    in the case of any other person, of the authority
c                 competent to remove him from his office."

    Section 19(3) of the PC Act also has some relevance; the
    operative portion of the same is extracted hereunder:

          "Section 19(3) - Notwithstanding anything contained in the
D
          Code of Criminal Procedure, 1973 (2 of 1974)-

           (a)    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
E                 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;

           (b)     )()()(         )()()(                           )()()(
F
           (c)     xxx            )()()(                          xxx''

       13. Learned senior counsel appearing for the appellants
  raised the contention that the requirement of sanction is only
G procedural in nature and hence, directory or else Section 19(3)
  would be rendered otiose. We find it difficult to accept that
  contention. Sub-section (3) of Section 19 has an object to
  achieve, which applies in circumstances where a Special
  Judge has already rendered a finding, sentence or order. In
H such an event, it shall not be reversed or altered by a court in
          ANIL KUMAR & ORS. v. M. K. AIYAPPA                      881
               [K.S. RADHAKRISHNAN, J.]

appeal, confirmation or revision on the ground of absence of              A
sanction. That does not mean that the requirement to obtain
sanction is not a mandatory requirement. Once it is noticed that
there was no previous sanction, as already indicated in various
judgments referred to hereinabove, the Magistrate cannot order
investigation against a public servant while invoking powers              B
under Section 156(3) Cr.P.C. The above legal position, as
already indicated, has been clearly spelt out in Paras Nath
Singh and Subramanium Swamy cases (supra).

     14. Further, this Court in Criminal Appeal No. 257 of 2011           C
in the case of General Officer, Commanding v. CBI and
opined as follows:

       'Thus, in view of the above, the law on the issue of sanction
       can be summarized to the effect that the question of
       sanction is of paramount importance for protecting a public        D
       servant who has acted in good faith while performing his
       duty. In order that the public servant may not be
       unnecessarily harassed on a complaint of an unscrupulous
       person, it is obligatory on the part of the executive authority
       to protect him ..... If the law requires sanction, and the court   E
       proceeds against a public servant without sanction, the
       public servant has a right to raise the issue of jurisdiction
       as the entire action may be rendered void ab-initio."

     15. We are of the view that the principles laid down by this         F
Court in the above referred judgments squarely apply to the
facts of the present case. We, therefore, find no error in the
order passed by the High Court. The appeals lack merit and
are accordingly dismissed.

R.P.                                           Appeals dismissed.         G