MANJU SURANA versus SUNIL ARORA & ORS.

[2018] 3 S.C.R.

MANJU SURANA

SUNIL ARORA & ORS.

(Criminal Appeal No. 457 of 2018)

MARCH 27, 2018

[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]

Prevention of Corruption Act, 1988 – s.19 – Previous sanctionnecessary for prosecution – Allegation of corruption in respect ofa public servants – Prior sanction for prosecution – RequirementCof, before setting in motion even the investigative process u/s. 156(3)Cr.P.C – Held: Question would be whether in cases of the P.C. Act,a different import has to be read qua the power to be exercisedu/s. 156(3) – Whether on account of s.19(1), the scope of inquiry u/s. 156(3) Cr.P.C. can be said to be one of taking ‘cognizance’Dthereby requiring the prior sanction in case of public servant –Prior sanction to prosecute public servant for offences under theP.C. Act is provision contained under Chapter 14 Cr.P.C. – Thus,it has to be seen whether such purport can be imported intoChapter 12 Cr.P.C. while directing an investigation u/s. 156(3)Cr.P.C., merely because public servant would be involved – InEview of the complexity arising in respect of the interplay of the P.C.Act offences read with the Cr.P.C., matter referred to larger Bench –Code of Criminal Procedure, 1973 – s. 156(3).

Referring the matters to larger Bench, the Court

FHELD: 1.1 There is no doubt that even at the stage of156(3) of the Code of Criminal Procedure, 1973, while directingan investigation, there has to be an application of mind by theMagistrate. Thus, it may not be an acceptable proposition tocontend that there would be some consequences to follow, werethe Magistrate to act in mechanical and mindless manner. ThatGcannot be the test. [Para 33] [713-F]

1.2 The question would be whether in cases of thePrevention of Corruption Act, 1988, different import has to beread qua the power to be exercised under Section 156(3) of theCr.P.C., i.e., can it be said that on account of Section 19(1) of theH

P.C. Act, the scope of inquiry under Section 156(3) of the Cr.P.C.can be said to be one of taking ‘cognizance’ thereby requiringthe prior sanction in case of public servant. It is trite to say thatprior sanction to prosecute public servant for offences underthe P.C. Act is provision contained under Chapter 14 of theCr.P.C. Thus, it has to be seen whether such purport can beimported into Chapter 12 of the Cr.P.C. while directing aninvestigation under Section 156(3) of the Cr.P.C., merely becausea public servant would be involved. [Para 34] [713-G; 714-A-B]

1.3 It was observed in Suresh Chand Jain v. State of MadhyaPradesh that even at pre-cognizance stage under Section 156(3)of the Cr.P.C., it is open to the Magistrate to direct the police toregister an FIR and that even if the Magistrate does not say inso many words while directing investigation under Section 156(3)of the Code that an FIR should be registered, it is the duty of theofficer in charge of the police station to register the FIR regardingthe cognizable offence disclosed by the complainant because thatpolice officer could take further steps contemplated in ChapterXII of the Code only thereafter. The apprehension expressed byASG arises from these observation. [Para 35] [714-C-D]

1.4 The complete controversy referred to aforesaid and theconundrum arising in respect of the interplay of the P.C. Actoffences read with the Cr.P.C. is, thus, required to be settled bya larger Bench. [Para 36] [714-E]

Crl.M.P. 161/2015 IN SLP (Crl.) No. 5838/2014.

2.1 In the present Special Leave Petition, notice wasissued to the respondents, except respondent No. 4. Since theproceedings before the Magistrate at the threshold were directedto be kept in abeyance without notice to the respondent, andthereafter the revision petition was dismissed in limine by theHigh Court, the occasion for respondent No.1 to haveknowledge of the proceedings did not arise. Respondent No.1sought deletion from the array of parties in these proceedings ashe has been wrongly arrayed as party. The said plea ispredicated on the averments in the complaint itself, which seeksto make grievance over the actions of the Principal Secretary,Public Health and Engineering Department (PHED) in which

Acapacity respondent No.1 is stated to have been arrayed. It isaverred in the application that respondent No.1 was serving as aSecretary and Principal Secretary to the Chief Minister and notas Principal Secretary, PHED. In fact, the officer working as thePrincipal Secretary, PHED has not been arrayed as respon-dent. There is no allegation made against the Secretary/PrincipalBSecretary to the Chief Minister. The allegation is of collusion ofthe respondents. [Paras 38 and 39] [714-G-H; 715-A-B]

2.2 No doubt the process under Section 156(3) Cr.P.C. isonly one of investigation. The larger question, of whether anysuch direction can be issued without prior sanction has beenCreferred to larger bench. Were the appellant to succeed andwere the matter to go back to the Magistrate and the Magistrateafter application of mind forms an opinion to direct investigationby the police, it would be always open to the Magistrate to includethe name of respondent No.1 if such material is found againstDhim. [Para 46] [716-D-E]

2.3 Merely because the appellant has roped in respondentNo.1 in the complaint is not sufficient ground to allow his nameto be included as such. The complaint is categorical – the role ofSecretary, PHED and the Principal Secretary has been questioned.EThat is the mindset with which the complainant knocked the doorsof the criminal courts. There was no allegation in respect of anyrole played by the Secretary/Principal Secretary to the ChiefMinister. It cannot be said to be mere mis-description of name,which can be corrected. It cannot be the stand of the appellantthat willy-nilly somehow, respondent No.1 must remain arrayedFas an accused in those proceedings, even though the proceedingsbefore the Magistrate are at the stage of only whether thereshould be direction for investigation or not. It is not that everyofficer in the Government has to be arrayed in respect of anyrole performed or not. The mere presence in one meeting ofGrespondent No.1 and that too when he was not signatory andreally had no role to play in that capacity, as apparent from theminutes, cannot be now used to justify his name being includedas an accused. This is clearly an afterthought. It is not for theappellant to question as to which officer should or should not bepresent. [Para 47] [716-F-H; 717-A]H

2.4 Respondent No.1 needs to be struck off from the arrayof parties both in the present proceedings and consequently inthe complaint. However, it is made clear that if situation ariseswhere investigation is directed under Section 156(3) Cr.P.C. andsome material comes to light to array respondent No.1 as anaccused, the order would not come in the way. [Para 48] [717-B]

Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705 :[2013] 9 SCR 869 ; P. Nallammal v. State (1999) 6 SCC559 : [1999] 1 Suppl. SCR 135 ; L. Narayana Swamyv. State of Karnataka (2016) 9 SCC 598 : [2016] 5SCR 683 ; R.R. Chari v. State of U.P. [1951] SCR312 ; Gopal Marwari v. Emperor AIR 1943 Pat 245 ;Superintendent and Remembrancer of Legal Affairs,West Bengal v. Abani Kumar Banerjee AIR 1950 Cal437 ; Gopal Das Sindhi v. State of Assam AIR 1961 SC986 ; Jamuna Singh v. Bhadai Shah [1964] 5 SCR 37 ;Nirmaljit Singh Hoon v. State of W.B. (1973) 3 SCC753 : [1973] 2 SCR 66 ; Devarapally LakshminarayanaReddy v. V. Narayana Reddy (1976) 3 SCC 252 :[1976] Suppl. SCR 524 ; Tula Ram v. Kishore Singh(1977) 4 SCC 459: [1978] 1 SCR 615 ; SrinivasGundluri v. SEPCO Electric Power Construction Corpn.(2010) 8 SCC 206 : [2010] 9 SCR 278 ; SubramanianSwamy v. CBI (2014) 8 SCC 682 : [2014] 6 SCR 873 ;Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668 :[2007] 9 SCR 1113 ; State of U.P. v. Paras Nath Singh(2009) 6 SCC 372 : [2009] 8 SCR 85 ; Ramdev FoodProducts (P) Ltd. v. State of Gujarat (2015) 6 SCC439 : [2015] 5 SCR 283 ; Suresh Chand Jain v. State ofMadhya Pradesh (2001) 2 SCC 628 : [2001] 1 SCR257; Mohd. Yousuf v. Afaq Jahan (2006) 1 SCC 627:[2006] 1 SCR 1 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal

ENo. 457 of 2018.

From the Judgment and Order dated 30.04.2014 of the HighCourt of Judicature for Rajasthan at Jaipur in S. B. Cr. Revision PetitionNo. 341 of 2014

WITH

Criminal Appeal No.458 of 2018.

Prashant Bhushan, Rohit Kumar Singh, Shakti Vardhan, Advs.for the Appellant.

Tushar Mehta, ASG, Shiv Mangal Sharma, S. S. Shamshery, AjayGKapur, AAGs, Vikas Singh, Sr. Adv., H. D. Thanvi, Rishi Matoliya, AnirudhSingh, Milind Kumar, Satya Mitra Garg, Anchit Sharma, Ms. Dipika Kalia,Kprish Seth, Nachiketa Joshi, Rajeev Sharma, Merusagar Samantaray,Gautam Jha, Nishant Ramakantrao Katneshwarkar, Advs. for theRespondents.

The Judgment of the Court was delivered bySANJAY KISHAN KAUL, J.CRIMINAL APPEAL NO.457 OF 2018

(Arising out of SLP (Crl.) No.5838 of 2014)

1. Leave granted.

2. The question of law sought to be raised in the appeals is as towhether prior sanction for prosecution qua allegation of corruption inrespect of public servants is required before setting in motion even theinvestigative process under Section 156(3) of the Code of CriminalProcedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’).

3. In Criminal Appeal No. 457 of 2018 (arising out of SLP (Crl.)No.5838 of 2014), the appellant submitted complaint before theSpecial Judge (Prevention of Corruption Act, Jaipur Metropolitan City,Jaipur) under Sections 7 & 13 of the Prevention of Corruption Act, 1988(hereinafter referred to as the ‘PC Act’) and Sections 420, 467, 468 &471 read with Section 120B of the Indian Penal Code, 1860(hereinafter referred to as the ‘IPC’). The appellant sought investigationof offences and registration of an FIR against the accused persons.The first respondent arrayed as an accused before the Special Judge as“Principal Secretary to the Government P.H.E.D. Chief Minister” is thefirst respondent before us, the other persons arrayed as accused beforethe Special Judge, being the Superintending Engineer, Chief Engineer,ex Chief Minister (as she then was), ex Minister of P.H.E.D., FinanceSecretary, Deputy Accountant General and P.S.L. Company through itsManaging Director are also before us, as the Respondents. It is allegedin the complaint that in the drinking water project Nos.1 to 8, aconspiracy was hatched for fulfilling the personal vested interest by wayof tender procedure, which caused loss to the Government fund. Thelast and the 8[th] accused was stated to be given the advantage for personalinterest. It is not necessary for the purpose of the present controversyto get into the detailed facts but suffice to say that as per the allegationsof the appellant, there was shortage of budget for running the projectsand the report of respondent No.1, then the Principal Secretary, dated20.4.2008 was liable to be perused. In order to make payments for theoutstanding and running projects, the Chief Secretary, accused No.1, isstated to have written proposal to the Finance Department but theFinance Secretary expressed his inability for making available such hugeamounts. The fund was stated to have been digressed.

A4. It is extremely relevant to note that from the facts, which havenow come to light, respondent No.1 herein was neither holding the postof the Principal Secretary of the P.H.E.D nor the Chief Secretary at therelevant stage of time and the description of his office is consequentlynot correct. The first respondent was actually holding the post ofPrincipal Secretary to the Chief Minister.B

5. The Special Judge closed the complaint in terms of order dated4.2.2014 on account of the fact that the accused persons arrayed asrespondents are either public servants or have remained as publicservants and no prior sanction has been granted by the competentauthority under Section 19 of the PC Act read with Section 197 of theCCr.P.C. To support this conclusion, reliance was placed on the judgmentof this Court in Anil Kumar v. M.K. Aiyappa[1] opining that no complaintcould be forwarded for investigation under Section 156(3) of the Cr.P.C.nor could any proceedings be initiated under Sections 202 & 202 of theCr.P.C. in the absence of such sanction. It was, thus, observed thatDfurther proceedings in the case would be conducted on the filing ofsanction.6. The appellant preferred revision petition against this order,which has been dismissed by the detailed impugned order dated30.4.2014. The order really refers to various judicial pronouncementsEand then concludes that in view of the judgment in Anil Kumar v. M.K.Aiyappa[2] and P. Nallammal v. State[3] both for the reasons of absenceof any sanction, as also the revision petition being directed against aninterlocutory order, the petition was not maintainable. Thereafter thepresent Special Leave Petition has been filed.

F7. We have heard learned counsel for the parties.

8. Mr. Prashant Bhushan, learned counsel appearing for theappellant sought to question the view taken in Anil Kumar[4] and in L.Narayana Swamy v. State of Karnataka[5] following the earlierjudgment. The sub-stratum of the argument is that the requirement ofGprior sanction for prosecution against the public servant would arise onlywhen cognizance is taken, while no such sanction was required at the

1 (2013) 10 SCC 7052 supra

3 (1999) 6 SCC 559

4 supra

5 (2016) 9 SCC 598

stage of setting into motion an investigation under Section 156(3) of theCr.P.C.. It was, thus, contended that the observations in these twojudgments are per incuriam or in conflict with the long line of earlierjudgments on the question as to when the cognizance can be stated tohave be taken. Mr. Bhushan drew our attention to Section 19(1) of thePC Act, which reads as under:

“19. Previous sanction necessary for prosecution -

(1) No court shall take cognizance of an offence punishableunder section 7, 10, 11, 13 and15 alleged to have been committedby public servant, except with the previous sanction,-

(a) in the case of person who is employed in connection withthe affairs of the Union and is not removable from his office saveby or with the sanction of the Central Government, of thatGovernment;

(b) in the case of person who is employed in connection withthe affairs of State and is not removable from his office save byor with the sanction of the State Government, of thatGovernment;

(c) in the case of any other person, of the authority competent toremove him from his office.”

9. He sought to emphasise that the bar is to the court taking“cognizance of an offence except with the previous sanction”.

10. We may next refer to Chapter XIV of the Cr.P.C., which isunder the heading “Conditions Requisite for Initiation of Proceedings”.Section 190 states as to when cognizance would be taken and isreproduced for convenience as under:

“190. Cognizance of offences by Magistrates.- (1) Subject tothe provisions of this Chapter, any Magistrate of the first class,and any Magistrate of the second class specially empowered inthis behalf under sub-section (2 ), may take cognizance of anyoffence-

(a) upon receiving complaint of facts which constitute suchoffence;

(b) upon police report of such facts;

A(c) upon information received from any person other than apolice officer, or upon his own knowledge, that such offence hasbeen committed.

(2) The Chief Judicial Magistrate may empower any Magistrateof the second class to take cognizance under sub-section (1 ) ofBsuch offences as are within his competence to inquire into or try.”

11. Section 197 of the Cr.P.C. under the same chapter prescribesa pre-condition of obtaining sanction before the court takes cognizanceagainst public servant. The relevant portion reads as under:

“197. Prosecution of Judges and public servants.- (1) WhenCany person who is or was Judge or Magistrate or public servantnot removable from his office save by or with the sanction of theGovernment is accused of any offence alleged to have beencommitted by him while acting or purporting to act in the dischargeof his official duty, no Court shall take cognizance of such offenceexcept with the previous sanction-D

(a) in the case of person who is employed or, as the case maybe, was at the time of commission of the alleged offence employed,in connection with the affairs of the Union, of the CentralGovernment;

(b) in the case of person who is employed or, as the case mayEbe, was at the lime of commission of the alleged offence employed,in connection with the affairs of State, of the State Government:

Provided that where the alleged offence was committed by aperson referred to in clause (b) during the period while aProclamation issued under clause (1) of Article 356 of theFConstitution was in force in State, clause (b) will apply as if forthe expression “State Government” occurring therein, theexpression “Central Government” were substituted.”

12. Once cognizance is taken the procedure is triggered off underChapter XV with the heading “Complaints to Magistrates”. It would besuffice to reproduce Section 200 as under:G

“200. Examination of complainant.- Magistrate takingcognizance of an offence on complaint shall examine upon oaththe complainant and the witnesses present, if any, and the substanceof such examination shall be reduced to writing and shall be signedby the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrateneed not examine the complainant and the witnesses—

(a) if public servant acting or purporting to act in the dischargeof his official duties or Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial toanother Magistrate under section 192:

Provided further that if the Magistrate makes over the case toanother Magistrate under section 192 after examining thecomplainant and the witnesses, the latter Magistrate need not re-examine them.”

13. The Magistrate, if he thinks fit, may postpone the issue ofprocess against the accused to inquire the case himself or direct aninvestigation post taking cognizance, as per Section 202, which isreproduced herein under:

“202. Postponement of issue of process.- (1) Any Magistrate,on receipt of complaint of an offence of which he is authorisedto take cognizance or which has been made over to him undersection 192 , may, if he thinks fit [and shall in case where theaccused is residing at place beyond the area in which heexercises his jurisdiction], postpone the issue of process againstthe accused, and either inquire into the case himself or direct aninvestigation to be made by police officer or by such other personas he thinks fit, for the purpose of deciding whether or not there issufficient ground for proceeding:

Provided that no such direction for investigation shall be made-

(a) where it appears to the Magistrate that the offence complainedof is triable exclusively by the Court of Sessions; or

(b) where the complaint has not been made by Court, unless thecomplainant and the witnesses present (if any) have beenexamined on oath under section 200 .

(2) In an inquiry under sub-section (1), the Magistrate may, if hethinks fit, take evidence of witness on oath:

Provided that if it appears to the Magistrate that the offencecomplained of is triable exclusively by the Court of Session, heshall call upon the complainant to produce all hi s witnesses andexamine them on oath.

A(3) If an investigation under sub-section (1) is made by personnot being police officer, he shall have for that investigation allthe powers conferred by this Code on an officer in charge of apolice station except the power to arrest without warrant.”

14. Keeping in mind the aforesaid provisions, we now turn toBChapter XII with the heading “Information to the Police and their powersto investigate”. Section 156 forms part of this Chapter and reads asunder:

“156. Police officer’s power to investigate cognizable cases.-C(1) Any officer in charge of police station may, without theorder of Magistrate, investigate any cognizable case which aCourt having jurisdiction over the local area within the limits ofsuch station would have power to inquire into or try under theprovisions of Chapter XIII.

D(2) No proceeding of police officer in any such case shall at anystage be called in question on the ground that the case was onewhich such officer was not empowered under this section toinvestigate.

(3) Any Magistrate empowered under section 190 may order suchEan investigation as above-mentioned.”

15. The relevant provision is Section 156(3) of the Cr.P.C. wherea Magistrate is empowered to make an order of investigation in terms ofsub-sections (1) & (2).

16. It is, thus, the submission of Mr. Prashant Bhushan that thereis distinction between the investigation carried out at pre-cognizancestage, which would not face the requirement of prior sanction qua apublic servant, as against post-cognizance proceeding which needsprior sanction. We may also notice that in terms of sub-section (4) ofGSection 5 of the PC Act, for the proceedings before Special Judgeunder the PC Act, the Special Judge shall be deemed to be Magistrate.

17. In the aforesaid context, he referred to catena of judgments.We have analyzed those and some other cases dealing with the issue.

Judgments on the nature of proceedings being an inquiry underSection 156(3) of the Cr.P.C.:

18. In R.R. Chari v. State of U.P.[6], three Judges Bench of thisCourt, in the inception years of this Court, referred to Gopal Marwariv. Emperor[7]qua the observations that the word ‘cognizance’ indicatesthe point when Magistrate or Judge first takes judicial notice of anoffence. This was different from initiation of proceedings. The word‘cognizance’ was somewhat of an indefinite import and perhaps notused exactly in the same sense. Thereafter it proceeded to notice theobservations of Das Gupta, J. in Superintendent and Remembrancerof Legal Affairs, West Bengal v. Abani Kumar Banerjee[8] whereobservations were made to the effect that what is taking cognizance hasnot been defined in the Cr.P.C., but it could be said that any Magistratewho has taken cognizance of any offence under Section 190(1)(a) ofthe Cr.P.C. must not only have applied his mind to the contents of thepetition but must have done so for the purpose of proceeding in aparticular way as indicated in the subsequent provisions of this Chapter– proceedings under Section 200 and thereafter under Section 202.However, when the Magistrate applies his mind, not for the purpose ofproceeding under the subsequent sections of this Chapter, but for someother kind, e.g. ordering investigation under Section 156(3) or issuing asearch warrant for the purposes of the investigation, he could not besaid to have taken cognizance of offence. The Supreme Court gives itsimprimatur to these observations.

19. Gopal Das Sindhi v. State of Assam[9] (three Judges Bench),the decision in R.R. Chari[10] was followed.

20. Jamuna Singh v. Bhadai Shah[11] (three Judges Bench),the decision in R.R. Chari[12] was followed.

21. In Nirmaljit Singh Hoon v. State of W.B.[13] (three JudgesBench), it was sought to be canvassed that the investigation by the police

6 1951 SCR 3127 AIR 1943 Pat 2458 AIR 1950 Cal 437

9 AIR 1961 SC 986

10 supra11 (1964) 5 SCR 3712 supra13 (1973) 3 SCC 753

Abeing one ordered by the Chief Presidency Magistrate under Section156(3) of the Cr.P.C., that investigation was part of the proceedings ofthe Court. This plea was rejected inter alia on the ground that thepolice authorities have, under Sections 154 & 156 of the Cr.P.C., astatutory right to investigate into cognizable offence without requiringany sanction from judicial authority. Secondly, for taking cognizanceBunder Section190(1)(a) of the Cr.P.C., Magistrate must not only haveapplied his mind but must have done so for purposes of proceedingunder Section 200 and the provisions following that Section. Theapplication of mind only for ordering investigation under Section 156(3)or issuing warrant for purposes of investigation could not be said toChave taken cognizance of the offence.

22. Devarapally Lakshminarayana Reddy v. V. NarayanaReddy[14] (three Judges Bench) – Mr. Prashant Bhushan referred to theaforesaid judgment for analysis of Section 156(3) of the Cr.P.C. In para13, it has been observed that when Magistrate receives complaint heDis not bound to take cognizance if the facts alleged in the complaint,disclose the commission of an offence. Only if he forms an opinion thatthe allegations therein disclose cognizable offence and the forwardingof the complaint to the police for investigation under Section 156(3) willbe conducive to justice and save the valuable time of the Magistratefrom being wasted in enquiring into matter which was primarily theEduty of the police to investigate, he will be justified in adopting that courseas an alternative to taking cognizance of the offence, himself. Thereafterin paras 14 & 17, it has been observed as under:

“14. This raises the incidental question: What is meant by “takingcognizance of an offence” by Magistrate within the contemplationFof Section 190? This expression has not been defined in the Code.But from the scheme of the Code, the content and marginal headingof Section 190 and the caption of Chapter XIV under whichSections 190 to 199 occur, it is clear that case can be said to beinstituted in court only when the court takes cognizance of theGoffence alleged therein. The ways in which such cognizance canbe taken are set out in clauses (a), (b) and (c) of Section 190(1).Whether the Magistrate has or has not taken cognizance of theoffence will depend on the circumstances of the particular caseincluding the mode in which the case is sought to be instituted,

H14 (1976) 3 SCC 252

and the nature of the preliminary action, if any, taken by theMagistrate. Broadly speaking, when on receiving complaint,the Magistrate applies his mind for the purposes of proceedingunder Section 200 and the succeeding sections in Chapter XV tothe Code of 1973, he is said to have taken cognizance of theoffence within the meaning to Section 190(1) (a). If, instead ofproceeding under Chapter XV, he has, in the judicial exercise ofhis discretion, taken action of some other kind, such as issuing asearch warrant for the purpose of investigation, or orderinginvestigation by the police under Section 156(3), he cannot besaid to have taken cognizance of any offence.”

“17. Section 156(3) occurs in Chapter XII, under the caption :“Information to the Police and their powers to investigate”; whileSection 202 is in Chapter XV which bears the heading: “Ofcomplaints to Magistrates”. The power to order policeinvestigation under Section 156(3) is different from the power todirect investigation conferred by Section 202(1). The two operatein distinct spheres at different stages. The first is exercisable atthe pre-cognizance stage, the second at the post-cognizance stagewhen the Magistrate is in seisin of the case. That is to say in thecase of complaint regarding the commission of cognizableoffence, the power under Section 156(3) can be invoked by theMagistrate before he takes cognizance of the offence underSection 190(1)(a). But if he once takes such cognizance andembarks upon the procedure embodied in Chapter XV, he is notcompetent to switch back to the pre-cognizance stage and availof Section 156(3). It may be noted further that an order madeunder sub-section (3) of Section 156, is in the nature of aperemptory reminder or intimation to the police to exercise theirplenary powers of investigation under Section 156(1). Such aninvestigation embraces the entire continuous process whichbegins with the collection of evidence under Section 156 and endswith report or charge-sheet under Section 173. On the otherhand, Section 202 comes in at stage when some evidence hasbeen collected by the Magistrate in proceedings under ChapterXV, but the same is deemed insufficient to take decision as to

Athe next step in the prescribed procedure. In such situation, theMagistrate is empowered under Section 202 to direct, within thelimits circumscribed by that section an investigation “for thepurpose of deciding whether or not there is sufficient ground forproceeding”. Thus the object of an investigation under Section202 is not to initiate fresh case on police report but to assist theBMagistrate in completing proceedings already instituted upon acomplaint before him.”

23. In Tula Ram v. Kishore Singh[15] (two Judges Bench) – citedbefore us, it was observed that Sections 190 and 156(3) of the Cr.P.C.are mutually exclusive and work in totally different spheres. Thus, evenCif Magistrate receives complaint under Section 190, he can act underSection 156(3) provided that he does not take cognizance. Chapter 14deals with post cognizance stage while Chapter 12, so far as theMagistrate is concerned, deals with pre-cognizance stage, that is to saythat even when Magistrate starts acting under Section 190 and theDprovisions following, he cannot resort to Section 156(3). Thus, Section

202 would apply only in cases where the Magistrate has takencognizance and chooses to inquire into the complaint either himself orthrough any other agency. Before proceeding to do so, there may be asituation where the Magistrate, before taking cognizance himself, choosesto order pure and simple investigation under Section 156(3) of theECr.P.C.

24. Srinivas Gundluri v. SEPCO Electric Power ConstructionCorpn.[16] (two Judges Bench) – The Magistrate in the case had merelyallowed the application filed by the complainant under Section 156(3) ofthe Cr.P.C. and sent the same along with its annexure for investigationFby the police officer and that was held not to have amounted to havingtaken cognizance.

25. Subramanian Swamy v. CBI[17] (five Judges Bench) – It wasobserved that Section 156 of the Cr.P.C. enables an officer in chargeof police station to investigate cognizable offence. Insofar asGnon-cognizable offences are concerned, it was found that the policeofficer by virtue of Section 155 Cr.P.C. can investigate it after obtainingappropriate orders from the Magistrate having power to try such case

15(1977) 4 SCC 45916(2010) 8 SCC 206H17(2014) 8 SCC 682

or commit the case for trial regardless of the status of the officerconcerned. In view thereof, the scheme of Sections 155 and 156 of theCr.P.C. was held to indicate that the local police may investigate asenior government officer without previous approval of the CentralGovernment.

The Constitution Bench while dealing with the inquiry andinvestigation under the P.C. Act held that there was no basis to classifythe two sets of public servants differently on the ground that one set ofofficers is decision-making officers and not the other set of officers.

26. Despite the aforesaid catena of judgments, different pathhas been traversed in two judgments of this Court where the offencesalleged are under the P.C. Act read with the I.P.C.

27. In Anil Kumar v. M.K. Aiyappa[18] (two Judges Bench), theCourt proceeded to examine whether the Magistrate, while exercisinghis powers under Section 156(3) of the Cr.P.C., could act in mechanicalor casual manner and go on with the complaint after getting the report.In that context, reference was made to an earlier judgment in MaksudSaiyed v. State of Gujarat[19] case, where it was observed that therewas requirement of the application of mind by the Magistrate beforeexercising jurisdiction under Section 156(3) of the Cr.P.C. Thereafterthe Bench proceeded to draw conclusion that SpecialJudge/Magistrate cannot refer the matter under Section 156(3) of theCr.P.C. against public servant without valid sanction order.

28. The Bench further proceeded to examine whether the orderdirecting investigation under Section 156(3) of the Cr.P.C. would amountto taking cognizance of the offence since contention was raised thatthe expression “cognizance” appearing in Section 19(1) of the P.C. Actwould have to be construed as post-cognizance stage and notpre-cognizance stage and therefore, the requirement of sanction doesnot arise prior to taking cognizance of the offences of the P.C. Act.Insofar as the expression ‘cognizance’, which appears in Section 197 ofthe Cr.P.C. was concerned, reference was made to the judgment inState of U.P. v. Paras Nath Singh[20]. In that case it was observed thatthe jurisdiction of Magistrate to take cognizance of any offence is

18supra

19(2008) 5 SCC 668

20(2009) 6 SCC 372

Aprovided by Section 190 of the Cr.P.C. and so far as the public servantwas concerned this was clearly barred by Section 197 of the Cr.P.C.unless the sanction was obtained from the appropriate authority. Afterreferring to certain other judgments on the issue of purport and meaningof the word ‘cognizance’, it was concluded that ‘cognizance’ has widerconnotation and is not merely confined to the stage of taking cognizanceBof the offence.

29. The Bench proceeded to discuss Section 19(1) of the P.C.Act as also Section 19(3) of the P.C. Act, which reads as under:

“19. Previous sanction necessary for prosecution.—

C….….….….….(3) Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974),—

(a) no finding, sentence or order passed by special Judge shallbe reversed or altered by court in appeal, confirmation or revisionDon the ground of the absence of, or any error, omission orirregularity in, the sanction required under sub-section (1), unlessin the opinion of that court, failure of justice has in fact beenoccasioned thereby;

(b) no court shall stay the proceedings under this Act on the groundEof any error, omission or irregularity in the sanction granted by theauthority, unless it is satisfied that such error, omission or irregularityhas resulted in failure of justice;

(c) no court shall stay the proceedings under this Act on any otherground and no court shall exercise the powers of revision in relationto any interlocutory order passed in any inquiry, trial, appeal orFother proceedings.”

30. It was sought to be contended that the requirement ofsanction was only procedural in nature and hence directory or elseSection 19(3) of the P.C. Act would be rendered otiose. This contentionwas not found acceptable as sub-section (3) of Section 19 of the P.C.GAct had an object to achieve, which applied only in circumstances wherea Special Judge had already rendered finding, sentence or order. Thiswould not mean that the requirement to obtain sanction was not amandatory requirement. In the absence of prior sanction, it wasobserved, that the Magistrate cannot order investigation against publicHservant even while invoking power under Section 156(3) of the Cr.P.C.

31. L. Narayana Swamy v. State of Karnataka[21] (two JudgesBench) – The judgment in Anil Kumar v. M.K. Aiyappa[22] wasfollowed. After discussing various other pronouncements, it wasconcluded that even while directing an inquiry under Section 156(3) ofthe Cr.P.C., the Magistrate applies his judicial mind to the complaint andtherefore, it would amount to taking cognizance of the matter.

32. Mr. Tushar Mehta, learned Additional Solicitor General soughtto canvas the view taken in the last two judgments referred to aforesaidto submit that application of mind was necessary to exercise powerunder Section 156(3) of the Cr.P.C. and that credibility of informationwas to be weighed before ordering investigation (Ramdev FoodProducts (P) Ltd. v. State of Gujarat[23]). It was, thus, submitted thatallegation against public servant under the P.C. Act offences aretechnical in nature and would require higher evaluation standard andthus the Magistrates ought to apply their mind before orderinginvestigation against public servant. The consequences of startinginvestigation under Section 156(3) of the Cr.P.C., it was submitted, wouldresult in the police registering an FIR (Suresh Chand Jain v. State ofMadhya Pradesh[24] and Mohd. Yousuf v. Afaq Jahan[25]). Thus, asituation may arise where Magistrate may exercise his power underSection 156(3) of the Cr.P.C. in routine manner resulting in an FIRbeing registered against public servant, who may have no role in theallegation made.

33. We have examined the rival contentions and do find adivergence of opinion, which ought to be settled by larger Bench.There is no doubt that even at the stage of 156(3), while directing aninvestigation, there has to be an application of mind by the Magistrate.Thus, it may not be an acceptable proposition to contend that there wouldbe some consequences to follow were the Magistrate to act in amechanical and mindless manner. That cannot be the test.

34. The catena of judgments on the issue as to the scope andpower of direction by Magistrate under Chapters 12 & 14 is wellestablished. Thus, the question would be whether in cases of the P.C.Act, different import has to be read qua the power to be exercised

21 (2016) 9 SCC 59822 supra23 (2015) 6 SCC 43924 (2001) 2 SCC 62825 (2006) 1 SCC 627

Aunder Section 156(3) of the Cr.P.C., i.e., can it be said that on accountof Section 19(1) of the P.C. Act, the scope of inquiry under Section156(3) of the Cr.P.C. can be said to be one of taking ‘cognizance’ therebyrequiring the prior sanction in case of public servant? It is trite to saythat prior sanction to prosecute public servant for offences under theP.C. Act is provision contained under Chapter 14 of the Cr.P.C. .BThus, whether such purport can be imported into Chapter 12 of theCr.P.C. while directing an investigation under Section 156(3) of theCr.P.C., merely because public servant would be involved, would began answer.

35. The apprehension expressed by the learned ASG possibly arisesCfrom the observations in Suresh Chand Jain v. State of MadhyaPradesh[26] followed in Mohd. Yousuf v. Afaq Jahan[27]. Thus, theobservations are to the effect that even at pre-cognizance stage underSection 156(3) of the Cr.P.C., it is open to the Magistrate to direct thepolice to register an FIR and that even if the Magistrate does not say in

Dso many words while directing investigation under Section 156(3) of theCode that an FIR should be registered, it is the duty of the officer incharge of the police station to register the FIR regarding the cognizableoffence disclosed by the complainant because that police officer couldtake further steps contemplated in Chapter XII of the Code only thereafter.

36. The complete controversy referred to aforesaid and theEconundrum arising in respect of the interplay of the P.C. Act offencesread with the Cr.P.C. is, thus, required to be settled by larger Bench.37. The papers may be placed before Hon’ble the Chief Justiceof India for being placed before Bench of appropriate strength.

Crl. M.P. 161/2015 in SLP (Crl.) No.5838/2014

38. We have passed detailed order making reference to alarger Bench insofar as the main matter is concerned. It may be noticedthat in the present Special Leave Petition, notice was issued to theRespondents, except Respondent No. 4. Since the proceedings beforethe Magistrate at the threshold were directed to be kept in abeyanceGwithout notice to the Respondent, and thereafter the revision petitionwas dismissed in limine by the High Court, the occasion forRespondent No.1 to have knowledge of the proceedings did not arise.Respondent No.1 seeks deletion from the array of parties in theseproceedings as he has been wrongly arrayed as party.26supraH27supra

39. The aforesaid plea is predicated on the averments in the com-plaint itself, which seeks to make grievance over the actions of thePrincipal Secretary, Public Health and Engineering Department (PHED)in which capacity respondent No.1 is stated to have been arrayed. It isaverred in the application that respondent No.1 was serving as aSecretary and Principal Secretary to the Chief Minister and not asPrincipal Secretary, PHED. In fact, the officer working as the PrincipalSecretary, PHED has not been arrayed as respondent. There is noallegation made against the Secretary/Principal Secretary to the ChiefMinister. The allegation is of collusion of the respondents.40. In terms of the averments in the application, respondent No.1sought to point out that there are only two references to him as accusedNo.1 - Para 4(iv) and Para 8. These are in the context of inviting tenders,shortage of budget for running the current projects and the report ofstated accused No.1 as the Principal Secretary. The second referenceis to the stated accused No.1 as the Chief Secretary, who wrote aproposal to the Finance Department whereupon the Finance Secretaryexpressed his inability for making available such huge amount. Onceagain, respondent No.1 was not holding the post of the Chief Secretarynor is the Chief Secretary then arrayed as party.

41. Our attention was also drawn to the notings file, which are ofthe Chief Engineer (SP) and approved by the Secretary, PHED and theHon’ble Minister, PHED. It is, thus, alleged that respondent No.1 wasneither involved with the decision making process nor he held any of thetwo posts.

42. The application is sought to be opposed and counteraffidavit was filed by the appellant. It is stated that respondent No.1 istrying to take undue advantage of the inadvertent mistake of theappellant in mentioning his correct designation while filing the criminalcomplaint. It is alleged that respondent No.1 was very much involvedwith the decision making process. In any case the merit of thecomplaint of the appellant is yet to be examined.

43. On 20.2.2018, we had issued directions for the appellant toplace on record the material placed before the Magistrate in support ofthe complaint indicating the alleged involvement of respondent No.1. Inresponse thereto, supplementary affidavit was filed by the appellant.On this behalf file noting of 9.5.2008 is referred to. The discussion

Awas with regard to the funding of the same project and the presence ofrespondent No.1 is noted though undisputedly the minutes are not signedby him while they are signed by other officers. It has been averred thatsince the Principal Secretary to the Chief Minister had no role to play inthe discussion, why was he/respondent No.1 present?

B44. We may also note the submission of learned counselfor respondent No.1 that in case situation arises where the Magistratehas to proceed on the complaint under Section 156(3) of the Cr.P.C. andduring investigation some material is found, the counsel cannot reallyobject to the inclusion of the name of respondent No.1 at that stage.However, inclusion at this stage is stated to be without any materialCfacts and is an embarrassment, considering the constitutional positionheld by respondent No.1.

45. We have given thought to the respective pleas of the parties.

46. No doubt the process under Section 156(3) of the Cr.P.C. isDonly one of investigation. The larger question, of whether any suchdirection can be issued without prior sanction has been referred to alarger bench. Were the appellant to succeed and were the matter to goback to the Magistrate and the Magistrate after application of mind formsan opinion to direct investigation by the police, it would be always opento the Magistrate to include the name of respondent No.1 if such materialEis found against him.47. Merely because the appellant has roped in respondent No.1 inthe complaint is not sufficient ground to allow his name to be included assuch. The complaint is categorical – the role of Secretary, PHED andthe Principal Secretary has been questioned. That is the mindset withFwhich the complainant knocked the doors of the criminal courts. Therewas no allegation in respect of any role played by the Secretary/PrincipalSecretary to the Chief Minister. It cannot be said to be meremis-description of name, which can be corrected. It cannot be the standof the appellant that willy-nilly somehow, respondent No.1 must remainGarrayed as an accused in those proceedings, even though theproceedings before the Magistrate are at the stage of only whether thereshould be direction for investigation or not. It is not that every officerin the Government has to be arrayed in respect of any role performed ornot. The mere presence in one meeting of respondent No.1 and that toowhen he was not signatory and really had no role to play in that capacity,

as apparent from the minutes, cannot be now used to justify his namebeing included as an accused. This is clearly an afterthought. It is notfor the appellant to question as to which officer should or should not bepresent.

48. We are, thus, of the view that respondent No.1 needs to bestruck off from the array of parties both in the present proceedings andBconsequently in the complaint. We, however, make it clear that if asituation arises where investigation is directed under Section 156(3) ofthe Cr.P.C. and some material comes to light to array respondent No.1as an accused, our order would not come in the way.

49. The application is accordingly allowed, leaving the parties tobear their own costs.

CRIMINAL APPEAL NO.458 OF 2018

(Arising out of SLP (Crl.) No.1092 of 2015)

50. Leave granted.

51. The matter is referred to larger Bench along with SLP (CRL.)No.5838/2014 in terms of the judgment passed today.

Nidhi Jain

Matters referred to larger Bench.