By Jasmeet Singh Chadha
- INTRODUCTION
The recent judgment of the Hon’ble Supreme Court in Manju Surana v. Sunil Arora & Ors.[1] referring the controversy surrounding the mandatory requirement of procuring sanction for initiating investigation by the Magistrate in exercise of powers enumerated in Section 156(3) of the Code of Criminal Procedure when a complaint is filed by an aggrieved person against a public servant to a larger Bench, has raised questions about the legality of observations made by the Apex Court in the case of Anil Kumar v. M.K. Aiyappa,[2] wherein the Court opined that where jurisdiction has been exercised on a complaint filed in terms of section 156(3) or Section 200 CrPC, Magistrate is required to apply his mind, in such a case, the Magistrate cannot refer the matter under section 156(3) against a public servant without a valid sanction order. The Court also held that a direction initiating investigation against a public servant would require sanction in compliance of section 19 of the Prevention of Corruption Act, 1988,[3] and in the absence of prior sanction, order for investigation would be in contravention of section 19 of the Prevention of Corruption Act, 1988.
SECTION 156(3) OF THE CRIMINAL CODE: SCOPE AND APPLICABILITY
Investigation into commission of a crime can be commenced by two different modes. Firstly, where the police officer registers an FIR in relation to the commission of a cognizable offence and commences investigation in terms of Chapter XII of the Code and Secondly, when a Magistrate competent to take cognizance in terms of Section 190 CrPC may order an investigation into commission of a crime as per the provisions of Chapter XIV of the Code. Ordinarily, power of the Magistrate to direct investigation arises in two different situations:
- When a First Information Report is refused to be lodged;
- When the statutory power of investigation for some reason or the other is not conducted.[4]
Thus, Section 156(3) empowers the Magistrate to pass an order directing the police officer to initiate investigation in commission of alleged cognizable offence when the FIR is not recorded in terms of sub-section (1) of section 156 of the Code. So far as the term ‘Investigation’ is concerned, the same has been defined in section 2(h) of the Code to include all proceedings under the CrPC for collection of evidence conducted by a Police Officer or any person (other than a Magistrate) authorized by a Magistrate in this behalf.
In H.N. Rishbud v. State of Delhi,[5] the Apex Court dealt with the definition of ‘investigation’ under the Code of Criminal Procedure, 1898, which is same as under Section 2(h) of the new Code:
“…under the Code ‘investigation’ consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the ‘investigation’ and to be produced at the trial, and (5) Information of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of charge-sheet under Section 173.”
SANCTION UNDER SECTION 19 OF THE PREVENTION OF CORRUPTION ACT, 1988
Section 19 imposes a bar on the court to take cognizance of an offence till sanction is obtained from the Competent Government. The bar is against the court to take cognisance for the purposes of trial. Section 19 of the Prevention of Corruption Act states: “No court shall take cognisance of an offence… alleged to have been committed by a public servant except with the previous sanction.” Section 19 of the Prevention of Corruption Act, 1988 is similar to section 6 of the Prevention of Corruption Act, 1947 in as much as it imposed a bar upon the court to take cognizance unless sanction has been obtained from the competent authority. The Supreme Court has also time and again[6] called for mandatory compliance of section 19 of the Act and its implications for non-compliance.
DICTA IN ANIL KUMAR CASE IS BAD IN LAW
The question that comes for consideration is whether order directing investigation passed by the Magistrate under section 156(3) amounts to taking cognizance and thus requires prior sanction by the competent authority. The supreme court in the case of Anil Kumar v. M.K. Aiyappa[7] dealt with the term ‘Cognizance’ and held:
“According to Black’s Law Dictionary the word ‘Cognizance’ means ‘jurisdiction’ 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 offence alleged to have been committed during the discharge of his official duty.”
At the same time, the court also noted that occasion may arise where the Magistrate may have to exercise its limited power at the pre-cognizance stage, and remarked that mere direction calling for investigation under section 156(3) is passed at the pre-cognizance stage. However, despite conceding the same, it went on to conclude that since exercise of powers under section 156(3) required application of mind, sanction under section 19 of the Prevention of Corruption Act, 1988 was mandatory and in absence of such prior consent, no powers under section 156(3) can be exercised.[8]
The issue came for re-consideration before the Supreme Court in Manju Surana v. Sunil Arora & Ors. wherein the Court after considering the observations made in Anil Kumar case raised doubts about the legality of the same and while referring the issue to the larger bench remarked:
“There is divergence of opinion which ought to be settled by a Larger bench. There is no doubt that even at the stage of 156(3), while directing an investigation, there has to be an application of mind by the Magistrate. Thus, it may not be an acceptable proposition to contend that there would be some consequences to follow were the Magistrate to act in a mechanical and mindless manner. That cannot be the test.”
The catena of judgments on the issue as to the scope and power of direction by a Magistrate under Chapters XII & XIV is well established. Thus, the question would be whether in cases of the P.C. Act, a different import has to be read qua the power to be exercised under Section 156(3) of the Cr.P.C., i.e., can it be said that on account of Section 19(1) of the 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 requiring the prior sanction in case of a public servant?
Though the Division bench of the Supreme Court referred the matter to a Larger bench for the controversy to be settled, it is submitted that the observations made in Anil Kumar v. M.K. Aiyappa,[9] P. Nallammal v. Stat,e[10] and recent judgment of L. Narayana Swamy v. State of Karnataka,[11] calling for sanction before any investigation can be directed by the Magistrate under section 156(3) of the Code prima facie appears to be bad in law.
To substantiate the said submission, it is important to consider section 19 of the Prevention of Corruption Act, 1988 as well as section 197 of the Code of Criminal Procedure. Though both the provisions have certain differences, they essentially deal with procurement of sanction for prosecution of public servant who is alleged to have committed an offence. A bare reading of both these provisions would exhibit that sanction has to be obtained before the court concerned can take cognizance of the case made out against the said public servant. In other words, the court cannot apply its judicial mind unless sanction has been obtained from the Competent Authority. Thus, from the above it is clear that no bar has been imposed on the powers of the police to investigate into any complaint alleging the commission of an offence by a public servant.
It is further submitted that any interpretation of section 156(3) which provides for procurement of sanction before any investigation can be directed by the Magistrate is violative of Article 14 of the Constitution in as much as it fails to satisfy the ingredients mentioned in the said Article. There is no intelligible differentia to classify the applicability of section 156(3) as a separate class while leaving out section 19 of the Prevention of Corruption Act, 1988 and Section 197 of the Code of Criminal Procedure.
Secondly, the Apex Court in Anil Kumar Case opined that though order passed by Magistrate for investigation under Section 156(3) would not amount to taking cognizance, it concluded that since exercising such power requires application of mind, prior sanction is mandatory. However, this conclusion goes against the language of section 19 of the Prevention of Corruption Act, 1988 which imposes a bar on cognizance and does not speak of application of mind by the court. Moreover, the Apex Court failed to provide any rationale behind its observations in the said case.
Lastly, the Supreme Court has time and again[12] declared that mere direction for investigation passed by the Magistrate in exercise of his powers under Section 156(3) of the Code does not amount to taking cognizance but is only a pre-emptory order which does not require prior sanction. Even otherwise, it is noteworthy that the entire object of the criminal justice system is to bring the culprits to book and to penalize their illegal acts. In such a situation it must be assured that all possible hinderances towards achieving the said object be removed. The mandatory requirement of prior sanction to exercise the powers under section 156(3) of the Code leads to an additional requirement to be fulfilled by the prosecution and thus acts as an obstacle in the effective functioning of the Criminal Justice system.
CONCLUDING REMARKS
The purpose of Section 156(3) of the Code is limited and applies in cases where, though a cognizable offence has been made out, the police refuses to lodge an FIR. Socio-Economic conditions in India depict that the police generally refuse to lodge an FIR against the influential members of the society even though a cognizable offence is alleged to have been committed. In such a situation, the complainant becomes helpless and is denied justice. Under these circumstances, section 156(3) provides an alternative remedy to achieve the fundamental object of fair trial and access to justice for all by empowering the Magistrate to initiate investigation into the alleged cognizable offence.
Keeping in mind the above, upholding the views of the Supreme court in Anil Kumar Case would be denial of right to fair trial and thus it is safe to conclude that the dicta in Anil Kumar Case is bad in law for want of legality in as much as it makes the existence of section 156(3) futile. The mandatory requirement of obtaining sanction from the competent authority for passing direction to initiate investigation acts as an additional hinderance in the entire exercise of such powers. Moreover, it misinterprets the words prescribed in section 19 of the Prevention of Corruption Act, 1988 and thereby fails to consider the true intent of the legislature. The verdict in Anil Kumar Case being referred to a larger Bench, it is expected that the Supreme Court would consider the various aspects to the disputed question and an attempt be made to settle the law by striking a balance between shielding the honest and punishing the corrupt.
[The author is a final year law student at Amity Law School, Delhi.]
[1] (2018) 5 SCC 557.
[2] (2013) 10 SCC 705.
[3] Section 19 of the Prevention of Corruption Act, 1988 imposes a bar upon the competent court to take cognizance of an offence in the absence of sanction from the competent authority.
[4] Dharmeshbhai Vasudevbhai v. State of Gujarat (2009) 6 SCC 576.
[5] AIR 1955 SC 196.
[6] Mohd. Iqbab Ahmed v. State of Andhra Pradesh AIR 1979 SC 677; Mansukhlal Vithaldas v. State of Gujarat (1997) 7 SCC 622; State of Karnataka Thr. CBI v. C. Nagarajaswamy (2005) 8 SCC 370.
[7] Supra Note 2
[8] The court remarked: “The word ‘Cognizance’ has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under section 156(3) CrPC, 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…… 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 under section 156(3) CrPC.”
[9] (2013) 10 SCC 705.
[10] (1999) 6 SCC 559.
[11] (2016) 9 SCC 598.
[12] Anju Chaudhary v. State of Uttar Pradesh (2013) 6 SCC 384; Mona Pawar v. High Court of Judicature of Allahabad (2011) 3 SCC 496.
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