PRIOR SANCTION FOR PROSECUTION IS MANDATORY

Submitted by ;AMBRISH PANDEY

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 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).

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1590-1591 OF 2013
(@ Special Leave Petition (Criminal) Nos.6652-6653 of 2013)
Anil Kumar & Ors.

Versus
M.K. Aiyappa & Anr.

K.S. RADHAKRISHNAN, J.

1. Leave granted.
2. We are in this case concerned with the question
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
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
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 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-B 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 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 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.
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 Cr.PC for
investigation and to report.”
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 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-cognizance
stage,
yet,
governmental sanction cannot be dispensed with.
the
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 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 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 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
appellants, submitted that if the interpretation of the High
Court is accepted, then the provisions of Section 19(3) of the
PC Act 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
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 SCC 626.
counsel
further
submitted
that
the
Learned senior
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
cognizance of the offence.
not
amount
to
taking
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.
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
another
Swamy
v.
(2012) 3 SCC 64.
Manmohan
Singh
and
Learned 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
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 SCC 668 and
submitted that the requirement of application of mind by the
Magistrate 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 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 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 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 mere
statement complaint,
that
he
has
gone
through
the
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
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.
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) of the PC Act will have to be construed as post-
cognizance stage, not pre-cognizance stage and, therefore,
the 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 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 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. 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 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’ 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 discharge of his official duty.


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 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 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
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
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 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
magisterial powers provided under the Code of Criminal
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 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
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:
“(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 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.”
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 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 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 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 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 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 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)
xxx
xxx
xxx

(c)
xxx
xxx
xxx”
13. Learned senior counsel appearing for the appellants
raised the contention that the requirement of sanction is only
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
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, 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) 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 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 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 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
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.

...................................J.
(K.S. Radhakrishnan)
.................................J.
(A.K. Sikri)
New Delhi,
October 01, 2013

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