The 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) CrPC.
The above legal position, as already indicated, has been
clearly spelt out in Paras Nath Singh [(2009) 6 SCC 372 :
(2009) 2 SCC (L&S) 200] and Subramanian Swamy
[(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2
SCC (L&S) 666] cases.”
Having regard to the ratio of the aforesaid judgment, we have no
hesitation in answering the question of law, as formulated in para 7
above, in the negative. In other words, we hold that an order directing
further investigation under Section 156(3) of the Cr.P.C. cannot be
passed in the absence of valid sanction.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 721 OF 2016
L. NARAYANA SWAMY
V
STATE OF KARNATAKA & ORS.
Citation:(2016) 9 SCC598
Before adverting to the question of law that has been raised in
these appeals (which is common to both the cases), we would like to
traverse through the facts and the background which has led to the filing
of the present appeals.
2. Respondent No.2 (hereinafter referred to as the 'complainant') filed a
complaint on the basis of which a case has been registered against the
appellants, who are accused Nos. 3 and 5, for the offences punishable
under Section 13(1)(d) read with Section 13(2) of the Prevention ofPage 2
2
Corruption Act, 1947 (for short, 'P.C. Act') and Sections 120(b), 427, 447
and 506 read with Section 34 of the Indian Penal Code, 1860. The
complaint of the complainant contained the following allegations:
3. One Smt. Amararnmal was the original owner of immovable property
measuring 259.95 acres in Survey No. 597-B and an area measuring
57.30 acres in Survey No. 601-A of Bellari, having purchased the same
from the Government of India under a registered sale deed dated
January 19, 1940, registered in the office of the Sub-Registrar, Bellari.
The complaint further states that one Smt. Akula Lakshmamma and her
children had obtained money decree against one Pitarnbara Modaliyar
and in the execution of the said decree the decree holder purchased the
land measuring 27.25 acres through court and, thus, became owner of
the said property which is situated at Survey No. 597-B. Out of this
27.25 acres of land, an area measuring 10 acres of land was later
acquired by the Government for forming high level canal by
Thungabhadra Project. However, the revenue authorities failed to
demarcate the remaining extent of land measuring 17.25 acres which
forced Smt. Akula Lakshmamma and her children to file a suit seeking
mandatory injunction. In the meantime, they sold the said 17.25 acres of
land to one Mr. Parameshwara Reddy, father-in-law of Mr. Gali
Janardhana Reddy. On the same day, i.e. on October 24, 2002, Smt.
Akula Lakshmamma and her family members also entered into an
agreement for sale with accused No.6 (Mr. B. Sriramulu) for an area
measuring 27.25 acres, which included 10 acres of land that had already
been acquired by the Government. Thus, accused No.6 entered into
agreement for sale even in respect of the acquired land. More over,
accused No.6 and Mr. Gali Janardhana Reddy are close friends and,
therefore, there was no reason to hold that accused No.6 was not aware
of the transaction between Smt. Akula Lakshmamma and Mr.
Parameshwara Reddy. Accused No.6 filed a suit for specific
performance based on the said agreement to sell in which ex-parte
decree dated April 08, 2003 came to be passed. On April 21, 2003, Mr.
Parameshwara Reddy (with whom the first agreement to sell was
entered into) sought for change of land use (though in respect of this
very land accused No.6 had filed a suit for specific performance). The
then Deputy Commissioner accorded his permission for change of land
use vide order dated June 17, 2003. After this conversion order, Mr.
Parameshwara Reddy gifted the entire land measuring 17.25 acres in
faour of his daughter, Smt. Gali Laxmi Aruna, w/o. Mr. Gali Janardhana
Reddy vide gift deed dated March 21, 2006. It is alleged that accused
No.6 was fully aware of these facts. Notwithstanding the same, on the
basis of the ex-parte decree of specific performance obtained by him, he
filed execution petition and obtained the sale deed from the court in
respect of the entire 27.25 acres of land. It was notwithstanding the fact
that out of this 27.25 acres of land, in respect of which accused No.6
obtained the sale deed, 17.25 acres was claimed by Mr. Parameshwara
Reddy as well and has been gifted to his daughter and the remaining 10
acres of land had been acquired by the Government. Not only this,
accused No.6 also applied for conversion of use of this very land and the
authorities passed the order of conversion in his favour as well. As on
the date of the order of conversion, accused No.6 was holding the post
of Cabinet Minister. It is alleged that because of this reason he could
obtain the order of conversion by exerting influence on the revenue
authorities. Accused Nos. 3 and 5 (appellants herein) are the
Government officials working as Assistant Commissioner and Deputy
Director of Land Records respectively. In respect of the Government
officials, it is alleged that accused No.1, Revenue Inspector, had
conducted spot inspection on January 17, 2011; accused No.3, who is
the Tehsildar, had recommended case for conversion on the same day
and accused No.5, who is the Assistant Commissioner, had given an
endorsement to accused No.6 on the very next day to the effect that
property in question is not the subject matter of acquisition. On this
basis, it is alleged that all the officials aided accused No.6 by abusing
their official position. We may state at this stage itself that the appellants
cannot argue that there are no allegations against them in the complaint
warranting taking cognizance qua them.
On the basis of the aforesaid allegations, prayer was made in the
complaint to secure the presence of accused persons and the complaint
be referred to the Karnataka Lokayukta Police for investigation under
Section 156(3) of the Code of Criminal Procedure, 1973 (for short,
'Cr.P.C.') since the case required investigatory powers to unearth several
other documents relating to the case.
4. The District and Sessions Judge, Bellari passed order dated June 14,
2003 on the said complaint thereby referring the same to the Police
Inspector, Karnataka Lokayukta Police, Bellary for further investigation
under Section 156(3) of Cr.P.C. The jurisdictional police registered the
aforesaid case as Crime No. 9/2013 under Section 13(1)(d) read with
Section 13(2) of the P.C. Act and Sections 120(b), 427, 447 and 506
read with Section 34 of the Indian Penal Code, 1860. The appellants
herein, along with four other persons, filed Criminal Petition No. 10864 of
2013 before the High Court of Karnataka seeking quashing of the said
proceedings. In this petition, order dated July 08, 2013 was passed
observing that during the pendency of the matter, since the Police had
filed a final report, those petitioners were at liberty to challenge the final
report before the trial court.
5. According to the appellants, this order was passed by the High Court on
erroneous statement made by the counsel as neither the investigation
was completed nor final report was filed in the court. Therefore, these
appellants filed another Criminal Petition No. 101017 of 2014 seeking
quashing of the entire proceedings. In the petition, the grounds taken by
the appellants were that there was no allegation of any corrupt practice
in the entire complaint insofar as they are concerned. It was further
submitted that before directing further investigation under Section 156(3)
of Cr.P.C. and taking cognizance of the complaint, the trial court should
have satisfied itself that due sanction, as required under Section 19 of
the P.C. Act read with Section 190 of the Cr.P.C., has been obtained and
since no such sanction was obtained, such an order for further
investigation could not have been passed by the trial court.
It may be mentioned that at the time of filing the complaint, the
appellants had been transferred from the offices which they were holding
by virtue of their promotion. However, they submitted that even on
transfer they continued to hold the public office and, therefore,
requirement of obtaining sanction was mandatory.
6. The High Court has, however, brushed aside the aforesaid contentions
taken by the appellants and dismissed the petition filed by them.
Though the petition before the High Court was filed jointly by the
appellants, they had chosen to file separate appeals in this Court
challenging the said judgment. That is how these two appears filed by
them are aimed at same impugned judgment passed by the High Court.
7. With this factual background, we advert to the questions of law that arise
for consideration:
(1) Whether an order directing further investigation under
Section 156(3) of the Cr.P.C. can be passed in relation to
public servant in the absence of valid sanction and contrary to
the judgments of this Court in Anil Kumar & Ors. v. M.K.
Aiyappa & Anr.1
and Manharibhai Muljibhai Kakadia and
Anr. v. Shaileshbhai Mohanbhai Patel and Ors.2?
(2) Whether a public servant who is not on the same post and
is transferred (whether by way of promotion or otherwise to
another post) loses the protection under Section 19(1) of the
P.C. Act, though he continues to be a public servant, albeit on
a different post?
8. Since requirement of obtaining sanction is contained in Section 19(1) of
the P.C. Act, it would be proper to reproduce the same. For our
purposes, reproduction of sub-section (1) of Section 19 of the P.C. Act
shall suffice which we reproduce hereinbelow:
“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 [save as otherwise provided in the
Lokpal and Lokayuktas Act, 2013]—
(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;
1
(2013) 10 SCC 705
2
(2012) 10 SCC 517
(b) in the case of a person who is employed in connection
with the affairs of a State and is not removable from his
office save by or with the sanction of the State
Government, of that Government;
(c) in the case of any other person, of the authority
competent to remove him from his office.”
9. As is clear from the plain language of the said Section, the Court is
precluded from taking “cognizance” of an offence under certain sections
mentioned in this provision if the prosecution is against the public
servant, unless previous sanction of the Government (Central or State,
as the case may be) has been obtained. What is relevant for our
purposes is that this Section bars taking of cognizance of an offence.
The question is whether it will cover within its sweep order directing
investigation under Section 156(3) of the Cr.P.C? High Court has taken
the view, in the impugned judgment, that bar is from taking cognizance
which would not apply at the stage of investigation by investigating
officer. It is observed that sanction is required only after investigation
and that too when, after investigation, it is found that there is substantial
truth in the investigation report as to what amounts to cognizance of
offence. The High Court has referred to Section 190 of the Cr.P.C. which
stipulates that cognizance of an offence is to be taken under three
contingencies viz. (a) upon receiving a complaint of facts which
constitute such offence, or (b) on the basis of police report stating such
facts which constitute an offence or upon information received from any
person other than police officer, or (c) suo moto when Magistrate
acquires that such an offence has been committed. This position is
clearly discernible from the reading of Section 190 of the Cr.P.C. and we
extract the same hereinbelow:
“190. Cognizance of offences by Magistrates.- (1)
Subject to the provisions of this Chapter, any Magistrate of
the first class, and any Magistrate of the second class
specially empowered in this behalf under Sub-Section (2),
may take cognizance of any offence-
1. upon receiving a complaint of facts which constitute
such offence;
2. upon a police report of such facts;
3. upon information received from any person other than a
police officer, or upon his own knowledge, that such
offence has been committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance under
sub-section (1) of such offences as are within his
competence to inquire into or try.”
10. When a complaint is received, the Court records preliminary evidence of
the complainant on the basis of which it satisfies itself as to whether
sufficient evidence is placed on record which may prima facie constitute
such offence. Likewise, Police report is filed under Section 173(2) of the
Cr.P.C. on the completion of investigation and on perusal thereof, the
Magistrate satisfies himself about the facts which constitute such
offence. Similar is the position in the third contingency. On this basis,
the High Court has opined that since prior sanction is required only at
the time of taking cognizance which stage comes much after the
investigation is ordered under Section 156(3) of Cr.P.C. at the stage of
giving direction to investigate into the complaint, such a sanction is not
required.
11. The above view taken by the High Court is contrary to the judgments of
this Court in Manharibhai Muljibhai Kakadia and Anil Kumar. In
Manharibhai Muljibhai Kakadia, the facts were that the respondent
filed before the CJM a criminal complaint alleging that the appellant had,
by doing the acts stated, committed the offences punishable under
Sections 420, 467, 468, 471 and 120-B IPC. The CJM, in exercise of his
power under Section 202 CrPC by his order dated 18.06.2004 directed
an enquiry to be made by a police inspector. The investigating officer
investigated into the matter and submitted a compliant summary report
opining that no offence was made out. The CJM on 16.04.2005
accepted that report and dismissed the complaint. The respondent
complainant filed a criminal revision petition thereagainst under Section
397 read with Section 401 CrPC before the High Court. The appellants
then made an application seeking their impleadment as respondents in
the revision proceedings so that they could be heard in the matter. On
05.08.2005, the High Court dismissed that application. Against that
order, appeal was heard by special leave. This Court set aside the order
of the High Court permitting the appellants to be impleaded in the
revision proceedings. The Court took note of the provisions of Cr.P.C.
i.e. Section 202, which does not permit an accused person to intervene
in the course of inquiry by the Magistrate. However, it was held that
even while directing inquiry, the Magistrate applies his judicial mind on
the complaint and, therefore, it would amount to taking cognizance of the
matter. In this context, the Court explained the word “cognizance” in the
following manner:
“34. The word “cognizance” occurring in various sections
in the Code is a word of wide import. It embraces within
itself all powers and authority in exercise of jurisdiction and
taking of authoritative notice of the allegations made in the
complaint or a police report or any information received
that an offence has been committed. In the context of
Sections 200, 202 and 203, the expression “taking
cognizance” has been used in the sense of taking notice of
the complaint or the first information report or the
information that an offence has been committed on
application of judicial mind. It does not necessarily mean
issuance of process.”
12. Second judgment in the case of Anil Kumar referred to above is directly
on the point. In that case, identical question had fallen for consideration
viz. whether sanction under Section 19 of the P.C. Act is a pre-condition
for ordering investigation against a public servant under Section 156(3)
of Cr.P.C. even at pre-cognizance stage? Answering the question in the
affirmative, the Court discussed the legal position in the following
manner:
“13. The expression “cognizance” which appears in
Section 197 CrPC came up for consideration before a
three-Judge Bench of this Court in State of U.P. v. Paras
Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200],
and this Court expressed the following view: (SCC pp.
375, para 6)
“6. … ‘10. … 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.’ [Ed.: As observed in State of H.P. v.
M.P. Gupta, (2004) 2 SCC 349, 358, para 10 : 2004 SCC
(Cri) 539.] ”
14. In State of W.B. v. Mohd. Khalid [(1995) 1 SCC 684 :
1995 SCC (Cri) 266] , this Court has observed as follows:
“13. 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.” [Ed.: As considered
in State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728,
734, para 13 : (2006) 3 SCC (Cri) 179.]
The meaning of the said expression was also considered
by this Court in Subramanian Swamy case [(2012) 3 SCC
64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .
15. The judgments referred to hereinabove clearly
indicate that 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. When a
Special Judge takes cognizance of the offence on a
complaint presented under Section 200 CrPC and the next
step to be taken is to follow up under Section 202 CrPC.
Consequently, a Special Judge referring the case for
investigation under Section 156(3) is at pre-cognizance
stage.
21. The 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) CrPC.
The above legal position, as already indicated, has been
clearly spelt out in Paras Nath Singh [(2009) 6 SCC 372 :
(2009) 2 SCC (L&S) 200] and Subramanian Swamy
[(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2
SCC (L&S) 666] cases.”
Having regard to the ratio of the aforesaid judgment, we have no
hesitation in answering the question of law, as formulated in para 7
above, in the negative. In other words, we hold that an order directing
further investigation under Section 156(3) of the Cr.P.C. cannot be
passed in the absence of valid sanction.
13. With this, we now address the second question i.e. whether the public
servant not being in the same post, when the offence was allegedly
committed, though continuing as a public servant, loses the protection
under Section 19(1) of the P.C. Act? Contention of the respondents was
that sanction under Section 19 of the P.C. Act is not required as the
appellants have been transferred from the post which they were holding
at the relevant time. In support of their plea that even on
transfer/promotion, the appellants remain public servant, such a sanction
was required, it was submitted that the object of Section 19 of the P.C.
Act is to protect public servant from harassment and, therefore, exercise
of powers under Section 19 of the P.C. Act is not empty formality. Since
the Government, as a sanctioning authority, is supposed to apply its
mind to the entire material and evidence placed before it and on
examination thereof, it is to reach the conclusion as to whether the
sanction is accorded or not. It was also argued that sanction is a
weapon to ensure discouragement of frivolous and vexatious
prosecution and is a safeguard for the innocent but not a shield for the
guilty. In support of the aforesaid arguments, reliance was placed onPage 15
15
State of Himachal Pradesh v. Nishant Sareen3
and Mansukhlal
Vithaldas Chauhan v. State of Gujarat4
.
14. The aforesaid judgments referred to by the appellants state the general
proposition of law and purpose behind Section 19 of the P.C. Act. On
the other hand, the question that needs to be answered is concerned,
we find that it had same very question came up for consideration in
Abhay Singh Chautala v. Central Bureau of Investigation5
. In that
case, the appellants were MLAs when charges under the P.C. Act were
framed against them. However the charges pertained to wrongdoing
committed during earlier periods of time during which they had also been
MLAs or MPs. The charges did not pertain to their current tenure as
MLAs during which the charges were framed and trial initiated. On the
date when charges were framed no sanction under Section 19, P.C. Act
was obtained. An objection regarding the absence of sanction was
raised before the Special Judge, who in the common order held that the
charge-sheet did not contain the allegation that the appellants had
abused their current office as MLAs and, therefore, no sanction was
necessary. The High Court by the impugned order under Section 482
Cr.P.C. did not interfere with the said prosecution. This Court put its
imprimatur to the aforesaid view of the High Court thereby dismissing
the appeals. After discussing catena of judgments, it was held that even
3
(2010) 14 SCC 527
4
(1997) 7 SCC 622
5
(2011) 7 SCC 141Page 16
16
when the appellants in that case held more than one offices during the
check period which they are alleged to have abused; however, there will
be no requirement of sanction if on the date when the cognizance is
taken, they are not continuing to hold that very office. It was held that
the relevant time is the date on which the cognizance is taken. If on that
date, the appellant was not a public servant, there was no question of
any sanction. It was also held that even if he continues to be a public
servant but in a different capacity or is holding a different office than the
one which is alleged to have been abused, still there would be no
question of sanction. This can be found from the reading of paragraphs
54 and 56 of the judgment which we reproduce below:
“54. The learned Senior Counsel tried to support their
argument on the basis of the theory of “legal fiction”. We
do not see as to how the theory of “legal fiction” can work
in this case. It may be that the appellants in this case held
more than one offices during the check period which they
are alleged to have abused; however, there will be no
question of any doubt if on the date when the cognizance
is taken, they are not continuing to hold that very office.
The relevant time, as held in S.A. Venkataraman v. State
[AIR 1958 SC 107 : 1958 Cri LJ 254], is the date on which
the cognizance is taken. If on that date, the appellant is not
a public servant, there will be no question of any sanction.
If he continues to be a public servant but in a different
capacity or holding a different office than the one which is
alleged to have been abused, still there will be no question
of sanction and in that case, there will also be no question
of any doubt arising because the doubt can arise only
when the sanction is necessary. In case of the present
appellants, there was no question of there being any doubt
because basically there was no question of the appellants'
getting any protection by a sanction.
xx xx xxPage 17
17
56. Thus, we are of the clear view that the High Court was
absolutely right in relying on the decision in Prakash Singh
Badal v. State of Punjab to hold that the appellants in both
the appeals had abused entirely different office or offices
than the one which they were holding on the date on which
cognizance was taken and, therefore, there was no
necessity of sanction under Section 19 of the Act as held
in K. Karunakaran v. State of Kerala and the later decision
in Prakash Singh Badal v. State of Punjab. The appeals
are without any merit and are dismissed.”
15. In the aforesaid extracted paragraph 54 there is a reference to the
judgment of this Court in S.A. Venkataraman. In that case, the issue
was considered in the context of the P.C. Act wherein the relevant
provision, corresponding to Section 19 of the present P.C. Act, was
Section 6. Interpreting the provisions of Section 6, this Court held that
even when a purported offence is committed by a person at the time he
was a public servant, but he ceases to be a public servant on the date
when cognizance of the offence alleged to have been committed is
taken by the Court, no such sanction was required.
16. Likewise, in the case of Prakash Singh Badal & Anr. v. State of
Punjab & Ors.6
, the contention of the appellant in that case that
permission to obtain sanction throughout service was necessary, was
negatived in the following manner:
“24. The plea is clearly untenable as Section 19(1) of the
Act is time and offence related.
Section 19(1) of the Act has been quoted above.
6
(2007) 1 SCC 1
25. The underlying principle of Sections 7, 10, 11, 13 and
15 have been noted above. Each of the above sections
indicates that the public servant taking gratification
(Section 7), obtaining valuable thing without consideration
(Section 11), committing acts of criminal misconduct
(Section 13) are acts performed under the colour of
authority but which in reality are for the public servant's
own pleasure or benefit. Sections 7, 10, 11, 13 and 15
apply to aforestated acts. Therefore, if a public servant in
his subsequent position is not accused of any such
criminal acts then there is no question of invoking the
mischief rule. Protection to public servants under Section
19(1)(a) has to be confined to the time-related criminal
acts performed under the colour or authority for public
servant's own pleasure or benefit as categorised under
Sections 7, 10, 11, 13 and 15. This is the principle behind
the test propounded by this Court, namely, the test of
abuse of office.”
17. It clearly follows from the reading of the judgments in the cases of
Abhay Singh Chautala and Prakash Singh Badal that if the public
servant had abused entirely different office or offices than the one which
he was holding on the date when cognizance was taken, there was no
necessity of sanction under Section 19 of the P.C. Act. It is also made
clear that where the public servant had abused the office which he held
in the check up period, but had ceased to hold 'that office' or was holding
a different office, then sanction would not be necessary. Likewise,
where the alleged misconduct is in some different capacity than the one
which is held at the time of taking cognizance, there will be no necessity
to take the sanction. However, one discerning factor which is to be
noted is that in both these cases the accused persons were public
servants in the capacity of Member of Legislative Assembly / by virtue of
political office. They were not public servants as governmentPage 19
19
employees. However, detailed discussion contained in these judgments
would indicate that the principle laid down therein would encompass and
cover the cases of all public servants, including government employees
who may otherwise be having constitutional protection under the
provisions of Article 309 and 311 of the Constitution. To illustrate, we
may quote the following passage from the judgment of this Court in the
case of R.S. Nayak v. A.R. Antulay7
, which is reproduced along with
other paragraphs from the judgment in Prakash Singh Badal:
“23. Offences prescribed in Sections 161, 164 and 165
IPC and Section 5 of the 1947 Act have an intimate and
inseparable relation with the office of a public servant. A
public servant occupies office which renders him a public
servant and occupying the office carries with it the powers
conferred on the office. Power generally is not conferred
on an individual person. In a society governed by rule of
law power is conferred on office or acquired by statutory
status and the individual occupying the office or on whom
status is conferred enjoys the power of office or power
flowing from the status. The holder of the office alone
would have opportunity to abuse or misuse the office.
These sections codify a well-recognised truism that power
has the tendency to corrupt. It is the holding of the office
which gives an opportunity to use it for corrupt motives.
Therefore, the corrupt conduct is directly attributable and
flows from the power conferred on the office. This
interrelation and interdependence between individual and
the office he holds is substantial and not severable. Each
of the three clauses of sub-section (1) of Section 6 uses
the expression “office” and the power to grant sanction is
conferred on the authority competent to remove the public
servant from his office and Section 6 requires a sanction
before taking cognizance of offences committed by public
servant. The offence would be committed by the public
servant by misusing or abusing the power of office and it is
from that office, the authority must be competent to
remove him so as to be entitled to grant sanction. The
removal would bring about cessation of interrelation
7
(1984) 2 SCC 183
between the office and abuse by the holder of the office.
The link between power with opportunity to abuse and the
holder of office would be severed by removal from office.
Therefore, when a public servant is accused of an offence
of taking gratification other than legal remuneration for
doing or forebearing to do an official act (Section 161 IPC)
or as a public servant abets offences punishable under
Sections 161 and 163 (Section 164 IPC) or as public
servant obtains a valuable thing without consideration from
person concerned in any proceeding or business
transacted by such public servant (Section 165 IPC) or
commits criminal misconduct as defined in Section 5 of the
1947 Act, it is implicit in the various offences that the public
servant has misused or abused the power of office held by
him as public servant. The expression “office” in the three
sub-clauses of Section 6(1) would clearly denote that
office which the public servant misused or abused for
corrupt motives for which he is to be prosecuted and in
respect of which a sanction to prosecute him is necessary
by the competent authority entitled to remove him from
that office which he has abused. This interrelation between
the office and its abuse if severed would render Section 6
devoid of any meaning. And this interrelation clearly
provides a clue to the understanding of the provision in
Section 6 providing for sanction by a competent authority
who would be able to judge the action of the public servant
before removing the bar, by granting sanction, to the taking
of the cognizance of offences by the court against the
public servant. Therefore, it unquestionably follows that the
sanction to prosecute can be given by an authority
competent to remove the public servant from the office
which he has misused or abused because that authority
alone would be able to know whether there has been a
misuse or abuse of the office by the public servant and not
some rank outsider. By a catena of decisions, it has been
held that the authority entitled to grant sanction must apply
its mind to the facts of the case, evidence collected and
other incidental facts before according sanction. A grant of
sanction is not an idle formality but a solemn and
sacrosanct act which removes the umbrella of protection of
Government servants against frivolous prosecutions and
the aforesaid requirements must therefore, be strictly
complied with before any prosecution could be launched
against public servants. (See Mohd. Iqbal Ahmad v. State
of A.P. [(1979) 4 SCC 172 : 1979 SCC (Cri) 926 : AIR 1979
SC 677 : (1979) 2 SCR 1007] ) The Legislature advisedly
conferred power on the authority competent to remove the
public servant from the office to grant sanction for the
obvious reason that that authority alone would be able,
when facts and evidence are placed before him to judge
whether a serious offence is committed or the prosecution
is either frivolous or speculative. That authority alone
would be competent to judge whether on the facts alleged,
there has been an abuse or misuse of office held by the
public servant. That authority would be in a position to
know what was the power conferred on the office which
the public servant holds, how that power could be abused
for corrupt motive and whether prima facie it has been so
done. That competent authority alone would know the
nature and functions discharged by the public servant
holding the office and whether the same has been abused
or misused. It is the vertical hierarchy between the
authority competent to remove the public servant from that
office and the nature of the office held by the public
servant against whom sanction is sought which would
indicate a hierarchy and which would therefore, permit
inference of knowledge about the functions and duties of
the office and its misuse or abuse by the public servant.
That is why the Legislature clearly provided that that
authority alone would be competent to grant sanction
which is entitled to remove the public servant against
whom sanction is sought from the office.”
18. In the case of the present appellants, there was no question of the
appellants' getting any protection by a sanction. The High Court was
absolutely right in relying on the decision in Prakash Singh Badal to
hold that the appellants in both the appeals had abused entirely different
office or offices than the one which they were holding on the date on
which cognizance was taken and, therefore, there was no necessity of
sanction under Section 19, P.C. Act. Where the public servant had
abused the office which he held in the check period but had ceased to
hold “that office” or was holding a different office, then a sanction would
not be necessary. Where the alleged misconduct is in some different
capacity than the one which is held at the time of taking cognizance,
there will be no necessity to take the sanction.
19. Insofar as argument of the appellants that there is no specific averment
in the complaint for having committed the alleged act by them is
concerned, we are unable to agree with this argument. As already
pointed out above, allegations against these two appellants are that after
conducting spot inspection by accused No.1 on 17.01.2003, first
appellant (accused No.3) who was working as Tehsildar had
recommended it on same day and thereafter second appellant (accused
No.6) who was working as Assistant Commissioner had given an
endorsement on the very next day to the effect that property is not the
subject matter of acquisition. On this basis, it is alleged that these
officials have abused their official position. We may record that learned
counsel for the appellants have contended that they merely acted on the
court decree. However, it may be two innocent explanation on the facts
of this case as alleged in the case inasmuch as it is alleged that these
two appellants did not bother to find out that there were two decrees in
two different names in respect of same land and further that 10 acres of
land in question had already been acquired and could not be the subject
matter of decree. These were the aspects which were, prima facie, to
be looked into by these appellants. On the basis the aforesaid purported
defence, therefore, the proceedings cannot be quashed. It would be a
matter of evidence on the basis of which culpability of the appellants
shall be judged.
20. The aforesaid discussion leads us to the conclusion that the judgment of
the High Court though on the issue of obtaining the sanction at the time
of taking cognizance may not be correct insofar as question No.1
formulated above is concerned, in the facts of the present case, insofar
as question No.2 is concerned, it is rightly decided. Effect thereof would
be to hold that sanction was not needed as the appellants, at the time of
taking cognizance, were not holding the post which is alleged to have
been misused.
21. As a consequence, these appeals fail and are, accordingly, dismissed
with no order as to costs.
.............................................J.
(A.K. SIKRI)
..............................................J.
(N.V. RAMANA)
NEW DELHI;
SEPTEMBER 06, 2016.
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