Supreme Court of India
L. NARAYANA SWAMYversusSTATE OF KARNATAKA & ORS.
- Citation
- 2016 INSC 856
- Decided
- 6 September 2016
- Disposal
- Dismissed
- Bench
- A K SIKRI
Holding
The Court held that prior sanction under Section 19(1) of the Prevention of Corruption Act is mandatory before a court can order investigation under Section 156(3) CrPC against a public servant, but such sanction is unnecessary where the servant does not hold the same office at the time cognizance is taken.
Summary
The petitioners alleged that certain public officials abused their positions to facilitate a land transaction and sought quashing of the criminal proceedings initiated under the Prevention of Corruption Act. The High Court had dismissed the petition, holding that the order directing investigation under Section 156(3) CrPC was valid even without prior sanction under Section 19(1) of the PC Act. The Supreme Court examined whether a sanction is required before a court can order investigation against a public servant and whether a public servant who no longer holds the same post at the time cognizance is taken loses the protection of Section 19(1). It held that an order for investigation under Section 156(3) cannot be issued without a valid sanction, but the sanction requirement does not arise when the servant is not occupying the same office at the cognizance stage. Consequently, the appeals were dismissed, confirming the High Court’s view on the second issue and rejecting the petitioners’ claim for quashing the proceedings.
Issues considered
- Whether an order directing further investigation under Section 156(3) of the CrPC against a public servant can be passed without prior sanction under Section 19(1) of the Prevention of Corruption Act.
- Whether a public servant who does not hold the same post at the time cognizance is taken is protected by Section 19(1) of the PC Act, thereby obviating the need for sanction.
Legislation cited
- Code of Criminal Procedure, 1973s. 156(3), s. 173(2), s. 190, s. 197, s. 200, s. 202, s. 482
- Indian Penal Code, 1860s. 120(b), s. 161, s. 164, s. 165, s. 427, s. 447, s. 506
- Prevention of Corruption Act, 1947s. 13(1)(d), s. 13(2), s. 19(1), s. 19(3)
Subjects
Prevention of Corruption ActSection 19Section 156(3) CrPCcognizancepublic servantsanctioninvestigationtransferquashing of proceedingsmagistrate jurisdictionappeal
Judgment
(2016] 5 S.C.R. 683
L. NARAYANA SWAMY A
v.
STATE OF KARNATAKA & ORS.
(Criminal Appeal No. 721 of2016)
SEPTEMBER 06, 2016 B
(A.K. SIKRl AND N.V. RAMANA, JJ.]
Prevention of Corruption Act, 19./7:
s.19(1) - Bar taking cug11iza11ce of ojfence - Held: Bar u/
s.19(1) would not corer ll'ithin its sweep order directing investigation c
uls.156(3) Cr.P.C. - An order directing investigation uls.156(3)
against public servant can be passed only after obtaining valid
sanction - Code of Criminal Procedure, 1973 - s.156(3) .
s.19(1) - Whether the public servant not being in the same
post ;1•hen the offence was allegedly committed though continuing D
as a public servant loses the protection under s.19(1) of PC Act -
Held: Where the public servant had abused the office which he
held in the check period but had ceased lo hold "that office" or
was holding a different office, then sanction ll'Ould not be necessary
- It means where the alleged misconduct is in some different capacity
than the one ll'hich is held at the time of taking cognizance, there E
·will be no necessity to take the sanction.
Code of Criminal Procedure, 1973: s.482 - Quashing of
proceedings - Allegations that appellants abused their official
position and thereby committed offence under PC Act - It was matter
of evidence on the basis of which culpability of appellants has to F
be judged - In the facts of the case, proceedings not quashed.
Allowing the appeals, the Court
HELD: 1. The plain language of Section 19(1) conveys that
the Court is precluded from taking "cognizance" of an offence G
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. Section 190 of the Cr.P.C. stipulates that
cognizance of an offence is to be taken under three contingencies
H
683
684 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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.
When a complaint is received, the Court records preliminary
B
evidence of the complainant on the basis of which it satisfies itself
as to whether sufficient evidence is placed on record which may
prinw 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
c himself about the facts which constitute such offence. Similar is
the position in the third contingency. It was held in *Anil Kumar
case 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
D
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
E Judge referring the case for investigation under Section 156(3)
is at pre-cognizance stage. In other words, an order directing
further investigation under Section 156(3) of the Cr.P.C. cannot
be passed in the absence of valid sanction. [Para 9, 10, 12)(690-
F-G; 691-A-B, F,G; 694-G; 695-EJ
F Manharibhai Muljibhai Kakadia and Anr. v.
Shaileshbhai Mohanbhai Patel and Ors. 2012 (8) SCR
1015: 2012 (10) SCC 517; *Anil Kumar & Ors. v. MK.
Aiyappa & Am: 2013 (9) SCR 869 : 2013 (10 ) SCC
705 - relied on.
G 2 .1. The High Court was absolutely right in relying on the
decision in Prakaslt Sing/I 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
H
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 685
had abused the office which he held in the check period but had A
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. [Para 18] [702-A-C]
B
2.2. The allegations against these two appellants are that
after conducting spot inspection by accused No.1, 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
c
not the subject matter of acquisition. On this basis, it was alleged
that these officials have abused their official position. The
appellants contended that they merely acted on the court decree.
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 D
same land and further that 10 acres ofland in question had already
been acquired and could not be the subject matter of decree.
These were the aspects which were, prinw fltcie, to be looked
into by these appellants. On the basis the said purported defence,
therefore, the proceedings cannot be quashed. It would be a
E
matter of evidence on the basis of which culpability of the
appellants shall be judged.[Para 19)[702-D-G]
Prakash Singh Badal & Anr. v. State of Punjab & Ors.
2006 (10) Suppl. SCR 197 : 2007 (1) SCC 1 - relied
on.
F
R.S. Nayak v. A.R. Antulay 1984 (2) SCR 495 : 1984
(2) SCC 183; State of Himachal Pradesh v. Nishant
Sareen 2010 (13) SCR 1200 ; 2010 (14) SCC 527;
Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997
(3) Suppl. SCR 705 : 1997 (7) sec 622 ; Abhay Singh
Chautala v. Central Bureau of Investigation 2011 (10) G
SCR 949 : 2011 (7) SCC 141 - referred to.
Case Law Reference
· 2013 (9) SCR 869 relied on Para7
H
686 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 2012 (8) SCR 1015 referred to Para 7
2010 (13) SCR 1200 referred to Para 13
1997 (3) Suppl. SCR 705 referred to Para 13
2011 (10) SCR 949 referred to Para 14
B 2006 (10) Suppl. SCR 197 relied on Para 16
1~84 (2) SCR 495 referred to Para 17
CRIMIN AL APPELLATE JURISDICTION: Criminal Appeal No.
721 of2016
c WITH
CRL.A. No. 722 of2016.
From the Judgment and Order dated 09.09.2014 of the High Co mt
of Karnataka Dharwad Bench in Criminal Petition No. 10I017of2014.
o K. V. Viswanathan, P. V. Shetty, Sr. Advs., Gautam S. Bhardwaj,
Bellippa, Ashwani Kumar, Dhananjay Bhaskar, D. L. Chidananda,
Gurudatta Ankolkar, Advs. for the Appellant.
Basava Prabhu S. Patil, Sr. Adv., Joseph Aristotle S., Ms. Priya
Aristotle, Ms. Shivani Srivastava, Shailesh Madiyal, Chinmay
E Deshpandey, Advs. for the Respondents.
The Judgment of the Court was delivered by
A.K. SIKRI, J. l. Before adverting to the question of law that
has been raised in these appeals (whjch is common to both the cases),
we would like to traverse through the facts and the background which
F 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 ai'e accused Nos. 3 and 5, for the offences punishable
under Section 13{l)(d) read with Section 13(2) of the Prevention of
G Corrupti;:in Act, 1947 (for sho11, 'P.C. Act') and Sections 120(b), 427,
447 and 506 read with Scction 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
H
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 687
rA.K. SIKRI, J.l
measuring 57.30 acres in Survey No. 601-A ofBellari, having purchased A
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
B
purchased the land measuring 27 .25 acres through cow1 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 ofland measuring 17.25 acres which forced Smt. Akula c
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
D
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 E
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-parle decree dated April 08, 2003 came to be passed.
On April 21, 2003, Mr. Parameshwara Reddy (with whom the first
agreementto sell was entered into) sought for change ofland use (though
F
in respect of this very land accused No.6 had filed a suit for specific
pe1formance). 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 I 7.25 acres in faour of his daughter, Smt. Gali Laxmi Aruna,
w/o. Mr. Gali Janardhana Reddy vide gift deed dated March 21, 2006. G
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
H
688 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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 I 0 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
B
No.6 was holding the post of Cabinet Minister. It is alleged that because
ofthis reason he could obtain the orderofconversion 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
c Government officials, it is alleged that accused No. I, Revenue Inspector,
had conclucted 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
D
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
E the complaint to secure the pre5ence 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.
F 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)
G 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. I 0864of2013 before the High Court ofKarnataka 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
H
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 689
[A.K. SlKRl, J.]
had fled a final report, those petitioners were at liberty to challenge the A
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. I 0I017 B
of2014 seeking quashing of the entire proceedings. In the petition, the
grounds taken by the appellants were that there was no allegation ofany
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 c
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 D
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 E
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 oflaw F
that arise for consideration:
(I) Whether an order directing further investigation under
Section 156(3) of the Cr.P.C. can be passed in re la ti on to
public servant in the absence of valid sanction and contrary
to the judgments of this Court in .4nil Kumar & Ors. v. G
M.K. Aiyappa & Anr. 1 and Manlwrihlwi M uljihltai
Kaka<lia and Am: v. Slwileslthlwi MolumhlUti P<1tel and
Ors.:?
1
(2013) 10 sec 105
'<2012) 10 sec 517 H
690 SUPREME COURT REPORTS [2016] 5 S.C.R.
A (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?
B 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 (I) of Section 19 of the P.C. Act
shall suffice which we reproduce hereinbelow:
"19. Previous sanction necessary for prosecution.-
c ( 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
LokayuktasAct, 2013]-
D (a) in the case ofa person who is employed in connection
with the affairs ofthe Union and is not removable from his
office save by or wit!) the sanction of the Central
G::>vernment, of that Government;
(b) in the case ofa person who is employed in connection
E 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 re.move him from his office."
F 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 ifthe prosecution is against the public
servant, unless previous sanction of the Government (Central or State,
as the ca3e may be) has been obtained. What is relevant for our purposes
is that this Section bars taking of cognizance of an offence. The question
G
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
H
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 691
fA.K. SIKRI, J.]
when, after investigation, it is found that there is substantial truth in the A
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 offe-!lce,
or (b) on the basis of police report stating such facts which constitute an
B
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 hereinb'e!ow:
"190. Cognizance of offences by Magistrates.~ (I)
Subject to the provisions of this Chapter, any Magistrate of
c
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-
!. upon receiving a complaint of facts which constitute
such offence; D
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. E
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance under
sub-section (I) of such offences as are within his
competence to inquire into or try."
I 0. When a complaint is received, the Court records preliminary F
evidence of the complainant on the basis of which it satisfies itself as to
whet:ier sufficient evidence is placed on record which may primafacie
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
G
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) ofCr.P.C. at the stage of
giving direction to investigate into the complaint, such a sanction is not
H
692 SUPREME COURT REPORTS (2016] 5 S.C.R.
A required.
11. The above view taken by the High Court is contrary to the
judgments of this Court in Manharibluti Muljiblwi Kltkadia and Anil
Kumar. In Manharibluti Muliibltai Kakadia, the facts were that the
respondent filed before the CJM a criminal complaint alleging that the
B appellan~ had, by doing the acts stated, committed the offences punishable
under Sections420, 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
c 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 Com1. 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
D 05 .08.2005, the High Court dism isscd 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
proceediags. The Cou11 took note of the provisions ofCr.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
E 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 Com1 explained the word "cognizance" in the following
manner:
"34. The word ;'cognizance" occurring in various sections
F in the Code is a word of wide import. It embraces within
itself all powers and authority in exercise ofjurisdiction 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
G Sections 200, 202 and 203, the expression "taking
cognizance" has been used in the sense of taking notice of
the complaint or the first infonnation report or the information
that an offence has been committed on application ofjudicial
mind. It does not necessarily mean issuance of process."
H 12. Second judgment in the case of A11il Kumar referred to above
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 693
rA.K. SIKRI, J.l
is directly on the poi1{t. In that case, identical question had fallen for A
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:
8
"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 sec 372 : (2009) 2 sec (L&S) 200], and this
Court expressed the following view: (SCC pp. 3 75, para 6)
c
"6 . ... 'JO . ... 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
· repott 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 D
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 E
protection is afforded but it also specifies the conditions
and circumstances in which it shall be available and the
effect in law ifthe 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 F
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 Blacks G
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 ofit or exercisingjurisdiction if
H
694 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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.
MP. Gupta, (2004) 2 SCC 349, 358, para 10: 2004 SCC
(C'ri) 539.] "
B 14. In State of W.B. v. Mohd. Khalid [(1995) 1 SCC 684 :
1995 SCC (Cri) 266], this Court has observed as follows:
"i 3. lt 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
c 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
D case is made out." [Ed.: As considered in State of
Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, 734, para
13 : (2006) 3 sec (Cri) 179.]
The meaning of the said expression was also considered
by this Court in Subramanian Swamy case [(2012) 3 SCC
E 64: (2012) 1 sec (Cri) 1041 : (2012) 2 sec (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
th~ offence. When a Special Judge refers a complaint for
F 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
G 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-
CQgnizance stage.
xxx xxx xxx
H
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 695
rA.K. SIKRI, J.l
21. The leamed Senior Counsel appearing for the appellants A
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
B
Judge has already rendered a finding, sentence or order. Jn
such an event, it shall not be reversed or altered by a court
in appeal, confinnation or revision on the ground of absence
of sanction. That does not mean that the requirement <<>
obtain sanction is not a mandatory requirement. Once it is
noticed that there was no previous sanction, as already c
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:
D
(2009) 2 SCC (L&S) 200] and Subramanian Swamy
[(2012) 3 sec 64: c2012) 1 sec (Cri) 1041: (2012) 2
SCC (L&S) 666] cases."
Having regard to the ratio of the aforesaid judgment, we have no
hesitr.tion in answering the question oflaw, as fonnulated in para 7 above,
in the negative. In other words, we hold that an order directing further E
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 F
protection under Section 19(1) of the P.C. Act? Contention of the
respondents was that sanction under Section 19 of the P.C. A::t 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 G
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 fonnality.
Since the Government, as a sanctioning authority, is supposed to apply
its mind to the entire material and evidence placed before it and on
H
696 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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 aforP,said arguments, reliance was placed on State of Himaclutl
Pradesh v. Nishant Sareen 3 and Mansukltlal Vitlutldas Cltaultan v.
B
State of Gujarat'.
14. The aforesaid judgments referred to by the appellants state
the general proposition oflaw 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
c consideration in Abluty Singh Clwuta/a v. Central Bureau of
lnvestigation 5 • In that case, the appellants were ML As 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
D their current tenure as MLAs during which the charges were framed
and trial initiated. On the date when charges were framed no sanction
under St:ction 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,
E 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 ofjudgments, it
was held that even when the appellants in that case held more than one
F 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 ifhe continues to
G 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
'(2010) 14 sec s21
' (1997) 7 sec 622
H '(2011) 1 sec 141
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 697
fA.K. SIKRI, J.]
paragraphs 54 and 56 of the judgment which we reproduce below: A
"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 B
are alleged to have abused; hqwever, 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 : I958 Cri LJ 254], is the date on which the
cognizance is taken. If on that date, the appellant is not a c
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 D
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.
E
xx xx xx
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 ofPunjab to hold that the appellants
in both the appeals had abused entirely different office or F
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 I9 of the Act as
held in K Karunakaran v. State of Kera/a and the later
decision in Prakash Singh Badal v. State of Punjab. The
appeals are without any merit and are dismissed." G
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
H
698 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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 serv:mt on the date when
cognizance of the offence alleged to have been ccmmitted is taken by
the Court, no such sanction was required.
B 16. Likewise, in the case of Prakash Sing;':. Badal & A11r. 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
c Act is time and offence related.
Section 19( I) of the Act has been quoted above.
25. The underlying principle of Sections 7, I 0, 11, 13 and
15 have been noted above. Each of the above sections
indicates that the public servant taking gratification (Section
D 7), obtaining valuable thing without consideration (Section
11 ), committing acts of criminal misconducr(Section 13)
are acts performed under the colourof authority but which
in reality are for the public servant's own pleasure or benefit.
Sections 7, I 0, 11, 13 and 15 apply to aforest.ated acts.
E Therefore, if a public servant in his subsequent positi..Jn is
not accused of any such criminal acts then there is no
question of invoking the mischiefrule. Protection to pub Iic
servants-under Section 19( I)(a) has to be confined to the
time-related criminal acts performed under the colour or
authority for public servant's own pleasure or tenefit as
F categorised under Sections 7, I 0, 11, 13 and 15. This is the
principle behind the test propounded by this Court, namely,
the test of abuse of office."
I"/. It clearly follows from the reading of the judgments in the
cases of Ah hay Singh Clwuta/a an~ Prakash Singh Badal that if the
G public servant had abused entirely different office l'f .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. A::t. 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'
• (2007) 1 sec 1
H
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 699
rA.K. SIKRI, J.l
or was holding a different office, then sanction would not be necessary. A
Likewise, where the alleged misconduct is in soine 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 di: .cerning factor which
is to be noted is that in both these cases the a1 cused persons were
public servants in the capacity of Member of Legi >lative Assembly I by
8
virtue of political office. They were not public servants as government
employees. However, detailed discussion contained in these judgments
would indicate that the principle laid down therein would encompass and
cover the cases ofall 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 c
may quote the following passage from the judgment of this Court in the
case of R.S. Nayak v. A.R. A11tulay1, which is reproduced along with
other paragraphs from the judgment in Prakash $i11gli Badal:
"23. Offences prescribed in Sections 161, I ~4 and 165 IPC
and Section 5 of the 194 7 Act have an· intimate and D
inseparable relation with the office of a pub! ic 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
E
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 F
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
G
is substantial and not severable. Each of the three clauses
of sub-section (I) 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
1
(1984) 2 sec 183
H
700 SUPREME COURT REPORTS (2016] 5 S.C.R.
A 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
B
of interrelation 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
c 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 JPC)
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
D
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
F
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
G 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
H
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 701
fA.K. SIKRI, J.l
the office by the public servant and not some rank outsider. A
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
B
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
sec (Cri) 926 : ATR 1979 SC 677 : ( 1979) 2 SCR I 007] ) c
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
D
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 E
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
F
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 G
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."
H
702 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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 Singlt 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
B
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,
c 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 arc unable to agree with this argument. As already
pointed out above, allegations against these two appellants are that after
D conducting spot inspection by accused No. I on 17.01.2003, first appellant
(accused No.3) who was working as Tchsildar 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
E 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
F in respect of same land and further that I 0 acres of land in question had
already been acquired and could not be the subject matter of decree.
These were the aspects which were, primafacie, 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.
G
20. The aforesaid discussion leads us to the conclusion that the
judgment of the High Court though on the issue ofobtaining the sanction
at the time of taking cognizance may not be correct insofar as question
No. I formulated above is concerned, in the facts of the present case,
insofar as question No.2 is concerned, it is rightly decided. Effect thereof
H
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 703
fA.K. SIKRI, J.l
would be to hold that sanction was not needed as the appellants, at the A
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.
B
Devika Gujral Appeals dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Prevention of Corruption Act"Sign in to search