Prevention of Corruption Act, 1988 – s.19 – Previous sanction necessary for prosecution – Allegation of corruption in respect of a public servants – Prior sanction for prosecution – Requirement of, before setting in motion even the investigative process u/s. 156(3) Cr.P.C – Held: Question would be whether in cases of the P.C. Act, a different import has to be read qua the power to be exercised u/s. 156(3) – Whether on account of s.19(1), the scope of inquiry u/s. 156(3) Cr.P.C. can be said to be one of taking ‘cognizance’ thereby requiring the prior sanction in case of a public servant – Prior sanction to prosecute a public servant for offences under the P.C. Act is a provision contained under Chapter 14 Cr.P.C. – Thus, it has to be seen whether such a purport can be imported into Chapter 12 Cr.P.C. while directing an investigation u/s. 156(3) Cr.P.C., merely because a public servant would be involved – In view of the complexity arising in respect of the interplay of the P.C. Act offences read with the Cr.P.C., matter referred to larger Bench – Code of Criminal Procedure, 1973 – s. 156(3). Referring the matters to larger Bench, the Court
HELD: 1.1 There is no doubt that even at the stage of 156(3) of the Code of Criminal Procedure, 1973, while directing an investigation, there has to be an application of mind by the Magistrate. Thus, it may not be an acceptable proposition to contend that there would be some consequences to follow, were the Magistrate to act in a mechanical and mindless manner. That cannot be the test. [Para 33] [713-F]
1.2 The question would be whether in cases of the Prevention of Corruption Act, 1988, a different import has to be read qua the power to be exercised under Section 156(3) of the Cr.P.C., i.e., can it be said that on account of Section 19(1) of the P.C. Act, the scope of inquiry under Section 156(3) of the Cr.P.C. can be said to be one of taking ‘cognizance’ thereby requiring the prior sanction in case of a public servant. It is trite to say that prior sanction to prosecute a public servant for offences under the P.C. Act is a provision contained under Chapter 14 of the Cr.P.C. Thus, it has to be seen whether such a purport can be imported into Chapter 12 of the Cr.P.C. while directing an investigation under Section 156(3) of the Cr.P.C., merely because a public servant would be involved. [Para 34] [713-G; 714-A-B]
1.3 It was observed in Suresh Chand Jain v. State of Madhya Pradesh that even at a pre-cognizance stage under Section 156(3) of the Cr.P.C., it is open to the Magistrate to direct the police to register an FIR and that even if the Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. The apprehension expressed by ASG arises from these observation. [Para 35] [714-C-D]
1.4 The complete controversy referred to aforesaid and the conundrum arising in respect of the interplay of the P.C. Act offences read with the Cr.P.C. is, thus, required to be settled by a larger Bench. [Para 36] [714-E]
Crl.M.P. 161/2015 IN SLP (Crl.) No. 5838/2014.
2.1 In the present Special Leave Petition, notice was issued to the respondents, except respondent No. 4. Since the proceedings before the Magistrate at the threshold were directed to be kept in abeyance without notice to the respondent, and thereafter the revision petition was dismissed in limine by the High Court, the occasion f or respondent No.1 to have knowledge of the proceedings did not arise. Respondent No.1 sought deletion from the array of parties in these proceedings as he has been wrongly arrayed as a party. The said plea is predicated on the averments in the complaint itself, which seeks to make a grievance over the actions of the Principal Secretary, Public Health and Engineering Department (PHED) in which capacity respondent No.1 is stated to have been arrayed. It is averred in the application that respondent No.1 was serving as a Secretary and Principal Secretary to the Chief Minister and not as Principal Secretary, PHED. In fact, the officer working as the Principal Secretary, PHED has not been arrayed as a respondent. There is no allegation made against the Secretary/Principal Secretary to the Chief Minister. The allegation is of collusion of the respondents. [Paras 38 and 39] [714-G-H; 715-A-B]
2.2 No doubt the process under Section 156(3) Cr.P.C. is only one of investigation. The larger question, of whether any such direction can be issued without prior sanction has been referred to a larger bench. Were the appellant to succeed and were the matter to go back to the Magistrate and the Magistrate after application of mind forms an opinion to direct investigation by the police, it would be always open to the Magistrate to include the name of respondent No.1 if such material is found against him. [Para 46] [716-D-E]
2.3 Merely because the appellant has roped in respondent No.1 in the complaint is not sufficient ground to allow his name to be included as such. The complaint is categorical – the role of Secretary, PHED and the Principal Secretary has been questioned. That is the mindset with which the complainant knocked the doors of the criminal courts. There was no allegation in respect of any role played by the Secretary/Principal Secretary to the Chief Minister. It cannot be said to be a mere mis-description of name, which can be corrected. It cannot be the stand of the appellant that willy-nilly somehow, respondent No.1 must remain arrayed as an accused in those proceedings, even though the proceedings before the Magistrate are at the stage of only whether there should be a direction for investigation or not. It is not that every officer in the Government has to be arrayed in respect of any role performed or not. The mere presence in one meeting of respondent No.1 and that too when he was not a signatory and really had no role to play in that capacity, as apparent from the minutes, cannot be now used to justify his name being included as an accused. This is clearly an afterthought. It is not for the appellant to question as to which officer should or should not be present. [Para 47] [716-F-H; 717-A]
2.4 Respondent No.1 needs to be struck off from the array of parties both in the present proceedings and consequently in the complaint. However, it is made clear that if a situation arises where investigation is directed under Section 156(3) Cr.P.C. and some material comes to light to array respondent No.1 as an accused, the order would not come in the way. [Para 48] [717-B]
Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705 : [2013] 9 SCR 869 ; P. Nallammal v. State (1999) 6 SCC
559 : [1999] 1 Suppl. SCR 135 ; L. Narayana Swamy v. State of Karnataka (2016) 9 SCC 598 : [2016] 5 SCR 683 ; R.R. Chari v. State of U.P. [1951] SCR
312 ; Gopal Marwari v. Emperor AIR 1943 Pat 245 ; Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee AIR 1950 Cal
437 ; Gopal Das Sindhi v. State of Assam AIR 1961 SC
986 ; Jamuna Singh v. Bhadai Shah [1964] 5 SCR 37 ; Nirmaljit Singh Hoon v. State of W.B. (1973) 3 SCC
753 : [1973] 2 SCR 66 ; Devarapally Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 SCC 252 : [1976] Suppl. SCR 524 ; Tula Ram v. Kishore Singh (1977) 4 SCC 459: [1978] 1 SCR 615 ; Srinivas Gundluri v. SEPCO Electric Power Construction Corpn. (2010) 8 SCC 206 : [2010] 9 SCR 278 ; Subramanian Swamy v. CBI (2014) 8 SCC 682 : [2014] 6 SCR 873 ; Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668 : [2007] 9 SCR 1113 ; State of U.P. v. Paras Nath Singh (2009) 6 SCC 372 : [2009] 8 SCR 85 ; Ramdev Food Products (P) Ltd. v. State of Gujarat (2015) 6 SCC
439 : [2015] 5 SCR 283 ; Suresh Chand Jain v. State of Madhya Pradesh (2001) 2 SCC 628 : [2001] 1 SCR 257; Mohd. Yousuf v. Afaq Jahan (2006) 1 SCC 627: [2006] 1 SCR 1 – referred to.
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