Private complaint against public servant under PC Act, 1988 need not necessarily be accompanied by sanction order but, is pre-requisite in taking cognizance

High Court of Karnataka: While deciding  the issues raised for consideration of the Court pertaining to the nature of judicial process involved in the Court of the Special Judge directing an investigation by the police under Section 156(3) of the Criminal Procedure Code, when a private complaint is filed against a public servant, alleging offences punishable under the provisions of the Prevention of Corruption Act, 1988, the Court relying on  Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 and Pepsi Foods Ltd. v. Special Judicial Magistrate , (1998) 5 SCC 749, held that it is a well-settled principle of law that when such a complaint is filed before a Special Judge, he has to apply his mind before ordering an investigation under Section 156(3). The Special Judge is not bound to take cognizance of the facts of the case which depicts commission of an offence instead, should make an order for police investigation on receiving the complaint as is clear from the use of the words “may take cognizance”.

The Court while ruling upon the other question involved in the case as to what is meant by “taking cognizance of an offence” by a Magistrate within the meaning of Section 190 CrPC , relying on Deverapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252, held that when a complaint is filed before a Magistrate he may order police investigation by applying his mind under Section 156(3) but when the Magistrate directs investigation under Section 202 he is said to have taken cognizance of the offence  under Section 190 CrPC, as the the object of an investigation under Section 202 is not to initiate a fresh case on the police report, but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.

The Bench  comprising of A. Byrareddy, J., dismissing the petition  and quashing the impugned order passed in the other petitions filed in the respective cases, in view of the question whether a complaint alleging offences punishable under the provisions of the PC Act, should be accompanied by an order of sanction, the Court relying on  State of U.P. v. Paras Nath Singh, (2009)6 SCC 372; Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64, held that the order of sanction is a pre-condition while issuing investigation order under Section 156(3) and if there is no such order of sanction  under Section 19 of the PC Act, the Magistrate cannot order an investigation against a public servant. It is not necessary that the public servant must be accused of the offence alleged to have been committed by him in discharge of his official duty but the essential requisite is that the order of sanction has to be there then only the court can take cognizance. Discussing the judgment in Anil Kumar v. M. K. Aiyappa, (2013)10 SCC 705, which ignored the plethora of judgments that conclusively held that Section 156(3) is a pre-cognizable exercise that requires no order of sanction, the Court held in negative on the issue of re-examining as to whether the private complaint against a public servant must be accompanied by an order of sanction and further observed that while referring the complaint for investigation the Court does not take cognizance of the offence but only applies its mind and directs investigation and such sanction order is necessarily required only in cases where the Court takes cognizance of the complainant. The Court further observed that need of sanction is not necessarily to be considered as soon a complaint is lodged but the order of sanction is pre-requisite in taking cognizance. [N.C. Shivakumar v. State By Lokayuktha Police, 2016 SCC OnLine Kar 3565, decided on September 8, 2016]

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