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2016 (9) TMI 1599 - SC - Indian LawsInvestigation Under Section 156(3) of the Code of Criminal Procedure in relation to public servant in the absence of valid sanction - applicability of ANIL KUMAR ORS. VERSUS M.K AIYAPPA ANR. 2013 (10) TMI 1428 - SUPREME COURT and MANHARIBHAI MULJIBHAI KAKADIA ANR. VERSUS SHAILESHBHAI MOHANBHAI PATEL ORS. 2012 (10) TMI 979 - SUPREME COURT - transfer of the post by way of promotion or otherwise to another post - protection Under Section 19(1) of the P.C. Act - HELD THAT - 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 Code of Criminal Procedure 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 Code of Criminal Procedure at the stage of giving direction to investigate into the complaint such a sanction is not required. The Respondent complainant filed a criminal revision petition there against Under Section 397 read with Section 401 Code of Criminal Procedure 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 Code of Criminal Procedure 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 - an order directing further investigation Under Section 156(3) of the Code of Criminal Procedure cannot be passed in the absence of valid sanction. 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 Indian Penal Code. The CJM in exercise of his power Under Section 202 Code of Criminal Procedure by his order dated 18.06.2004 directed an enquiry to be made by a police inspector. The Court took note of the provisions of Code of Criminal Procedure 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 - Second judgment in the case of Anil Kumar 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 Code of Criminal Procedure even at pre-cognizance stage? Answering the question in the affirmative the Court held that 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. 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? - HELD THAT - 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 - 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 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. Appeal dismissed.
Issues Involved:
1. Whether an order directing further investigation under Section 156(3) of the Code of Criminal Procedure can be passed in relation to a public servant in the absence of valid sanction. 2. Whether a public servant who is transferred (whether by way of promotion or otherwise to another post) loses the protection under Section 19(1) of the Prevention of Corruption (P.C.) Act, though he continues to be a public servant. Detailed Analysis: Issue 1: Requirement of Sanction for Investigation under Section 156(3) of the Code of Criminal Procedure The primary issue was whether a court can order further investigation under Section 156(3) of the Code of Criminal Procedure against a public servant without obtaining prior sanction as required under Section 19 of the P.C. Act. The High Court had previously taken the view that such a sanction was not necessary at the stage of ordering an investigation, as the bar on taking cognizance applies only after the investigation is complete and a report is filed. However, this view was found to be contrary to the judgments of the Supreme Court in *Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel* and *Anil Kumar v. M.K. Aiyappa*. In these cases, the Court clarified that the term "cognizance" has a wide import and includes the stage of directing an investigation under Section 156(3). The Court emphasized that the requirement of sanction is a mandatory procedural safeguard to protect public servants from frivolous prosecutions. Therefore, an order directing further investigation under Section 156(3) cannot be passed without valid sanction. Issue 2: Protection under Section 19(1) of the P.C. Act for Transferred Public Servants The second issue was whether a public servant who has been transferred from the post he held at the time of the alleged offence still enjoys the protection under Section 19(1) of the P.C. Act. The High Court had dismissed the petition on the grounds that the appellants had been transferred from their posts, thus implying that the requirement of sanction was not applicable. The Supreme Court referred to its earlier judgments in *Abhay Singh Chautala v. Central Bureau of Investigation* and *Prakash Singh Badal v. State of Punjab*, which held that the relevant date for determining the necessity of sanction is the date on which cognizance is taken. If the public servant is not holding the same post or is in a different capacity at the time of taking cognizance, no sanction is required. The Court reiterated that the protection under Section 19(1) is intended to prevent harassment of public servants, but it does not apply if the alleged misconduct pertains to a different office held during a different period. The Court also noted that the allegations against the appellants involved misuse of their official positions by facilitating the illegal conversion of land use and aiding in obtaining fraudulent decrees. These actions were sufficient to warrant further investigation and potential prosecution, irrespective of their current positions. Conclusion: The Supreme Court concluded that: 1. An order directing further investigation under Section 156(3) of the Code of Criminal Procedure cannot be passed in the absence of valid sanction. 2. Sanction under Section 19(1) of the P.C. Act is not required if the public servant has been transferred from the post held at the time of the alleged offence, even if he continues to hold a different public office. The appeals were dismissed, affirming the High Court's decision that the appellants did not require sanction for the prosecution to proceed, as they were not holding the same posts at the time of taking cognizance.
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