‘Sanction’ Required for an Investigation Order against a 'Public Servant' under Section 156(3) of Code of Criminal Procedure, 1973

Section 156(3) of the Code of Criminal Procedure, 1973 (“Code”), provides that any magistrate, who is empowered under Section 190 (of the Code) to take cognizance of an offence, may order an investigation. Yesterday, Supreme Court of India (“Supreme Court”) has decided a case (AnilKumar & Ors v. M.K. Aiyappa & Anr) wherein the following the question had arisen:

                                            `“Whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 Cr.P.C. for investigation............, in exercise of powers conferred under Section 156(3)  Cr.P.C. without  the  production  of  a  valid sanction  order  under  Section  19  of  the  Prevention  of Corruption Act, 1988.”

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While section 200 of the Code provides for the competency of a magistrate to take the cognizance of an offence on the basis of a complaint, section 156(3) of the Code provides for magistrate's power to order an investigation . In the present case, a complaint had been filed by the Appellants, Anil Kumar & Ors, before the Special Judge (Prevention of Corruption) thereby accusing the Respondents, M.K. Aiyappa & Anr, of certain offences. The alleged offences, as contended by the Appellants, were under (“IPC”) and Prevention of Corruption Act, 1988 (“Corruption Act”).

On receiving the Appellant’s complaint, the Special Judge referred the concerned matter to Deputy Superintendent of Police (Lokayukta) for investigation. Against this order of investigation, a writ petition was filed by the Respondents before the High Court of Karnataka (“High Court”). It was contended before the High Court that, in the absence of a valid sanction order, complaint should not have been entertained by the Special Judge. By its order, the High Court allowed the writ petition and quashed the investigation order of Special Judge. It was held by the High Court that, irrespective of whether the Court was acting at a pre cognizance stage or the post-cognizance stage, a private complaint should not have been acknowledged against a public servant unless accompanied by a valid sanction order.

When the matter came before the Supreme Court, the Appellants contended that the requirement of a previous sanction order under Section 19 of the Corruption Act is merely directory and not mandatory.  It was further contended that, since order directing investigation under Section 156(3) of the Code does not amount to taking of cognizance, a sanction order is not required.

Rejecting the above contentions, Supreme Court was of the view that an application of mind should be reflected by the magistrate in an order made under Section 156(3) of the Code. Referring to its judgment in Maksud Saiyed v.State  of  Gujarat  and  Others (2008)  5  SCC  668 [in this case, it was held that a valid sanction order is required], Supreme Court was of the view that such an order under Section 156(3) of the Code should also reflect the reasons. It was held that:

                                            “.......The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient.   After going through the complaint, documents  and  hearing  the  complainant,  what weighed  with  the  Magistrate  to  order  investigation  under Section  156(3)  Cr.P.C.,  should  be  reflected  in  the  order, though a detailed expression of his views is neither required nor warranted......”

Regarding the issues as to whether the order directing investigation under Section 156(3) Cr.P.C. would amount to taking cognizance of the offence, the court first explained the meaning of the word ‘cognizance’. According to the court, word ‘cognizance’ has a wider interpretation and is not confined to the stage of taking cognizance of the offence. It was held that referring a complaint to investigation would be the pre-cognizance stage and cannot be equated with post cognizance stage:

“.........When  a  Special  Judge  refers  a  complaint  for investigation under Section 156(3) Cr.P.C., 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.....”

[Referred Cases: State of Uttar Pradesh v. Paras  Nath  Singh (2009)  6  SCC  372, State of West Bengal and Another v. Mohd. Khalid and Others (1995) 1 SCC 684, Subramanium  Swamy  v.  Manmohan  Singh and another  (2012)  3  SCC  64]

Having come to the above conclusion, the court then moved to decide the issue – whether sanction is a pre-condition for ordering investigation under Section 156(3) of the Code. The court referred to Section 19 of the Corruption Act which provides for the requirement of ‘sanction’ before a court can take cognizance against a public servant. Construing the true purpose of Section 19, the Supreme Court was of the view that the court that an investigation against ‘public servant’ cannot be ordered under Section 156(3) of the Code unless there is a sanction.