Can Magistrate Take Cognizance Of Private Complaint & Order Probe When Sanction U/S 19 Of PC Act Is Required? Kerala HC Refers To Larger Bench

The decisions vary on whether the Magistrate can take cognizance of a private complaint and order investigation of offences where sanction under Section 19 of the Prevention of Corruption Act is required. Anil Kumar had held that the Judge cannot take cognizance without an order of sanction. This matter was then referred to a larger bench of the Supreme Court. The High Court had ordered that until the matter is decided, Anil Kumar will be the binding precedent.

The matter came up for consideration in a case alleging that certain people illegally collected a capitation fee for admitting students to Nazareth Pharmacy College. The complainant alleged that they were committing offences punishable under the Prevention of Corruption Act. The petitioner had moved before the Enquiry Commissioner and Special Judge Kottayam seeking an investigation into the matter. The Special Judge dismissed the application saying that without prior sanction under Section 19, the Court cannot order an investigation under Section 156(3) of Code of Criminal Procedure.

The Court was considering the question of whether sanction is necessary at the stage of ordering investigation as per the provisions of the PC Act. Amicus Curiae Adv. M. K. Sreegesh assisted the Court in this matter.

Background of the case

The Division Bench of Supreme Court in Anil Kumar and Ors. V M. K. Aiyappa and Another (2013) held that a Special Judge cannot refer a private complaint for investigation without a valid sanction under Section 19 of the Act. Though the Apex Court had observed that a Special Judge referring the case for investigation is at the pre-cognizance stage, it ultimately held that the Special Judge cannot take notice of the complaint without an order of sanction. Many subsequent judgments of the Supreme Court followed this principle.

The Supreme Court in Manju Surana v Sunil Arora (2018) observed that the findings in Anil Kumar were contrary to propositions laid down by larger benches of the Supreme Court. The Supreme referred this matter to be settled by a larger bench.

Kerala High Court observed in Koshy John v State of Kerala observed that the decision in Anil Kumar is in conflict with the law laid down by 3-Judge Benches of Supreme Court in R. R, Chari v State of U.P. (1951), Gopal Das Sindh v State of Assam and Another (1961), Jamuna Singh and Others v Bhadai Shah (1964), Devarapalli Laxminarayana Reddy and Others v V. Narayana Reddy and Others (1976). The Court referred this matter to the Division Bench.

The Division Bench of Kerala High Court answered this in Muhammed V.A. and Others v State of Kerala and Others (2019). It held that until the matter is decided by a larger bench in the Supreme Court, the ratio laid down in Anil Kumar is to be followed. Many other High Courts have also made judgments in this line laying down that Anil Kumar is the binding precedent until the matter is finally settled.

Meanwhile, the legislature introduced Section 17A into the Act whereby sanction is required prior investigation of public servants in certain cases.

Subsequently, a Division Bench of Supreme Court in Jayant and Others v State of Madhya Pradesh (2020) held that when a Magistrate directs the police to register an FIR, conduct an investigation, and submit a report, it cannot be said that the Magistrate had taken cognizance. The Supreme Court referred to the observation in Anil Kumar that when a Special Judge refers a complaint for investigation under Section 156(3) of CrPC, it is a pre-cognizance stage.

Submissions by Amicus Curiae

The Amicus Curiae submitted that the decision in Anil Kumar is in conflict with the earlier Constitutional Bench and 3-Bench decisions.

Chapter V under which Section 19 comes is titled Sanction for Prosecution and Other Miscellaneous Provisions. The heading for Section 19 is Previous Sanction necessary for prosecution. This implies that 'cognizance' in this context means the Court setting in motion the steps to prosecute the accused.

Observations of the Court

Justice K. Babu observed that the Judge applied their mind to the complaint for any purpose other than for initiating judicial proceedings under Sections 200 to 204 of Cr. P.C does not amount to taking cognizance. The Court observed that in Jayant, which was subsequently decided by a Bench of equal strength, AnilKumar was referred to and reconciled its ratio with the ratio of earlier Constitutional Bench and other larger bench decisions. Therefore, Jayant is the binding decision.

The Court noted that Jayant was pronounced after the High Court declared in Muhammed V. A. that AnilKumar will be the binding precedent. It held that this question needs to be reconsidered in the light of Jayanth.

“As the judgment of the Supreme Court in Jayant is subsequent to the judgment in Muhammed and since the ratio laid down therein has been followed by this Court as the latest expression of law by the Supreme Court, the issue whether the dictum laid down by the Division Bench of this Court in Muhammed continues to govern the field in view of Jayant deserves to be reconsidered authoritatively by a larger Bench.”

The judgment in Anil Kumar was rendered when Section 17 A was not introduced. The Court held that therefore, Anil Kumar cannot be considered a precedent after the amendment of the Act. Insertion of Section 17A implies that the cognizance in Section 19 is not related to the stage of investigation. If that was the case, the legislature would not need to introduce Section 17A. Though Muhamed was decided after Section 17A was introduced, the High Court did not consider whether, in the light of the amendment, Anilkumar can be still considered a precedent.

The Court discussed the course to be adopted by the High Court when there are Supreme Court decisions which are at variance with each other and laid down the following principles:

1. When the judgments are given by 2 benches of unequal strength, the law declared by the larger bench is to be followed
2. When both benches are of equal strength and if the subsequent judgment refers to an earlier judgment, the subsequent judgment is to be followed
3. When a subsequent decision distinguishes the earlier decision, a subsequent decision is binding.

The High Court further laid down principles to be followed while interpreting judgments when divergent views are taken by the Apex Court:

1. The Court should ascertain the principle laid down by the decision. The scope and authority of a precedent should not be unnecessarily expanded beyond the needs of the given situation.
2. The only binding authority is the principle upon which the case was decided.
3. Mere casual expressions carry no weight at all.

The Court asked the registry to place the matter before the Chief Justice so that it could be placed before a larger Bench.

Case Title: A. K. Sreekumar v State of Kerala and Others

Case Number: Crl. M. C. 4677 of 2022