Sanction for referring a Complaint (against public servant)for investigation under S.156(3) of the CrPC – Anil Kumar’s Case [(2013)10 SCC 705] is per-incurium

"Be you ever so high, the law is above you. Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously”. [Vineet Narain Vs. Union of India AIR 1998 SC 889 ; (1998) 1 SCC 226].

A two Judge Bench of Supreme Court in Anil Kumar and Others v. M. K. Aiyappa and Another [2013 (10)SCC 705 ] held that a Special Judge / Magistrate cannot refer a Complaint for investigation under S.156(3) of the CrPC against a Public Servant without a valid sanction order from the Government. The Bench was considering the question whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 CrPC for investigation by the Deputy Superintendent of Police -- Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) CrPC without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988.

Facts;

Appellant filed a private complaint under Section 200 of CrPC before the Additional City Civil and Special Judge for Prevention of Corruption Cases alleging that the First Respondent, with mala fide intention passed an order dated 30/06/2012 in connivance with other officers and restored valuable land in favour of a private person and thereby committed offences under Section 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section 120B IPC and Section 149 IPC and Section 8, 13(1)(c), 13(1)(d), 13(1)(e), 13(2) read with Section 12 of the Prevention of Corruption Act. The Special Judge passed an order directing an investigation by Deputy Superintendent of Police, Karnataka Lokayukta, under Section 156(3) of CrPC . Aggrieved by the said order, the First respondent approached the High Court of Karnataka challenging the order of Special Judge.  The High Court, quashed the order of Spl.Judge by holding that the Special Judge could not have taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the Court was acting at a pre-cognizance stage or the post-cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in discharge of his official duties.

The Supreme Court upheld the view of Karnataka High Court by placing high reliance on a three Judge Bench Judgment in State of Uttar Pradesh v. Paras Nath Singh, [ 2009 (6) SCC 372] and another two Judge Bench decision in Subramanium Swamy v. Manmohan Singh and Another, 2012 (3) SCC 64 ;AIR 2012 SC 1185].

Analysis of the Judgment;

In Para-9 of the Judgment  Justice K.S.Radhakrishnan held as follows;

“We will now examine whether the order directing investigation under Section 156(3) CrPC would amount to taking cognizance of the offence, since a contention was raised that the expression ‘cognizance’ appearing in Section 19(1) of the PC Act will have to be construed as post-cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act. The expression ‘cognizance’ which appears in Section 197 CrPC came up for consideration before a three-Judge Bench of this Court in State of Uttar Pradesh v. Paras Nath Singh, [2009 (6) SCC 372], and this Court expressed the following view:

"6. ............. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any Court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no Court shall take cognizance of such offence except with the previous sanction'. Use of the words 'no' and 'shall' makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance, it means taking notice of. 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.”.

In Para- 13 it is concluded that

“Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) CrPC. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra)”.

For analyzing the Judgment, it is necessary to examine the meaning of the word ‘cognizance’. Though the expression ‘cognizance’ is not defined in the Code of Criminal Procedure (Code), many Sections of the Code uses the expression especially in Chapter XV and Chapter XXXVI .  R.R.Chari vs. State of U.P, [AIR 1951 SC 207 ] was the first case in which the Supreme Court had examined the meaning of the word ‘Cognizance’. A Three Bench Judge chaired by Chief Justice Kania approved the following observation of Calcutta High Court authored by Justice Das Gupta  in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji, [AIR 1950 Cal 437],

"What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under S. 190 (1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under S. 200 and thereafter sending it for inquiry and report under S. 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e. g., ordering investigation under S. 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

Explaining the above definition a two Judge Bench in Narayandas Bhagwandas Madhavdas Vs. State of West Bengal AIR 1959 SC 1118 held as follows;

"It is, however, argued that in Chari's case, 1951 SCR 312: (AIR 1951 SC 207), this Court was dealing with a matter which came under the Prevention of Corruption Act. It seems to us, however, that that makes no difference. It is the principle which was enunciated by Das Gupta J., which was approved. As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under S. 200 and subsequent sections of Ch. XV of the Code of Criminal Procedure or under S. 204 of Ch. XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.

In Gopal Das Sindhi Vs. State of Assam [AIR 1961 SC 986 ; 1961 CRI. L. J. 39] another Three Judge Bench re-iterated the above definition and hold that it would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XV but for taking action of some other kind, e. g., ordering investigation under S. 156 (3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence 

In Jamuna Singh Vs. Bhadai Shah [AIR 1964 SC 1541 1964 (5) SCR 37 another three Judge Bench held as follows;

“It is well settled now that when a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under S. 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence.

Again the Supreme Court in D. Lakshminarayana Reddy and Others v. V. Narayana Reddy and Others [AIR 1976 SC 1672] while explaining the difference between an investigation U/S 156(3) and 202(2) CrPC it is held as follows;

"What is meant by 'taking cognizance of an offence' by the Magistrate within the contemplation of S.190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of S.190 and the caption of Chap.14 under which S.190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clause.(a), (b) and (c) of S.190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under S.200 and the succeeding Sections in Chap.15 of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of S.190(1)(a). If instead of proceeding under Chap.15, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigating, or ordering investigation by the police under S.156(3), he cannot be said to have taken cognizance of any offence.

Following most of the above Judgments Supreme Court in Tula Ram Vs. Kishore Singh [ (1977) 4 SCC 459] made the position so clear and held as follows;

Sections 190 and 156 (3) are mutually exclusive and work in totally different spheres. The position is that even if a Magistrate receives a complaint u/s 190, he can act u/s 156(3) provided that he does not take cognizance. Chapter 12 and Chapter 14 of the Criminal Procedure Code subserve two different purposes; one pre-cognizance action and the other post-cognizance action. While Chapter 14 containing s. 190 deals with post-cognizance stage, Chapter 12, so far as Magistrate is concerned, deals with pre- cognizance stage that is to say, once a Magistrate starts acting u/s. 190 and the provisions following, he cannot resort to s. 156(3).

Sanction for prosecution; (S.197 IPC and S.19 PC Act). 

Section 197 of Code of Criminal Procedure and Section 19 of Prevention of Corruption Act bars the Court from taking cognizance of the offence alleged to have been committed by the public servant except with the previous sanction of the Government / competent authority empowered to grant requisite sanction. A Constitution Bench of the Supreme Court upheld the Constitutional validity of S.197 Cr.P.C in Matajog Dobey vs. H.C.Bhari [AIR 1956 SC 44] and a Two Judge Bench cleared the vires of S.19 of PC Act in Manzoor Ali Khan vs. Union of India [(2014)7 SCC 321]. The object and purpose underlying the above Sections is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. Both Sections start with the words; “No Court shall take cognizance of the offence”.

It is clear from the authorities cited above, the meaning of the word ‘cognizance’ has been explained by judicial pronouncements and it has acquired a definite connotation. There is no special charm or any magical formula in the expression "taking cognizance" which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. But the mere fact that a Magistrate has applied his mind to a Complaint is not enough for saying that he has “taken cognizance” of any offence. The question whether a Magistrate took Cognizance or not depends upon the purpose for which he had applied his mind to it and the stage at which he has done so. When the Magistrate applied his mind for exercising his powers under Chapter XIV like remanding an accused (167), issuing a search warrant(96/165), ordering an investigation (156(3)), granting or refusal of bail during investigation(436,437) etc, Recording a Confession or a Statement(164), it cannot be said that he had taken cognizance of the Case. On the other hand when the Magistrate applies his mind for examining the Complaint (200), conducting an inquiry (202), issuing of process (204), Committal proceedings (208) etc it can safely concluded that he had taken cognizance of the offence.

But in Anil Kumar (Supra) the Court relied on the Black Dictionary meaning of the word ‘cognizance’ instead of the meaning given by Calcutta High Court in Abani Kumar Banerji (Supra) as approved by the Supreme Court in R.R.Chari (Supra) and more than a dozen of Judgments of equal or larger strength.  It was Justice R.M.Sahai while speaking for a Two Judge Bench in State of Maharashtra v. Dr. Budhika Subbarao (1993) 3 SCC 339 introduced the Black Dictionary meaning for the word ‘cognizance’ for the first time. Later Justice Pasayat used  the above paragraph in all his Judgment which merely lay down the general proposition of law that the bar under Section 197 of the Criminal Procedure Code is mandatory where the act has been done by the public servant in the course of his service or in the discharge of his duty [See State of HP vs. Gupta [(2004) 2 SCC 349], State Of Orissa Through Kumar vs Genesh Chandra Jew [2004 KHC 1895] S.K. Zutshi v. Bimal Debnath (2004) 8 SCC 31 and K. Kalimuthu Vs. State By DSP (2005) 4 SCC 512, Parasnath Singh etc (Supra) ]. Hence the above observation of Justice Pasayat can be termed only as an obiter

Chapter 14 of the CrPC which contains provisions for taking cognizance is titled "Conditions requisite for initiation of proceedings". All provisions contained therein use the expression 'cognizance'. They do not refer to filing of complaint at all. It specifically targets cognizance and it debars taking cognizance of an offence without sanction. As explained in many Judgments “taking cognizance” in S.190 means application of mind for the purpose of proceeding under S. 200 and subsequent sections of Ch. XV of the Code of Criminal Procedure or under S. 204 of Ch. XVI of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance. But in Anil Kumar (Supra) the Court gave the dictionary meaning of the word and read S.19 of PC Act as “no Court shall entertain the complaint without a valid sanction”. It is the settled rule of interpretation that if an expression has acquired a special connotation in law, dictionary or general meaning ceases to be helpful in interpreting such a word. Such an expression must be given its legal meaning and no other. [State of Madras v. Gannon Dukerley & Co. (Madras) Ltd AIR 1958 SC 560]  It is impermissible as Court cannot make fundamental alteration in the words of the Statute. No Court shall take Cognizance without sanction cannot be altered to “No complaint shall be filed without sanction”. If the intention of the legislature was to preclude the Court from entertaining a complaint or taking notice of it or exercising jurisdiction it would have used the word “entertain” as used in Section 378 (3) of Cr.P.C [No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court]. By the principle of ‘casus omissus’, the Court cannot supply the law. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself . An intention to produce an, unreasonable result is not to be imputed to a statute if there is some other construction available.[Danckwerts L.J. in Artemiou v. Procopiou, 1966 (1) Q.B. 878 ].

Precedents;

In R.R.Chari (Supra) the appellant was proceeded against under the provisions of the Prevention of Corruption Act No. 2 of 1947. The Deputy Magistrate, Kanpur issued a warrant for his arrest on 22nd October 1947. Thereafter, on 6th December 1948, the prosecution obtained the necessary sanction under the Act. The contention of the appellant was that the prosecution must be held to have been instituted against him on 22nd October 1947, when he was arrested, that as no sanction for his prosecution had been obtained at that time, the proceedings were bad, and that the defect was not cured by sanction being obtained subsequently on 6th December 1948. The contention before the Court was that when the warrant of arrest was issued by the Magistrate on 29-10-1947 the Magistrate took cognizance of the offence and as no sanction of the Government had been obtained before that day the initiation of the Proceedings against him, which began on that day without the sanction of the Government was illegal. It is argued that the same proceedings are continuing against him and therefore the notice to appear before the Magistrate issued on 25-3-1949 is also illegal.  Dismissing the contention Chief Justice Kania held as follows;

“When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind e. g. ordering investigation. Under S.156(3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence." 

In our opinion that is the correct approach to the question before the Court”

From the above Judgments, two things are very clear

• Ordering investigation U/S 156(3) or issuing search warrant etc is a pre-cognizance exercise
• For Pre-Cognizance Exercises like ordering investigation U/S 156(3) or issuing search warrant etc, against a Public servant, no previous sanction U/S 197 or U/S.19 PC Act is necessary.

In Matajog Dobey vs. H.C.Bhari [AIR 1956 SC 44] a Constitution Bench of the Supreme Court considered the question

“Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained?

And it is held as follows;

The question [of sanction] may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.

Interestingly Justice Pasayat himself in K. Kalimuthu Vs. State By DSP (2005) 4 SCC 512;AIR 2005 SC 2257] relying on the above constitution Bench Judgment held as follows;

“The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted.

Therefore, we do not find any infirmity in the judgment of the High Court declining to consider the applicability of Section 197 of the Code at the present juncture. It is open to the appellant to raise that question if occasion so arises at an appropriate stage during trial”.

But in many cases the Supreme Court quashed the proceedings because of want of sanction at the time of taking Cognizance. [See Sankaran Moitra vs Sadhna Das & Anr. [(2006) 4 SCC 584 and Abdul Wahab Ansari vs State of Bihar & Anr. [(2000) 8 SCC 500 ]. But I could not find a single Judgment before Anil Kumar (Supra) which quashed the Criminal Proceedings against a Public Servant for want of sanction at pre-cognizance stage.

In discharge of official Duty

It is not every offence committed by a public servant that requires sanction for prosecution, Criminal P. C.; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution. [Amrik Singh v State of Pepsu AIR 1955 SC 309]

In Om Prakash Vs. State of Jharkhand [JT 2012 (9) SC 642 ; (2012) 9 SCR 125] Supreme Court held as follows; 

The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the concerned public servant at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea 

Though Justice Pasayat said in H.P.Gupta Case (Supra) [Para-10], a Court is precluded from entertaining a complaint without sanction, actually it was in contradiction of what he had stated in the earlier part of the Judgment [Para 8]. It is as follows;

“There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of S.197 does not get immediately attracted on institution of the complaint case”. He repeated the same in State of Orissa Vs. Ganesh Chandra Jew AIR 2004 SC 2179, S. K. Zutshi Vs. Bimal Debnath AIR 2004 SC 4174 Centre For Public Interest Litigation Vs. Union of India (2005) 4 SCC 512, Rakesh Kumar Mishra Vs. State of Bihar AIR 2006 SC 820; Raghunath Anant Govilkar Vs. State Of Maharashtra And Ors(2008) 11 SCC 289 Anjani Kumar Vs. State of Bihar AIR 2008 SC 1992 Goondla Venkateswarlu Vs. State of A.P(2008) 9 SCC 613.

In another set of Cases, Supreme Court had considered the issue whether previous sanction was necessary before a court could take cognizance of the offences in the case of a person who had ceased to be a public servant at the time the Court was asked to take cognizance, although he had been such a person at the time the offence was committed.

In A.R. Antulay Vs R. S. Nayak, AIR 1984 SC 684 Justice D. A. Desai speaking for the Constitution Bench observed as follows;

'The complaint from which the present appeal arises and which was registered as Criminal Case No. 24/82 appears to have been filed on August 9, 1982 and the cognizance was taken by the learned Magistrate on the same day. It unquestionably transpires that long before the date on which the cognizance was taken by the learned Special Judge the accused had ceased to hold the office of the Chief Minister and as such had ceased to be a public servant. In other words, he was not a public servant in his capacity as Chief Minister on August, 9 1982 when the Court took cognizance of the offence against him. A fortiori no sanction as contemplated by S.6 was necessary before cognizance of the offence could be taken against the accused for offences alleged to have been committed in his former capacity as public servant."

In S. A. Venkataraman v. State, AIR 1958 SC 107 Supreme Court held that :

"There is nothing in the words used in S. 6(1) (PC Act 1947)to even remotely suggest that previous sanction was necessary before a Court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the Court was asked to take cognizance, although he had been such a person at the time the offence was committed." [See also , C. R. Bansi v. State of Maharashtra (1970) 3 SCC 537 ,  State of Kerala Vs. V. Padmanabhan Nair AIR 1999 SC 2405 Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411]

The situation would not be different when a complaint against a Public servant was filed while he was in service and ceased to be a public servant when the Court took Cognizance of the offence.

In State of Karnatka vs. Pastor P.Raju  Supreme Court had considered the question whether sanction U/S 196 Cr.P.C is required before taking Cognizance of an offence (specifically whether remanding an accused to Judicial Custody amounts to taking cognizance and is sanction required for it).  Supreme Court held as follows;

“S.167 CrPC finds place in Chap.12 which deals with “Information To The Police And Their Powers To Investigate”. This Section gives the procedure which has to be followed when investigation cannot be completed within twenty four hours and requires that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty four hours fixed by S.57 and there are grounds for believing that the accusation or information is well founded, he shall be forthwith transmitted to the nearest Judicial Magistrate along with copy of the entries in the diary. Sub-s.(2) of S.167 will show that even a Magistrate who has no jurisdiction to try the case can authorize the detention of the accused. A limited role has to be performed by the Judicial Magistrate to whom the accused has been forwarded, viz., to authorize his detention. This is anterior to S.190 CrPC which confers power upon a Magistrate to take cognizance of an offence. Therefore, an order remanding an accused to judicial custody does not amount to taking cognizance of an offence. In such circumstances S.196(1A) CrPC can have no application at all and the High Court clearly erred in quashing the proceedings on the ground that previous sanction of the Central Government or of the State Government or of the District Magistrate had not been obtained. It is important to note that on the view taken by the High Court, no person accused of an offence, which is of the nature which requires previous sanction of a specified authority before taking of cognizance by the Court, can ever be arrested nor such an offence can be investigated by the police. The specified authority empowered to grant sanction does so after applying his mind to the material collected during the course of investigation. There is no occasion for grant of sanction soon after the FIR is lodged nor such a power can be exercised before completion of investigation and collection of evidence. Therefore, the whole premise on the basis of which the proceedings have been quashed by the High Court is wholly erroneous in law and is liable to be set aside.

In this Case the Supreme Court had made a very important point that the specified authority empowered to grant sanction does so after applying his mind to the material collected during the course of investigation. There is no occasion for grant of sanction soon after the FIR is lodged nor such a power can be exercised before completion of investigation and collection of evidence. It raises a very pertinent question that, how can the Complainant produce a valid sanction at the time of filing the Complaint? Except a Complaint constituting a Cognizable offence and limited documents which are relied on him, what else he can produce before the sanctioning authority. Can he examine the witnesses and record their statements and produce before the sanctioning authority. In CBI vs. Ashok Kumar Aggarwal [AIR 2014 SC 827] relying on  Gokulchand Dwarkadas Morarka v. King, [AlR 1949 PC 82]; Jaswant Singh v. State of Punjab [AIR 1958 SC 124]  Mohd. Iqbal Ahmed v. State of A.P.,: [AIR 1979 SC 677] : State through Anti -  Corruption Bureau, Govt. of Maharashtra v. Krishanchand Khushalchand Jagtiani, [AIR 1996 SC 1910]  State of Punjab v. Mohd. Iqbal Bhatti, [2009 (17) SCC 92] Satyavir Singh Rathi, ACP v. State,[ AIR 2011 SC 1748]; and State of Maharashtra v. Mahesh G. Jain, [2013 (8) SCC 119]explained the procedure of granting sanction as follows;

“the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the Court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge - sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the Court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non - application of mind”

The Court also insisted that record so sent should also contain the material / document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. When the competent authorities can grant or refuse sanction only after perusing the records of investigation,  where is the question of producing the  sanction at the time of ordering an investigation.

Reading Down the word ‘cognizance’ as ‘filing’ for the purpose Chapter XXXVI of Cr.P.C by Constitution Bench in Sarah Thomas vs Institute of Cardio Vascular Diseases and Another – Effect of

Recently a Constitution Bench of the Supreme Court had read down the word ‘cognizance’ as ‘Filing’ for the purpose of various sections of Chapter  XXXVI which deal with 'Limitation for Taking Cognizance of Certain Offences'. The Court was considering the question whether for the purposes of computing the period of limitation under Section 468 of the CrPC the relevant date is the date of filing of the complaint or the date on which a Magistrate takes cognizance of the offence? Relying on a two Judge Bench Judgment in Japani Sahoo Vs. Chandra Sekhar Mohanty [ (2007) 7 SCC 394] it is decided that for the purpose of computing the period of limitation under Section 468 of the CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. The Bench quoted the following passage with approval from Japani Sahoo (Supra)

“Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law, if that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalised because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of litera legis. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution.

Since the Judgment specifically stated that the purposive interpretation given by the Court for the word ‘cognizance’ is only for the purpose of Chapter XXXVI, the above decision has no application while interpreting the word ‘cognizance’ in Chapter XIV of the Code. But I think the reasoning given by the Court for declaring the other interpretation arbitrary is squarely applicable in Anil Kumar (Supra).  In Sarah Thomas (Supra) and in Japani Sahoo (Supra) the Court held that the only thing the Complainant can do to save the limitation is to file the Complaint within time and it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law, if that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Like that, the only thing the Complainant can do when he got information relating to a Cognizable offence, he can approach the authorities concerned. He can approach the Station House Officer U/S 154(1), and if he is unsuccessful he can approach the SP U/S 154(3). Normally a Complainant approaches the Magistrate after exhausting the above two remedies. In the above two occasions there is nothing except a Complaint constituting a Cognizable offence is required for registration of FIR and investigation in to the allegations [Lalita Kumari]. But without getting Justice from the policeauthorities, when a Complainant approaches the Magistrate with the same request, Anil Kumar (Supra) places an additional burden which is almost impossible for the Complainant to discharge ie, to produce the sanction. Hence the interpretation in Anil Kumar is totally arbitrary, irrational and unreasonable.   Many times Supreme Court had expressed concern about the delay in granting sanction by the authorities. There are instances where as a result of delayed grant of sanction prosecutions under the PC Act against a public servant have been quashed. In Mahendra Lal Das v. State of Bihar and Others, [2002 (1) SCC ] wherein Supreme Court quashed the prosecution as the sanctioning authority granted sanction after 13 years. Similarly, in the case of Santosh De v. Archna Guha and Others, AIR 1994 SC 1229 Supreme Court quashed prosecution in a case where grant of sanction was unduly delayed. The aforesaid instances show a blatant subversion of the rule of law. Thus, in many cases public servants whose sanction proposals are pending before authorities for long periods of time are being allowed to escape criminal prosecution [Subramanyam Swamy (Supra)]. We have cases where the Criminal Prosecution against politicians and influential bureaucrat were abandoned because the Government had not given sanction. [See Common Cause, a registered Society vs. Union of India & Ors. (1996) 6 SCC 593, Shiv Sagar Tiwari vs. Union of India & Ors. (1996) 6 SCC 599, M.C. Mehta (Taj Corridor Scam) vs. Union of India & Ors., (2007) 1 SCC 110,] In Mansoor Ali Khan Vs Union of India in which the Constitutional validity of S.19 of PC was upheld by the Supreme Court it is held as follows;

“The learned Attorney General in the course of his submission fairly admitted before us that out of the total 319 requests for sanction, in respect of 126 of such requests, sanction is awaited. Therefore, in more than one-third cases of request for prosecution in corruption cases against public servants, sanctions have not been accorded. The aforesaid scenario raises very important constitutional issues as well as some questions relating to interpretation of such sanctioning provision and also the role that an independent judiciary has to play in maintaining the Rule of Law and common man's faith in the justice-delivering system.

The above observation of the Supreme Court amplifies the difficulty of getting sanction against public servants. Hence casting a duty on a Citizen to produce sanction with the complaint deprives of his legitimate and fundamental right to get justice by setting the criminal law in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right. It also gives an absolutely arbitrary power in the government to withhold sanction at their sweet will and pleasure and curtail every attempt to investigate a corrupt public servant.

A decision or judgment can be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Coequal or Larger Benches. From the above analysis it can be safely concluded that Anil Kumar (Supra) which was decided without considering a catena of Judgments which conclusively held that Section 156(3) is a pre-cognizance exercise which requires no sanction, is per incurium . A per incurim Judgment cannot be deemed to be a law declared to have a binding effect as is contemplated by Art. 141  and hence need not be followed as a binding precedent.

M.A.Rashid is the Co-Founder of LIVE LAW.  He revised Ratanlal Dheeraj Lal "Indian Penal Code" (34th Ed) with Justice KT Thomas