Special Judge Under PC Act Can't Direct Investigating Agency To Obtain Prosecution Sanction While Ordering Further Investigation: Kerala High Court

The Kerala High Court recently held that the Special Judge, exercising jurisdiction under the Prevention of Corruption Act, 1988, is not empowered to direct the investigating agency to obtain sanction under Section 19 for prosecution of the accused while ordering further investigation under Section 173 Cr.P.C. 

The Single Judge Bench of Justice K. Babu observed:

"It is the statutory duty and responsibility of the investigating agency to fully investigate the matter and then submit a report to the Court concerned, either finding the allegation substantiated or finding no material to support the allegation. It is not within the competence of the Court concerned to issue a direction that the case should not only be investigated, but also a report to the effect that the allegations have been supported by the material collected be submitted." 

The court passed the order on a petition filed by three accused in the case registered by the Ernakulam Unit of the Vigilance and Anti-Corruption Bureau (VACB), alleging offences punishable under Sections 465, 471 & 120-B of the Indian Penal Code and Section 13(1)(d) read with Section 13(2) of the Act, 1988. The VACB had submitted the final report before the Special Court Judge stating that no material was found to support the allegations in the FIR. 

However, the Special Judge ordered the investigating officer to conduct further investigation as well as to obtain sanction under Section 19 of PC Act, 1988 to prosecute the three accused persons. "Further final report shall be submitted before this Court within three months", the impugned order said. 

It was contended by Advocates K.K. Dheerendrakrishnan and N.P. Asha on behalf of the petitioners that the impugned order was a positive direction to submit a charge sheet against the petitioners.

The counsels relied on the decisions in Bhagwant Singh v. Commissioner of Police (1985), and M.C. Abraham & Anr. v. State of Maharashtra & Ors. (2003) to argue that it is for the investigating agency to submit a report to the Court concerned after a full and complete investigation and the Special Judge could not have directed the investigating agency to submit a report. 

The court noted that as per the settled principles of law, when a report forwarded by the officer in charge of a police station to the Magistrate under sub-section (2)(i) of S.173 Cr.P.C. comes up for consideration by the Magistrate, either of the two situations may arise.

"The report may conclude that an offence appears to have been committed by a particular person or persons, and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of S.156 and require the police to make a further report," said the bench.

On the other hand, the court observed that the report may also state that in the opinion of the police, no offence appears to have been committed, and in such an instance, the Magistrate may accept the report and drop the proceeding or disagree with the report and taking the view that there is sufficient ground for proceeding further and thereby take cognizance, or direct further investigation to be made by the police under Section 156(3). 

It relied on the observations made in Bhagwant Singh v. Commissioner of Police in this regard.

The bench said it is not within the competence of the court to issue a direction to investigate a case, and order submission of a report to the effect that the allegations have been supported by the material collected be submitted.

"In the instant case, the learned Special Judge not only directed further investigation but also required the investigating agency to obtain sanction under Section 19 of the Act, 1988, to prosecute the petitioners/accused Nos.1 to 3, which would necessarily indicate that the direction to the investigating agency was to submit a positive report against them. The Special Judge, while ordering further investigation, is not empowered to direct the investigating agency to obtain sanction under Section 19 of the Act, 1988 to prosecute the accused," the Court observed while setting aside the impugned order. 

It added that the investigating agency would be at liberty to take steps to conclude the investigation and submit its report as per law, uninfluenced by the observations passed by the Special Judge. 

"Having regard to the facts and circumstances of the case, it is made clear that the time limit stipulated by the Special Judge is not binding on the investigating agency. After such a final report is submitted by the investigating agency, the Special Judge, concerned may proceed to deal with the matter in accordance with the law without being influenced by any of the observations made by this Court", the Court observed. 

The Special Government Pleader Vigilance Rajesh A., and Government Pleader Rekha appeared on behalf of the respondent. 

Case Title: M.M. Abdul Azeez & Ors. v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 72

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