Is Sanction Needed To Order Investigation Against Public Servant Under S.156(3) CrPC? Supreme Court Seeks Early Decision In Pending Reference

A two-judge bench of the Supreme Court has called for an early adjudication of the issue whether prior sanction is mandatory for a Magistrate to forward a complaint against a public servant for investigation as per Section 156(3) CrPC. This issue was referred to a larger bench in 2018 in the case Manju Surana v. Sunil Arora. 

In the present matter, a bench comprising Justices CT Ravikumar and Rajesh Bindal, after noting that the issue was of wide relevance and was arising in several matters frequently, observed that "an earlier decision on the question referred is solicited."

"The judgment in Manju Surana (supra) would reveal that the matters were referred to larger Bench on 27.3.2018. Considering the fact that question involved is a matter of relevance and such issues arises frequently for consideration before Courts, we are of the considered view that an earlier decision on the question referred is solicited.

Registry is directed to place these matters before the Hon'ble the Chief Justice of India for appropriate orders."

The bench also expressed a prima facie view that a Magistrate was not taking cognizance of a complaint while forwarding it for police investigation as per Section 156(3) of the Code of Criminal Procedure.

"We are of the considered view that scanning of the provisions under Sections 156(3), 173(2), 190, 200, 202, 203 and 204 of the CrPC would, prima facie, reveal that while directing for an investigation and forwarding the complaint therefor, the Magistrate is not actually taking cognizance," the bench expressed.

However, the bench refrained from proceeding further with the matter as the reference was pending before the larger bench. The present appeal was also directed to be tagged along with Manju Surana case.

What happened in Manju Surana case?

A two-judge bench comprising Justices J Chelameswar and SK Kaul doubted the 2013 judgment of a coordinate bench in Anil Kumar v. M K Aiyappa which held that prior sanction of the Government is necessary for a Magistrate to pass an order for investigation on a complaint against a public servant.

While agreeing that a Magistrate/Special Judge( under the Prevention of Corruption Act) was not taking cognizance of a complaint while passing an order under Section 156(3) CrPC, the Court held in Anil Kumar that sanction was necessary for exercise of power under Section 156(3) CrPC.

"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) Cr.P.C," the Court stated in Anil Kumar.

In Manju Surana, the Court asked, "can it be said that on account of Section 19(1) of the P.C. Act, the scope of inquiry under Section 156(3) of the Cr.P.C. can be said to be one of taking 'cognizance' thereby requiring the prior sanction in case of a public servant?".

Observing that an authoritative pronouncement was required on the issue, the matter was referred to a larger bench. The question for reference was framed as :

"Whether prior sanction for prosecution qua allegation of corruption in respect of a public servants is required before setting in motion even the investigative process under Section 156(3) of the Code of Criminal Procedure, 1973"

Case : Shamim Khan v. Debashish Chakraborty and others

Citation : 2024 LiveLaw (SC) 305

Click here to read the order