The Catch-22 of ‘No Investigation without Sanction’ and ‘No Sanction without Investigation’: A Critical Analysis of Anil Kumar v. M.K.Aiyappa (2013)

The Conundrum

1. There shall be no Investigation without Sanction.


2. Sanction will be granted on the basis of material collected during Investigation.

A Catch-22 situation appears to have arose on account of the decision of the Supreme Court in M.K.Aiyappa where the question that arose was: whether ‘Sanction’ is a necessary precondition for an order for investigation passed u/s 156(3) of the Code of Criminal Procedure, 1973 (CrPC) with respect to an offence under the Prevention of Corruption Act, 1988 (POCA)?

Scope of Section 156(3) of the CrPC

In order to set the context right for this discussion, let us begin at the beginnings. Section 156(3) CrPC empowers the Magistrate to pass directions to the Police/Investigating Agency directing them to register an FIR and commence investigation. Section 156(3) is usually invoked when the police does not register FIR and the request to superior officers in that regard also goes unheeded (S.154(3) CrPC). At the time of deciding as to whether the case requires a police investigation, the scope of inquiry before the Magistrate is limited to an examination as to whether the allegations levelled in the complaint disclose commission of a cognizable offence. If the answer is yes, the Magistrate can direct registration of FIR. Since an order u/s 156(3) CrPC only sets the ball rolling and commences the investigation, the Magistrate is not required to embark on an examination of the merits of the case or sufficiency/sustainability of the allegations made. It is only when the case is registered and investigation commenced, necessary material relating to the case is likely to get unearthed by the Police/Investigating Agency.

As to who can invoke Section 156(3) CrPC : the answer is ‘anyone’. A cognizable offence can be reported by anyone and court can pass directions for investigation. Once investigation is completed, the investigating officer files his report (Police Report u/s 173 of the CrPC) in the Court. Filing of the police report is followed by application of judicial mind thereon. The Court then applies its mind to the contents of the police report with a view to either summon the accused (if prima facie case appears to be made out against him), or drop the proceedings at that stage only, if there are no sufficient grounds for summoning the accused. This process of judicial application of mind with a view to taking further action is what is usually referred to as ‘taking cognizance’.

‘Taking Cognizance’

In this background, we may examine as to whether entertaining and deciding an application u/s 156(3) of the CrPC amounts to ‘taking cognizance’ or not?

A three judges bench of the Supreme Court, way back in 1951, has conclusively settled this issue in the case of R.R.Chari by holding: “What is ‘taking cognizance’ has not been defined in the Code of Criminal Procedure and I have no desire to attempt to define it. 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 Section 156(3) or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance.”.  

Subsequently, another three judges bench of the Supreme Court in Devarappally reaffirmed the above position. The bench further went on to hold that: “the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3)”

This makes it manifest that when directions u/s 156(3) CrPC are passed, the magistrate is not ‘taking cognizance’ but only directing an investigation in the case. It is only when the investigation is complete and report of its result filed, the court would be required to take cognizance of the offence(s) alleged therein. This legal position has been followed with remarkable consistency over the years.

‘Sanction for Prosecution’ as opposed to ‘Sanction for Investigation’

Section 19 of the Prevention of Corruption Act, 1988 (PC Act) lays down the mandatory requirement of ‘Sanction’, before the court can take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant.

Section 19 of POCA basically constitutes an exception to the general principle that the court has the power to take cognizance of any offence regardless of who the accused is. An exception to this principle is carved out in cases of ‘Public Servants’ and where the offence relates to POCA. In such cases, accord of ‘Sanction’ becomes a sine qua non before the court can take cognizance of the offence. ‘Sanction’ is meant to be a safeguard to ensure that Public Servants, who by the very nature of their job are susceptible to vexatious and frivolous complaints, are not harassed and allowed to work without a Damocles sword of a criminal complaint dangling over their heads. The authority empowered to grant sanction is usually the government/appointing authority capable of removing such Public Servant from office.

A perusal of Section 19 of POCA also manifests that it imposes a bar on the court taking ‘cognizance’ of an offence till sanction is obtained from the competent authority. The bar is with respect to the court taking cognizance and no such embargo is placed on initiation of investigation. This is reasonable since no protection is required from investigation, as the police may weed out false complaints at their end itself during investigation, and the case may never come to the stage of ‘taking cognizance’ (After investigation the Police/Investigating Agency may file a closure report and the court may accept the same).

This position of law was maintained consistently, not merely on account of its legality but also its eminent common-sense since it is important to remember that even the authority entrusted to grant sanction has to take that decision on the basis of some material, which in most cases would be the material collected during investigation. The grant of ‘Sanction’, it is settled law, is not an empty formality or a mechanical act. The entire record of facts collected during the investigation are required to be placed before the Sanctioning Authority to enable it to take an informed decision. The Sanctioning Authority does not act at caprice and its decision has to be grounded in objectively determinable facts. In fact, the order of Sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the material prior to taking a decision on ‘Sanction’. Needless to state, the grant of ‘Sanction’ is also amenable to judicial review and any Sanction granted sans such a consideration may not pass due-process muster. This is the clear dictum of the Supreme Court in CBI v. Ashok Kumar Aggarwal.

This is how it plays out and is indeed supposed to play out: An investigation ordered u/s 156(3) CrPC leads to collection of material, which is then considered by the Sanctioning Authority to accord/deny Sanction for Prosecution. If Sanction is required for investigation, then the Sanctioning Authority may have no material before it for grant or denial of Sanction. Further, since Section 19 POCA specifically stipulates ‘Sanction for Prosecution’, as opposed to “Sanction for Investigation’, reading it to be otherwise would be contrary to the express language of the Statute and the legislative intent.

In other words, it not only puts the cart before the horse, but is also a classic example of a Catch-22 situation of ‘No investigation till there is Sanction and No Sanction unless there is Investigation’.  The necessity of at least some investigation preceding the grant of Sanction has been expressly recognised by the Supreme Court in Pastor P. Raju, where it was observed 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”.

No immunity from Investigation.  

In Vineet Narain v. Union of India, the Supreme Court again categorically held that no sanction is needed for the purpose of investigation. It was observed: “The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction for prosecution is a prerequisite for the court to take cognizance of the offence. In the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a condition precedent for initiation of the investigation once jurisdiction is conferred on the CBI to investigate the offence by virtue of the notification under Section 3 of the Act….There is no such previous sanction for investigation provided for either in the Prevention of Corruption Act or the Delhi Special Police Establishment Act or in any other statutory provision.” 

This view also avoids another anomalous position where the police, if it decides to investigate on its own, will not require a prior sanction, however, a court ordered investigation, which inarguably stands on a stronger footing, is not permissible unless the Sanction is granted. 

What goes on to support the view that the requirement of Sanction bars only taking of cognizance and never investigation itself is the recent decision of the Supreme Court in Subramanian Swami vs Union of India, wherein the Court struck down as unconstitutional Section 6A of the Delhi Special Police Establishment Act, which stipulated a requirement of prior sanction for investigation into crimes by high-ranking public servants. In this background, the court went on to note that investigation is central to the criminal justice administration and the same cannot be stultified by imposing a restriction on the police at the threshold itself. The Court, therefore, effectively held that may you be ever so high, but there can be no immunity from being probed and investigated.

Therefore, there is no immunity from investigation per se, but from ‘taking of cognizance’, unless a sanction is accorded in the given case. This ensures that an investigation into an allegation of crime isn’t short-circuited at the very threshold.

The unexplained metamorphosis of ‘Sanction for Prosecution’ into ‘Sanction for Investigation’ in Anil Kumar v. M.K.Aiyappa.

It is in this background that it may be relevant to address the decision of a 2 judges bench of the Supreme Court in Anil Kumar vs. M.K. Aiyappa, wherein the court held that Section 19 of POCA applies at the very threshold and an application under Section 156(3) CrPC seeking directions to the police to investigate cannot succeed unless prior sanction of the competent authority has been obtained. This effectively turns a ‘Sanction to Prosecute’ into a ‘Sanction to Investigate’, which is contrary to the settled law in R.R.Chari (supra) and Devarappally (supra), amongst countless others.  The larger bench judgments in R.R.Chari and Devarappally were not even brought to the notice of the Court in Aiyappa (supra), rendering it per incuriam.  

Another two judges bench of the Supreme Court recently in L. Narayana Swamy vs State was misled into following Aiyappa (Supra). This was legally impermissible insofar as a judgment which is per incuriam is totally denuded of its precedential value and cannot be relied upon.

Some High Courts have chosen not to follow Aiyappa (Supra) However, Aiyappa (supra) has not been expressly declared to be per-incuriam.

The correct position, in our humble opinion, appears to be the law laid down in R.R.Chari, Devarappally, Vineet Narain and Subramaniam Swami postulating an unfettered investigation leading to collection of material which forms the basis of any ‘Sanction’ to prosecute or not to prosecute, ‘Sanction’ being relevant only at the ‘Stage of Cognizance’ and not any stage prior thereto. Section 156(3) clearly being a pre-cognizance stage, there is no requirement for Sanction, otherwise a Sanction to prosecute will turn into a Sanction to Register FIR or Sanction to Investigate which is clearly contrary to the legislative intent and settled judicial position. The interests of stare decisis require an immediate reconsideration of Aiyappa  and L.Narayana Swamy by the Hon’ble Supreme Court of India.

The Article Authored by Anirban Bhattacharya, Partner & Bharat Chugh, Managing Associate at Luthra and Luthra Law Offices, New Delhi. Views and opinions expressed in this article are those of the authors and do not necessarily reflect the views of the Firm.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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