REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 457 OF 2018

(Arising out of SLP (Crl.) No.5838 of 2014)

MANJU SURANA ….Appellant

Versus

SUNIL ARORA & ORS. ..…Respondents

WITH

CRIMINAL APPEAL NO. 458 OF 2018

(Arising out of SLP (Crl.) No.1092 of 2015)

J U D G M E N T

SANJAY KISHAN KAUL, J.

CRIMINAL APPEAL NO. 457 OF 2018

(Arising out of SLP (Crl.) No.5838 of 2014)

1.Leave granted.

2.The question of law sought to be raised in the appeals is as to

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 (hereinafter referred to as the ‘Cr.P.C.’).

Page 1 of 30

3.In Criminal Appeal No………….of 2018 (arising out of SLP

(Crl.) No.5838 of 2014), the appellant submitted a complaint before

the Special Judge (Prevention of Corruption Act, Jaipur Metropolitan

City, Jaipur) under Sections 7 & 13 of the Prevention of Corruption

Act, 1988 (hereinafter referred to as the ‘PC Act’) and Sections 420,

467, 468 & 471 read with Section 120B of the Indian Penal Code,

1860 (hereinafter referred to as the ‘IPC’). The appellant sought

investigation of offences and registration of an FIR against the accused

persons. The first respondent arrayed as an accused before the Special

Judge as “Principal Secretary to the Government P.H.E.D. Chief

Minister” is the first respondent before us, the other persons arrayed as

accused before the Special Judge, being the Superintending Engineer,

Chief Engineer, ex Chief Minister (as she then was), ex Minister of

P.H.E.D., Finance Secretary, Deputy Accountant General and P.S.L.

Company through its Managing Director are also before us, as the

Respondents. It is alleged in the complaint that in the drinking water

project Nos.1 to 8, a conspiracy was hatched for fulfilling the personal

vested interest by way of a tender procedure, which caused loss to the

Government fund. The last and the 8

th

accused was stated to be given

Page 2 of 30

the advantage for personal interest. It is not necessary for the purpose

of the present controversy to get into the detailed facts but suffice to

say that as per the allegations of the appellant, there was a shortage of

budget for running the projects and the report of respondent No.1, then

the Principal Secretary, dated 20.4.2008 was liable to be perused. In

order to make payments for the outstanding and running projects, the

Chief Secretary, accused No.1, is stated to have written a proposal to

the Finance Department but the Finance Secretary expressed his

inability for making available such huge amounts. The fund was stated

to have been digressed.

4.It is extremely relevant to note that from the facts, which have

now come to light, respondent No.1 herein was neither holding the

post of the Principal Secretary of the P.H.E.D nor the Chief Secretary

at the relevant stage of time and the description of his office is

consequently not correct. The first respondent was actually holding the

post of Principal Secretary to the Chief Minister.

5.The Special Judge closed the complaint in terms of order dated

4.2.2014 on account of the fact that the accused persons arrayed as

Page 3 of 30

respondents are either public servants or have remained as public

servants and no prior sanction has been granted by the competent

authority under Section 19 of the PC Act read with Section 197 of the

Cr.P.C. To support this conclusion, reliance was placed on the

judgment of this Court in Anil Kumar v. M.K. Aiyappa

1

opining that

no complaint could be forwarded for investigation under Section

156(3) of the Cr.P.C. nor could any proceedings be initiated under

Sections 202 & 202 of the Cr.P.C. in the absence of such sanction. It

was, thus, observed that further proceedings in the case would be

conducted on the filing of sanction.

6.The appellant preferred a revision petition against this order,

which has been dismissed by the detailed impugned order dated

30.4.2014. The order really refers to various judicial pronouncements

and then concludes that in view of the judgment in Anil Kumar v.

M.K. Aiyappa

2

and P. Nallammal v. State

3

both for the reasons of

absence of any sanction, as also the revision petition being directed

against an interlocutory order, the petition was not maintainable.

1 (2013) 10 SCC 705

2 supra

3 (1999) 6 SCC 559

Page 4 of 30

Thereafter the present Special Leave Petition has been filed.

7.We have heard learned counsel for the parties.

8.Mr. Prashant Bhushan, learned counsel appearing for the

appellant sought to question the view taken in Anil Kumar

4

and in L.

Narayana Swamy v. State of Karnataka

5

following the earlier

judgment. The sub-stratum of the argument is that the requirement of

prior sanction for prosecution against the public servant would arise

only when cognizance is taken, while no such sanction was required at

the stage of setting into motion an investigation under Section 156(3)

of the Cr.P.C.. It was, thus, contended that the observations in these

two judgments are per incuriam or in conflict with the long line of

earlier judgments on the question as to when the cognizance can be

stated to have be taken. Mr. Bhushan drew our attention to Section

19(1) of the PC Act, which reads as under:

“19. Previous sanction necessary for prosecution -

(1) No court shall take cognizance of an offence punishable

under section 7, 10, 11, 13 and15 alleged to have been

committed by a public servant, except with the previous

sanction,-

4 supra

5 (2016) 9 SCC 598

Page 5 of 30

(a) in the case of a person who is employed in connection with

the affairs of the Union and is not removable from his office

save by or with the sanction of the Central Government, of that

Government;

(b) in the case of a person who is employed in connection with

the affairs of a State and is not removable from his office save

by or with the sanction of the State Government, of that

Government;

(c) in the case of any other person, of the authority competent to

remove him from his office.”

9.He sought to emphasise that the bar is to the court taking

“cognizance of an offence except with the previous sanction”.

10.We may next refer to Chapter XIV of the Cr.P.C., which is under

the heading “Conditions Requisite for Initiation of Proceedings”.

Section 190 states as to when cognizance would be taken and is

reproduced for convenience as under:

“190. Cognizance of offences by Magistrates.- (1) Subject to

the provisions of this Chapter, any Magistrate of the first class,

and any Magistrate of the second class specially empowered in

this behalf under sub-section (2 ), may take cognizance of any

offence-

(a) upon receiving a complaint of facts which constitute such

offence;

(b) upon a police report of such facts;

Page 6 of 30

(c) upon information received from any person other than a

police officer, or upon his own knowledge, that such offence has

been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate

of the second class to take cognizance under sub-section (1 ) of

such offences as are within his competence to inquire into or

try.”

11.Section 197 of the Cr.P.C. under the same chapter prescribes a

pre-condition of obtaining sanction before the court takes cognizance

against a public servant. The relevant portion reads as under:

“197. Prosecution of Judges and public servants.- (1) When

any person who is or was a Judge or Magistrate or a public

servant not removable from his office save by or with the

sanction of the Government is accused of any offence alleged

to have been committed by him while acting or purporting to

act in the discharge of his official duty, no Court shall take

cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may

be, was at the time of commission of the alleged offence

employed, in connection with the affairs of the Union, of the

Central Government;

(b) in the case of a person who is employed or, as the case may

be, was at the lime of commission of the alleged offence

employed, in connection with the affairs of a State, of the State

Government:

Provided that where the alleged offence was committed by a

person referred to in clause (b) during the period while a

Proclamation issued under clause (1) of Article 356 of the

Constitution was in force in a State, clause (b) will apply as if

for the expression "State Government" occurring therein, the

Page 7 of 30

expression "Central Government" were substituted.”

12.Once cognizance is taken the procedure is triggered off under

Chapter XV with the heading “Complaints to Magistrates”. It would

be suffice to reproduce Section 200 as under:

“200. Examination of complainant.- A Magistrate taking

cognizance of an offence on complaint shall examine upon

oath the complainant and the witnesses present, if any, and the

substance of such examination shall be reduced to writing and

shall be signed by the complainant and the witnesses, and also

by the Magistrate:

Provided that, when the complaint is made in writing, the

Magistrate need not examine the complainant and the

witnesses—

(a) if a public servant acting or purporting to act in the

discharge of his official duties or a Court has made the

complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to

another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to

another Magistrate under section 192 after examining the

complainant and the witnesses, the latter Magistrate need not

re-examine them.”

13.The Magistrate, if he thinks fit, may postpone the issue of

process against the accused to inquire the case himself or direct an

investigation post taking cognizance, as per Section 202, which is

reproduced herein under:

Page 8 of 30

“202. Postponement of issue of process.- (1) Any Magistrate,

on receipt of a complaint of an offence of which he is

authorised to take cognizance or which has been made over to

him under section 192 , may, if he thinks fit [and shall in a case

where the accused is residing at a place beyond the area in

which he exercises his jurisdiction], postpone the issue of

process against the accused, and either inquire into the case

himself or direct an investigation to be made by a police officer

or by such other person as he thinks fit, for the purpose of

deciding whether or not there is sufficient ground for

proceeding:

Provided that no such direction for investigation shall be made-

(a) where it appears to the Magistrate that the offence

complained of is triable exclusively by the Court of Sessions;

or

(b) where the complaint has not been made by a Court, unless

the complainant and the witnesses present (if any) have been

examined on oath under section 200 .

(2) In an inquiry under sub-section (1), the Magistrate may, if

he thinks fit, take evidence of witness on oath:

Provided that if it appears to the Magistrate that the offence

complained of is triable exclusively by the Court of Session, he

shall call upon the complainant to produce all hi s witnesses

and examine them on oath.

(3) If an investigation under sub-section (1) is made by a

person not being a police officer, he shall have for that

investigation all the powers conferred by this Code on an

officer in charge of a police station except the power to arrest

without warrant.”

14.Keeping in mind the aforesaid provisions, we now turn to

Chapter XII with the heading “Information to the Police and their

Page 9 of 30

powers to investigate”. Section 156 forms a part of this Chapter and

reads as under:

“156. Police officer's power to investigate cognizable cases.-

(1) Any officer in charge of a police station may, without the

order of a Magistrate, investigate any cognizable case which a

Court having jurisdiction over the local area within the limits

of such station would have power to inquire into or try under

the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at

any stage be called in question on the ground that the case was

one which such officer was not empowered under this section

to investigate.

(3) Any Magistrate empowered under section 190 may order

such an investigation as above-mentioned.”

15.The relevant provision is Section 156(3) of the Cr.P.C. where a

Magistrate is empowered to make an order of investigation in terms of

sub-sections (1) & (2).

16.It is, thus, the submission of Mr. Prashant Bhushan that there is a

distinction between the investigation carried out at pre-cognizance

stage, which would not face the requirement of a prior sanction qua a

public servant, as against a post-cognizance proceeding which needs

prior sanction. We may also notice that in terms of sub-section (4) of

Section 5 of the PC Act, for the proceedings before a Special Judge

Page 10 of 30

under the PC Act, the Special Judge shall be deemed to be a

Magistrate.

17.In the aforesaid context, he referred to a catena of judgments.

We have analyzed those and some other cases dealing with the issue.

Judgments on the nature of proceedings being an inquiry under

Section 156(3) of the Cr.P.C.:

18.In R.R. Chari v. State of U.P.

6

, a three Judges Bench of this

Court, in the inception years of this Court, referred to Gopal Marwari

v. Emperor

7

qua the observations that the word ‘cognizance’ indicates

the point when a Magistrate or a Judge first takes judicial notice of an

offence. This was different from initiation of proceedings. The word

‘cognizance’ was somewhat of an indefinite import and perhaps not

used exactly in the same sense. Thereafter it proceeded to notice the

observations of Das Gupta, J. in Superintendent and Remembrancer

of Legal Affairs, West Bengal v. Abani Kumar Banerjee

8

where

observations were made to the effect that what is taking cognizance has

6 1951 SCR 312

7 AIR 1943 Pat 245

8 AIR 1950 Cal 437

Page 11 of 30

not been defined in the Cr.P.C., but it could be said that any Magistrate

who has taken cognizance of any offence under Section 190(1)(a) of

the Cr.P.C. 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

– proceedings under Section 200 and thereafter under Section

202.However, when the Magistrate applies his mind, not for the

purpose of proceeding under the subsequent sections of this Chapter,

but for some other kind, e.g. ordering investigation under Section

156(3) or issuing a search warrant for the purposes of the investigation,

he could not be said to have taken cognizance of offence. The

Supreme Court gives its imprimatur to these observations.

19.Gopal Das Sindhi v. State of Assam

9

(three Judges Bench), the

decision in R.R. Chari

10

was followed.

20.Jamuna Singh v. Bhadai Shah

11

(three Judges Bench),the

decision in R.R. Chari

12

was followed.

9 AIR 1961 SC 986

10 supra

11 (1964) 5 SCR 37

12 supra

Page 12 of 30

21.In Nirmaljit Singh Hoon v. State of W.B.

13

(three Judges

Bench), it was sought to be canvassed that the investigation by the

police being one ordered by the Chief Presidency Magistrate under

Section 156(3) of the Cr.P.C., that investigation was part of the

proceedings of the Court. This plea was rejected inter alia on the

ground that the police authorities have, under Sections 154 & 156 of

the Cr.P.C., a statutory right to investigate into a cognizable offence

without requiring any sanction from a judicial authority. Secondly, for

taking cognizance under Section190(1)(a) of the Cr.P.C., a Magistrate

must not only have applied his mind but must have done so for

purposes of proceeding under Section 200 and the provisions following

that Section. The application of mind only for ordering investigation

under Section 156(3) or issuing a warrant for purposes of investigation

could not be said to have taken cognizance of the offence.

22.Devarapally Lakshminarayana Reddy v. V. Narayana Reddy

14

(three Judges Bench) – Mr. Prashant Bhushan referred to the aforesaid

judgment for analysis of Section 156(3) of the Cr.P.C. In para 13, it

13 (1973) 3 SCC 753

14 (1976) 3 SCC 252

Page 13 of 30

has been observed that when a Magistrate receives a complaint he is

not bound to take cognizance if the facts alleged in the complaint,

disclose the commission of an offence. Only if he forms an opinion

that the allegations therein disclose a cognizable offence and the

forwarding of the complaint to the police for investigation under

Section 156(3) will be conducive to justice and save the valuable time

of the Magistrate from being wasted in enquiring into a matter which

was primarily the duty of the police to investigate, he will be justified

in adopting that course as an alternative to taking cognizance of the

offence, himself. Thereafter in paras 14 & 17, it has been observed as

under:

“14. This raises the incidental question: What is meant by

“taking cognizance of an offence” by a Magistrate within the

contemplation of Section 190? This expression has not been

defined in the Code. But from the scheme of the Code, the

content and marginal heading of Section 190 and the caption of

Chapter XIV under which Sections 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 clauses (a),

(b) and (c) of Section 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 Section 200 and

Page 14 of 30

the succeeding sections in Chapter XV to the Code of 1973, he is

said to have taken cognizance of the offence within the meaning

to Section 190(1) (a). If, instead of proceeding under Chapter

XV, 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 investigation, or ordering investigation by the police

under Section 156(3), he cannot be said to have taken

cognizance of any offence.”

…. …. …. …. ….

“17. Section 156(3) occurs in Chapter XII, under the caption :

“Information to the Police and their powers to investigate”;

while Section 202 is in Chapter XV which bears the heading:

“Of complaints to Magistrates”. The power to order police

investigation under Section 156(3) is different from the power to

direct investigation conferred by Section 202(1). The two

operate in distinct spheres at different stages. The first is

exercisable at the pre-cognizance stage, the second at the post-

cognizance stage when the Magistrate is in seisin of the case.

That is to say in the case of a complaint regarding the

commission of a cognizable offence, 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). It may be

noted further that an order made under sub-section (3) of Section

156, is in the nature of a peremptory reminder or intimation to

the police to exercise their plenary powers of investigation under

Section 156(1). Such an investigation embraces the entire

continuous process which begins with the collection of evidence

under Section 156 and ends with a report or charge-sheet under

Section 173. On the other hand, Section 202 comes in at a stage

when some evidence has been collected by the Magistrate in

proceedings under Chapter XV, but the same is deemed

insufficient to take a decision as to the next step in the

prescribed procedure. In such a situation, the Magistrate is

empowered under Section 202 to direct, within the limits

Page 15 of 30

circumscribed by that section an investigation “for the purpose

of deciding whether or not there is sufficient ground for

proceeding”. Thus the object of an investigation under Section

202 is not to initiate a fresh case on police report but to assist the

Magistrate in completing proceedings already instituted upon a

complaint before him.”

23.In Tula Ram v. Kishore Singh

15

(two Judges Bench) – cited

before us, it was observed that Sections 190 and 156(3) of the Cr.P.C.

are mutually exclusive and work in totally different spheres. Thus,

even if a Magistrate receives a complaint under Section 190, he can act

under Section 156(3) provided that he does not take cognizance.

Chapter 14 deals with post cognizance stage while Chapter 12, so far

as the Magistrate is concerned, deals with pre-cognizance stage, that is

to say that even when a Magistrate starts acting under Section 190 and

the provisions following, he cannot resort to Section 156(3). Thus,

Section 202 would apply only in cases where the Magistrate has taken

cognizance and chooses to inquire into the complaint either himself or

through any other agency. Before proceeding to do so, there may be a

situation where the Magistrate, before taking cognizance himself,

chooses to order a pure and simple investigation under Section 156(3)

of the Cr.P.C.

15 (1977) 4 SCC 459

Page 16 of 30

24.Srinivas Gundluri v. SEPCO Electric Power Construction

Corpn.

16

(two Judges Bench) – The Magistrate in the case had merely

allowed the application filed by the complainant under Section 156(3)

of the Cr.P.C. and sent the same along with its annexure for

investigation by the police officer and that was held not to have

amounted to having taken cognizance.

25.Subramanian Swamy v. CBI

17

(five Judges Bench) – It was

observed that Section 156 of the Cr.P.C. enables an officer in charge

of a police station to investigate a cognizable offence. Insofar as non-

cognizable offences are concerned, it was found that the police officer

by virtue of Section 155 Cr.P.C. can investigate it after obtaining

appropriate orders from the Magistrate having power to try such case

or commit the case for trial regardless of the status of the officer

concerned. In view thereof, the scheme of Sections 155 and 156 of the

Cr.P.C. was held to indicate that the local police may investigate a

senior government officer without previous approval of the Central

Government.

16(2010) 8 SCC 206

17(2014) 8 SCC 682

Page 17 of 30

The Constitution Bench while dealing with the inquiry and

investigation under the P.C. Act held that there was no basis to classify

the two sets of public servants differently on the ground that one set of

officers is decision-making officers and not the other set of officers.

26.Despite the aforesaid catena of judgments, a different path has

been traversed in two judgments of this Court where the offences

alleged are under the P.C. Act read with the I.P.C.

27.In Anil Kumar v. M.K. Aiyappa

18

(two Judges Bench), the

Court proceeded to examine whether the Magistrate, while exercising

his powers under Section 156(3) of the Cr.P.C., could act in a

mechanical or casual manner and go on with the complaint after

getting the report. In that context, a reference was made to an earlier

judgment in Maksud Saiyed v. State of Gujarat

19

case, where it was

observed that there was a requirement of the application of mind by the

Magistrate before exercising jurisdiction under Section 156(3) of the

Cr.P.C. Thereafter the Bench proceeded to draw a conclusion that a

Special Judge/Magistrate cannot refer the matter under Section 156(3)

18 supra

19(2008) 5 SCC 668

Page 18 of 30

of the Cr.P.C. against a public servant without a valid sanction order.

28.The Bench further proceeded to examine whether the order

directing investigation under Section 156(3) of the Cr.P.C. would

amount to taking cognizance of the offence since a contention was

raised that the expression “cognizance” appearing in Section 19(1) of

the P.C. Act would have to be construed as post-cognizance stage and

not pre-cognizance stage and therefore, the requirement of sanction

does not arise prior to taking cognizance of the offences of the P.C.

Act. Insofar as the expression ‘cognizance’, which appears in Section

197 of the Cr.P.C. was concerned, a reference was made to the

judgment in State of U.P. v. Paras Nath Singh

20

. In that case it was

observed that the jurisdiction of a Magistrate to take cognizance of any

offence is provided by Section 190 of the Cr.P.C. and so far as the

public servant was concerned this was clearly barred by Section 197 of

the Cr.P.C. unless the sanction was obtained from the appropriate

authority. After referring to certain other judgments on the issue of

purport and meaning of the word ‘cognizance’, it was concluded that

‘cognizance’ has a wider connotation and is not merely confined to the

20(2009) 6 SCC 372

Page 19 of 30

stage of taking cognizance of the offence.

29.The Bench proceeded to discuss Section 19(1) of the P.C. Act as

also Section 19(3) of the P.C. Act, which reads as under:

“19. Previous sanction necessary for prosecution.—

…. …. …. …. ….

(3) Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974),—

(a) no finding, sentence or order passed by a special Judge shall

be reversed or altered by a court in appeal, confirmation or

revision on the ground of the absence of, or any error, omission

or irregularity in, the sanction required under sub-section (1),

unless in the opinion of that court, a failure of justice has in fact

been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the

ground of any error, omission or irregularity in the sanction

granted by the authority, unless it is satisfied that such error,

omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any

other ground and no court shall exercise the powers of revision

in relation to any interlocutory order passed in any inquiry, trial,

appeal or other proceedings.”

30.It was sought to be contended that the requirement of sanction

was only procedural in nature and hence directory or else Section 19(3)

of the P.C. Act would be rendered otiose. This contention was not

found acceptable as sub-section (3) of Section 19 of the P.C. Act had an

Page 20 of 30

object to achieve, which applied only in circumstances where a Special

Judge had already rendered a finding, sentence or order. This would

not mean that the requirement to obtain sanction was not a mandatory

requirement. In the absence of prior sanction, it was observed, that the

Magistrate cannot order investigation against a public servant even

while invoking power under Section 156(3) of the Cr.P.C.

31.L. Narayana Swamy v. State of Karnataka

21

(two Judges

Bench) – The judgment in Anil Kumar v. M.K. Aiyappa

22

was

followed. After discussing various other pronouncements, it was

concluded that even while directing an inquiry under Section 156(3) of

the Cr.P.C., the Magistrate applies his judicial mind to the complaint

and therefore, it would amount to taking cognizance of the matter.

32.Mr. Tushar Mehta, learned Additional Solicitor General sought

to canvas the view taken in the last two judgments referred to aforesaid

to submit that application of mind was necessary to exercise power

under Section 156(3) of the Cr.P.C. and that credibility of information

was to be weighed before ordering investigation (Ramdev Food

21 (2016) 9 SCC 598

22 supra

Page 21 of 30

Products (P) Ltd. v. State of Gujarat

23

). It was, thus, submitted that

allegation against a public servant under the P.C. Act offences are

technical in nature and would require a higher evaluation standard and

thus the Magistrates ought to apply their mind before ordering

investigation against public servant. The consequences of starting

investigation under Section 156(3) of the Cr.P.C., it was submitted,

would result in the police registering an FIR (Suresh Chand Jain v.

State of Madhya Pradesh

24

and Mohd. Yousuf v. Afaq Jahan

25

). Thus,

a situation may arise where a Magistrate may exercise his power under

Section 156(3) of the Cr.P.C. in a routine manner resulting in an FIR

being registered against a public servant, who may have no role in the

allegation made.

33.We have examined the rival contentions and do find a

divergence of opinion, which ought to be settled by a larger Bench.

There is no doubt that even at the stage of 156(3), while directing an

investigation, there has to be an application of mind by the Magistrate.

Thus, it may not be an acceptable proposition to contend that there

23(2015) 6 SCC 439

24(2001) 2 SCC 628

25(2006) 1 SCC 627

Page 22 of 30

would be some consequences to follow were the Magistrate to act in a

mechanical and mindless manner. That cannot be the test.

34.The catena of judgments on the issue as to the scope and power

of direction by a Magistrate under Chapters 12 & 14 is well

established. Thus, the question would be whether in cases of the P.C.

Act, a different import has to be read qua the power to be exercised

under Section 156(3) of the Cr.P.C., i.e., 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? It is

trite to say that prior sanction to prosecute a public servant for offences

under the P.C. Act is a provision contained under Chapter 14 of the

Cr.P.C. . Thus, whether such a purport can be imported into Chapter

12 of the Cr.P.C. while directing an investigation under Section 156(3)

of the Cr.P.C., merely because a public servant would be involved,

would beg an answer.

35.The apprehension expressed by the learned ASG possibly arises

from the observations in Suresh Chand Jain v. State of Madhya

Page 23 of 30

Pradesh

26

followed in Mohd. Yousuf v. Afaq Jahan

27

. Thus, the

observations are to the effect that even at a pre-cognizance stage under

Section 156(3) of the Cr.P.C., it is open to the Magistrate to direct the

police to register an FIR and that even if the Magistrate does not say in

so many words while directing investigation under Section 156(3) of

the Code that an FIR should be registered, it is the duty of the officer in

charge of the police station to register the FIR regarding the cognizable

offence disclosed by the complainant because that police officer could

take further steps contemplated in Chapter XII of the Code only

thereafter.

36.The complete controversy referred to aforesaid and the

conundrum arising in respect of the interplay of the P.C. Act offences

read with the Cr.P.C. is, thus, required to be settled by a larger Bench.

37.The papers may be placed before Hon’ble the Chief Justice of

India for being placed before a Bench of appropriate strength.

Crl. M.P. 161/2015 in SLP (Crl.) No.5838/2014

26 supra

27 supra

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38.We have passed a detailed order making a reference to a larger

Bench insofar as the main matter is concerned. It may be noticed that

in the present Special Leave Petition, notice was issued to the

Respondents, except Respondent No. 4. Since the proceedings before

the Magistrate at the threshold were directed to be kept in abeyance

without notice to the Respondent, and thereafter the revision petition

was dismissed in limine by the High Court, the occasion for

Respondent No.1 to have knowledge of the proceedings did not arise.

Respondent No.1 seeks deletion from the array of parties in these

proceedings as he has been wrongly arrayed as a party.

39.The aforesaid plea is predicated on the averments in the

complaint itself, which seeks to make a grievance over the actions of

the Principal Secretary, Public Health and Engineering Department

(PHED) in which capacity respondent No.1 is stated to have been

arrayed. It is averred in the application that respondent No.1 was

serving as a Secretary and Principal Secretary to the Chief Minister and

not as Principal Secretary, PHED. In fact, the officer working as the

Principal Secretary, PHED has not been arrayed as a respondent.

There is no allegation made against the Secretary/Principal Secretary to

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the Chief Minister. The allegation is of collusion of the respondents.

40.In terms of the averments in the application, respondent No.1

sought to point out that there are only two references to him as accused

No.1 - Para 4(iv) and Para 8. These are in the context of inviting

tenders, shortage of budget for running the current projects and the

report of stated accused No.1 as the Principal Secretary. The second

reference is to the stated accused No.1 as the Chief Secretary, who

wrote a proposal to the Finance Department whereupon the Finance

Secretary expressed his inability for making available such a huge

amount. Once again, respondent No.1 was not holding the post of the

Chief Secretary nor is the Chief Secretary then arrayed as a party.

41.Our attention was also drawn to the notings file, which are of the

Chief Engineer (SP) and approved by the Secretary, PHED and the

Hon’ble Minister, PHED. It is, thus, alleged that respondent No.1 was

neither involved with the decision making process nor he held any of

the two posts.

42.The application is sought to be opposed and a counter affidavit

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was filed by the appellant. It is stated that respondent No.1 is trying to

take undue advantage of the inadvertent mistake of the appellant in

mentioning his correct designation while filing the criminal complaint.

It is alleged that respondent No.1 was very much involved with the

decision making process. In any case the merit of the complaint of the

appellant is yet to be examined.

43.On 20.2.2018, we had issued directions for the appellant to place

on record the material placed before the Magistrate in support of the

complaint indicating the alleged involvement of respondent No.1. In

response thereto, a supplementary affidavit was filed by the appellant.

On this behalf a file noting of 9.5.2008 is referred to. The discussion

was with regard to the funding of the same project and the presence of

respondent No.1 is noted though undisputedly the minutes are not

signed by him while they are signed by other officers. It has been

averred that since the Principal Secretary to the Chief Minister had no

role to play in the discussion, why was he/respondent No.1 present?

44.We may also note the submission of learned counsel for

respondent No.1 that in case a situation arises where the Magistrate has

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to proceed on the complaint under Section 156(3) of the Cr.P.C. and

during investigation some material is found, the counsel cannot really

object to the inclusion of the name of respondent No.1 at that stage.

However, inclusion at this stage is stated to be without any material

facts and is an embarrassment, considering the constitutional position

held by respondent No.1.

45.We have given a thought to the respective pleas of the parties.

46.No doubt the process under Section 156(3) of the Cr.P.C. is only

one of investigation. The larger question, of whether any such

direction can be issued without prior sanction has been referred to a

larger bench. Were the appellant to succeed and were the matter to go

back to the Magistrate and the Magistrate after application of mind

forms an opinion to direct investigation by the police, it would be

always open to the Magistrate to include the name of respondent No.1

if such material is found against him.

47.Merely because the appellant has roped in respondent No.1 in

the complaint is not sufficient ground to allow his name to be included

Page 28 of 30

as such. The complaint is categorical – the role of Secretary, PHED

and the Principal Secretary has been questioned. That is the mindset

with which the complainant knocked the doors of the criminal courts.

There was no allegation in respect of any role played by the

Secretary/Principal Secretary to the Chief Minister. It cannot be said to

be a mere mis-description of name, which can be corrected. It cannot

be the stand of the appellant that willy-nilly somehow, respondent No.1

must remain arrayed as an accused in those proceedings, even though

the proceedings before the Magistrate are at the stage of only whether

there should be a direction for investigation or not. It is not that every

officer in the Government has to be arrayed in respect of any role

performed or not. The mere presence in one meeting of respondent

No.1 and that too when he was not a signatory and really had no role to

play in that capacity, as apparent from the minutes, cannot be now used

to justify his name being included as an accused. This is clearly an

afterthought. It is not for the appellant to question as to which officer

should or should not be present.

48.We are, thus, of the view that respondent No.1 needs to be struck

off from the array of parties both in the present proceedings and

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consequently in the complaint. We, however, make it clear that if a

situation arises where investigation is directed under Section 156(3) of

the Cr.P.C. and some material comes to light to array respondent No.1

as an accused, our order would not come in the way.

49.The application is accordingly allowed, leaving the parties to

bear their own costs.

CRIMINAL APPEAL NO. 458 OF 2018

(Arising out of SLP (Crl.) No.1092 of 2015

50.Leave granted.

51.The matter is referred to a larger Bench along with SLP (CRL.)

No.5838/2014 in terms of the judgment passed today.

..….….…………………….J.

(J. Chelameswar)

...……………………………J.

(Sanjay Kishan Kaul)

New Delhi.

March 27, 2018.

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