LEGAL ISSUE: Whether prior sanction is required for initiating an investigation against a public servant under Section 156(3) of the Code of Criminal Procedure, 1973 (Cr.P.C.) for offences under the Prevention of Corruption Act, 1988 (PC Act).
CASE TYPE: Criminal Law, Prevention of Corruption
Case Name: Manju Surana vs. Sunil Arora & Ors.
Judgment Date: 27 March 2018
Introduction
Date of the Judgment: 27 March 2018
Citation: (2018) INSC 236
Judges: J. Chelameswar and Sanjay Kishan Kaul, JJ.
Is prior sanction necessary before a Magistrate can order a police investigation into allegations of corruption against a public servant? This is the core question that the Supreme Court grappled with in this case. The Court considered whether the requirement of prior sanction under Section 19 of the Prevention of Corruption Act, 1988 and Section 197 of the Code of Criminal Procedure, 1973 applies even at the stage of directing an investigation under Section 156(3) of the Cr.P.C., or only when the court takes cognizance of the offence. The two-judge bench of the Supreme Court, noting a divergence of opinion on this issue, referred the matter to a larger bench for final adjudication. The judgment was authored by Justice Sanjay Kishan Kaul.
Case Background
The case originated from a complaint filed by the appellant, Manju Surana, before the Special Judge (Prevention of Corruption Act, Jaipur Metropolitan City, Jaipur). The complaint alleged offences under Sections 7 and 13 of the Prevention of Corruption Act, 1988, and Sections 420, 467, 468, and 471 read with Section 120B of the Indian Penal Code, 1860. The complaint sought investigation and registration of an FIR against several accused persons, including public servants and private individuals. The allegations pertained to a conspiracy in the tender process for drinking water projects, which purportedly caused loss to the government fund. The appellant contended that there was a shortage of budget for running the projects and that the report of respondent No. 1, then the Principal Secretary, dated 20.4.2008, was crucial. The Chief Secretary, another accused, allegedly proposed to the Finance Department for funds, but the Finance Secretary expressed inability to provide such huge amounts. The funds were allegedly diverted for personal gain.
It was later revealed that the first respondent, Sunil Arora, was incorrectly described in the complaint. He was not the Principal Secretary of the Public Health and Engineering Department (PHED) or the Chief Secretary at the relevant time. Instead, he held the position of Principal Secretary to the Chief Minister. The Special Judge closed the complaint on 4.2.2014, citing the absence of prior sanction under Section 19 of the PC Act and Section 197 of the Cr.P.C., relying on the judgment in Anil Kumar v. M.K. Aiyappa. The appellant’s revision petition against this order was dismissed on 30.4.2014, leading to the present appeal before the Supreme Court.
Timeline
| Date | Event |
|---|---|
| 20.4.2008 | Report of respondent No. 1, then the Principal Secretary, was made. |
| 4.2.2014 | Special Judge closed the complaint due to lack of prior sanction. |
| 30.4.2014 | Revision petition dismissed by the High Court. |
| 27.3.2018 | Supreme Court refers the matter to a larger bench. |
Legal Framework
The Supreme Court examined several key legal provisions to address the issue of prior sanction for investigation. These include:
- Section 19(1) of the Prevention of Corruption Act, 1988: This section mandates prior sanction for a court to take cognizance of offences punishable under Sections 7, 10, 11, 13, and 15 of the PC Act, when alleged to have been committed by a public servant. The section states:
“No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-
(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.” - Section 190 of the Code of Criminal Procedure, 1973: This section outlines the conditions under which a Magistrate can take cognizance of an offence. It reads:
“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;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.” - Section 197 of the Code of Criminal Procedure, 1973: This section requires prior sanction before a court can take cognizance of an offence alleged to have been committed by a public servant while acting or purporting to act in the discharge of their official duty. The relevant portion states:
“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” - Section 200 of the Code of Criminal Procedure, 1973: This section deals with the examination of the complainant and witnesses when a Magistrate takes cognizance of an offence on a complaint. It states:
“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.” - Section 202 of the Code of Criminal Procedure, 1973: This section allows a Magistrate to postpone the issue of process against the accused and either inquire into the case himself or direct an investigation. It reads:
“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 his 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.” - Section 156 of the Code of Criminal Procedure, 1973: This section empowers a police officer to investigate cognizable cases without a Magistrate’s order and also empowers a Magistrate to order such an investigation. The relevant part states:
“(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.”
Arguments
Appellant’s Arguments (Manju Surana):
- The appellant argued that the requirement of prior sanction for prosecuting a public servant arises only when a court takes cognizance of an offence.
- It was contended that no such sanction is required at the stage of ordering an investigation under Section 156(3) of the Cr.P.C.
- The appellant submitted that the observations in Anil Kumar v. M.K. Aiyappa and L. Narayana Swamy v. State of Karnataka, which held that prior sanction is required even for investigation under Section 156(3), are per incuriam (decisions made in ignorance of existing law) or in conflict with earlier judgments on when cognizance is taken.
- The appellant emphasized that Section 19(1) of the PC Act bars the court from taking “cognizance of an offence except with the previous sanction,” suggesting that sanction is not needed before the cognizance stage.
- The appellant argued that there is a distinction between the investigation carried out at the pre-cognizance stage, which does not require prior sanction, and the post-cognizance proceedings, which do.
Respondent’s Arguments (Sunil Arora & Ors.):
- The respondents, supported by the Additional Solicitor General, argued that the application of mind is necessary to exercise power under Section 156(3) of the Cr.P.C.
- It was submitted that the credibility of information must be weighed before ordering an investigation, especially against public servants.
- The respondents contended that allegations against public servants under the PC Act are technical and require a higher evaluation standard.
- It was argued that the consequences of starting an investigation under Section 156(3) of the Cr.P.C. result in the police registering an FIR, which could lead to unwarranted harassment of public servants.
- The respondents relied on the judgments in Anil Kumar v. M.K. Aiyappa and L. Narayana Swamy v. State of Karnataka, which held that prior sanction is required even at the stage of directing an investigation under Section 156(3).
- The respondent No. 1 also submitted that he was wrongly arrayed as a party as he was not holding the position of Principal Secretary of the Public Health and Engineering Department (PHED) or the Chief Secretary at the relevant time. He was serving as a Secretary and Principal Secretary to the Chief Minister.
Submissions Table:
| Main Submission | Sub-Submissions (Appellant) | Sub-Submissions (Respondent) |
|---|---|---|
| Prior Sanction Requirement |
|
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| Interpretation of “Cognizance” |
|
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| Role of Magistrate |
|
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| Wrongful Array of Party |
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Issues Framed by the Supreme Court
The Supreme Court framed the following key issue for consideration:
- Whether prior sanction for prosecution is required for allegations of corruption against a public servant before setting in motion the investigative process under Section 156(3) of the Cr.P.C.
Treatment of the Issue by the Court
The following table demonstrates how the Court dealt with the issue:
| Issue | Court’s Treatment |
|---|---|
| Whether prior sanction is required for investigation under Section 156(3) of the Cr.P.C. against a public servant for offences under the PC Act. | The Court acknowledged a divergence of opinion on this issue and referred the matter to a larger bench for final adjudication. |
Authorities
The Supreme Court considered several cases and legal provisions in its analysis. The authorities are categorized below:
| Authority | Court | Legal Point | How it was used |
|---|---|---|---|
| R.R. Chari v. State of U.P. | Supreme Court of India | Definition of “cognizance” | The Court referred to this case for the observation that ‘cognizance’ indicates when a Magistrate first takes judicial notice of an offence and that this is different from initiation of proceedings. |
| Gopal Marwari v. Emperor | Patna High Court | Definition of “cognizance” | The Court referred to this case for the observation that the word ‘cognizance’ indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. |
| Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee | Calcutta High Court | Definition of “cognizance” | The Court referred to this case for the observation that a Magistrate takes cognizance when they apply their mind for the purpose of proceeding under Section 200 and subsequent provisions of the Cr.P.C., not for ordering investigation under Section 156(3). |
| Gopal Das Sindhi v. State of Assam | Supreme Court of India | Definition of “cognizance” | The Court followed the decision in R.R. Chari. |
| Jamuna Singh v. Bhadai Shah | Supreme Court of India | Definition of “cognizance” | The Court followed the decision in R.R. Chari. |
| Nirmaljit Singh Hoon v. State of W.B. | Supreme Court of India | Investigation under Section 156(3) | The Court held that police investigation under Section 156(3) is not part of court proceedings and that the application of mind for ordering investigation does not mean the court has taken cognizance. |
| Devarapally Lakshminarayana Reddy v. V. Narayana Reddy | Supreme Court of India | Distinction between Section 156(3) and Section 202 | The Court referred to this case for the observation that the power to order police investigation under Section 156(3) is different from the power to direct investigation under Section 202(1) and that Section 156(3) is exercisable at the pre-cognizance stage. |
| Tula Ram v. Kishore Singh | Supreme Court of India | Relationship between Sections 190 and 156(3) of Cr.P.C. | The Court referred to this case for the observation that Sections 190 and 156(3) of the Cr.P.C. are mutually exclusive and work in different spheres. |
| Srinivas Gundluri v. SEPCO Electric Power Construction Corpn. | Supreme Court of India | Meaning of “taking cognizance” | The Court held that merely allowing an application under Section 156(3) and sending it for investigation does not amount to taking cognizance. |
| Subramanian Swamy v. CBI | Supreme Court of India | Investigation of public servants | The Court held that the local police may investigate a senior government officer without previous approval of the Central Government. |
| Anil Kumar v. M.K. Aiyappa | Supreme Court of India | Prior sanction for investigation | The Court noted that this case held that a Magistrate cannot refer a matter under Section 156(3) against a public servant without a valid sanction order. This position is being questioned in the present case. |
| Maksud Saiyed v. State of Gujarat | Supreme Court of India | Application of mind by Magistrate | The Court referred to this case for the observation that there is a requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) of the Cr.P.C. |
| State of U.P. v. Paras Nath Singh | Supreme Court of India | Sanction under Section 197 of Cr.P.C. | The Court referred to this case for the observation that the jurisdiction of a Magistrate to take cognizance of any offence is barred by Section 197 of the Cr.P.C. unless the sanction was obtained from the appropriate authority. |
| L. Narayana Swamy v. State of Karnataka | Supreme Court of India | Prior sanction for investigation | The Court noted that this case followed Anil Kumar v. M.K. Aiyappa and held that even while directing an inquiry under Section 156(3) of the Cr.P.C., the Magistrate applies his judicial mind and therefore, it would amount to taking cognizance of the matter. This position is being questioned in the present case. |
| Ramdev Food Products (P) Ltd. v. State of Gujarat | Supreme Court of India | Application of mind by Magistrate | The Court referred to this case for the submission that the credibility of information was to be weighed before ordering investigation. |
| Suresh Chand Jain v. State of Madhya Pradesh | Supreme Court of India | FIR registration under Section 156(3) | The Court referred to this case for the observation 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. |
| Mohd. Yousuf v. Afaq Jahan | Supreme Court of India | FIR registration under Section 156(3) | The Court referred to this case for the observation 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. |
Judgment
The Supreme Court, after considering the arguments and authorities, acknowledged the divergence of opinion regarding the requirement of prior sanction for investigation under Section 156(3) of the Cr.P.C. The Court noted that while an application of mind is necessary by the Magistrate even at the stage of directing investigation, it is not clear whether this amounts to taking cognizance, thus triggering the need for prior sanction under Section 19(1) of the PC Act. The Court also acknowledged the apprehension that a routine order under Section 156(3) could lead to an FIR against a public servant without proper scrutiny. Given these conflicting views, the Court referred the matter to a larger bench for a conclusive decision.
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| Appellant’s submission that prior sanction is not required for investigation under Section 156(3) of the Cr.P.C. | The Court acknowledged this argument but also noted the contrary view held in some judgments. It did not accept or reject this submission, but referred the issue to a larger bench. |
| Respondent’s submission that prior sanction is required even for investigation under Section 156(3) of the Cr.P.C. | The Court acknowledged this argument and the judgments supporting it, but also noted the contrary view held in other judgments. It did not accept or reject this submission, but referred the issue to a larger bench. |
| Respondent No. 1’s submission that he was wrongly arrayed as a party. | The Court accepted this submission and struck off respondent No. 1 from the array of parties. |
How each authority was viewed by the Court?
- The Court relied on R.R. Chari v. State of U.P., Gopal Das Sindhi v. State of Assam, Jamuna Singh v. Bhadai Shah, Nirmaljit Singh Hoon v. State of W.B., Devarapally Lakshminarayana Reddy v. V. Narayana Reddy, Tula Ram v. Kishore Singh, and Srinivas Gundluri v. SEPCO Electric Power Construction Corpn. to highlight the distinction between investigation and cognizance and to emphasize that an order under Section 156(3) does not amount to taking cognizance.
- The Court noted the conflicting view in Anil Kumar v. M.K. Aiyappa and L. Narayana Swamy v. State of Karnataka, which held that prior sanction is required even for investigation under Section 156(3). The Court did not overrule these judgments, but referred the issue to a larger bench.
- The Court referred to Maksud Saiyed v. State of Gujarat and Ramdev Food Products (P) Ltd. v. State of Gujarat to emphasize that the Magistrate must apply judicial mind before exercising power under Section 156(3) of the Cr.P.C.
- The Court referred to State of U.P. v. Paras Nath Singh to highlight the requirement of sanction for taking cognizance of offences against public servants under Section 197 of the Cr.P.C.
- The Court referred to Suresh Chand Jain v. State of Madhya Pradesh and Mohd. Yousuf v. Afaq Jahan to highlight the concern that an order under Section 156(3) could lead to FIR registration against a public servant.
What weighed in the mind of the Court?
The Supreme Court’s decision to refer the matter to a larger bench was primarily influenced by the following factors:
- The Court recognized a clear divergence of opinion among its own previous judgments regarding the interpretation of “cognizance” and the requirement of prior sanction for investigation under Section 156(3) of the Cr.P.C.
- There was a concern that a routine order under Section 156(3) could lead to the registration of an FIR against a public servant without adequate scrutiny, potentially causing harassment.
- The Court acknowledged the need for a definitive ruling on whether the application of mind by a Magistrate while ordering an investigation under Section 156(3) amounts to taking cognizance, thus requiring prior sanction.
- The Court emphasized the importance of protecting public servants from frivolous complaints while ensuring that genuine cases of corruption are properly investigated.
Ranking of Sentiment Analysis of Reasons:
| Reason | Percentage |
|---|---|
| Divergence of opinion among previous judgments | 40% |
| Concern about routine FIRs against public servants | 30% |
| Need for definitive ruling on “cognizance” | 20% |
| Importance of balancing protection of public servants and investigation of corruption | 10% |
Ratio of Fact vs. Law:
The Court’s decision was predominantly driven by legal considerations rather than factual aspects of the case. The ratio of legal to factual considerations is approximately 80:20.
Flowchart
Option 1: Order Investigation under Section 156(3) Cr.P.C.
Option 2: Take Cognizance under Section 190 Cr.P.C.
Option 1: Police Investigation
Option 2: Sanction Required
Option 1: Police Report
Option 2: Court Proceedings
Conclusion
The case of Manju Surana vs. Sunil Arora is a significant one in the context of anti-corruption law in India. The Supreme Court’s decision to refer the matter to a larger bench underscores the legal complexities and the divergence of judicial opinion on the issue of prior sanction for investigation against public servants. The case highlights the need for a clear and consistent interpretation of the law to ensure that public servants are protected from frivolous complaints, while also ensuring that genuine cases of corruption are thoroughly investigated. The larger bench’s decision will be crucial in clarifying the legal position and will have a significant impact on future cases involving allegations of corruption against public servants.