TaxTMI 
TaxTMI 
TaxTMI 
2016 (9) TMI 1599
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and Sections 120(b), 427, 447 and 506 read with Section 34 of the Indian Penal Code, 1860. The complaint of the complainant contained the following allegations: 3. One Smt. Amararnmal was the original owner of immovable property measuring 259.95 acres in Survey No. 597-B and an area measuring 57.30 acres in Survey No. 601-A of Bellari, having purchased the same from the Government of India under a registered sale deed dated January 19, 1940, registered in the office of the Sub-Registrar, Bellari. The complaint further states that one Smt. Akula Lakshmamma and her children had obtained money decree against one Pitarnbara Modaliyar and in the execution of the said decree the decree holder purchased the land measuring 27.25 acres through court and, thus, became owner of the said property which is situated at Survey No. 597-B. Out of this 27.25 acres of land, an area measuring 10 acres of land was later acquired by the Government for forming high level canal by Thungabhadra Project. However, the revenue authorities failed to demarcate the remaining extent of land measuring 17.25 acres which forced Smt. Akula Lakshmamma and her children to file a suit seeking mandatory injunction. In ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Nos. 3 and 5 (Appellants herein) are the Government officials working as Assistant Commissioner and Deputy Director of Land Records respectively. In respect of the Government officials, it is alleged that accused No. 1, Revenue Inspector, had conducted spot inspection on January 17, 2011; accused No. 3, who is the Tehsildar, had recommended case for conversion on the same day and accused No. 5, who is the Assistant Commissioner, had given an endorsement to accused No. 6 on the very next day to the effect that property in question is not the subject matter of acquisition. On this basis, it is alleged that all the officials aided accused No. 6 by abusing their official position. We may state at this stage itself that the Appellants cannot argue that there are no allegations against them in the complaint warranting taking cognizance qua them. On the basis of the aforesaid allegations, prayer was made in the complaint to secure the presence of accused persons and the complaint be referred to the Karnataka Lokayukta Police for investigation Under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, ' Code of Criminal Procedure') since the case required investigat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h the petition before the High Court was filed jointly by the Appellants, they had chosen to file separate appeals in this Court challenging the said judgment. That is how these two appears filed by them are aimed at same impugned judgment passed by the High Court. 7. With this factual background, we advert to the questions of law that arise for consideration: (1) Whether an order directing further investigation Under Section 156(3) of the Code of Criminal Procedure can be passed in relation to public servant in the absence of valid sanction and contrary to the judgments of this Court in Anil Kumar and Ors. v. M.K. Aiyappa and Anr. (2013) 10 SCC 705 and Manharibhai Muljibhai Kakadia and Anr. v. Shaileshbhai Mohanbhai Patel and Ors. (2012) 10 SCC 517? (2) Whether a public servant who is not on the same post and is transferred (whether by way of promotion or otherwise to another post) loses the protection Under Section 19(1) of the P.C. Act, though he continues to be a public servant, albeit on a different post? 8. Since requirement of obtaining sanction is contained in Section 19(1) of the P.C. Act, it would be proper to reproduce the same. For our purposes, reproduction of Sub-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ode of Criminal Procedure and we extract the same hereinbelow: 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- 1. upon receiving a complaint of facts which constitute such offence; 2. upon a police report of such facts; 3. 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. 10. When a complaint is received, the Court records preliminary evidence of the complainant on the basis of which it satisfies itself as to whether sufficient evidence is placed on record which may prima facie constitute such offence. Likewise, Police report is filed Under Section 173(2) of the Code of Criminal Procedure on the completion of investigation and on perusal thereof, the Magistrate satisfies himself about the facts ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gations made in the complaint or a police report or any information received that an offence has been committed. In the context of Sections 200, 202 and 203, the expression "taking cognizance" has been used in the sense of taking notice of the complaint or the first information report or the information that an offence has been committed on application of judicial mind. It does not necessarily mean issuance of process. 12. Second judgment in the case of Anil Kumar referred to above is directly on the point. In that case, identical question had fallen for consideration viz. whether sanction Under Section 19 of the P.C. Act is a pre-condition for ordering investigation against a public servant Under Section 156(3) of Code of Criminal Procedure even at pre-cognizance stage? Answering the question in the affirmative, the Court discussed the legal position in the following manner: 13. The expression "cognizance" which appears in Section 197 Code of Criminal Procedure came up for consideration before a three-Judge Bench of this Court in State of U.P. v. Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L and S) 200], and this Court expressed the following view: (SCC pp. 375, para 6) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out. [Ed.: As considered in State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728, 734, para 13 : (2006) 3 SCC (Cri) 179.] The meaning of the said expression was also considered by this Court in Subramanian Swamy case [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L and S) 666]. 15. The judgments referred to hereinabove clearly indicate that the word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation Under Section 156(3) Code of Criminal Procedure, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented Under Section 200 Code of Criminal Procedure and the next step to be taken is to follow up Under Section 202 Code of Criminal Procedure. Consequently, a Special Judge referring the case for investigation Under Section 156(3) is at pre-cognizance stag....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aced before it and on examination thereof, it is to reach the conclusion as to whether the sanction is accorded or not. It was also argued that sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. In support of the aforesaid arguments, reliance was placed on State of Himachal Pradesh v. Nishant Sareen (2010) 14 SCC 527 and Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) 7 SCC 622. 14. The aforesaid judgments referred to by the Appellants state the general proposition of law and purpose behind Section 19 of the P.C. Act. On the other hand, the question that needs to be answered is concerned, we find that it had same very question came up for consideration in Abhay Singh Chautala v. Central Bureau of Investigation (2011) 7 SCC 141. In that case, the Appellants were MLAs when charges under the P.C. Act were framed against them. However the charges pertained to wrongdoing committed during earlier periods of time during which they had also been MLAs or MPs. The charges did not pertain to their current tenure as MLAs during which the charges were framed and trial initiated. On th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arise only when the sanction is necessary. In case of the present Appellants, there was no question of there being any doubt because basically there was no question of the Appellants' getting any protection by a sanction. xx xx xx 56. Thus, we are of the clear view that the High Court was absolutely right in relying on the decision in Prakash Singh Badal v. State of Punjab to hold that the Appellants in both the appeals had abused entirely different office or offices than the one which they were holding on the date on which cognizance was taken and, therefore, there was no necessity of sanction Under Section 19 of the Act as held in K. Karunakaran v. State of Kerala and the later decision in Prakash Singh Badal v. State of Punjab. The appeals are without any merit and are dismissed. 15. In the aforesaid extracted paragraph 54 there is a reference to the judgment of this Court in S.A. Venkataraman. In that case, the issue was considered in the context of the P.C. Act wherein the relevant provision, corresponding to Section 19 of the present P.C. Act, was Section 6. Interpreting the provisions of Section 6, this Court held that even when a purported offence is committed by a p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... these cases the accused persons were public servants in the capacity of Member of Legislative Assembly/by virtue of political office. They were not public servants as government employees. However, detailed discussion contained in these judgments would indicate that the principle laid down therein would encompass and cover the cases of all public servants, including government employees who may otherwise be having constitutional protection under the provisions of Article 309 and 311 of the Constitution. To illustrate, we may quote the following passage from the judgment of this Court in the case of R.S. Nayak v. A.R. Antulay (1984) 2 SCC 183, which is reproduced along with other paragraphs from the judgment in Prakash Singh Badal: 23. Offences prescribed in Sections 161, 164 and 165 Indian Penal Code and Section 5 of the 1947 Act have an intimate and inseparable relation with the office of a public servant. A public servant occupies office which renders him a public servant and occupying the office carries with it the powers conferred on the office. Power generally is not conferred on an individual person. In a society governed by Rule of law power is conferred on office or acqui....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ice which he has abused. This interrelation between the office and its abuse if severed would render Section 6 devoid of any meaning. And this interrelation clearly provides a clue to the understanding of the provision in Section 6 providing for sanction by a competent authority who would be able to judge the action of the public servant before removing the bar, by granting sanction, to the taking of the cognizance of offences by the court against the public servant. Therefore, it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the a....