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IN THE COURT OF THE XXIV ADDITIONAL CITY CIVIL

AND SPECIAL JUDGE FOR TRIAL OF OFFENCES UNDER

THE PREVENTION OF CORRUPTION ACT, 1988

AT BANGALORE

P.C.R. No. 58 / 2012

Between:

Sri Abraham.T.J Complainant

And:

Sri H.D.Devegowda &

Others

Accused

APPLICATION UNDER SECTION 395 (2) OF THE CODE

OF CRIMINAL PROCEDURE, 1973 .

This application has been preferred by the complainant for

the purpose of seeking a reference in terms of Section

395(2) of the Code of Criminal Procedure, 1973.

1. It may be noted that the instant complaint was filed on 18-

Jul-2012 for the purpose of seeking a direction from this

Hon’ble Court to the Lokayuktha Police under Section

156(3) of the Code of Criminal Procedure, 1973 (referred to

hereinafter as the ‘Code’ for short) to investigate into

certain offences that were alleged by the complainant to

have been committed in the course of inception, execution

and implementation of the Bangalore Mysore Infrastructure

Corridor or short, BMIC Project.

2. On 25-Oct-2012, this Hon’ble Court was pleased to invoke

its powers under Section 156(3) of the Code to issue a

direction to the Lokayuktha Police to investigate into the

offences as reasoned by this Hon’ble Court in its elaborate

Order passed on that very date. Also, this Hon’ble Court was

further pleased to state in the Order dated 25-Oct-2012 that

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this Hon’ble Court would not be taking ‘cognizance’ of any

of the offences that were alleged by the complainant.

3. Under identical procedural circumstances that were also

witnessed in the cases of B.V.Acharya v. Venkateshaiah

[Writ Petition No.14047 of 2012 decided on 03-Aug-2012]

and Baburao Chinchanasur v. State by Lokayuktha Police

[Criminal Petition No.3 of 2013 decided on 13-Feb-2013],

the Hon’ble High Court of Karnataka has declared that such

direction to the police in terms of Section 156(3) of the

Code would be unlawful in the absence of a valid sanction

order accompanying the very complaint made to the Special

Judge so designated for the trial of offences under the

Prevention of Corruption Act, 1988 (referred to hereinafter

as the ‘P.C.Act’ for short).

4. That is, the law laid down by the Hon’ble High Court of

Karnataka in the case of B.V.Acharya v N.Venkateshaiah

(referred to hereinafter as ‘B.V.Acharya’ for short) and re-

affirmed and reiterated in the case of Baburao

Chinchanasur V. State by Lokayuktha Police (referred to

hereinafter as ‘Chinchanasur’ for short) is to the effect that

a Special Judge so designated for the trial of offences under

the P.C.Act,1988 would not be competent to direct an

investigation by the Lokayuktha Police in terms of Section

156(3) of the Code on any application made to such effect

by any person unless and until such application is also

accompanied by a valid sanction Order issued by the

appropriate Government in terms of the Section 19(1) of the

P.C.Act.

5. The complainant in the instant case i.e., in P.C.R No.58 of

2012 is of the bona-fide and informed apprehension that the

law as laid down in the B.V.Acharya judgment and next re-

affirmed and reiterated in the Chinchanasur judgment is

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grossly opposed and contrary to the well established law as

laid down by the Hon’ble Supreme Court of India in

countless judgments delivered by it since its very inception.

Further, the law as laid down by the Hon’ble High Court in

the B.V.Acharya judgment is such as to render the very

prior Order passed by this Hon’ble Court in this very case as

unlawful and without the authority of law. As such, the

instant complainant is directly interested in seeking a due

resolution of certain questions of law that have arisen by

reason of the operation of law as mandated in B.V.Acharya

judgment. Such resolution is necessary for the purpose of

ensuring that there is a lawful adjudication of the instant

complaint.

6. Therefore, the following questions of law arise for the

special consideration of this Hon’ble Court in the process of

adjudication of the instant complaint; further, the

complainant respectfully submits that the following

questions of law are also questions of great public

importance and that it is both necessary and desirable that

the following questions are referred to the Hon’ble High

Court of Karnataka by this Hon’ble Court by invoking the

power conferred to it under Section 395(2) of the Code. It is

further submitted that the following questions are merely

questions of law and are not questions of fact. Also, it is

respectfully submitted that the following questions are also

likely to arise, unless resolved, in dozens of other cases

before this Hon’ble Court. Therefore, a reference to the

Hon’ble High Court is also desirable in view of the

expectation of frequent recurrence of the following

questions of law in cases besides this complaint:

7. The B.V.Acharya Judgment:

The law as laid down in the B.V.Acharya judgment is to the

effect that where a Special Judge so designated for the trial

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of offences under the P.C.Act applies his mind to the

allegation or to the offence, he is said to have taken

‘cognizance’ of those very allegations or of the offences.

That, in view of the well-established law that by reason of

operation of Section 19(1) of the P.C.Act the taking of

cognizance without a valid sanction Order would be barred

under the law, the Special Judge is legally under a duty to

not apply his mind to the offence laid before him unless he

also has before him a valid sanction Order issued by the

appropriate Government in terms of Section 19(1) of the

P.C.Act. This declaration of law as laid down in the

B.V.Acharya judgment runs as under:

a) It is absolutely not in doubt that a Special Judge is

required to apply his mind whenever he makes a

reference under Section 156(3) of the Code to the

police for the purpose of directing an investigation by

it;

b) The word ‘cognizance’ has not been defined in the

Code at all. The general meaning is that, it means

‘attention by a Judge to the offence or allegation’. In

plain language, it simply means, ‘a Judge perusing or

taking note of any allegation or offence’;

c) Section 19(1) of the P.C.Act bars the taking of

cognizance without the previous sanction of the

appropriate Government in respect of certain offences

under that Act;

d) So, when a Special Judge applies his mind to the

allegation or offences, he is legally said to have taken

‘cognizance’ because the general meaning of the word

‘cognizance’ is ‘to take notice’;

e) So, the question is – on the date the Special Judge

applies his mind to the allegation or offence, was there

an order of sanction before the Special Judge?

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f) If there was no sanction on the date that the Special

Judge applied his mind to the allegation or offence,

then the Special Judge has proceeded to take

cognizance without a valid sanction order. He

therefore commits a gross illegality;

g) Without a valid sanction order, the Special Judge

cannot even ‘touch’ the case papers, he cannot ‘take

note’ and he cannot even ‘peruse the case papers’;

h) Therefore, whenever the Special Judge takes note of

any offence or allegation, he has obviously applied his

mind and therefore, he is legally said to have taken

cognizance right then; he therefore commits a gross

illegality if he did not have the sanction order also with

him while so applying his mind.

8. The actual judgment in B.V.Acharya may be noted:

The procedure involved in the B.V.Acharya judgment was

that the Special Judge for the trial of offences under the

P.C.Act had directed an investigation by the Lokayuktha

Police in terms of Section 156(3) of the Code into the

allegations leveled against certain accused by a private

person. The private person who had preferred such

application before the Special Judge had not with him, any

sanction order issued by the appropriate Government in

terms of Section 19(1) of the P.C.Act.

9. The law, in elaborate, as laid down in the B.V.Acharya

judgment is as under:

Principle of law (1) as laid down by the Hon’ble High Court: A Special Judge is bound to apply his mind for the purpose of directing investigation by the police in terms of Section 156(3) of the Code:

Argument of the accused: 22. As far as application of mind on the part of the Magistrate is concerned, it is argued that even where the court invokes the power

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under Section 156(3) of the Cr.P.C., application of mind is necessary and, therefore, merely because the court orders investigation under Section 156(3) of the Cr.P.C. before actually taking cognizance of the offence, it cannot be said that the order passed under Section 156(3) of the Cr.P.C. does not require any application of mind on the part of the judge concerned. In other words, it is argued that whether the stage is post-cognizance or pre-cognizance stage, application of mind is essential. In the instant case, the court below, without applying its mind and without there being a sanction order, has mechanically ordered investigation by the police under Section 156(3) of the Cr.P.C. and, therefore, the said action on the part of the court below is contrary to the law laid down by the Apex Court and hence, the impugned order is liable to be set aside on that sole ground alone.

Counter Argument: 26. Sri Ramesh Gupta, learned senior counsel appearing for R-1, repelling the aforesaid contentions put forward by the learned senior counsel for the petitioner, contended on his part that, when the Magistrate acts under Section 156(3) of the Cr.P.C. and refers the case for investigation to the police, it is the pre-cognizance stage and at this stage, application of mind by the Magistrate does not arise and, therefore, the court below committed no error in passing the impugned order....

Law laid down by the Hon’ble High Court: 34. It is the contention of the learned senior counsel for the petitioner that the court while exercising the power u/s 156(3) of the Cr.P.C has to apply its mind and the act of referring the matter for investigation under the said section is not an empty formality, whereas the counter submission made by the learned senior counsel Sri. Ramesh Gupta for the other side is that, no application of mind is required when the matter is referred by the Magistrate or the Special Judge, as the case may be, for investigation under section 156(3) of the Cr.P.C. The position in law therefore requires to be taken note of in this connection.

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35. The Apex Court in the case of Jamuna Singh Vs Bhadai Shah has held that, when on a petition of complaint being filed before him, the Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Cr.P.C. and he must be held to have taken cognizance of the offences mentioned in the complaint. When, however, he applies his mind, not for the purpose but for purposes of ordering investigation u/s 156(3) or issues a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. Thus, it is clear that application of mind is required even while exercising power u/s 156(3) of the Cr.P.C.

36. The very same principle was also laid down by the Apex Court in another decision in the case of Gopal Das Vs State of Assam (AIR 1961 S.C. 986).

37. This court in the case of P.R. Venugopal Vs S.M. Krishna, the Chief Minister of Karnataka and others (2003(6) K.L.J.507) has also taken the view that, to make a reference to police for investigation, the Magistrate has to apply his mind as to whether the allegations in the complaint are sufficient to make such order for investigation u/s 156(3) of the Cr.P.C.

38. The decision of this court in the case of Guruduth Prabhu & others Vs M.S.Krishna Bhat (1999 Crl.L.J. 3909) is also to the effect that, the order of the Magistrate directing investigation u/s 156(3) without applying his mind to allegations made in the complaint, will be without jurisdiction and the High Court either u/s 482 or under Article 226 of the Constitution is empowered to quash the investigation.

39. Thus, it is clear from the aforesaid principles laid down by the Apex Court and also by this court that, application of mind is necessary even when the Special Judge refers the case for investigation u/s 156(3) of Cr.P.C. The same principles were also reiterated by the Apex Court in yet another decision in the case of Maksud Saiyed Vs State of Gujarat ((2008)5 SCC 668). It was also held in the said case that, the Magistrate ordering police investigation u/s 156(3) of Cr.P.C. has to apply his mind and in the said case before it, the Apex Court found that there was

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non application of mind by the Magistrate while ordering police investigation u/s 156(3) of Cr.P.C.

40. Therefore, the contention of the learned senior counsel for the respondent that no application of mind is necessary while ordering investigation u/s 156(3) of Cr.P.C. has to be rejected.

10. Principle of law (2) as laid down by the Hon’ble High Court:

The application of mind by a Special Judge to the

offence or the allegations amounts to taking of

cognizance of those offences by the Special Judge:

Law declared by the Hon’ble High Court:

50. Dealing with the expression ‘cognizance’ in section 197 of the Cr.P.C. the Apex Court through a 3 Judge Bench in the case of State of Uttar Pradesh Vs. Paras Nath Singh ((2009)6 SCC 372) has considered the meaning of the term 'cognizance' and has held at para.6 thus:

The jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, ‘no court shall take cognizance of such offence except with the previous sanction’. Use of the words, ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and

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complete. The very cognizance is barred. That is the complaint cannot be taken notice of. According to Black's law Dictionary the word 'cognizance' means 'Jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty”.(emphasis supplied).

51. The Apex Court in the case of State of West Bengal Vs Mohd. Khalid & others ((1995)1 SCC 684) which judgment is referred to in the case of Subramanian Swamy Vs Manmohan Singh ((2012)3 SCC 64) has observed thus at para.38:

“It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.”

52. The Law Lexicon of Sri. P. Ramanatha Iyer (2nd Edition Reprint 2008) has the following meaning assigned to the term ‘cognizance’ at page.352:

“Cognizance - Judicial notice or knowledge; the judicial recognition or hearing of a cause; jurisdiction, or right to try and determine causes. It is a word of the largest import: embracing all power, authority and jurisdiction. The word "Cognizance" is used in the sense of "the right to take notice of and determine a cause". Taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the

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suspected commission of an offence. (37 Cal 412: 14 CWN 512: 6 IC 8: 11 Cr L.J.217)

To take cognizance implies a conscious volition on the part of the Magistrate. The fact that a Magistrate passes an order remanding the accused to custody pending investigation does not lead to the inference that he has taken cognizance, when he never considers at all whether he is or is not taking cognizance. (1936 AMLJ 85).

Cognizance takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Darshan Singh Vs State of Maharashtra, AIR 1971 SC 2372, 2374 (Sec.196-A)”.

53. Thus, it is clear from the aforesaid meaning assigned to the word 'cognizance' by the Apex Court, as well as the meaning in the Law Lexicon referred to above, that the word 'cognizance' has a wider connotation than the limited or the narrow view expressed by the learned senior counsel for the respondent. As the Apex Court has held in Paras Nath Singh's case, the word 'cognizance' therefore means in common term 'taking notice of’, it is therefore not confined only to the stage of taking cognizance of the offence.

11. Principle of law (3) as laid down by the Hon’ble High Court:

The act of a Special Judge taking notice of allegations

or offences amounts to taking of ‘cognizance’ and

therefore, the absence of a valid sanction at the

stage when such notice is taken would be a bar for

the Special Judge to proceed further. As the Special

Judge in the case before the Court had not before

him any sanction Order when he did direct such

police investigation in terms of Section 156(3) of the

Code, such direction to the police would amount to

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taking of ‘cognizance’ and was legally barred in the

absence of any sanction Order.

Argument of the accused: 20. The next contention put forward by the learned senior counsel Sri Ashok Harnahalli for the petitioner is that, without proper sanction order accompanying the complaint, the trial court could not have referred the matter to the police for investigation under Section 156(3) of the Cr.P.C. even if it is taken into consideration that the petitioner fits into the definition of 'public servant' as defined in the P.C.Act. Therefore, for want of sanction order, the complaint itself is not maintainable and the learned judge of the court below, therefore, has acted without jurisdiction. To fortify the aforesaid submission, reliance is placed on the Apex Court decision in the case of Subramanian Swamy Vs. Manmohan Singh, reported in (2012) 3 SCC 64, and particular reference was made to the argument canvassed by the Attorney General and the said contention being rejected by the Apex Court. Therefore, in the light of the observations of the Apex Court in the said case, the submission made is that, the court below could not have taken notice of the complaint itself without there being a sanction order to prosecute the petitioner.

22. ...In the instant case, the court below, without applying its mind and without there being a sanction order, has mechanically ordered investigation by the police under Section 156(3) of the Cr.P.C. and, therefore, the said action on the part of the court below is contrary to the law laid down by the Apex Court and hence, the impugned order is liable to be set aside on that sole ground alone.

Counter-argument: 26. ... Some distinction was sought to be drawn between taking action under Section 156(3) of the Cr.P.C. and proceeding under Section 200 of the Cr.P.C. after taking cognizance and then going by the provisions of Section 202 of the Cr.P.C. onwards. Therefore, it is argued that, at a pre-cognizance stage, the complainant is not required to produce any sanction order to prosecute the petitioner and the question of the sanction will arise only at the stage of taking cognizance of the offence. In this

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regard, the provisions contained in Section 19 of the P.C.Act, 1988 as well as Section 197 of the Cr.P.C. were referred to contend that the issue of sanction order will arise only at the stage of taking cognizance and not before that. Hence, the contentions urged by the learned senior counsel for the petitioner in this regard will have to be rejected.

27. Nextly it is argued by the learned senior counsel for R-1, by referring to the contents of the complaint, that the complaint does disclose the allegations relating to cognizable offences... Mere allegations in the complaint are sufficient for the court to proceed with the matter and it is, therefore, contended that after the receipt of the report from the police, the court may or may not proceed with the matter and, therefore, it is too premature to say that the complaint must be accompanied by the sanction order to prosecute the petitioner.

Conclusion of the Court:

47. The next contention put forward by the learned senior counsel Sri.T.N.Narasimhamurthy and also Sri.Ashok Harnahalli for the petitioner is that ... the order of the court below directing investigation u/s 156(3) of the Cr.P.C will be without jurisdiction for want of sanction. This takes us to the relevant provision of the P.C.Act u/s 19(1). The said provision of law is as under:

19 (1). No court shall take cognizance of an offence punishable under Sections 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;

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(c) in the case of any other person, of the authority competent to remove him from his office.

48. Much emphasis was laid by the learned senior counsel Sri.Ramesh Gupta for R-1 that the expression ‘cognizance’ appearing in Section 19(1) will have to be construed as the post-cognizance stage and not pre-cognizance stage and therefore the requirement of sanction does not arise prior to taking cognizance of the offences punishable under Sections 7, 10, 11, 13 and 15 of the P.C.Act.

55. The next contention put forward by the learned senior counsel Sri.R.N.Narasimhamurthy and Sri.Ashok Harnahalli for the petitioner is that, even though the power to order investigation u/s 156(3) can be exercised by the Magistrate or Special Judge at a pre-cognizance stage, yet the requirement of the sanction order being obtained by the complainant cannot be dispensed with. In other words, it is argued that the requirement of sanction is a prerequisite even for presenting a private complaint u/s 200 of the Cr.P.C. in respect of a public servant concerning the alleged offence said to have been committed during the discharge of public duty. Therefore, it is argued that the private complaint without being accompanied by the sanction order itself is not maintainable and the Special Judge cannot even take notice of the private complaint. Reliance is placed in this regard by the learned senior counsel for the petitioner particularly on the Apex Court decision in Subramanian Swamy's case referred to earlier.

56. In the case of Subramanian Swamy Vs Manmohan Singh ((2012)3 SCC 64) the Apex Court considered the contention raised before it as to the stage at which the question as regards sanction order arises. It was contended before the Apex Court by the Attorney General that the question of sanction order arises only at the time of taking cognizance and not before that. The said contention was rejected by the Apex Court and it was held thus at para.34 and para.64.

“34. The argument of the learned Attorney General that the question of granting sanction for prosecution of a public servant charged with

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an offence under the 1988 Act arises only at the stage of taking cognizance and not before that is neither supported by the plain language of the section nor the judicial precedents relied upon by him. Though, the term 'cognizance' has not been defined either in the 1988 Act or the Cr.P.C., the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is "taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially”.

64. I also entirely agree with the conclusion of learned brother Singhvi, J., that the argument of the learned Attorney General that question for granting sanction for prosecution of a public servant charged with offences under the 1988 Act arises only at the stage of cognizance is also not acceptable. In formulating this submission, the learned Attorney General substantially advanced two contentions. The first contention _is that an order granting sanction is not required to be filed along with a complaint in connection with a prosecution under Section 19 of the P.C. Act. The aforesaid submission is contrary to the settled law laid down by this Court in various judgments. (emphasis supplied)

64.1. Recently a unanimous three-judge Bench decision of this Court in the case of State of Uttar Pradesh vs. Paras Nath Singh, [(2009) 6 SCC 372], speaking through Justice Pasayat and construing the requirement of sanction, held that without sanction:

6..... '10.......The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or the exercise of jurisdiction' or power to try and determine causes'. In common parlance, it means taking notice

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of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.

64.2. The other contention of the learned Attorney General is that in taking cognizance under the P.C. Act the Court is guided by the provisions under Section 190 of the Code and in support of that contention the learned Attorney General relied on several judgments”.

57. It is therefore clear that the Apex Court negatived the contention that the order of granting sanction is not required to be filed along with the complaint in connection with the prosecution and u/s 19 of the P.C.Act. Similar contention that is now put forward by Sri Ramesh Gupta also has to be met with the same answer.

58. The object behind the requirement of sanction order was also considered by the Apex Court in the very same decision under consideration, at para.72 and para.73. The observations made are as under:

“72. The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official. This right of access, a Constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the rule of law.

73. It was pointed out by the Constitution Bench of this Court in Sheonandan Paswan vs. State of Bihar and Others, (1987) 1 SCC 288 at page 315:

“14.......It is now settled law that a criminal proceeding is not a proceeding for

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vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay Vs. R.S. Nayak this Court pointed out that (SCC p. 509, para 6)

“6.....Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi…”

59. At para.74 of the decision, the Apex Court has held that the protection given u/s 19 to a public servant are not available to other citizens and public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the court also added that the protection given cannot become a shield to protect corrupt officials. After thus holding as regards the requirement of sanction in respect of a private complaint at para.81 of the judgment certain guidelines were also laid down for the Parliament to consider. One such guideline is at 81(c) which reads as under:

“81(c) At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge sheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit”.

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60. Thus, it is clear from the aforesaid decision of the Apex Court that the requirement of sanction order cannot be dispensed with even in respect of a private complaint filed by a citizen against a public servant alleging offences under the P.C. Act said to have been committed while discharging public duty as a public servant.

61. Can a private complaint without the sanction order being accompanied be entertained by the court while invoking power u/s 156(3) of the Cr.P.C is the question that requires to be considered at this juncture.

62. Learned senior counsel Sri. Ashok Harnahalli for the petitioner referring to the scheme of the Code of the Criminal Procedure argued that, if a private complaint as in the instant case, is not accompanied by a sanction order, the Special Judge under the P.C.Act will have no other option but to refer the complaint to the police for investigation u/s 156(3) of the Cr.P.C. Thus, the discretion vested with the Magistrate/Special Judge is taken away and the Magistrate has to refer the private complaint invariably to the police for investigation. Such a situation is not contemplated by the scheme of the Cr.P.C. The aforesaid submission also carries sufficient force behind it. It has to be mentioned at this juncture that the effect of directing the police to investigate u/s 156(3) of the Cr.P.C. by the Magistrate was also considered by the Andhra Pradesh High Court in the case of Dr. G. Lakshminarayana Vs Inspector of Police (1988(1) Crimes 880) and it was observed thus in the said case.

“If the Magistrates start referring the matters to the police u/s 156(3) of the Cr.P.C. without applying their minds, whether or not sanction u/s 197(1) C.P.C. is necessary, the consequences are likely to be bizarre, in that public servants would become target of unnecessary police investigation, even before cases against them are taken cognizance of by criminal courts, a situation clearly forbidden by section 197 Cr.P.C.”

The court went on to observe that:

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“The course of action followed by the Magistrate undoubtedly destroys the protective umbrella of section 197(1) which ensures independence to public officials from functional point of view in respect of their official acts by shielding them from being dragged to courts”.

63. The aforesaid view read in the light of the Apex Court's observations in Subramanian Swamy's case and Paras Nath Singh's case will therefore make it clear that the Magistrate/Special Judge as the case may be, cannot even take notice of the private complaint unless the said complaint is accompanied by the sanction order no matter whether the Special Judge acts at post-cognizance stage or pre-cognizance stage. The very observation of the Apex Court that the expression 'cognizance' in common terms it means 'taking notice of' and a court therefore is precluded from entertaining a complaint and take notice of it, or exercising jurisdiction, if it is in respect of a public servant alleged to have committed during discharge of official duty, therefore in effect implies that the door of the court will remain shut unless the private complaint is also accompanied by the sanction order from the competent authority.

64. The Apex Court in the case of Birendra K. Singh Vs State of Bihar (2008(1) SCC 498) has held while dealing with the Section 197 of the Cr.P.C. without a sanction order, the complaint cannot be entertained. While dealing with the provision contained u/s 197 of Cr.P.C., this court in the case of Sharanappa Vs Govindareddy (1977 Crl J.304) has held that sanction to prosecute a public servant is a condition precedent.

65. Apart from the decisions already referred to, viz., Subramanian Swamy's case and Paras Nath Singh's case, in the case of General Officer Commanding Vs C.B.I. in Crl.A.No.257/11, the Apex Court, after considering the relevant provisions relating to necessity of sanction as contained in Section 197 of Cr.P.C., section 19 of the P.C.Act and section 7 of the Armed Forces (Special Powers) Act, has summed up at para.55 the law thus:

“Thus, in view of the above, the law on the issue of sanction can be summarised to the effect that

19

the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him........If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio for want of sanction”.

66. In the light of the aforesaid principles laid down by the Apex Court, in the instant case, as the private complaint was not accompanied by the sanction order from the competent authority, the order of the learned Special Judge will have to be held as without jurisdiction.

12. Order passed by the Hon’ble High Court:

81. The aforesaid analysis of the material placed in the light of the law bearing on the point, leads me to the conclusion that the impugned order of the learned Spl.Judge directing investigation under Section 156(3) of Cr.P.C. is void and without jurisdiction and as such, investigation has to be quashed by exercising the inherent powers of this Court under Section 482 of Cr.P.C. At the same time, in the light of the nature of the allegations made in the complaint, and the complainant not even getting the sanction order from the competent authority to prosecute the petitioner who is a public servant, the complaint also deserves to be dismissed by imposing cost …

82. ... in view of my conclusion that the complaint itself could not have been entertained at the first instance by the learned Spl.Judge and the order directing investigation under Section 156(3) of Cr.P.C. therefore is without jurisdiction and the learned Spl.Judge could not have even taken notice of the complaint for want of sanction order, the errors pointed out therefore though taken note of, it does not require any specific mention that notwithstanding the

20

said defects pointed out, the complaint itself is liable to be quashed.

83. Hence, I pass the following order:-

(ii) The order passed by the learned Special Judge directing the investigation under Section 156(3) of Cr.P.C. as well as the complaint stand quashed.

13. In the subsequent case of Baburao Chinchanasur v. State by

Lokayuktha Police [Criminal Petition No.3 of 2013 decided

on 13-Feb-2013], the Hon’ble High Court of Karnataka was

pleased to reaffirm and reiterate the law as laid down in the

B.V.Acharya judgment. It was held in the said judgment

that:

31. Following the above ruling of the Apex Court, this court in the case of B.V.Acharya Vs. N.Venkateshaiah (W.P.No.14047/2012 Disposed off on 03.08.2012), has considered the question as to whether a sanction for prosecution as contemplated by Section 19(1) is condition precedent for entertaining the private complaint alleging offence under the P.C.Act and has held thus in Paragraph-60:

“60. Thus, it is clear from the aforesaid decision of the Apex Court that the requirement of sanction order cannot be dispensed with even in respect of a private complaint filed by a citizen against a public servant alleging offences under the P.C. Act said to have been committed while discharging public duty as a public servant.”

Thereafter, his Lordship has considered the question, ‘Can a private compliant without the sanction order being accompanied be entertained by the Court while invoking power under Section 156(3) of Cr.P.C.’. After referring to the contentions of the learned counsels on this point and also referring to the decisions of the Apex Court, it has been held in Paragraph-66 that since the private complaint was not accompanied by the sanction order from the competent authority, the order of the learned Special Judge will have to be held as without jurisdiction.

21

35. When a specific averment has been made with regard to the issue of sanction in the complaint itself and in the light of the decision of this Court in B.V.Acharya’s case {supra}, it was obligatory on the part of the learned Special Judge to have considered this aspect even at the stage of entertaining the complaint and referring the same to the police for investigation.

36. The decision in B.V.Acharya’s case is binding on the learned Special Judge. In the light of the same, the learned Special Judge ought to have considered this question. Non-consideration of this question has vitiated the order of reference to the police for investigation. This shows non-application of mind by the learned Special Judge and this has rendered the order impugned in this petition illegal, therefore, it cannot be sustained. In this view of the matter, the order impugned in this petition is required to be set aside and the learned Special Judge is required to be directed to consider the matter afresh in the light of the law laid-down in various decisions and the observations made during the course of this order.

14. By reason of the law as laid down in the aforesaid case of

B.V.Acharya and reaffirmed in the case of Chinchanasur, the

following questions of law are bound to arise in the

adjudication of the instant complaint and are also bound to

repeatedly arise in the course of adjudication of numerous

other cases before this Hon’ble Court:

a. Question No.1:

The Hon’ble Supreme Court has most decisively laid down

in numerous cases and more particularly, in the cases of

R.R. Chari v. State of U.P: (1951) SCR 312; Devarapalli

Lakshminarayana Reddy. vs. V. Narayana Reddy., AIR 1976

SC 1672; Mona Panwar v. High Court of Judicature of

Allahabad [(2011) 3 SCC 496] and Dilwar Singh v. State of

Delhi [2007 (12) SCC 641], that when a Magistrate/Special

Judge applies his mind to the offences before him for the

22

purpose of directing a police investigation in terms of

Section 156(3) of the Code, he is said to have not taken

cognizance of any offence. However, the B.V.Acharya

judgment lays down that the mere application of mind by a

special Judge would amount to the taking of cognizance by

that Judge of the offences before him. As such, this

apparent contradiction between the law as decisively laid

down by the Hon’ble Supreme Court and that laid down in

the B.V.Acharya judgment by referencing the judgments of

the Hon’ble Supreme Court deserves to be settled by the

Hon’ble High Court of Karnataka on a reference under

Section 395(2) of the Code.

b. Question No.2:

The discharge of every public function carries with it, the

due application of mind by a public officer in a manner

commensurate with the statutory or administrative duty

imposed on such public officer. A Special Judge who is so

designated for the purpose of trial of offences under the

P.C.Act is required to always apply his mind to the various

statutory tasks that are placed for his consideration. The

judicial meaning of the word ‘cognizance’ as given in the

B.V.Acharya judgment is such that a bare notice of the very

offences by a Special Judge would amount to the judge

taking cognizance of those very offences. In this view of the

law as propounded in the B.V.Acharya judgment, almost

every task that a Special Judge has been statutorily vested

with a duty to judicially perform could be characterized as

the occasion for taking of ‘cognizance’ of offences by that

Special Judge. The very scheme of the Code and of the

P.C.Act is such that between the institution and termination

of a given criminal proceeding in respect of a given offence,

the Court may be said to have taken judicial ‘cognizance’

only once and that too at a known and defined stage in the

23

course of such criminal proceeding. As such, the judicial

meaning of the term ‘cognizance’ as propounded in

B.V.Acharya judgment would practically cover most of the

pre-trial statutory tasks that are entrusted to a Special

Judge. As such, the ratio in the B.V.Acharya judgment that

when a Special Judge takes notice of the offences and

applies his mind thereto, he is said to have taken the

cognizance of those very offences would make the very

P.C.Act and the Code unworkable by barring the doing of

most of such pre-trial tasks. Therefore, there is an imminent

need for the Hon’ble High Court of Karnataka to clarify with

regard to such unworkability arising from a faithful

application and adherence to the ratio laid down in the

B.V.Acharya judgment.

c. Question No.3:

Whether a Special Judge would be taking any ‘cognizance’

at all if only he were to merely apply his mind to the

allegation or to the offence when called to adjudicate upon

a remand application or a bail application? That is, at the

stage of arrest of an accused by the police at a stage after

the initiation of investigation and prior to the completion of

such investigation? If only it be held that a Special Judge

would be taking cognizance even at such a stage, the

Special Judge would then be legally barred from acting at all

by reason of Section 19(1) of the P.C.Act. Consequently, the

Special Judge would be put to the impossible position of

having to inform both the police as well as the arrested

accused that the Judge would not be in a position to even

touch any of the case papers because doing so would

amount to taking of cognizance. And that the stage therein

being such that no sanction could even be expected to be

granted by the appropriate Government in view of the fact

that the appropriate Government would not be in any

24

position to decide upon any sanction application at all

without the investigation itself reaching completion and the

material thereunder not even presented for the

consideration of the sanctioning authority. As such, a

faithful application and adherence to the B.V.Acharya

judgment would simply make it impossible for any Special

Judge to either order remand or to enlarge an arrested

accused on bail at a stage in the course of investigation as

either of the two actions would require the Special Judge to

apply his mind to the allegation or to the offence and by

doing so, he would indeed be taking notice of the allegation

or the offence and such notice would easily attract the

meaning assigned in the B.V.Acharya Judgment to the word

‘cognizance’. As such, this difficulty or rather, the arising of

a situation which would render both the P.C.Act, as well as

the Code unworkable is to be preferably resolved by the

Hon’ble High Court of Karnataka. To repeat, the question

that therefore arises for the kind consideration of Hon’ble

High Court is whether a Special Judge would be taking

cognizance should he merely apply his mind to the

allegation or to the offence or whether a Special Judge

would be taking ‘cognizance’ only when, as repeatedly

pointed out by the Supreme Court, he applies his mind to

the offences or the allegation to proceed in the direction

contemplated in Chapter - XV of the Code? Because a

Special Judge is duty bound to apply his mind to the

offences or the allegation at every turn of procedure that is

mandated under the Code, it has become necessary for the

Hon’ble High Court to clarify on whether a bare application

of mind by the Special Judge would amount to taking of

cognizance?

d. Question No.4:

25

Whether the Special Judge would be justified in insisting on

production of a sanction Order in the case of an application

made under Section 156(3) of the Code even with the law of

sanction being such that the sanctioning authority would

not even be in a position to accord or to refuse sanction

unless and until it is presented with cogent material or

evidence collected in the course of investigation? That a

Special Judge constituted for the trial of offences under the

P.C.Act, is also a public officer who is himself vested with a

legal duty to always act with due application of mind, he

cannot therefore legally insist for sanction in a case where

an applicant is merely seeking a police investigation into

the offences that he has alleged against certain public

servants. In a scenario where an applicant who has brought

before a Special Judge, definite allegations against certain

public servants and seeks an impartial police investigation

into the same, no Special Judge who would also be expected

to be aware of the administrative law concerning sanction

could possibly tell that applicant to first obtain sanction for

the purpose of satisfying that Judge, that a police

investigation is even warranted. As such, the legality of

such a course of action by a Special Judge is a matter that

squarely arises for the consideration of the Hon’ble High

Court by reason of the Judgment in B.V.Acharya case.

Therefore, it is most desirable that the Hon’ble High Court

of Karnataka resolve the question of whether it is legal at all

for a Special Judge to direct an applicant who merely seeks

police investigation against certain public servants under

Section 156(3) of the Code to first obtain sanction even

before any police investigation has been initiated into the

matter so that the Court could proceed only thereafter?

e. Question No.5:

26

Whether a Special Judge would be disregarding the

judgment of the Hon’ble Supreme Court in the case of

Lalitha Kumari v Government of Uttar Pradesh [(2008) 7

SCC 164] which has strictly mandated that a Magistrate

should not shirk from directing investigation by exercising

power under Section 156(3) of the Code in all deserving

cases? That is, the Hon’ble Supreme Court has held in this

decision that owing to the practice of the police to

wrongfully refuse to register FIRs against persons with

position of power, the Magistrates or the Special Judges

before whom applications are made under Section 156(3) of

the Code should not merely direct prompt investigation

thereof into the offences alleged but should also take

appropriate steps to penalize the erring police officers in

accordance with the law and in extreme circumstances to

even direct imprisonment if it were found that there was

deliberate and intentional refusal on the part of the erring

police officers to register a FIR. The new imposition of a

sanction requirement to even entertain an application under

Section 156(3) of the Code by reason of the B.V.Acharya

judgment would squarely lead to a situation where the

Special Judge concerned would be definitely disregarding

the judgment of the Hon’ble Supreme Court in the case of

Lalitha Kumari v Government of Uttar Pradesh [(2008) 7

SCC 164] if only he would insist on a valid sanction order

before passing an Order under Section 156(3) of the Code.

f. Question No.6:

Should a Special Judge be considered to have breached any

statutory provision of law where, in the light of actual

experience gathered by him, he elects to peruse a private

complaint for the purpose of assessing whether the same

warrants a police investigation although the complainant

himself would want the Court to simply proceed to taking of

27

cognizance and to proceed under Chapter - XV of the Code

on the premise that the complainant himself has amassed

and presented adequate material to justify the taking of

cognizance without any prior need for a police

investigation?

15. The instant complainant most respectfully that that this

Hon’ble Court be pleased to refer the aforesaid 6 questions

of law of grave importance that directly arise in this very

complaint as well as in the dozens of other complaints that

are generally filed before this Hon’ble Court for the kind

consideration and resolution by the Hon’ble High Court of

Karnataka.

Argument of the complainant in support of seeking a

reference in respect of the aforesaid questions of law to the

Hon’ble High Court of Karnataka:

16. Preliminary submission:

Section 19(1) of the P.C.Act, does mandate previous

sanction of the appropriate Government should a Special

Judge choose to take cognizance of certain offences under

that Act. However, the law on sanction has been too well

known for more than 150 years beginning with the

Government deliberations in 1861 for the purpose of

codifying the criminal procedure. In these many years, it

has been held, reaffirmed, repeated and reminded that

when a Magistrate or a Special Judge would apply his mind

to the content of a complaint or the allegations or

accusations for the purpose of directing an investigation by

the police in terms of Section 156(3) of the Code, the

Magistrate or the Special Judge would have absolutely not

taken ‘cognizance’ of any offence. Barring the judgment in

B.V.Acharya, all of our High Courts, the Federal Court, the

28

Privy Council and our Supreme Court have repeatedly

stated the aforesaid proposition.

Proposition No.1:

a. Immediate legal impact from the B.V.Acharya

judgment: All persons arrested by the Lokayuktha

Police, in cases where the police investigation was not

completed and charge sheets were not yet filed,

cannot be taken to a Special Judge at all for the

purpose of seeking any order of remand. The Special

Judge cannot even open the FIR copy or see the arrest

memo, remand application made or even open the bail

application by the accused in such cases for the

purpose of taking note of the offences or the

allegation. The moment the Special Judge would open

the case papers and apply his mind to the offence or

to the allegation therein, he has, according to the law

laid down in the B.V.Acharya judgment, absolutely

taken very cognizance of the offences although he had

no such authority. Of course, while investigation is still

in progress, no appropriate Government could even

grant any sanction as sanction is given only for

prosecution and the concept of sanction for

investigation is not even known to the law in India. No

Special Judge could therefore, order any remand or

grant bail in any such case. Moreover, the grant of bail

by any judge is always a judicial act and is done only

after application of not just ordinary mind but by

application of judicial mind. Added to it, whenever the

Special Judge takes cognizance without the requisite

sanction, he acts wholly without jurisdiction.

b. Therefore, after 03-Aug-2012 the date of decision in

B.V.Acharya judgment, all cases in which the

Lokayuktha Police did arrest any person should never

29

have been produced before the Special Judges for the

purpose of remand and no such accused should have

been permitted to file any bail application to the

Special Judge.

c. Also, the statutory prerogative of the police to arrest

an accused or to take such other investigative steps

as are permitted to them under the Code of Criminal

Procedure, 1973 are absolutely unaffected by the

B.V.Acharya judgment.

Proposition No.2:

a. Statutory scheme under the Code of Criminal

Procedure, 1973: The complainant respectfully

submits that the responsibility for taking note of a

cognizable offence is clearly upon the police as and

when information thereof is made available to it. This

much is evident on a plain reading of Section 154 and

156 of the Code. As such, in situations where the

police deliberately refuse to register the First

Information Report as mandated by Section 154(1) of

the Code and such omission is duly brought to the

notice of the Magistrate/Special Judge, the

Magistrate/Special Judge would be under a legal duty

to direct the police to register the First Information

Report and to thereby commence investigation into

the same should the Magistrate, Special Judge also

record a satisfaction that the allegation prima-facie

discloses the commission of a cognizable offence.

Proposition No.3:

a. Magistrates have a mandatory duty to invoke

power under Section 156(3) of the Code in the

event that a cognizable offence is prima facie

disclosed: The decision of the Hon’ble Supreme Court

30

in the case of Lalitha Kumari v Government of Uttar

Pradesh [(2008) 7 SCC 164] is to the effect that the

Apex Court had noted with grave concern, the

deliberate refusal of the police to register First

Information Report in cases against accused in

positions of power. Accordingly, the Supreme Court

had emphatically held that in all such cases, where

Section 156(3) applications were made to the

Magistrates, the Magistrates concerned were to direct

the police to register a First Information Report (‘FIR’

for short) and to make over copy of the FIR to the

complainant within 24 hours from the receipt of the

Order by the Magistrate to that effect. In this regard,

explicit directions were also issued by the Supreme

Court to all the State Governments and Union

Territories and also to the Director Generals of

Police/Commissioners of Police (Union Territories)

stipulating a clear duty upon all Magistrates to

promptly intervene in all deserving cases where the

police refuse to register a FIR. Further, the Hon’ble

Supreme Court was also constrained to note that

despite explicit and specific directions by it to the

various State Governments and its authorities, the

problem continued to remain as it was. Therefore, the

Supreme Court had also directed that its Order to be

put on the Supreme Court website itself and

delinquent police officers were directed to be suitably

punished by the Magistrates if it was found that their

inaction to register a FIR was intentional and

deliberate.

b. The law as laid down by the Hon'ble Supreme Court in

the case of Lalitha Kumari v. Government of Uttar

Pradesh and Ors. (2008) 7 SCC 164 is as under:

31

4. It is a matter of experience of one of us (B.N. Agrawal, J.) while acting as Judge of the Patna High Court, Chief Justice of the Orissa High Court and Judge of this Court that inspite of law laid down by this Court, the police authorities concerned do not register FIRs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. Further, experience shows that even after orders are passed by the courts concerned for registration of the case, the police does not take the necessary steps and when matters are brought to the notice of the inspecting Judges of the High Court during the course of inspection of the courts and Superintendents of Police are taken to task, then only FIRs are registered. In a large number of cases investigations do not commence even after registration of FIRs …

… At times it has been found that when harsh orders are passed by the members of the judiciary in a State, the police becomes hostile to them, for instance, in Bihar when a bail petition filed by a police personnel, who was the accused was rejected by a member of the Bihar Superior Judicial Service, he was assaulted in the courtroom for which contempt proceeding was initiated by the Patna High Court and the erring police officials were convicted and sentenced to suffer imprisonment.

5. On the other hand, there are innumerable cases that where the complainant is a practical person, FIRs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed, immediate steps are taken for apprehending the accused and recovery of the kidnapped persons and the properties which were the subject-matter of theft or dacoity. In the case before us allegations have been made that the Station House Officer of the police station concerned is pressurising the complainant to withdraw the complaint, which, if true, is a very disturbing state of affairs. We do

32

not know, there may be innumerable such instances.

c. After making the above mentioned observation, the

Hon'ble Supreme Court had issued certain directions

as under:

6. In view of the above, we feel that it is high time to give directions to the Governments of all the States and Union Territories besides their Director Generals of Police/ Commissioners of Police as the case may be to the effect that if steps are not taken for registration of FIRs immediately and copies thereof are not made over to the complainants, they may move the Magistrates concerned by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the FIRs to the complainants, within twenty-four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped / abducted persons and properties which were the subject-matter of theft or dacoity. In case FIRs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the Magistrate concerned would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the disciplinary authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same.

d. When the aforesaid case was called for hearing on 08-

Aug-2008, the Hon'ble Apex Court passed the

following order, which reads as under:

Registry is directed to communicate this order by fax as well to the Chief Secretaries of all the

33

States and Union Territories and all the Director Generals of Police/Commissioners of police, as the case may be, let order dated 14th July, 2008, and this order be put on the website of the Supreme Court of India so that the people of India may know what directions have been given by this Court and they may take appropriate steps in case of any inaction on the part of the concerned officer of the police station in instituting a case and the Chief Judicial Magistrate/Chief Metropolitan Magistrate, as the case may be, shall take action in a case of inaction upon Sling of complaint petition and give direction to institute the case within the time directed in the said order failing which the Chief Judicial Magistrate/Chief Metropolitan Magistrate, as the case may be, shall not only initiate action against the delinquent police officer but punish them suitably by sending them to jail, in case the cause shown is found to be unsatisfactory. Apart from this, the Chief Judicial Magistrate/ Chief Metropolitan Magistrate, as the case may be, shall report the matter to the disciplinary authority at once by fax as well upon receipt of which the disciplinary authority shall suspend the concerned police officer immediately in contemplation of departmental proceeding.

Proposition No.4:

a. The difference between the power of a Magistrate as

derived under Chapter - XII versus power derived

under Chapter - XV of the Code cannot be lost sight

of by any Magistrate/Special Judge: The Supreme

Court’s decision in the case of Devarapalli Laxminarayana

Reddy and Ors v V. Narayana Reddy and Ors [(1976) 3 SCC

252] explains the difference in the powers conferred upon a

Magistrate as enumerated in Chapter - XII versus that

conferred under Chapter - XV of the Code:

9. Section 156 of the Code of 1973 reads thus:

34

Section 156 (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.

10. This provision is substantially the same as Section 156 of the Code of 1898, excepting that in Sub-section (1), for the words "Chapter XV relating to the place of inquiry or trial," the words "Chapter XIII" have been substituted.

13. It is well settled 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. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with “must take cognizance". The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds 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.

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

35

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…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…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…”

Proposition No.5:

a. A Special Judge would not be losing his discretion in

any manner should he elect to peruse a private

complaint for the purpose of directing an

investigation by the police under Section 156(3) of

the Code although the complainant himself had

sought the taking of ‘cognizance’ by the Judge upon

such complaint: This proposition is best illustrated as

under:

36

Illustration 1: Suppose a person approaches the Special

Judge with an application under Section of 156(3) of the

Code. It is the contention of that applicant that he has

procured certain materials on the basis of which certain

offences of the P.C.Act appear to have been prima facie

committed by ‘X’ who was and continues to be a public

servant on the date of the filing of the application. The

prayer of the applicant is plain and simple – that the Special

Judge considers directing an investigation by the police into

the allegation. In such an event, it would be rather far-

fetched to expect that the Special Judge would consider that

the material placed by the applicant is already complete

and that it would not warrant any further investigation and

that the same is complete enough for the Special Judge to

proceed further and to take cognizance of the very offences

alleged in that application. However, in the less likely event

of the Special Judge preferring to instead proceed to take

cognizance, he must then inform the complainant that:

(i) as Section 19(1) of the P.C.Act mandates previous

sanction by the appropriate Government as a

condition for taking cognizance, the Special Judge is of

the view that no police investigation is warranted on

the facts of the case and that the material already

placed on record would be sufficient for the Court to

take cognizance of the offences alleged therein and to

summon the accused;

(ii) however, the Special Judge would not be able to

proceed further in view of the sanction requirement

and that the applicant should make the effort to obtain

sanction and to return to the Court on the obtaining of

such sanction.

Proposition No.6:

37

a. A Special Judge cannot at all be said to have given up

any judicial discretion when in fact, he elects to take

a course of action that, on the facts and in his sound

discretion, best serves the ends of justice: In a

situation such as the above, no discretion on the part of the

Special Judge would have been lost in any manner at all.

The applicant must have honestly felt that the materials in

his possession were not enough by itself to warrant the

taking of cognizance by the Special Judge. However, the

applicant can only be expected to take such steps as his

own belief in the strength of the material he already has in

his possession would justify to him. Nevertheless, the fact

that the applicant himself would not consider the material in

his own possession as sufficient enough for the Court to

readily take cognizance thereof cannot legally also bind the

Special Judge.

b. As such, if the Special Judge were to place more faith in the

strength of the materials that has been placed before him

than whatever strength the applicant himself had thought

was there in the material already in his possession, there

would really be no need to characterize such a situation as

a Special Judge giving up any discretion that he otherwise

enjoys under the law. If the Special Judge were to

consciously override the request of the applicant for a police

investigation and chooses to proceed further but for

sanction, the Special Judge would be said to have wisely

exercised the discretion that is available to him under the

law and there is no warrant for claiming that such a course

of action would take away the valuable discretion vested in

the Special Judge.

Proposition No.7:

a. Such judicial discretion even extends, in deserving

cases that have already amassed adequate material,

38

to the taking by a Magistrate of ‘cognizance’ of

serious offences by holding that the same would not

warrant a police investigation when in fact, the

complainant is before that very Magistrate seeking a

police investigation: As such, when considered against

the above illustration, any claim that the absence of

sanction would eat into the discretion enjoyed by the

Special Judge would be very unjustified. Moreover, the

decision of the Hon’ble Supreme Court in the case of Mona

Panwar v. High Court of Judicature of Allahabad [(2011) 3

SCC 496], is to be noted in this connection. This case

involved a situation where the exercise of such discretion

has been decisively upheld and approved by the Hon’ble

Supreme Court in the face of disparaging remarks made by

a judge of the Allahabad High Court against a Magistrate

who chose to exercise the discretion of taking ‘cognizance’

of an allegation of rape although the applicant-victim

herself had merely sought a police investigation in terms of

Section 156(3) of the Code.

b. In the aforesaid case, a Magistrate was aggrieved with

certain disparaging remarks passed by a Single Judge of the

Allahabad High Court who had taken strong exception to the

taking of cognizance by that Magistrate under the following

circumstances:

c. First the jurisdictional police and thereafter, the

Superintendent of Police for the district concerned had

failed to act on a complaint by a daughter-in-law to the

effect that she had been raped by her father-in-law at a

certain time in the night of a certain date. In effect, there

was a breach of Section 154(1) and 154(3) of the Code.

Therefore, the daughter-in-law had preferred an application

under Section 156(3) of the Code to the jurisdictional

Magistrate. One Mona Panwar, the Magistrate concerned,

39

took position view that she would not refer the matter to the

police but would treat it as a complaint case under Chapter

- XV and had directed that the matter be listed on a certain

day for recording the sworn statement of the victim-

complainant. Aggrieved with this Order, the daughter-in-law

had preferred a petition to the Allahabad High Court under

Section 482 of the Code and therein, a learned Single Judge

had taken strong exception to the act of the Magistrate in

not referring the matter to the police for investigation under

Section 156(3) and instead, to have improperly come to a

conclusion that the offence of rape could be properly

addressed by resort to Chapter - XV of the Code. Displeased

with certain remarks passed by the learned Single Judge of

the High Court, the Magistrate concerned had approached

the Hon’ble Supreme Court which proceeded to find no fault

with that Magistrate had done. In the process, the Hon’ble

Supreme Court reiterated the law on the judicial discretion

vested in a Magistrate in such circumstances as under:

“16. Section 156(1) of the Code authorizes the police to investigate into a cognizable offence without requiring any sanction from a judicial authority. However, sub-section (3) of Section 156 of the Code provides that any Magistrate empowered under Section 190 of the Code may order such an investigation as mentioned in sub-section (1) of the said Section. Section 190 of the Code deals with cognizance of offences by Magistrates and inter alia provides that any Magistrate of the first class may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Neither Section 154 nor Section 156 of the Code contemplates any application to be made to the police under Section 156(3) of the Code. What is provided in Section 156(1) of the Code is that:

40

“156. Police Officer’s power to investigate cognizable case: - (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”.

17. However, this Court finds that in the present case it was alleged by the respondent No. 3 that she had filed complaint before police but according to her, the police officer in charge of the police station had refused to register her complaint and, therefore, she had made application to the Senior Superintendent of Police as required by Section 154(3) of the Code, but of no avail. Therefore, the respondent No. 3 had approached the appellant, who was then discharging duties as Judicial Magistrate II, Court No. 14, Saharanpur.

18. When the complaint was presented before the appellant, the appellant had mainly two options available to her. One was to pass an order as contemplated by Section 156(3) of the Code and second one was to direct examination of the complainant upon oath and the witnesses present, if any, as mentioned in Section 200 and proceed further with the matter as provided by Section 202 of the Code. An order made under sub-section (3) of Section 156 of the Code is in the nature of a peremptory reminder or intimation to the police to exercise its plenary power 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 the final report either under Section 169 or submission of charge sheet under Section 173 of the Code. A Magistrate can under Section 190 of the Code before taking cognizance ask for investigation by the police under Section 156(3) of the Code. The Magistrate can also issue warrant for production, before taking cognizance. If after cognizance has been taken and the Magistrate wants any investigation, it will be under Section 202 of the Code.

41

19. The phrase “taking cognizance of” means cognizance of offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Before the Magistrate can be said to have taken cognizance of an offence under Section 190(1)(b) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under Section 200 and the provisions following that Section. However, when the Magistrate had applied his mind only for ordering an investigation under Section 156(3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence.”

[emphasis supplied by this complainant]

d. In fact, nothing that has been said in the aforesaid

paragraphs is a novel statement of the relevant law. The

same principle had been cited in hundreds of judgments of

the Hon’ble Supreme Court over the past few decades. By

simply relying on the highlighted part in the aforesaid

paragraph, the complainant herein hopes to show that

whenever there is application of mind by a Special Judge for

the purpose of merely directing an investigation by the

police under Section 156(3) of the Code, he cannot be said

to have taken ‘cognizance’ of any offence.

Illustration No.2: The complainant has collected what he

considers to be ample incriminating materials against ‘X’, a

public servant disclosing the commission of offences under

the P.C.Act. However, the complainant is not aware of the

42

sanction requirement under the P.C.Act. He proceeds to the

Court of the Special Judge and files an application under

Section 200 of the Code and asks the Court to “take

cognizance and to punish the accused in accordance with

law”. In a situation as this, the Special Judge is under a duty

to find out at the very outset whether the complainant has

secured the requisite sanction from the appropriate

authority in view of the fact that the complainant has

already stated in his complaint that he prays for taking of

cognizance with respect to certain offences and as the law

squarely warrants sanction in the event that the accused

was a public servant at the relevant time and continues to

be such public servant on the date on which the Court is ask

to take ‘cognizance’. In such event, the Special Judge is

bound to note that the complaint is not accompanied by the

requisite sanction. Therefore, the Special Judge would be

under a duty to inform the complainant that he would not

be in a position to proceed upon that complaint in view of

the fact that the law would require a sanction Order to

accompany such a complaint. Instead of taking what is

evidently a simple and effortless step, if the Special Judge

were to proceed to hear upon the complaint and reach a

point of satisfaction where he would wish to take

cognizance of the offence but was legally barred from doing

so in view of the bar of sanction, the Special Judge would

have spent his valuable time on a case that would have

been wholly prevented had he applied ordinary caution at

the very outset. A Special Judge should therefore exercise

such an ordinary caution at the outset itself but he may

equally choose to consciously and knowingly entertain even

such a complaint in light of his own experience that very

often, such complaints unwisely ask for cognizance when in

reality they merely merit a police investigation. Such

discretion cannot be taken away from a Special Judge by

43

any stretch of legal reasoning in view of the fact that the

exercise of such discretion is subject only to the exercise of

sound judgment by the Special Judge concerned. The

exercise of a judicial function carries with it, the inevitable

exercise of commensurate discretion. That is, it is implicit in

the grant of all judicial power that a certain degree of

discretion is inevitably involved in the exercise of such

judicial power.

e. Even assuming in the illustration aforesaid that after the

Special Judge informs the complainant that the Court would

not be in a position to proceed further in view of the

sanction bar, the complainant could then consider making

an application himself to the appropriate Government for

obtaining the requisite sanction on the strength of the

materials that he had collected and placed before the

Special Judge. Also, in the aforesaid illustration itself, if only

the Special Judge would, while necessarily glancing through

the complaint come to a conclusion that the matter does

require investigation by the police and that proceeding

upon the same in the absence of a police investigation

would hinder a proper prosecution of the case, it would be

perfectly proper for the Special Judge to state in his Order

that although he was invited to take cognizance during the

presentation of the complaint, he had declined to do so in

view of the fact that the complaint was not accompanied by

a valid sanction and that he has on his own election,

perused the content of the compliant and is of the view that

the matter warrants an investigation by the police in the

facts and circumstances of the case and that he would

therefore be directing the police to register a FIR on the

basis of the complaint tendered to the Court and

consequently direct a suitable investigation therewith in

terms of Section 156(3) of the Code.

44

f. If only a Special judge were to pass an Order to the above

effect, the same would have been done solely at his

election. Also, in relation to any proposition that a Special

Judge would be losing his discretion under the aforesaid

circumstances, the decision of the Hon’ble Supreme Court

in the case of State by CBI Vs. Raj Kumar Jain [1998 (6) SCC

551] may be noted. In this case, the CBI had investigated

certain offences alleged to have been committed by certain

public servants and had come to the conclusion that no

offences were made out. Accordingly, the CBI had

proceeded to file a police report under Section 172(3) of the

Code recommending to the Special Judge that the case

therefore, be closed. The Special Judge overseeing the CBI

cases under the P.C.Act refused to receive the report itself

on the ground that being in the nature of a

recommendation, the Special Judge was not strictly bound

by the same and that he could very well exercise the option

of dis-agreeing with the CBI and to proceed to take

cognizance thereunder if the offences were indeed

established by the very report of the police. Such discretion

that is available to the Special Judge, reasoned this

particular Special Judge, would be lost should he reach a

situation where he would want to take cognizance but

would not be in a position to do so due to the bar of

sanction. Reasoning in such a manner, this Special Judge

had insisted that the CBI should return to him after duly

obtaining sanction Orders from the appropriate authority -

in a case where the CBI itself was of the opinion that, after a

full and due investigation, the offences were not established

against the accused. The CBI did appeal to the Delhi High

Court which did not notice any infirmity in the reasoning of

the Special Judge. Thereafter, the matter was further taken

to the Supreme Court which put the whole controversy to

rest by holding in effect that as a matter of principle, the

45

discretion vested in a Special Judge cannot be taken to such

as absurd extreme so as to command a police agency which

has itself reached a conclusion that no offence has been

made out against certain accused that such police agency

should then proceed to the sanctioning authority and seek

its sanction for the offence that the investigation agency

does not itself believe to have been established pursuant to

its investigation. Accordingly, the Hon’ble Supreme Court

had held in this case that:

“5. From a plain reading of the above Section it is evidently clear that a Court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above Section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions. Viewed in that context, the C.B.I. was under no obligation to place the materials collected during investigation before the sanctioning authority, when they found that no case was made out against the respondent. To put it differently, if the C.B.I. had found on investigation that a prima facie case was made out against the respondent to place him on trial and accordingly prepared a charge-sheet (challan) against him, then only the question of obtaining sanction of the authority under Section 6(1) of the Act would have arisen for without that the Court would not be competent to take cognizance of the charge sheet. It must, therefore, be said that both the special Judge and the High court were patently wrong in observing that the C.B.I. was required to obtain sanction from the prosecuting authority before approaching the Court for accepting the report under Section 173(2) Cr. P.C. for discharge of the respondent.”

Proposition No.8:

a. Powers of the police to statutorily investigate

cognizable offences and the obligation of a

46

Magistrate to direct police investigation: The

provisions of the Code should first be noted. Chapter 12 of

Code deals with the powers of police and their powers of

investigation. Section 154 of the Code places a duty upon

the officer in charge of a police station to record the

substance of any information whereby an allegation of any

cognizable offence or the commission of cognizance offence

is involved.

b. In the event that the officer in charge of the Police Station

refuses to register a FIR in terms of Section 154(1) of the

Code, any person aggrieved thereby may make a

representation thereby to the Superintendent of Police of

the District concerned to that effect. This much has been

expressly prescribed in Section 154(3) of the Code. The

Superintendent of Police would then be legally obliged to

ensure that a FIR is duly registered and a due investigation

is commenced thereupon should only the information

disclose the commission of a cognizable offence.

c. The question then arises as to what would be the scenario if

only the Superintendent of Police of the District also refuses

to ensure registration of a FIR though he was under a legal

and statutory duty to do so. The answer is to be found in

Section 156(3) of the Code and same reads as under:

Section 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.

47

(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.

d. A careful reading of the aforesaid provision would show that

the Magistrate who is empowered take cognizance of

certain offences is the very Magistrate who is also

authorised to direct an investigation under Section 156(3) of

the Code. That is to say, a Magistrate situated and

functioning in a different State or a District would not be

competent at all to take cognizance of offences:

a) that were neither committed in a territory over

which the said Magistrate exercises jurisdiction

or

b) when such offences hold no connection

whatsoever to any person in the territory over

which the said Magistrate exercises jurisdiction.

e. Similarly, a Magistrate who has been conferred with a very

limited jurisdiction such as being a Special Court constituted

for the purpose of trial of offences under the P.C.Act or say,

a Special Court constituted for the purpose of trial of

offences under the Prevention of Food Adulteration Act,

1954 cannot at all direct investigation by the police into a

complaint that does disclose cognizable offences though,

wholly under a different statute. Such a Special Judge would

not have any competence to direct investigation under

Section 156(3) of the Code in respect of an allegation that

48

says - “‘A’, a private person raped and murdered ‘B’,

another private person”.

f. Therefore, while reading Section 156(3) of the Code,

although the appropriate Magistrate is to be identified by

asking the question as to whether that Magistrate would be

competent to eventually take cognizance of the alleged

offences, once the answer to that question is known, the

enquiry must end there. And the Magistrate so identified is

deemed under the law to be exercising the power under

Section 156(3) of the Code which is nothing more than the

power to remind the police of their own obligation to duly

investigate cognizable offences that warrant such

investigation.

g. As such, the fact that the Magistrate for the purpose of

Section 156(3) of the Code is going to be the very

Magistrate who would also be competent to eventually take

cognizance of the offences in question cannot and should

not mean that merely because that Magistrate has

proceeded to pass an Order directing police investigation

under Section 156(3) of the Code, the Magistrate must be

said to have taken cognizance already and thereby.

h. It should also be noted that if only the words “empowered

to take cognizance under Section 190 of the Code” had not

been present in the wording of Section 156(3) of the Code,

it would have then led to the possibility of securing an Order

from a territorially unconnected Magistrate or from a

Magistrate who would have no jurisdiction to eventually

take cognizance of such nature of offences.

i. The other provisions of Chapter 12 of the Code may be

cursorily noted. Once a FIR is properly lodged, the police

would then acquire a statutory power to investigate the

offences alleged thereby by invoking the powers that are

49

expressly conferred upon them under the following

provisions of Chapter 12 of the Code.

Section 160 of the Code – Power of Police to require

attendance of any person who the police believe could

be a witness to the offence in question;

Section 161 of the Code – Power of Police to examine

any person who they believe might be of help in aiding

their investigation or unraveling the offence;

Section 165 of the Code – Search by a police officer

in any place within the local limits of his jurisdiction for

the purpose of aiding in his investigation;

Section 166(A) of the Code – Power of the police to

request a competent investigative agency in a place

outside India to turn over material or evidence that

could be of help in the local investigation by the

police;

j. Also the general power of the police to take such other

steps as may be necessary or desirable in the aid of their

investigation are to be found elsewhere in the Code:

Section 102 of the Code – Power of Police officer to

seize certain property suspected to have been

involved in the commission of any offence;

Section 41 of the Code – Power of police to arrest any

accused of having committed a cognizable offence;

Section 47 of the Code – Search of any place by a

police officer – where a police officer is of the belief

that a certain person sought to be arrested is likely to

be found in a given place, the police officer may then

search the place concerned;

Section 53 and 53(a) of the Code ensuring medical

examination of the accused in certain cases;

50

Section 91 of the Code – Summons to produce

documents or other thing – Whenever any police

officer considers any document or other thing to be

necessary for the purpose of his investigation, he may

direct the production of such document or such other

thing from the person who is in possession thereof.

k. The aforesaid powers are the powers that are available to

the police to aid in their investigation, once a FIR has been

registered in terms of Section 154(1) of the Code or

pursuant a direction under Section 154(3) or 156(3) of the

Code.

Proposition No.9:

a. Although the B.V.Acharya judgment itself draws from

the judgment of the Hon’ble Supreme Court in

Subramanian Swamy v. Manmohan Singh [2012 (3)

SCC 64] (referred to hereinafter as ‘Subramanian

Swamy’ judgment, for short), the Subramanian

Swamy judgment itself repeats and reiterates the

well-established law that when a Special Judge

directs investigation by the police in terms of Section

156(3) of the Code, he cannot be said to have taken

cognizance of any offence: The exercise of the aforesaid

powers of investigation by the police cannot be subject to

approval by an authority competent to grant sanction in

terms of Section 19 of P.C.Act. Nowhere in the Code or even

in the P.C.Act, is there any such fetter on the power of the

police to investigate a cognizable offence by simply

invoking their statutorily given powers. The B.V.Acharya

judgment does draw its support from the judgment of the

Hon’ble Supreme Court in Subramanian Swamy v.

Manmohan Singh [2012 (3) SCC 64] and it becomes

necessary to look at certain paragraphs in the Subramanian

Swamy judgment (supra) itself that clearly state that when

51

a Special Judge directs investigation by the police in terms

of Section 156(3) of the Code, he cannot be said to have

taken cognizance of any offence. Those paragraphs read as

under:

“35. In R.R. Chari v. State of U.P: (1951) SCR 312, the three Judge Bench approved the following observations made by the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abni Kumar Banerjee (AIR p.438, para 7):

“7. …What is ‘taking cognizance’ has not been defined in the Code of Criminal Procedure and I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any magistrate has taken cognizance of any offence under Section 190(1) (a), Code of Criminal Procedure, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. 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 of the offence.”

b. So, a plain reading of the aforesaid paragraph reveals

that as early as in 1950, the Supreme Court had no

difficulty whatsoever to say that though the term

‘cognizance’ itself was not defined under the Code,

the meaning of that word was too well established

already by then and more particularly, the discussion

of that term in a judgment that was already

considered an authority by then - Superintendent and

52

Remembrancer of Legal Affairs, West Bengal v. Abni

Kumar Banerjee (AIR 1950 CAL 437) – was readily

adopted by the Supreme Court in the decision of

R.R.Chari v. State of State of Uttar Pradesh (AIR 1951

SC 207). Particularly, the lines - ...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 of the

offence” clearly establish that the Subramanian

Swamy judgment cannot at all be taken as the

authority for the proposition that a Special Judge is

said to have taken cognizance when he directs

investigation by the police in terms of Section 156 (3)

of the Code.

c. Paragraph 37 in the Subramanian Swamy Judgment may be

noted:

37. In Pastor P. Raju's case, this Court referred to the provisions of Chapter XIV and Sections 190 and 196 (1-A) of the CrPC and observed: (SCC p.732, para 8)

“8. …There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173 CrPC. If a criminal case is registered, investigation of the offence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no violation of Section 196 (1-A) CrPC and no illegality of any kind would be committed.”

d. In the aforesaid case of Pastor P Raju (supra), the Hon’ble

Supreme Court had very decisively laid down the law that

53

no sanction is required for investigation at all. The Supreme

Court had held in this case that, on certain offences the

cognizance of which could not be taken except without

previous sanction, the decision of the Karnataka High Court

mandating (as in B.V.Acharya) that lack of sanction would

vitiate the proceedings was unlawful and that the question

of sanction cannot arise at all when a matter is yet to be

investigated by the police or at the stage when the matter

is still under investigation by the police. The Hon’ble

Supreme Court had held that:

10. ... the High Court clearly erred in quashing the proceedings on the ground that previous sanction of the Central Government or of the State Government or of the District Magistrate had not been obtained. It is important to note that on the view taken by the High Court, no person accused of an offence, which is of the nature which requires previous sanction of a specified authority before taking of cognizance by the Court, can ever be arrested nor such an offence can be investigated by the police. 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. Therefore, the whole premise on the basis of which the proceedings have been quashed by the High Court is wholly erroneous in law and is liable to be set aside.”

(emphasis supplied by this complainant)

Proposition No.10:

a. Under the P.C.Act, the stages of ‘cognizance’ and ‘sanction’

cross each other: The concept of ‘cognizance’ and ‘sanction’

go together under the P.C.Act and what is barred under

Section 19(1) of the P.C.Act is the taking of cognizance

without sanction and that the doing of things other than

taking of ‘cognizance’ is plainly not prohibited under Section

54

19(1) of the P.C.Act. As such, where a statute itself does not

prohibit the taking of steps that do not legally amount to

the taking of ‘cognizance’, by an erroneous deduction of

controlling judgments of the Supreme Court, the Special

Court is permitted not to arrive at such a reasoning.

b. As such, in view of the fact that the judgment of the

Supreme Court in Subramanian Swamy does not itself state

that the issue of direction under Section 156(3) to the police

to investigate could be called as taking of ‘cognizance’ at

all, any such proposition could not even be advanced by

relying upon the Subramanian Swamy judgment simply

because numerous other judgments of the Supreme Court

that were so readily cited in Subramanian Swamy judgment

did establish that a direction to the police to investigate in

terms of Section 156(3) of the Code would not amount to

taking of ‘cognizance’.

Proposition No.11:

a. The law in relation to arriving at the ratio of any

decision of a Court is too well established and the

following judgments of the Hon’ble Supreme Court

on the aspect of deducing the ratio of controlling

judgments are noted for the purpose of propositions

in this application:

b. In the case of Haryana Financial Corporation Ltd v

Jagadamba Oils Ltd [(2002) 3 SCC 496] it was held that:

19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become

55

necessary for judge to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737, Lord Mac Dermot observed:

"The matter cannot, of course, be settled merely by treating the ipsissima ventral of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by the most distinguished judges."

20. In Home Office v. Dorset Yacht Co. 1970 (2) All ER 294 Lord Reid said, "Lord Atkin's speech..... is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972) 2 WLR 537 Lord Morris said:

"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."

21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

22. The following words of Lord Denning in the matter of applying precedents have become locus clasicks:

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a

56

case falls, the broad resemblance to another case is not at all decisive."

XXX XXX XXX

"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."

c. In the case of Delhi Municipal Society v Gurnam Kaur [1989 (1) SCC 101] it was held as under:

“…Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice....”

“Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative…”

“...One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.”

d. In the case of Executive Engg., Dhenkanal Minor Irrigation Division vs. N.C.Budharaj (2001) 2 SCC 721 it was held that:

“A decision is an authority on the question that is raised and decidded by the Court. It cannot be taken as an authority on a different question though in some cases the reason stated therein may have a persuasive value.”

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e. In the case of Director of Settlements, A.P & others Vs. M.R.Apparao & Another (2002 (4) SCC 638) it was held that:

“7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has 'declared law' it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An 'obiter dictum' as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced…”

f. In the case Union of India v Chajju Ram [2003 (5) SCC 568] it was noted that:

“It is now well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is equally well settled that a little difference in facts or additional facts may lead to a different conclusion.”

g. In the case of U.P. State Electricity Board v. Pooran Chandra

Pandey and Ors. reported in (2007) 11 SCC 92 it was held

as under:

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“12. As observed by this Court in State of Orissa v. Sudhansu Sekhar Misra: AIR 1968 SC 647 (vide AIR pp.651-52, para 13):

13. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, L.C. Said in Quinn v. Leathem 1901 AC 495: (1900) All ER 1 : (All ER p.7 G-I):

Before discussing Allen v. Flood 1898 AC 1 : (1895) All ER Rep 52 and what was decided therein, there are two observations of a general character which I wish to make; and one is to repeat what I have very often said before - that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”

h. In the case of Commissioner of Income-Tax v. M/s.Sun Engineering Works (P) Ltd reported in AIR 1993 SC 43 : 1992 Supp 1 SCR 732, it was held as under:

“39…It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have

59

to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. In Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India [1971 (3) SCR 9: AIR 1971 SC 530] this Court cautioned:

It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment.”

i. When the various decisions of the controlling courts are

relied upon in light of the principles laid down in the

aforesaid judgments, the words such as “cannot even take

notice, cannot entertain, or cannot even touch” occurring in

the judgment of the higher courts cannot be treated as if

such words were themselves found in the P.C.Act. The

Supreme Court decisions which have proceeded to define

the term ‘cognizance’ have done so by largely saying that

cognizance would amount to the Court taking judicial notice

of the complaint. In consequence, the Supreme Court had

also proceeded to hold that where cognizance is barred,

unless accompanied by a sanction order, the Court would be

precluded from even entertaining the complaint concerned

and cannot therefore proceed forward such as to still take

cognizance and to initiate the next steps such as issue of

summons to the accused. These propositions are too well

established. However, it is not warranted merely because

the aforesaid two propositions are too well established to

also take it that where an application under Section 156(3)

of the Code is made to the Special Judge, the same cannot

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also be entertained without a valid sanction Order as the

this proposition does not at all flow from the first two

propositions.

Proposition No.12:

a. Again, the Subramanian Swamy judgment could not

have lead to any inference that sanction Order

should accompany a request to a Special Judge

seeking a direction to the police to investigate in

terms of Section 156(3) of the Code in view of the

law on sanction declared in paragraph 44 of the

judgment: A bare reading of paragraph 44 of Subramanian

Swami judgment (supra) itself would indicate that the stage

at which sanction could be sought is only after the

investigating agency has collected evidence in the course of

its investigation or if the complainant himself has amassed

adequate material to satisfy the sanctioning authority that

the material so collected would warrant the prosecution of

public servant in respect of whom sanction was sought. As

such, when the B.V.Acharya judgment (supra) declares that

sanction is a pre-requisite even for the issue of a direction

for investigation under Section 156(3) of the Code, it must

be taken to raise the question in the mind of a Special Judge

on whether it is even lawful to tell the complainant that the

Special Judge cannot at all direct investigation by the police

unless the complainant first secures a valid sanction Order

for such purpose. In para 44 of Subramanian Swamy

judgment, the Hon’ble Supreme Court had held that:

“44. We may also observe that grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given

61

case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction. In either case, the decision taken on the complaint made by a citizen is required to be communicated to him and if he feels aggrieved by such decision, then he can avail appropriate legal remedy.”

[emphasis supplied by this complainant]

Proposition No.13:

a. A Special Judge would necessarily be overlooking the

well-established law on sanction should he insist on

the same at a point of time when a case merits police

investigation: The basic rule of administrative law is that

where the Government or any administrative authority is

vested with the authority and the duty to decide upon any

request, any decision thereunder is to be based on relevant

and adequate material and any such decision may only be

taken on the basis of cogent and adequate material to

justify such a decision. In the realm of the law governing the

giving or refusing of sanction, it is to be noted that the

sanctioning authority cannot even be approached to grant

sanction with respect to any public servant unless and until

the allegation against such public servant is backed up by

adequate evidence collected in the course of investigation

or collected by the complainant himself through permissible

methods. Now this is obviously because of the law so well

established that the purpose behind the grant of sanction is

to protect honest public servants from frivolous or

motivated criminal prosecution. As these propositions of law

are not in doubt at all, the only manner in which such

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protection to a public servant could be ensured is if the

sanctioning authority insists that the request for sanction

should necessarily be accompanied by adequate material or

evidence collected in the course of investigation. It must

also be noted that the law concerning sanction has often

said that because it is an exception to the general principle

of equality enshrined in Article 14 of the Constitution of

India, all sanction clauses must be very strictly construed.

That is to say, the sanction requirement cannot be

extended beyond the legitimate need to protect a public

servant from frivolous or motivated prosecution. As such, if

the sanctioning authority could not be itself satisfied that

the request for sanction is not accompanied by cogent

evidence to warrant prosecution, it would be unlawful for

such sanctioning authority to still express a name sake

satisfaction and to proceed to grant sanction.

Proposition No.14:

a. It is established beyond all doubt that when a Special

Judge proceeds to direct investigation in terms of

Section 156(3) of the Code, he does not at all intend

to follow the procedure prescribed in Chapter - XV of

the Code as the direction to the police would

provisionally sever the connection between the

complainant and his allegation and would

correspondingly impose the police as the agency

responsible for prosecuting the matter in accordance

with the statutory provisions of law: In the judgment of

the Hon’ble Supreme Court in the case of Dilwar Singh v.

State of Delhi [2007 (12) SCC 641], the Supreme Court was

dealing with the scope of Section 210 of the Code. Section

210 of the Code contemplates the possibility of there being

a police investigation with respect to certain offences which

are also the subject of a complaint case whereby a

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Magistrate has proceeded to take cognizance on a private

complaint with respect to those very offences in terms of

Chapter XV. In such situations, Section 210 prescribes the

course that a Magistrate should follow for the purpose of

merging both such cases. To explain the scope of Section

210 of the Code, it became necessary for the Supreme

Court to first explain the scope of Chapter XII and then, to

contrast it with the provisions of Chapter XV and XVI of the

Code. The Supreme Court held in the aforesaid case that:

“16. When information is given at the police station, normally two courses are open. A station diary entry can be made or the FIR registered. In case there is any deviation, recourse to Section 154(3) has to be made. If that does not yield any result a complaint can be filed”.

11. Section 156 reads as follows:

"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."

12. Section 156 falling within Chapter XII, deals with powers of police officers to investigate cognizable offences. Investigation envisaged in Section 202 contained in Chapter XV is different from the

64

investigation contemplated under Section 156 of the Cr.P.C..

13. Chapter XII of the Cr.P.C. contains provisions relating to "information to the police and their powers to investigate", whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e. complaint filed by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences. True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to "direct an investigation by a police officer". But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Cr.P.C.

14. The various steps to be adopted for investigation under Section 156 of the Cr.P.C. have been elaborated in Chapter XII of the Cr.P.C. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Cr.P.C. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Cr.P.C. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.

15. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV

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of the Cr.P.C. A reading of Section 202(1) of the Cr.P.C. makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e.

"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".

16. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.

17. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of Cr.P.C. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all, registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of Cr.P.C. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Cr.P.C. 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 complaint because that police officer could take further steps contemplated in Chapter XII of the Cr.P.C. only thereafter.

18. The above position was highlighted in Suresh Chand Jain v. State of M.P. and Another [2001(2) SCC 628].

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19. In Gopal Das Sindhi and Ors. v. State of Assam and Anr. (AIR 1961 SC 986) it was observed as follows:

"When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Cr.P.C. to the Officer In charge of Police Station, Gauhati for investigation. Section 156(3) states "Any Magistrate empowered under section 190 may order such investigation as above-mentioned". Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342 and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Cr.P.C. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason

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is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Cr.P.C. Numerous cases were cited before us in support of the submissions made on behalf of the appellants. Certain submissions were also made as to what is meant by "taking cognizance." It is unnecessary to refer to the cases cited. The following observations of Mr. Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abni Kumar Banerjee, AIR 1950 Cal 437:

"What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter- proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. 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 of the offence".

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were approved by this Court in R.R. Chari v. State of Uttar Pradesh (1951 SCR 312). It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI 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 investigation, he cannot be said to have taken cognizance of any offence. The observations of Mr. Justice Das Gupta above referred to were also approved by this Court in the case of Narayandas Bhagwandas Madhavdas v. State of West Bengal (AIR 1959 SC 1118). It will be clear, therefore, that in the present case neither the Additional District Magistrate nor Mr. Thomas applied his mind to the complaint filed on August 3, 1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr. Thomas to deal with it. Mr. Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police under Section 156(3) of the Cr.P.C. The action of Mr. Thomas comes within the observations of Mr. Justice Das Gupta. In these circumstances, we do not think that the first contention on behalf of the appellants has any substance."

20. In Narayandas Bhagwandas Madhavdas v. The State of West Bengal (AIR 1959 SC 1118) it was observed as under:

"On 19.9.1952, the appellant appeared before the Additional District Magistrate who recorded the following order:-

"He is to give bail of Rs.50,000 with ten sureties of Rs. 5,000 each. Seen Police report. Time allowed till 19th November, 1952, for completing investigation."

On 19.11.952, on perusal of the police report the Magistrate allowed further time for investigation until January 2, 1953, and on that date time was further extended to February 2, 1953. In the meantime, on January 27, 1953, Inspector Mitra had been authorized

69

under s.23(3)(b) of the Foreign Exchange Regulation Act to file a complaint. Accordingly, a complaint was filed on February 2, 1953. The Additional District Magistrate thereon recorded the following order: "Seen the complaint filed today against the accused Narayandas Bhagwandas Madhavdas under section 8(2) of the Foreign Exchange Regulation Act read with section 23B thereof read with Section 19 of the Sea Customs Act and Notification No. F.E.R.A. 105/51 dated the 27th February, 1951, as amended, issued by the Reserve Bank of India under Section 8(2) of the Foreign Exchange Regulation Act. Seen the letter of authority. To Sri M. H. Sinha, S.D.M. (Sadar), Magistrate 1st class (spl. empowered) for favour of disposal according to law. Accused to appear before him."

Accordingly, on the same date Mr. Sinha then recorded the following order:-

"Accused present. Petition filed for reduction of bail. Considering all facts, bail granted for Rs.25,000 with 5 sureties. To 26.3.1952 and 27.3.1952 for evidence."

It is clear from these orders that on 19.91952, the Additional District Magistrate had not taken cognizance of the offence because he had allowed the police time till November 19, 1952, for completing the investigation. By his subsequent orders time for investigation was further extended until February 2, 1953. On that date the complaint was filed and the order of the Additional District Magistrate clearly indicated that he took cognizance of the offence and sent the case for trial to Mr. Sinha. It would also appear from the order of Mr. Sinha that if the Additional District Magistrate did not take cognizance, he certainly did because he considered whether the bail should be reduced and fixed the 26th and 27 th of March, for evidence. It was, however, argued that when Mitra applied for a search warrant on September, 16, 1952, the Additional District Magistrate had recorded an order thereon, "Permitted. Issue search warrant." It was on this date that the Additional District Magistrate took cognizance of the offence. We cannot agree with this submission

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because the petition of Inspector Mitra clearly states that "As this is non-cognizable offence, I pray that you will kindly permit me to investigate the case under section 155 Cr.P.C." That is to say, that the Additional District Magistrate was not being asked to take cognizance of the offence. He was merely requested to grant permission to the police officer to investigate a non-cognizable offence. The petition requesting the Additional District Magistrate to issue a warrant of arrest and his order directing the issue of such a warrant cannot also be regarded as orders which indicate that the Additional District Magistrate thereby took cognizance of the offence. It was clearly stated in the petition that for the purposes of investigation his presence was necessary. The step taken by Inspector Mitra was merely a step in the investigation of the case. He had not himself the power to make an arrest having regard to the provisions of s. 155(3) of the Code of Criminal Procedure. In order to facilitate his investigation it was necessary for him to arrest the appellant and that he could not do without a warrant of arrest from the Additional District Magistrate. As already stated, the order of the Additional District Magistrate of September 19, 1952, makes it quite clear that he was still regarding the matter as one under investigation. It could not be said with any good reason that the Additional District Magistrate had either on September 16, or at any subsequent date up to February 2, 1953, applied his mind to the case with a view to issuing a process against the appellant. The appellant had appeared before the Magistrate on February 2, 1953, and the question of issuing summons to him did not arise. The Additional District Magistrate, however, must be regarded as having taken cognizance on this date because he sent the case to Mr. Sinha for trial. There was no legal bar to the Additional District Magistrate taking cognizance of the offence on February 2, 1953, as on that date Inspector Mitra's complaint was one which he was authorized to make by the Reserve Bank under s. 23(3)(b) of the Foreign Exchange Regulation Act. It is thus clear to us that on a proper reading of the various orders made by the Additional District Magistrate no cognizance of the offence was taken until February 2,

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1953. The argument that he took cognizance of the offence on September 16, 1952, is without foundation. The orders passed by the Additional District Magistrate on September 16, 1952, September 19, 1952, November 19, 1952, and January 2, 1953, were orders passed while the investigation by the police into a non- cognizable offence was in progress. If at the end of the investigation no complaint had been filed against the appellant the police could have under the provisions of s. 169 of the Cr.P.C. released him on his executing a bond with or without sureties to appear if and when so required before the Additional District Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. The Magistrate would not be required to pass any further orders in the matter. If, on the other hand, after completing the investigation a complaint was filed, as in this case, it would be the duty of the Additional District Magistrate then to enquire whether the complaint had been filed with the requisite authority of the Reserve Bank as required by s. 23(3)(b) of the Foreign Exchange Regulation Act. It is only at this stage that the Additional District Magistrate would be called upon to make up his mind whether he would take cognizance of the offence. If the complaint was filed with the authority of the Reserve Bank, as aforesaid, there would be no legal bar to the Magistrate taking cognizance. On the other hand, if there was no proper authorization to file the complaint as required by s. 23 the Magistrate concerned would be prohibited from taking cognizance. In the present case, as the requisite authority had been granted by the Reserve Bank on January 27, 1953, to file a complaint, the complaint filed on February 2, was one which complied with the provisions of s. 23 of the Foreign Exchange Regulation Act and the Additional District Magistrate could take cognizance of the offence which, indeed, he did on that date. The following observation by Das Gupta, J., in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji [A.I.R. (1950) Cal. 437] was approved by this Court in the case of R. R. Chari v. The State of Uttar Pradesh [1951] S.C.R. 312]

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"What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under section 190(1)(a) Criminal Procedure Code, he 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-proceeding under section 200 and thereafter sending it for inquiry and report under section 202. 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 of the offence."

It is, however, argued that in Chari's case this Court was dealing with a matter which came under the Prevention of Corruption Act. It seems to us, however, that that makes no difference. It is the principle which was enunciated by Das Gupta, J., which was approved. As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under S. 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure or under S. 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance."

21. These aspects were highlighted in Mohd. Yousuf v. Afaq Jahan (Smt.) and Anr. (2006 (1) SCC 627).”

[emphasis supplied by this complainant]

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In the case of State of Punjab v Raj Singh and

Another (1998) 2 SCC 391 it was held as under:

“2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 190(1) CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) CrPC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 CrPC…”

In the case of Nirmaljit Singh Hoon v State of West

Bengal (1973) 3 SCC 753 it was held as under:

“…Firstly, the police authorities have under Sections 154 and 156 of the Code a statutory right to investigate into a cognizable offence without requiring any sanction from a judicial authority, [cf. King Emperor v. Khwaja Nazir Ahmad (AIR 1945 PC 18)] and even the High Court has no inherent power under Section 561-A of the Code to interfere with the exercise of that statutory power. It is true that the Chief Presidency Magistrate had under Section 156(3) ordered in the present case an investigation by the police. But once that was done, the inquiry by the police was of the same nature and character as the one which the police had the power to conduct under sub-sections (1) and (2) of that section. Indeed sub-section (3) expressly states that an investigation ordered by a Magistrate would be an investigation "as abovementioned", i.e., an investigation made by a

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police officer in his statutory right under sub-sections (1) and (2). That being so, once an investigation by the police is ordered by a magistrate, the magistrate cannot place any limitations on or direct the officer conducting it as to how to conduct it. Secondly, it is well settled that before a Magistrate can be said to have taken cognizance of an offence under Section 190(1) (a) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under Section 200 and the provisions following that section. But where he has applied his mind only for ordering an investigation under Section 156(3) or issuing a warrant for purposes of investigation, he cannot be said to have taken cognizance of the offence. [See R. R. Chari v. U.P. (AIR 1951 SC 207); also Jamuna Singh v. Bhadai Sah (AIR 1964 SC 1541)]. The Chief Presidency Magistrate having not even taken cognizance of the offence but having applied his mind for the purpose only of directing a police investigation under Section 156(3), no proceeding could be said to have commenced before him, of which the inquiry by the police could be said to be part and parcel. Further, it cannot be said that the police officer- acting under Section 156(3) was a delegate of the Chief Presidency Magistrate or that the investigation by him was an investigation by or on behalf of the Magistrate…”

In the case of M.Narayandas v State of Karnataka

and others (2003) 11 SCC 251 it was held as under:

“5. Before dealing with the High Court judgment, which has been impugned, it is first necessary to set out well-settled law. The law has been very succinctly set out in the case of State of Haryana v. Bhajan Lal 1992 SCC (Cri) 426. In this case the High Court had quashed an FIR. While setting aside the High Court judgment this Court held as follows:

"31. At the stage of registration of a crime or a case on the basis of the information disclosing a

75

cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.

32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression ‘information’ without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions ‘reasonable complaint’ and ‘credible

76

information’ are used. Evidently, the non-qualification of the word ‘information’ in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word ‘information’ without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that 'every complaint' preferred to an officer in charge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.

33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of

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the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.

40. The core of the above sections, namely, 156, 157 and 159 of the Code is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded with by his subordinate; that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation altogether; that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the Magistrate concerned can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code.

7. On behalf of the respondents, it was submitted that this was a case which fell under Section 195 of the Criminal Procedure Code. It was submitted that, therefore, the provisions of Chapter XXVI of the Criminal Procedure Code would apply. It was submitted that once the provisions of Chapter XXVI applied, impliedly, the provisions of Chapter XII get excluded...

8. We are unable to accept the submissions made on behalf of the respondents…

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…Even otherwise there is no substance in the submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v. Raj Singh (1998) 2 SCC 391. In this case it has been held as follows:

Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance…

Proposition No.15:

a. The requirement of ‘sanction’ to even investigate

any cognizable offence or the grant of a ‘sanction’ to

even merely investigate any offence is not known to

the law in India: If only because by operation of the law as

declared in the B.V.Acharya judgment, a Special Judge

would apply his mind to the facts constituting the offence

should be said to have taken ‘cognizance’ of those offences,

the following illustrations would grossly reveal the grave

and insurmountable difficulties that a Special Judge would

be bound to witness in the course of adjudicating upon the

various tasks that he is regularly called upon to do:

Illustration 1: A proceeds to the Anti-Corruption Police

branch and lodges a complaint against X, Y and Z – all of

who are public servants at present on the ground that they

have amassed wealth disproportionate to their known

source of income. The police duly register a FIR and conduct

certain investigation and deem it necessary to arrest all the

three accused. They do so and within 24 hours of arrest,

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they produce all those three persons before the Special

Judge so designated for the trial of offences under the

Prevention of Corruption Act, 1988. These 3 accused seek

bail before that Special Judge and the Special Judge is also

presented by the police with a copy of the complaint by A,

the FIR and various other documents collected by the police

in the course of their investigation. The Special Judge

realises that the giving or denial of bail is a judicial act and

that the same would require a perusal of the case as

pleaded both by the police as well by the accused.

However, the Special Judge would say that in view of the

proposition that the application of judicial mind to the

materials before him could amount to taking of ‘cognizance’

and that the same is barred under Section 19(1) of the

P.C.Act in the absence of a valid sanction and that there is

and there cannot be any sanction at that juncture, the

Special Judge cannot at all be of any help to the accused

and the accused cannot at all expect any bail unless and

until the Special Judge first takes cognizance of the offences

and considering that the case before him is a police case

and that cognizance may only be taken after the submission

of a police report under Section 173 of the Code, the

accused will have to simply be subject to such confinement

as the police deems fit till such time that the police first

submit a charge sheet by securing the requisite sanction

and the Special Judge proceeds to take cognizance

thereupon. Further, considering also that should the police

submit a closure report and recommend that the case

against the accused be closed, the Special Judge would then

have no occasion to take cognizance at all of any offence

should he simply agree with the police recommendation, it

would be in the best interest of the accused should they

want any bail at all from the Special Judge that they should

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also hope while in indefinite police custody that the police

would not recommend closure of the case against them.

b. The B.V.Acharya judgment, it is clear, draws its support

from the judgment of the Hon’ble Supreme Court in

Subramanian Swamy. However, as stated earlier, the only

inference that could be said to flow from the passages in

Subramanian Swamy judgment that have been reproduced

in B.V.Acharya judgment could be the following:

The word ‘cognizance’ should be given an expansive

meaning. Where a Special Judge ruled out that the

complaint before him does not warrant any police

investigation and that the allegations do warrant the

taking of cognizance, the attention of the Special

Judge should then be directed towards whether the

matter calls for sanction. If the accused happens to be

a retired public servant, obviously there would be no

need for any such sanction. Similarly, there can be no

question of sanction in respect of private persons. As

such, once the Special Judge reaches a point where he

reaches a satisfaction that he would be justified in

taking cognizance in the absence of the requisite

sanction, he would be legally required to stop right

there and then. He cannot proceed further after that

as if he had taken cognizance when under the law, he

lacks the authority to so proceed.

c. However, the B.V.Acharya judgment has reached a contrary

inference than what has been said above. Also, the scope of

the Subramanian Swamy judgment is fully explained in the

very first paragraph of that judgment. The same reads as

under:

“Leave granted. Whether a complaint can be filed by a citizen for prosecuting a public servant for an offence

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under the Prevention of Corruption Act, 1988 (for short, `the 1988 Act') and whether the authority competent to sanction prosecution of a public servant for offences under the 1988 Act is required to take an appropriate decision within the time specified in clause (I)(15) of the directions contained in paragraph 58 of the judgment of this Court in Vineet Narain v. Union of India (1998) 1 SCC 226 and the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission (CVC) are the question which require consideration in this appeal.”

d. It is also important to note that the Vineet Narain v. Union

of India (1998) 1 SCC 226 judgment that has been referred

to in para 1 of the Subramanian Swamy judgment itself is

also an authority for the proposition that there is no

provision whatsoever under the Code and the P.C.Act for

seeking prior sanction even for investigation. The Central

Bureau of Investigation (for short ‘CBI’) is a statutorily

incorporated police agency and its investigative power

which it derives under the Code and the P.C.Act was sought

to be curtailed by the Central Government which had issued

a directive making it mandatory for the CBI to obtain prior

sanction of the Government for the purpose of investigating

officers above certain rank and status. Striking down the

said directive on the ground that the statutory power of the

police to investigate cognizable offences cannot be

interfered with so long as the Code and P.C.Act stood as

they were, the Hon’ble Supreme Court in the said case of

Vineet Narain v. Union of India (1998) 1 SCC 226 held as

under:

“…it would be appropriate at this stage to refer to the Single Directive issued by the Government which requires prior sanction of the designated authority to initiate the investigation against officers of the Government and the Public Sector Undertakings (PSUs), nationalised banks above a certain level. The

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Single Directive is a consolidated set of instructions issued to the CBI by the various Ministries/Departments in this behalf. It was first issued in 1969 and thereafter amended on many occasions. The Single Directive contains certain instructions to the CBI regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants. Directive No. 4.7(3) in its present form is an under:-

"4.7(3)(i) In regard to any person who is or has been a decision making level officer (Joint Secretary or equivalent of above in the Central government or such officers as are or have been on deputation to a Public Sector Undertaking; officers of the Reserve Bank of India of the level equivalent to Joint Secretary or above in the Central Government, Executive Directors and above of the SEBI and Chairman & Managing Director and Executive Directors and such of the Bank officers who are one level below the Board of Nationalised Banks), there should be prior sanction of the Secretary of the Ministry/Department concerned before SPE takes up any enquiry (PE or RC), including ordering search in respect of them. Without such sanction, no enquiry shall be initiated by the SPE.

“20. We were informed that the above Directive, in application, is limited to officials at decision-making levels in the Government and certain other public institutions like the RBI, SEBI, nationalised banks, etc. and its scope is limited to official acts. The stated objective of the Directive is to protect decision-making level officers from the threat and ignominy of malicious and vexatious inquiries/investigations. It is said that such protection to officers at the decision making level is essential to protect them and to relieve them of the anxiety from the likelihood of harassment for taking honest decisions.

21. Two questions arise in relation to Directive No. 4.7(3) of the Single Directive, namely, its

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propriety/legality and the extent of its coverage, if it be valid.

22. The learned Attorney General categorically stated in response to our repeated query that the Single Directive acts as a restriction only on the CBI but is inapplicable against the general power of the State Police to register and investigate any such offence under the general law, i.e., CrPC. He added that it is also not an inhibition against a complaint being lodged under the CrPC before the competent court for any such offence. The Single Directive was sought to be supported by the Attorney General on the ground that the CBI being a special agency created by the Central Government, it was required to function according to the mandate of the Central Government which has constituted this special agency for specified purpose. The desirability of the Single Directive was supported by the learned Attorney General on the ground that the officers at the decision making level need this protection against malicious or vexatious investigations in respect of honest decisions taken by them.

42. Once the jurisdiction is conferred on the CBI to investigate an offence by virtue of notification under Section 3 of the Act, the powers of investigation are governed by the statutory provisions and they cannot be estopped or curtailed by any executive instruction issued under Section 4(1) thereof.

43. There is no similarity between a mere executive order requiring prior permission or sanction for investigation of the offence and the sanction needed under the statute for prosecution. The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction for prosecution is a pre-requisite 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. The word "superintendence" in Section 4(1) of

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the Act in the context must be construed in a manner consistent with the other provisions of the Act and the general statutory powers of investigation which govern investigation even by the CBI. The necessity of previous sanction for prosecution is provided in Section 6 of the Prevention of Corruption Act, 1947 (Section 19 of the 1988 Act) without which no court can take cognizance of an offence punishable under Section 5 of that 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. The above is the only manner in which Section 4(1) of the Act can be harmonised with Section 3 and the other statutory provisions.

47. The Single Directive cannot, therefore, be upheld as valid on the ground of it being permissible in exercise of the power of superintendence of the Central Government under Section 4(1) of the Act.”

[emphasis supplied by this complainant]

e. As such, the Vineet Narain judgment which is referred to in

the very first para of Subramanian Swamy judgment is itself

an authority for the proposition that there is no such thing

as prior sanction for investigation under the Code or the

P.C.Act.

f. Also, the Subramanian Swamy judgment of the Supreme

Court has also been taken note of in a subsequent decision

of the Supreme Court in the case of General Officer

Commanding, Rashtriya Rifles v Central Bureau of

Investigation and Another (2012) 6 SCC 228 and again, in

this subsequent decision, the law concerning sanction has

been laid down as under:

“64. In Subramanian Swamy v. Manmohan Singh and Anr. AIR 2012 SC 1185, this Court dealt with the issue elaborately and explained the meaning of the word “cognizance” as under: (SCC p.90, para 34)

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“34. …In legal parlance cognizance is 'taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially’.”

81. To understand the complicacy of the issue involved herein, it will be useful to compare the relevant provisions of different statutes requiring previous sanction.

“THE CRIMINAL

PROCEDURE CODE,

1973.

THE PREVENTION OF

CORRUPTION ACT,

1988.

THE ARMED

FORCES

(SPECIAL

POWERS) ACT,

1990.

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.

19. Previous sanction necessary for prosecution.- (1) No court shall take cognizance of an offence punishable Under Sections 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.

7. Protection to persons acting under Act. - No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

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g. As is plainly evident from the aforesaid judgment of the

Supreme Court in General Officer Commanding v. C.B.I. in

Crl.A.No.257/11 which itself took note of Subramanian

Swamy judgment, the inference that a subsequent Bench of

the Supreme Court has drawn from Subramanian Swamy

judgment is the exact opposite of that drawn by the

B.V.Acharya judgment.

h. In other words, the Subramanian Swamy judgment was

delivered on 31-Jan-2012. Relying upon Subramanian

Swamy, the B.V.Acharya judgment was delivered on 03-

Aug-2012 to reach a certain conclusion of law.. However,

the Subramanian Swamy judgment was understood by the

Supreme Court itself in a manner wholly contrary to what

has been inferred in B.V.Acharya judgment in the case of

General Officer Commanding, Rashtriya Rifles (supra) when

the law concerning sanction was emphatically laid down as

under:

“43. The question to examine as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation.”

i. Also, in the aforesaid judgment, the Supreme Court had

before it, the comparative provisions of the 3 statutes, Code

of Criminal Procedure, 1973Cr.P.C, Prevention of Corruption

Act, 1988 and Armed Forces (Special Powers) Act, 1990.

Therefore, even with reference to a far stricter statute such

as the Armed Forces (Special Powers) Act, 1990, the

Hon’ble Supreme Court has laid down the law as in above.

As such, the B.V.Acharya judgment has proceeded to

understand the ratio in Subramanian Swamy judgment in a

manner contrary to what has been subsequently understood

by the Supreme Court itself in its later decision.

Proposition No.16:

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a. No Special Judge while acting judicially could legally

insist that a police investigation itself would require

sanction by the Government.

Illustration 1: ‘A’, a private person proceeds to the anti-

corruption police station and seeks to lodge a complaint

against ‘X’, a public servant on the ground that he has

amassed wealth disproportionate to his known source of

income. Accordingly, A cites Section 13(1)(e) of the P.C.Act,

in his complaint to the police. The police refuse to register a

FIR. As such, A then makes a representation to the

Superintendent of Police under Section 154(3) of the Code.

A does not receive any response either from the

Superintendent of Police. He then makes an application

under Section 156(3) of the Code to the Special Judge so

designated for the trial of offences under the P.C.Act, 1988.

However, the Special Judge points out to A that in view of

the declaration of law by the High Court, the Special Judge

cannot even ‘touch’ the application made by ‘A’ and that ‘A’

should secure the appropriate sanction from the

Government. ‘A’ then proceeds to make an application to

the appropriate Government and seeks a sanction for

investigation against ‘X’ in respect of allegation of

commission of offence described in Section 13(1)(e) of the

P.C.Act. The appropriate Government would then grant

sanction solely for investigating ‘X’ only with respect to

offence specified in Section 13(1)(e) of the P.C.Act and no

other. Armed with this sanction, ‘A’ then proceeds to the

Special Judge who thereupon forwards the matter to the

jurisdictional police with a mandate to investigate ‘X’ for

offence under Section 13(1)(e) of the P.C.Act. The police

then begin their investigation and in the course of so

investigating, they raid the premises of X and uncover

certain materials whereby they discover evidence to

establish not merely the offence under Section 13(1)(e) of

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the P.C.Act but also the offences such as forgery of

Government records and also of destruction of Government

records. These separate offences are specified in Section

471 and 201 of the Indian Penal Code, 1860. The Police

consult the Code of Criminal Procedure, 1973 and realise

that it is their bounden duty to promptly report and

investigate about all the crimes that they discover and so,

prepare a charge sheet recommending penal action against

‘X’ for commission of three distinct offences under Sections

13(1)(e) of the P.C.Act and under Sections 471 and 201 of

the IPC. The Special Judge then takes the view that the

sanction granted earlier was only in respect of investigation

and that, in order to proceed further, the Government ought

to grant one more sanction for prosecution. Therefore, the

Special Judge directs the police to obtain one more sanction

for prosecution. The police then approach the appropriate

Government and seek sanction for prosecution of ‘X’ for

those three distinct offences. The appropriate Government

however, points out that the concept of ‘sanction’ is not of

common law origin and it is plainly, a statutory concept and

there is no concept of a dual sanction under the P.C.Act –

one for investigation and another for prosecution and that

they cannot grant any more sanction simply because there

is no provision of law that would allow them to do so.

Therefore, the appropriate Government tells the police that

the matter is now solely between the police and the Courts

and the Government cannot be involved any further. The

police then come back to the Special Judge and state that

there being no concept of a dual sanction, the Special Judge

should proceed in accordance with law. The Special Judge

would then proceed to take cognizance of only that offence

the investigation of which was sanctioned and states that

he cannot take cognizance of the two other offences which

were not sanctioned for investigation. The Special Judge

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also instructs the police to obtain retrospective sanction, if

they wish to, in respect of the investigation conducted in

respect of the two offences for which no sanction was

granted. The police then proceed to the appropriate

Government and seek retrospective sanction to investigate

the two offences that were also uncovered by the police.

The appropriate Government would then state that there is

no such concept as retrospective sanction for validating any

investigation and tells the police that the matter, as already

indicated earlier, is solely between the police and the

Courts. The police come back to the Special Judge and state

the response of the appropriate Government. The Special

Judge then proceeds to also take cognizance of the two

offences and then summons the accused to answer the

Court. The accused appears before the Special Judge and

states that the Special Judge could not have taken any

cognizance at all of the two offences which were never

sanctioned for investigation. In the same vein, the accused

also states that the Special Judge could not have taken

sanction of the offence concerning acquisition of

disproportionate wealth if it be the claim of the police that

the sole means by which the accused had acquired

disproportionate wealth was by forging Government records

and also by destroying certain Government records. As the

investigation into the two other offences were never

sanctioned, the Special Judge could never have taken

cognizance of the same and accordingly, the resultant

transaction being the acquisition of disproportionate income

and assets cannot be taken cognizance of due to its intrinsic

connection with the other two offences.

Illustration 2: Almost all the FIRs registered in police

stations across India concerning offences under the P.C.Act,

1988 are taken in the name of known public servants and

‘unknown public servants in the service of Government of

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India/State’. When such is the case, there could be no

question of seeking any ‘sanction’ to investigate ‘unknown

public servants’.

PRAYER

WHEREFORE, in view of the circumstances aforesaid, this

Hon’ble Court may graciously be pleased:

a) to refer the following six questions of law, in terms of Section 395(2) of the Code of Criminal Procedure, 1973 for the due consideration of and resolution by the Hon’ble High Court of Karnataka in view of the arising of the following questions in this very case as well as in other cases before this Hon’ble Court and the need therefore, for their imminent resolution; in view also of such questions of law being issues of great public importance and being likely to frequently arise in other cases before this Hon’ble Court; it is both necessary and desirable that the following questions be so referred to the Hon’ble High Court of Karnataka by this Hon’ble Court:

Question No.1:

The Hon’ble Supreme Court has most decisively laid down in numerous cases and more particularly, in the cases of R.R. Chari v. State of U.P: (1951) SCR 312; Devarapalli Lakshminarayana Reddy. vs. V. Narayana Reddy., AIR 1976 SC 1672; Mona Panwar v. High Court of Judicature of Allahabad [(2011) 3 SCC 496] and Dilwar Singh v. State of Delhi [2007 (12) SCC 641], that when a Magistrate/Special Judge applies his mind to the offences before him for the purpose of directing a police investigation in terms of Section 156(3) of the Code, he is said to have not taken cognizance of any offence. However, the B.V.Acharya judgment lays down that the mere application of mind by a special Judge would amount to the taking of cognizance by that Judge of the offences before him. As such, this apparent contradiction between the law as decisively laid down by the Hon’ble Supreme Court and that laid down in the B.V.Acharya judgment by referencing the judgments of the Hon’ble Supreme Court deserves to

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be settled by the Hon’ble High Court of Karnataka on a reference under Section 395(2) of the Code.

Question No.2:

The discharge of every public function carries with it, the due application of mind by a public officer in a manner commensurate with the statutory or administrative duty imposed on such public officer. A Special Judge who is so designated for the purpose of trial of offences under the P.C.Act is required to always apply his mind to the various statutory tasks that are placed for his consideration. The judicial meaning of the word ‘cognizance’ as given in the B.V.Acharya judgment is such that a bare notice of the very offences by a Special Judge would amount to that judge taking cognizance of those very offences. In this view of the law as propounded in the B.V.Acharya judgment, almost every task that a Special Judge has been statutorily vested with a duty to judicially perform could be characterized as the occasion for taking of ‘cognizance’ of offences by that Special Judge. The very scheme of the Code and of the P.C.Act is such that between the institution and termination of a given criminal proceeding in respect of a given offence, the Court may be said to have taken judicial ‘cognizance’ only once and that too at a known and defined stage in the course of such criminal proceeding. As such, the judicial meaning of the term ‘cognizance’ as propounded in B.V.Acharya judgment would practically cover most of the pre-trial statutory tasks that are entrusted to a Special Judge. As such, the ratio in the B.V.Acharya judgment that when a special Judge takes notice of the offences and applies his mind thereto, he is said to have taken the cognizance of those very offences would make the very P.C.Act and the Code unworkable by barring the doing of most of such pre-trial tasks. Therefore, there is an imminent need for the Hon’ble High Court of Karnataka to clarify with regard to such unworkability arising from a faithful application and adherence to the ratio laid down in the B.V.Acharya judgment.

Question No.3:

Whether a Special Judge would be taking any ‘cognizance’ at all if only he were to merely apply his

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mind to the allegation or to the offence when called to adjudicate upon a remand application or a bail application? That is, at the stage of arrest of an accused by the police at a stage after the initiation of investigation and prior to the completion of such investigation? If only it be held that a Special Judge would be taking cognizance even at such a stage, the Special Judge would then be legally barred from acting at all by reason of Section 19(1) of the P.C.Act. Consequently, the Special Judge would be put to the impossible position of having to inform both the police as well as the arrested accused that he would not be in a position to even touch any of the case papers because doing so would amount to taking of cognizance. And that the stage therein being such that no sanction could even be expected to be granted by the appropriate Government in view of the fact that the appropriate Government would not be in any position to decide upon any sanction application at all without the investigation itself reaching completion and without the material thereunder not even presented for the consideration of the sanctioning authority. As such, a faithful application and adherence to the B.V.Acharya judgment would simply make it impossible for any Special Judge to either order remand or to enlarge an arrested accused on bail at a stage in the course of investigation as either of the two actions would require the Special Judge to apply his mind to the allegation or to the offence and by doing so, he would indeed be taking notice of the allegation or the offence and such notice would easily attract the meaning assigned in the B.V.Acharya Judgment to the word ‘cognizance’. As such, this difficulty or rather, the arising of a situation which would render both the P.C.Act, as well as the Code unworkable is to be preferably resolved by the Hon’ble High Court of Karnataka. To repeat, the question that therefore arises for the kind consideration of the Hon’ble High Court is whether a Special Judge would be taking cognizance should he merely apply his mind to the allegation or to the offence or whether a Special Judge would be taking ‘cognizance’ only when, as repeatedly pointed out by the Supreme Court, he applies his mind to the offences or the allegation to

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proceed in the direction contemplated in Chapter - XV of the Code? Because a Special Judge is duty bound to apply his mind to the offences or the allegation at every turn of procedure that is mandated under the Code, it has become necessary for the Hon’ble High Court to clarify on whether a bare application of mind by the Special Judge would amount to taking of cognizance?

Question No.4:

Whether the Special Judge would be justified in insisting on production of a sanction Order in the case of an application made under Section 156(3) of the Code even with the law of sanction being such that the sanctioning authority would not even be in a position to accord or to refuse sanction unless and until it is presented with cogent material or evidence collected in the course of investigation? That a Special Judge constituted for the trial of offences under the P.C.Act, is also a public officer who is himself vested with a legal duty to always act with due application of mind, he cannot therefore legally insist for sanction in a case where an applicant is merely seeking a police investigation into the offences that he has alleged against certain public servants. In a scenario where an applicant who has brought before a Special Judge, definite allegations against certain public servants and seeks an impartial police investigation into the same, no Special Judge who would also be expected to be aware of the administrative law concerning sanction could possibly tell that applicant to first obtain sanction for the purpose of satisfying that Judge, that a police investigation is even warranted. As such, the legality of such a course of action by a Special Judge is a matter that squarely arises for the consideration of the Hon’ble High Court by reason of the Judgment in B.V.Acharya case. Therefore, it is most desirable that the Hon’ble High Court of Karnataka resolve the question of whether it is legal at all for a Special Judge to direct an applicant who merely seeks police investigation against certain public servants under Section 156(3) of the Code to first obtain sanction even before any police investigation has been initiated

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into the matter so that the Court could proceed only thereafter?

Question No.5:

Whether a special Judge would be disregarding the judgment of the Hon’ble Supreme Court in the case of Lalitha Kumari v Government of Uttar Pradesh [(2008) 7 SCC 164] which has strictly mandated that a Magistrate should not shirk from directing investigation by exercising power under Section 156(3) of the Code in all deserving cases? That is, the Hon’ble Supreme Court has held in this decision that owing to the practice of the police to wrongfully refuse to register FIRs against persons with position of power, the Magistrates or the Special Judges before whom applications are made under Section 156(3) of the Code should not merely direct prompt investigation thereof into the offences alleged but should also take appropriate steps to penalize the erring police officers in accordance with the law and in extreme circumstances to even direct imprisonment if it were found that there was deliberate and intentional refusal on the part of the erring police officers to register a FIR. The new imposition of a sanction requirement to even entertain an application under Section 156(3) of the Code by reason of the B.V.Acharya judgment would squarely lead to a situation where the Special Judge concerned would be definitely disregarding the judgment of the Hon’ble Supreme Court in the case of Lalitha Kumari v Government of Uttar Pradesh [(2008) 7 SCC 164] if only he would insist on a valid sanction order before passing an Order under Section 156(3) of the Code.

Question No.6:

Should a Special Judge be considered to have breached any statutory provision of law where, in the light of actual experience gathered by him, he elects to peruse a private complaint for the purpose of assessing whether the same warrants a police investigation although the complainant himself would want the Court to simply proceed to taking of cognizance and to proceed under Chapter - XV of the Code on the premise that the complainant himself has amassed and presented adequate material to justify

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the taking of cognizance without any prior need for a police investigation? Is not the exercise of such judicial discretion by a Special Judge, in the light of his own experience gathered from witnessing numerous instances where private complainants unwisely seek prosecution when in fact, the allegations leveled by them merely merit a police investigation, to direct a police investigation in terms of Section 156(3) of the Code at his own election, a fundamental incidence of the grant of judicial discretion to his office?

b) To pass such other Order or to issue such direction as may be expedient or deemed necessary in the facts and circumstances of this case, in the interests of justice.

AND FOR THIS ACT OF KINDNESS, THE COMPLAINANT

FOREVER WILL BE INDEBTED AND DUTYBOUND TO PRAY.

Date: 22-Feb-2013

Place: Bangalore COMPLAINANT(ABRAHAM TJ)

COUNSEL FOR COMPLAINANT(K.V.DHANANJAY)