Allahabad High Court
Lokesh Kumar Dwivedi vs State Of U.P. And 7 Others on 3 March, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 27 Case :- CRIMINAL REVISION No. - 494 of 2016 Revisionist :- Lokesh Kumar Dwivedi Opposite Party :- State Of U.P. And 7 Others Counsel for Revisionist :- Rahul Chaudhary Counsel for Opposite Party :- G.A. Hon'ble Mrs. Ranjana Pandya,J.
1. This criminal revision has been preferred against the order dated 22.12.2015 passed by the learned Additional Sessions Judge/Special Judge (Prevention of Corruption Act), Court No. 4, Varanasi in Misc. Application No. 3 of 2015 (Lokesh Dwivedi vs Smt. Priti Gupta & others) under section 156(3) Cr.P.C., police station Aung, district Fatehpur.
2. Heard learned counsel for the revisionist and learned Additional Government Advocate for the State-respondent.
3. Learned counsel for the revisionist has submitted that the learned lower court has committed irregularity and illegality in rejecting the application under section 156(3) Cr.P.C. for want of sanction, inasmuch as it was the pre-cognizance stage. The applicant had already applied to the appropriate authorities for grant of sanction and if within a limited period sanction was not granted, the sanction would be deemed to have been granted as provided by law.
4. Per contra learned Additional Government Advocate has submitted that the revision is not maintainable because the court could not have proceeded even to decide the application under section 156(3) Cr.P.C. for want of prosecution sanction.
5. Learned counsel for the revisionist has placed reliance upon the decision of Hon'ble Apex Court in the case of Subramanian Swamy vs Manmohan Singh and another reported in (2012) 3 Supreme Court Cases 64, in which the Hon'ble Apex Court has observed about the stage of sanction in a criminal proceedings. While relying in R.R. Chari vs State of U.P., AIR 1951 SC 207, the three Judges Bench approved the following observations made by the Calcutta High Court in Supt. and Remembrancer of Legal Affairs vs Abani Kumar Banerjee, AIR 1950 Calcutta 437:
"7. ... What is 'taking cognizance' has not been defined in the Criminal Procedure Code, and I have no desire now 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."
6. In the case of Subramanian Swamy (supra) the time limit for three months for grant of sanction may be extended to one month. Further it has been laid down as under:
"By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny and determination of the allegations against corrupt official and thus the legitimacy of the judicial institutions is eroded. It, thus, deprives a citizen of his legitimate and fundamental right to get justice by setting the criminal law in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right. In this connection, if we look at Section 19 of the P.C. Act, we find that no time limit is mentioned therein. This has virtually armed the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society."
But this would also come into play only after filing of the charge sheet under section 173(2) Cr.P.C.
7. Thus, the facts of the case of Subramanian Swamy (supra) are different from the case in hand. As soon as an application under section 156(3) Cr.P.C. is moved before the Magistrate, he has certain options. (i) he can treat the same as a complaint case. (ii) he can direct registration and investigation of the case as mentioned in section 156 Cr.P.C.
8. The Additional Sessions Judge/Special Judge (Prevention of Corruption Act) is deemed to be Magistrate under section 5(4) of the Prevention of Corruption Act, and therefore, clothed with all the Magistrate powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options: he may take cognizance of the offence under section 190 Cr.P.C. or proceed further in enquiry or trial. The Magistrate, who is otherwise competent to take cognizance, without taking cognizance under section 190, may direct an investigation under section 156(3) Cr.P.C. The Magistrate, who is empowered under Section 190 Cr.P.C. to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) Cr.P.C.
9. As far as the requirement of sanction being a precondition for ordering investigation under section 156(3) Cr.P.C., is concerned, the Hon'ble Apex Court in Anil Kumar & Ors. vs M.K. Aiyappa & Anr. reported in (2014) 1 Supreme Court Cases (Cri) 35, has laid down that:
"12. We may now examine whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage. Section 2(c) of the PC Act deals with the definition of the expression "public servant" and provides under Clauses (viii) and (xii) as under:
"(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty.
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority."
The relevant provision for sanction is given in Section 19(1) of the PC Act, which reads as under:
"19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under 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 removeable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
Section 19(3) of the PC Act also has some relevance; the operative portion of the same is extracted hereunder:
"Section 19(3) - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b) xxx xxx xxx
(c) xxx xxx xxx"
13. Learned senior counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).
14. Further, this Court in Criminal Appeal No. 257 of 2011 in the case of General Officer, Commanding v. CBI and opined as follows:
"Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that 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."
10. Thus, this is not a case, in which deemed sanction can be inferred. The learned lower court has rightly rejected the application of the revisionist under section 156(3) Cr.P.C.
11. In view of what has been indicated herein above, the criminal revision lacks merit and is accordingly dismissed.
Order Date :- 3.3.2016 Sazia