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Showing contexts for: SUBRAMANIAN SWAMY in Sri B V Acharya S/O Late Ramachandra ... vs Sri N Venkateshaiah on 3 August, 2012Matching Fragments
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.
31. The submission therefore made is that the impugned order of the learned Special Judge does not call for any interference by this court under Articles 226 and 227 of the Constitution of India or under Section 482 of the Cr.P.C.
32. Concerning the decision of the Apex Court in Subramanian Swamy's case on which reliance is placed by the learned senior counsel for the petitioner, the submission made by learned counsel Sri Shivananda Raj is that, the Apex Court was seized with the question as to the time within which sanction order has to be passed and, therefore, the said decision has no application to the case on hand and hence, the petition be dismissed.
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 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:
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 of 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.