Koshy John v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018/21ST AGRAHAYANA, 1940** **OP(Crl.).No. 98 of 2018** **AGAINST THE ORDER IN CRL.MP 548/2014 of COURT OF ENQUIRY COMMNR. & SPL. JUDGE, THRISSUR** ## **PETITIONER:** |||**MUHAMMED V.A**| |---|---|---| |||**S/O. AHAMMED, VALLIKKATTIL HOUSE,THAIKKATTUKARA**| |||**PO, ALUVA-683106**| |||**BY ADV. SRI.T.G.GOPINATHAN**| |**RESPONDENTS**<br>**:**||| |**1**||**STATE OF KERALA**| |||**REPRESENTED BY THE CHIEF SECRETARY,GOVERNMENT**| |||**SECRETARIAT, THIRUVANANTHAPURAM-695033**| |**2**||**THE DIRECTOR**| |||**VIGILANCE AND ANTI CORRUPTION**| |||**BUREAU,THIRUVANANTHAPURAM-695001**| |**3**||**THE PRINCIPAL SECRETARY**| |||**LOCAL SELF GOVERNMENT DEPARTMENT,GOVERNMENT**| |||**SECRETARIAT, THIRUVANANTHAPURAM-695001**| |**4**||**GRAMA VIKASANA COMMISSIONER**| |||**SWARAJ BHAVAN, NANTHANCODE,KAWDIAR PO,**| |||**THIRUVANANTHAPURAM-695003**| |**5**||**ANWAR SADATH**| |||**S/O. HASSAN, PANAKKAPARAMBIL HOUSE,KUNNUPURAM,**| |||**THAIKKATTUKARA P.O., ALUVA 683106**| |**6**||**SHAMMI SADATH**| |||**W/O. ANWAR SADATH, PANAKKAPARAMBIL HOUSE,**| |||**KUNNUPURAM, THAIKKATTUKARA P.O ALUVA 683106**| WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:2:- - **7 V.K.MOIDEENKUNJU FORMER CHOORNIKKARA GRAMA PANCHAYAT SECRETARY,THAIKATTUKARA P.O., ALUVA 683106** - **8 K.J. TOMY FORMER VAZHAKKULAM BLOCK DEVELOPMENT OFFICER, VAZHAKKULAM, ALUVA 683105** **9 A.K.SASI KUMAR FORMER VILLAGE EXTENSION OFFICER,CHOORNIKKARA GRAMA PANCHAYATH,THAIKATTUKARA P.O.,ALUVA 683106** - **10 K.A.ALIYAR** **S/O AHEMMAD PILLAI, FORMER PRESIDENT,CHOORNIKKARA GRAMA PANCHAYATH,KUVAKKATIL HOUSE, AMBATTUKAVU,THAIKKATTUKARA P.O., ALUVA 683106** **11 BEENA ALI WARD MEMBER VI, CHOORNIKKARA GRAMA PANCHAYAT,THACHAVALLATH HOUSE, THAIKATTUKARA P.O., ALUVA 683106** - **12 SHAHANA NOORDHEEN W/O. NOORDHEEN, FORMER ADS PRESIDENT WARD VI,CHOORNIKKAKARA GRAMA PANCHAYAT,THACHAVALLATH HOUSE, MATTUMMEL ROAD THAIKKATTUKARA P.O., ALUVA 683106** **BY ADVS. SRI.A.JAYASANKAR SRI.ASHWIN SETHUMADHAVAN SPL.PP (VIGILANCE & ANTI-CORRUPTION BUREAU ADV.A.RAJESH** **SRI.MANU GOVIND SMT.MEERA.B SRI.RAHUL SURENDRAN SRI.S.SABARINADH** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 24.10.2018, ALONG WITH WP(C).4389/2014 & conn.case, THE COURT ON 12.12.2018 DELIVERED THE FOLLOWING:** WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 12TH DAY OF DECEMBER 2018/21ST AGRAHAYANA, 1940** ## **WP(C).No. 4389 of 2014** ## **PETITIONER:** **KOSHY JOHN, EXECUTIVE ENGINEER (CIVIL) RETD., 'SANDEEP', 70-BHAVANA NAGAR, KADAPPAKADA, KOLLAM-691008.** **BY ADV. SRI.P.M.POULOSE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM-695033.** - **3 THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU, KOLLAM.691001** WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:4:- **4 *ADDL.R4 IMPLEADED.** **MR.A.K.JOSHI S/O.ALBEN, ALBENS, MANGAD (PO), KOLLAM - 691015. ADDL.R4 IMPLEADED AS PER ORDER DATED 25/03/2014 IN IA 4658/2014.** **BY ADVS. SRI. A RAJESH FOR R1 TO 3 SPL. P.P (VIGILANCE & ANTI-CORRUPTION BUREAU) SRI.P.ABDUL RAZAK SRI.R.NIKHIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2018, ALONG WITH OP(Crl.).98/2018 & conn.case, THE COURT ON 12.12.2018 DELIVERED THE FOLLOWING:** WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:5:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018/5TH AGRAHAYANA, 1940** ## **Crl.MC.No. 662 of 2018** **AGAINST THE ORDER IN CRMP 423/2016 of ENQ.COMMR. & SPL.JUDGE,THIRUVANANTHAPURAM DATED 15-09-2017** **CRIME NO. 6/2017 OF VACB, THIRUVANANTHAPURAM ,** ## **PETITIONER/ACCUSED NO.1:** **SHEELA.K. KOLLAN VILAKATH VEEDU,THANNIYAM, KALLARA P.O.,THIRUVANANTHAPURAM - 695 608** **BY ADV. SRI.S.SREEKUMAR (SR.)** ## **RESPONDENTS/COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF**| ||**KERALA, ERNAKULAM 682 031.**| |**2**|**THE DEPUTY SUPTERINTENDENT OF POLICE**| ||**VIGILANCE & ANTI CORRUPTION**| ||**BUREAU,THIRUVANANTHAPURAM 695 001.**| |**3**|**P.ANIKUTTAN**| ||**S/O.PURUSHOTHAMAN,SRIVILAS, KALLARA**| ||**P.O.,THIRUVANANTHAPURAM 695 608.**| ||**BY ADVS.**| ||**SRI.A.RAJESH, SPL.PP, VIGILANCE & ANTI-**| ||**CORRUPTION BUREAU**| ||**SRI.P.MURALEEDHARAN (THIRUVANANTHAPURAM)**| ||**SRI.V.P.PRASAD**| **THIS CRIMINAL MISC. CASE HAVING BEEN HEARD ON 24.10.2018 ALONG WITH OP(Crl.).98/2018 & CONN.CASE, THE COURT ON 12.12.2018 PASSED THE FOLLOWING:** WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:6:- **==> picture [48 x 11] intentionally omitted <==** ## **J U D G M E N T** ## _**Shaffique, J.**_ All these cases are referred to this Court to consider the question relating to the stage at which sanction under section 19(1) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act') is to be taken from the competent authority. 2. The short facts of the cases which we are dealing with are as under:- WP(C) No. 4389/2014 has been filed seeking to quash Exts.P1, P2 and P3 and to declare that Exts.P2 and P3 are contrary to Sec.19(1) of the PC Act. Ext.P1 in the case is a complaint dated 6/7/2009 submitted by the 4[th] respondent before the Enquiry Commissioner and Special Judge, Thiruvananthapuram filed under Sections 200 and 190(1)(a) of the Code of Criminal Procedure (Cr.P.C.) _inter alia_ alleging that the petitioner herein was involved in bribery and corruption and therefore he sought to take appropriate action against the petitioner. Pursuant to the said complaint, by Ext.P2 order dated 18/9/2009, the Enquiry Commissioner and Special Judge WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:7:- forwarded the complaint u/s 156(3) of Cr.P.C. to the Director, Vigilance and Anti-Corruption Bureau, Thiruvananthapuram for investigation and report. The Vigilance and Anti Corruption Bureau had registered FIR No.1/2011 on 24/3/2011, a copy of which is produced as Ext.P3, wherein, it is stated that on a preliminary enquiry conducted by the Vigilance and AntiCorruption Bureau, Kollam unit, it was revealed that one Sri.K.Sahadevan and the petitioner herein while working as Executive Engineer and Assistant Executive Engineer respectively at the office of the Public Works Department entered into a criminal conspiracy with the third accused Sri.K.K.Sunil Kumar in pursuance of which, accused Nos.1 and 2 facilitated the 3[rd] accused during the course of execution of the work to obtain undue pecuniary gain of `9,56,303/-, which amounts to offences punishable u/s 13(1)(d) r/w 13(2) of the PC Act and Sections 471 and 477A of I.P.C. The petitioner while challenging the aforesaid complaint, order and the FIR contended that the conduct of the investigation is contrary to the judgment in _**Anil Kumar v. M.S.Aiyappa**_ [2013 (4) KLT 125(SC)] wherein the Apex Court held that the Special Judge/Magistrate cannot refer a complaint WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:8:- for investigation u/s 156(3) of the Cr.P.C. against a public servant without a valid sanction order from the Government. 3. The learned Single Judge while hearing the matter, by order dated 17/12/2015, observed that the judgment in _**Anil Kumar**_ (supra), is directly in conflict with the view enunciated by four earlier three-Judge Bench rulings in _**R.R.Chari v. State of U.P.**_ (AIR 1951 SC 207), _**Gopal Das Sindhi v. State of Assam**_ (AIR 1961 SC 986), _**Jamuna Singh and Others v. Bhadai Shai**_ (AIR 1964 SC 1541) and _**Devarapalli Lakshminarayana Reddy v. V.Narayana Reddy**_ (AIR 1976 SC 1672). Thereafter, the learned Single Judge after referring to _**Sundeep Kumar Bafna v. State of Maharashtra**_ [2014) 2 KLT 809 (SC)] observed that when the High Courts are encountered with two or more mutually irreconcilable decisions of the Supreme Court, then the inviolable recourse is to apply the earliest view as the subsequent one would fall in the category of per incuriam. Accordingly, in para 20 of the order, questions have been formulated for consideration and it was felt that the matter be placed before a bench of two Judges to give a considered opinion on the said questions, which are as under:- WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:9:- _“(1) Whether the legal position adumbrated by two-Judge Bench ruling of the Apex Court in the case_ _**Anil Kumar & Ors. v.M.K.Aiyappa & Anr** . reported in (2013) 10 SCC 705, is directly in conflict with the considered view in that regard enunciated by the four previous three-Judge Bench rulings of the Apex Court in the cases_ _**R.R.Chari v. State of U.P** , reported in AIR 1951 SC 207, paras 9 & 10;_ _**Gopal Das Sindhi v. State of Assam** , reported in AIR 1961 SC 986, paragraph 7;_ _**Jamuna Singh & Ors. v. Bhadai Shah** , reported in AIR 1964 SC 1541, paras 8, 10 & 11;_ _**Devarapalli Lakshminarayana Reddy v. Narayana Reddy** , reported in (1976) 3 SCC 252=AIR 1976 SC 1672 paras 18 & 19 ?_ _(2) Whether the legal position settled in the four earlier three-Judge Bench rulings of the Apex Court in_ _**R.R.Chari v. State of U.P,** reported in AIR 1951 SC 207,_ _**Gopal Das Sindhi v. State of Assam** , reported in AIR 1961 SC 986,_ _**Jamuna Singh & Ors. v. Bhadai Shah** , reported in AIR 1964 SC 1541 and_ _**Devarapalli Lakshminarayana Reddy v. Narayana Reddy** , reported in (1976) 3 SCC 252=AIR 1976 SC 1672, is to be followed in the facts and circumstances of this case, more particularly, in the light of the ruling of the Apex Court in the case_ _**Sundeep Kumar Bafna v. State of Maharashtra** reported in 2014 (2) KLT 809 (SC) paragraph 15=AIR 2014 SC 1745 ? “_ 4. OP(Crl) No. 98/2018 has been filed to set aside Ext.P3 order by which the Enquiry Commissioner and Special Judge, Muvattupuzha, directed the complainant to produce sanction for an investigation to be conducted against the delinquent public servant. The short facts of the case would show that the WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:10:- petitioner filed Ext.P1 complaint before the Vigilance Court, Thrissur, seeking investigation into certain irregularities allegedly committed while implementing the Indira Avas Yojana, a scheme of Central Government and State Government in Choornikkara Grama Panchayat. As per directions issued by the Court, an enquiry was conducted by the Vigilance and Anti-Corruption Bureau, Thiruvananthapuram and Ext.P2 report had been filed directing departmental action against the 5[th] respondent Sri.A.K.Sasi Kumar, who was the former Village Extension Officer and Sri.K.J.Tomy, former Vazhakkulam Block Development Officer. The file was later transferred to the Enquiry Commissioner and Special Judge, Muvattupuzha. The learned Enquiry Commissioner and Special Judge by order dated 4/11/2014 (Ext.P3) observed that clear acts of misconducts had been committed in selecting the 2[nd] accused and excluding the legitimate claim of the complainant and therefore an investigation is required to be ordered, but, it could be done only after getting sanction. 5. The petitioner's contention is that for initiating an enquiry against a public servant for conducting any investigation, no prior sanction is required in the matter. When this matter came up for WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:11:- hearing before the learned Single Judge, by order dated 28/5/2018, the matter was directed to be placed before the Division Bench in view of the pendency of similar matters. 6. Crl.M.C No.662/2018 has been filed by the first accused in FIR VC No.6/2017 of the Trivandrum Unit of Vigilance and AntiCorruption Bureau. In this case also, the contention urged is that FIR had been registered against the public servant. In the FIR which is produced as Annexure C, the allegation is that the petitioner and others have committed offences u/s 13(1) (d)(i) & (ii) r/w S.13(2) of the P.C. Act and S.167 and 34 of I.P.C. The contention urged is that the FIR does not disclose any offence and is only an abuse of process of law. It is further contended that in the quick verification report, it was concluded that _prima facie_ no cognizable offence had been made out. But the Court below after conducting a roving enquiry concluded that a _prima facie_ offence had been made out, which was totally unwarranted. When the above matter came up for hearing before the learned Single Judge, it was observed that since similar matters are pending before the Division Bench, this matter also has to be placed before the Division Bench. WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:12:- 7. We heard the learned counsel appearing for the petitioners and the learned Public Prosecutor appearing on behalf of the respondents. 8. The learned Senior counsel Sri.S.Sreekumar had brought to our notice an amendment made to the P.C. Act w.e.f. 26/7/2018 as per Prevention of Corruption (Amendment) Act, 2018. S.17-A has been inserted which reads as under:- _**“17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.** (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval—_ _(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;_ _(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;_ _(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:_ WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:13:- _Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:_ _Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.”_ 9. Similarly, the provision relating to sanction u/s 19 of the principal Act has been amended. S.19(1) reads as under:- _**“19.Previous sanction necessary for prosecution** (1) No court shall take cognizance of an offence punishable under section 7, 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, or as the case may be, was at the time of commission of the alleged offence employed] in connection with the affairs of the Union 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, or as the case may be, was at the time of commission of the alleged offence employed], in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;_ _(c) in the case of any other person, of the authority competent to remove him from his office._ _Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate_ WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:14:- _Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the Court of any of the offences specified in this sub-section, unless-_ _(i) such person has filed a complaint in a competent Court about the alleged offences for which the public servant is sought to be prosecuted; and_ _(ii) the Court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:”_ _Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant: Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:_ _Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month;_ _Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary._ _Explanation: For the purposes of sub-section (1), the_ WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:15:- _expression “public servant” includes such person-_ - _(a) who has ceased to hold the office during which the offence is alleged to have been committed; or_ _(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.”_ 10. In fact, after the order of reference, the Apex Court had occasion to consider a similar issue in _**Manjju Surana v. Sunil Arora and Others**_ (2018 (2) KLT 315). The question that was considered was whether prior sanction for prosecution against a public servant is required before setting in motion even the investigative process u/s 156(3) of the Cr.P.C. After considering the various judgments including _**R.R.Chari**_ (supra), _**Gopal Das Sindhi**_ (supra), _**Jamuna Singh**_ (supra) _**Nirmaljit Singh Hoon v. Sate of West Bengal**_ [(1973) 3 SCC 753], _**Devarapalli Lakshminarayana Reddy**_ (supra) and also _**Anil Kumar**_ (supra), directed the matter to be placed before a larger Bench and it was held at paragraphs 33 to 36 as under:- _“33. We have examined the rival contentions and do find a divergence of opinion, which ought to be settled by a larger Bench. There is no doubt that even at the stage of S.156(3), while directing an investigation, there has to be an application of mind by the Magistrate. Thus, it may not be an acceptable proposition to contend that there would_ WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:16:- _be some consequences to follow were the Magistrate to act in a mechanical and mindless manner. That cannot be the test._ _34. The catena of judgments on the issue as to the scope and power of direction by a Magistrate under Chapters XII & XIV is well established. Thus, the question would be whether in cases of the P.C.Act, a different import has to be read qua the power to be exercised under S.156(3) of the Cr.P.C., i.e., can it be said that on account of S.19(1) of the P.C.Act, the scope of inquiry under S.156(3) of the Cr.P.C. can be said to be one of taking 'cognizance' thereby requiring the prior sanction in case of a public servant? It is trite to say that prior sanction to prosecute a public servant for offences under the P.C. Act is a provision contained under Chapter XIV of the Cr.P.C. . Thus, whether such a purport can be imported into Chapter XII of the Cr.P.C. while directing an investigation under S.156(3) of the Cr.P.C., merely because a public servant would be involved, would beg an answer._ _35. The apprehension expressed by the learned ASG possibly arises from the observations in Suresh Chand Jain v. State of Madhya Pradesh (supra) followed inMohd. Yousuf v. Afaq Jahan (supra). Thus, the observations are to the effect that even at a pre-cognizance stage under S.156(3) of the Cr.P.C., it is open to the Magistrate to direct the police to register an F.I.R. and that even if the Magistrate does not say in so many words while directing investigation under S.156(3) of the Code that an F.I.R. should be registered, it is the duty of the officer in charge of the police station to register the F.I.R. regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII_ WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:17:- ## _of the Code only thereafter._ _36. The complete controversy referred to aforesaid and the conundrum arising in respect of the interplay of the P.C. Act offences read with the Cr.P.C. is, thus, required to be settled by a larger Bench.”_ 11. Therefore, the substantial issue which has been referred is now pending before a larger Bench of the Apex Court for decision on the basis of the judgment in _**Manjju Surana**_ (supra). 12. In fact, in Crl.M.C No.662/18, no ground relating to obtaining a prior sanction for investigation had been taken though it is argued so by the learned counsel for the petitioner. In OP(Crl) No.98/2018, the Vigilance Court had directed production of the sanction order for further investigation for directing FIR to be registered which is impugned by the complainant and in WP(C) No. 4389/2014, FIR has already been registered. 13. As far as the cases on hand are concerned, what should be the method to be adopted until a final decision is taken in _**Manjju Surana**_ (supra) requires to be addressed especially in the light of the detailed reference order in WP(C) No. 4389/14, which requires to be answered. 14. The Apex Court in _**Manjju Surana**_ (supra) after having WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:18:- referred to the earlier three-Judge Bench judgments already referred above had further placing reliance on the judgments in _**Ramdev Food Products (P) Ltd. v. State of Gujarat**_ [(2015) 6 SCC 439], _**Suresh Chand Jain v. State of Madhya Pradesh**_ [(2001) 2 SCC 628] and _**Mohammed Yousuf v. Afaq Jahan**_ [(2006) 1 SCC 627] had observed that a situation may arise where a Magistrate may exercise his power u/s 156(3) of Cr.P.C in a routine manner resulting in an FIR being registered against a public servant, who may have no role in the allegation made. Therefore, in _**Manjju Surana**_ (supra) itself, despite having taken note of the earlier three-Judge Bench judgments, the view expressed in _**Anil Kumar**_ (supra) was not found to be per incuriam on account of other judgments which indicated that there should be application of mind by the Magistrate while exercising power u/s 156(3) of Cr.P.C and also the consequences for not exercising such power properly when a complaint is being filed against a public servant. It is in the said background the Apex Court in _**Manjju Surana**_ (supra) observed that even at the stage of S.156(3), while directing an investigation, there has to be an application of mind by the Magistrate. WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:19:- 15. In _**Bhushan Kumar v. State (NCT of Delhi)**_ [(2012) 5 SCC 424], it has been held that taking cognizance indicates the point where a Court or a Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence said to have been committed. S.19 (1) of PC Act provides that “ No Court shall take cognizance”. Therefore, ultimately the question is regarding the meaning of the word “cognizance” and as already mentioned, in _**Anil Kumar**_ (supra), the Apex Court held that the word “cognizance” has a wider connotation and not merely confined to the stage of taking cognizance of the offence. It was further observed in para 10 that “ _When a Special Judge refers a complaint for investigation u/s 156(3) Cr.P.C. obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with postcognizance stage. When a Special judge takes cognizance of the offence on a complaint presented u/s 200 Cr.P.C., and next step to be taken is to follow up u/s 202 Cr.P.C. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage”._ Having observed so, in para 11, it is held as under:- WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:20:- _“11. A Special Judge is deemed to be a Magistrate under S.5(4) of the P.C. Act and, therefore, clothed with all the magisterial 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 S.190 Cr.P.C. or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under S.190, may direct an investigation under S.156(3) Cr.P.C. The Magistrate, who is empowered under S.190 to take cognizance, alone has the power to refer a private complaint for police investigation under S.156(3) Cr.P.C.”_ 16. Thereafter, after placing reliance on _**State of U.P. v. Paras Nath Singh**_ [(2009) 6 SCC 372] and _**Subramanian Swamy v. Manmohan Singh**_ [(2012) 3 SCC 64], it has been held that, the Magistrate cannot order investigation against a public servant while invoking powers u/s 156(3) Cr.P.C. without previous sanction from the competent authority. 17. In the result, until a final decision is taken in the reference in _**Manjju Surana**_ (supra), the dictum laid down in _**Anil Kumar**_ (supra) holds the field. Accordingly, the following direction is issued in Crl.M.C.No.662/18 and WP(C) No.4389/14 and OP(Crl) No.98/18 are disposed of as under:- (i) In regard to Crl.M.C. No.662/18, further investigation WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:21:- into the crime shall be conducted after obtaining sanction from the competent authority. Other contentions raised by the petitioner shall be considered by the learned Single Judge, for which the matter is remitted back for further hearing. Registry shall place the matter before the learned Single Judge. (ii) WP(C) No. 4389/2014:This is a case where the investigation was conducted without obtaining sanction. Since law in this regard is yet to be settled in _**Manjju Surana**_ (supra), it is only appropriate that the prosecuting agency may proceed with further investigation/prosecution after obtaining sanction from the competent authority. (iii) OP(Crl) No. 98/18:In so far as Ext.P3 is in terms with the judgment in _**Anil Kumar**_ (supra), the impugned order is justifiable and accordingly this OP is dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** **Sd/-** ## **P.SOMARAJAN** Rp //True copy **JUDGE** PS to Judge WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:22:- ## **APPENDIX OF OP(Crl.) 98/2018** **PETITIONER'S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE PRIVATE COMPLAINT BEARING CMP NO.548/2014 DATED 27.3.2014** **EXHIBIT P2: TRUE COPY OF THE ENQUIRY REPORT SUBMITTED ON 7/7/2014 BY THE DEPUTY SUPDT. OF POLICE, VACB, ERNAKULAM UNIT EXHIBIT P3: ORDER DATED 4/11/2014 OF THE HON'BLE VIGILANCE COURT, THRISSUR EXHIBIT P4: TRUE COPY OF THE VIGILANCE ENQUIRY REPORT NO.VE3/2010 CRE DATED 31/1/2011.** WP(C) No.4389/14, OP(Crl) No.98/18 & Crl.M.C.No.662/18 -:23:- ## **APPENDIX OF WP(C) No.4389/14** ## **PETITIONER'S/S EXHIBITS:** **EXT.P1 TRUE COPY OF THE COMPLAINT DATED 6.7.2009.** **EXT.P1(a) TRUE COPY OF THE AFFIDAVIT DATED 31.8.2009 PRODUCED AS ANNEXURE TO EXT.P1 COMPLAINT DT 6.7.2009.** **EXT.P2 TRUE COPY OF THE ORDER PASSED IN CMP 1314/2009 DATED 18.9.2009 PASSED BY THE LEARNED ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM. EXT.P3 TRUE COPY OF THE FIRST INFORMATION REPORT NO.1/2011 DATED 24.3.2011.** **RESPONDENT'S EXHIBITS** **ANNEXURE R3(a): TRUE COPY OF THE JUDGMENT IN WPC 2186/2013 DATED 19.7.2013.** Rp //True Copy// PS to Judge