MANJU SURANA V/S SUNIL ARORA & OTHERS
Para 2. The question of law sought to be raised in the appeal is as to whether prior sanction for prosecution qua allegation of corruption in respect of public servant is required before setting in motion even the investigative process under section 156(3) of the CRPC.
Para 5. The special judge closed the complaint in terms of order dated 4th Feb. 2014 on account of the fact that the accused persons arrayed as respondents are either a public servant or have remained as a public servant and no prior sanction has been granted by the competent authority under section 19 of the PC Act read section 197 of the CRPC. To support this conclusion reliance was placed on the judgment of this Court in Anil Kumar vs. M.K.Aiyappa opined that no complaint could be forwarded for investigation under section 156(3) of the CRPC nor could nay proceeding be initiated under section 202 of the CRPC in the absence of such sanction. It was thus observed that further proceeding in the case would be conducted on the filing of the sanction.
Para 16. It is thus the submission of Mr. Prashant Bhushan that here is a distinction between the investigation carried out at pre cognizance stage, which would not face the requirement of a prior sanction qua a public servant, as against a post cognizance proceedings which needs prior sanction. We may also notice that in terms of sub-section (4) of section 5 of the PC Act, the special judge shall be deemed to be a magistrate.
Para 30. It was sought to contend that the requirement of sanction was an only procedure in nature and hence directory or else section 19(3) of the PC act would be rendered otiose. This contention was not found acceptable as sub-section (3) of section 19 of the PC act had an object to achieve, which applied only in circumstances where a special judge had already rendered a finding, sentence, or order. This would not mean that the requirement to obtain a sanction was not a mandatory requirement. In the absence of prior sanctions, it was observed, that the magistrate cannot order investigation against a public servant even while invoking power under section 156(3) of the CRPC.
Hon’ble Supreme Court has held in L. NARAYANA SWAMI V/S STATE OF KARNATAKA that sanctions under the P.C. Act are a pre-condition for ordering investigation against a public servant U/S 156(3) of the Cr.P.C. at pre cognizance stage.