TMI Blog2016 (9) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... equired only at the time of taking cognizance which stage comes much after the investigation is ordered Under Section 156(3) of Code of Criminal Procedure at the stage of giving direction to investigate into the complaint, such a sanction is not required. The Respondent complainant filed a criminal revision petition there against Under Section 397 read with Section 401 Code of Criminal Procedure before the High Court. The Appellants then made an application seeking their impleadment as Respondents in the revision proceedings so that they could be heard in the matter. On 05.08.2005, the High Court dismissed that application. Against that order, appeal was heard by special leave. This Court set aside the order of the High Court permitting the Appellants to be impleaded in the revision proceedings. The Court took note of the provisions of Code of Criminal Procedure i.e. Section 202, which does not permit an accused person to intervene in the course of inquiry by the Magistrate. However, it was held that even while directing inquiry, the Magistrate applies his judicial mind on the complaint and, therefore, it would amount to taking cognizance of the matter - an order directing furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two Appellants are that after conducting spot inspection by accused No. 1 on 17.01.2003, first Appellant (accused No. 3) who was working as Tehsildar had recommended it on same day and thereafter second Appellant (accused No. 6) who was working as Assistant Commissioner had given an endorsement on the very next day to the effect that property is not the subject matter of acquisition. On this basis, it is alleged that these officials have abused their official position. Appeal dismissed. - Criminal Appeal Nos. 721 and 722 of 2016 - - - Dated:- 6-9-2016 - A.K. Sikri and N.V. Ramana, JJ. For the Appellant : K.V. Viswanathan, P.V. Shetty, Sr. Advs., Gautam S. Bharadwaj, Bellippa, Ashwani Kumar, Dhananjay Bhaskar, D.L. Chidananda and Gurudatta Ankolekar, Advs. For the Respondents : Basava Prabhu S. Patil, Sr. Adv., S. Joseph Aristotle, Priya Aristotle, Shivani Srivastava, Shailesh Madiyal and Chinmay Deshpande, Advs. JUDGMENT A.K. Sikri, J. 1. Before adverting to the question of law that has been raised in these appeals (which is common to both the cases), we would like to traverse through the facts and the background which has led to the filing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree dated April 08, 2003 came to be passed. On April 21, 2003, Mr. Parameshwara Reddy (with whom the first agreement to sell was entered into) sought for change of land use (though in respect of this very land accused No. 6 had filed a suit for specific performance). The then Deputy Commissioner accorded his permission for change of land use vide order dated June 17, 2003. After this conversion order, Mr. Parameshwara Reddy gifted the entire land measuring 17.25 acres in favour of his daughter, Smt. Gali Laxmi Aruna, w/o. Mr. Gali Janardhana Reddy vide gift deed dated March 21, 2006. It is alleged that accused No. 6 was fully aware of these facts. Notwithstanding the same, on the basis of the ex-parte decree of specific performance obtained by him, he filed execution petition and obtained the sale deed from the court in respect of the entire 27.25 acres of land. It was notwithstanding the fact that out of this 27.25 acres of land, in respect of which accused No. 6 obtained the sale deed, 17.25 acres was claimed by Mr. Parameshwara Reddy as well and has been gifted to his daughter and the remaining 10 acres of land had been acquired by the Government. Not only this, accused No. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter, since the Police had filed a final report, those Petitioners were at liberty to challenge the final report before the trial court. 5. According to the Appellants, this order was passed by the High Court on erroneous statement made by the counsel as neither the investigation was completed nor final report was filed in the court. Therefore, these Appellants filed another Criminal Petition No. 101017 of 2014 seeking quashing of the entire proceedings. In the petition, the grounds taken by the Appellants were that there was no allegation of any corrupt practice in the entire complaint insofar as they are concerned. It was further submitted that before directing further investigation Under Section 156(3) of Code of Criminal Procedure and taking cognizance of the complaint, the trial court should have satisfied itself that due sanction, as required Under Section 19 of the P.C. Act read with Section 190 of the Code of Criminal Procedure, has been obtained and since no such sanction was obtained, such an order for further investigation could not have been passed by the trial court. It may be mentioned that at the time of filing the complaint, the Appellants had been trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of any other person, of the authority competent to remove him from his office. 9. As is clear from the plain language of the said Section, the Court is precluded from taking cognizance of an offence under certain Sections mentioned in this provision if the prosecution is against the public servant, unless previous sanction of the Government (Central or State, as the case may be) has been obtained. What is relevant for our purposes is that this Section bars taking of cognizance of an offence. The question is whether it will cover within its sweep order directing investigation Under Section 156(3) of the Code of Criminal Procedure? High Court has taken the view, in the impugned judgment, that bar is from taking cognizance which would not apply at the stage of investigation by investigating officer. It is observed that sanction is required only after investigation and that too when, after investigation, it is found that there is substantial truth in the investigation report as to what amounts to cognizance of offence. The High Court has referred to Section 190 of the Code of Criminal Procedure which stipulates that cognizance of an offence is to be taken under three contingen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-B Indian Penal Code. The CJM, in exercise of his power Under Section 202 Code of Criminal Procedure by his order dated 18.06.2004 directed an enquiry to be made by a police inspector. The investigating officer investigated into the matter and submitted a compliant summary report opining that no offence was made out. The CJM on 16.04.2005 accepted that report and dismissed the complaint. The Respondent complainant filed a criminal revision petition there against Under Section 397 read with Section 401 Code of Criminal Procedure before the High Court. The Appellants then made an application seeking their impleadment as Respondents in the revision proceedings so that they could be heard in the matter. On 05.08.2005, the High Court dismissed that application. Against that order, appeal was heard by special leave. This Court set aside the order of the High Court permitting the Appellants to be impleaded in the revision proceedings. The Court took note of the provisions of Code of Criminal Procedure i.e. Section 202, which does not permit an accused person to intervene in the course of inquiry by the Magistrate. However, it was held that even while directing inquiry, the Magistrate app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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' makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and 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.' [Ed.: As observed in State of H.P. v. M.P. Gupta (2004) 2 SCC 349, 358, para 10 : 2004 SCC (Cri) 539.] 14. In State of W.B. v. Mohd. Khalid [(1995) 1 SCC 684 : 1995 SCC (Cri) 266], this Court has observed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers Under Section 156(3) Code of Criminal Procedure. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L and S) 200] and Subramanian Swamy [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L and S) 666] cases. Having regard to the ratio of the aforesaid judgment, we have no hesitation in answering the question of law, as formulated in para 7 above, in the negative. In other words, we hold that an order directing further investigation Under Section 156(3) of the Code of Criminal Procedure cannot be passed in the absence of valid sanction. 13. With this, we now address the second question i.e. whether the public servant not being in the same post, when the offence was allegedly committed, though continuing as a public servant, loses the protection Under Section 19(1) of the P.C. Act? Contention of the Respondents was that sanction Under Section 19 of the P.C. Act is not required as the Appellants have been transferred from the post which they were holding at the relevant time. In suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed; however, there will be no requirement of sanction if on the date when the cognizance is taken, they are not continuing to hold that very office. It was held that the relevant time is the date on which the cognizance is taken. If on that date, the Appellant was not a public servant, there was no question of any sanction. It was also held that even if he continues to be a public servant but in a different capacity or is holding a different office than the one which is alleged to have been abused, still there would be no question of sanction. This can be found from the reading of paragraphs 54 and 56 of the judgment which we reproduce below: 54. The learned Senior Counsel tried to support their argument on the basis of the theory of legal fiction . We do not see as to how the theory of legal fiction can work in this case. It may be that the Appellants in this case held more than one offices during the check period which they are alleged to have abused; however, there will be no question of any doubt if on the date when the cognizance is taken, they are not continuing to hold that very office. The relevant time, as held in S.A. Venkataraman v. State [AIR 1958 SC 107 : 1958 Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvant taking gratification (Section 7), obtaining valuable thing without consideration (Section 11), committing acts of criminal misconduct (Section 13) are acts performed under the colour of authority but which in reality are for the public servant's own pleasure or benefit. Sections 7, 10, 11, 13 and 15 apply to aforestated acts. Therefore, if a public servant in his subsequent position is not accused of any such criminal acts then there is no question of invoking the mischief rule. Protection to public servants Under Section 19(1)(a) has to be confined to the time-related criminal acts performed under the colour or authority for public servant's own pleasure or benefit as categorised Under Sections 7, 10, 11, 13 and 15. This is the principle behind the test propounded by this Court, namely, the test of abuse of office. 17. It clearly follows from the reading of the judgments in the cases of Abhay Singh Chautala and Prakash Singh Badal that if the public servant had abused entirely different office or offices than the one which he was holding on the date when cognizance was taken, there was no necessity of sanction Under Section 19 of the P.C. Act. It is also made clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o grant sanction is conferred on the authority competent to remove the public servant from his office and Section 6 requires a sanction before taking cognizance of offences committed by public servant. The offence would be committed by the public servant by misusing or abusing the power of office and it is from that office, the authority must be competent to remove him so as to be entitled to grant sanction. The removal would bring about cessation of interrelation between the office and abuse by the holder of the office. The link between power with opportunity to abuse and the holder of office would be severed by removal from office. Therefore, when a public servant is accused of an offence of taking gratification other than legal remuneration for doing or fore bearing to do an official act (Section 161 Indian Penal Code) or as a public servant abets offences punishable Under Sections 161 and 163 (Section 164 Indian Penal Code) or as public servant obtains a valuable thing without consideration from person concerned in any proceeding or business transacted by such public servant (Section 165 Indian Penal Code) or commits criminal misconduct as defined in Section 5 of the 1947 Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office. 18. In the case of the present Appellants, there was no question of the Appellants' getting any protection by a sanction. The High Court was absolutely right in relying on the decision in Prakash Singh Badal to hold that the ..... 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