Sanction a prerequisite in initiating an investigation
The government sanction, under section 19 of the Prevention of Corruption Act (PCA), is a prerequisite for a court in ordering an investigation under Section 156 (3) of the Code of Criminal Procedure (CrPC) on a private complaint, against a public servant, the High Court of Kerala states in C.V. Balan & Ors. v. State of Kerala & Ors.
No such complaint could be forwarded for investigation under Section 156(3) of CrPC in the absence of sanction granted by the competent authority under Section 19 of the PCA.
Brief facts of the case
There were four private complaints, filed before the Enquiry Commissioner & Special Judge, Kozhikode which alleged commission of offences punishable under sections 468, 471 and 120B of IPC r/w sections 7, 8, 10 and 13(1) of the Prevention of Corruption Act (PC Act).
The allegation in the complaints, as a whole, was that the petitioners along with other accused, had involved in a criminal conspiracy and, as a consequence of it put-up construction in wetlands unauthorizedly and illegally and in violation of the Kerala Building Rules. When direction was given to the petitioners to demolish the building, the corporation officials filed a false report stating that the building had been demolished, without demolishing it. The accused persons had committed forgery, falsification of documents and criminal misconduct.
Sanction needed to investigate u/s 156(3) CrPC
Earlier in this matter, the Enquiry Commissioner & Special Judge, Kozhikode, ordered for a preliminary enquiry report from the Vigilance and Anti-Corruption Bureau, which stated that the allegations in the complaints were not fully correct but there was laches, other than criminal offences, on the part of the officers of the corporation. The court below concluded that there were sufficient materials to show criminal misconduct on the part of the corporation officials and the creation of false documents in connivance with the accused persons 8 to 11.
High Court examined the need for sanction
Later, the High Court found that no court could take cognizance of an offence punishable under Sections 7, 11, 13, and 15 of PCA that have been alleged to be committed by a public servant, without obtaining the previous sanction of the competent authority, under the Section 19 (1) (a), (b) and (c) of the PCA.
SC says prior sanction necessary to investigate
The High Court judgement further pointed that a sanction under Section 19 of the PCA is necessary while ordering an investigation against a public servant invoking powers under Section 156(3) CrPC, as there is a plethora of judgements such as
and some others, which categorically state that prior sanction is a prerequisite to order for investigation.
Section 19 of PCA imposes sanction before taking cognisance
In fact, there is no prohibition either under the PCA or CrPC to start an investigation by lodging an FIR or through a court-initiated investigation under Section 156(3) CrPC.
It was the two-judge bench in Anil Kumar & Ors v M K Aiyappa & Anr unsettled the law on this subject and held that Section 19 of PCA applies at the threshold itself and therefore an application under Section 156(3) CrPC for investigation is not maintainable without obtaining prior sanction of the competent authority.
Two benches of the SC seek clarity on the need for sanction
However, in the case Manju Surana v Sunil Arora in 2018, and in Shamim Khan v Debashish Chakraborty and others in 2024, two SC benches seek the reference of a larger bench on the issue whether prior sanction is mandatory for a Magistrate to forward a complaint against a public servant for investigation as per Section 156(3) CrPC, while considering a private complaint under Section 19(1) of the P C Act, as stated earlier in Anil Kumar & Ors v M K Aiyappa & Anr, and L. Narayana Swamy v State of Karnataka & Ors, earlier.
Conclusion
The High Court of Kerala, relying on the apex court orders in force, concluded that the court below could not have forwarded the complaints under Section 156(3) CrPC for investigation without any sanction under Section 19(1) of the PCA obtained by the complainants.
In a private complaint, prior government sanction obtained under Section 19 (1) of the PCA is necessary while ordering an investigation against a public servant, under Section 156(3) CrPC, in an offence punishable under Sections 7, 11, 13, and 15 of PCA.
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