Allahabad High Court
Sudhir Kumar And Another vs State Of U.P. Thru. Addl. Chief Secy./ … on 30 June, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:36788-DB Court No. - 2 Case :- CRIMINAL MISC. WRIT PETITION No. - 5554 of 2025 Petitioner :- Sudhir Kumar And Another Respondent :- State Of U.P. Thru. Addl. Chief Secy./ Prin. Secy. Deptt. Of Home Lko. And Others Counsel for Petitioner :- Ganesh Kumar Gupta,Neeraj Kumar Rai Counsel for Respondent :- G.A. Hon'ble Alok Mathur,J.
Hon’ble Shree Prakash Singh,J.
Heard Shri Ganesh Kumar Gupta, learned counsel for the petitioners, learned A.G.A. on behalf of respondents.
Present petition has been filed with the following prayers :-
?(i) to issue a writ, order or direction in the nature of certiorari quashing the impugned FIR No.0197/2025, under sections – 166, 167, 506 IPC and Sections – 7, 11, 12 Prevention of Corruption Act, 1988, police station – Sandila dated 03.06.2025 as contained in Annexure No.1 to the writ petition.
(ii) to issue an order or direction to set aside the order dated 31.01.2025 passed by learned Chief Judicial Magistrate, Hardoi in Misc Case No.4382 of 2024 (Heera Lal vs. Sudhir Kumar and Others) by the learned Court of Chief Judicial Magistrate, District Hardoi as contained in Annexure No.2 to the writ petition.?
It has been submitted by the learned counsel for the petitioners that the petitioners are working as Kanoongo in villageMalaiya, pargana and Tehsil Sandila District Hardoi and according to the FIR it has been alleged that khata no.229 Gata No.538, 539, 580 and 597, were sought to be gifted in favour of the complainant and similarly another plot of land in khata no.228, Gata No.351 and 468 were sought to be gifted in favour of the brother of the complainant Vanshi Lal.
The said gift deeds were duly presented before the petitioner for the purpose of mutation to mutate the said land in favour of the informant and his brother. It is alleged that the petitioner had demanded Rs.10,000/- and due to the fact that the complainant and his brother could not give the amount as sought by the petitioner, the petitioner is alleged to have passed a wrong order in not mutating the said land in favour of the applicants.
When again an application was made for correction of previous order passed by him, the petitioner is alleged to have again sought Rs.10,000/- as illegal gratification and was told that only when the said amount is paid the land would be duly mutated.
When issue was raised before the higher authorities an order dated 27.02.2024 was passed directing the concerned authorities to duly mutate the said land in favour of the complainant and his brother.
It is alleged that despite the order dated 27.02.2024 having been passed by the higher authorities, the petitioner declined to mutate the said land in favour of the complainant and his brother until illegal gratification was paid.
It is in the aforesaid circumstances that the complainant has prayed to lodge FIR and when same was not lodged he has moved an application under section 173 (4) BNSS for registration of the FIR. It is on the said application that impugned FIR has been lodged which has been assailed before this Court.
Learned counsel for the petitioner has submitted that the order of the Magistrate dated 31.01.2025 by which the learned Magistrate has directed the registration of the FIR is itself arbitrary and in violation of the specific provisions of BNSS and most specifically as per Section 175 (4) BNSS no FIR could have been lodged and the order itself is liable to be set aside.
He has submitted that according to section 175 (4) of the BNSS in cases where allegations are levelled against public servant in course of dishcarge of his official duties then prior to direction of registration for FIR Magistrate is bound to receive a report from the superior of the said officer and it is only after considering the said report any order can be passed by him for registration of the FIR under section 175 (3) BNSS and by not following prescribed procedure under law the Magistrate has erred and consequently, no investigation can be done by such an arbitrary order and, accordingly, prayed for setting aside of the order dated 31.01.2025.
The second ground raised by the petitioner is that the sanction ought to have been obtained by the Magistrate prior to passing of any order under section 175 (3) of BNSS and on this account also the order is illegal and arbitrary.
Considering the first submission made by the petitioner, it is necessary to refer to the provisions of Section 175 of the BNSS.
Section 175 BNSS.
?Police Officer?s power to investigate cognizable case .- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIV: Provided that considering the nature and gravity of the offence, the Superintendent of Police to investigate the case.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate
(3) Any Magistrate empowered under section 210 may, after considering the application supported by an affidavit made under sub-section (4) of section 173, and after making in this regard by the police officer, order such an investigation as above mentioned.
(4) Any Magistrate empowered under section 210, may, upon receiving a complaint against a public servant arising in course of the discharge of his official duties, order investigation, subject to ?
(a) receiving a report containing facts and circumstances of the incident from the officer superior to him; and
(b) after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.?
Perusal of the aforesaid provisions clearly indicate the fact that any Magistrate who is empowered under section 210 BNSS, he upon receiving any complaint against public servant arising during the course of discharge of his duties may receive report from the officer superior to him.
Considering the aforesaid provisions along with Section 175 (3) of BNSS it is noticed that whenever an application is made for registration of the FIR the Magistrate concerned may call for police report and in case the complaint discloses an offence by a public servant during discharge of his duties it is open for him to obtain the report from his superior.
Considering the fact that the legislature has used the word ?may? in sub section 4 of Section175, it is clear that it is a discretion vested upon the Magistrate while exercising the power under section 175 (3) to seek such a report in case he wishes to clarify the situation as to whether the act alleged which has been termed as an offence by the complainant can be considered to be one falling under the discharge of the official duties or any other aspect on which any clarification is sought by him.
In case the Magistrate is of the opinion that the complaint and the statements recorded under section 223of the BNSS are correct then nothing restrains him from directing registration of the FIR in exercise of power under section 175 (3) of BNSS and he would not be bound to seek a police report or in case matter involves the public servant, any report from the superior.
Accordingly, considering the aforesaid facts, this Court is of the considered view that it is not mandatory for the Magistrate to seek a report from the superior officers against whom allegations have been made with regard to the act which has been conducted by him in discharge of his official duties.
Accordingly, we are not in agreement to the submissions advanced by the learned counsel for the petitioner and accordingly the same is rejected.
With regard to the second argument of the petitioner that sanction ought to have been taken prior to initiation of direction for lodging of the FIR, is an argument which we are not inclined to accept at the very outset.
In case of public servants the sanction is required under Section 19 of the Prevention of Corruption Act as well as Section 218 of the BNSSprior to taking cognizance. We notice that provision of Section 218 BNSS fall under Chapter 15 which provide conditionsrequisite for initiation of proceedings.
In support of his submissions, learned counsel for the revisionist has placed reliance on the judgment of Hon’ble Supreme Court in the case of Manju Surana Vs. Sunil Arora, (2018) 5 SCC 557, wherein the Court has considered the said issue and following observations were made :-
“8. Mr Prashant Bhushan, learned counsel appearing for the appellant sought to question the view taken in Anil Kumar [Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705] and in L. Narayana Swamy v. State of Karnataka [(2016) 9 SCC 598] following the earlier judgment. The substratum of the argument is that the requirement of prior sanction for prosecution against the public servant would arise only when cognizance is taken, while no such sanction was required at the stage of setting into motion an investigation under Section 156(3) CrPC. It was, thus, contended that the observations in these two judgments are per incuriam or in conflict with the long line of earlier judgments on the question as to when the cognizance can be stated to have been taken.
9. Mr Bhushan drew our attention to Section 19(1) of the PC Act, which reads as under:
“19. Previous sanction necessary for prosecution.?(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 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 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 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.”
He sought to emphasise that the bar is to the court taking “cognizance of an offence except with the previous sanction”.
10. We may next refer to Chapter XIV CrPC, which is under the heading “Conditions Requisite for Initiation of Proceedings”. Section 190 states as to when cognizance would be taken and is reproduced for convenience as under:
“190. Cognizance of offences by Magistrates.(1) Subject to the provisions of this Chapter, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence?
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the Second Class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.”
11. Section 197 CrPC under the same chapter prescribes a precondition of obtaining sanction before the court takes cognizance against a public servant. The relevant portion reads as under:
“197. Prosecution of Judges and public servants.?(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence 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, of the Central 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, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.”
12. Once cognizance is taken, the procedure is triggered off under Chapter XV with the heading “Complaints to Magistrates”. It would be suffice to reproduce Section 200 as under:
“200. Examination of complainant.-A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses –
(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.”
13. The Magistrate, if he thinks fit, may postpone the issue of process against the accused to inquire the case himself or direct an investigation post taking cognizance, as per Section 202, which is reproduced hereinunder:
“202. Postponement of issue of process.(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made –
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.”
14. Keeping in mind the aforesaid provisions, we now turn to Chapter XII with the heading “Information to the Police and Their Powers to Investigate”. Section 156 forms a part of this Chapter and reads as under:
“156. Police officer’s power to investigate cognizable case.?(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.”
The relevant provision is Section 156(3) CrPC where a Magistrate is empowered to make an order of investigation in terms of sub-sections (1) and (2).
15. It is, thus, the submission of Mr Prashant Bhushan that there 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 proceeding which needs prior sanction. We may also notice that in terms of sub-section (4) of Section 5 of the PC Act, for the proceedings before a Special Judge under the PC Act, the Special Judge shall be deemed to be a Magistrate.
16. In the aforesaid context, he referred to a catena of judgments. We have analysed those and some other cases dealing with the issue.
Judgments on the nature of proceedings being an inquiry under Section 156(3) CrPC
17. In R.R. Chari v. State of U.P. [1951 SCC 250] , a three-Judge Bench of this Court, in the inception years of this Court, referred to Gopal Marwari v. King Emperor [1943 SCC OnLine Pat 5 : AIR 1943 Pat 245] qua the observations that the word “cognizance” indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. This was different from initiation of proceedings. The word “cognizance” was somewhat of an indefinite import and perhaps not used exactly in the same sense. Thereafter it proceeded to notice the observations of Das Gupta, J. in Supt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee [1950 SCC OnLine Cal 49 : AIR 1950 Cal 437] where observations were made to the effect that what is taking cognizance has not been defined in CrPC, but it could be said that any Magistrate who has taken cognizance of any offence under Section 190(1)(a) CrPC must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter ? proceedings under Section 200 and thereafter under Section 202. However, when the Magistrate applies his mind, not for the purpose of proceeding under the subsequent sections of this Chapter, but for some other kind e.g. ordering investigation under Section 156(3) or issuing a search warrant for the purposes of the investigation, he could not be said to have taken cognizance of the offence. The Supreme Court gives its imprimatur to these observations.
18. In Gopal Das Sindhi v. State of Assam [AIR 1961 SC 986 (three-Judge Bench)], the decision in R.R. Chari v. State of U.P., 1951 SCC 250 was followed.
19. In Jamuna Singh v. Bhadai Shah (1964) 5 SCR 37 (three-Judge Bench), the decision in R.R. Chari v. State of U.P., 1951 SCC 250 was followed.
20. In Nirmaljit Singh Hoon v. State of W.B., (1973) 3 SCC 753 (three-Judge Bench), it was sought to be canvassed that the investigation by the police being one ordered by the Chief Presidency Magistrate under Section 156(3) CrPC, that investigation was part of the proceedings of the court. This plea was rejected inter alia on the ground that the police authorities have, under Sections 154 and 156 CrPC, a statutory right to investigate into a cognizable offence without requiring any sanction from a judicial authority. Secondly, for taking cognizance under Section 190(1)(a) CrPC, a Magistrate must not only have applied his mind but must have done so for purposes of proceeding under Section 200 and the provisions following that section. The application of mind only for ordering investigation under Section 156(3) or issuing a warrant for purposes of investigation could not be said to have taken cognizance of the offence.
21. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252 (three-Judge Bench), Mr Prashant Bhushan referred to the aforesaid judgment for analysis of Section 156(3) CrPC. In para 13, it has been observed that when a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. Only if he forms an opinion that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. Thereafter in paras 14 & 17, it has been observed as under:
“14. This raises the incidental question: What is meant by “taking cognizance of an offence” by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV to the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.
***
17. Section 156(3) occurs in Chapter XII, under the caption: “Information to the Police and their powers to investigate”; while Section 202 is in Chapter XV which bears the heading: “Of complaints to Magistrates”. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.”
(emphasis in original)
22. In Tula Ram v. Kishore Singh, (1977) 4 SCC 459 (two-Judge Bench), cited before us, it was observed that Sections 190 and 156(3) CrPC are mutually exclusive and work in totally different spheres. Thus, even if a Magistrate receives a complaint under Section 190, he can act under Section 156(3) provided that he does not take cognizance. Chapter XIV deals with post-cognizance stage while Chapter XII, so far as the Magistrate is concerned, deals with pre-cognizance stage, that is to say that even when a Magistrate starts acting under Section 190 and the provisions following, he cannot resort to Section 156(3). Thus, Section 202 would apply only in cases where the Magistrate has taken cognizance and chooses to inquire into the complaint either himself or through any other agency. Before proceeding to do so, there may be a situation where the Magistrate, before taking cognizance himself, chooses to order a pure and simple investigation under Section 156(3) CrPC.
23. In Srinivas Gundluri v. Sepco Electric Power Construction Corpn., (2010) 8 SCC 206 (two-Judge Bench), the Magistrate in the case had merely allowed the application filed by the complainant under Section 156(3) CrPC and sent the same along with its annexure for investigation by the police officer and that was held not to have amounted to having taken cognizance.
24. In Subramanian Swamy v. CBI, (2014) 8 SCC 682 (five-Judge Bench), it was observed that Section 156 CrPC enables an officer in charge of a police station to investigate a cognizable offence. Insofar as non-cognizable offences are concerned, it was found that the police officer by virtue of Section 155 CrPC can investigate it after obtaining appropriate orders from the Magistrate having power to try such case or commit the case for trial regardless of the status of the officer concerned. In view thereof, the scheme of Sections 155 and 156 CrPC was held to indicate that the local police may investigate a senior government officer without previous approval of the Central Government. The Constitution Bench while dealing with the inquiry and investigation under the PC Act held that there was no basis to classify the two sets of public servants differently on the ground that one set of officers is decision-making officers and not the other set of officers.
25. Despite the aforesaid catena of judgments, a different path has been traversed in two judgments of this Court where the offences alleged are under the PC Act read with IPC.
26. In Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 (two-Judge Bench), the Court proceeded to examine whether the Magistrate, while exercising his powers under Section 156(3) CrPC, could act in a mechanical or casual manner and go on with the complaint after getting the report. In that context, a reference was made to an earlier judgment in Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 case, where it was observed that there was a requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) CrPC. Thereafter the Bench proceeded to draw a conclusion that a Special Judge/Magistrate cannot refer the matter under Section 156(3) CrPC against a public servant without a valid sanction order.
27. The Bench further proceeded to examine whether the order directing investigation under Section 156(3) CrPC would amount to taking cognizance of the offence since a contention was raised that the expression “cognizance” appearing in Section 19(1) of the PC Act would have to be construed as post-cognizance stage and not pre-cognizance stage and therefore, the requirement of sanction does not arise prior to taking cognizance of the offences of the PC Act. Insofar as the expression “cognizance”, which appears in Section 197 CrPC was concerned, a reference was made to the judgment in State of U.P. v. Paras Nath Singh, (2009) 6 SCC 372. In that case it was observed that the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 CrPC and so far as the public servant was concerned this was clearly barred by Section 197 CrPC unless the sanction was obtained from the appropriate authority. After referring to certain other judgments on the issue of purport and meaning of the word “cognizance”, it was concluded that “cognizance” has a wider connotation and is not merely confined to the stage of taking cognizance of the offence.
28. The Bench proceeded to discuss Section 19(1) of the PC Act as also Section 19(3) of the PC Act, which reads as under:
“19. Previous sanction necessary for prosecution.-(1)-(2) * * *
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)?
(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.”
29. It was sought to be contended that the requirement of sanction was only procedural 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 sanction was not a mandatory requirement. In the absence of prior sanction, it was observed, that the Magistrate cannot order investigation against a public servant even while invoking power under Section 156(3) CrPC.
30. In L. Narayana Swamy v. State of Karnataka, (2016) 9 SCC 598 (two-Judge Bench), the judgment in Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 was followed. After discussing various other pronouncements, it was concluded that even while directing an inquiry under Section 156(3) CrPC, the Magistrate applies his judicial mind to the complaint and therefore, it would amount to taking cognizance of the matter.
31. Mr Tushar Mehta, learned Additional Solicitor General sought to canvas the view taken in the last two judgments referred to aforesaid to submit that application of mind was necessary to exercise power under Section 156(3) CrPC and that credibility of information was to be weighed before ordering investigation Ramdev Food Products (P) Ltd. v. State of Gujarat [(2015) 6 SCC 439]. It was, thus, submitted that allegations against a public servant under the PC Act offences are technical in nature and would require a higher evaluation standard and thus the Magistrates ought to apply their mind before ordering investigation against public servant. The consequences of starting investigation under Section 156(3) CrPC, it was submitted, would result in the police registering an FIR (Suresh Chand Jain v. State of M.P. [(2001) 2 SCC 628] and Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC 627]). Thus, a situation may arise where a Magistrate may exercise his power under Section 156(3) CrPC in a routine manner resulting in an FIR being registered against a public servant, who may have no role in the allegation made.
32. 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 Section 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 be some consequences to follow, were the Magistrate to act in a mechanical and mindless manner. That cannot be the test.
33. 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 PC Act, a different import has to be read qua the power to be exercised under Section 156(3) CrPC i.e. can it be said that on account of Section 19(1) of the PC Act, the scope of inquiry under Section 156(3) CrPC 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 the offences under the PC Act is a provision contained under Chapter XIV CrPC. Thus, whether such a purport can be imported into Chapter XII CrPC while directing an investigation under Section 156(3) CrPC, merely because a public servant would be involved, would beg an answer.
34. The apprehension expressed by the learned ASG possibly arises from the observations in Suresh Chand Jain v. State of M.P., (2001) 2 SCC 628 followed in Mohd. Yousuf v. Afaq Jahan, (2006) 1 SCC 627 . Thus, the observations are to the effect that even at a pre-cognizance stage under Section 156(3) CrPC, it is open to the Magistrate to direct the police to register an FIR and that even if the Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
35. The complete controversy referred to aforesaid and the conundrum arising in respect of the interplay of the PC Act offences read with CrPC is, thus, required to be settled by a larger Bench. The papers may be placed before the Hon’ble the Chief Justice of India for being placed before a Bench of appropriate strength.”
Accordingly, from the perusal of aforesaid judgment of the Apex Court in the case of Manju Surana (supra), relied upon by learned counsel for the revisionist, wherein the Apex Court relying upon catena of other judgments, has clearly held that sanction for prosecution would not be required at the pre cognizance stage.
Accordingly, by merely directing police investigation the Court has not initiated any proceedings against the accused and, hence, we are not in agreement in arguments raised by the petitioner that sanction ought to have been taken prior to any direction issued under section 175 (3) of the BNSS.
For the aforesaid reasons, petition is devoid of merits and is accordingly dismissed.
Order Date :- 30.6.2025
mks
(Shree Prakash Singh,J.) (Alok Mathur,J.)