In a very significant development pertaining to public servants, the Calcutta High Court has in a recent, refreshing and robust judgment titled Dr Nazrul Islam vs Basudeb Banerjee & Ors. in CRR 625 of 2016 delivered as recently as on January 25, 2022 minced just no words to state explicitly that a prior sanction for prosecuting public servants is required before setting in motion even the investigative process under Section 156(3) of the Code of Criminal Procedure (CrPC). It must be mentioned here that the Court was adjudicating upon an appeal that was moved by former IPS officer Nazrul Islam seeking the initiation of criminal proceedings against Chief Minister Mamata Banerjee and other top officials of the State for purportedly forging a Supreme Court verdict in order to deprive him of his promotion. While striking the right chord, Justice Tirthankar Ghosh observed forthrightly that the provision of Section 197 CrPC which prescribes for a prior sanction has been incorporated in order to enable public servants to discharge their duties without any fear or favour and thus must be complied with before initiating investigation.
To start with, the single Judge Bench of Justice Tirthankar Ghosh of Calcutta High Court sets the ball rolling by first and foremost putting forth in the opening para of this judgment that, “The present revisional application has been preferred against the order dated 27.09.2013 passed by the learned Chief Metropolitan Magistrate, Calcutta, in connection with case no. C/31586/13.”
While continuing in the same vein, the Bench then puts forth that, “By the said order the learned Chief Metropolitan Magistrate was pleased to reject the application under Section 156(3) of Code Criminal Procedure filed at the instance of the petitioner, wherein the offences referred to were under Sections 166/167/218/219/463/464/465/466/471 of the Indian Penal Code, allegedly being committed by the opposite parties namely; (i) Basudeb Banerjee, Home Secretary, Govt. Of West Bengal; (ii) A. Sengupta, WBCS (Exe), Joint Secretary, Vigilance Cell, P&AR Department, Govt. Of West Bengal; (iii) Sanjay Mitra, Chief Secretary, Govt. Of West Bengal; (iv) Mamata Banerjee, Chief Minister and Minister in charge of Home Department and P&AR Department, Govt. Of West Bengal; (v) S.N. Haque, Additional Chief Secretary, ARD Department, Govt. Of West Bengal; (vi) Naparajit Mukherjee, DG&IGP WB Police Directorate. The learned Magistrate was pleased to observe that no offence under the said Sections were committed by the opposite parties and also observed that even if it is presumed that the offences were committed sanction would be required under Section 197 of the Code of Criminal Procedure.”
Of course, the Bench then states that, “The petitioner being aggrieved approached this Court against the order passed by the learned Magistrate. The first contention of the petitioner is that the substantive offences so alleged were committed by the opposite parties and for the purpose of investigation no sanction is required. In order to substantiate his argument the petitioner contended that in this case the opposite parties/accused entered into criminal conspiracy, prepared incorrect documents, prepared incorrect translation, forged the contents of his book, forged the Supreme Court judgment and used them as genuine for injuring him which by no stretch of imagination can be said to be work done in discharge of their official duties.”
No doubt, the Bench then also rightly observes that, “On an overall appreciation of the points canvassed by both the sides the issues which are required to be dealt with are:
a) Whether the allegations made in the application under Section 156(3) of the Code of Criminal Procedure taken in its entirety makes out any offence for investigation;
b) Whether a valid sanction is required prior to an order of investigation being passed under Section 156(3) of the Code of Criminal Procedure against public servants;
c) Lastly if an issue has been referred to a Larger Bench of the Hon’ble Supreme Court by way of a reference what would be the consequences in respect of pending proceedings.”
Be it noted, the Bench then points out that, “So far as the issue of sanction is concerned petitioner from the inception emphasized that it cannot be a duty of a public servant to commit forgery in discharge of his official duty, to that effect petitioner relied upon the following judgments of the Hon’ble Supreme Court, P.K. Pradhan –Vs. – State of Sikkim, (2001)6 SCC 704; State of H.P. –Vs.– M.P. Gupta, (2004) 2 SCC 349; Choudhury Parveen Sultana –Vs.– State of W.B. & Anr., (2009) 3 SCC 398; Inspector of Police & Anr.–Vs.–Battenapatla VenkataRatnam & Anr. (2015) 13 SCC 87; Punjab State Warehousing Corporation–Vs.–Bhushan Chander & Anr., (2016) 13 SCC 44, wherein it has been settled that corruption or any illegal act cannot be done in discharge of official duty and as such sanction may not be warranted in such cases.”
Furthermore, the Bench then hastens to add that, “In Baijnath –Vs.– State of Madhya Pradesh, AIR 1966 SC 220 it was observed: “It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.”
Most significantly, the Bench then holds that, “The Hon’ble Supreme Court while laying down the ratio relating to requirement of sanction prior to an order being passed under Section 156(3) of the Code of Criminal Procedure in respect of public servants interpreted the word ‘cognizance’ appearing in the Code of Criminal Procedure and to that effect it has been held that there is a mandatory character of the protection afforded to a public servant and the word ‘cognizance’ has a wider connotation and is not merely confined to the stage of taking cognizance under Section 190 of the Code of Criminal Procedure. The following paragraphs which are relevant for consideration on the issue in Anil Kumar (supra) are referred as follows:
“11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case [(2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.
12. We will now 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 will have to be construed as post-cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act.
13. The expression “cognizance” which appears in Section 197 CrPC came up for consideration before a three-Judge Bench of this Court in State of U.P. v. Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200] , and this Court expressed the following view: (SCC pp. 375, para 6)
“6. … ‘10. … And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if 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 follows:
“13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.” [Ed.: As considered in State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, 734, para 13 : (2006) 3 SCC (Cri) 179.]
The meaning of the said expression was also considered by this Court in Subramanian Swamy case [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .
15. The judgments referred to hereinabove clearly indicate that the word “cognizance” has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) CrPC, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 CrPC and the next step to be taken is to follow up under Section 202 CrPC. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage.
16. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC 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 Section 190 CrPC or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) CrPC. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) CrPC.
21. The learned Senior Counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) CrPC. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200] and Subramanian Swamy [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] cases.”
Thus, it has been categorically observed by the Hon’ble Supreme Court that if it is noticed there was no previous sanction the Magistrate cannot order investigation against the public servant while invoking powers under Section 156(3) of Cr.P.C. This issue felt for consideration in L. Narayana Swamy (supra) case and in paragraph 16 of the said judgment after taking into account the observations, finding, ratio of Anil Kumar (supra) it has been held “In other words be held that an order directing further investigation under Section 156(3) of Cr.P.C. cannot be passed in the absence of valid sanction.” The aforesaid two judgments has settled the ratio in respect of valid sanction and an application under Section 156(3) Cr.P.C. The subsequent judgment in Manju Surana (supra) case has referred the issue to a Larger Bench but did not declare the ratio laid down in the earlier two judgments as either per incuriam or a bad law. To that extent the submission of the learned Advocate General that an issue which could not be decided subsequently by the Hon’ble Supreme Court cannot be decided by a High Court on the mere asking of the petitioner, cannot be brushed aside. The submission of the learned Advocate General that in case a reference has been made on a point of law then the last of the judgment which is authority on the point would be valid is the correct proposition to be followed by this Court, as was held in M.S. Bhati –Vs. – National Insurance Company Ltd., (2019) 12 SCC 248; P. Sudhakar Rao & Ors. –Vs. – U. Govinda Rao & Ors, (2013) 8 SCC 693; Ashoke Sadarangani & Anr. –Vs. – Union of India and Ors., (2012) 11 SCC 321; Harbhajan Singh & Anr. –Vs. – State of Punjab & Anr., (2009) 13 SCC 608.”
For sake of clarity, the Bench then also added that, “Having regard to the subject matter by way of which the petitioner has attempted to invoke the provisions of Section 156(3) of the Code of Criminal Procedure against the public servants this Court is of the opinion that as the provision of Section 197 of the Code of Criminal Procedure has been incorporated in the statute, the same has been for a meaningful purpose of allowing the public servants to discharge their duties without fear or favour or without any anticipation of being harassed because of the rigours of law. Therefore, ordinarily a valid sanction would be required in a proceeding where the provisions of Section 156(3) Cr.P.C. are invoked against public servants. However, in this case substantive offences as alleged have not been made out, so the issue of sanction is an additional consideration.”
Finally, the Bench then holds that, “Accordingly there is no illegality in the order dated 27.09.2013 passed by the learned Chief Metropolitan Magistrate, Calcutta and as such no interference is called for. Hence, the Revisional Application fails. Thus, CRR 625 of 2016 is dismissed. Pending application, if any, is consequently disposed of. Department is directed to communicate this order to the Ld. Trial Court and send the LCR forthwith to the Court below. All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court. Urgent Xerox certified photocopy of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.”
In sum, the Calcutta High Court thus makes it indubitably clear that prior sanction is required for referring a complaint against public servants for investigation under Section 156(3) of CrPC. Without obtaining prior sanction no complaint against public servant can be proceeded with. No denying it!
Sanjeev Sirohi