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Sanction for prosecution – Is it a pre-requisite for referring the matter for investigation u/s 154 of Crpc.

Public servants, by their very office, are treated to be a separate class in application of laws. They discharge public duties and as such are not be exposed for vexatious criminal actions, least public work becomes a casualty. It is for this reason, in several statutes a protection is created for such public servants. The protection is provided in the nature of prior ‘Sanction for Prosecution’ of a public servant and the power is granted to an authority who is empowered to remove such public servant from his office.  For the present write up, sanction for prosecution as provided under Prevention of Corruption Act, 1988 alone is taken.   

1. The Scope & Object of Sanction For Prosecution of a Public Servant.

1.1 The Concept of Sanction for Prosecution finds its place in several statutes enacted by the Parliament as well as the State Legislature. The Public Servants who occupy various public posts are given this protection from exposing themselves to vexatious criminal prosecutions. 

1.2 The requirement of Sanction to Prosecute any Public Servant for offences under Prevention of Corruption Act, 1988 was provided for in Section 19 of the Act. As it is originally stood, the protection under Section 19 was available to such Public Servant while in service only. Whereas, Section 197 of CrPC covered Public Servants during their service and after their retirement as well. Section 19 came to be amended by Amendment Act of 2018 specifying that the aspect of protection would now extend to the Public Servants even after they demitting such public office. This clearly signifies the true intention of the framers of law being, protection of sanction must be available to public servants irrespective of whether they are in service or have retired. The focal point being safeguarding the persons who are discharging public functions.

1.3 The proviso to the Amended Section 19 prescribes the mode and manner in which a request for grant of sanction can be made. The said proviso starts with the words – “No person can request for sanction…”. The proviso is thus negatively worded prescribing that no other person except a person connected with the Law Enforcing/Investigating Agency can seek sanction. The proviso further stipulates that in order to make a request for grant of sanction by a Private Person/Complainant there has to be a complaint which has been filed before the Competent Court and the said Complaint has not been dismissed under Section 203 of CrPC and further that the court has directed such Complainant to obtain Sanction for Prosecution to proceed further in the case. All these embargoes, conditions and stipulations demonstrate that the law makers in their wisdom have thought it fit to discourage Private Complainants from hoisting criminal cases against the public servants. 

1.4 The aspect of Sanction is of paramount importance and touches upon the very jurisdiction of the Court. The object being protection to the Public Servant, the requirement of Sanction at any stage of the criminal case cannot be diluted or dispensed with. 

2. Requirement Of Sanction – At What Stage/s ?

2.1 Sanction is a prohibition upon the Court and not on the Complainant. Whenever the Court is called upon to look into any allegation of commission of offences under the Prevention of Corruption Act, 1988, or certain offences under Indian Penal Code concerning the Public Servants, Section 19 of the Prevention of Corruption Act, 1988 as well as Section 197 of CrPC makes it mandatory upon the Court to assume jurisdiction only upon there being a valid Sanction for Prosecuting such public servant. In other words, in the absence of Sanction, Court would not have the requisite jurisdiction to proceed in the matter. 

2.2 Section 19 of Prevention of Corruption Act, 1988 as well as Section 197 of CrPC clearly prescribes that no Court shall take cognizance of the offences without a valid Sanction. This bar is imposed by the statute ‘At the time of taking Cognizance’.

2.3 The proviso of amended Section 19 of Prevention Of Corruption Act, 1988 in respect of a Private Complaint now makes it mandatory to direct the Complainant to obtain Sanction from Competent Authority in case such Complaint has not been dismissed under Section 203 of CrPC. This means that in respect of a Private Complaint the Court can take cognizance, record sworn statement of the Complainant and Witnesses if any, apply its mind to all the materials before it : and in case the court finds that the Complaint need not be dismissed under Section 203 of CrPC, as it makes out sufficient grounds to proceed further, the Court shall stop at that stage and direct the complainant to obtain sanction for proceeding further in the matter. In other words, in this scenario the sanction for prosecution is necessary even ‘After taking of cognizance’ but before proceeding further under section 204 of Crpc ie. before summoning of the accused person/s. 

2.4 Another scenario wherein the Court is called upon to look into the offences committed by a Public Servant is when a Private Complaint is filed with a request to refer the matter for investigation under Section 156(3) of CrPC. At this stage the Court is applying its mind only to refer the matter for investigation. However, the application of judicial mind is nevertheless a mandatory consideration. As held by the Hon’ble Apex Court in Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705, no court can refer a Private Complaint for Investigation under Section 156(3) of CrPC unless such Complaint is accompanied with a valid Sanction Order. This scenario though does not come out of any statute nevertheless is equally applicable and binding on all courts within the territory of India as prescribed under Article 141 of Constitution of India. What it essentially means is, that even for a reference under Section 156(3) of CrPC the requirement of sanction is mandatory and therefore sanction is needed even ‘Before the stage of cognizance’. 

2.5 As could be seen from the above, sanction for prosecution is mandatory either “Before” or “At” or “After” taking of cognizance.  

3. Analysis Of Various Judgements – in support & against the want of sanction for referring a complaint for investigation

3.3 R.R. Chari v. State of Utter Pradesh

AIR 1951 SC 207 – (Para 10-11)

The Judgement was passed by a bench constituting of three Hon’ble Judges of the Apex Court. The offences alleged against the Public Servant were under Section 161 and 165 of Indian Penal Code. The basic contention urged therein was that the Order of the Magistrate issuing warrant for the arrest of the Public Servant concerned at the investigation stage amounted to the Court taking cognizance of the offence in the absence of a valid Sanction for Prosecution. The proceedings had to be held as illegal. The Apex Court negatived the said contention upon considering the fact that when the actual cognizance was taken and the summons was issued to Accused therein, the Competent Authority had granted the required Sanction for Prosecution. This particular view of the apex court has been put forward against the contention for want of sanction at the stage of reference order on the score that it has been passed by a bench of three judges and the MK Ayiappa case is by a bench of two judges & further without referring this case. And, the view taken in MK Ayiappa must be held to be per incurium. However, it is to be noted that, the question regarding the requirement of Sanction at the stage of referring the matter for investigation under Section 156(3) of CrPC was neither framed nor directly fell for consideration before the Supreme Court in the above case, whereas, the direct question considered and answered by the apex court in MK Ayiappa case. 

3.3 Devarapalli Laxminarayana Reddy & ors v. Narayana 

    Reddy & Ors

    (1976) 3 SCC 552 – (Para 17)

This Judgment was rendered by a bench of three Judges. The question that was specifically framed and answered in the case was whether in view of clause (a) of the first proviso to Section 202(1) of CrPC, a Magistrate who receives a Complaint disclosing an Offence exclusively triable by the Court of Sessions is debarred from sending the same to the police for investigation under Section 156(3) of CrPC. While deliberating on the issue before it the Apex Court held that the power to order investigation under Section 156(3) of CrPC is different from the power conferred under Section 202(1) of CrPC. The two operate in distinct spheres at different stages. The first is exercisable at the pre cognizance stage while the second at post cognizance stage when the court is in seisin of the case. The magistrate who ones has taken cognizance of the offences under Section 190 of CrPC cannot thereafter exercise his powers under Section 156(3) of CrPC. Here again, the aspect of sanction qua exercise of power under Section 156(3) off CrPC was never considered or answered by the Hon’ble Apex Court. The finding rendered in the above case was held to be a bad law and thus overruled by the Apex Court in VinuBhai Haribhai Malaviya v. State of Gujarat reported in (2019) 17 SCC 01 by a bench consisting of three Judges. 

3.3 Anil Kumar V. M.K. Aiyappa

       (2013) 2 SCC 183 – (Para 15-22)

This judgement was rendered by a bench consisting of two Judges. The specific question framed was whether the Special Judge/Magistrate is justified in referring a Private Complaint made under section 200 of CrPC for investigation by the police in exercise of powers conferred under Section 156(3) of CrPC without the production of a valid Sanction Order under Section 19 of Prevention of Corruption Act, 1988. After considering various judgements of the Apex Court, the bench held that the recruitment of Sanction is a precondition for ordering investigation under section 156(3) of CrPC against public servant even at pre- cognizance stage. 

3.4 Manju Surana v. Sunil Arora

      (2018) 5 SCC 557 – (Para 30, 32, 33, 43 & 47)

The matter was considered by a bench of two Judges of the Apex Court. It is pertinent to note that the Apex Court bestowed its attention to the judgments of three Judges bench in (1) RR Chari, (2) Gopaldas Sindhi, (3) Jamuna Singh, (4) Nirmajit Singh Hoon, (6) Devarapalli and such other judgments rendered by the Supreme Court. After carefully considering all the judgments referred to supra, the Apex Court referred the matter to a larger bench and the issue regarding the want of Sanction for or at the stage of referring the matter for investigation under section 156(3) of CrPC is pending consideration before the larger bench of the Apex Court. It is relevant to point out that the Apex Court did not hold the law laid down in Anil Kumar v. Aiyappa by the coordinate bench as per incuriam or bad law in the light of the judgments rendered by three judges of Supreme Court in R.R. Chari and other cases. 

3.5 a) Mohammed v. State of Karnataka & Ors – Division    

          Bench, Kerala High Court.

          O.P. (Crl.) No. 98/2018, Decided on 12/12/2018 

1. b) Nazarul Islam v. Basudeb Banerjee & ors

      (2022) SCC Online Cal 183 – (Para 34-36)

1. c) Anil Kumar B.H. v. Lokayuktha Police

      W.P. No. 24574/2013, decided on 25/11/2021

      (2022) 2 Kar.LJ 80

In all the above matters the respective courts while considering the question of requirement of Sanction at the stage of exercising powers under section 156(3) of CrPC, upon analysing the reference to larger bench made in Manju Surana case, have unequivocally held that Sanction is a pre-requisite without which or in the absence of which the court would not be empowered to exercise powers under section 156(3) as has been held by the Apex Court in Anil Kumar v. M K Aiyappa.   

3.6 Javed Ahmed Abdul Hamid Pawala v. State of 

     Maharastra

     (1985) 1 SCC 275 – (Para – 4) 

While considering the question whether a division bench of three Judges can purport to overrule the judgement of division bench of two Judges merely because three is larger than two, the apex court has held that it may be inappropriate for a division bench of three Judges to overrule the decision of division bench of two Judges as the Apex Court sits in the divisions of two and three Judges for the sake of convenience only and therefore the power to overrule can be exercised by a full bench or a constitutional bench specifically constituted for the purpose. 

3.7 TJ Abraham v. State of Karnataka & Others

Criminal Petition No. 5659 / 2021

2022 SCC Online KAR 1604

In this case the complaint filed with a request to refer the matter for investigation had been rejected for want of sanction as per the principle enunciated in MK Aiyappa case. When challenged by the private complainant before the High Court, the Court after considering RR Chari & Devarapalli dictum, held MK Aiyappa to be bad law. It further observed that no sanction is required at the time of referring the matter for investigation. This judgement of the High Court is presently under challenge before the apex court. It is being now being debated whether High Court could have held MK Aiyappa of apex court to be bad law when the same was not said so by the coordinate bench of apex court. 

4. The Law That Needs To Be Followed At The Present Regarding Sanction Qua Reference Under Section 156(3) of CrPC.

4.1 It is being argued by agencies / private complainants that the law laid down by the Apex Court in Anil Kumar v. M K Aiyappa may not be the correct approach in the light of earlier judgements of the Apex Court by a bench consisting of three Judges in RR Chari & Devarapalli. The said argument do not hold much water as after considering the same judgements the Apex Court in the case of Manju Surana has opined that the issue needs to be settled by a larger bench. The Supreme Court has not held that the law laid down in Anil Kumar v. M K Aiyappa as per incurium or bad law in the light of earlier judgements of three Judges in RR Chari & Devarapalli. 

4.2 While confronted with the question as to which law has to be followed till the issue is settled by a larger bench of Supreme Court, the division bench of Kerala High Court in Mohammed V.A. v. State of Kerala, the Single Judge of Calcutta High Court in Dr.Nazarul Islam v. Basudeb Banerjee & Ors as well as the co-ordinate bench of this Hon’ble Court in Anil Kumar B. H. v. Lokayuktha Police have unequivocally held that the law as laid down by the Apex Court in the matters of Anil Kumar v. M K Aiyappa alone holds the field till it is set aside, modified or altered by the larger bench of the Apex Court. 

4.3 In the light of the opinion to refer the matter to larger bench in Manju Surana case while declining to hold the law laid down in Aiyappa as per incurium and the categorical finding laid down by the High court of Karnataka in Anil Kumar B. H. v. Lokayuktha Police, one cannot be permitted to contend to take a contrary view from that of the view taken by the Apex Court in Aiyappa inasmuch as the contention would be against the established principles of judicial discipline and propriety and the principles of Judicial Precedents as laid down by the Supreme Court in Siddarama Satlingappa Mhetre v. State of Maharsatra reported in (2011) 1 SCC 694. What has not been held to be a bad law by the Apex Court itself while referring the issue to be settled before the larger bench, no other Court can be called upon to hold the judgment rendered by the Apex Court in Anil Kumar v. M K Aiyappa to be bad and take a contrary view in the matter.

Conclusion –

As the Apex Court in Manju Surana case has only referred the issue regarding want of sanction for reference under section 156(3) of Crpc for investigation for an authoritative pronouncement and has not held the same to be per incurium, till such time it is so decided by a larger bench of Apex Court, it would be wise & prudent to follow the dictum as enunciated in MK Aiyappa and to insist for sanction for prosecution of a public servant for any offences under Prevention of Corruption Act, before passing an order under section 156(3) of Crpc referring the complaint for investigation. 

– Sandeep Patil

“Privacy – The Need to Protect”

From the episode of throwing pen drives in public places containing explicit visuals involving a Member of Parliament from South India; to a former ministers’ intimate moments captured by the female counterpart, flashed across news channels; to audio and video calls between two individuals having private conversation recorded by one and posted across social medial platforms; to several instances of peeping toms capturing private moments or otherwise of others persons and using the contents to blackmail or for extortion throughout country, has made the citizens to think – Do we have privacy and should it be protected?

The facet of privacy of an individual in the modern world was first discussed in the European Convention of ‘Convention for Protection of Human Rights and Fundamental Freedom in 1950’. Article 8 provided for a right to every human being in respect of his private and family life, his home and his correspondences. Several countries developed or otherwise, in their respective jurisdictions, have made efforts to protect privacy by enacting statutes. In Bharat as well, the Legislative bodies have incorporated certain safeguards to protect privacy of its citizens.  Broadly, the facets of privacy can be in terms of health, residence, communication and such other avenues.  The Indian Penal Code has made offences such as public nuisances, criminal trespass, house trespass, house breaking etc., which more or less have covered all the aspects of human privacy.  Similarly, Evidence Act seeks to protect communications during marriage, professional communications, restrain on interpreters, official communications, information as to commission of offences etc. One or the other provisions are provided for that are aimed to protect the Right of Privacy of individual in statutes like Right to Information Act, 2005, the Banking Book Evidence Act of 1891,  Indian Telegraph Act, 1885, the Easements Act of 1882 and such other enactments.

Privacy, since protected, is no doubt a right, the debate then is – is it common law right or fundamental right?  An analysis of the statute enacted in the jurisdiction of different countries gives an indication that though the statutory protection has been afforded to privacy, however, constitutional protection is not given.  The Apex Court of England in Wain Wright -Vs- Home Office Reported in (2004) 2 AC 406 refused to formulate general principle of invasion of privacy from the constitution prism. It came to this conclusion as there existed no judicially enforceable standards. Hence, the right to privacy  was not declared as a fundamental right. The courts of United States of America, have formulated ‘third party doctrine’ whereunder in respect of voluntary disclosure of information to a third party, one cannot have a legitimate expectation of privacy as against the Government access to such information from that third party.  As such, even in a highly evolved liberal society like United States, privacy has not been elevated to constitutional  status.  Similar is the position in Singapore as well. The basic argument against the elevation of this right to be a fundamental right is – 

1. concept of privacy is so inherently vague that even judiciary trained minds can come to opposite conclusions of same set of facts; 
2. there are no yardsticks or standards to precisely measure the aspect of such right of privacy; 
3. protecting said the right between two individuals would be an impossibility since limits of lawful conduct which one must not transgress cannot be laid down with certainty; 
4. if the Right is given constitutional status then State is mandated to enforce the right by providing for penal consequences for breach thereof, which would again be impossibile since the very concept of privacy is ambiguous, vague and uncertain.

With the above concerns and many other related intrinsic issues, our Supreme Court navigated the concept and contours of “The Right of Privacy” in a reference made to a nine Judge bench in the case of Justice Sri.K.C. Puttaswamy (Retd) & Another -Vs- Union of India & Others, reported in (2017) 10 SCC 1.  The earlier judgment of Apex Court in M.P.Sharma -Vs- Sathish Chandra reported in AIR 1954 SC 300 and Kharak Singh -Vs- State of Uttar Pradesh reported in AIR 1963 SC 1295, had held that Right to Privacy is not protected by the constitution.  In that context, doubting the said view, in the present times, the reference to the larger bench became warranted.  The Bench went on a exploration of the tenets and antecedents of the concept of privacy as considered by different jurisdiction of various countries and whether there is a need in present day, to read this Right of Privacy into fundamental right of Article 21 – Right of Life of the Constitution.  Upon detailed consideration of all the contentions, illustrations and otherwise, for and against, the elevation of Right to Privacy, the Apex Court authoritatively held that the Right to Privacy is protected as an integral part of Right of Life and personal liberty under Article 21 and as a part of the freedoms guaranteed by the Part III of the Constitution.  Court took note of technological developments, intrusive journalism and the dawn of the digital age to elevate the right to constitutional status.  It also took note of interesting fact that “Uber” the worlds largest taxi Company, owns no vehicles; “Facebook” the worlds most popular media owner, creates no contents; “Alibaba” the most valuable retailor has no inventory; and “Airbnb” the world’s largest accommodation provider, owns no real estate.  It observed that however, Uber knows our whereabouts & places we frequent; Facebooks knows who we are friends with; Alibaba knows our shopping habits; Airbnb knows where we are travelling to.  The social network providers, search engines, email providers, messaging application, today have extensive knowledge of our movements, financial transactions, conversations, health and mental status, interests, shopping habits and the like.  These also weight in the mind of Apex Court to make privacy as a fundamental right.

Though privacy was given constitutional protection by the verdict of Supreme Court on August 29th, 2017; by virtue of Article 141 of the Constitution, the law declared by Apex Court became the law of the land; and the Right of Privacy became fundamental right, despite the lapse of seven years, privacy of an individual hasn’t received the attention it deserves at the hands of the State as well as legislative bodies.  A Right for which no formal method of enforceability is provided for & no penal consequences for any infringement of such rights is provided for, it is as good as no right at all in the hands of citizens of the country. Though a fundamental right, the right to privacy has been reduced to a dead letter. In recent times, as narrated in the introductory paragraph, instances of rampant invasion of privacy are taking place in the country. Even though every citizen enjoys the freedom of privacy, however, is subject to humiliation & ignominy by publication of recordings of his private acts or conversations without his consent.

It can be observed that though certain provisions of Information Technology Act, 2000, provide for penal consequences in respect of publication of obscene materials or sexually explicit materials, however the safeguards do not cover all aspects of an individuals’ privacy.  The need of the hour is either to bring in a comprehensive enactment addressing all facets of Right to Privacy or to propose amendments to existing statutes to cover up the left out portions of the privacy.

To safeguard citizens from getting entrapped into evils of digital age, to being with, the state is obligated to see the mischief happening and plug the holes in the statutes, on a war footing.  One way of doing it is to amend the Information Technology Act, 2000 and insert provisions entailing penal consequences upon any person who captures, records, transmits, reproduces or publishes a private conversation or private moments of two or more individuals without the knowledge or consent of such individuals.  This one legislative step would come as a reprieve to gullible citizens who are today constantly living in fear and becoming target of extortion at the hands of unscrupulous elements. We need to remember, the issue is not only affecting the elite or political class who with their clout can still ‘manage things’ to their advantage, but the most affected are the common citizens whose lives go on a downward spin with no getting back up. Many have succumbed to these acts of invasion of privacy and the perpetrators are living a life of merry.  Making legislations to safeguard this Fundamental Right of Privacy is not only constitutional obligation of the State but also a compliance of dictum of the Supreme Court.  The citizens of the country are eagerly awaiting for their lives to made more secure and to have their freedoms given to them which they expected while giving themselves The Constitution.

– Sandeep Patil

 

As we commemorate Anti-Terrorism Day on May 21, Bharat reflects on its relentless battle against terrorism under the leadership of Prime Minister Narendra Modi. In a decade marked by determined efforts, Bharat has fortified its security apparatus and thwarted numerous threats posed by both domestic and international terrorist groups.

The Modi government’s commitment to combating terrorism is evident in its multifaceted approach, which encompasses revamping counter-terrorism strategies, bolstering international cooperation, enacting stringent legislative measures, and fortifying border security.

The establishment of the National Investigation Agency (NIA) and the strengthening of laws such as the Unlawful Activities (Prevention) Act (UAPA) underscore Bharat’s proactive stance in combating terrorism.

Moreover, Bharat’s collaborative efforts with global partners like the United States, Israel, and France demonstrate its unwavering resolve to tackle terrorism on a global scale. By fostering intelligence sharing and joint counter-terrorism initiatives, Bharat has garnered international support in its fight against this pervasive threat.

Concrete actions, including surgical strikes and Balakot airstrikes in response to cross-border terrorism, exemplify Bharat’s zero-tolerance policy towards terrorism. The historic decision to abrogate Article 370 and Article 35A in Jammu and Kashmir has not only integrated the region fully into Bharat but has also diminished the separatist narrative, fostering peace and stability.

In the Northeast, the Modi government’s peace agreements have paved the way for reconciliation and development, leading to a significant reduction in insurgency and violence. Similarly, initiatives to address left-wing extremism through holistic approaches centered on development and welfare schemes have yielded promising results.

However, amidst Bharat’s steadfast efforts, the recent terror attack at Rameshwaram Cafe in Bengaluru serves as a stark reminder of the persistent threat posed by terrorism. Luckily, while people were injured, no lives were lost in this cowardly act, underscoring the importance of remaining vigilant and united against terrorism.

As we observe Anti-Terrorism Day, it is imperative to acknowledge the Modi government’s unwavering commitment to safeguarding Bharat from the scourge of terrorism. Nevertheless, the fight against terrorism remains a continuous endeavour that necessitates the collective participation of every citizen. By standing united and resolute, Bharat can ensure that the sacrifices made in the battle against terrorism are not in vain.

In this critical juncture, as Bharat embarks on its journey towards peace and security, every citizen’s participation in the ongoing Lok Sabha elections is crucial. Each vote cast shapes the future of our nation, contributing to the realization of a terror-free and prosperous Bharat.

As we stand united in our resolve, let us reaffirm our commitment to building a safer, stronger, and more resilient Bharat.