Mobile View
Main Search Advanced Search Disclaimer
Cites 49 docs - [View All]
The Code Of Criminal Procedure, 1973
The Prevention of Corruption Act, 1988
Section 156(3) in The Code Of Criminal Procedure, 1973
The Indian Penal Code
Section 23 in The Code Of Criminal Procedure, 1973

View the actual judgment from court
User Queries
Madras High Court
Bagavathiappan Pillai vs State By Inspector Of Police on 1 April, 2013
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 01/04/2013

CORAM
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

Crl.OP(MD)No.17898 of 2012

Bagavathiappan Pillai			... Petitioner

Vs

1.State by Inspector of Police
Vigilance and Anti Corruption
Nagercoil, Kanyakumari District

2.Jebaselvakumar			... Respondents

Prayer

This Criminal Original Petition is filed to call for the records
relating to Cr.No.10/2012 on the file of the 1st Respondent Police and quash the
same.

!For Petitioner	...	Mr.Shanmugasundarsm, SC
^For Respondent ...	Mrs.S.Prabha, GA-R1
			Mr.A.Dennison-R2

:ORDER

This petition is filed seeking to quash the proceedings pending on the file of the 1st Respondent Police in Cr.No.10/2012 for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act.

2. The short facts giving rise to this petition are stated below:- The Petitioner was appointed as an Assistant Engineer on 12.02.1979 in the Tamil Nadu Electricity Board. He was promoted to various cadres and then, as Chief Engineer, Tirunelveli on 2.1.2012. The 2nd Respondent/defacto complainant herein, who was working as a Commercial Inspector, TANGEDCO, Kanyakumari, filed a petition in Crl.MP.No.642/2012 on 25.4.2012 before the learned Chief Judicial Magistrate/Special Judge at Nagercoil, seeking for a direction to register the complaint and investigate the case under Section 156(3) of Cr.PC against the Petitioner, alleging that bribe was given to him for getting retransfer order, from Keezha Krishnan Puthur to Karungal. The learned Chief Judicial Magistrate/Special Judge passed an order directing the 1st Respondent herein to register the case and investigate the same. Pursuant to the said order, the 1st Respondent registered a case in Cr.No.10/2012 on 6.7.2012 at 8.30 hours against the Petitioner for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act. Being aggrieved with the said order passed by the learned Chief Judicial Magistrate/Special Judge, this petition has been filed for quashing the impugned proceedings in Cr.No.10/2012.

3. The main question, which has been raised in this petition, is as to whether the learned Special Judge/Chief Judicial Magistrate does have power at all to refer the complaint under Section 156(3) of the Code of Criminal Procedure (herein after referred to as the Code) for investigation and to file a report thereon.

4. Mr.R.Shanmugasundaram, the learned senior counsel for the Petitioner submitted that the learned Special Judge is not a Magistrate within the meaning of Section 156(3) of the Code, wherein the Special Judge happens to be the courts of sessions in terms of provision as contained in Section 5(3) of the Prevention of Corruption Act and as such, he has got no jurisdiction to refer the complaint under Section 156(3) of the Code to the Vigilance And Anti Corruption Department for investigation and file a report. As such, the impugned order and the consequent registration of the First Information Report in Cr.No.10/2012 are illegal and have to be set aside, in view of the decision rendered by the Division Bench of the Orissa High Court rendered in the case of Surendra Nath Swain Vs. State of Orissa (2006-1-Crimes-52) and the decision of the Karnataka High Court dated 3.8.2012 rendered in the case of B.V.Acharya Vs. Sri.N.Venkateshaiah and another) in WP.No.14047/2012, wherein it has been held that the Special Judge is not to be treated as a Magistrate within the meaning of sub section 3 of Section 156 of the Code and thereby, he is incompetent to refer the complaint to the Police to investigate the same.

5. Besides this, submission was advanced to the effect that the complaint filed without an order of sanction for prosecuting the Petitioner is liable to be quashed. In support of his submission, the learned senior counsel for the Petitioner placed reliance on the decision of the Honourable Supreme Court rendered in the case of Dr.Subramanian Swamy Vs. Manmohan Singh and another (2012-3-SCC-64), wherein the contention of the learned Attorney General that an order granting sanction is not required to be filed along with a complaint in connection with a Prosecution under Section 19 of the Prevention of Corruption Act was turned down on the ground that the said submission is contrary to the settled law laid down by the Honourable Supreme Court in various decisions.

6. The learned senior counsel further submitted that the learned Special Judge has not applied his mind before passing an order under Section 156(3) of Cr.PC directing investigation by the Police. The learned senior counsel referred to the decision of Honourable Supreme Court reported in 2008- 5-SC-668 (Maksud Saiyed Vs. State of Gujarat and others) wherein the Honourable Supreme Court has observed that when a Magistrate exercises his jurisdiction on a complaint filed in terms of Section 156(3) or Section 200 of the Code, he is required to apply his mind. The learned senior counsel referred to the decision of the Honourable Supreme Court reported in 2009-6-SCC-316 (Jamiruddin Ansasi Vs. CBI and another) in support of his submission that for invocation of Section 156(3) of the Code for ordering inquiry or investigation into a private complaint and taking cognizance thereupon, a preliminary enquiry is required.

7. Per contra, the learned Additional Public Prosecutor contended that there is no embargo in the Prevention of Corruption Act on the Special Judge to refer the complaint to the police for investigation under Section 156(3) of the Code and the Special Judge is not prohibited from exercising such power. The learned Additional Public Prosecutor placed reliance on the decision of the Division Bench of the Karnataka High Court reported in 2012-Crl.J-1989 (B.S.Yeddyurappa Vs. State of Karnataka) and the Honourable Supreme Court reported in AIR-1984-SC-718 (A.R.Antulay Vs. Ramdas Srinivas Nayak and another) wherein it is held that the court of special Judge is a court of original criminal jurisdiction and the said court shall have all powers except those are specifically excluded. The learned Additional Public Prosecutor drew the attention of this court to yet another decision of the Honourable Supreme Court reported in 2007-Crl.J-2929 (V.K.Pri Vs. CBI) in support of his submission that in matters not covered by the Prevention of Corruption Act, provision of Cr.PC would be applicable in view of Section 5(3) of the Prevention of Corruption Act. The learned Additional Public Prosecutor also contended that no preliminary enquiry is required by the Vigilance Cell for registering and for conducting investigation under Section 156(3) of Cr.PC and relied on the decision of the Kerala High Court reported in 2002-Crl.LJ-337 (P.Raghuthaman Vs. State of Kerala and another).

8. Supporting the contentions raised by the learned Additional Public Prosecutor, Mr.A.Dennison, the learned counsel for the 2nd Respondent/ defacto complainant also relied on the decision of the High Court of Andhra Pradesh reported in 2004-Crl.J-NOC-284 (Tummala Nageswara Rao Vs. Naguluri Krishna Kumar God and another) that the Special Judge has power to refer a private complaint to police for investigating under Section 156(3) of Cr.PC The learned counsel also submitted that the special judge under the Prevention of Corruption Act, while trying offences, has dual power of Sessions Judge as well as that of a Magistrate and relied on the decision of the Honourable Supreme Court reported in 2012-1-SCC-Crl-487 (Bangaru Laxman Vs. State through CBI and another). The learned counsel further contended that the inherent powers of the High Court under Section 482 of Cr.PC has to be exercised sparingly with circumspection and the High Court should be loath to interfere at early/premature stage of the investigation and relied on the decision of the Honourable Supreme Court reported in 2012-2-SCC-Crl-506 (State Of Orissa and others Vs. Ujjal Kumar Burdhan).

9. I have heard the learned counsel appearing for the parties at length. The main issue before this court is as to whether the learned Chief Judicial Magistrate/Special Judge is competent to give a direction under Section 156(3) of Cr.PC to the 1st Respondent/Vigilance Police to investigate and file a report thereupon.

10. The court of special Judge is constituted under Section 3 of the Prevention of Corruption Act. He enjoys all powers, which a court of original jurisdiction enjoys. The Honourable Supreme Court in AIR-1984-SC-718 (A.R.Antulay Vs. Ramdas Srinivas Nayak and another) held as under:- "27. It is, however, necessary to decide with precision and accuracy the position of a Special Judge and the Court over which he presides styled as the Court of a special Judge because unending confusions have arisen by either assimilating him with a Magistrate or with a Sessions court. The Prevention of Corruption Act, 1947 was enacted for more effective prevention of bribery and corruption. Years rolled by and experience gathered showed that unless a special forum for the trial of such offences as enumerated in the 1947 Act is created, the object underlying the 1947 Act would remain a distant dream. This led to the enactment of the Criminal Law Amendment Act, 1952. The statement of Objects and Reasons accompanying the Bill refers to the recommendations of the Committee chaired by Dr.Bakshi Tek Chand appointed to review the working of the Special Police Establishment and to make recommendations for improvement of laws relating to bribery and corruption. To take the cases of corruption out of the maze of cases handled by Magistrates, it was decided to set up special courts. Section 6 conferred power on the State Government to appoint as many special Judges as may be necessary with power to try the offences set out in Clauses (a) and (b). Now if at this stage a reference is made to Section 6 of the Cr.PC which provides for constitution of Criminal Courts, it would become clear that a new Court with a new designation was being set up and that it has to be under the administrative and judicial superintendence of the High Court. As already pointed out, there were four types of criminals courts functioning under the High Court. To this list was added the court of special judge. Now when a new court which is indisputably a criminal court, because it was not even whispered that the court of special judge is not a criminal court, is set up, to make it effective and functionally oriented, it becomes necessary to prescribe its powers, procedure, status and all ancillary provisions. While setting up a Court of a special judge keeping in view the fact that the high dignitaries in public life are likely to be tried by such a court, the qualification prescribed was that the person to be appointed as special Judge has to be either a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. These three dignitaries are above the level of a Magistrate. After prescribing the qualification, the Legislature proceeded to confer power upon a special Judge to take cognizance of offences for the trial of which a special court with exclusive jurisdiction was being set up. If a special Judge has to take cognizance of offences, ipso facto the procedure for trial of such offences has to be prescribed. Now the Code prescribes different procedures for trial of cases by different Courts. Procedure for trial of a case before a Court of Session is set out in Chapter XVIII; trial of warrant cases by Magistrates is set out in Chapter XIX and the provisions therein included catered to both the types of cases coming before the Magistrate, namely, upon police report or otherwise than on a police report. Chapter XX prescribes the procedure for trial of summons cases by Magistrates and Chapter XXI prescribes the procedure for summary trial. Now that a new criminal court was being set up, the Legislature took the first step of providing its comparative position in the hierarchy of courts under Section 6 of Cr.PC by bringing it on level more or less comparable to the Court of Session, but in order to avoid any confusion arising out of comparison by level, it was made explicit in Section 8(1) itself that it is not a Court of Sessions because it can take cognizance of offences without commitment as contemplated by Section 193, Cr.PC. Undoubtedly in Section 8(3) it was clearly laid down that subject to the provisions of sub sections (1) and (2) of Section 8 the court of special judge shall be deemed to be a court of sessions trying cases without a jury or without the aid of assessors. In contra distinction to the sessions court this new court was to be a court of original jurisdiction. The Legislature then proceeded to specify which out of the various procedures set out in the Code this new Court shall follow for trial of offences before it. Section 8(10 specifically says that a special judge in trial of offences before him shall follow the procedure prescribed in the Cr.PC for trial of warrant cases by Magistrates. The provisions for trial of warrant cases by the Magistrate are to be found in Chapter XXI of 1898 Code. A glance through the provisions will show that the provisions therein included catered to both the situations namely, trial of a case initiated upon police report (Section 251A) and trial of cases instituted otherwise than on police report (Sections 252 to 257). If a special judge is enjoined with a duty to try cases according to the procedure prescribed in foregoing provisions he will have to first decide whether the case was instituted upon a police report or otherwise than on police report and follow the procedure in the relevant group of sections. Each of the Sections 251A to 257 of 1898 Code which are in parimateria with Sections 238 to 250 of 1973 Code refers to what the Magistrate should do. Does the special Judge therefore become a Magistrate? This is the fallacy of the whole approach. In fact, in order to give full effect to Section 8(1), the only thing to do is to read special Judge in Sections 238 to 250 wherever the expression 'Magistrate' occurs. This is what is called legislation by incorporation. Similarly, where the question of taking cognizance arises, it is futile to go in search of the fact whether for purposes of Section 190 which conferred power on the Magistrate to take cognizance of the offence, special Judge is a Magistrate? What is to be done is that one has to read the expression 'special judge' in place of Magistrate and the whole thing becomes crystal clear. The Legislature wherever it found the grey area clarified it by making specific provision such as the one in sub section (2) of Section 8 and to leave no one in doubt further provided in sub section (3) that all the provisions of Cr.PC shall so far as they are not inconsistent with the Act apply to the proceedings before a special Judge. At the time when 19512 Act was enacted what was in operation was the Criminal P.C 1898. It did not envisage any Court of a special Judge and the Legislature never wanted to draw up an exhaustive Code of Procedure for this new Criminal Court which was being set up. Therefore, it conferred power (taking cognizance of offences) prescribed procedure (trial of warrant cases by a Magistrate), indicated authority to tender pardon (Section 338) and the after declaring its status as comparable to a Court of Session proceeded to prescribe that all provisions of Cr.PC will apply in so far as they are not inconsistent with the provisions of the 1952 Act. The net out come of this position is that a new court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific question brought before it as court of original criminal jurisdiction, it had to refer to the Criminal P.C undaunted by any designation claptrap. When taking cognizance, a court of special judge enjoyed the powers under Section 190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate though as and by way of status it was equated with a Court of Session. The entire argument inviting us to specifically decide whether a court of a special judge for a certain purpose is a court of Magistrate or a court of sessions revolves round a mistaken belief that a special Judge has to be one or the other and must fit in in the slot of a Magistrate or a Court of Session. Such an approach would strangulate the functioning of the Court and must be eschewed. Shorn of all embellishments, the court of a special judge is a court of original criminal jurisdiction. As a court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide bound by the terminological status description of Magistrate or a Court of Session. Under the Code it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied. (Emphasis supplied)

11. Their Lordships, in a recent decision reported in Dr.Subramanian Swamy Vs. Manmohan Singh and another (2012-3-SCC-64), after referring to the observations of the Honourable Supreme Court made in AIR-1984- SC-718 (A.R.Antulay Vs. Ramdas Srinivas Nayak and another), have observed thus:- "33. In view of the aforesaid judgement of the Constitution Bench in Antulay's Case it must be held that the Appellant has the right to file a complaint for Prosecution of 2nd Respondent in respect of the offences allegedly committed by him under the 1988 Act."

12. Therefore, as held by their Lordships, the Special Judge has all powers under the Code which are vested in the court of original jurisdiction except the ones specifically prohibited. Thus, since the jurisdiction under Section 156(3) of Cr.PC is not specifically prohibited, the special judge has the jurisdiction to direct Registration of First Information Report under Section 156(3) of Cr.PC as a court of original jurisdiction which the Magistrate has. That apart, a Sessions Judge may not take cognizance of offences, unless the accused was committed to him for trial by a Magistrate, but by virtue of sub clause (1) of Section 5 of the Act, the Special Judge although deemed to be a Sessions Judge is empowered to take cognizance without the accused being committed to him for trial. This sub section does not provide in what manner and on what material the Special Judge may take cognizance of the offence. For this, one has to refer to the provisions of Cr.PC which provide for cognizance of offences by a Magistrate. While Special Judges have exclusive jurisdiction to try offences, which come within the Act, the position appears to be that a Magistrate can also take cognizance of these offences. But, in so far as the trial is concerned, Section 4(1) of the Act makes it unambiguously mandatory that the offences specified in sub section (1) of Section 3 shall be tried by Special Judges only.

13. At this juncture, it is relevant to refer to the decision of the Honourable Supreme Court in Bangaru Laxman's Case (Supra) relied on by the learned counsel for the 2nd Respondent, wherein it is held as follows;- "33. Relying on the ratio in Antulay's case where a Special Judge has been considered to be a court of original criminal jurisdiction, this Court held in Harshad S.Mehta Vs. State of Maharashtra (2001-8-SCC-257) that in order to make the said Court functionally oriented some powers are conferred by the statute setting it up and except those powers which are specifically denied, it has to function as a court of original criminal jurisdiction not being hidebound by the terminological status description of Magistrates or a court of session. Under the Code, it will enjoy all the powers which a court of original criminal jurisdiction enjoys save and except the ones which are specifically denied."

14. Therefore, as laid down by the Honourable Supreme Court in the decision cited supra, the Special Judge under the Prevention of Corruption Act, while trying offences, has dual power of Sessions Judge as well as that of a Magistrate.

15. The power to take cognizance of offences under the Prevention of Corruption Act has been conferred on the Special Judge by virtue of that Act. Hence, the application under Section 156(3) of Cr.PC disclosing the commission of offences under the Prevention of Corruption Act can be entertained by Special Judge appointed under Section 3 of the Act, because only that Magistrate or Judge can pass order under Section 156(3) of Cr.PC, who is empowered to take cognizance of offences by any Special Act or Code of criminal Procedure. Although there is no specific provision in the Prevention of Corruption Act conferring power on Special Judge to act under Section 156(3) of Cr.PC, but since the Special Judge by virtue of Section 5 of Prevention of Corruption Act is empowered to take cognizance of offences under that Act, the registration of FIR and its investigation on the application under Section 156(3) disclosing the commission of the offences under the Prevention of Corruption Act can only be made by the Special Judge.

16. Thus, in the light of the law laid down in the aforesaid decisions, I am in respectful agreement with the view expressed by the Division Bench of the Karnataka High Court in 2012-Crl.J-1989 (B.S.Yeddyurappa Vs. State of Karnataka). With all respect to the Honourable Judges, I am of the considered view that the view expressed by the Orissa High Court in Surendra Nath Swain Vs. State of Orissa (2006-1-Crimes-52) appears to be contrary to the law laid down by the Honourable Supreme Court in A.R.Antulay's Case.

17. The next argument advanced by the learned senior counsel as to whether the Chief Judicial Magistrate/Special Judge, at the time of referring the complaint to the police under Section 156(3) of Cr.PC for investigation is required to apply his mind to the allegations made in the complaint, I have to state that it came up for consideration before a Division Bench of Karnataka High Court in the case of Guruduth Prabu and others Vs. M.S.Krishna Bhat and others (1999-Crl.LJ-3909), wherein their Lordships, referring to the provisions of Section 156 and 157 of Cr.PC have held that the Magistrate should apply his mind and find out whether the allegations made in the complaint filed under Section 200 of Cr.PC discloses an offence. The relevant observations are found in paragraph 11, which reads as under:-

"11. Sub section (3) of Section 156 of Cr.PC empowers Magistrate to order an investigation. Under Section 157(1) of Cr.PC an officer in charge of a Police Station having reason to suspect the commission of an offence which he is empowered under Section 156 of Cr.PC to investigate should send a report to the Magistrate empowered to take cognizance of the offence upon a Police report and should proceed in person or depute one of his prescribed deputies to proceed to the spot to investigate under Section 157(1)(a) when the offender is named and if the case is not of a serious nature the officer need proceed in person or depute his subordinate. Under Section 157(1)(b) if it appears to such Police Officer that there is no sufficient ground for entering on an investigation he shall not investigate the case and the officer should inform the complainant under the prescribed manner. Thus, the Police Officer who is empowered to investigate on the information received by him of the commission of a cognizable offence can devoid whether there is no sufficient ground for entering into an investigation and if there is no sufficient ground he should not investigate the case. But once the Magistrate orders an investigation under Section 156(3) of Cr.PC the Police Officer is bound to investigate the matter and there is no question of his deciding not to investigate. Thus, by an order of the Magistrate under Section 156(3) the discretion given to the Police Officer under Section 157 is taken away. It is therefore very important that the Magistrate applies his mind and finds that the allegations made in the complaint filed under Section 200 of Cr.PC before him discloses an offence. If every complaint filed under Section 200 Cr.PC is referred to the Police under Section 156(3) without application of mind about the disclosure of an offence, there is every likelihood of unscrupulous complainants in order to harass the alleged accused named by them in their complaints making bald allegations just to see that the alleged accused are harassed by the police who have no other go except to investigate as ordered by the Magistrate. Therefore, it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and in only cases which disclose an offence, the Magistrate gets jurisdiction to order an investigation by the police if he does not take cognizance of the offence."

18. In the case of Maksud Saiyed Vs. State of Gujarat and others(2008-5-SC-668), the Honourable Supreme Court has considered the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and has observed that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind.

19. In the light of the aforesaid decisions, it is mandatory on the part of the Special Judge to apply his mind to the allegations made in the complaint to find out as to whether it discloses any offence and whether it is necessary to refer the complaint to the Police for investigation.

20. At this juncture, it is relevant to refer to the observations made by the Honourable Supreme Court reported in 2009-6-SCC-316 (Jamiruddin Ansasi Vs. CBI and another) wherein it is observed as here under:- "63. We have carefully considered the submissions made on behalf of the respective parties and we are convinced that Section 9 of MCOCA cannot be read or invoked independent of Section 23. In our view, Section 9(1) contemplates filing of complaints both the investigating authorities and also by private parties and the learned Special Judge is, therefore, entitled to take cognizance of offences under MCOCA even on a private complaint, but after due compliance with Section 23(2) thereof. In view of the stringent provisions of MCOCA, the legislature included certain safeguards for invoking the provisions thereof. The same is manifest from the provisions of Section 23 as a whole."

21. In the above said case, the Honourable Supreme Court has considered the effect of various provisions of Maharashtra Control of Organized Crime (MCOC) Act. Section 9 of MCOC Act empowers the Special Court constituted under the said Act to take cognizance of any offence without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts. Sub section 4 of Section 9 sets out the powers of Special Court to the effect that the Special Court, shall, for the purpose of trial of any offence, have all the powers of a Court of Sessions so far as may be, in accordance with the procedure prescribed in the Code for the trial before a Court of Sessions.

22. Section 23 of the said Act deals with the cognizance of and investigation into an offence. The provision of the said section has the over- riding effect on the code of Criminal Procedure.

23. Section 9 and 23 of the Said Act, the Honourable Supreme Court has observed that the wording of sub section 2 of Section 23 leaves no room for doubt that the learned Special Judge cannot take cognizance of any offence under MCOCA unless sanction has been previously given by the Police Officer mentioned herein above. It further observed that in such a situation, even as far as a private complaint is concerned, sanction has to be obtained from the police officer not below the rank of Additional Director General of Police, before the Special Judge can take cognizance of such complaint.

24. In paragraphs 68 and 69, the Honourable Supreme Court has observed thus:-

"68. As indicated herein above, the provisions of Section 23 are the safeguards provided against the invocation of the provisions of the Act which are extremely stringent and far removed from the provisions of the general criminal law. If, as submitted on behalf of some of the Respondents, it is accepted that a private complaint under Section 9(1) is not subject to the rigours of Section 23, then the very purpose of introducing such safeguards lose their very raison d'etre. At the same time, since the filing of a private complaint is also contemplated under Section 9(1) of MCOCA, for it to be entertained it has also to be subject to the rigours of Section 23. Accordingly, in view of the bar imposed under sub section (2) of Section 23 of the Act, the learned Special Judge is precluded from taking cognizance on a private complaint upon a separate inquiry under Section 156(3) of Cr.PC. The bar of Section 23(2) continues to remain in respect of complaints either of a private nature or on a police report.

69. In order to give a harmonious construction to the provisions of Section 9(1) and Section 23 of MCOCA, upon receipt of such private complaint the learned Special Judge has to forward the same to the officer indicated in clause (a) of sub section (1) of Section 23 to have an inquiry conducted into the complaint by a police officer indicated in clause (b) of sub section (1) and only thereafter take cognizance of the offence complained of, if sanction is accorded to the Special Court to take cognizance of such offence under sub section (2) of Section 23."

25. In the light of the observations made by the Honourable Supreme Court in Jammiruddin Ansari's Case, the same principle would apply to a private complaint filed before the Special Court alleging the offence under Section 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act. In such view of the matter, the Special Judge, on receipt of the complaint, if he is of the opinion that an investigation is called for regarding the allegations made therein, he is required to send the same to the Deputy Superintendent of Police or a Police Officer of equivalent rank as contemplated under Section 17 of the Prevention of Corruption Act.

26. In the order passed by the learned Chief Judicial Magistrate/Special Judge, there is no indication to show that he has applied his mind to the allegations stated therein and was of the opinion that an investigation has to be made on those allegations. The learned Special Judge has merely said "Complainant present. Complaint is forwarded under Section 156(3) of Cr.PC to Inspector of Police, Vigilance and Anti Corruption, Nagercoil for registering a case and investigation".

27. It has to be mentioned here that the learned Special Judge has not made such a reference to a competent police officer as required under Section 17 of the Prevention of Corruption Act, but forwarded the complaint to the Inspector of Police, Vigilance and Anti Corruption which clearly indicates his non application of mind. Hence, I am of the considered view that even at the stage of referring the complaint for investigation in exercise of power under Section 156(3), the Special Judge is under an obligation to apply his mind and satisfy himself that the investigation is called for. In the instant case, there is no such indication in the reference made by the learned Special Judge and further there are no adequate reasons for entrusting the investigation to an Inspector of Police and therefore. I am of the considered view that there is no application of mind by the learned Special Judge before making a reference for investigation under Section 156(3) of Cr.PC.

28. Now coming to the contention raised by the learned senior counsel that the complaint filed by the 2nd Respondent not accompanied by accord of sanction is not valid in law and the entire proceedings are liable to be quashed, it requires serious consideration in the light of the decision of the Honourable Supreme Court rendered in the case of Dr.Subramanian Swamy Vs. Manmohan Singh and another (2012-3-SCC-64).

29. Section 19(1) of Prevention of Corruption Act directs that no court shall take cognizance of the offence punishable under Sections 7, 10, 11, 13 and 15 of Act alleged to have been committed by the public servant, except with the previous sanction of the authorities enumerated in clauses (a) to (c). A reading of section would indicate that the requirement of previous sanction is contemplated at the time of the court taking cognizance. In the present case, the learned Special Judge has not taken cognizance since he chose to refer the complaint for investigation in exercise of power under Section 156(3) of Cr.PC.

30. It is needless to point that any Judicial Magistrate, before taking cognizance of the offence, can order the investigation under Section 156(3) of Cr.PC. In 2006-1-SCC-627 (Mohd.Yousuf Vs. Afaq Jahan and another) the Honourable Supreme Court has held thus:-

"11. The clear position therefore is that any Judicial Magistrate before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence herein. For the purpose of enabling the police to start investigation, it is open to the Magistrate to direct the Police to register an FIR. There is nothing illegal in doing so. After all Registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the Police station as indicated in Section 154 of the Code. Even if a 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."

The above position is highlighted in Suresh Chand Jain Vs. State of MP (2001-2- SCC-628).

31. The Special Judge, on receiving the complaint, did not take cognizance of the offences mentioned in the complaint, but had sent the complaint under Section 156(3) of the Code to the Inspector of Police, Vigilance and Anti Corruption, as requested by the complainant. In this context, the following observation of a learned Judge of Calcutta High Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Abani Kumar Banerjee (AIR(37)-1950-Cal-437) has to be looked into. It is stated as here under:-

"What is 'taking cognizance' has not been defined in the Cr.PC and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) Cr.PC he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200 and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. Ordering investigation under Section 156(3) or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."

The said observation was approved by the Honourable Supreme Court in R.R.Chari Vs. State of UP (AIR-1951-SC-207).

32. Thus, it would be clear that when a Magistrate applies his mind not for the purpose of proceeding under the various Sections of Chapter XVI but for taking action of some other kind, e.g. ordering investigation under Section 156(3) he cannot be said to have taken cognizance of any offence.

33. In the case on hand, in the light of the observations made as extracted above, the learned Special Judge has not taken cognizance since he chose to refer the complaint for investigation in exercise of power under Section 156(3) of Cr.PC. Therefore, the impugned order is the one passed during pre cognizance period.

34. In Dr.Subramanian Swamy Vs. Manmohan Singh and another (2012-3- SCC-64), the Honourable Supreme Court, while rejecting the argument of learned Attorney General of India that the question of granting sanction for Prosecution of a public servant charged with an offence under the 1988 Act arises only at the stage of taking cognizance and not before, has ruled thus in paragraphs 34 and 64:-

"34. The argument of the learned Attorney General that the question of granting sanction for Prosecution of a public servant charged with an offence under the 1988 Act arises only at the stage of taking cognizance and not before that is neither supported by the plain language of the section nor the judicial precedents relied upon by him. Though, the term "cognizance" has not been defined either in the 1988 Act or Cr.PC, the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is "taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially."

64. I also entirely agree with the conclusion of the learned Brother Singhvi, J. that the argument of the learned Attorney General that question for granting sanction for Prosecution of a public servant charged with offences under the 1988 Act arises only at the stage of cognizance is also not acceptable. In formulating this submission, the learned Attorney General substantially advanced two contentions. The first contention is that an order granting sanction is not required to be filed along with a complaint in connection with a Prosecution under Section 19 of the Prevention of Corruption Act. The aforesaid submission is contrary to the settled law laid down by this court in various judgements.

64.1. Recently a unanimous three Judge Bench decision of this court in State of UP Vs. Paras Nath Singh (2009-6-SCC-372) speaking through Pasayat, J. and construing the requirement of sanction, held that without sanction:

"6. ... '10. .... 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 Heard both sides. official duty. (Emphasis supplied)

35. Following the above ruling of the Honourable Supreme Court, the Karnataka High Court in the order dated 3.8.2012 (B.V.Acharya Vs. Venkateshaiah) in WP.No.14047/ 2012, has considered the question as to whether a sanction for Prosecution as contemplated by Section 19(1) is condition precedent for entertaining the private complaint alleging offence under the Prevention of Corruption Act has held thus in paragraph 60:-

"60. Thus, it is clear from the aforesaid decision of the Honourable Supreme Court that the requirement of sanction order cannot be dispensed with even in respect of a private complaint filed by a citizen against a public servant alleging offences under the Prevention of Corruption Act said to have been committed while discharging public duty as a public servant."

36. His Lordship has considered the question as to whether a private complaint without the sanction order being accompanied be entertained by the court while invoking power under Section 156(3) of Cr.PC. After referring to the contentions of the learned counsel on this point and also referring to the decisions of the Honourable Supreme Court, it has been held that since the private complaint was not accompanied by the sanction order from the competent authority, the order of the learned Special Judge will have to be held as without jurisdiction.

37. In the light of the decisions of the Honourable Supreme Court in the case of Dr.Subramanian Swamy Vs. Manmohan Singh and another (2012-3-SCC-

64), it was obligatory on the part of the learned Special Judge to have considered this aspect of accord of sanction by the competent authority even at the stage of entertaining the complaint and referring the same to the police for investigation. This also shows non application of mind by the learned Special Judge. In this view of the matter, the order passed by the learned Special Judge referring the matter for registration of case and for investigation by Inspector of Police, Vigilance and Anti Corruption, is illegal. Consequently, the impugned proceedings pending on the file of the 1st Respondent Police are liable to be set aside.

38. In the result, this criminal original petition is allowed and the proceedings in Cr.No.10/2012 pending on the file of the Inspector of Police, Vigilance and Anti Corruption, Nagercoil, Kanyakumari District are quashed. However, the matter is remitted back to the learned Special Judge/ Chief Judicial Magistrate, Nagercoil and the learned Special Judge is directed to consider the matter afresh in the light of the law laid down in the decisions referred to above and also in the light of the observations made in this order and pass appropriate orders, in accordance with law.

Srcm To:

1.The Inspector of Police, Vigilance and Anti Corruption Nagercoil, Kanyakumari District

2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai