Prior sanction from a competent authority is mandatory for a magistrate to take cognisance of a private complaint for ordering a probe or taking cognisance of a charge sheet against a public servant under the Prevention of Corruption Act, the Supreme Court has ruled.

A Bench of Justices K.S. Radhakrishnan and A.K. Sikri said: “So far as public servants are concerned, the cognisance of any offence, by any court, is barred by Section 197 of the Cr. PC unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, is in discharge of the official duty.”

Writing the judgment, Justice Radhakrishnan said: “The Section not only specifies the persons to whom the protection is afforded but also the conditions and circumstances under 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 cognisance of such offence except with the previous sanction’.”

The Bench said that the “use of the words, ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power of court to take cognisance of any offence is absolute and complete. The very cognisance is barred. That is, the complaint cannot be taken 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.”

Citing earlier decisions, the Bench said: “The question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him…. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio.”

In this case, the appellant Anil Kumar filed a private complaint against K. Aiyappa and another person before the special judge/magistrate of the Karnataka Lok Ayukta, seeking a direction for a probe under the Prevention of Corruption Act. The special judge referred the complaint made under Section 200 of the Cr. PC for investigation by the Deputy Superintendent of Police, Karnataka Lokayukta, without a valid sanction order under Section 19 of the Prevention of Corruption Act.

On a writ petition from Mr. Aiyappa, the Karnataka High Court quashed the special judge’s order. The present appeal by Mr. Anil Kumar is directed against this judgment.

Dismissing the appeal, the Bench said the magistrate, while exercising his powers under Section 156 (3) of the Cr. PC, could not act mechanically. He could not refer the matter against a public servant without a valid sanction order. His application of mind should be reflected in the order. The mere statement that he had gone through the complaint/documents and heard the complainant, as reflected in the order, would not be sufficient. “In this case, the special judge has cited no reasons for ordering investigation. Once it is noticed that there was no previous sanction, the magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) of the Cr. PC.”

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