We have examined the rival contentions and do find a divergence of opinion, which ought to be settled by a larger Bench. 


The question of law sought to be raised in the appeals is as to whether prior sanction for prosecution qua allegation of corruption in respect of a public servants is required before setting in motion even the investigative process under Section 156(3) of the Code of the Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’).

The special Judge closed the complaint in terms of order dated 4.2.2014 on account of the fact that the accused persons arrayed as respondents are either public servants or have remained as public servants and no prior sanction has been granted by the competent authority under section 19 of the PC Act read with section 197 of the Cr.P.C. To support this conclusion, reliance was placed on the judgment of this court in Anil Kumar v. M.K. Aiyappa 1 opining that no complaint could be forwarded for investigation under section 156(3) of the Cr.P.C. nor could any proceedings be initiated under Sections 200 & 202 of the Cr.P.C. in the absence of such sanction. It was, thus, observed that further proceedings in the case would be conducted on the filing of sanction.

It is, thus, the Submission of Mr. Prashant Bhushan that there is a distinction between the investigation carried out at pre-cognizance stage, which could not face the requirement of a prior sanction qua a public servant, as against a post-cognizance proceeding which needs a prior sanction. We may also notice that in terms of sub section (4) of Section 5 of the PC Act, for the proceeding before a Special Judge under the PC Act, the Special Judge shall be deemed to be a Magistrate.

It was sought to be contended that the requirement of the 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 found acceptable as sub section of Section 19 of the PC Act had no 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 mandatory requirement. In the absence of the prior sanction, it was observed , that the Magistrate cannot order investigation against a public servant even while invoking power under section 156(3) of the Cr.P.C.

We have examined the rival contentions and do find a divergence of opinion, which ought to be settled by a larger Bench.



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