With this factual background, we advert to the questions of law that arise for consideration:



NARAYANA SWAMY

VS.

STATE OF KARNATAKA & ORS

Para 7.With this factual background, we advert to the questions of law that arise for consideration:

  • Whether an order directing further investigation under Section 156(3) of the Cr.P.C. can be passed in relation to public servant in the absence of valid sanction and contrary to the judgments of this court in Anil Kumar & Ors vs. M.K.Aiyappa & Anr.1 and Manharibhai Mullhibhai Kakadia and Anr. v. Shaileshbhai Mohanbhai Patel and Ors.2?
  • Whether a public servant who is not on the same post and is transferred (whether by way of promotion or otherwise to another post) loses the protection under Section 19(1) of the P.C. Act, though he continues to be a public servant, albeit on a different post?

Para 8.Since requirement of obtaining sanction is contained in Section 19(1) of the P.C. Act, it would be proper to reproduce the same. For other purposes, reproduction of sub section (1) of Section 19 of the P.C. Act shall suffice which we reproduce herein below:

  1. Previous sanction necessary for prosecution.-

No court shall take cognizance of an offence punishable under section 7,10,11,13 and 15 alleged to have been committed by public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]-

  • In the case of a person who is employed in connection with the affairs of the union and is not removable from his office save by or with the sanction of the central govt. of that govt.
  • In the case of a person who is employed in connection with the affairs of a state and is not removable from his office save by or with the sanction of the state govt. of that govt.
  • In the case of any other person of the authority competent to remove him from his office.

Para 9.As it is clear from the plain language of the said section, the court is precluded from taking “cognizance” of an offence under certain sections mentioned in this provisions if the prosecution is against the public servant, unless previous  sanction of the Government (Central or State, as the case may be) has been obtained. What is relevant for our purposes is that this section bars taking of cognizance of an offence. The question is whether it will cover within its sweep order directing investigation under Section 156(3) of the Cr.P.C? High court has taken the view, in the impugned judgment, that bar is from taking cognizance which would not apply at the stage of investigation by investigating officer.

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