Whether A Magistrate Can Order Investigation U/S 156(3) CrPC In Absence Of Sanction U/S 19 Of PC Act?: Kerala HC Refers To Larger Bench

Can a magistrate order investigation under Section 156(3) CrPC if sanction under Section 19 of the Prevention of Corruption Act is absent ?

The Kerala High Court has referred this question to larger bench.

The Bench of Justice K Babu highlighted that Jayant and Others v State of Madhya Pradesh was decided after the High Court's ruling in Muhammed V.A. and Others v State of Kerala and Others, which had established Anil Kumar and Others v M. K. Aiyappa and Another as the binding precedent. Given the subsequent pronouncement in Jayant, the Court held that the question needed reconsideration in light of this newer ruling. The Court stated, "As the judgment of the Supreme Court in Jayant is subsequent to the judgment in Muhammed and since the ratio laid down therein has been followed by this Court as the latest expression of law by the Supreme Court, the issue whether the dictum laid down by the Division Bench of this Court in Muhammed continues to govern the field in view of Jayant deserves to be reconsidered authoritatively by a larger Bench."

The issue arose in a case where individuals were accused of unlawfully collecting a capitation fee for student admissions at Nazareth Pharmacy College. The complainant alleged that these actions constituted offences under the Prevention of Corruption Act. The petitioner sought an investigation from the Enquiry Commissioner and Special Judge Kottayam, but the Special Judge dismissed the application, stating that an investigation under Section 156(3) of the Code of Criminal Procedure could not be ordered without prior sanction as required by Section 19. The Court was tasked with determining whether such a sanction is necessary at the stage of ordering an investigation under the PC Act.

The Supreme Court's Division Bench in Anil Kumar and Others v M. K. Aiyappa and Another (2013) ruled that a Special Judge cannot refer a private complaint for investigation without a valid sanction under Section 19 of the Act, even if it's at the pre-cognizance stage. This principle was followed by many subsequent Supreme Court judgments.

However, in Manju Surana v Sunil Arora (2018), the Supreme Court observed that the findings in Anil Kumar contradicted propositions laid down by larger benches and referred the issue to a larger bench.

The Kerala High Court, in Koshy John v State of Kerala, also noted that Anil Kumar conflicted with rulings from 3-Judge Benches in earlier cases and referred the matter to its Division Bench. The Division Bench in Muhammed V.A. and Others v State of Kerala and Others (2019) held that until the Supreme Court's larger bench settles the matter, the Anil Kumar precedent should be followed. This approach has been adopted by other High Courts as well.

Meanwhile, the legislature introduced Section 17A into the Act, requiring sanction prior to investigating public servants in certain cases.

In Jayant and Others v State of Madhya Pradesh (2020), a Division Bench of the Supreme Court ruled that when a Magistrate directs the police to register an FIR, investigate, and submit a report, it does not mean the Magistrate has taken cognizance. The Court referenced Anil Kumar, affirming that a Special Judge referring a complaint for investigation under Section 156(3) of CrPC is at a pre-cognizance stage.

The Amicus Curiae argued that the decision in Anil Kumar conflicts with earlier Constitutional Bench and 3-Bench decisions. It was noted that Chapter V, which includes Section 19, is titled "Sanction for Prosecution and Other Miscellaneous Provisions." The heading for Section 19 is "Previous Sanction Necessary for Prosecution," suggesting that 'cognizance' in this context refers to the Court initiating the process to prosecute the accused.

The High Court observed that a Judge applying their mind to a complaint for purposes other than initiating judicial proceedings under Sections 200 to 204 of the Cr.P.C. does not constitute taking cognizance. It noted that the decision in Jayant, which was rendered by a Bench of equal strength after Anil Kumar, reconciled the ratio of Anil Kumar with earlier Constitutional Bench and larger Bench decisions, thus making Jayant the binding precedent.

The Court also observed that Anil Kumar was decided before the introduction of Section 17A, and therefore, it cannot be considered a precedent post-amendment. The insertion of Section 17A suggests that cognizance in Section 19 is unrelated to the investigation stage. The High Court did not consider whether Anil Kumar could still be a precedent in light of the amendment, even though Muhammed was decided after Section 17A was introduced.

The Court outlined principles for the High Court to follow when faced with divergent Supreme Court decisions:

1) When judgments are given by benches of unequal strength, the law declared by the larger bench is to be followed.

2) When both benches are of equal strength and the subsequent judgment refers to an earlier judgment, the subsequent judgment is to be followed.

3) When a subsequent decision distinguishes the earlier decision, the subsequent decision is binding.

The Court further specified principles for interpreting judgments with divergent views:

1) Ascertain the principle laid down by the decision and avoid unnecessarily expanding the scope and authority of a precedent.

2) Only the principle upon which the case was decided is binding.

3) Casual expressions carry no weight.

The Court directed the registry to place the matter before the Chief Justice for referral to a larger Bench.

Cause Title: AK Sreekumar vs State of Kerala & Ors.

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