SC refers to larger bench issue of sanction before probe against govt servant in graft cases

New Delhi: Is there a need for sanction to prosecute a public servant accused of corruption before initiating investigation under the Criminal Procedure Code (CrPC) — this question was today referred by the Supreme Court to a larger bench for consideration.

Supreme Court

A two-judge bench of justices J Chelameswar and S K Kaul passed the order on the issue which was raised in a plea that alleged that a former chief minister of Rajasthan and other public servants hatched a conspiracy for own vested interests and caused loss to the exchequer in tender procedure of eight drinking water projects in 2008.

A magisterial court had earlier refused to order investigation under section 156 (3) of the CrPC due to the absence of sanction to prosecute public servants. This order was upheld by the higher court after which an appeal was filed in the apex court in 2014.

“The complete controversy referred to and the conundrum arising in respect of the interplay of the Prevention of Corruption Act offences read with the CrPC is, thus, required to be settled by a larger bench. The papers may be placed before the Chief Justice of India for being placed before a bench of appropriate strength,” the two-judge bench said.

During the proceedings, advocate Prashant Bhushan, appearing for petitioner Manju Surana, had questioned an opinion of the apex court in a previous judgement and argued that the requirement of prior sanction for prosecution of public servant would arise only when cognizance was taken, while no such sanction was required at the stage of setting into motion an investigation under Section 156(3) of the CrPC.

Bhushan also submitted that there is a distinction between the investigation carried out at pre-cognizance stage, which would not face the requirement of a prior sanction qua a public servant, as against a post-cognizance proceeding which needs prior sanction.

The court also took on record the submission of Additional Solicitor General Tushar Mehta that allegation against a public servant under the PC Act are technical in nature and would require a higher evaluation standard and thus the magistrates ought to apply their mind before ordering investigation.

The ASG had further argued that ordering investigation under Section 156(3) of the CrPC in a routine manner may give rise to a situation where an FIR would be registered against a public servant, who may have no role in the allegation made.

Considering arguments of both the parties, the apex court said, “We have examined the rival contentions and do find a divergence of opinion, which ought to be settled by a larger Bench.”

It also said that there is no doubt that even at the stage of 156(3), while directing an investigation, there has to be an application of mind by the magistrate.

“Thus, it may not be an acceptable proposition to contend that there would be some consequences to follow, were the magistrate to act in a mechanical and mindless manner. That cannot be the test,” the bench said.