The Government of Rajasthan promulgated the ‘Criminal Laws (Rajasthan Amendment) Ordinance, 2017’ (Ordinance No.3 of 2017) (hereinafter referred to as the ‘Ordinance’) which was notified on 7th September, 2017 after obtaining instruction from Union of India in pursuance of the proviso to clause (1) of Article 213 of the Constitution of India. The Ordinance seeks to insert proviso to Section 156(3) and Section 190 of Cr.P.C. and Section 228-B in Indian Penal Code.
Before adverting to the issue at hand, one must understand the complaint filing and the investigative procedures prevalent for offences relating to the Prevention of Corruption Act, 1988(hereinafter referred to as the ‘PC Act’). In most States and also at the Centre, it is a specialized independent body in the nature of a Lokayukta (Anti-Corruption Ombudsman),that is tasked with dealing with complaints against the Public Servants. This body is headed by a retired High Court or Supreme Court Judge, generally appointed by a consensus between the Chief Justice, the Chief Minister and the Leader of Opposition in the State. Therefore, it may be noted that the said Ombudsman is a high constitutional functionary appointed through a transparent and balanced mechanism. It is to be further noted that such ombudsman also has a legal team of officers, a specialized Police Station, a Special Court and relevant know how in terms of dealing with sensitive matters concerning probity in public life by officials, judges and elected representatives. It may be noted that considering the rigours of public life in India and the fact how vested interests, on both sides of the political spectrum, often make irresponsible moonshine allegations against officials, the Ombudsman functions as key check-post in separating the wheat from the chaff. At this juncture, it may be noted that normally, complaints against public servants by private individuals are to be addressed to such Ombudsman which have specified mechanism is dealing with the said complaints and taking the necessary action. Otherwise, when a complaint is filed with some other Police Station, the officers often forward the same to the nearest Lokayukta office or the relevant Ombudsman. Therefore, the standard procedure for any complaint would be to approach the above said authorities to seeks investigation against the allegedly erring officials. It may be noted that investigation, in such cases is not barred till the sanction under Section 19 of the PC Act or Section 197 of Cr.P.C. is procured. The said provisions only estop the Special Judge from taking ‘cognizance’ of the offence before taking sanction from the appropriate authority.
The other mechanism, which is rarely used by complainants after failing to convince the independent ombudsman, is the procedure under Section 156(3) of the Cr.P.C.It may be noted that in a way, this amounts to circumvention of the procedure and the systems established by the specialized body. Section 156(3)empowers the Magistrate to order ‘further investigation’ against the persons complained against by the Complainant. Section 156(3) has been a subject of endless legal debate, with experienced criminal law practitioners and judges often having differing views on nature of power exercised under Section 156(3), the standard by which the complaint is to be judged and whether it would amount to taking ‘cognizance’ or not. There are conflicting views about it, especially on the nature of the application of mind required by the Magistrate at this stage. A three Judge Bench of the Supreme Court in DevarapalliLakshminarayana Reddy and Others v. V. Narayana Reddy and Others[i], held as follows;
“If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under S.156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in inquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself”
Therefore, in the above said case, the power under Section 156(3) was considered as an alternative to taking cognizance and more importantly, it was presumed that the power under Section 156(3) was not to be exercised by ‘inquiring’ into the matter. Further, the bench presumed that the standard for the exercise the power was limited to ascertaining if the allegations in the complaint disclosed a cognizable offence. Similarly, the Supreme Court in SrinivasGundluri&Ors.vs M/S. Sepco Electric Power Construction Corporation[ii], took a view that the Magistrate, instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may directly order the police for conducting investigation under Section 156(3).
Contrary to the said judgments, in Ramdev Food Products Private Limited v. State of Gujarat[iii] while dealing with the exercise of power under Section 156(3) CrPC by the Magistrate, a three-Judge Bench held that:
“…. the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.”
Therefore, the Court herein, clearly recognized that the ‘application of mind’ may be necessary to exercise power under Section 156(3) and the credibility of the information was to be ‘weighed’ before ordering any investigation. This position may be opposition to the view of the Supreme Court in the case of Devarapalli supra.
Be that as it may, considering that allegations against public servants under PC Act offences (or related offences in the IPC), are technical in nature and would require a higher evaluatory standard, it is safe to assume that Magistrates ought to apply their mind before ordering investigation against the public servant. However, as per the view in Devarapallisupra and considering the fact that there are a host of judgments on Section 156(3) given under different circumstances, the Magistrates may often be forced to exercise their power in a routine manner with weighing the veracity of the allegations. Moreover, the Supreme Court has in Suresh Chand Jain Vs. State of Madhya Pradesh[iv] and Mohd. YousufVs. AfaqJahan[v], stated that once the power under Section 156(3) is exercised, the Police is ought to register an FIR. Therefore, it may result in a situation wherein the Magistrate exercised the power under Section 156(3) in a routine manner resulting in an FIR against a public servant who may have no role in the allegations made. Considering the rough and tumble of today’s media machinery and the cringe-worthy presumption of guilt against the public servants, the said exercise of power often results in suspension, or at least unwarranted transfers, of public officials.
Now, let us advert to the provisions of the Ordinance. The Ordinance adds the following proviso to the text of Section 156(3):
“Provided that, under the aforesaid sub-section, no Magistrate shall order an investigation nor will any investigation be conducted against a person, who is or was a Judge or a Magistrate or a public servant, as defined under any other law for the time being in force, in respect 2 of the act done by them while acting or purporting to act in the discharge of their official duties, except with previous sanction under section 197 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) or under any other law for the time being in force:
Provided further that the sanctioning authority shall ordinarily take a decision within one hundred and eighty days from the date of the receipt of the proposal for sanction:
Provided also that if the sanctioning authority fails to issue prosecution sanction within one hundred and eighty days, the prosecution sanction under section 197 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) or under any other law for the time being in force shall be deemed to have been issued:
Provided also that no one shall print or publish or publicize in any manner the name, address, photograph, family details, or any other particulars which may lead to disclosure of identity of a Judge or Magistrate or a public servant against whom any proceeding under this section is pending, until the sanction as aforesaid has been or deemed to have been issued.”
Similar changes have been carried out in section 190 of the Cr.P.C. and there has been an addition of Section 228-B mandating a maximum punishment of two years for revealing the identity of public servants/judges.
There are four aspects to the changes sought to be made by the Ordinance:
- No investigation can be ordered under Section 156(3) only without prior sanction. Investigation through ordinary route by relevant specialized agencies remain unhindered by the said requirement.
- The requirement of sanction under Section 156(3) and the decision therein has to be taken by the appropriate authority within 180 days.
- If no decision is taken under 180 days, there would be a concept of a deemed sanction.
- During the period of 180 days, when the question of sanction is pending, no one shall publicize or disclose the identity of the public servant involved.
The first three point are clearly defendable with clear judgment of the Supreme Court mandating exactly the same. The last proviso may have a different constitutional issue involving the freedom of press and what constitutes reasonable restrictions on it, which is beyond the scope of this article.
It is to be noted that the changes sought by the Ordinance are largely redundant because as per the judgments of the Supreme Court, that is exactly the exposition of law the said subject. The Supreme Court, recent cases, has consistently held that the sanction is a clear requirement before ordering investigation against a public servant under Section 156(3). The Supreme Court in Anil Kumar and Others v. M.K. Aiyappa and Another[vi] and ManharibhaiMuljibhaiKakadia and Another v. ShaileshbhaiMohanbhai Patel and Others[vii]has held the same in unequivocal terms. More recently, the Supreme Court in L. NarayanaSwamyvs State of Karnataka[viii], when asked to judge the correctness of Aiyappa supra and Manharibhai supra, reiterated the position with certain clarity. The Court held as under:
“Having regard to the ratio of the aforesaid judgment [Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] , we have no hesitation in answering the questions of law, as formulated in para 10 above, in the negative. In other words, we hold that an order directing further investigation under Section 156(3) CrPC cannot be passed in the absence of valid sanction.”
The Court relied upon the text of Section 19/Section 197 to ascertain the nature of the special protection afforded to public servants before any Court takes cognizance of offences against them. It may be noted that perhaps the Court recognized the difficulties in the routine application of power under Section 156(3) of the Cr.P.C. to the PC Act offences. The Court opined as under:
“12. As 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 provision 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) CrPC?”
To answer the said question, the Court first referred the case of Manharibhaisupra. The Court held as under:
- …….. However, it was held that even while directing inquiry, the Magistrate applies his judicial mind on the complaint and, therefore, it would amount to taking cognizance of the matter. In this context, the Court explained the word “cognizance” in the following manner: (ManharibhaiMuljibhaiKakadia case [ManharibhaiMuljibhaiKakadia v. ShaileshbhaiMohanbhai Patel, (2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218] , SCC p. 533, para 34)
“34. The word “cognizance” occurring in various sections in the Code is a word of wide import. It embraces within itself all powers and authority in exercise of jurisdiction and taking of authoritative notice of the allegations made in the complaint or a police report or any information received that an offence has been committed. In the context of Sections 200, 202 and 203, the expression “taking cognizance” has been used in the sense of taking notice of the complaint or the first information report or the information that an offence has been committed on application of judicial mind. It does not necessarily mean issuance of process.”
The Court clearly mentions that directing an enquiry under the PC Act (or against public officials in general for offences committed ‘in the course of their duty’) under Section 156(3), would necessarily require an application of mind by the Magistrate and therefore, cannot be assumed to be carried out in a routine manner. Therefore, the Court states that once there an application of mind to the complaint, that would amount to ‘taking cognizance’ and therefore, Section 19 of the PC Act or Section 197 of the IPC would kick in.
The Supreme Court further relied upon the Aiyappacase to ascertain the meaning of the term ‘taking cognizance’. The Court held as under:
- The second judgment in Anil Kumar [Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] referred to above is directly on the point. In that case, identical question had fallen for consideration viz. whether sanction under Section 19 of the PC Act is a precondition for ordering investigation against a public servant under Section 156(3) CrPC even at pre-cognizance stage? Answering the question in the affirmative, the Court discussed the legal position in the following manner: (SCC pp. 711-12 & 713-14, paras 13-15 & 21)
“13. The expression “cognizance” which appears in Section 197 CrPC came up for consideration before a three-Judge Bench of this Court in State of U.P. v. ParasNath Singh [State of U.P. v. ParasNath Singh, (2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200] and this Court expressed the following view: (SCC p. 375, para 6)
‘6. … “10. … And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in 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 cognizance of such offence except with the previous sanction”. Use of the words “no” and “shall” makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black’s Law Dictionary the word “cognizance” means “jurisdiction” or “the exercise of jurisdiction” or “power to try and determine causes”. In common parlance, it means taking 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.” [Ed.: As observed in State of H.P. v. M.P. Gupta, (2004) 2 SCC 349, 358, para10 : 2004 SCC (Cri) 539] ’
- In State of W.B. v. Mohd. Khalid [State of W.B. v. Mohd. Khalid, (1995) 1 SCC 684 : 1995 SCC (Cri) 266] , this Court has observed as follows:
‘13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.’ [Ed.: As considered in State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, 734, para13 : (2006) 3 SCC (Cri) 179]
Therefore, the Court held that the act of taking notice of the complaint, coupled with the act of application of mind, would amount to ‘taking cognizance’. To further said point, the Court relied upon the Black’s Law Dictionary definition of term ‘cognizance’. Hence, it is clear that as per the law as on date, the Ordinance makes little to no change in the application of Section 156(3) therefore, must be validated in case of challenge in the Courts.
It must however be clarified that there is considerable body of academic opinion on the subject of the above said judgments being per incuriam. It is argued thatas per the definition of the term ‘cognizance’ and as per the the numerous precedents stating that exercise power under Section 156(3) would not amount to ‘taking cognizance’, the judgements post Aiyappaare erroneous. The major reliance in this regard is placed upon the case of R.R.Chari vs. State of U.P.[ix]. The Supreme Court, in the said case, approved the following observations of Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji[x]:
“What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under S. 190 (1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter – proceeding under S. 200 and thereafter sending it for inquiry and report under S. 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e. g., ordering investigation under S. 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”
The same language, more or less has been repeated consistently by the Supreme Court in the NarayandasBhagwandasMadhavdas Vs. State of West Bengal[xi], Gopal Das Sindhi Vs. State of Assam[xii], Jamuna Singh Vs. Bhadai Shah[xiii], D. Lakshminarayana Reddy and Others v. V. Narayana Reddy and Others[xiv], Tula Ram Vs. Kishore Singh[xv], etc. Therefore, there is considerable force, at least as an academic opinion, in argument that “taking cognizance” in S.190 means application of mind for the purpose of proceeding under S. 200 and subsequent sections of Ch. XV of the Cr.P.C. To extend the argument further, it may argued that exercise of power under Section 156(3) would not amount to taking cognizance, even in case of offences against public officials under the PC Act or the IPC. It would also presume that ‘application of mind’ and ‘taking cognizance’ would be, two different and unrelated acts, carried out by the Magistrate. It can further be argued that the by reading the phrase ‘taking cognizance’ differently in different situations(particularly PC Act offences), the Court has made a fundamental alteration in the words of the Statute which is completely impermissible[xvi].
It is to be noted that perhaps, what played on the minds of the judges in deciding these cases, would have been the increased presence of certain anti-social elements, seeking to overreach the Ombudsman and ostensibly gain unwarranted leverage over vulnerable public servants. Recently, the Supreme Court in possibly recognizing the misuse of Section156(3) by unscrupulous elements, in PriyankaSrivastava&Anrvs State Of U.P.[xvii], held as follows:
“In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible.”
Be that as it may, the position as on date remains governed by the Aiyappacase and thejudgments after that. The meaning of the word ‘cognizance’ may be a sticky wicket considering that different judges have used it different. The stage of ‘taking cognizance’ also remains shrouded in doubt and malleability considering the language of Section 190 Cr.P.C. and the clear element of application of mind in complaints involving Section 156(3). The question whether a Magistrate took Cognizance or not depends upon the purpose for which he had applied his mind to it and the stage at which he has done so. The Supreme Court in Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1, has held that even statutory definitions, can mean different things in different contexts. The Court held as under:
“28. Now, the principle is that all statutory definitions have to be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. That is why all definitions in statutes generally begin with the qualifying words, similar to the words used in the present case, namely “unless there is anything repugnant in the subject or context”. Thus there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in the definition section, namely “unless there is anything repugnant in the subject or context”. In view of this qualification, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words “under those circumstances”. (see Vanguard Fire and General Insurance Co. Ltd. v. Fraser &Ross[AIR 1960 SC 971 : (1960) 3 SCR 857] )”
Therefore, when the Magistrate applied his mind for exercising his powers to issue a search warrant under Section 96Cr.P.C. or granting or refusal of bail during investigation Sections 436,437Cr.P.C. or for the recording a confession or a Statement under Section 164Cr.P.C., it cannot be said that he had taken cognizance of the case. On the other hand,it can said that when the Magistrate applies his mind for examining the complaint under Section 200 Cr.P.C. or conducting an inquiry under Section 202 Cr.P.C. or in special case of exercise of power under Section 156(3) where the offence involves public servant or is committed under the PC Act (wherein there is a clear protection against cognizance under Section 19), it can be concluded that he had ‘taken cognizance’ of the offence.
The above said academic criticism aside, it is clearly established that the major supposed ‘change’ sought by the Ordinance is largely redundant as per the law declared by the Supreme Court. It must be noted that the law declared by the Supreme Court is exactly in consonance with the content of the Ordinance. As far as the media ‘gag’ element is concerned, it may be difficult to sustain considering that the Ordinance seeks to impose a high criminal liability in cases of disclosure.Other than that, the criticism surrounding the alleged barring of investigation before sanction is farcical if one studies the impact of the changes brought about by the Ordinance and the precedents surrounding the issue.
The powers of the designated authorities like Lokayuktas or other anti-corruption ombudsman are not restricted by the Ordinance. Further, informed and responsible citizens are open to approach such authorities with complaints for the authorities to act under the relevant provisions. The only limitation that the Ordinance imposes is to the procedure under Section 156(3) which seeks to circumvent the established process by extending the protection of sanction even in cases of such circumvention.We must realise that law making is a highly technical process and requires discussion, debate and deliberation to result in to a viable draft. As if often the case in democracies, public sentiment affects the law judging process to a great extent and that sentiment in the present case has been highly negative.This public sentiment based approach is insincere, and is an avoidable latch in the quality law making.
(KanuAgrawal is an advocate practicing at the Supreme Court of India.)
[i]1976 AIR 1672
[ii]2010 (2) SCC 1539
[iii](2015)6 SCC 439
[iv](2001)2 SCC 628
[v](2006)1 SCC 627
[vi] (2013)10 SCC 705
[vii](2012)10 SCC 517
[viii](2016) 9 SCC 598
[ix]AIR 1951 SC 207
[x]AIR 1950 Cal 437
[xi]AIR 1959 SC 1118
[xii]AIR 1961 SC 986
[xiii]AIR 1964 SC 1541
[xiv]AIR 1976 SC 1672
[xv](1977) 4 SCC 459
[xvi]Danckwerts L.J. in Artemiou v. Procopiou, 1966 (1) Q.B. 878
[xvii](2015) 6 SCC 287
