'With due respects', 'With the greatest of respects', 'In deep reverence' and 'In all and every humility', it is necessary now to say - "One ignorantly given SC judgment is wreaking havoc across India". The prefatory salutations are dispensed with in the rest of this piece to ease reading. The reader is asked to presume it's presence wherever convention expects it.

Supreme Court Advocate K.V.Dhananjay speaks here about a recent judgment of the Supreme Court that he says, was given in tremendous confusion over elementary criminal procedure [Anil Kumar v. M.K.Aiyappa [(2013) 10 SCC 705]. He says that this judgment has been wreaking havoc across the courts of this country and is leading to devastating consequences – countless public servants are becoming magically immune from police investigation into their corruption and misdeeds; such public servants now have more freedom to engage in more acts of corruption and lawlessness without any such thing as fear of the law. He says that anti-corruption efforts across the country are taking their worst beating ever in the history of independent India - due to this sole judgment. The fact that the judges of our High Courts and of our trial courts have been mindlessly and of course, foolishly, complying with this judgment when they should not have done so raises substantial worries over the efficiency of such judges in courts in the States. It is equally worrisome that our Bar too has failed the public by trending towards severe ignorance of even elementary criminal procedure. Dhananjay says that these worries also raise a fundamental question over the worthiness of our ‘Senior Counsel’ system that assigns ‘careful learning to just a few members of the Bar’ – a group that does not, as a whole, appear to be more knowledgeable than the rest who look up to it.

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Synopsis: Section 156(3) of the Criminal Procedure Code, 1973 allows a Magistrate to direct the police to conduct an investigation that the police could have otherwise conducted – in deserving cases. Neither the Criminal Procedure Code, 1973 nor the Prevention of Corruption Act, 1988 says that a ‘sanction’ from the Government is necessary to allow police investigation into any offence under those statutes – in fact, it would be absurd to speak of sanction to even investigate a person. The question of sanction arises only after the process of investigation is complete and the investigating agency has prepared a ‘police report’ that recommends punishment of the persons named therein. It is this police report that the investigating agency provides to the sanctioning authority to back its request for sanction. In a first ever judgment that breaks away from everything that had been said earlier, the Supreme Court has held in the Aiyappa (supra) judgment that a Magistrate cannot direct police investigation under Section 156(3) against public servants if the Government has not sanctioned such an investigation! In fact, such a proposition is altogether absurd and has had the effect of reversing the law that has since been established for well over a century – with devastating consequences to the country.

Let us first take a general look at what we are talking about here before we get into a few technicalities. You are not a lawyer yet or just a lay person? Don’t despair. Keep reading.

Most of you would be aware of this thing called a ‘sanction’ to criminally prosecute a public servant. The statutes say that such ‘sanction’ will have to be granted by the authority that has employed or is competent to remove the public servant at issue. Naturally, the question then becomes, ‘at what stage is sanction granted’? You will see in a while.

What you might know already is that the police will first investigate a crime. Most of the serious crimes in our society are labelled by our lawmakers as ‘cognizable’ – rape, murder, kidnapping, assault, dacoity, corruption, cheating and the like. What does it matter whether an offence is ‘cognizable’ or not? It does not; unless, the law provides some significance to a ‘cognizable offence’. It does. The law says that a ‘cognizable’ offence could be tackled by the police immediately after they learn about it; that is, the police can spring into action immediately without obtaining permission from any person or authority to deal with a cognizable offence.

The procedure in criminal cases and criminal courts in India is generally governed by the Criminal Procedure Code, 1973 – a statute that should rank as one of the finest in the world. We will refer to it hereinafter as the ‘Code’. Any reference to a ‘Section’ hereinafter without stating the name of the statute shall be read as taken out of this ‘Code’.

Once the police receive information that a cognizable offence has been committed or is in the process of commission, they will briefly but immediately, record that information in their book. This recording on paper is generally called as a ‘First Information Report’ (‘FIR’). From this point onwards, the police acquires the power to investigate [Section 154(1)]. Now, is the power to investigate of any real use if that power be feeble? Obviously, the police should have great powers to investigate. The lawmakers have in fact, conferred great powers to our police to investigate a crime – the power to arrest, to summon a witness, to question witnesses, to seize documents and other materials, to break open the door of a premises, to follow suspects and the like. By using such powers, the police will investigate a crime. (See Chapter XII of the Code, generally).

Let’s say in a given case, the police makes a few arrests, records statements of witness, seizes documents and is satisfied that certain persons have committed a few offences. They will then prepare a report that is generally called as a ‘police report’ or a ‘charge sheet’. They will file this report to the Magistrate in which they recommend punishment of certain named persons. The Magistrate will peruse this report and if he preliminarily agrees with the police, he will state in his order that he takes ‘cognizance’ of those offences. He will then summon those accused persons to stand trial.

What happens afterwards? For the purpose of this article, you don’t need to delve into such aftermath. Yet, in the interest of completeness, let us also take note of it. In answer to the summons, the accused will present themselves before the Magistrate. They will be given the whole case against them in paper form. After that, the Magistrate will personally ask the accused for their response. If the accused refuses to plead ‘guilty’, a trial should be held then to determine the guilt of the accused. Just to ensure that the whole trial receives a pointed direction, the Magistrate will then frame the ‘charges’. Next, the prosecution will commence their part – they will bring their witnesses to the stand, administer oath to them and elicit incriminating information and materials against the accused. Then, those witness should face the accused’s questioning. This is called as ‘cross-examination’ generally. The accused or his lawyer will question those witnesses with a view to find fault with their testimony. Of course, in some circumstances, the character or what is referred to as ‘credit’ of such witnesses could also be attacked within reasonable bounds. The prosecution just finished their bit. Next comes the role of the accused. As you would know, an accused has a right to remain silent and the fact that he would not take the witness box to say anything cannot be construed against him – the burden in most criminal cases is upon the prosecution to prove the guilt of the accused beyond reasonable doubt. Still, an accused may choose to take the witness box. He will then say a few things in response to questions by his counsel. Thereafter, the counsel for the prosecution will attack the accused and try to discredit him. Once this stage is complete, the case reaches the argument stage. This is the stage at which, first the prosecution and then, the accused will argue about the law that should be applied to the facts discovered at the trial. Of course, these arguments are generally made by the counsel. The judge will then take time to reflect on all that he was taken through and will finally, announce his judgment on whether he would ‘convict’ or ‘acquit’ the accused. He does so in open court. If he did ‘convict’ the accused, he will then invite arguments from both sides on what should be the punishment that should be awarded to the accused. He would hear the arguments and decide accordingly. The jail authorities are then informed of the decision and the accused is sent away to serve jail time.

In the aforesaid paragraph, I have outlined the broad features of a trial without being too faithful to every detail that one finds in procedure. As this article does not call for any discussion on the features of a full-fledged trial, I was keen to merely provide a conceptual framework about what a full-fledged trial involves. It involves some more intermediate steps such as the accused making out a case through argument that he should be discharged from being tried due to defective or insufficient evidence against him, the Magistrate handing over the trial to a more experienced judge known as a ‘Sessions Judge’ to conduct the trial in certain cases and the like. You don’t need to know any of those things to assess the fundamentally serious error in Aiyappa. Right? It is. Let us now look into a few contingencies.

What if the police would refuse to register the FIR in your case? The statute will have to tell us on what could be done in such a case. It offers two options – the first one is that you go over to the Superintendent of Police for the District and hand over to him, the very complaint that the police has refused to act upon [Section 154(3)]; the second option is to proceed to a Magistrate and ask for a direction to the police to investigate [Section 156(3)].

Interestingly, in the first option, as you did go to another police officer who would himself have the general power to investigate, he could help you by investigating himself or getting another person under him to investigate your case. However, a Magistrate is a judge and has no power to investigate himself. So, what would the Magistrate do then on your complaint? If the Magistrate is convinced that the police should have acted on your complaint and should have begun an investigation but has refused to do so, he will simply direct the police to investigate and to follow the law. This procedure by which you approach the Magistrate and obtain a direction from him to the police whereby the police is told to simply discharge its own duty to investigate a fitting crime is specified in Section 156(3) of the Criminal Procedure Code, 1973.

So, the purpose of Section 156(3) is simply to remind the police to do the very thing they should have done themselves in the first instance.

Let’s now come to offences committed by public servants. Two statutes say that as far as public servants are concerned, there is some protection available to them which would not be available to the ordinary folks. That protection is referred to as ‘sanction’. The statutes says that a Court can only take ‘cognizance’ of certain offences against a public servant if ‘sanction’ has been granted by the authority that has employed him or is competent to remove that public servant. The general explanation for this kind of special treatment is to ensure that the Government protects honest officers from unjustified prosecution – after the Government is informed about the investigated case against its servants.

If you recall from the earlier paragraphs, a court will take ‘cognizance’ only after the police has completed its investigation, prepared and filed a ‘police report’ or ‘charge sheet’ to the Court.

In practice, where the offence requires sanction to prosecute a public servant, firstly, the police would investigate, prepare their ‘police report’ and forward it to the sanctioning authority. Obviously, the police would request for ‘sanction’ based on the justification they put in their ‘police report’. The sanctioning authority may grant or reject the sanction sought. In either case, the police will submit such grant or rejection order to the Magistrate along with their police report. The Magistrate will then peruse the ‘police report’ and if a case is made out for proceeding forward by taking ‘cognizance’, he will ask to see the ‘sanction’ order. If there is none, the Magistrate will refuse to take ‘cognizance’ on the ground that the sanction order is not present. Thereby, the Magistrate would not proceed further. If there be sanction however, the Magistrate will see no constraint in taking cognizance and proceeding further – if he wants to do so due to the merit of the case.

As said earlier, the criminal procedure in our courts is governed by the Criminal Procedure Code, 1973. This statute replaced the Criminal Procedure Code of 1898. Prior of the 1898 Code, we had similar procedural statutes. So, in the realm of procedure, certain things have been very well established. Thereby, a lawyer who would say something grossly ignorant of our criminal procedure would expose himself very quickly.

Now, let’s raise a common sense question here – say, you are a private person. You want to complain against a public servant on ground of corruption or some other offence under the Indian Penal Code, 1860 that requires sanction to prosecute such offences. You head to a police station. Let us assume that the police officer there does not receive or act on your complaint. You will know then that the option available to you is to head to the Superintendent of Police. Say, you exercise that option as well but to no avail. Then, say, you will head to the Magistrate under Section 156(3) of the Code. Should the Magistrate direct police investigation in your case? Assuming of course, that your case deserved a police investigation?

Of course, he should. That is the common sense approach as well as the law laid down for decades altogether in our country. Unfortunately, a sole judgment of our Supreme Court rendered in serious mistake of the law changed all of that. In Anil Kumar v. M.K.Aiyappa [(2013) 10 SCC 705], the Supreme Court held that the Magistrate cannot direct a police investigation under Section 156(3) of the Code if there is no sanction from the competent authority! No prior judgment of the Supreme Court, of the Federal Court before it or of the Privy Council had even remotely said anything so wrongly about ordinary criminal procedure.

The Aiyappa judgment has thrown anti-corruption efforts across the country out of gear. If you wish to experience first hand, the devastation that Aiyappa has been contributing to, take a complaint of corruption or other allegation against a high ranking public servant to your nearest police station. Whichever part of the country you live in, chances are that your police station will mostly show you the door to quickly disappear from their sight. Then, your only statutory recourse would be to a Magistrate under Section 156(3) of the Code. Proceed then to a Magistrate. Only to be shown the door again; this time, solely due to Aiyappa. Then, you might file a Revision or such other plea to your High Court. And your High Court too will throw you out in no time. Again, thanks to Aiyappa. In the meanwhile, do you think those public servants have any compulsion to become more law abiding? Of course, they might think of themselves as fools of the first order to not indulge in greater corruption or lawlessness. After all, what really is there to fear now? But then, how about you asking for a sanction from the Government to investigate them? Nonsense! There is no such sanction that any Government in this country is aware of and your application seeking sanction for a police investigation against a public servant could drive the whole sanctioning department to an unending fit of laughter.

Let’s first find out what was said about Section 156(3) by various courts earlier. More importantly, let’s read Section 156 first. It says:

Section 156 (1): Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.

There can be no difficulty in understanding what is said in Section 156(3). A Magistrate may order the same investigation that a police officer could have himself undertaken of a cognizable offence. That is, a Magistrate can direct a police officer to do the very thing that the police officer could have himself done without any such direction. Got it?

At this point, let us ask about why we had suggested earlier that one would go to the Magistrate after the police and the Superintendent of police refuse to act on a complaint. In fact, there is no statutory requirement that one should first go to the police, then to the Superintendent of Police and thereafter, to the Magistrate. That is, there is no statutory rule that prevents a person who wants a police investigation to directly approach a Magistrate under Section 156(3) and request for a direction to that effect. However, should you not even go to the police first but will simply head to the Magistrate with a complaint, the Magistrate will certainly ask you on why you did not go to the police first and instead want to engage the time of the Magistrate without justification. If you would not have a satisfactory answer to such a question, you should always approach the police first.

Finally, you will also need to know a bit about what is generally known as a ‘private complaint’. What is a private complaint? Well, there is no definition of what is a ‘private complaint’ in any statute and it loosely refers to many things. In the scheme that we spoke about in the aforesaid paragraphs, what you saw is that the police is the principal investigator who uncovers a crime and unearths incriminating material to nail the accused. But then, the role of the police is not always inevitable in uncovering every crime and punishing the guilty.

Say, you were cheated by somebody and you might think that you have in your possession, all the relevant documents to prove the guilt of the person who cheated you. Besides providing for a police investigation and prosecution in a court of law by the police, the Code also allows a private citizen to prosecute an offender himself without any assistance or involvement of the police. Section 200 of the Code allows any private person to head to a Magistrate and to make out his case for private prosecution. Just to ensure that the case is not frivolous, patchy or insufficient, the Magistrate will ask the complainant to enter into the witness box and will examine him as part of receiving his complaint. Once satisfied that a case is made to prosecute the accused named therein, the Magistrate will take ‘cognizance’ of the offences and will summon the accused. These things are generally referred to as a Magistrate acting on a private complaint. So, a private complaint could be generally thought of as a private person wanting to prosecute an accused on his own.

Now, say, you file a private complaint to the Magistrate and want to prosecute on your own. What if the Magistrate would say that your complaint is not good enough to be proceeded with at your instance but is a good starting point for a police investigation? Of course, he could say so. In such an event, the Magistrate will simply exercise the power given to him under Section 156(3) and will direct the police to investigate the crime. Can you object to it? Hardly.

Now, what exactly did the Hon’ble Supreme Court say on 01-Oct-2013 in Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC 705]?

The Supreme Court said that when a complaint is filed to a Magistrate under Section 156(3) of the Code asking for a police investigation against a public servant and the offence requires sanction for prosecution, the Magistrate cannot direct investigation by the police at all unless the complainant also produces sanction from the Government to allow such police investigation. Absurd it is!

This concept of sanction to investigate an accused is altogether alien and unknown to our criminal procedure. Further, it is wholly absurd in administrative terms. When there is not even a police investigation yet, how will the sanctioning authority know whether to grant or to refuse sanction? By magic or hunch? Where is the material to inform the sanctioning authority on the need for sanction? And, assume a sanction is granted to investigate and the police investigate and prepare their ‘police report’; they must then take one more sanction so as to allow the Magistrate to take further ‘cognizance’? Absurd again. Let alone our established criminal law, even ordinary common sense would have been enough to alert our various Courts that it would be tremendously ignorant to say that sanction is necessary to even allow the police to investigate offences against public servants. The Aiyappa judgment said this much:

“17. We may now examine whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage.”

“21…Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C…”

To repeat, the Aiyappa judgment is tremendously wrong about criminal procedure. Let’s find out below:

Two statutes speak of this ‘sanction’ to prosecute a public servant -one is the Prevention of Corruption Act, 1988. This statute lays down various offences, penalties and punishment. In Section 19 of this statute, a prohibition is created for a Court to take ‘cognizance’ of certain offences if there is no ‘sanction’ from the competent authority. To repeat, a Court cannot take ‘cognizance’ in the absence of sanction. Similarly, Section 197 of the Code prohibits a Court from taking ‘cognizance’ of certain offences under the Indian Penal Code, 1860 against public servants in certain circumstances. To repeat once again, a Court cannot take ‘cognizance’ in the absence of sanction. Let’s just find out in detail about what is said in these two statutes:

Section 19 of Prevention of Corruption Act, 1988 - Previous sanction necessary for prosecution.—(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,—

(a) 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 Government, of that Government;

(b) 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 Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.”

Section 197 of Criminal Procedure Code, 1973: (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.”

So, what the aforesaid two statutes say is that a Court is barred from taking ‘cognizance’ of such offences. So, what is this thing called a ‘cognizance’? Note carefully now. If a Magistrate directing police investigation under Section 156(3) of the Code would amount to taking of cognizance, then, sanction would be very much necessary. None can dispute this basic proposition. And, I would be grossly wrong about every criticism that I have levelled in this piece. So, let’s come to the root of the matter now. When a Magistrate directs a police investigation under Section 156(3), does it amount to taking of ‘cognizance’?

‘No’, ‘ Never’, ‘Not at all’, held our Supreme Court as early as in 1951 in the case of R.R.Chari v. State of Uttar Pradesh [1951 SCR 312] which continues to be the authority even to this date. And, in each and every judgment afterwards barring Aiyappa, the Supreme Court has said the same thing – over and over again. Even in 1951, the Supreme Court did not think it necessary to elaborate much while dismissing the argument of the accused that the word ‘cognizance’ should carry a different meaning then.

To repeat, the gist of every judgment until Aiyappa is that a direction by a Magistrate under Section 156(3) of the Code does not amount to taking of ‘cognizance’ and thereby, there cannot be any question of sanction at that stage. Why so? As you just saw, Section 19 of the Prevention of Corruption Act, 1988 and Section 197 of the Code speak of a Court being prohibited only from taking ‘cognizance’ of certain offences. And the Courts had time and again said the same thing over and over again; that when a Magistrate directs investigation under Section 156(3) of the Code, he does not take ‘cognizance’ of any offence.

In R.R. Chari v. State of U.P: (1951) SCR 312, the Supreme Court approved a widely known observation of the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abni Kumar Banerjee (AIR 1950 Cal 437):

“7. …What is ‘taking cognizance’ has not been defined in the Code of Criminal Procedure and I have no desire to attempt to define it. … 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 Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”

(emphasis supplied)

The aforesaid observation, the Supreme Court held is, “…the correct approach to the question before the Court.”

Please read the aforesaid paragraph once again. It clearly says that when a Magistrate directs police investigation under Section 156(3) of the Code, he does not take cognizance of any offence. Meaning, no question of sanction should arise at that stage. But, wait. Did the Supreme Court really say as much then?

You should know by now that an accused public servant in such cases would say that what was done by a Magistrate in his case would amount to taking of ‘cognizance’ and that the same was done in the absence of sanction and therefore, is bad in law. Was there such an argument by the accused in the case of R.R.Chari? Of course, there was such an argument with a different variation in that case. In response, the Supreme Court went on to state about what would not amount to taking of cognizance – the ordering of investigation under Section 156(3) of the Code.

You will thereby see that Aiyappa has said the exact opposite of what was said in 1951– unfortunately, without even realizing that a long and a massive list of authorities were being overridden thereby.

Next, the Supreme Court’s decision in the case of Devarapalli Laxminarayana Reddy v Narayana Reddy [(1976) 3 SCC 252] may be noted:

“9. Section 156 of the Code of 1973 reads thus:

(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.”

“10. This provision is substantially the same as Section 156 of the Code of 1898, excepting that in Sub-section (1), for the words "Chapter XV relating to the place of inquiry or trial," the words "Chapter XIII" have been substituted.”

“13. …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 Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring 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.”

“14. This raises the incidental question: What is meant by ‘taking cognizance of an offence’ by a Magistrate…If…he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.”

“17…. The power to order police investigation under Section 156(3) is … exercisable at the pre-cognizance stage…It may be noted further that an order made under Sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1) Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173…”

[emphasis supplied]

Read the above carefully? We will now come to the Supreme Court’s decision in Mona Panwar v. High Court of Judicature of Allahabad [(2011) 3 SCC 496]:

“18. … An order made under sub-section (3) of Section 156 of the Code is in the nature of a peremptory reminder or intimation to the police to exercise its plenary power of investigation under Section 156(1)…”

“19. …However, when the Magistrate had applied his mind only for ordering an investigation under Section 156(3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence.”

[emphasis supplied]

In the above paragraphs, we have only stated about a fraction of the massive number of Supreme Court judgments that share the same view. Do not trust us and please do your own research to discover a contrary view, if you can. You will find none. In that sense, the consistency of the Supreme Court in this aspect of criminal law is nothing short of ‘extraordinary’.

Now, what explains the fact that every such judgment has emphatically said that the act of the Magistrate directing a police investigation under Section 156(3) of the Code would not amount to taking of ‘cognizance’? Well, it only had to be that way. Any other answer would have been plainly incoherent and absurd. Let’s look more closely at the statutory scheme now.

Chapter 12 of Code deals with the powers of police and their powers of investigation. As said earlier, Section 154 of the Code places a duty upon the officer in charge of a police station to record the substance of any information laid before him - an allegation of commission of a cognizance offence. Once he does so, he could commence his investigation. What are his powers of investigation then? The answer is provided by some of the provisions of Chapter 12 of the Code:

Section 160 – Power of Police to require attendance of any person who the police believe could be a witness to the offence in question;

Section 161 – Power of Police to examine any person who they believe might be of help in aiding their investigation or unraveling the offence;

Section 165 – Search by a police officer in any place within the local limits of his jurisdiction for the purpose of aiding his investigation;

Section 166(A) – Power of the police to request a competent investigative agency in a place outside India to turn over material or evidence that could be of help in the local investigation by the police;

Also the general power of the police to take such other steps as may be necessary or desirable in the aid of their investigation is found elsewhere in the Code:

Section 102 – Power of Police officer to seize certain property suspected to have been connected to the commission of any offence;

Section 41 – Power of police to arrest any accused of having committed a cognizable offence;

Section 47 – Search of any place by a police officer – where a police officer is of the belief that a certain person sought to be arrested is likely to be found in a given place, the police officer may then search the place concerned;

Section 53 and 53(a) of the Code allowing the police to conduct medical examination of the accused in certain cases;

Section 91 – Summons to produce documents or other thing – Whenever any police officer considers any document or other thing to be necessary for the purpose of his investigation, he may direct the production of such document or such other thing from the person who is in possession thereof.

The aforesaid powers are the powers that are available to the police to aid in their investigation. Obviously, it could be invoked once an FIR has been registered - in terms of Section 154(1) of the Code or pursuant to a direction to the police under Section 154(3) [direction by the Superintendent of Police] or 156(3) [direction by the Magistrate] of the Code.

In the Supreme Court case of State of Karnataka v. Pastor P. Raju [(2006) 6 SCC 728], the High Court had quashed a proceeding on the ground that no sanction had been obtained by the police for investigating a certain person. Of course, the High Court had thought that the police could not even investigate a certain offence as sanction was necessary to prosecute that offence. The High Court had thought that the investigation commenced without any sanction was illegal and therefore, went on to quash it. The Supreme Court expressed strong language while reversing the decision of the High Court. It said:

“10. Several provisions in Chapter XIV of the Code of Criminal Procedure use the word ‘cognizance’….However, the word ‘cognizance’ has not been defined in the Code of Criminal Procedure….The meaning of the word has been explained by judicial pronouncements and it has acquired a definite connotation. The earliest decision of this Court on the point is R.R. Chari v. State of U.P. AIR 1951 SC 207, wherein it was held…”

“14…the High Court clearly erred in quashing the proceedings on the ground that previous sanction of the Central Government or of the State Government or of the District Magistrate had not been obtained. It is important to note that on the view taken by the High Court, no person accused of an offence, which is of the nature which requires previous sanction of a specified authority before taking of cognizance by the Court, can ever be arrested nor such an offence can be investigated by the police. The specified authority empowered to grant sanction does so after applying his mind to the material collected during the course of investigation. There is no occasion for grant of sanction soon after the FIR is lodged nor such a power can be exercised before completion of investigation and collection of evidence. Therefore, the whole premise on the basis of which the proceedings have been quashed by the High Court is wholly erroneous in law and is liable to be set aside.”

(emphasis supplied)

Read the above carefully? Let’s next note the case of Dilwar Singh v. State of Delhi [2007 (12) SCC 641]:

“14. The various steps to be adopted for investigation under Section 156 of the Cr.P.C. have been elaborated in Chapter XII of the Cr.P.C. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Cr.P.C. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Cr.P.C. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.”

“17. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of Cr.P.C. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all, registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of Cr.P.C. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Cr.P.C. that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Cr.P.C. only thereafter.”

“18. The above position was highlighted in Suresh Chand Jain v. State of M.P. and Another [2001(2) SCC 628].”

“19. In Gopal Das Sindhi and Ors. v. State of Assam and Anr. (AIR 1961 SC 986) it was observed as follows:

"When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Cr.P.C. to the Officer In charge of Police Station, Gauhati for investigation….A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation….”

In Nirmaljit Singh Hoon v State of West Bengal (1973) 3 SCC 753, the Supreme Court held as under:

“…Firstly, the police authorities have under Sections 154 and 156 of the Code a statutory right to investigate into a cognizable offence without requiring any sanction from a judicial authority, [cf. King Emperor v. Khwaja Nazir Ahmad (AIR 1945 PC 18)] … It is true that the Chief Presidency Magistrate had under Section 156(3) ordered in the present case an investigation by the police. But once that was done, the inquiry by the police was of the same nature and character as the one which the police had the power to conduct under sub-sections (1) and (2) of that section. Indeed sub-section (3) expressly states that an investigation ordered by a Magistrate would be an investigation "as abovementioned", i.e., an investigation made by a police officer in his statutory right under sub-sections (1) and (2). …But where he has applied his mind only for ordering an investigation under Section 156(3) or issuing a warrant for purposes of investigation, he cannot be said to have taken cognizance of the offence. [See R. R. Chari v. U.P. (AIR 1951 SC 207); also Jamuna Singh v. Bhadai Sah (AIR 1964 SC 1541)]….”

In Vineet Narain v. Union of India [(1998) 1 SCC 226], after examining the scheme of the Prevention of Corruption Act, 1947, the predecessor statute to the current Prevention of Corruption Act, 1988 and the Criminal Procedure Code, 1973, the Supreme Court had categorically held that there is no such thing as a ‘sanction’ to investigate under those statutes. It said so emphatically:

“43. …The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction for prosecution is a pre-requisite for the court to take cognizance of the offence. In the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a condition precedent for initiation of the investigation….The necessity of previous sanction for prosecution is provided in Section 6 of the Prevention of Corruption Act, 1947 (Section 19 of the 1988 Act) without which no court can take cognizance of an offence punishable under Section 5 of that Act. There is no such previous sanction for investigation provided for either in the Prevention of Corruption Act or the Delhi Special Police Establishment Act or in any other statutory provision….

[emphasis supplied]

Did you read the above carefully? The Supreme Court had said that in no statute is there any requirement of sanction to even investigate a person.

In General Officer Commanding, Rashtriya Rifles v Central Bureau of Investigation [(2012) 6 SCC 228], the Supreme Court once again analysed the various statutes that prescribe prior sanction for prosecution and reiterated the same position as above – that investigation does not warrant any sanction.

“81. To understand the complicacy of the issue involved herein, it will be useful to compare the relevant provisions of different statutes requiring previous sanction.

“THE CRIMINAL PROCEDURE CODE, 1973. THE PREVENTION OF CORRUPTION ACT, 1988. THE ARMED FORCES (SPECIAL POWERS) ACT, 1990. 197. Prosecution of Judges and Public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction. 19. Previous sanction necessary for prosecution.- (1) No court shall take cognizance of an offence punishable Under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction. (a) 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 Government, of that Government. 7. Protection to persons acting under Act. - No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

“43. The question to examine as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation.”

(emphasis supplied)

As you saw in the aforesaid paragraphs, the law has been very solidly, emphatically and repeatedly laid down that a Magistrate does not take cognizance while directing a police investigation under Section 156(3) and so, is not to concern himself with sanction at all at that stage. Yet, why did Aiyappa say so? Aiyappa is tremendously wrong in law. It does not recognize anywhere that it was absolutely diverging from the established law until then.

Finally, what then about the damage by Aiyappa? Aiyappa has come in as a bolt from the blue to anti-corruption efforts across India. No Government in this country would know anything about what kind of sanction could be granted to merely allow police investigation into an allegation against a public servant – our Governments have only known about sanction requests after an investigation is complete and the police report is placed for its consideration.

Sadly for the country, public servants facing serious allegations of corruption, cheating, misuse of public money, siphoning of public funds, embezzlement and diversion of public funds across India are now free to indulge in more of those very things; Courts across the Country are quashing police investigation or refusing to direct police investigation against them. In a large number of such cases, even completed police reports or corruption trials are being thrown out by the courts by solely relying upon Aiyappa. It is difficult to recount any other judgment of the Supreme Court that had been so wrong about criminal procedure and wreaked as much havoc to national interest as Aiyappa is currently doing.

I made a search of cases across various courts to find out about how Aiyappa is leading to tremendous damage and setback to the fight against corruption across India. I hate to provide the complete list in fear of inviting too much disgust at the state of our judiciary. Here is just a small list and in each one of the following cases, the court has refused to direct a police investigation against public servants who face allegation of corruption or such misdeeds or worse, has altogether quashed a police investigation that was already underway:

Sl. No. Case Title Case No. High Court / Other Court Date of Judgment Result 1 Crl.Revision v.By Advs.Sri.Madhu Radhakrishnan (Xavier v. Unnirajan) Crl.Rev.Pet.No. 1653 of 2013 Kerala High Court 28-02-2013 Refuses to direct Police Investigation 2 B S Yedyurappa v. YSV Datta MLC W.P. No. 38932-38936/12 Karnataka High Court 09-10-2013 Quashes police report 3 BS Yedyurappa v. State of Karnataka Criminal Petition No. 4497 of 2013 Karnataka High Court 11-10-2013 Police Investigation quashed 4 Vijay Kumar v. State by Karnataka Lokayuktha Police W.P. No. 13394/2013` Karnataka High Court 13-11-2013 Police Investigation quashed 5 Satishchand Gupta v. State & Ors. W.P. Crl. 464/2013 Delhi High Court 18-11-2013 Refuses to direct Police Investigation 6 P.M.Jameela Beevi v. State Of Kerala WP(C).No. 18598 of 2006 (L) Kerala High Court 19-11-2013 Police Investigation Thwarted 7 Gangadhara Maddikery v. Sankappa Shetty Criminal Petition No. 5247 of 2013 Karnataka High Court 05-12-2013 Police Investigation quashed 8 Sukmal Jain v. Managing Committee & Ors. Complaint Case No. 17/2013 Delhi District Court 07-12-2013 Refuses to direct Police Investigation 9 Rajinder Tiwari v. BSES Yamuna Power Ltd. Complaint Case No. 15/2013 Delhi District Court 16-12-2013 Refuses to direct Police Investigation 10 Mallikarjun S/o Rangappa sagar v. the State of Karnataka Criminal Petition No. 16025 of 2013 Karnataka High Court 16-12-2013 Police Investigation quashed 11 Khemchand @ Vicky bharadwaj v. Vijay Pal & Ors. Complaint Case No. 16/2013 Delhi District Court 20-01-2014 Refuses to direct Police Investigation 12 Manohar H Tahsildar B E v. Karnataka Lokayuktha Police CRIMINAL PETITION No.11702/2013 Karnataka High Court 07-02-2014 Police Investigation quashed 13 A.Shivaprakash S/O. A ... v. Karnataka Lokayuktha Police CRIMINAL PETITION No.100205/2014 Karnataka High Court 11-03-2014 Police Investigation quashed 14 Dr. M N Venkataramu v. SP Criminal Petition No. 6088 of 2013 Karnataka High Court 14-03-2014 Police Investigation quashed 15 Smt. Shanta W/O. Babu Sungar v. Shri. Gopal Hanumant Bapshet CRIMINAL PETITION NO. 11492/2013 Karnataka High Court 19-03-2014 Police Investigation quashed 16 Sunil Nath Mishra v. The State Of Bihar Criminal Writ Jurisdiction Case No.700 of 2013 Patna High Court 23-04-2014 Police Investigation quashed 17 Prem Prakash Sharma v. The State Of Bihar Cr. WJC No.700 of 2013 Patna High Court 23-04-2014 Police Investigation quashed 18 Seema Jariwala v. Amit Singla & Ors. Crl. Complaint Case No. 1/2014 Delhi District Court 21-05-2014 Refuses to direct Police Investigation 19 Sandeep Dabbas v. Nirmala & Ors. Complain Case No. 01/14 Delhi District Court 23-05-2014 Refuses to direct Police Investigation 20 State Of M.P. v. Narendra Tiwari M.Cr.C.No.6047/2010 Madhya Pradesh High Court 08-07-2014 Police Investigation quashed 21 State Of M.P. v. Kalyan Singh Bahgel M.Cr.C.No.375/2011 Madhya Pradesh High Court 08-07-2014 Police Investigation quashed 22 Ashok Sharma v. State of M.P. and others Mcrc.2316.2012 Madhya Pradesh High Court 14-07-2014 Police Investigation quashed 23 Pawan Sharma v. State Of M.P. MCRC 6999/2012 Madhya Pradesh High Court 16-07-2014 Police Investigation quashed 24 Jaynarayan Para v. State of M.P. MCRC. 4076/2014 Madhya Pradesh High Court 16-07-2014 Police Investigation quashed 25 Ajay Kumar v. State Of M.P M.Cr.C.No.2497/2014 Madhya Pradesh High Court 24-07-2014 Police Investigation quashed 26 Mukesh Wastri v. Ramnarayan Cr.R.No.738/2012 Madhya Pradesh High Court 01-08-2014 Refuses to direct Police Investigation 27 Uday Pratap Sharma v. The State Of Madhya Pradesh MCRC 5706/2014 Madhya Pradesh High Court 11-09-2014 Police Investigation quashed 28 P R M Singh v. Bharat Dubey MCRC. No. 20061/2014 Madhya Pradesh High Court 19-01-2015 Refuses to direct Police Investigation 29 Vivek Garg v. Kanwar Karan Singh & Ors. Complaint Case No. 06/2014 Delhi District Court 28-04-2015 Refuses to direct Police Investigation 30 Mohd. Atique v. State Complaint Case No. 4/2015 Delhi District Court 13-05-2015 Refuses to direct Police Investigation 31 Sakal Deo Paswan v. The Stae of Bihar Case No. 783 of 2013 (Criminal Writ) Patna High Court 25-06-2015 Police Investigation quashed 32 Ravi Kumar & Ors. v. The State Of Bihar Criminal Writ Jurisdiction Case No.725 of 2014 Patna High Court 24-07-2015 Police Investigation quashed 33 Nisha Priya Bhatia v. Shashi Prabha & Anr. Criminal M. C. No. 4497/2015 Delhi High Court 02-11-2015 Refuses to direct Police Investigation 34 Anti Curroption forum v. Rupesh Thakur & Ors. CC No. 1/2015 Delhi District Court 05-12-2015 Refuses to direct Police Investigation 35 Gulshan Chanana v. Si Ramesh & Ors. Complaint Case No. 08/2015 Delhi District Court 07-12-2015 Refuses to direct Police Investigation 36 Bagavathiappan Pillai v. State Crl. O. P. (MD) No. 15124 of 2015 Madras High Court 16-12-2015 Police Investigation quashed 37 CC No. 04/15 v. Ravinder Tomar & Ors. CC No. 04/15 Delhi District Court 17-12-2015 Refuses to direct Police Investigation

What is to be done now?

The Supreme Court should reverse Aiyappa immediately. At the same time, it should direct all Courts across India to reverse themselves if they had relied upon Aiyappa to quash or to refuse police investigation on the ground of lack of sanction. Thereby, the Supreme Court should ask every court below to restore such cases to a state in which a fresh decision would be necessary in light of the well-established procedural law. It should be noted that the power of review is generally absent in criminal cases and such a direction from the Supreme Court would be absolutely necessary to undo all the damage brought about by Aiyappa.

At this juncture, it becomes necessary to really lament at some of our High Court judges and trial court judges ignorantly following Aiyappa without recognizing the absurdity in it. As many of our trial court judges and our High Court judges are expected to frequently encounter cases about criminal procedure, the fact that they would not even detect such grossly erroneous judgment on a point of procedure should be a wake-up call to the worsening standards of the judiciary in our States.

Could we not have a single judge in our State courts who would say that the Supreme Court got it all wrong in Aiyappa? There is one individual, however. We will come to it in a while. If the judiciary in our States has to simply wait for the Supreme Court to correct itself on Aiyappa, then it is fair to say that we have a tremendously pathetic state of affairs in a section of our judiciary in our States. I would have thought that if only some judge below had critically pointed to the error in Aiyappa, the Supreme Court would have promptly corrected that judgment – after all, the Supreme Court was not emphatic in Aiyappa about what it said there. Every Trial Judge or the High Court judge that dealt with Aiyappa should have known and ought to have had the legal learning and courage to say that Aiyappa was very wrongly decided – after all, no exotic facet of criminal law was involved here; it was merely about elementary criminal procedure. So long as we lack such judges of learning and courage in the judiciary in the States, it matters little whether Aiyappa is delivered or corrected at our Supreme Court. No amount of correct and proper decisions by the Supreme Court would be of use when we are faced with a terribly ignorant judiciary in our States and that is the point I am stressing here. The fault really is not of Aiyappa, in the end. It points to something more serious – of a deeply inefficient judiciary in our States.

Let me remind here about what was said about ‘precedent’ and ‘per incuriam’ by our Supreme Court and I wish that our Courts in the States had followed it carefully and ignored Aiyappa:

Haryana Financial Corporation Ltd v Jagadamba Oils Ltd [(2002) 3 SCC 496]:

“19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judge to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737, Lord Mac Dermot observed:

‘The matter cannot, of course, be settled merely by treating the ipsissima ventral of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by the most distinguished judges.’

20. In Home Office v. Dorset Yacht Co. 1970 (2) All ER 294 Lord Reid said, ‘Lord Atkin's speech..... is not to be treated as if it was a statute definition. It will require qualification in new circumstances.’ Megarry, J. in (1971) 1 WLR 1062 observed: ‘One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament.’ And, in Herrington v. British Railways Board (1972) 2 WLR 537 Lord Morris said:

‘There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.’

21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

22. The following words of Lord Denning in the matter of applying precedents have become locus clasicks:

‘Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.’

‘Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.’

(emphasis supplied)

In Rattiram v. State of Madhya Pradesh (2012) 4 SCC 516, the Supreme Court had held that:

“30. In this context, it is useful to refer to a passage from A.R. Antulay (supra), wherein, Sabyasachi Mukharji, J (as his Lordship then was), while dealing with the concept of per incuriam, had observed thus:

42. ‘Per incuriam’ are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.’

Again, in the said decision, at a later stage, the Court observed:

‘47. It is a settled rule that if a decision has been given per incuriam the court can ignore it.’

31. In Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labor Court, Chandigarh and Ors (1990) 3 SCC 682, another Constitution Bench, while dealing with the issue of per incuriam, opined as under:

‘40. The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court.’

32. In State of U.P. and Anr. v. Synthetics and Chemicals Ltd. and Anr. (1991) 4 SCC 139, a two-Judge Bench adverted in detail to the aspect of per incuriam and proceeded to highlight as follows:

‘40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Company Ltd. (1944) 1 KB 718 : (1944) 2 ALL ER 293). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.”

(emphasis supplied)

Why did not the judiciary in our States ask this simple question at all – the Supreme Court had time and again said that when a Magistrate directs investigation under Section 156(3) of the Code, he does not take cognizance of any offence and hence, there can be no question of sanction at all, yet how did it say a diametrically opposite thing in Aiyappa? In fact, none ventured that far and it is disappointing that none did so.

In all humility, I would like to state a few things that we need to get straight in order to prevent more of such confusion for the future. The first is in regard to what courts have said about ‘cognizance’. As the word ‘cognizance’ has not been defined under any statute, our courts have defined it generally in negative terms. Our Courts have said that a direction to the police under Section 156(3) does not amount to taking of cognizance, the issue of a warrant does not amount to taking of cognizance and so on. There are even a few judgments wherein the Courts have said that in the absence of sanction, Courts ‘cannot even take note of the offence’ and the like. The confusion in Aiyappa might have mostly stemmed from our Courts saying things like, ‘in the absence of sanction, courts cannot take note of the offence’. As said earlier, we cannot read the words in a judgment as if they were the words of a statute. Yet, our courts in this case have been doing precisely that – reading the words in a judgment as if they were the words of a statute.

Two judgments were relied upon in Aiyappa to come to an ignorant conclusion and both of those judgments had said things such as, ‘in the absence of sanction, the court cannot even take note of the offence’. Those judgments were State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372 and Subramanium Swamy v. Manmohan Singh (2012) 3 SCC 64. In fact, to say that a ‘court cannot take note of an offence in the absence of sanction’ is to say nothing at all. Yet, the Aiyappa Bench fell into the same error that our jurisprudence exhorts all Courts to be careful about – to not read the words of a judgment as if they were the words in a statute.

The essential question is whether either Paras Nath or Subramanain Swamy judgment say that when a Magistrate directs an investigation under Section 156(3) of the Code, he takes cognizance of the offences therein? Not at all. Then, those judgments are of simply no assistance to support Aiyappa and no blame could lie upon those two judgments. The Supreme Court may very well say such things as ‘a court cannot even take note of the offences in the absence of sanction’ and any learned lawyer or judge should know to simply ignore all such statements.

Why? First of all, those are not words of any statute. Secondly and lastly, those are still not words of any statute. Else, it would lead to tremendous absurdity. There are plenty of pre-trial tasks that would become unworkable if such a statement of the Supreme Court were to be taken literally. Say, the police register an FIR against certain public servants and arrest those suspects. Say those suspects apply to the Special Judge or to the High Court or say, even to the Supreme Court for bail. How then is any of those Courts to grant bail in such cases if they cannot even ‘take note of the offences’? To repeat, grant bail ‘without taking note of the offences’? Absurd.

To illustrate, let’s take the position that you are a corrupt public servant now - for a change. You are accused of corruption and a FIR is promptly registered against you by the police at first instance. The police then arrest you. You want bail. Don’t you? You approach the Special Judge/Magistrate. He tells you – ‘look, I can only grant you bail after I look into your offences. Your offices require sanction for prosecuting. So, with no sanction given yet in your case as you were just arrested, I cannot look into your case at all and I cannot therefore, grant you bail’. Nonsense? It is. This would be the direct result of taking the statements that ‘a court cannot even take note of offences without sanction’ seriously. Hope our courts will not swing in such other extreme direction to compensate for the damage brought about by Aiyappa.

Yet, in many cases that have blindly relied upon Aiyappa, our lawyers have argued in absurd and ignorant ways by taking statements of our Supreme Court literally. This whole episode of damage by Aiyappa in our State courts should also be a wake-up call for us to probably think of dismantling this ‘senior counsel’ system. I must say that in lots of such cases in the State courts, it was the senior counsel who demonstrated enormous ignorance about criminal procedure and a pathetic failure to detect a grossly erroneous judgment of the Supreme Court. I think, having this ‘senior counsel’ system allows the whole system to put the responsibility of careful learning only upon a handful few and when those handful few fail to live up to the higher burden that is required of them, the whole system would suffer.

Finally, in just one instance, a judge of our High Court has refused to follow Aiyappa for the same reason that we have criticized it here. Justice P.S.Rana of the Himachal Pradesh High Court in CR.MMO.No.178 of 2014 decided on 30-Jul-2015 refused to follow Aiyappa. He held [ILR 2015 (4) HP 892]:

“7. Submission of learned Advocate appearing on behalf of petitioner that in view of ruling reported in 2013 (10) SCC 705 titled Anil Kumar and others Vs. M.K.Aiyappa and another, the order passed by learned Special Judge Sirmour District at Nahan dated 24.5.2014 announced in application No.92-Cr.M/4 of 2014 titled Smt. Gita Singh Vs.Deputy Superintendent of Police SV & ACB Nahan District Sirmour HP and consequential FIR No. 5/2014 dated 6.6.2014 registered under Sections 7 and 13(2) of Prevention of Corruption Act 1988 be quashed and set aside is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused judgment reported in 2013 (10) SCC 705 titled Anil Kumar and others Vs.M.K.Aiyappa and another. Ruling cited supra is announced by Hon’ble Division Bench of Supreme Court and Hon’ble Division Bench of Supreme Court held that Special Judge could not refer the matter under Section 156 (3) Cr.PC against public servant without valid previous sanction order for prosecution. Court has also carefully perused the ruling reported in 1976 (3) SCC 252 titled D.L.Reddy and others Vs.V.Narayana Reddy and others announced by Hon’ble three judges bench of apex Court of India. Hon’ble three judges bench of apex Court of India held that power under Section 156(3) Chapter XII Cr.PC and powers under Section 200 Chapter XV Cr.PC are entirely two different powers. Hon’ble three judges bench of apex Court of India held that power under Section 156(3) Cr.PC under Chapter XII is exercised at pre-cognizance stage of case. Hon’ble three judges bench of apex Court of India further held that power under Section 200 Chapter XV Cr.PC is exercised in post cognizance stage of the case. It is well settled law that when there is conflict between rulings of two judges bench and three judges bench then decision of three judges bench always prevails…”

Finally, could not our judges or the prosecutors in the State Courts reason this much – at any rate, even according to Aiyappa, the police could register an FIR and direct investigation into offences that require sanction for prosecution; still, how could those very offences require sanction for investigation now simply because the complainant has approached the Magistrate due to the police refusing to investigate his complaint?

The inability of the judges in our State Courts to even reason as much about elementary criminal procedure is what Aiyappa has exposed about our State Courts. Such incompetence, in a country such as the United States, would have led the convicts who had been punished by such judges to make an argument to a superior court that the judge concerned was woefully incompetent in law and therefore, unable to properly and carefully exercise the discretion that was vested in him.

What more damage to this country would be necessary to force our Supreme Court to immediately reverse Aiyappa and to reverse its effects in State Courts?

*******************

Post Script-1

Even in a dreaded and a thorough desert, we may still find some oasis of water to sustain hope. While Judge after Judge in our State Courts has mindlessly followed Aiyappa - to the serious detriment of public interest, a Judge of the Kerala High Court has rightly refused to follow Aiyappa.

In what should be described as a stellar demonstration of sanity, learning and courage in an atmosphere vitiated across the country by ignorance and mindlessness, Justice B.Kemal Pasha of the Kerala High Court and Justice P.S.Rana of the Himachal Pradesh High Court stand out for their resolve to not follow Aiyappa.

Thanks to comments by Mr.Hari and Mr.Arun, we now know that in Criminal Miscellaneous Case No.6402 of 2013 decided on 21-Dec-2015, Justice B.Kemal Pasha of the Kerala High Court simply refused to follow Aiyappa. Justice B.Kemal Pasha's conviction about the error in Aiyappa is truly heartening. That judgment is here: http://indiankanoon.org/doc/93048553/. It is also reported as 2016 (1) KLT 323, we are informed.

Those seriously disheartened by the damage brought about by Aiyappa will take solace from the remarkable display of learning and courage by these two judges - Justice B.Kemal Pasha of the Kerala High Court and Justice P.S.Rana of the Himachal Pradesh High Court.

The corrupt among public servants and ignorance-breeding lawyers may think that the whole judiciary in this country could be tricked and fooled to their advantage; the public and the jurists should be glad and grateful that the whole judiciary in this country cannot be so tricked and fooled - immense thanks to the judges who have stood out.

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Post Script - 2

Some might say that we are dealing with advanced issues here. They would be wrong. These are ordinary and elementary issues in criminal procedure. Four bright students from a leading law school interned under me in January, 2016. I spoke to these students at length on the basic criminal procedure, got them to raise several questions and after a few rounds of clarification, I asked them whether our superior courts would say what was said in Aiyappa. 'Absolutely Not' was their instant and unanimous response. They were very convinced with their response. I then asked them to sort out the various judgments that had in fact, solely relied upon Aiyappa to throw out or refuse criminal investigation against suspect public servants. And left these students to do their alloted work. They set out to work and a fellow advocate captured their shock and bewilderment at the Aiyappa abiding judgments of our State courts. After that, these students made a very valuable contribution in identifying and bringing to my attention, more Aiyappa abiding judgments delivered across the country. Vaibhav Kulkarni, Shubham Patel, Nishant Mathews and Ishita Malhotra - 2nd Year Law Students at the O.P.Jindal Global University at Sonepat, Haryana.

**************

Post Script-3

Justice Smt.Anjana Prakash of the Bihar High Court doubts Aiyappa

Continuing research into the impact of Aiyappa on State Courts tells us that Justice Smt.Anjana Prakash of the Patna High Court doubted the correctness of Aiyappa when it was cited to the Court.

In Criminal Miscellaneous Case No.29926 of 2011, the Vice-President and Project Director of a company, Gammon India Limited, petitioned the Patna High Court and relied upon Aiyappa to get the criminal case of corruption against them thrown out of the record. They failed. The judgment is dated 17-Sep-2014 and is at: http://indiankanoon.org/doc/123997877/

Of course, this case is not comparable to any of the cases that we have discussed in this article simply because this case did not directly deal with the scope of Section 156(3) of the Code. Still, the Patna High Court was asked by the accused to rely upon Aiyappa. The High Court refused to rely upon Aiyappa as, Aiyappa did not "answer as to why or how sanction was required even at pre-cognizance stage".

The analysis in the judgment by Justice Smt.Anjana Prakash is truly heartening, though given in a slightly different context. The Court held:

"9. Further in Paragraph 12, the Apex Court proceeded to examine whether requirement of sanction was a precondition for ordering investigation under Section 156(3) Cr. P.C. and reproduced the definition of a Public Servant and considered the importance of sanction under Section 19 PC Act. However, it did not answer as to how or why sanction was required even at pre-cognizance stage while dismissing the Appeal.

10. When I look to the older decisions, I find that the Apex Court has taken a contrary view. In the case of R. R. Chari Vs. The State of Uttar Pradesh (AIR (38) 1951 Supreme Court 207)...

(emphasis supplied)

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Post Script-4

Wiser in hindsight?

A highly knowledgeable lawyer wrote to me last night to say that 'everyone is wiser in hindsight'. I didn't quite understand it. Two days ago, another lawyer had asked why I had to wait until 2016 to talk about a judgment that was delivered in October, 2013; why couldn't I say these things right then?

Well, the Aiyappa judgment was delivered by the Supreme Court on 01-Oct-2013 and two days later, Indian Express at Bangalore carried a prominent story on its cover page titled - 'Review Aiyappa ruling: Advocates'. The link is at: http://www.newindianexpress.com/cities/bengaluru/Review-Aiyappa-ruling-Advocates/2013/10/04/article1817776.ece1. Excerpt:

"Advocates’ associations in the city on Thursday initiated a signature campaign to request that the Chief Justice of India reconsider the apex court’s recent ruling in the case involving former Bangalore deputy commissioner M K Aiyappa. The Supreme Court had, on October 1, held that the government’s sanction was prerequisite before a court ordered investigation against a public servant on a private citizen’s complaint under section 156 (3) of the Criminal Procedure Code."

".....Counsel K V Dhananjay told Express that the initiative was taken since the only force that was still keeping corruption in check was the private citizen, through private complaints.

“I knew that I had to respectfully inform the Supreme Court of the mistake it just committed. Involving advocates is the best way to let the SC know that this judgment requires immediate reconsideration. So, I drafted a note and then spoke to advocate groups across India,” he said."

I know for a fact that emails were sent then to some of the judges of the Supreme Court by a few concerned advocates. We did not suddenly wake up on one fine morning in 2016; we never slept.