Introduction

In its recent judgment in L Narayana Swamy v State of Karnataka (2016(8) SCALE 560), the Supreme Court upheld the view that further investigation of a public servant under Section 156(3) of the Code of Criminal Procedure 1973 cannot be ordered without prior approval. The court also addressed another issue relating to the protection granted to public servants under Section 19(1) of the Prevention of Corruption Act 1988, which requires approval to be granted before a public servant can be prosecuted.

The court examined whether a public servant who has transferred to a different office when an offence is discovered, but remains a public servant, loses the protection granted under Section 19(1) of the act.

The court answered this question in the affirmative and held that the appellants in the present case were unentitled to protection under Section 19(1) of the act.

Facts

Respondent 2 filed a complaint against the appellants, among other parties. On the basis of the complaint, a case was brought against the appellants for the offences punishable under:

  • Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act; and
  • Sections 120B, 427, 447 and 506 read with Section 34 of the Penal Code 1860.

The allegations in the complaint were twofold. First, it was alleged that the appellants had abused their official offices of tehsildar and assistant commissioner, respectively, by:

  • wrongly identifying land belonging to the complainant as having been acquired for a high-level canal as part of the Thungabhadra project; and
  • forcing the complainant to part with it.

It was further alleged that, in abuse of their public offices, the appellants had – on the instructions of and in collusion with Accused 6 in the complaint (a government minister) – converted the land for private use and prevented it from being subject to acquisition for public purposes, before transferring it in favour of a relative of Accused 6 in the complaint.

When the complaint was filed, the appellants had left the offices of tehsildar and assistant commissioner and, although they were still public servants, they no longer held the offices which they were alleged to have abused.

Decisions

District and sessions court

The district and sessions judge passed an order referring the complaint to the Karnataka Lokayukta Police for further investigation regarding Section 156(3) of the Code of Criminal Procedure. The police registered a complaint against the appellants under:

  • Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act; and
  • Sections 120B, 427, 447 and 506 read with Section 34 of the Penal Code.

Appeal

The appellants filed a criminal petition under Section 482 of the Code of Criminal Procedure before the Karnataka High Court, seeking to quash the proceedings stemming from the complaint. On July 8 2013 the court dismissed the criminal petition, observing that, since the police had filed a final report, the appellants could challenge the final report before the trial court.

The appellants challenged the Karnataka High Court's order before the Supreme Court.

Supreme Court

The Karnataka High Court's decision was flawed because – among other things – the court had failed to consider that it had been required to satisfy itself that due approval – as required under Section 19(1) of the Prevention of Corruption Act read with Section 190 of the Code of Criminal Procedure – had been obtained before ordering further investigation under Section 156(3) of the Code of Criminal Procedure and taking cognisance of the complaint. Thus, the court could not pass an order for further investigation.

The Supreme Court addressed:

  • whether an order directing further investigation under Section 156(3) of the Code of Criminal Procedure can be passed in relation to public servants without prior approval; and
  • whether a public servant who has been transferred (by way of a promotion or otherwise) to another position loses the protection available under Section 19(1) of the Prevention of Corruption Act.

While examining these questions, the Supreme Court further clarified the ongoing issue regarding when cognisance should be deemed to commence. In doing so, the court considered Section 19(1) of the Prevention of Corruption Act, which states that 'no court shall take cognizance of an offence'. While relying on the judgments in Anil Kumar v Aiyyappa (2013 (10) SCC 705) and Manharibhai Muljibhai Kakadia v Shaileshbhai Mohanbhai Patel (2012 (10) SCC 517), the court held that the term 'cognisance' has a broad meaning and includes all powers and authority in relation to:

  • exercising jurisdiction; and
  • reviewing allegations made in a complaint or police report, or any other information regarding an offence.

Further, while discussing the mandatory nature of the protection afforded to public servants by Section 19(1) of the Prevention of Corruption Act, the Supreme Court emphasised the use of the words 'no' and 'shall' to hold that the restriction on the courts' exercise of power to take cognisance of an offence is absolute and complete.

The Supreme Court thus held that an order under Section 156(3) of the Code of Criminal Procedure directing further investigation into an offence cannot be passed without prior approval under Section 19(1) of the Prevention of Corruption Act.

While dealing with the second issue regarding loss of protection, the Supreme Court – relying on the judgments in State of Himachal Pradesh v Nishant Sareen (2010 14 SCC 527), Mansukhlal Vithaldas Chauhan v State of Gujarat (1997 7 SCC 622) and Prakash Singh Badal v State of Punjab (2007 1 SCC 1) – clarified that, if a public servant abuses the public office that he or she held before that which he or she holds on the date on which cognisance is taken, valid approval under Section 19(1) of the Prevention of Corruption Act is not required, even though the accused is still a public servant.

Accordingly, the Supreme Court held that approval was unnecessary, as the appellants – when cognisance was taken – had not held the offices which they were alleged to have misused at the time of committing the offence.

The Supreme Court clarified that the prior approval requirement applies only to the check period. As such, by virtue of holding a different office as a public servant at the time cognisance was taken (ie, other than the one during the check period), the mandatory approval requirement to take cognisance against the public servant did not apply.

For further information on this topic please contact Jasleen K Oberoi or Gauhar Mirza at Shardul Amarchand Mangaldas & Co by telephone (+91 11 4159 0700) or email (jasleen.oberoi@amsshardul.com or gauhar.mirza@AMSShardul.com). The Shardul Amarchand Mangaldas & Co website can be accessed at www.amsshardul.com.

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