A recent directive from a two-judge panel of the Supreme Court emphasizes the urgency of resolving the question regarding the necessity of prior sanction for a Magistrate to refer a complaint against a public servant for investigation under Section 156(3) of the CrPC. This matter, initially raised in the 2018 case Manju Surana v. Sunil Arora, was deferred to a larger bench for further consideration.

In the current proceedings, a bench consisting of Justice CT Ravikumar and Rajesh Bindal highlighted the broad significance of the issue, noting its frequent occurrence in various cases. They emphasized the need for a prompt resolution, stating that "an earlier decision on the question referred is solicited."

"The judgment in Manju Surana (supra) would reveal that the matters were referred to the larger Bench on 27.3.2018. Considering the fact that question involved is a matter of relevance and such issues arises frequently for consideration before Courts, we are of the considered view that an earlier decision on the question referred is solicited.

Registry is directed to place these matters before the Hon'ble the Chief Justice of India for appropriate orders."

Additionally, the bench expressed a preliminary opinion that, prima facie, a Magistrate does not take cognizance of a complaint when forwarding it for police investigation under Section 156(3) of the Code of Criminal Procedure.

However, the bench opted not to proceed further with the matter, citing the pending reference before the larger bench. The present appeal was also directed to be associated with the Manju Surana case for consideration.

Manju Surana Case

A two-judge bench, including Justices J Chelameswar and SK Kaul, expressed skepticism regarding the 2013 judgment of a coordinating bench in Anil Kumar v. M K Aiyappa. This previous ruling asserted that prior sanction from the Government is required for a Magistrate to issue an order for investigation on a complaint against a public servant.

While acknowledging that a Magistrate or Special Judge (under the Prevention of Corruption Act) does not take cognizance of a complaint when issuing an order under Section 156(3) of the CrPC, the Court concluded in the Anil Kumar case that sanction was indeed necessary for the exercise of power under Section 156(3) of the CrPC.

"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," the Court stated in Anil Kumar.

In the Manju Surana case, the Court posed the question: "Can it be argued that due to Section 19(1) of the Prevention of Corruption Act, the nature of inquiry under Section 156(3) of the CrPC amounts to 'taking cognizance,' thereby necessitating prior sanction in the case of a public servant?"

Observing that an authoritative pronouncement was required on the issue, the matter was referred to a larger bench. The question for reference was framed as :

"Whether prior sanction for prosecution qua allegation of corruption in respect of a public servants is required before setting in motion even the investigative process under Section 156(3) of the Code of Criminal Procedure, 1973"

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