Abha Singh challenges MH amendment to CrPC provision on FIRs against public servants

The Maharashtra government’s amendment to the Criminal Procedure Code (CrPC) – a move that could potentially hamper investigation into wrongdoing by public servants – has been challenged in the Bombay High Court..Advocate and activist Abha Singh has filed the challenge to the state government’s amendment to Section 156(3) of the CrPC. The provision, as it stands, confers upon Magistrates the power to direct the police to file a First Information Report (FIR) and undertake an investigation into a cognizable case..As a result of the state government’s 2016 amendment, however, judges will not be able to order registration of FIRs against public servants sans prior sanction of the government..In her petition, Singh states that the amendment is,.“…ultra vires the Constitution of India and defeats the objective of our country to fight corruption. It has accorded unprecedented feeling of impunity to public servants who otherwise are rarely apprehended for their enormous acts of the Corruption.”.While Singh contends that the actions of the government in this regard amount to a violation of Supreme Court orders, Maharashtra Chief Minister Devendra Fadnavis had earlier said that it was a Supreme Court order that renders credence to the amendment..And he isn’t wrong..Over the past few years, the Supreme Court has delivered contrary judgments on the topic. The main issue that various benches have failed to eye to eye on is the interpretation of the word “cognizance” in the CrPC. More specifically, the moot question is whether a direction to file an FIR under Section 156(3) comes under the import of the term “cognizance”..While Section 19 of the Prevention of Corruption Act precludes judges from taking cognizance of cases involving corruption without sanction of the government, the same cannot be said about registration of FIRs against public servants..However, in Anil Kumar and Ors v. MK Aiyappa, a Bench of Justices KS Radhakrishnan and PC Ghose had held that a Magistrate could not invoke his power under Section 156(3) against a public servant without the sanction of the government. The same was reiterated more recently by a Bench of Justices AK Sikri and NV Ramana in L Narayana Swamy v. State of Karnataka & Ors..On the other hand, the apex court has also decided on the contrary. In Subramanian Swamy v. Union of India, a five-judge bench held that Section 6A of the Delhi Special Police Establishment Act, which had provided for prior sanction for investigation into wrongdoing by public servants, was unconstitutional..It is interesting to note that a few high courts have decried the Supreme Court’s ruling in Aiyappa. In fact, as Additional Advocate General for Karnataka Devadatt Kamat writes here, Justice Anand Byrareddy, the Karnataka High Court judge whose ruling was upheld by the Supreme Court in Aiyappa, stated in a subsequent judgment that the need for sanction for investigation was unwarranted. In NC Shivakumar v. State, he says,.“But in retrospect, it is seen that the settled legal position is that when the court merely refers the complaint for investigation, the court does not take cognizance, the need for a sanction is not warranted…The dictionary meaning assigned to the expression “cognizance” has been misapplied, in ignoring settled principles established by earlier judgments of the Apex Court, rendered by larger benches.”.Moreover, as Singh points out in her petition, the amendment could create a paradox. Sanction would require the consideration of relevant facts, which can only be collected after an investigation. Consequently, an Informant cannot collect full facts so as to present a case for prior sanction..It is further contended that the amendment gives no protection to the common man, while providing privilege to public servants, and “militates against the scheme of judicial supervision on investigation”..The topic will now come under the scanner of the Bombay High Court; it is likely to be listed next week before a Bench of Justices BR Gavai and MS Karnik..Read a synopsis of the petition: