Can Magistrate direct PC Act probe against public servant without sanction? Kerala High Court larger bench to decide

A larger Bench of the Kerala High Court is set examine whether a Magistrate under Section 156(3) of the Code of Criminal Procedure (CrPC) order investigation against a public servant in absence of a prior sanction under Section 19 of the Prevention of Corruption (PC) Act [AK Sreekumar v State of Kerala & ors]..Single-judge Justice K Babu referred the matter to a larger Bench after noting though the issue is pending adjudication before the Supreme Court since 2018, the top court subsequently in 2021 had held that an embargo on taking cognizance does not impede investigation.While Section 17A of the PC Act prohibits the police from conducting any enquiry or investigation against a public servant without official approval, Section 19 prohibits a court from taking cognizance of certain offences committed by a public servant without there being a sanction from the government.The High Court in Muhammed VA and Others v State of Kerala had held that until Supreme Court's larger bench decides on the issue, the ruling in Anil Kumar v MK Aiyappa, wherein the top court held that a Magistrate can not refer a private complaint for investigation under PC Act without a valid sanction, would remain binding..However, the issue again arose before the High Court during adjudication of a plea challenging a special judge's decision to adjourn a complaint under Section 156(3) of the CrPC to await approval of the competent authority under Section 17A of the PC Act..Justice Babu, while considering whether sanction is necessary at the stage of ordering an investigation under PC Act, examined various decisions of the Supreme Court as well as the High Court.In particular, the Court referred to the apex court's decision in Jayant and Ors. v. State of Madhya Pradesh wherein it was held that that an order directing investigation does not amount to taking cognizance."The co-ordinate Bench in Jayant has expressly referred to the law laid down in AnilKumar and even attempted to clarify that when a Special Judge refers a complaint for investigation, obviously, he has not taken cognizance of the offence and it is a pre-cognizance stage, and not a post-cognizance stage," it said.In this backdrop, the single-judge opined that the Court is bound to apply the law as clarified by the subsequent judgment..The Court also noted that Supreme Court had delivered its decision in Anil Kumar's case when Section 17A was not part of the statute. Section 17A mandates that prior sanction be sought by police for investigating public servants in specific cases. Justice Babu opined that the provision only imposes prohibition on a police officer from conducting the investigation without the previous approval of the prescribed authority."Section 17-A of the Act cannot be considered as offering a protective shield for a corrupt public servant. Once a constitutional court examines and satisfies itself about the necessity of the enquiry or the investigation into the alleged crime, the requirement of approval by the competent authority is substituted by judicious determination," the judge said..Accordingly, the Court said the entire issue needs to be reconsidered and referred the following questions for a decision by a two-judge bench:- When the Supreme Court has in Jayant referred to the proposition laid down in AnilKumar and laid down a dictum that an order directing investigation is not tantamount to taking cognizance, whether it is possible to construe sanction under Section 19 of the PC Act as a pre- requisite for passing a direction for investigation under Section 156(3) of the Cr.P.C overlooking that the law laid down by the Supreme Court in Jayant aligns with the ratio laid down by the Constitution Bench and Larger Benches of the Supreme Court.- Whether the law laid down by the Division Bench of this Court in Muhammed that pending adjudication of the reference made by the Supreme Court in Manju Surana, this Court is bound to follow the law laid down by the Supreme Court in AnilKumar continues to be a binding law in the light of the subsequent judgment of the Supreme Court in Jayant wherein the Supreme Court has laid down the proposition that an embargo on taking cognizance imposed by the statute does not impede investigation.- Whether the ratio laid down in Anil Kumar is applicable to cases, post amendment of the P.C Act (vide: Act 16 of 2018), when by inserting Section 17-A and Section 19 (1) (ii) to the P.C. Act, the legislature has expressly conveyed its otherwise implicit intent to treat the stage of the investigation as different from the stage of cognizance for the purpose of the P.C. Act.- Whether the expression "cognizance" in Section 19 of the P.C Act is liable to be construed bearing in mind that the said expression derives its meaning from the context expressly referred therein, ie,"prosecution"..Justice Babu ordered the registry to place the papers before the Chief Justice so that the matter can be placed before a Bench of two Judges for an authoritative pronouncement on the issues raised..The petitioner was represented by advocates Sooraj T Elenjickal, Renoy Vincent, Helen PA, Arun Roy and Shahir Showkath Ali.Special Government Pleader (Vigilance) A Rajesh appeared for the State.Advocate MK Sreekesh was appointed as Amicus Curiae..[Read Order]