In this blogpost, Priyanshu Upadhyay, Student, Christ University, Bangalore, writes about the analysis of the CRPC amendment pertaining to Section 156(3) and 190 by Maharashtra Government.

The Government of Maharashtra last year amended Section 156(3) and 190 of CrPC wherein no complaint can now be filed against public officials without valid sanction from a competent authority. The Government asserted that the amendment aims at protecting the public officials against false, frivolous and politically motivated cases. The assertion here needs to be scrutinized properly as sufficient protection was already granted to protect the dignity and image of public officials. This paper will scrutinize different elements present in the amendment. The paper is analytical to the extent that the amendment is analysed in the light of different case laws related to the subject.

Introduction

Section 156(3) and 190 of CrPC grants special powers to a Magistrate to take cognizance of a case and order investigation on receiving a direct application from the complainant. The Government of Maharashtra last month amended Section 156(3) and 190 of Criminal Procedure Code by which it took away the discretionary powers of courts in case a complaint is filed against public officials. According to the amendment, no FIR can be registered against a public representative without the sanction from a competent authority. For instance, the police won’t be able to file an FIR against any MLA or MP without the sanction from the speaker of the house. The amendment extends to lowest level elected representatives and public officials like panchayats and municipalities. The amendment is claimed to be in conformity with the judgment of Supreme Court in Anil Kumar &Ors. v. M.K.Aiyappa & Anr[1] rendered in 2013. The Government also stated that the amendment aims at protecting Government servants and elected representatives against false, frivolous and politically motivated cases. It was contended that in several cases, the complaints are found to be false and totally bereft of truth and those who are doing their work honestly get harassed which prevented them from doing their work.[2] According to the Government, the amendment is aimed to protect the Government officials and allow them to perform their duties fearlessly and efficiently.

However, the legislative enactment cannot be accepted blindly, and it needs to be tested on the touchstone of constitutional provisions. Further, no conclusion can be deduced unless the aims and objectives of the act are studied properly in the light of their prospective effects.ELEMENTS OF AMENDMENT

Elements of amendment

Maharashtra Government by the amendment gives special privilege to the Public officials over other people as now no FIR can also be filed under Section 156(3) and 190 CrPC, 1908, without the sanction of a competent authority. For determining the justness and fairness of the amendment, its components need to be analysed in the light of legislative intention and judicial precedents. The two moot areas which needs to be analysed are:

1. The Scope and nature of power exercised by magistrate under Section 156(3) and 190 of CrPC, and;
2. Meaning and applicability of word ‘sanction’.

It is necessary to analyse the two components because special powers are granted to Magistrates under Section 156(3) and 190 of the CrPC and getting sanction from a competent authority is a special condition which needs to be satisfied before filing any case against public officials.

Scope and Nature of Power Exercised By The Magistrate Under Section 156(3) and 190 CrPC,1908:

Section 156(3) of and Section 190 CrPC empowers the magistrate to order an investigation on receipt of a direct complaint from any person. The Section reads as under[3]:

156. 156. Police officer’s power to investigate cognizable case.

(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.

Section 156(3) should be read with Section 190 CrPC which is as under:

190. Cognizance of offences by Magistrates –

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section(2), may take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try the case.

So, when a complaint is filed under Section 156(3) before a Magistrate empowered under Section 190 he/she can take cognizance of the case and instruct the Police for further actions as provided under Section 156. The scope and ambit of Section 156(3) can be best understood with the help of different case laws and the interpretations provided therein.

             In order to understand the scope and nature of both the sections, it is first important to ascertain the meaning of word ‘cognizance’. The meaning of the word can be best understood with the help of the decision of the Apex Court in the case of R.R. Chari v. The State Of Uttar Pradesh wherein it was held that,

“taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a. magistrate as such applies his mind to the suspected commission of an offence” have to be read in the light of these facts.”

             Further, when an application is received by the Magistrate under Section 156(3) CrPC he orders the Police for inquiry. The effect of application under Section 156(3) and its effect on police were explained by the Supreme Court in the case of   Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others[4] wherein it was held that,

 “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.”

After receiving information under Section 156(3) CrPC the Magistrate can order Police to file an FIR for the purpose of initiating the investigation. The proximity between information received under Section 156(3) and order to file an FIR was brought out by the Apex court in the case of Dilawar Singh v. State of Delhi[5]wherein it was held that,

“The clear position is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. 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 the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code 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 complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.”

The Government of Maharashtra in support of the amendment contends that it is in conformity with the Supreme Court’s Judgment in the case of Anil Kumar v. M.K. Aiyappa[6] rendered in 2013. Now, any person who runs through the judgment would easily say that the Maharashtra Government misinterpreted the judgment. The Court in its 2013 judgment brought out what can be called general guidelines which should be followed by the Magistrates on receiving any complaint under Section 156(3) CrPC against public officials. The court while drawing its conclusion referred the Maksud Saiyed’s[7] case also wherein the application of mind by the Magistrates was explained. The extract from the judgment which deals with the same is as under:

“The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted.”

After the 2013 judgement, the Supreme Court gave other two important judgments related to usage of Section 156(3) in the case of Mrs.Priyanka Srivastava and Another v. State of U.P. and others[8]. In this case, the apex court held that applications under Section 156(3) must be supported by an affidavit so that the chances of filing false complaints are reduced. The apex court also stated that the option to approach the Magistrate under Section 156(3) CrPC should be made available to a litigant with clean hands. The court held that,

“At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. The warrant for giving a direction, that an application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). In the present case, we are obligated to say that learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156(3) CrPC”

Section 156(3) and 190 CrPC gives power to Magistrate to take cognizance of a case on the direct complaint of the complainant. Decisions above explains that the Magistrate must exercise his power with due care and must apply his mind to different facts and circumstances before coming to any decision.Meaning and need for sanctions

Meaning and need for sanctions

The object and purpose underlying the need for a valid sanction from a competent authority before filing a case against public officials is to protect them from frivolous, vexatious or false prosecution with respect to the discharge of their official duties. Section 197 of Code of Criminal Procedure and Section 19 of Prevention of Corruption Act bars the Court from taking cognizance of the offence alleged to have been committed by the public servant except with the previous sanction of the Government/competent authority empowered to grant requisite sanction. Both sections start with the words; “No Court shall take cognizance of the offence”.Sanction as required should be given  by  the Central Government or the State Government  or  any  other  authority,  such sanction shall be given by that Government or  authority  which  would  have been competent to remove the public servant from  his  office  at  the  time when the offence was alleged to have been committed. The status and relevance of a sanction can be understood with the following cases:

               The importance of sanction and their role in protecting public officials was explained by the Apex Court in the case of General Officer, Commanding v. CBI[9]. It was held that,

“the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void-ab-initio.”

The requirement of a sanction is mandatory for filing any case against public officials and at the same time the sanction should be from a valid authority. The Apex Court in the case of Nanjappa v. State of Karnataka[10] clearly brought out the distinction between valid sanction and invalid sanction. It was held that the court is competent to try matters relating to public servants only when the complaint is accompanied with a valid sanction. The court held that,

“The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for prosecution in accordance with law. If the trial Court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non-est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution.”

So, requirement of a valid sanction has been a precondition for filing any case against public officials. The requirement protects the public officials from false, frivolous and vexatious allegations and allows them to work freely.

Analysis

The requirement of sanction from a valid authority was a valid condition for filing any case against public officials under Section 197 of Code of Criminal Procedure and Section 19 of Prevention of Corruption Act. So, cases filed against public officials required valid sanction from competent authority but there was not bar on filling of an F.I.R. The Maharashtra Government with the amendment to Section 156(2) and 190 of CrPC has made it mandatory to get a valid sanction from a competent authority before filing any case against public officials.

Further, the decisions related to Section 156(3), 190 CrPC and requirement of sanction clearly depicts that sufficient protection was already granted to public officials. The Government of Maharashtra passed the amendment by stating that it would protect the officials against frivolous and false complaints. But from all the settled cases involving public officials, it is has been made clear that the court always takes required amount of care before taking cognizance of the same. After the amendment by Maharashtra Government, no FIR can now be filed against public officials without a valid sanction from a competent authority. The investigation now cannot be initiated without a valid sanction which makes the filing of complaint more difficult. It is clear that the Government of Maharashtra has conferred unfettered immunity to public officials and has put one more obstacle in the path of complainants.

Further, the records related to the public officials in Maharashtra depict that there was no need for such a step. According to analysis by Association for Democratic Reforms of affidavits submitted by MLAs from Maharashtra at the time of election in 2014, 165 (57%) of the MLAs had declared criminal cases. Out of these 51 (31%) MLAs had declared cases where charges had been framed. Among all legislative assemblies in India, Maharashtra is second highest after Jharkhand in the proportion of MLAs with criminal cases. Three MLAs had declared cases related to murder and attempt to murder while 11 MLAs declared cases related to crimes against women, three MLAs declared cases related to causing communal disharmony, 14 MLAs with cases of robbery and dacoity and nine MLAs with cases related to kidnapping.[11]

Further, it was contended that the amendment is in conformity with the 2013 Supreme Court judgment in Anil Kumar vs MK Ayappa case[12]. However, from the judgment of the case, it can be clearly inferred that the Government wrongly interpreted it. The Judgment nowhere talks about the requirement of sanction in order to file an FIR. Former IPS officer-turned-lawyer YP Singh also stated that “this decision is legally incorrect. The Supreme Court prohibited filing of a complaint in the court without sanction of the competent authority under section 19 of the Act. However, this does not restrict filing of an FIR, which is necessary to start an investigation. This is just putting the cart before the horse. To seek sanction, you need evidence, and evidence can only be collected if an FIR is filed.”

The amendment confers unreasonable protection to Governmental officials which opens it to further misuse. The amendment also violates Article 14 of the Indian Constitution, 1950 as it goes against the principle of equality and equality before the law and gives unreasonable protection to public officials over the other class of people.

Conclusion

It can be inferred from the above that the step of Maharashtra Government is an anti-welfare step which acts as yet another protective shield to corrupt public officials. It is important that public officials should be allowed to enjoy enough freedom for doing their work properly and efficiently but at the same time, reasonable restriction should also be imposed in order to put a check on their misuse. In India requirement of a valid sanction for filing a case against public officials was already present as a valid protection. But, there was no restriction on filing an FIR.

The Government of Maharashtra with the amendment brought in a limitation on the filing of FIR, which in no way is reasonable. The amendment clearly imposes unfettered immunity on the public officials which opens it increased misuse. It is also clear that the basis of the amendment i.e the Supreme Court judgment nowhere matches the intention of the Government.

Therefore, it is concluded that the amendment can never be welcomed as it gives an unreasonable privilege to public officials being in violation of Article 14 and other settled principles of law.

[1] (2013) 10 SCC 705

[2]http://economictimes.indiatimes.com/news/politics-and-nation/maharashtra-amends-crpc-provisions-no-fir-against-mlas-bureaucrat-without-approval/articleshow/47609898.cms

[3]Section 156, Code of Criminal Procedure, 1980

[4] (1976) 3 SCC 252

[5] (2007) 12 SCC 496

[6] (2013) 10 SCC 705

[7] (2008) 5 SCC 668

[8]Criminal Appeal No.781 Of 2012

[9]Criminal Appeal No. 257 of 2011

[10] CRIMINAL APPEAL NO.1867 OF 2012

[11] http://www.afternoonvoice.com/repeal-the-amendment-to-the-crpc-ngo.html

[12]Supra note 7