Ajay Kumar Agrawal vs State of M.P.

Heard.

The petitioner has challenged the order dt. 12.3.2014 passed by the Special Court.

The respondent No. 2 instituted a private complaint for commission of offence under Sections 409, 420, 467, 468, 471 of IPC read with Section 13(1)(c), (d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "PC Act") against the petitioner. Alongwith the complaint, an application u/s 156(3) of Cr.P.C. was also filed by the respondent No. 2.

The court ordered Lokayukta Organisation to conduct investigation in exercise of powers u/s 156(3) of Cr.P.C. and consequently the Lokayukta Organisation registered a criminal complaint against the petitioner.

Hon''ble the Supreme Court in Anil Kumar and Others Vs. M.K. Aiyappa and Another, has held that previous sanction is necessary to prosecute a public servant for offences under the Prevention of Corruption Act. The relevant findings of Hon''ble the Supreme Court are as under:

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, and in such a case, the Special Judge/Magistrate cannot refer the matter u/s 156(3) CrPC for investigation against a public servant without a valid sanction order u/s 19(1) of the Prevention of Corruption Act, 1988 (PC Act). 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 u/s 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. The Special Judge/Magistrate in the present case, has stated no reasons for ordering investigation.

From the aforesaid judgment of the Hon''ble Supreme Court it is clear that sanction u/s 19(1) of the PC Act is a precondition for ordering investigation against public servant u/s 156(3) of Cr.P.C. even at pre-cognizance stage. The requirement is mandatory and the investigation can not be ordered u/s 156(3) of Cr.P.C. without previous sanction u/s 19(1) of the PC Act against a public servant for taking cognizance under the PC Act.

Admittedly, in the present case, respondent No. 2 had not obtained any previous sanction from the appropriate government to prosecute the petitioner u/s 19(1) of the PC Act. Hence, the proceedings initiated by the Special Court against the petitioner on a private complaint is against the law.

Consequently, the petition is disposed of with the following directions:-

(i) That the cognizance taken by the Special Court against the petitioner and the order of investigation u/s 156(1) of Cr.P.C. against the petitioner are hereby quashed.

(ii) It is further clarified that respondent No. 1 is at liberty to institute the proceeding if he obtain the sanction in accordance with Section 19(1) of the PC Act against the petitioner.

(iii) The petitioner is also at liberty to raise all other grounds before the Special Court in regard to further continuation of proceeding against him in the absence of Section 197 of Cr.P.C.