Interim Order 2

Order Details: COPY OF JUDICIAL PROCEEDINGS
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CNR No. DLTC110002692023
CT No. 7/23
Triveni Vs. Shakib & Ors.
PS AMBEDKAR NAGAR
15.04.2023
Present : Complainant Triveni in person.
She submits that her Counsel is ill today. On the directions of
Court, she has given the same in writing.
As mentioned in the previous ordersheet of this Court dated
31.03.2023, Sanction U/s 19 of the POC Act, 1988 is required in the present
matter in view of the judgment of Hon'ble Delhi High Court in the case of
Anil Kumar & Ors. Vs. M. K. Aiyappa & Anr. Crl. Appeal No. 1590-
1591/2013 decided by Hon'ble Supreme Court on 01.10.2013.
1. It was held by the Hon'ble Supreme Court in the case of Anil Kumar (Supra) that
in a case under The Prevention of Corruption Act 1988 even investigation
156(3) Cr. P. C cannot be ordered in absence of a valid sanction under section
19 of the said Act. In that case also a criminal complaint was filed under the
provisions of The Prevention of Corruption Act 1988 read with other provisions of
IPC and based on that complaint the trial court had ordered registration of FIR and
investigation u/s 156(3) of Cr. P. C. Hon’ble Supreme Court clearly held in para
21 that even investigation against a public servant invoking powers u/s 156(3)
Cr. P. C cannot be ordered without previous sanction under section 19 of the
Prevention of Corruption Act 1988. Para 21 of the said judgment reads as
follows;
“……………………That does not mean that the requirement to obtain sanction
is not a mandatory requirement. Once it is noticed that there was no previous
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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 above legal position, as already
indicated, has been clearly spelt out in Paras Nath Singh [(2009) 6 SCC 372:
(2009) 2 SCC (L&S) 200] and Subramanian Swamy [(2012) 3 SCC 64: (2012) 1
SCC (Cri) 1041: (2012) 2 SCC (L&S) 666] cases.”
2. The allegations against the public servant made by the complainant in this case
pertains to sometime in 2014. Sec. 19 of POC Act, 1988, as it stood at that time and
prior to its amendment dated 26.07.2018 in the said provision, provided that no
Court shall take cognizance of an offence punishable U/s 7, 10, 11, 13 & 15 of the
Act alleged to have been committed by a public servant, without prior Sanction. In
the present case also, as per allegations of the complainant in para 17 of the
complaint, proposed accused ASI Satvir Singh demanded a sum of Rs. 50,000/-
from the complainant.
3. Sec. 17-A of POC Act 1988 has been inserted w.e.f. 26.07.2018 and this provision
provides that no police officer shall conduct any enquiry, inquiry or investigation
into any offence alleged to have been committed by a public servant under this Act,
where the alleged offence is relatable to any recommendation made or decision
taken by such public servant in discharge of his official functions or duties, without
the previous approval of the competent authority.
4. Even amended Section 19 of POC Act, as amended w.e.f. 26.07.2018, provides that
no request for sanction can be made by a person other than a police officer or an
officer of an investigating agency to the competent authority for previous sanction
unless such person has filed a complaint in a competent Court about the alleged
offences for which the public servant is sought to be prosecuted; and the Court has
not dismissed the complaint U/s 203 Cr.P.C and the Court has directed the
complainant to obtain the sanction for prosecution against the public servant. It is
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also provided that whenever any such sanction is applied by a private person, the
competent authority shall mandatorily hear the concerned public servant before
granting sanction.
5. In the present case also, admittedly proposed A3, A4 & A5 are public servants and
against public servants, offences under The Prevention of Corruption Act 1988
have been invoked. Therefore, in view of judgment of Hon'ble Supreme Court, in
M. K. Aiyappa (supra), as per the then Sec.19, Sanction is required. Therefore,
before proceeding further in the present complaint, let the complainant apply for
sanction with the competent authority in terms of section 19 of POC Act and, in
case the competent authority in its wisdom grants sanction, let the complainant
supply the same to the court for further proceeding.
6. It is made clear here to the competent authority that this order is not a
direction in any manner to the competent authority to grant sanction and
ought not to be construed as such. All that this order directs is that the
complainant may approach the competent authority seeking sanction U/s 19 of
the POC Act. The competent authority shall keep in mind the legal position
and other requisites and then take an independent decision regarding grant or
refusal of Sanction, without being influenced by any observation in this order.
7. Let it be mentioned here that though the Ld. Magistrate, prior to the transfer of
the present complaint to this Court, vide order dated 06.12.2016 dismissed the
application U/s 156(3) Cr.P.C of the complainant and vide the same order Ld.
MM also ordered that he takes cognizance on the complaint and then posted the
matter for pre-summoning evidence of the complainant, but the said order has to
be treated as non-est in the eyes of law. Section 3(1) r/w Sec. 4 of the POC Act
makes it clear that jurisdiction to try any case involving offence under the POC
Act, 1988, vests exclusively with the Special Judge so appointed under Sub
Section 1 of Sec. 3 and the jurisdiction of other Courts is excluded.
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Let the complainant apply for and seek Sanction from the
competent authority and thereafter apprise this Court.
Put up on 27.05.2023.
(DIG VINAY SINGH)
Special Judge (PC ACT)(ACB)-02
Rouse Avenue Courts
New Delhi / 15.04.2023 (r)
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