L. NARAYANA SWAMY versus STATE OF KARNATAKA & ORS.
[2016] 5 S.C.R. 683, Supreme Court of India, 2016
Outcome: Dismissed (Dismissed)
Segment: Facts
(2016] 5 S.C.R. 683 
L. NARAYANA SWAMY 
v. 
STATE OF KARNATAKA & ORS. 
(Criminal Appeal No. 721 of2016) 
SEPTEMBER 06, 2016 
(A.K. SIKRl AND N.V. RAMANA, JJ.] 
Prevention of Corruption Act, 19./7: 
s.19(1) - Bar taking cug11iza11ce of ojfence - Held: Bar u/ 
s.19(1) would not corer ll'ithin its sweep order directing investigation 
uls.156(3) Cr.P.C. - An order directing investigation uls.156(3) 
against public servant can be passed only after obtaining valid 
sanction - Code of Criminal Procedure, 197 3 - s.156(3) . 
s.19(1) - Whether the public servant not being in the same 
post ;1•hen the offence was allegedly committed though continuing 
as a public servant loses the protection under s.19(1) of PC Act -
Held: Where the public servant had abused the office which he 
held in the check period but had ceased lo hold "that office" or 
was holding a different office, then sanction ll'Ould not be necessary 
- It means where the alleged misconduct is in some different capacity 
than the one ll'hich is held at the time of taking cognizance, there 
·will be no necessity to take the sanction. 
Code of Criminal Procedure, 1973: s.482 - Quashing of 
proceedings - Allegations that appellants abused their official 
position and thereby committed offence under PC Act - It was matter 
of evidence on the basis of which culpability of appellants has to 
be judged - In the facts of the case, proceedings not quashed. 
Allowing the appeals, the Court 
HELD: 1. The plain language of Section
19(1) conveys that 
A 
B 
c 
D 
E 
F 
the Court is precluded from taking "cognizance" of an offence 
G 
under certain sections mentioned in this provision if the 
prosecution is against the public servant, unless previous sanction 
of the Government (Central or State, as the case may be) has 
been obtained. Section 190 of the Cr.P.C. stipulates that 
cognizance of an offence is to be taken under three contingencies 
683 
H
684 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
viz. (a) upon receiving a complaint of facts which constitute such 
offence, or (b) on the basis of police report stating such facts 
which constitute an offence or upon information received from 
any person other than police officer, or (c) suo moto when 
Magistrate acquires that such an offence has been committed. 
When a complaint is received, the Court records preliminary 
evidence of the complainant on the basis of which it satisfies itself 
as to whether sufficient evidence is placed on record which may 
prinw facie constitute such offence. Likewise, Police report is 
filed under Section 173(2) of the Cr.P.C. on the completion of 
investigation and on perusal thereof, the Magistrate satisfies 
himself about the facts which constitute such offence. Similar is 
the position in the third contingency. It was held in * Anil Kumar 
case that the word "cognizance" has a wider connotation and is 
not merely confined to the stage of taking cognizance of the 
offence. When a Special Judge refers a complaint for investigation 
under Section 156(3) CrPC, obviously, he has not taken 
cognizance of the offence and, therefore, it is a pre-cognizance 
stage and cannot be equated with post-cognizance stage. When a 
Special Judge takes cognizance of the offence on a complaint 
presented under Section 200 CrPC and the next step to be taken 
is to follow up under Section 202 CrPC. Consequently, a Special 
Judge referring
the case for investigation under Section 156(3) 
is at pre-cognizance stage. In other words, an order directing 
further investigation under Section 156(3) of the Cr.P.C. cannot 
be passed in the absence of valid sanction. [Para 9, 10, 12)(690-
F-G; 691-A-B, F,G; 694-G; 695-EJ 
Manharibhai Muljibhai Kakadia and Anr. 
v. 
Shaileshbhai Mohanbhai Patel and Ors. 2012 (8) SCR 
1015: 2012 (10) SCC 517; *Anil Kumar & Ors. v. MK. 
Aiyappa & Am: 2013 (9) SCR 869 : 2013 (10 ) SCC 
705 - relied on. 
2 .1. The High Court was absolutely right in relying on the 
decision in Prakaslt Sing/I Badal to hold that the appellants in 
both the appeals had abused entirely different office or offices 
than the one which they were holding on the date on which 
cognizance was taken and, therefore, there was no necessity of 
sanction under Section 19, P.C. Act. Where the public servant
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 
had abused the office which he held in the check period but had 
ceased to hold "that office" or was holding a different office, then 
a sanction would not be necessary. Where the alleged misconduct 
is in some different capacity than the one which is held at the 
time of taking cognizance, there will be no necessity to take the 
sanction. [Para 18] [702-A-C] 
2.2. The allegations against these two appellants are that 
after conducting spot inspection by accused No.1, first appellant 
(accused .No.3) who was working as Tehsildar had recommended 
it on same day and thereafter second appellant (accused No.6) 
who was working as Assistant Commissioner had given an 
endorsement on the very next day to the effect that property is 
not the subject matter of acquisition. On this basis, it was alleged 
that these officials have abused their official position. The 
appellants contended that they merely acted on the court decree. 
It is alleged that these two appellants did not bother to find out 
that there were two decrees in two different names in respect of 
same land and further that 10 acres ofland in question had already 
been acquired and could not be the subject matter of decree. 
These were the aspects which were, prinw fltcie, to be looked 
into by these appellants. On the basis the said purported defence, 
therefore, the proceedings cannot be quashed. It would be a 
matter of evidence on the basis of which culpability of the
appellants shall be judged.[Para 19)[702-D-G] 
Prakash Singh Badal & Anr. v. State of Punjab & Ors. 
2006 (10) Suppl. SCR 197 : 2007 (1) SCC 1 - relied 
on. 
685 
A 
B 
c 
D 
E 
F 
R.S. Nayak v. A.R. Antulay 1984 (2) SCR 495 : 1984 
(2) SCC 183; State of Himachal Pradesh v. Nishant 
Sareen 2010 (13) SCR 1200 ; 2010 (14) SCC 527; 
Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 
(3) Suppl. SCR 705 : 1997 (7) sec 622 ; Abhay Singh 
Chautala v. Central Bureau of Investigation 2011 (10) 
G 
SCR 949 : 2011 (7) SCC 141 - referred to. 
Case Law Reference 
· 2013 (9) SCR 869 
relied on 
Para7 
H
686 
A 
B 
c 
SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
2012 (8) SCR 1015 
referred to 
Para 7 
2010 (13) SCR 1200 
referred to 
Para 13 
1997 (3) Suppl. SCR 705 
referred to 
Para 13 
2011 (10) SCR 949 
referred to 
Para 14 
2006 (10) Suppl. SCR 197 
relied on 
Para 16 
1~84 (2) SCR 495 
referred to 
Para 17 
CRIMIN AL APPELLATE JURISDICTION: Criminal Appeal No. 
721 of2016 
WITH 
CRL.A. No. 722 of2016. 
From the Judgment and Order dated 09.09.2014 of the High Co mt 
of Karnataka Dharwad Bench in Criminal Petition No. 10I017of2014. 
o 
K. V. Viswanathan, P. V. Shetty, Sr. Advs., Gautam S. Bhardwaj, 
Bellippa, Ashwani Kumar, Dhananjay Bhaskar, D. L. Chidananda, 
Gurudatta Ankolkar, Advs. for the Appellant. 
Basava Prabhu S. Patil, Sr. Adv., Joseph Aristotle S., Ms. Priya 
Aristotle, Ms. Shivani Srivastava, Shailesh Madiyal, Chinmay 
E 
Deshpandey, Advs. for the Respondents. 
The Judgment of the Court was delivered by 
A.K. SIKRI, J. l. Before adverting to the question of law that 
has been raised in these appeals (whjch is common to both the cases), 
we would like to traverse through the facts and the background which 
F 
has led to the filing of the present appeals. 
2. Respondent No.2 (hereinafter referred to as the 'complainant') 
filed a complaint on the basis of which a case has been registered against 
the appellants, who ai'e accused Nos. 3 and 5, for the offences punishable 
under Section 13{l)(d) read with Section 13(2) of the Prevention of 
G 
Corrupti;:in Act, 1947
(for sho11, 'P.C. Act') and Sections 120(b), 427, 
447 and 506 read with Scction 34 of the Indian Penal Code, 1860. The 
complaint of the complainant contained the following allegations: 
H 
3. One Smt. Amararnmal was the original owner of immovable 
property measuring 259.95 acres in Survey No. 597-B and an area
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 
rA.K. SIKRI, J.l 
measuring 57.30 acres in Survey No. 601-A ofBellari, having purchased 
the same from the Government of India under a registered sale deed 
dated January 19, 1940, registered in the office of the Sub-Registrar, 
Bellari. The complaint further states that one Smt. Akula Lakshmamma 
and her children had obtained money decree against one Pitarnbara 
Modaliyar and in the execution of the said decree the decree holder 
purchased the land measuring 27 .25 acres through cow1 and, thus, became 
owner of the said property which is situated at Survey No. 597-B. Out 
of this 27.25 acres of land, an area measuring 10 acres of land was later 
acquired by the Government for forming high level canal by Thungabhadra 
Project. However, the revenue authorities failed to demarcate the 
remaining extent ofland measuring 17.25 acres which forced Smt. Akula 
Lakshmamma and her children to file a suit seeking mandatory injunction. 
In the meantime, they sold the said 17 .25 acres of land to one Mr. 
Parameshwara Reddy, father-in-law of Mr. Gali Janardhana Reddy. On 
the same day, i.e. on October 24, 2002, Smt. Akula Lakshmamma and 
her family members also entered into an agreement for sale with accused 
No.6 (Mr. B. Sriramulu) for an area measuring 27.25 acres, which 
included 10 acres of land that had already been acquired by the 
Government. Thus, accused No.6 entered into agreement for sale even 
in respect of the acquired land.
More over, accused No.6 and Mr. Gali 
Janardhana Reddy are close friends and, therefore, there was no reason 
to hold that accused No.6 was not aware of the transaction between 
Smt. Akula Lakshmamma and Mr. Parameshwara Reddy. Accused 
No.6 filed a suit for specific performance based on the said agreement 
to sell in which ex-parle decree dated April 08, 2003 came to be passed. 
On April 21, 2003, Mr. Parameshwara Reddy (with whom the first 
agreementto sell was entered into) sought for change ofland use (though 
in respect of this very land accused No.6 had filed a suit for specific 
pe1formance). The then Deputy Commissioner accorded his permission 
for change of land use vide order dated June 17, 2003. After this 
conversion order, Mr. Parameshwara Reddy gifted the entire land 
measuring I 7.25 acres in faour of his daughter, Smt. Gali Laxmi Aruna, 
w/o. Mr. Gali Janardhana Reddy vide gift deed dated March 21, 2006. 
It is alleged that accused No.6 was fully aware of these facts. 
Notwithstanding the same, on the basis of the ex-parte decree of specific 
performance obtained by him, he filed execution petition and obtained 
the sale deed from the court in respect of the entire 27.25 acres of land. 
It was notwithstanding the fact that out of this 27.25 acres of land, in 
687 
A 
B 
c 
D 
E 
F 
G 
H
688 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
respect of which accused No.6 obtained the sale deed, 17.25 acres was 
claimed by Mr. Parameshwara Reddy as well and has been gifted to his 
daughter and the remaining I 0 acres of land had been acquired by the 
Government. Not only this, accused No.6 also applied for conversion of 
use of this very land and the authorities passed the order of conversion 
in his favour as well. As on the date of the order of conversion, accused 
No.6 was holding the post of Cabinet Minister. It is alleged that because 
of this reason he could obtain the orderofconversion by exerting influence 
on the revenue authorities. Accused Nos. 3 and 5 (appellants herein) 
are the Government officials working as Assistant Commissioner and 
Deputy Director of Land Records respectively. In respect of the 
Government officials, it is alleged that accused No. I, Revenue Inspector, 
had conclucted spot inspection on January 17, 2011; accused No.3, who 
is the Tehsildar, had recommended case for conversion on the same day 
and accused No.5, who is the Assistant Commissioner, had given an 
endorsement to accused No.6 on the very next day to the effect that 
property in question is not the subject matter of acquisition. On this 
basis, it is alleged that all the officials aided accused No.6 by abusing 
their official position. We may state at this stage itself that the appellants 
cannot argue that there are no allegations against them in the
complaint 
warranting taking cognizance qua them. 
On the basis of the aforesaid allegations, prayer was made in 
the complaint to secure the pre5ence of accused persons and the complaint 
be referred to the Karnataka Lokayukta Police for investigation under 
Section 156(3) of the Code of Criminal Procedure, 1973 (for short, 
'Cr.P.C. ')since the case required investigatory powers to unearth several 
other documents relating to the case. 
4. The District and Sessions Judge, Bellari passed order dated 
June 14, 2003 on the said complaint thereby referring the same to the 
Police Inspector, Karnataka Lokayukta Police, Bellary for further 
investigation under Section 156(3) of Cr.P.C. The jurisdictional police 
registered the aforesaid case as Crime No. 9/2013 under Section 13( 1 )( d) 
read with Section 13(2) of the P.C. Act and Sections 120(b), 427, 447 
and 506 read with Section 34 of the Indian Penal Code, 1860. The 
appellants herein, along with four other persons, filed Criminal Petition 
No. I 0864of2013 before the High Court ofKarnataka seeking quashing 
of the said proceedings. In this petition, order dated July 08, 2013 was 
passed observing that during the pendency of the matter, since the Police
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 
[A.K. SlKRl, J.] 
had fled a final report, those petitioners were at liberty to challenge the 
final report before the trial court. 
5. According to the appellants, this order was passed by the High 
Court on erroneous statement made by the counsel as neither the 
investigation was completed nor final report was filed in the court. 
Therefore, these appellants filed another Criminal Petition No. I 0I017 
of2014 seeking quashing of the entire proceedings. In the petition, the 
grounds taken by the appellants were that there was no allegation ofany 
corrupt practice in the entire complaint insofar as they are concerned. 
It was further submitted that before directing further investigation under 
Section 156(3) of Cr.P.C. and taking cognizance of the complaint, the 
trial court should have satisfied itself that due sanction, as required under 
Section 19 of the P.C. Act read with Section 190 of the Cr.P.C., has 
been obtained and since no such sanction was obtained, such an order 
for further investigation could not have been passed by the trial court. 
It may be mentioned that at the time of filing the complaint, the 
appellants had been transferred from the offices which they were holding 
by virtue of their promotion. However, they submitted that even on 
transfer they continued to hold the public office and, therefore, requirement 
of obtaining sanction was mandatory. 
6. The High Court has, however, brushed aside the
aforesaid 
contentions taken by the appellants and dismissed the petition filed by 
them. Though the petition before the High Court was filed jointly by the 
appellants, they had chosen to file separate appeals in this Court 
challenging the said judgment. That is how these two appears filed by 
them are aimed at same impugned judgment passed by the High Court. 
7. With this factual background, we advert to the questions oflaw 
that arise for consideration: 
(I) Whether an order directing further investigation under 
Section 156(3) of the Cr.P.C. can be passed in re la ti on to 
public servant in the absence of valid sanction and contrary 
to the judgments of this Court in .4nil Kumar & Ors. v. 
M.K. Aiyappa & Anr. 1 and Manlwrihlwi M uljihltai 
Kaka<lia and Am: v. Slwileslthlwi MolumhlUti P<1tel and 
Ors.:? 
1 (2013) 10 sec 105 
'<2012) 10 sec 517 
689 
A 
B 
c 
D 
E 
F 
G 
H
690 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
(2) Whether a public servant who is not on the same post 
and is transferred (whether by way of promotion or 
otherwise to another post) loses the protection under Section 
19(1) of the P.C. Act, though he continues to be a public 
servant, albeit on a different post? 
8. Since requirement of obtaining sanction is contained in Section 
19( 1) of the P.C. Act, it would be proper to reproduce the same. For our 
purposes, reproduction of sub-section (I) of Section 19 of the P.C. Act 
shall suffice which we reproduce hereinbelow: 
"19. Previous sanction necessary for prosecution.-
( 1) No court shall take cognizance of an offence punishable 
under sections 7, 10, 11, 13 and 15 alleged to have been 
committed by a public servant, except with the previous 
sanction [save as otherwise provided in the Lokpal and 
LokayuktasAct, 2013]-
(a) in the case ofa person who is employed in connection 
with the affairs ofthe Union and is not removable from his 
office save by or wit!) the sanction of the Central 
G::>vernment, of that Government; 
(b) in the case ofa person who is employed in connection 
with the affairs of a State and is not removable from his 
office save by or with the sanction of the State Government, 
of that Government; 
( c) in the case of any other person. of the authority competent 
to re.move him from his office." 
9. As is clear from the plain language of the said Section, the 
Court is precluded
from taking "cognizance" of an offence under certain 
sections mentioned in this provision ifthe prosecution is against the public 
servant, unless previous sanction of the Government (Central or State, 
as the ca3e may be) has been obtained. What is relevant for our purposes 
is that this Section bars taking of cognizance of an offence. The question 
is whether it will cover within its sweep order directing investigation 
under Section 156(3) of the Cr.P.C? High Court has taken the view, in 
the impugned judgment, that bar is from taking cognizance which would 
not apply at the stage of investigation by investigating officer. It is 
observed that sanction is required only after investigation and that too
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 
f A.K. SIKRI, J.] 
when, after investigation, it is found that there is substantial truth in the 
investigation report as to what amounts to cognizance of offence. The 
High Court has referred to Section 190 of the Cr.P.C. which stipulates 
that cognizance of an offence is to be taken under three contingencies 
viz. (a) upon receiving a complaint of facts which constitute such offe-!lce, 
or (b) on the basis of police report stating such facts which constitute an 
offence or upon information received from any person other than police 
officer, or (c) suo moto when Magistrate acquires that such an offence 
has been committed. This position is clearly discernible from the reading 
of Section 190 of the Cr.P.C. and we extract the same hereinb'e!ow: 
"190. Cognizance of offences by Magistrates.~ (I) 
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-
!. upon receiving a complaint of facts which constitute 
such offence; 
2. upon a police report of such facts; 
3. 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 (I) of such offences as are within his 
competence to
inquire into or try." 
I 0. When a complaint is received, the Court records preliminary 
evidence of the complainant on the basis of which it satisfies itself as to 
whet:ier sufficient evidence is placed on record which may primafacie 
constitute such offence. Likewise, Police report is filed under Section 
173(2) of the Cr.P.C. on the completion of investigation and on perusal 
thereof, the Magistrate satisfies himself about the facts which constitute 
such offence. Similar is the position in the third contingency. On this 
basis, the High Court has opined that since prior sanction is required 
only at the time of taking cognizance which stage comes much after the 
investigation is ordered under Section 156(3) ofCr.P.C. at the stage of 
giving direction to investigate into the complaint, such a sanction is not 
691 
A 
B 
c 
D 
E 
F 
G 
H
692 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
(2016] 5 S.C.R. 
required. 
11. The above view taken by the High Court is contrary to the 
judgments of this Court in Manharibluti Muljiblwi Kltkadia and Anil 
Kumar. In Manharibluti Muliibltai Kakadia, the facts were that the 
respondent filed before the CJM a criminal complaint alleging that the 
appellan~ had, by doing the acts stated, committed the offences punishable 
under Sections420, 467, 468, 471 and 120-B IPC. The CJM, in exercise 
of his power under Section 202 CrPC by his order dated 18.06.2004 
directed an enquiry to be made by a police inspector. The investigating 
officer investigated into the matter and submitted a compliant summary 
report opining that no offence was made out. The CJM on 16.04.2005 
accepted that report and dismissed the complaint. The respondent 
complainant filed a criminal revision petition thereagainst under Section 
397 read with Section 401 CrPC before the High Com1. The appellants 
then made an application seeking their impleadment as respondents in 
the revision proceedings so that they could be heard in the matter. On 
05 .08.2005, the High Court dism isscd that application. Against that order, 
appeal was heard by special leave. This Court set aside the order of the 
High Court permitting the appellants to be impleaded in the revision 
proceediags. The Cou11 took note of the provisions ofCr.P.C. i.e. Section 
202, which does not permit an accused person to intervene in the course
of inquiry by the Magistrate. However, it was held that even while 
directing inquiry, the Magistrate applies his judicial mind on the complaint 
and, therefore, it would amount to taking cognizance of the matter. In 
this context, the Com1 explained the word "cognizance" in the following 
manner: 
"34. The word ;'cognizance" occurring in various sections 
in the Code is a word of wide import. It embraces within 
itself all powers and authority in exercise of jurisdiction and 
taking of authoritative notice of the allegations made in the 
complaint or a police report or any information received 
that an offence has been committed. In the context of 
Sections 200, 202 and 203, the expression "taking 
cognizance" has been used in the sense of taking notice of 
the complaint or the first infonnation report or the information 
that an offence has been committed on application of judicial 
mind. It does not necessarily mean issuance of process." 
12. Second judgment in the case of A11il Kumar referred to above
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 
rA.K. SIKRI, J.l 
is directly on the poi1{t. In that case, identical question had fallen for 
consideration viz. whether sanction under Section 19 of the P.C. Act is a 
pre-condition for ordering investigation against a public servant under 
Section 156(3) of Cr.P.C. even at pre-cognizance stage? Answering 
the question in the affirmative, the Court discussed the legal position in 
the following manner: 
"13. The expression "cognizance" which appears in Section 
197 CrPC came up for consideration before a three-Judge 
Bench of this Court in State of U.P. v. Paras Nath Singh 
[(2009) 6 sec 372 : (2009) 2 sec (L&S) 200], and this 
Court expressed the following view: (SCC pp. 3 75, para 6) 
"6 . ... 'JO . ... And the jurisdiction of a Magistrate to take 
cognizance of any offence is provided by Section 190 of 
the·Code, either on receipt of a complaint, or upon a police 
· repott or upon information received from any person other 
than a police officer, or upon his knowledge that such 
offence has been committed. So far as public servants are 
concerned, the cognizance of any offence, by any court, is 
barred by Section 197 of the Code unless sanction is obtained 
from the appropriate authority, if the offence, alleged to 
have been committed, was in discharge of the official duty. 
The section not only specifies the persons to whom the 
protection is afforded but it also specifies the conditions 
and circumstances in which it
shall be available and the 
effect in law ifthe conditions are satisfied. The mandatory 
character of the protection afforded to a public servant is 
brought out by the expression, 'no court shall take 
cognizance of such offence except with the previous 
sanction'.- Use of the words 'no' and 'shall' makes it 
abundantly clear that the bar on the exercise of power of 
the court to take cognizance of any offence is absolute and 
complete. The very cognizance is barred. That is, the 
complaint cannot be taken notice of. According to Blacks 
Law Dictionary the word 'cognizance' means 'jurisdiction' 
or 'the exercise of jurisdiction' or 'power to try and 
determine causes'. In common parlance, it means taking 
notice of. A court, therefore, is precluded from entertaining 
a complaint or taking notice ofit or exercisingjurisdiction if 
693 
A 
8 
c 
D 
E 
F 
G 
H
694 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
it is in respect of a public servant who is accused of an 
offence alleged to have been committed during discharge 
of his official duty.' [Ed.: As observed in State of H.P. v. 
MP. Gupta, (2004) 2 SCC 349, 358, para 10: 2004 SCC 
(C'ri) 539.] " 
14. In State of W.B. v. Mohd. Khalid [(1995) 1 SCC 684 : 
1995 SCC (Cri) 266], this Court has observed as follows: 
"i 3. lt is necessary to mention here that taking cognizance 
of an offence is not the same thing as issuance of process. 
Cognizance is taken at the initial stage when the Magistrate 
applies his judicial mind to the facts mentioned in a complaint 
or to a police report or upon information received from any 
other person that an offence has been committed. The 
issuance of process is at a subsequent stage when after 
considering the material placed before it the court decides 
to proceed against the offenders against whom a prima facie 
case is made out." [Ed.: As considered in State of 
Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, 734, para 
13 : (2006) 3 sec (Cri) 179.] 
The meaning of the said expression was also considered 
by this Court in Subramanian Swamy case [(2012) 3 SCC 
64: (2012) 1 sec (Cri) 1041 : (2012) 2 sec (L&S) 666]. 
15. The judgments referred to hereinabove clearly indicate 
that the word "cognizance" has a wider connotation and is 
not merely confined to the stage of taking cognizance of 
th~ offence. When a Special Judge
refers a complaint for 
investigation under Section 156(3) CrPC, obviously, he has 
not taken cognizance of the offence and. therefore, it is a 
pre-cognizance stage and cannot be equated with post-
cognizance stage. When a Special Judge takes cognizance , 
of the offence on a complaint presented under Section 200 
CrPC and the next step to be taken is to follow up under 
Section 202 CrPC. Consequently, a Special Judge referring 
the case for investigation under Section 156(3) is at pre-
CQgnizance stage. 
xxx 
xxx 
xxx
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 
rA.K. SIKRI, J.l 
21. The leamed Senior Counsel appearing for the appellants 
raised the contention that the requirement of sanction is 
only procedural in nature and hence, directory or else Section 
19(3) would be rendered otiose. We find it difficult to accept 
that contention. Sub-section (3) of Section 19 has an object 
to achieve, which applies in circumstances where a Special 
Judge has already rendered a finding, sentence or order. Jn 
such an event, it shall not be reversed or altered by a court 
in appeal, confinnation or revision on the ground of absence 
of sanction. That does not mean that the requirement <<> 
obtain sanction is not a mandatory requirement. Once it is 
noticed that there was no previous 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) CrPC. 
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 sec 64: c2012) 1 sec (Cri) 1041: (2012) 2 
SCC (L&S) 666] cases." 
Having regard to the ratio of the aforesaid judgment, we have no 
hesitr.tion in answering the question oflaw, as fonnulated in para 7 above, 
in the negative. In other words, we hold that an order directing further 
investigation under Section 156(3) of the Cr.P.C. cannot be passed in
the absence of valid sanction. 
13. With this, we now address the second question i.e. whether 
the public servant not being in the same post, when the offence was 
allegedly committed, though continuing as a public servant, loses the 
protection under Section 19(1) of the P.C. Act? Contention of the 
respondents was that sanction under Section 19 of the P.C. A::t is not 
required as the appellants have been transferred from the post which 
they were holding at the relevant time. In support of their plea that even 
on transfer/promotion, the appellants remain public servant, such a 
sanction was required, it was submitted that the object of Section 19 of 
the P.C. Act is to protect public servant from harassment and, therefore, 
exercise of powers under Section 19 of the P.C. Act is not empty fonnality. 
Since the Government, as a sanctioning authority, is supposed to apply 
its mind to the entire material and evidence placed before it and on 
695 
A 
B 
c 
D 
E 
F 
G 
H
696 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
examination thereof, it is to reach the conclusion as to whether the sanction 
is accorded or not. It was also argued that sanction is a weapon to 
ensure discouragement of frivolous and vexatious prosecution and is a 
safeguard for the innocent but not a shield for the guilty. In support of 
the aforP,said arguments, reliance was placed on State of Himaclutl 
Pradesh v. Nishant Sareen 3 and Mansukltlal Vitlutldas Cltaultan v. 
State of Gujarat'. 
14. The aforesaid judgments referred to by the appellants state 
the general proposition oflaw and purpose behind Section 19 of the P.C. 
Act. On the other hand, the question that needs to be answered is 
concerned, we find that it had same very question came up for 
consideration in Abluty Singh Clwuta/a v. Central Bureau of 
lnvestigation5• In that case, the appellants were ML As when charges 
under the P.C. Act were framed against them. However the charges 
pertained to wrongdoing committed during earlier periods of time during 
which they had also been MLAs or MPs. The charges did not pertain to 
their current tenure as MLAs during which the charges were framed 
and trial initiated. On the date when charges were framed no sanction 
under St:ction 19, P.C. Act was obtained. An objection regarding the 
_absence of sanction was raised before the Special Judge, who in the 
common order held that the charge-sheet did not contain the allegation 
that the appellants
had abused their current office as MLAs and, therefore, 
no sanction was necessary. The High Court by the impugned order 
under Section 482 Cr.P.C. did not interfere with the said prosecution. 
This Court put its imprimatur to the aforesaid view of the High Court 
thereby dismissing the appeals. After discussing catena of judgments, it 
was held that even when the appellants in that case held more than one 
offices during the check period which they are alleged to have abused; 
however, there will be no requirement of sanction if on the date when 
the cognizance is taken, they are not continuing to hold that very office. 
It was held that the relevant time is the date on which the cognizance is 
taken. If on that date, the appellant was not a public servant, there was 
no question of any sanction. It was also held that even ifhe continues to 
be a public servant but in a different capacity or is holding a different 
office than the one which is alleged to have been abused, still there 
would be no question of sanction. This can be found from the reading of 
'(2010) 14 sec s21 
' (1997) 7 sec 622 
'(2011) 1 sec 141
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 
f A.K. SIKRI, J.] 
paragraphs 54 and 56 of the judgment which we reproduce below: 
"54. The learned Senior Counsel tried to support their 
argument on the basis of the theory of"legal fiction". We 
do not see as to how the theory of"legal fiction" can work 
in this case. It may be that the appellants in this case held 
more than one offices during the check period which they 
are alleged to have abused; hqwever, there will be no 
question of any doubt if on the date when the cognizance is 
taken, they are not continuing to hold that very office. The 
relevant time, as held in S.A. Venkataraman v. State [AIR 
1958 SC 107 : I 958 Cri LJ 254], is the date on which the 
cognizance is taken. If on that date, the appellant is not a 
public servant, there will be no question of any sanction. If 
he continues to be a public servant but in a different capacity 
or holding a different office than the one which is alleged to 
have been abused, still there will be no question of sanction 
and in that case, there will also be no question of any doubt 
arising because the doubt can arise only when the sanction 
is necessary. In case of the present appellants, there was 
no question of there being any doubt because basically there 
was no question of the appellants' getting any protection by 
a sanction. 
xx 
xx 
xx 
56. Thus, we are of the clear view that the High Court 
was absolutely right in relying on the decision in Prakash 
Singh Badal
v. State of Punjab to hold that the appellants 
697 
A 
B 
c 
D 
E 
in both the appeals had abused entirely different office or 
F 
offices than the one which they were holding on the date 
on which cognizance was taken and, therefore, there was 
no necessity of sanction under Section I 9 of the Act as 
held in K Karunakaran v. State of Kera/a and the later 
decision in Prakash Singh Badal v. State of Punjab. The 
appeals are without any merit and are dismissed." 
G 
15. In the aforesaid extracted paragraph 54 there is a reference 
to the judgment of this Court in S.A. Venkataraman. In that case, the 
issue was considered in the context of the P.C. Act wherein the relevant 
provision, corresponding to Section 19 of the present P.C. Act, was Section 
H
698 
SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
A 
6. Interpreting the provisions of Section 6, this Court held that even 
when a purported offence is committed by a person at the time he was 
a public servant, but he ceases to be a public serv:mt on the date when 
cognizance of the offence alleged to have been ccmmitted is taken by 
the Court, no such sanction was required. 
B 
16. Likewise, in the case of Prakash Sing;':. Badal & A11r. v. 
State of Punjab & Ors. 6, the contention of the appellant in that case 
that permission to obtain sanction throughout service was necessary, 
was negatived in the following manner: 
"24. The plea is clearly untenable as Section 19(1) of the 
c 
Act is time and offence related. 
D 
E 
F 
G 
H 
Section 19( I) of the Act has been quoted above. 
25. The underlying principle of Sections 7, I 0, 11, 13 and 
15 have been noted above. Each of the above sections 
indicates that the public servant taking gratification (Section 
7), obtaining valuable thing without consideration (Section 
11 ), committing acts of criminal misconducr(Section 13) 
are acts performed under the colourof authority but which 
in reality are for the public servant's own pleasure or benefit. 
Sections 7, I 0, 11, 13 and 15 apply to aforest.ated acts. 
Therefore, if a public servant in his subsequent positi..Jn is 
not accused of any such criminal acts then there is no 
question of invoking the mischief rule. Protection to pub I ic 
servants-under Section 19( I)( a) has to be
confined to the 
time-related criminal acts performed under the colour or 
authority for public servant's own pleasure or tenefit as 
categorised under Sections 7, I 0, 11, 13 and 15. This is the 
principle behind the test propounded by this Court, namely, 
the test of abuse of office." 
I"/. It clearly follows from the reading of the judgments in the 
cases of Ah hay Singh Clwuta/a an~ Prakash Singh Badal that if the 
public servant had abused entirely different office l'f .offices than the 
one which he was holding on the date when cognizance was taken, 
there was no necessity of sanction under Section 19 of the P.C. A::t. It 
is also made clear that where the public servant had abused the office 
which he held in the check up period, but had ceased to hold 'that office' 
• (2007) 1 sec 1
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 
rA.K. SIKRI, J.l 
or was holding a different office, then sanction would not be necessary. 
Likewise, where the alleged misconduct is in soine different capacity 
than the one which is held at the time of taking cognizance, there will be 
no necessity to take the sanction. However, one di: .cerning factor which 
is to be noted is that in both these cases the a1 cused persons were 
public servants in the capacity of Member of Legi >lative Assembly I by 
virtue of political office. They were not public servants as government 
employees. However, detailed discussion contained in these judgments 
would indicate that the principle laid down therein would encompass and 
cover the cases ofall public servants, including government employees 
who may otherwise be having constitutional protection under the 
provisions of Article 309 and 311 of the Constitution. To illustrate, we 
may quote the following passage from the judgment of this Court in the 
case of R.S. Nayak v. A.R. A11tulay1, which is reproduced along with 
other paragraphs from the judgment in Prakash $i11gli Badal: 
"23. Offences prescribed in Sections 161, I ~4 and 165 IPC 
and Section 5 of the 194 7 Act have an· intimate and 
inseparable relation with the office of a pub! ic servant. A 
public servant occupies office which renders him a public 
servant and occupying the office carries with it the powers 
conferred on the office. Power generally is not conferred 
on an
individual person. In a society governed by rule of 
law power is conferred on office or acquired by statutory 
status and the individual occupying the office or on whom 
status is conferred enjoys the power of office or power 
flowing from the status. The holder of the office alone would 
have opportunity to abuse or misuse the office. These 
sections codify a well-recognised truism that power has 
the tendency to corrupt. It is the holding of the office which 
gives an opportunity to use it for corrupt motives. Therefore, 
the corrupt conduct is directly attributable and flows from 
the power conferred on the office. This interrelation and 
interdependence between individual and the office he holds 
is substantial and not severable. Each of the three clauses 
of sub-section (I) of Section 6 uses the expression "office" 
and the power to grant sanction is conferred on the authority 
competent to remove the public servant from his office and 
1 (1984) 2 sec 183 
699 
A 
8 
c 
D 
E 
F 
G 
H
700 
A 
B 
c 
D 
F 
G 
H 
SUPREME COURT REPORTS 
(2016] 5 S.C.R. 
Section 6 requires a sanction before taking cognizance of 
offences committed by public servant. The offence would 
be committed by the public servant by misusing or abusing 
the power of office and it is from that office, the authority 
must be competent to remove him so as to be entitled to 
grant sanction. The removal would bring about cessation 
of interrelation between the office and abuse by the holder 
of the office. The link between power with opportunity to 
abuse and the holder of office would be severed by removal 
from office. Therefore, when a public servant is accused 
of an offence of taking gratification other than legal 
remuneration for doing or forebearing to do an official act 
(Section 161 IPC) or as a public servant abets offences 
punishable under Sections 161 and 163 (Section 164 JPC) 
or as public servant obtains a valuable thing without 
consideration from person concerned in any proceeding or 
business transacted by such public servant (Section 165 
IPC) or commits criminal misconduct as defined in Section 
5 of the 1947 Act, it is implicit in the various offences that 
the public servant has misused or abused the power of office 
held by him as public servant. The expression "office" in 
the three sub-clauses of Section 6( 1) would clearly denote 
that office which the public servant misused or abused for 
corrupt motives for which he is to be prosecuted and in 
respect of which a
sanction to prosecute him is necessary 
by the competent authority entitled to remove him from that 
office which he has abused. This interrelation between the 
office and its abuse if severed would render Section 6 devoid 
of any meaning. And this interrelation clearly provides a 
clue to the understanding of the provision in Section 6 
providing for sanction by a competent authority who would 
be able to judge the action of the public servant before 
removing the bar, by granting sanction, to the taking of the 
cognizance of offences by the court against the public 
servant. Therefore, it unquestionably follows that the 
sanction to prosecute can be given by an authority competent 
to remove the public servant from the office which he has 
misused or abused because that authority alone would be 
able to know whether there has been a misuse or abuse of
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 
f A.K. SIKRI, J.l 
the office by the public servant and not some rank outsider. 
By a catena of decisions, it has been held that the authority 
entitled to grant sanction must apply its mind to the facts of 
the case, evidence collected and other incidental facts before 
according sanction. A grant of sanction is not an idle 
formality but a solemn and sacrosanct act which removes 
the umbrella of protection of Government servants against 
frivolous prosecutions and the aforesaid requirements must 
therefore, be strictly complied with before any prosecution 
could be launched against public servants. (See Mohd. 
Iqbal Ahmad v. State of A.P. [( 1979) 4 SCC 172 : 1979 
sec ( Cri) 926 : ATR 1979 SC 677 : ( 1979) 2 SCR I 007] ) 
The Legislature advisedly conferred power on the authority 
competent to remove the public servant from the office to 
grant sanction for the obvious reason that that authority 
alone would be able, when facts and evidence are placed 
before him to judge whether a serious offence is committed 
or the prosecution is either frivolous or speculative. That 
authority alone would be competent to judge whether on 
the facts alleged, there has been an abuse or misuse of 
office held by the public servant. That authority would be 
in a position to know what was the power conferred on the 
office which the public servant holds, how that power could 
be abused for corrupt motive and whether prima facie it 
has been
so done. That competent authority alone would 
know the nature and functions discharged by the public 
servant holding the office and whether the same has been 
abused or misused. It is the vertical hierarchy between the 
authority competent to remove the public servant from that 
office and the nature of the office held by the public servant 
against whom sanction is sought which would indicate a 
hierarchy and which would therefore, permit inference of 
knowledge about the functions and duties of the office and 
its misuse or abuse by the public servant. That is why the 
Legislature clearly provided that that authority alone would 
be competent to grant sanction which is entitled to remove 
the public servant against whom sanction is sought from 
the office." 
701 
A 
B 
c 
D 
E 
F 
G 
H
702 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
18. In the case of the present appellants, there was no question of 
the appellants' getting any protection by a sanction. The High Court 
was absolutely right in relying on the decision in Prakash Singlt Badal 
to hold that the appellants in both the appeals had abused entirely different 
office or offices than the one which they were holding on the date on 
which cognizance was taken and, therefore, there was no necessity of 
sanction under Section 19, P.C. Act. Where the public servant had 
abused the office which he held in the check period but had ceased to 
hold "that office" or was holding a different office, then a sanction would 
not be necessary. Where the alleged misconduct is in some different 
capacity than the one which is held at the time of taking cognizance, 
there will be no necessity to take the sanction. 
19. Insofar as argument of the appellants that there is no specific 
averment in the complaint for having committed the alleged act by them 
is concerned, we arc unable to agree with this argument. As already 
pointed out above, allegations against these two appellants are that after 
conducting spot inspection by accused No. I on 17.01.2003, first appellant 
(accused No.3) who was working as Tchsildar had recommended it on 
same day and thereafter second appellant (accused No.6) who was 
working as Assistant Commissioner had given an endorsement on the 
very next day to the effect that
property is not the subject matter of 
acquisition. On this basis, it is alleged that these officials have abused 
their official position. We may record that learned counsel for the 
appellants have contended that they merely acted on the court decree. 
However, it may be two innocent explanation on the facts of this case as 
alleged in the case inasmuch as it is alleged that these two appellants did 
not bother to find out that there were two decrees in two different names 
in respect of same land and further that I 0 acres of land in question had 
already been acquired and could not be the subject matter of decree. 
These were the aspects which were, primafacie, to be looked into by 
these appellants. On the basis the aforesaid purported defence, therefore, 
the proceedings cannot be quashed. It would be a matter of evidence 
on the basis of which culpability of the appellants shall be judged. 
20. The aforesaid discussion leads us to the conclusion that the 
judgment of the High Court though on the issue ofobtaining the sanction 
at the time of taking cognizance may not be correct insofar as question 
No. I formulated above is concerned, in the facts of the present case, 
insofar as question No.2 is concerned, it is rightly decided. Effect thereof
L. NARAYANA SWAMY v. STATE OF KARNATAKA & ORS. 
703 
f A.K. SIKRI, J.l 
would be to hold that sanction was not needed as the appellants, at the 
A 
time of taking cognizance, were not holding the post which is alleged to 
have been misused. 
21. As a consequence, these appeals fail and are, accordingly, 
dismissed with no order as to costs. 
Devika Gujral 
Appeals dismissed. 
B