Amendment to sections 156(3) and 190 of Cr.PC - Unwarranted, mischievous.

Mr. Devendra Fadnavis

Hon’ble Chief Minister

Government of Maharashtra

Mumbai

You got SC judgment in Anil Kumar and other v/s M K Aiyappa [2013 (10) SCC 705] judgment dated 01/10/2013 totally wrong. You have cited this judgment to justify a legal hara kiri in amending sections 156(3) and 190 of the Cr. PC.

As per an amendment by the State government in section 153 (3) and section 190 of the Criminal Procedure Code (CrPC), no FIR will be directly registered against accused politicians and public servants on the basis of a complaint and without the permission of the authority – i.e. the Speaker and the Chief secretary, as the case may be.

You have said the amendment was done as per a Supreme Court verdict. In Anil Kumar and other versus MK Aiyappa [2013 (10) SCC 705],dated 01/10/2013  a two-judge SC bench had held that a special judge/magistrate cannot refer a complaint for investigation under section 156(3) of the CrPC against a public servant without a valid sanction order from the government.

You have further justified the amendment by saying "on the basis of the SC verdict, we made the amendment in the CrPC. Earlier, after making the complaint in the court, an FIR would be registered against accused public servants. However, it was observed that in most of the cases, the complaints were made with maligned and political intention. Most were baseless and ill-founded, troubling upright and efficient officers. And it was hampering government work."

Hence, the State Government took cognizance of these issues and decided to amend the CrPC to safeguard efficient and honest public servants.

At the outset, let me say that the argument lead by you in defense of the amendment is only specious – to say the least.

Anil Kumar’s judgment relied by the Maharashtra Cabinet doesn’t lay down the correct law and it nowhere directs rewriting sections 156(3) and 190 of Cr.PC. The judgment is delivered by the two Judge Bench of the SC on 01/10/2013. Hence, they path breaking law laid down by the Five Judge Constitution Bench in the judgment dated 12/11/2013 in Lalita Kumari v/s Govt. of U.P. & Ors. [WP (Criminal) No. 68 of 2008] was not available to them. Hence, the judgment delivered by two judge bench in Anil Kumar is per incurium and does not lay down the correct law.

When the person does not get justice from the police authorities, he approaches the magistrate for obtaining the justice. The Anil Kumar’s judgment and now your adventurous amendment have placed an additional burden on the victim that is almost impossible for the complainant-victim to discharge, i.e. to produce sanction. Hence the interpretation given by the Apex Court and the amendment made by you in terms of the said judgment are totally arbitrary, irrational and unreasonable.

I draw your attention to the observations made by the Hon’ble Supreme Court while upholding the constitutional validity of section 19 of the Prevention of Corruption Act in a later judgment passed on 06/08/2014 in WP(C) No. 305/2007 Manzoor Ali Khan v/s. Union of India & Ors that are apposite. The SC observed as follows:

“The learned Attorney General in the course of his submission fairly admitted before us that out of the total 319 requests for sanction, in respect of 126 of such requests, sanction is awaited. Therefore, in more than one-third cases of request for prosecution in corruption cases against public servants, sanctions have not been accorded. The aforesaid scenario raises very important constitutional issues as well as some questions relating to interpretation of such sanctioning provision and also the role that an independent judiciary has to play in maintaining the Rule of Law and common man’s faith in the justice- delivering system”.

The above observation of the Supreme Court amplifies the difficulty of getting sanction against public servants. Hence casting a duty on a Citizen to produce sanction with the complaint deprives of his legitimate and fundamental right to get justice by setting the criminal law in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right. It also gives an absolutely arbitrary power in the government to withhold sanction at their sweet will and pleasure and curtail every attempt to investigate a corrupt public servant. You are thus throttling the common man from seeking justice. You are in effect insulating the bureaucrats and Ministers by ensuring that there won’t be any complaint against them. The amendment is sure to frustrate the complainant.

In CBI vs. Ashok Kumar Aggarwal [AIR 2014 SC 827], the Hon’ble Supreme Court had explained the procedure of granting sanction as “the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the Court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same.  If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge – sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the Court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non – application of mind”

The Court also insisted that record so sent should also contain the material / document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. When the competent authorities can grant or refuse sanction only after perusing the records of investigation, where is the question of producing the sanction at the time of ordering an investigation. Thus your adrenaline rush to amend section 156(3) and 190 at the stage of registration of FIR and consequent investigation leading to sanction as envisaged under prevention of Corruption Act is certainly questionable.

The law laid down by the five judge constitution bench in Lalita Kumari case is reproduced in verbatim as follows:

“Conclusion/Directions:

111)  In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code,  if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable  offence but indicates the necessity for an inquiry, a  preliminary  inquiry may be conducted only to ascertain whether  cognizable  offence  is disclosed or not.

iii) If the inquiry discloses the commission of a  cognizable  offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week.  It must disclose reasons in brief for closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case.

The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e)  Cases  where  there  is  abnormal delay/laches in initiating criminal prosecution,  for  example, over 3 months delay in reporting  the  matter  without  satisfactorily  explaining  the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days.  The fact of such delay and the causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

If you read this judgment, you would understand that your fear of Babus should be allowed to discharge their duties free of fear is also answered by the Supreme Court in para 111(vi). Hence the rush to amend the CrPC is fraught with mala fides and is certainly not in the right spirit. It seems you have conveniently stopped only after reading the two judge bench SC judgment dated 01/10/2013. Had you read earlier and subsequent judgments, you would have certainly not done what you have done with the existing provision of section 156(3) and 190 of Cr.PC.

You have completely nullified the basic principle laid down by the Honble Supreme Court in Vineet Narain Vs. Union of India [AIR 1998 SC 889] that - “Be you ever so high, the law is above you. Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously”.

A decision or judgment can be per incurium if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Coequal or Larger Benches. From the above analysis it can be safely concluded that Anil Kumar (Supra) which was decided without considering a catena of Judgments which conclusively held that Section 156(3) is a pre-cognizance exercise which requires no sanction, is per incurium. A per incurium Judgment cannot be deemed to be a law declared to have a binding effect as is contemplated by Art. 141 and hence need not be followed as a binding precedent. Since your amendment is entirely based on a judgment that is per incurium, it is destined to be read down in due course. Till then, Bureaucrats and Ministers against whom complaint are made for corruption would lead a comfortable and protected life.

If any common man was to infer that the Maharashtra State Government lead by Mr. Devendra Fadnavis has decided to muzzle the voice of common man or alert citizens who proactively unearth scams and file complaints against errant public servants, it would not be a farfetched conclusion.

I also request you to instruct your legal team to study the following judgments of the Hon’ble Supreme Court to understand the per incurium status of Anil Kumar’s judgment relied by you.

1.           R.R.Chari vs. State of U.P, [AIR 1951 SC 207 ]

2.           Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji, [AIR 1950 Cal 437],

3.           Narayandas Bhagwandas Madhavdas Vs. State of West Bengal AIR 1959 SC 1118

4.           Gopal Das Sindhi Vs. State of Assam [AIR 1961 SC 986 ; 1961 CRI. L. J. 39]

5.           Jamuna Singh Vs. Bhadai Shah [AIR 1964 SC 1541; 1964 (5) SCR 37]

6.           D. Lakshminarayana Reddy and Others v. V. Narayana Reddy and Others [AIR 1976 SC 1672]

7.         Tula Ram Vs. Kishore Singh [ (1977) 4 SCC 459]

8.         Matajog Dobey vs. H.C.Bhari [AIR 1956 SC 44]

9.         Manzoor Ali Khan vs. Union of India [(2014)7 SCC 321]

10.      State of Madras v. Gannon Dukerley & Co. (Madras) Ltd AIR 1958 SC 560

11.      Danckwerts L.J. in Artemiou v. Procopiou, 1966 (1) Q.B. 878

12.      Matajog Dobey vs. H.C.Bhari [AIR 1956 SC 44]

13.      K. Kalimuthu Vs. State By DSP [(2005) 4 SCC 512;AIR 2005 SC 2257]

14.      State of Orissa Vs. Ganesh Chandra Jew AIR 2004 SC 2179,

15.      S. K. Zutshi Vs. Bimal Debnath AIR 2004 SC 4174

16.      Centre For Public Interest Litigation Vs. Union of India (2005) 4 SCC 512,

17.      Rakesh Kumar Mishra Vs. State of Bihar AIR 2006 SC 820; 

18.     Raghunath Anant Govilkar Vs. State Of Maharashtra And Ors(2008) 11 SCC 289
        Anjani Kumar Vs. State of Bihar AIR 2008 SC 1992 

19.      Goondla Venkateswarlu Vs. State of A.P(2008) 9 SCC 613.

20.      CBI vs. Ashok Kumar Aggarwal [AIR 2014 SC 827] relying on 

21.      Gokulchand Dwarkadas Morarka v. King, [AlR 1949 PC 82]; 

22.      Jaswant Singh v. State of Punjab [AIR 1958 SC 124] 

23.      Mohd. Iqbal Ahmed v. State of A.P.,: [AIR 1979 SC 677] :

24.   State through Anti –  Corruption Bureau,  Govt. of Maharashtra v. Krishanchand Khushalchand Jagtiani, [AIR 1996 SC 1910] 

25.      State of Punjab v. Mohd. Iqbal Bhatti, [2009 (17) SCC 92] 

26.      Satyavir Singh Rathi, ACP v. State,[ AIR 2011 SC 1748]; and

27.      State of Maharashtra v. Mahesh G. Jain, [2013 (8) SCC 119]

Hope you would look into all the aspects and set the things right before it is too late. The amendment provides an unwarranted and illegitimate insulation. Earlier Congress-NCP government had coalition compulsions. You don’t have one. So, why this amendment? Or are you preparing a ground for some adventure in future? Doubts keep coming to the mind. Before we could see rain clouds gathering in the sky, we have seen ominous clouds gathering in the Mantralaya. I am sure you would not want to derail the promise given by the Hon’ble Prime Minister to give transparent and clean governance. The present amendment militates against this promise.

Regards