SC bench seeks earlier decision on whether magistrate needs prior sanction to order probe against public servant

A 2-judge bench of the Supreme Court has called for an earlier decision on the question as to whether a prior sanction is needed when a magistrate directs an investigation against a public servant under the Code of Criminal Procedure’s (CrPC) Section 156 (3).

“We are of the considered view that an earlier decision on the question referred is solicited,” said a bench of Justices C.T. Ravi Kumar and Rajesh Bindal as it ordered the registry to place the issue before the Chief Justice of India (CJI) for appropriate orders.

In 2018, a division bench, headed by Justice J. Chelmeshwar, doubted an earlier decision holding that prior government sanction would be needed for a magistrate to order an investigation against a public servant and referred it to a larger bench for an authoritative pronouncement on the subject.

Now, the Justice Ravi Kumar-led bench dissuaded itself from proceeding further with a batch of cases raising a similar question and ordered the petitions to be tagged with the matters already referred.

“Considering the fact that the question involved is a matter of relevance and such issues arise frequently for consideration before courts, we are of the considered view that an earlier decision on the question referred is solicited. Registry is directed to place these matters before the Hon’ble the Chief Justice of India for appropriate orders,” it said in an order passed on Tuesday.

However, it said that prima facie perusal of the provisions under Sections 156(3), 173(2), 190, 200, 202, 203 and 204 of the CrPC would reveal that while directing for an investigation and forwarding the complaint, the Magistrate is not actually taking cognisance.