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Maharashtra Cabinet recently decided to amenda provision of the Criminal Procedure Code to prevent filing of an FIR against a 'public servant' without the sanction of a competent authority. However this amendment is not only against the principal of equality before law and illegal but also shows lack of confidence in the competence of courts of law. It may be possible that some lower courts may have made some errors while delivering decision as per section 156 (3) of CrPC. But there is appellate mechanism to deal with it.

With the amendments to the CrPC (156) (3) courts would not be able direct Police to file FIR without the sanction of the competent authority. This is clear attempt to shield both government servants as well as elected members. This will make it harder for government servants and public representatives to be made accountable. Indian bureaucracy has maintained its “worst in the world “tag intact for many years, rating more than 9 points out of 10. Any more shields from being accountable will make bureaucracy even worst.

Government claims that the amendments are in line with the 2013 Supreme Court order in the Anil Kumar vs MK Ayappa case. However it is wrong interpretation of the apex court's orders. In that judgment court hasn’t said anything about amendment in law but in a recent judgement given on 19^th March 2015 apex court has given direction to lower courts on how to deal with cases related to section 156.

In a decision given in Mrs. Priyanka Srivastava Versus State of U.P. Apex court has observed that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really agrieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.

The Supreme Court has further said that applications u/s 156 (3) are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. It is because once an affidavit is found to be false; he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3)”

After delivering this judgment court asked its registry to send copy of judgement to the Chief Justices of all the High Courts by the so that the High Courts would circulate the same amongst the learned Sessions Judges who, in turn, shall circulate it among the learned Magistrates so that they can remain more vigilant and diligent while exercising the power under Section 156(3) of Cr.P.C.

That means even though Supreme Court has observed some misuse of section 156 (3), it has not asked the amendment in law. But has categorically asked lower courts to take adequate precaution while dealing with the applications u/s 156. In that case there is no reason that government should make any amendment to the law. Doing so will be like, showing lack of confidence in the competence of courts of law

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