SC judges Singhvi and Ganguly on Prosecution of Chidambaram (

SC judges Singhvi and Ganguly on Prosecution of Chidambaram (Jan. 31, 2012, Full text)

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1193 OF 2012
(Arising out of SLP(C) No. 27535 of 2010)
Dr. Subramanian Swamy … Appellant
versus
Dr. Manmohan Singh and another … Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. Whether a complaint can be filed by a citizen for prosecuting
a public servant for an offence under the Prevention of Corruption
Act, 1988 (for short, ‘the 1988 Act’) and whether the authority
competent to sanction prosecution of a public servant for offences
under the 1988 Act is required to take an appropriate decision
within the time specified in clause I(15) of the directions contained
in paragraph 58 of the judgment of this Court in Vineet Narain v.
Union of India (1998) 1 SCC 226 and the guidelines issued by the
1
Central Government, Department of Personnel and Training and
the Central Vigilance Commission (CVC) are the question which
require consideration in this appeal.
3. For the last more than three years, the appellant has been
vigorously pursuing, in public interest, the cases allegedly
involving loss of thousands of crores of rupees to the Public
Exchequer due to arbitrary and illegal grant of licences at the
behest of Mr. A. Raja (respondent No. 2) who was appointed as
Minister for Communication and Information Technology on
16.5.2007 by the President on the advice of Dr. Manmohan Singh
(respondent No. 1). After collecting information about the grant of
licences, the appellant made detailed representation dated
29.11.2008 to respondent No. 1 to accord sanction for
prosecution of respondent No. 2 for offences under the 1988 Act.
In his representation, the appellant pointed out that respondent
No. 2 had allotted new licences in 2G mobile services on ‘first
come, first served’ basis to novice telecom companies, viz., Swan
Telecom and Unitech, which was in clear violation of Clause 8 of
the Guidelines for United Access Services Licence issued by the
Ministry of Communication and Information Technology vide
letter No.10-21/2005-BS.I(Vol.II)/49 dated 14.12.2005 and,
2
thereby, caused loss of over Rs. 50,000 crores to the Government.
The appellant gave details of the violation of Clause 8 and pointed
out that the two officers, viz., R.J.S. Kushwaha and D. Jha of the
Department of Telecom, who had opposed the showing of undue
favour to Swan Telecom, were transferred just before the grant of
licences and Bharat Sanchar Nigam Limited (BSNL) which had
never entered into a roaming agreement with any operator, was
forced to enter into such an agreement with Swan Telecom. The
appellant further pointed out that immediately after acquiring 2G
spectrum licences, Swan Telecom and Unitech sold their stakes to
foreign companies, i.e., Etisalat, a telecom operator from UAE and
Telenor of Norway respectively and, thereby, made huge profits at
the expense of public revenue. He claimed that by 2G spectrum
allocation under respondent No. 2, the Government received only
one-sixth of what it would have received if it had opted for an
auction. The appellant pointed out how respondent No. 2 ignored
the recommendations of the Telecom Regulatory Authority of India
(TRAI) and gave totally unwarranted benefits to the two companies
and thereby caused loss to the Public Exchequer. Some of the
portions of the appellant’s representation are extracted below:
3
“Clause 8 has been violated as follows: While Anil
Dhirubhai Ambani Group (ADAG), the promoters of
Reliance Communications (R Com), had more than 10
per cent stake in Swan Telecom, the figures were
manipulated and showed as 9.99 per cent holding to
beat the said Clause. The documents available disclose
that on March 2, 2007, when Swan Telecom applied for
United Access Services Licences, it was owned 100 per
cent by Reliance Communications and its associates
viz. Reliance Telecom, and by Tiger Trustees Limited,
Swan Infonet Services Private Limited, and Swan
Advisory Services Private Limited (see Annexure I). At
one or the other point of time, employees of ADAG
(Himanshu Agarwal, Ashish Karyekar, Paresh Rathod)
or its associate companies have been acquiring the
shares of Swan Telecom itself. But still the ADAG
manipulated the holdings in Swan to reduce it to only
9.99 per cent. Ambani has now quietly sold his shares
in Swan to Delphi Investments, a Mauritius based
company owned by Ahmed O. Alfi, specializing in
automobile spare parts. In turn, Swan has sold 45%
of its shares to UAE’s Emirates Telecom Corporation
(Etisalat) for Rs.9000 crores! All this is highly
suspicious and not normal business transactions.
Swan company got 60% of the 22 Telecom licenced
areas at a throw away price of Rs.1650 crores, when it
was worth Rs.60,000 crores total.
Room has operations in the same circles where
the application for Swan Telecom was filed. Therefore,
under Clause 8 of the Guidelines, Swan should not
have been allotted spectrum by the Telecommunication
Ministry. But the company did get it on Minister’s
direction, which is an undue favour from him (Raja).
There was obviously a quid pro quo which only a CBI
enquiry can reveal, after an FIR is registered. There is
no need for a P/E, because the CVC has already done
the preliminary enquiry.
Quite surprisingly, the 2G spectrum licences were
priced at 2001 levels to benefit these private players.
That was when there were only 4 million cellphone
4
subscribers; now it is 350 million. Hence 2001 price is
not applicable today.
Immediately after acquiring 2G spectrum licences both
Swan and Unitech sold their stakes to foreign
companies at a huge profits. While Swan Telecom sold
its stakes to UAE telecom operator Etisalat, Unitech
signed a deal with Telenor of Norway for selling its
share at huge premiums.
In the process of this 2G spectrum allocation, the
government received only one-sixth of what it would
have got had it gone through a fresh auction route.
The total loss to the exchequer of giving away 2G GSM
spectrum in this way – including to the CDMA
operators – is over Rs.50,000 crores and is said to be
one of the biggest financial scams of all times in the
country.
While approving the 2G licences, Minister Raja
turned a blind eye to the fact that these two companies
do not have any infrastructure to launch their services.
Falsely claiming that the Telecom Regulatory Authority
of India had approved the first-cum-first served rule,
Raja went ahead with the 2G spectrum allocation to
two debutants in the Telecom sector. In fact earlier
TRAI had discussed the spectrum allocation issue with
existing services providers and suggested to the
Telecom Ministry that spectrum allocation be made
through a transparent tender and auction process.
This is confirmed by what the TRAI Chairman N. Misra
told the CII organized conference on November 28,
2008 (Annexure 2). But Raja did not bother to listen to
the TRAI either and pursued the process on ‘first come,
first served’ basis, benefiting those who had inside
information, causing a loss of Rs.50,000 crores to the
Government. His dubious move has been to ensure
benefit to others at the cost of the national exchequer.”
The request made in the representation, which was relied
upon by the learned Attorney General for showing that the
5
appellant had himself asked for an investigation, is also extracted
below:
“According to an uncontradicted report in CNN-IBN
news channel of November 26, 2008, you are said to be
“very upset with A. Raja over the spectrum allocation
issue”. This confirms that an investigation is
necessary, for which I may be given sanction so that
the process of law can be initiated.
I, therefore, writ to demand the grant of sanction to
prosecute Mr. A. Raja, Minister for Telecom of the
Union of India for offences under the Prevention of
Corruption Act. The charges in brief are annexed
herewith (Annexure 3).”
4. Since the appellant did not receive any response from
respondent No.1, he sent letters dated 30.5.2009, 23.10.2009,
31.10.2009, 8.3.2010 and 13.3.2010 and reiterated his
request/demand for grant of sanction to prosecute respondent
No.2. In his letter dated 31.10.2009, the appellant referred to the
fact that on being directed by the CVC, the Central Bureau of
Investigation (CBI) had registered a first information report, and
claimed that prima facie case is established against respondent
No. 2 for his prosecution under Sections 11 and 13(1)(d) of the
1988 Act. The appellant also claimed that according to various
Supreme Court judgments it was not necessary to carry out a
detailed inquiry, and he had produced sufficient evidence for
6
grant of sanction to initiate criminal prosecution against
respondent No. 2 for the misuse of authority and pecuniary gains
from corrupt practices. In his subsequent letters, the appellant
again asserted that the nation had suffered loss of nearly
Rs.65,000 crores due to arbitrary, unreasonable and mala fide
action of respondent No.2. In letter dated 13.3.2010, the
appellant referred to the proceedings of the case in which this
Court refused to interfere with the order of the Delhi High Court
declaring that the decision of respondent No.2 to change the cut
off date fixed for consideration of applications made for grant of
licences was arbitrary and mala fide.
5. After 1 year and 4-1/2 months of the first letter written by
him, Secretary, Department of Personnel and Training, Ministry of
Personnel sent letter dated 19.3.2010 to the appellant mentioning
therein that the CBI had registered a case on 21.10.2009 against
unknown officers of the Department of Telecommunications (DoT),
unknown private persons/companies and others and that the
issue of grant of sanction for prosecution would arise only after
perusal of the evidence collected by the investigating agency and
other material provided to the Competent Authority and that it
7
would be premature to consider sanction for prosecution at that
stage.
6. On receipt of the aforesaid communication, the appellant
filed Civil Writ Petition No. 2442/2010 in the Delhi High Court
and prayed for issue of a mandamus to respondent No.1 to pass
an order for grant of sanction for prosecution of respondent No. 2.
The Division Bench of the Delhi High Court referred to the
submission of the learned Solicitor General that when respondent
No. 1 has directed investigation by the CBI and the investigation
is in progress, it is not permissible to take a decision on the
application of the appellant either to grant or refuse the sanction
because that may affect the investigation, and dismissed the writ
petition by recording the following observations:
“The question that emanates for consideration is
whether, at this stage, when the investigation by the
CBI is in progress and this Court had earlier declined
to monitor the same by order dated 25th May, 2010,
which has been pressed into service by the learned
Solicitor General of India, it would be appropriate to
direct the respondent no. 1 to take a decision as
regards the application submitted by the petitioner
seeking sanction to prosecute.
In our considered opinion, when the matter is being
investigated by the CBI, and the investigation is in
progress, it would not be in fitness of things to issue a
mandamus to the first respondent to take a decision on
the application of the petitioner.”
8
7. The special leave petition filed by the appellant, out of which
this appeal arises, was initially taken up for consideration along
with SLP(C) No. 24873/2010 filed by the Center for Public Interest
Litigation against order dated 25.5.2010 passed by the Division
Bench of the High Court in Writ Petition (Civil) No. 3522/2010 to
which reference had been made in the impugned order. During
the course of hearing of the special leave petition filed by the
appellant, the learned Solicitor General, who had appeared on
behalf of respondent No. 1, made a statement that he has got the
record and is prepared to place the same before the Court.
However, keeping in view the fact that the record sought to be
produced by the learned Solicitor General may not be readily
available to the appellant, the Court passed order dated
18.11.2010 requiring the filing of an affidavit on behalf of
respondent No. 1. Thereafter, Shri V. Vidyavati, Director in the
PMO filed affidavit dated 20.11.2010, which reveals the following
facts:
“(i) On 1.12.2008, the Prime Minister perused the letter
and noted “Please examine and let me know the facts of
this case”. This was marked to the Principal Secretary
to the Prime Minister who in turn marked it to the
Secretary. The Secretary marked it to me as Director in
the PMO. I prepared a note dated 5.12.2008 factually
9
summarizing the allegations and seeking approval to
obtain the factual position from the sectoral side (in the
PMO dealing with Telecommunications).
(ii) On 11.12.2008, a copy of appellant’s letter dated
29.11.2008 was sent to the Secretary, Department of
Telecommunication for submitting a factual report.
The Department of Telecommunication sent reply dated
13.02.2009 incorporating his comments.
(iii) In the meanwhile, letters dated 10.11.2008 and
22.11.2008 were received from Shri Gurudas Gupta
and Shri Suravaran Sudhakar Reddy respectively
(copies of these letters have not been produced before
the Court). The same were forwarded to the Department
of Telecommunication on 25.03.2009 for sending an
appropriate reply to the appellant.
(iv) On 01.06.2009, letter dated 30.05.2009 received
from the appellant was placed before respondent No.1,
who recorded the following endorsement “please
examine and discuss”.
(v) On 19.06.2009, the Director of the concerned Sector
in the PMO recorded that the Minister of
Telecommunications and Information Technology has
sent D.O. letter dated 18.06.2009 to the appellant.
When letter dated 23.10.2009 of the appellant was
placed before respondent No.1, he recorded an
endorsement on 27.10.2009 “please discuss”.
(vi) In response to letter dated 31.10.2009 of the
appellant, respondent No.1 made an endorsement
“please examine”.
(vii) On 18.11.2009, respondent No.1 stated that
Ministry of Law and Justice should examine and
advice. The advice of Ministry of Law and Justice was
received on 8.2.2010. Para 7 thereof was as follows:
“From the perusal of letter dated 23.10.2009 and
31.10.2009, it is noticed that Shri Swamy wants
to rely upon the action and investigation of the
CBI to collaborate and strengthen the said
10
allegation leveled by him against Shri A. Raja,
Minister for Communication and Information
Technology. It is specifically mentioned in Para 2
of the letter dated 31.10.2009 of Shri Swamy that
the FIR was registered by the CBI and “the
substance of the allegation made by me in the
above cited letters to you are already under
investigation”. If it is so, then it may be stated that
decision to accord of sanction of prosecution may
be determined only after the perusal of the
evidence (oral or documentary) collected by the
investigation agency, i.e., CBI and other materials
to be provided to the competent authority.”
(viii) On 05.03.2010, the deponent prepared a note that
an appropriate reply be sent to the appellant in the
light of the advice given by the Law Department and
final reply was sent to the appellant after respondent
No.1 had approved note dated 17.03.2010.”
8. The appellant filed rejoinder affidavit on 22.11.2010 along
with a copy of letter dated 18.6.2009 written to him by respondent
No. 2 in the context of representation dated 29.11.2008 submitted
by him to respondent No.1.
9. Although, respondent No.2 resigned from the Council of
Ministers on 14.11.2010, the appellant submitted that the issues
relating to his right to file a complaint for prosecution of
respondent No.2 and grant of sanction within the time specified in
the judgment in Vineet Narain’s case should be decided.
11
10. During the course of hearing, the learned Attorney General
filed written submissions. After the hearing concluded, the
learned Attorney General filed supplementary written submissions
along with a compilation of 126 cases in which the sanction for
prosecution is awaited for periods ranging from more than one
year to few months
11. Final order in this case was deferred because it was felt that
the directions given by this Court in Vineet Narain’s case may
require further elaboration in the light of the order passed in Civil
Appeal No. 10660/2010 (arising out of SLP(C) No. 24873/2010)
and the fact that decision on the question of grant of sanction
under the 1988 Act and other statutes is pending for a sufficiently
long time in 126 cases. However, as the investigation with regard
to some of the facets of what has come to be termed as 2G case is
yet to be completed, we have considered it appropriate to pass
final order in the matter.
12. Appellant Dr. Subramanian Swamy argued that the embargo
contained in Section 19(1) of the 1988 Act operates only against
the taking of cognizance by the Court in respect of offences
punishable under Sections 7, 10, 11, 13 and 15 committed by a
public servant, but there is no bar to the filing of a private
12
complaint for prosecution of the concerned public servant and
grant of sanction by the Competent Authority, and that
respondent No. 1 was duty bound to take appropriate decision on
his representation within the time specified in clause I(15) of the
directions contained in paragraph 58 of Vineet Narain’s case,
more so because he had placed sufficient evidence to show that
respondent No.2 had committed offences under the 1988 Act.
13. The learned Attorney General argued that the question of
grant of sanction for prosecution of a public servant charged with
any of the offences enumerated in Section 19(1) arises only at the
stage when the Court decides to take cognizance and any request
made prior to that is premature. He submitted that the embargo
contained in Section 19(1) of the Act is applicable to the Court
which is competent to take cognizance of an offence punishable
under Sections 7, 10, 11, 13 and 15 alleged to have been
committed by a public servant and there is no provision for grant
of sanction at a stage before the competent Court applies its mind
to the issue of taking cognizance. Learned Attorney General relied
upon the judgment of the Calcutta High Court in Superintendent
and Remembrancer of Legal Affairs v. Abani Kumar Banerjee AIR
1950 Cal. 437 as also the judgments of this Court in R.R. Chari v.
13
State of Uttar Pradesh 1951 SCR 312, Devarapalli
Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 SCC 252,
Ram Kumar v. State of Haryana (1987) 1 SCC 476, Krishna Pillai
v. T.A. Rajendran, 1990 (Supp) SCC 121, State of West Bengal v.
Mohd. Khalid (1995) 1 SCC 684, State through C.B.I. v. Raj
Kumar Jain (1998) 6 SCC 551, K. Kalimuthu v. State (2005) 4
SCC 512, Centre for Public Interest Litigation v. Union of India
(2005) 8 SCC 202 and State of Karnataka v. Pastor P. Raju (2006)
6 SCC 728 and argued that letter dated 29.11.2008 sent by the
appellant for grant of sanction to prosecute respondent No.2 for
the alleged offences under the 1988 Act was wholly misconceived
and respondent No.1 did not commit any illegality or
constitutional impropriety by not entertaining his prayer, more so
because the appellant had himself asked for an investigation into
the alleged illegal grant of licences at the behest of respondent
No.2. Learned Attorney General further argued that the appellant
does not have the locus standi to file a complaint for prosecuting
respondent No.2 because the CBI is already investigating the
allegations of irregularity committed in the grant of licences for 2G
spectrum and the loss, if any, suffered by the Public Exchequer.
14
14. We have considered the respective submissions. Section 19
of the 1988 Act reads as under:
“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, –
(a) in the case of a person who is employed in
connection with the affairs of the Union and is not
removable from his office save by or with the
sanction of the Central Government, of that
Government;
(b) in the case of a 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 remove him from his office.
(2) Where for any reason whatsoever any doubt arises
as to whether the previous sanction as required under
sub-section (1) should be given by the Central
Government or the State Government or any other
authority, such sanction shall be given by that
Government or authority which would have been
competent to remove the public servant from his office
at the time when the offence was alleged to have been
committed.
(3) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),-
(a) no finding, sentence or order passed by a
special Judge shall be reversed or altered by a
court in appeal, confirmation or revision on the
ground of the absence of, or any error, omission or
irregularity in, the sanction required under sub-
15
section (1), unless in the opinion of that court, a
failure of justice has in fact been occasioned
thereby;
(b) no court shall stay the proceedings under this
Act on the ground of any error, omission or
irregularity in the sanction granted by the
authority, unless it is satisfied that such error,
omission or irregularity has resulted in a failure of
justice;
(c) no court shall stay the proceedings under
this Act on any other ground and no court shall
exercise the powers of revision in relation to any
interlocutory order passed in any inquiry, trial,
appeal or other proceedings.
(4) In determining under sub-section (3) whether the
absence of, or any error, omission or irregularity in,
such sanction has occasioned or resulted in a failure of
justice the court shall have regard to the fact whether
the objection could and should have been raised at any
earlier stage in the proceedings.
Explanation. – For the purposes of this section,
(a) error includes competency of the authority to
grant sanction;
(b) a sanction required for prosecution includes
reference to any requirement that the prosecution
shall be at the instance of a specified authority or
with the sanction of a specified person or any
requirement of a similar nature.”
15. The question whether sanction for prosecution of respondent
No.2 for the offences allegedly committed by him under the 1988
Act is required even after he resigned from the Council of
Ministers, though he continues to be a Member of Parliament,
16
need not detain us because the same has already been answered
by the Constitution Bench in R. S. Nayak v. A. R. Antulay (1984) 2
SCC 183 the relevant portions of which are extracted below:
“Now if the public servant holds two offices and he is
accused of having abused one and from which he is
removed but continues to hold the other which is
neither alleged to have been used (sic misused) nor
abused, is a sanction of the authority competent to
remove him from the office which is neither alleged or
shown to have been abused or misused necessary? The
submission is that if the harassment of the public
servant by a frivolous prosecution and criminal waste
of his time in law courts keeping him away from
discharging public duty, are the objects underlying
Section 6, the same would be defeated if it is held that
the sanction of the latter authority is not necessary.
The submission does not commend to us. We fail to see
how the competent authority entitled to remove the
public servant from an office which is neither alleged to
have been used (sic misused) or abused would be able
to decide whether the prosecution is frivolous or
tendentious. An illustration was posed to the learned
counsel that a minister who is indisputably a public
servant greased his palms by abusing his office as
minister, and then ceased to hold the office before the
court was called upon to take cognizance of the offence
against him and therefore, sanction as contemplated by
Section 6 would not be necessary; but if after
committing the offence and before the date of taking of
cognizance of the offence, he was elected as a Municipal
President in which capacity he was a public servant
under the relevant municipal law, and was holding that
office on the date on which court proceeded to take
cognizance of the offence committed by him as a
minister, would a sanction be necessary and that too of
that authority competent to remove him from the office
of the Municipal President. The answer was in
affirmative. But the very illustration would show that
such cannot be the law. Such an interpretation of
17
Section 6 would render it as a shield to an
unscrupulous public servant. Someone interested in
protecting may shift him from one office of public
servant to another and thereby defeat the process of
law. One can legitimately envisage a situation wherein
a person may hold a dozen different offices, each one
clothing him with the status of a public servant under
Section 21 IPC and even if he has abused only one
office for which either there is a valid sanction to
prosecute him or he has ceased to hold that office by
the time court was called upon to take cognizance, yet
on this assumption, sanction of 11 different competent
authorities each of which was entitled to remove him
from 11 different public offices would be necessary
before the court can take cognizance of the offence
committed by such public servant, while abusing one
office which he may have ceased to hold. Such an
interpretation is contrary to all canons of construction
and leads to an absurd end product which of necessity
must be avoided. Legislation must at all costs be
interpreted in such a way that it would not operate as a
rogue's charter.
We would however, like to make it abundantly clear
that if the two decisions purport to lay down that even
if a public servant has ceased to hold that office as
public servant which he is alleged to have abused or
misused for corrupt motives, but on the date of taking
cognizance of an offence alleged to have been
committed by him as a public servant which he ceased
to be and holds an entirely different public office which
he is neither alleged to have misused or abused for
corrupt motives, yet the sanction of authority
competent to remove him from such latter office would
be necessary before taking cognizance of the offence
alleged to have been committed by the public servant
while holding an office which he is alleged to have
abused or misused and which he has ceased to hold,
the decision in our opinion, do not lay down the correct
law and cannot be accepted as making a correct
interpretation of Section 6.”
18
16. The same view has been taken in Habibullsa Khan v. State of
Orissa (1995) 2 SCC 437 (para 12), State of H.P. v. M. P. Gupta
(2004) 2 SCC 349 (paras 17 and 19), Parkash Singh Badal v.
State of Punjab (2007) 1 SCC 1 and Balakrishnan Ravi Menon v.
Union of India (2007) 1 SCC 45. In Balakrishnan Ravi Menon’s
case, it was argued that the observations made in para 25 of the
judgment in Antulay’s case are obiter. While negating this
submission, the Court observed :
“Hence, it is difficult to accept the contention raised by
Mr. U.R. Lalit, the learned Senior Counsel for the
petitioner that the aforesaid finding given by this Court
in Antulay case is obiter.
Further, under Section 19 of the PC Act, sanction is to
be given by the Government or the authority which
would have been competent to remove the public
servant from his office at the time when the offence was
alleged to have been committed. The question of
obtaining sanction would arise in a case where the
offence has been committed by a public servant who is
holding the office and by misusing or abusing the
powers of the office, he has committed the offence. The
word “office” repeatedly used in Section 19 would mean
the “office” which the public servant misuses or abuses
by corrupt motive for which he is to be prosecuted.
Sub-sections (1) and (2) of Section 19 are as under:
“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,—
(a) in the case of a person who is employed in
connection with the affairs of the Union and is not
19
removable from his office save by or with the
sanction of the Central Government, of that
Government;
(b) in the case of a 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 remove him from his office.
(2) Where for any reason whatsoever any doubt
arises as to whether the previous sanction as
required under sub-section (1) should be given by
the Central Government or the State Government
or any other authority, such sanction shall be
given by that Government or authority which
would have been competent to remove the public
servant from his office at the time when the
offence was alleged to have been committed.”
Clauses ( a ) and ( b ) of sub-section (1) specifically provide
that in case of a person who is employed and is not
removable from his office by the Central Government or
the State Government, as the case may be, sanction to
prosecute is required to be obtained either from the
Central Government or the State Government. The
emphasis is on the words “who is employed” in
connection with the affairs of the Union or the State
Government. If he is not employed then Section 19
nowhere provides for obtaining such sanction. Further,
under sub-section (2), the question of obtaining
sanction is relatable to the time of holding the office
when the offence was alleged to have been committed.
In case where the person is not holding the said office
as he might have retired, superannuated, be discharged
or dismissed then the question of removing would not
arise. Admittedly, when the alleged offence was
committed, the petitioner was appointed by the Central
Government. He demitted his office after completion of
20
five years' tenure. Therefore, at the relevant time when
the charge-sheet was filed, the petitioner was not
holding the office of the Chairman of Goa Shipyard Ltd.
Hence, there is no question of obtaining any previous
sanction of the Central Government.”
(emphasis supplied)
17. The same view was reiterated in Parkash Singh Badal’s case
and the argument that even though some of the accused persons
had ceased to be Ministers, they continued to be the Members of
the Legislative Assembly and one of them was a Member of
Parliament and as such cognizance could not be taken against
them without prior sanction, was rejected.
18. The next question which requires consideration is whether
the appellant has the locus standi to file a complaint for
prosecution of respondent No.2 for the offences allegedly
committed by him under the 1988 Act. There is no provision
either in the 1988 Act or the Code of Criminal Procedure, 1973
(CrPC) which bars a citizen from filing a complaint for prosecution
of a public servant who is alleged to have committed an offence.
Therefore, the argument of the learned Attorney General that the
appellant cannot file a complaint for prosecuting respondent No.2
merits rejection. A similar argument was negatived by the
Constitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak
21
(1984) 2 SCC 500. The facts of that case show that on a private
complaint filed by the respondent, the Special Judge took
cognizance of the offences allegedly committed by the appellant.
The latter objected to the jurisdiction of the Special Judge on two
counts, including the one that the Court set up under Section 6 of
the Criminal Law Amendment Act, 1952 (for short, ‘the 1952 Act’)
was not competent to take cognizance of any of the offences
enumerated in Section 6(1)(a) and (b) upon a private complaint.
His objections were rejected by the Special Judge. The revision
filed by the appellant was heard by the Division Bench of the High
Court which ruled that a Special Judge is competent and is
entitled to take cognizance of offences under Section 6(1)(a) and
(b) on a private complaint of the facts constituting the offence.
The High Court was of the opinion that a prior investigation under
Section 5A of the Prevention of Corruption Act, 1947 (for short,
‘the 1947 Act’) by a police officer of the designated rank is not sine
qua non for taking cognizance of an offence under Section 8(1) of
the 1952 Act. Before the Supreme Court, the argument against
the locus standi of the respondent was reiterated and it was
submitted that Section 5A of the 1947 Act is mandatory and an
investigation by the designated officer is a condition precedent to
22
the taking of cognizance by the Special Judge of an offence or
offences committed by a public servant. While dealing with the
issue relating to maintainability of a private complaint, the
Constitution Bench observed:
“It is a well recognised principle of criminal
jurisprudence that anyone can set or put the criminal
law into motion except where the statute enacting or
creating an offence indicates to the contrary. The
scheme of the Code of Criminal Procedure envisages
two parallel and independent agencies for taking
criminal offences to court. Even for the most serious
offence of murder, it was not disputed that a private
complaint can, not only be filed but can be entertained
and proceeded with according to law. Locus standi of
the complainant is a concept foreign to criminal
jurisprudence save and except that where the statute
creating an offence provides for the eligibility of the
complainant, by necessary implication the general
principle gets excluded by such statutory provision.
Numerous statutory provisions, can be referred to in
support of this legal position such as (i) Section 187-A
of Sea Customs Act, 1878 (ii) Section 97 of Gold Control
Act, 1968 (iii) Section 6 of Import and Export Control
Act, 1947 (iv) Section 271 and Section 279 of the
Income Tax Act, 1961 (v) Section 61 of the Foreign
Exchange Regulation Act, 1973, (vi) Section 621 of the
Companies Act, 1956 and (vii) Section 77 of the
Electricity Supply Act. This list is only illustrative and
not exhaustive. While Section 190 of the Code of
Criminal Procedure permits anyone to approach the
Magistrate with a complaint, it does not prescribe any
qualification the complainant is required to fulfil to be
eligible to file a complaint. But where an eligibility
criterion for a complainant is contemplated specific
provisions have been made such as to be found in
Sections 195 to 199 of the CrPC. These specific
provisions clearly indicate that in the absence of any
such statutory provision, a locus standi of a
23
complainant is a concept foreign to criminal
jurisprudence. In other words, the principle that
anyone can set or put the criminal law in motion
remains intact unless contra-indicated by a statutory
provision. This general principle of nearly universal
application is founded on a policy that an offence i.e.
an act or omission made punishable by any law for the
time being in force is not merely an offence committed
relation to the person who suffers harm but is also an
offence against society. The society for its orderly and
peaceful development is interested in the punishment
of the offender. Therefore, prosecution for serious
offences is undertaken in the name of the State
representing the people which would exclude any
element of private vendetta or vengeance. If such is the
public policy underlying penal statutes, who brings an
act or omission made punishable by law to the notice of
the authority competent to deal with it, is immaterial
and irrelevant unless the statute indicates to the
contrary. Punishment of the offender in the interest of
the society being one of the objects behind penal
statutes enacted for larger good of the society, right to
initiate proceedings cannot be whittled down,
circumscribed or fettered by putting it into a straitjacket
formula of locus standi unknown to criminal
jurisprudence, save and except specific statutory
exception. To hold that such an exception exists that a
private complaint for offences of corruption committed
by public servant is not maintainable, the court would
require an unambiguous statutory provision and a
tangled web of argument for drawing a far fetched
implication, cannot be a substitute for an express
statutory provision.”
(emphasis supplied)
The Constitution Bench then considered whether the Special
Judge can take cognizance only on the basis of a police report and
answered the same in negative in the following words:
24
“In the matter of initiation of proceeding before a
Special Judge under Section 8(1), the Legislature while
conferring power to take cognizance had three
opportunities to unambiguously state its mind whether
the cognizance can be taken on a private complaint or
not. The first one was an opportunity to provide in
Section 8(1) itself by merely stating that the Special
Judge may take cognizance of an offence on a police
report submitted to it by an investigating officer
conducting investigation as contemplated by Section 5-
A. While providing for investigation by designated police
officers of superior rank, the Legislature did not fetter
the power of Special Judge to take cognizance in a
manner otherwise than on police report. The second
opportunity was when by Section 8(3) a status of a
deemed public prosecutor was conferred on a private
complainant if he chooses to conduct the prosecution.
The Legislature being aware of a provision like the one
contained in Section 225 of the CrPC, could have as
well provided that in every trial before a Special Judge
the prosecution shall be conducted by a Public
Prosecutor, though that itself would not have been
decisive of the matter. And the third opportunity was
when the Legislature while prescribing the procedure
prescribed for warrant cases to be followed by Special
Judge did not exclude by a specific provision that the
only procedure which the Special Judge can follow is
the one prescribed for trial of warrant cases on a police
report. The disinclination of the Legislature to so
provide points to the contrary and no canon of
construction permits the court to go in search of a
hidden or implied limitation on the power of the Special
Judge to take cognizance unfettered by such
requirement of its being done on a police report alone.
In our opinion, it is no answer to this fairly wellestablished
legal position that for the last 32 years no
case has come to the notice of the court in which
cognizance was taken by a Special Judge on a private
complaint for offences punishable under the 1947 Act.”
(emphasis supplied)
25
The Court then referred to Section 5A of the 1947 Act, the
provisions of the 1952 Act, the judgments in H.N. Rishbud and
Inder Singh v. State of Delhi (1955) 1 SCR 1150, State of M.P. v.
Mubarak Ali 1959 Supp. (2) SCR 201, Union of India v. Mahesh
Chandra AIR 1957 M.B. 43 and held:
“Having carefully examined these judgments in the light
of the submissions made, the only conclusion that
unquestionably emerges is that Section 5-A is a
safeguard against investigation of offences committed
by public servants, by petty or lower rank police officer.
It has nothing to do directly or indirectly with the mode
and method of taking cognizance of offences by the
Court of Special Judge. It also follows as a necessary
corollary that provision of Section 5-A is not a condition
precedent to initiation of proceedings before the Special
Judge who acquires power under Section 8(1) to take
cognizance of offences enumerated in Section 6(1)( a )
and ( b ), with this limitation alone that it shall not be
upon commitment to him by the Magistrate.
Once the contention on behalf of the appellant that
investigation under Section 5-A is a condition
precedent to the initiation of proceedings before a
Special Judge and therefore cognizance of an offence
cannot be taken except upon a police report, does not
commend to us and has no foundation in law, it is
unnecessary to refer to the long line of decisions
commencing from Taylor v. Taylor ; Nazir Ahmad v .
King-Emperor and ending with Chettiam Veetti l
Ammad v. Taluk Land Board , laying down hitherto
uncontroverted legal principle that where a statute
requires to do a certain thing in a certain way, the
thing must be done in that way or not at all. Other
methods of performance are necessarily forbidden.
Once Section 5-A is out of the way in the matter of
taking cognizance of offences committed by public
servants by a Special Judge, the power of the Special
26
Judge to take cognizance of such offences conferred by
Section 8(1) with only one limitation, in any one of the
known methods of taking cognizance of offences by
courts of original jurisdiction remains undented. One
such statutorily recognised well-known method of
taking cognizance of offences by a court competent to
take cognizance is upon receiving a complaint of facts
which constitutes the offence. And Section 8(1) says
that the Special Judge has the power to take
cognizance of offences enumerated in Section 6(1)(a)
and (b) and the only mode of taking cognizance
excluded by the provision is upon commitment. It
therefore, follows that the Special Judge can take
cognizance of offences committed by public servants
upon receiving a complaint of facts constituting such
offences.
It was, however, submitted that even if it be held that
the Special Judge is entitled to entertain a private
complaint, no further steps can be taken by him
without directing an investigation under Section 5-A so
that the safeguard of Section 5-A is not whittled down.
This is the selfsame argument under a different
apparel. Accepting such a submission would
tantamount to saying that on receipt of the complaint
the Special Judge must direct an investigation under
Section 5-A, There is no warrant for such an approach.
Astounding as it appeared to us, in all solemnity it was
submitted that investigation of an offence by a superior
police officer affords a more solid safeguard compared
to a court. Myopic as this is, it would topsy turvy the
fundamental belief that to a person accused of an
offence there is no better safeguard than a court. And
this is constitutionally epitomised in Article 22 that
upon arrest by police, the arrested person must be
produced before the nearest Magistrate within twentyfour
hours of the arrest. Further, numerous provisions
of the Code of Criminal Procedure such as Section 161,
Section 164, and Section 25 of the Indian Evidence Act
would show the Legislature's hesitation in placing
confidence on police officers away from court's gaze.
And the very fact that power is conferred on a
Presidency Magistrate or Magistrate of the first class to
27
permit police officers of lower rank to investigate these
offences would speak for the mind of the Legislature
that the court is a more reliable safeguard than even
superior police officers.”
(emphasis supplied)
19. In view of the aforesaid judgment of the Constitution Bench,
it must be held that the appellant has the right to file a complaint
for prosecution of respondent No.2 in respect of the offences
allegedly committed by him under the 1988 Act.
20. The argument of the learned Attorney General that the
question of granting sanction for prosecution of a public servant
charged with an offence under the 1988 Act arises only at the
stage of taking cognizance and not before that is neither
supported by the plain language of the section nor the judicial
precedents relied upon by him. Though, the term ‘cognizance’ has
not been defined either in the 1988 Act or the CrPC, the same has
acquired a definite meaning and connotation from various judicial
precedents. In legal parlance cognizance is “taking judicial notice
by the court of law, possessing jurisdiction, on a cause or matter
presented before it so as to decide whether there is any basis for
initiating proceedings and determination of the cause or matter
judicially”. In R. R. Chari v. State of U.P. (1951) SCR 312, the
28
three Judge Bench approved the following observations made by
the Calcutta High Court in Superintendent and Remembrancer of
Legal Affairs, West Bengal v. Abni Kumar Banerjee (supra):
"What is taking cognizance has not been defined in the
Criminal Procedure Code and I have no desire to
attempt to define it. It seems to me clear however that
before it can be said that any magistrate has taken
cognizance of any offence under section 190(1)(a),
Criminal Procedure Code, he must not only have
applied his mind to the contents of the petition but he
must have done so for the purpose of proceeding in a
particular way as indicated in the subsequent
provisions of this Chapter - proceeding under section
200 and thereafter sending it for inquiry and report
under section 202. When the magistrate applies his
mind not for the purpose of proceeding under the
subsequent sections of this Chapter, but for taking
action of some other kind, e.g. ordering investigation
under section 156(3), or issuing a search warrant for
the purpose of the investigation, he cannot be said to
have taken cognizance of the offence.”
21. In Mohd. Khalid’s case, the Court referred to Section 190 of
the CrPC and observed :
“In its broad and literal sense, it means taking notice of
an offence. This would include the intention of
initiating judicial proceedings against the offender in
respect of that offence or taking steps to see whether
there is any basis for initiating judicial proceedings or
for other purposes. The word ‘cognizance’ indicates the
point when a Magistrate or a Judge first takes judicial
notice of an offence. It is entirely a different thing from
initiation of proceedings; rather it is the condition
precedent to the initiation of proceedings by the
29
Magistrate or the Judge. Cognizance is taken of cases
and not of persons.”
22. In Pastor P. Raju’s case, this Court referred to the provisions
of Chapter XIV and Sections 190 and 196 (1-A) of the CrPC and
observed :
“There is no bar against registration of a criminal case
or investigation by the police agency or submission of a
report by the police on completion of investigation, as
contemplated by Section 173 CrPC. If a criminal case is
registered, investigation of the offence is done and the
police submits a report as a result of such investigation
before a Magistrate without the previous sanction of the
Central Government or of the State Government or of
the District Magistrate, there will be no violation of
Section 196(1-A) CrPC and no illegality of any kind
would be committed.”
The Court then referred to some of the precedents including
the judgment in Mohd. Khalid’s case and observed :
“It 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.”
30
23. In Kalimuthu’s case, the only question considered by this
Court was whether in the absence of requisite sanction under
Section 197 CrPC, the Special Judge for CBI cases, Chennai did
not have the jurisdiction to take cognizance of the alleged
offences. The High Court had taken the view that Section 197
was not applicable to the appellant’s case. Affirming the view
taken by the High Court, this Court observed :
“The question relating to the need of sanction under
Section 197 of the Code is not necessarily to be
considered as soon as the complaint is lodged and on
the allegations contained therein. This question may
arise at any stage of the proceeding. The question
whether sanction is necessary or not may have to be
determined from stage to stage. Further, in cases where
offences under the Act are concerned, the effect of
Section 197, dealing with the question of prejudice has
also to be noted.”
24. In Raj Kumar Jain’s case, this Court considered the question
whether the CBI was required to obtain sanction from the
prosecuting authority before approaching the Court for accepting
the report under Section 173(2) of the CrPC. This question was
considered in the backdrop of the fact that the CBI, which had
investigated the case registered against the respondent under
Section 5(2) read with Section 5(1)(e) of the 1947 Act found that
the allegation made against the respondent could not be
31
substantiated. The Special Judge declined to accept the report
submitted under Section 173(2) CrPC by observing that the CBI
was required to place materials collected during investigation
before the sanctioning authority and it was for the concerned
authority to grant or refuse sanction. The Special Judge opined
that only after the decision of the sanctioning authority, the CBI
could submit the report under Section 173(2). The High Court
dismissed the petition filed by the CBI and confirmed the order of
the Special Judge. This Court referred to Section 6(1) of the 1947
Act and observed:
“From a plain reading of the above section it is
evidently clear that a court cannot take cognizance of
the offences mentioned therein without sanction of the
appropriate authority. In enacting the above section,
the legislature thought of providing a reasonable
protection to public servants in the discharge of their
official functions so that they may perform their duties
and obligations undeterred by vexatious and
unnecessary prosecutions. Viewed in that context, the
CBI was under no obligation to place the materials
collected during investigation before the sanctioning
authority, when they found that no case was made out
against the respondent. To put it differently, if the CBI
had found on investigation that a prima facie case was
made out against the respondent to place him on trial
and accordingly prepared a charge-sheet (challan)
against him, then only the question of obtaining
sanction of the authority under Section 6(1) of the Act
would have arisen for without that the Court would not
be competent to take cognizance of the charge-sheet. It
must, therefore, be said that both the Special Judge
and the High Court were patently wrong in observing
32
that the CBI was required to obtain sanction from the
prosecuting authority before approaching the Court for
accepting the report under Section 173(2) CrPC.”
25. In our view, the decisions relied upon by the learned
Attorney General do not have any bearing on the moot question
whether respondent No.1, being the Competent Authority to
sanction prosecution of respondent No.2, was required to take
appropriate decision in the light of the direction contained in
Vineet Narain’s case.
26. Before proceeding further, we would like to add that at the
time of taking cognizance of the offence, the Court is required to
consider the averments made in the complaint or the charge sheet
filed under Section 173. It is not open for the Court to analyse
the evidence produced at that stage and come to the conclusion
that no prima facie case is made out for proceeding further in the
matter. However, before issuing the process, it that it is open to
the Court to record the evidence and on consideration of the
averments made in the complaint and the evidence thus adduced,
find out whether an offence has been made out. On finding that
such an offence has been made out the Court may direct the issue
of process to the respondent and take further steps in the matter.
33
If it is a charge-sheet filed under Section 173 CrPC, the facts
stated by the prosecution in the charge-sheet, on the basis of the
evidence collected during investigation, would disclose the offence
for which cognizance would be taken by the Court. Thus, it is not
the province of the Court at that stage to embark upon and shift
the evidence to come to the conclusion whether or not an offence
has been made out.
27. We may also observe that grant or refusal of sanction is not
a quasi judicial function and the person for whose prosecution the
sanction is sought is not required to be heard by the Competent
Authority before it takes a decision in the matter. What is
required to be seen by the Competent Authority is whether the
facts placed before it which, in a given case, may include the
material collected by the complainant or the investigating agency
prima facie disclose commission of an offence by a public servant.
If the Competent Authority is satisfied that the material placed
before it is sufficient for prosecution of the public servant, then it
is required to grant sanction. If the satisfaction of the Competent
Authority is otherwise, then it can refuse sanction. In either case,
the decision taken on the complaint made by a citizen is required
34
to be communicated to him and if he feels aggrieved by such
decision, then he can avail appropriate legal remedy.
28. In Vineet Narain’s case, the Court entertained the writ
petitions filed in public interest for ensuring investigation into
what came to be known as ‘Hawala case’. The writ petition
remained pending for almost four years. During that period,
several interim orders were passed which are reported as Vineet
Narain v. Union of India 1996 (1) SCALE (SP) 42, Vineet Narain v.
Union of India (1996) 2 SCC 199, Vineet Narain v. Union of India
(1997) 4 SCC 778 and Vineet Narain v. Union of India (1997) 5
SCALE 254. The final order was passed in Vineet Narain v. Union
of India (1998) 1 SCC 226. In (1996) 2 SCC 199, the Court
referred to the allegations made in the writ petition that
Government agencies like the CBI and the revenue authorities
have failed to perform their duties and legal obligations inasmuch
as they did not investigate into the matters arising out of seizure
of the so-called “Jain Diaries” in certain raids conducted by the
CBI. The Court took note of the allegation that the arrest of some
terrorists led to the discovery of financial support to them by
clandestine and illegal means and a nexus between several
important politicians, bureaucrats and criminals, who were
35
recipients of money from unlawful sources, and proceeded to
observe:
“The facts and circumstances of the present case do
indicate that it is of utmost public importance that this
matter is examined thoroughly by this Court to ensure
that all government agencies, entrusted with the duty
to discharge their functions and obligations in
accordance with law, do so, bearing in mind constantly
the concept of equality enshrined in the Constitution
and the basic tenet of rule of law: “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. This is imperative to retain public
confidence in the impartial working of the government
agencies.”
29. After examining various facets of the matter in detail, the
three Judge Bench in its final order reported in (1998) 1 SCC 226
observed :
“These principles of public life are of general application
in every democracy and one is expected to bear them in
mind while scrutinising the conduct of every holder of a
public office. It is trite that the holders of public offices
are entrusted with certain powers to be exercised in
public interest alone and, therefore, the office is held by
them in trust for the people. Any deviation from the
path of rectitude by any of them amounts to a breach of
trust and must be severely dealt with instead of being
pushed under the carpet. If the conduct amounts to an
offence, it must be promptly investigated and the
offender against whom a prima facie case is made out
should be prosecuted expeditiously so that the majesty
of law is upheld and the rule of law vindicated. It is the
36
duty of the judiciary to enforce the rule of law and,
therefore, to guard against erosion of the rule of law.
The adverse impact of lack of probity in public life
leading to a high degree of corruption is manifold. It
also has adverse effect on foreign investment and
funding from the International Monetary Fund and the
World Bank who have warned that future aid to
underdeveloped countries may be subject to the
requisite steps being taken to eradicate corruption,
which prevents international aid from reaching those
for whom it is meant. Increasing corruption has led to
investigative journalism which is of value to a free
society. The need to highlight corruption in public life
through the medium of public interest litigation
invoking judicial review may be frequent in India but is
not unknown in other countries: R. v. Secy. of State for
Foreign and Commonwealth Affairs.”
In paragraph 58 of the judgment, the Court gave several
directions in relation to the CBI, the CVC and the Enforcement
Directorate. In para 58 (I)(15), the Court gave the following
direction:
“Time-limit of three months for grant of sanction for
prosecution must be strictly adhered to. However,
additional time of one month may be allowed where
consultation is required with the Attorney General (AG)
or any other law officer in the AG's office.”
30. The CVC, after taking note of the judgment of the Punjab
and Haryana High Court in Jagjit Singh v. State of Punjab (1996)
Crl. Law Journal 2962, State of Bihar v. P. P. Sharma 1991 Supp.
1 SCC 222, Superintendent of Police (CBI) v. Deepak Chowdhary,
37
(1995) 6 SC 225, framed guidelines which were circulated vide
office order No.31/5/05 dated 12.5.2005. The relevant clauses of
the guidelines are extracted below:
“2(i) Grant of sanction is an administrative act. The
purpose is to protect the public servant from
harassment by frivolous or vexatious prosecution and
not to shield the corrupt. The question of giving
opportunity to the public servant at that stage does not
arise. The sanctioning authority has only to see
whether the facts would prima-facie constitutes the
offence.
(ii) The competent authority cannot embark upon an
inquiry to judge the truth of the allegations on the basis
of representation which may be filed by the accused
person before the Sanctioning Authority, by asking the
I.O. to offer his comments or to further investigate the
matter in the light of representation made by the
accused person or by otherwise holding a parallel
investigation/enquiry by calling for the record/report of
his department.
(vii) However, if in any case, the Sanctioning Authority
after consideration of the entire material placed before
it, entertains any doubt on any point the competent
authority may specify the doubt with sufficient
particulars and may request the Authority who has
sought sanction to clear the doubt. But that would be
only to clear the doubt in order that the authority may
apply its mind proper, and not for the purpose of
considering the representations of the accused which
may be filed while the matter is pending sanction.
38
(viii) If the Sanctioning Authority seeks the comments
of the IO while the matter is pending before it for
sanction, it will almost be impossible for the
Sanctioning Authority to adhere to the time limit
allowed by the Supreme Court in Vineet Narain’s case.”
31. The aforementioned guidelines are in conformity with the law
laid down by this Court that while considering the issue regarding
grant or refusal of sanction, the only thing which the Competent
Authority is required to see is whether the material placed by the
complainant or the investigating agency prima facie discloses
commission of an offence. The Competent Authority cannot
undertake a detailed inquiry to decide whether or not the
allegations made against the public servant are true.
32. In the light of the above discussion, we shall now consider
whether the High Court was justified in refusing to entertain the
writ petition filed by the appellant. In this context, it is apposite
to observe that the High Court had proceeded under a wholly
erroneous assumption that respondent No.1 had directed
investigation by the CBI into the allegations of grave irregularities
in the grant of licences. As a matter of fact, on receipt of
representation dated 4.5.2009 that the grant of licences by
respondent No.2 had resulted in huge loss to the Public
39
Exchequer, the CVC got conducted an inquiry under Section 8(d)
of the Central Vigilance Commission Act, 2003 and forwarded a
copy of the report to the Director, CBI for making an investigation
into the matter to establish the criminal conspiracy in the
allocation of 2G spectrum under the UASL policy of the DoT and
to bring to book all the wrongdoers. Thereupon, the CBI registered
FIR No.RC-DI-2009-A-0045 dated 21.10.2009 against unknown
officials of the DoT, unknown private persons/companies and
others for offences under Section 120-B IPC read with Sections
13(2) and 13(1)(d) of the 1988 Act. For the next about one year,
the matter remained dormant and the CBI took steps for vigorous
investigation only when this Court intervened in the matter. The
material placed on record does not show that the CBI had
registered a case or started investigation at the instance of
respondent No.1.
33. On his part, the appellant had submitted representation to
respondent No. 1 almost one year to the registration of the first
information report by the CBI and highlighted the grave
irregularities committed in the grant of licences resulting in the
loss of thousands of crores of rupees to the Public Exchequer. He
continuously pursued the matter by sending letters to respondent
40
No.1 at regular intervals. The affidavit filed by Shri V. Vidyawati,
Director in the PMO shows that the matter was placed before
respondent No.1 on 1.12.2008, who directed the concerned officer
to examine and apprise him with the facts of the case.
Surprisingly, instead of complying with the direction given by
respondent No.1 the concerned officer sent the appellant’s
representation to the DoT which was headed by none other than
respondent No.2 against whom the appellant had made serious
allegations of irregularities in the grant of licences. It was natural
for respondent No.2 to have seized this opportunity, and he
promptly sent letter dated 18.6.2009 to the appellant justifying
the grant of licences. The concerned officer in the PMO then
referred the matter to the Ministry of Law and Justice for advice.
It is not possible to appreciate that even though the appellant
repeatedly wrote letters to respondent No.1 highlighting the
seriousness of the allegations made in his first representation and
the fact that he had already supplied the facts and documents
which could be made basis for grant of sanction to prosecute
respondent No.2 and also pointed out that as per the judgments
of this Court, detailed inquiry was not required to be made into
the allegations, the concerned officers in the PMO kept the matter
41
pending and then took the shelter of the fact that the CBI had
registered the case and the investigation was pending. In our
view, the officers in the PMO and the Ministry of Law and Justice,
were duty bound to apprise respondent No.1 about seriousness of
allegations made by the appellant and the judgments of this Court
including the directions contained in paragraph 58(I) of the
judgment in Vineet Narain’s case as also the guidelines framed by
the CVC so as to enable him to take appropriate decision in the
matter. By the very nature of the office held by him, respondent
No. 1 is not expected to personally look into the minute details of
each and every case placed before him and has to depend on his
advisers and other officers. Unfortunately, those who were
expected to give proper advice to respondent No. 1 and place full
facts and legal position before him failed to do so. We have no
doubt that if respondent No.1 had been apprised of the true
factual and legal position regarding the representation made by
the appellant, he would have surely taken appropriate decision
and would not have allowed the matter to linger for a period of
more than one year.
34. In the result, the appeal is allowed. The impugned order is
set aside. It is declared that the appellant had the right to file a
42
complaint for prosecuting respondent No.2. However, keeping in
view the fact that the Court of Special Judge, CBI has already
taken cognizance of the offences allegedly committed by
respondent No.2 under the 1988 Act, we do not consider it
necessary to give any other direction in the matter. At the same
time, we deem it proper to observe that in future every Competent
Authority shall take appropriate action on the representation
made by a citizen for sanction of the prosecution of a public
servant strictly in accordance with the direction contained in
Vineet Narain v. Union of India (1998) 1 SCC 226 and the
guidelines framed by the CVC.
…..…..…….………………….…J.
[G.S. Singhvi]
…..…..……..…..………………..J.
[Asok Kumar Ganguly]
New Delhi,
January 31, 2012.
43
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1193 OF 2012
(Arising out of SLP (C) No.27535/2010)
Dr. Subramanian Swamy ....Appellant(s)
- Versus -
Dr. Manmohan Singh & another ....Respondent(s)
J U D G M E N T
GANGULY, J.
1. After going through the judgment rendered by my
learned brother G.S. Singhvi, J., I am in
agreement with the various conclusions reached by
His Lordship. However, I have added my own views
on certain important facts of the questions raised
in this case.
2. Brother Singhvi, J., has come to a finding that
having regard to the very nature of the office
held by respondent No.1, it may not be expected of
respondent No.1 to personally look into the minute
44
details of each and every matter and the
respondent No.1, having regard to the burden of
his very onerous office, has to depend on the
officers advising him. At the same time it may be
noted that in the course of submission, the
appellant, who argued in person, did not ever
allege any malafide or lack of good faith against
the respondent No.1. The delay which had taken
place in the office of the respondent No.1 is
unfortunate but it has not even been alleged by
the appellant that there was any deliberate action
on the part of the respondent No.1 in causing the
delay. The position of respondent No.1 in our
democratic polity seems to have been summed up in
the words of Shakespeare “Uneasy lies the head
that wears a crown” (Henry, The Fourth, Part 2 Act
3, scene 1).
3. I also agree with the conclusions of bother
Singhvi, J., that the appellant has the locus to
file the complaint for prosecution of the
respondent No.2 in respect of the offences alleged
to have been committed by him under the 1988 Act.
45
Therefore, I agree with the finding of brother
Singhvi, J., that the argument of the learned
Attorney General to the contrary cannot be
accepted. Apart from that the learned Attorney
General in the course of his submission proceeded
on the basis that the question of sanction has to
be considered with reference to Section 19 of the
Prevention of Corruption Act (hereinafter “the
P.C. Act”) or with reference to Section 197 of the
Code of Criminal Procedure, 1973 (hereinafter “the
Code”), and the scheme of both the sections being
similar (Vide paragraph 3 of the supplementary
written submission filed by the learned Attorney
General). In fact, the entire submission of the
learned Attorney General is structured on the
aforesaid assumption. I fail to appreciate the
aforesaid argument as the same is contrary to the
scheme of Section 19 of the P.C. Act and also
Section 197 of the Code. In Kalicharan Mahapatra
vs. State of Orissa reported in (1998) 6 SCC 411,
this Court compared Section 19 of P.C. Act with
Section 197 of the Code. After considering several
46
decisions on the point and also considering
Section 6 of the old P.C. Act, 1947 which is
almost identical with Section 19 of the P.C. Act,
1988 and also noting Law Commission’s Report, this
Court in paragraph 13 of Kalicharan (supra) came
to the following conclusions:
“13. The sanction contemplated in
Section 197 of the Code concerns a
public servant who “is accused of any
offence alleged to have been committed
by him while acting or purporting to act
in the discharge of his official duty”,
whereas the offences contemplated in the
PC Act are those which cannot be treated
as acts either directly or even
purportedly done in the discharge of his
official duties. Parliament must have
desired to maintain the distinction and
hence the wording in the corresponding
provision in the former PC Act was
materially imported in the new PC Act,
1988 without any change in spite of the
change made in Section 197 of the Code.”
4. The above passage in Kalicharan (supra) has been
quoted with approval subsequently by this Court in
Lalu Prasad vs. State of Bihar reported in 2007
(1) SCC 49 at paragraph 9, page 54. In paragraph
10, (page 54 of the report) this Court held in
47
Lalu Prasad (supra) that “Section 197 of the Code
and Section 19 of the Act operate in conceptually
different fields”.
5. In view of such consistent view by this Court the
basic submission of the learned Attorney General
to the contrary is, with respect, untenable.
6. I also entirely agree with the conclusion of
learned brother Singhvi, J., that the argument of
the learned Attorney General that question for
granting sanction for prosecution of a public
servant charged with offences under the 1988 Act
arises only at the stage of cognizance is also not
acceptable.
7. In formulating this submission, the learned
Attorney General substantially advanced two
contentions. The first contention is that an order
granting sanction is not required to be filed
48
along with a complaint in connection with a
prosecution under Section 19 of the P.C. Act. The
aforesaid submission is contrary to the settled
law laid down by this Court in various judgments.
Recently a unanimous three-judge Bench decision of
this Court in the case of State of Uttar Pradesh
vs. Paras Nath Singh, [(2009) 6 SCC 372], speaking
through Justice Pasayat and construing the
requirement of sanction, held that without
sanction:
“……The very cognizance is barred. That
is, the complaint cannot be taken notice
of. According to Black's 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 of it or exercising jurisdiction
if 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.”
(Para 6, page 375 of the report)
8. The other contention of the learned Attorney
General is that in taking cognizance under the
49
P.C. Act the Court is guided by the provisions
under Section 190 of the Code and in support of
that contention the learned Attorney General
relied on several judgments. However, the
aforesaid submissions were made without noticing
the judgment of this Court in the case of Dilawar
Singh vs. Parvinder Singh alias Iqbal Singh and
Another (2005) 12 SCC 709. Dealing with Section 19
of P.C. Act and Section 190 of the Code, this
Court held in paragraph 8 at page 713 of the
report as follows:
“……The Prevention of Corruption Act is a
special statute and as the preamble
shows, this Act has been enacted to
consolidate and amend the law relating
to the prevention of corruption and for
matters connected therewith. Here, the
principle expressed in the maxim
generalia specialibus non derogant would
apply which means that if a special
provision has been made on a certain
matter, that matter is excluded from the
general provisions. (See Godde
Venkateswara Rao v. Govt. of A.P., State
of Bihar v. Dr. Yogendra Singh and
Maharashtra State Board of Secondary and
Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth.) Therefore, the
provisions of Section 19 of the Act will
have an overriding effect over the
50
general provisions contained in Section
190……”
9. Therefore, concurring with brother Singhvi, J., I
am unable to uphold the submission of the learned
Attorney General.
10. As I am of the humble opinion that the questions
raised and argued in this case are of considerable
constitutional and legal importance, I wish to add
my own reasoning on the same.
11. Today, corruption in our country not only poses a
grave danger to the concept of constitutional
governance, it also threatens the very foundation
of Indian democracy and the Rule of Law. The
magnitude of corruption in our public life is
incompatible with the concept of a socialist,
secular democratic republic. It cannot be disputed
that where corruption begins all rights end.
Corruption devalues human rights, chokes
51
development and undermines justice, liberty,
equality, fraternity which are the core values in
our preambular vision. Therefore, the duty of the
Court is that any anti-corruption law has to be
interpreted and worked out in such a fashion as to
strengthen the fight against corruption. That is
to say in a situation where two constructions are
eminently reasonable, the Court has to accept the
one that seeks to eradicate corruption to the one
which seeks to perpetuate it.
12. Time and again this Court has expressed its
dismay and shock at the ever growing tentacles of
corruption in our society but even then situations
have not improved much. [See Sanjiv Kumar v. State
of Haryana & ors., (2005) 5 SCC 517; State of A.P.
v. V. Vasudeva Rao, (2004) 9 SCC 319; Shobha
Suresh Jumani v. Appellate Tribunal Forfeited
Property & another, (2001) 5 SCC 755; State of
M.P. & ors. v. Ram Singh, (2000) 5 SCC 88; J.
Jayalalitha v. Union of India & another, (1999) 5
52
SCC 138; Major S.K. Kale v. State of Maharashtra,
(1977) 2 SCC 394.]
13. Learned Attorney General in the course of his
submission fairly admitted before us that out of
total 319 requests for sanction, in respect of 126
of such requests, sanction is awaited. Therefore,
in more than 1/3rd 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 rule of law and common man’s
faith in the justice delivering system.
14. Both rule of law and equality before law are
cardinal questions in our Constitutional Laws as
also in International law and in this context the
role of the judiciary is very vital. In his famous
53
treatise on Administrative Law, Professor Wade
while elaborating the concept of rule of law
referred to the opinion of Lord Griffith’s which
runs as follows:
“the judiciary accept a responsibility for
the maintenance of the rule of law that
embraces a willingness to oversee
executive action and to refuse to
countenance behaviour that threatens
either basic human rights or the rule of
law.”
[See R. v. Horseferry Road Magistrates’
Court ex p. Bennett {1994) 1 AC 42 at 62]
15. I am in respectful agreement with the aforesaid
principle.
16. In this connection we might remind ourselves that
courts while maintaining rule of law must
structure its jurisprudence on the famous
formulation of Lord Coke where the learned Law
Lord made a comparison between “the golden and
straight metwand of law” as opposed to “the
uncertain and crooked cord of discretion”.
54
17. The right of private citizen to file a complaint
against a corrupt public servant must be equated
with his right to access the Court in order to set
the criminal law in motion against a corrupt
public official. This right of access, a
Constitutional right should not be burdened with
unreasonable fetters. When a private citizen
approaches a court of law against a corrupt public
servant who is highly placed, what is at stake is
not only a vindication of personal grievance of
that citizen but also the question of bringing
orderliness in society and maintaining equal
balance in the rule of law. It was pointed out by
the Constitution Bench of this Court in Sheonandan
Paswan vs. State of Bihar and Others, (1987) 1 SCC
288 at page 315:
“……It is now settled law that a criminal
proceeding is not a proceeding for
vindication of a private grievance but
it is a proceeding initiated for the
purpose of punishment to the offender in
the interest of the society. It is for
maintaining stability and orderliness in
55
the society that certain acts are
constituted offences and the right is
given to any citizen to set the
machinery of the criminal law in motion
for the purpose of bringing the offender
to book. It is for this reason that in
A.R. Antulay v. R.S. Nayak this Court
pointed out that (SCC p. 509, para 6)
“punishment of the offender in the
interest of the society being one of the
objects behind penal statutes enacted
for larger good of the society, right to
initiate proceedings cannot be whittled
down, circumscribed or fettered by
putting it into a strait jacket formula
of locus standi……”
18. Keeping those principles in mind, as we must, if
we look at Section 19 of the P.C. Act which bars a
Court from taking cognizance of cases of
corruption against a public servant under Sections
7, 10, 11, 13 and 15 of the Act, unless the
Central or the State Government, as the case may
be, has accorded sanction, virtually imposes
fetters on private citizens and also on
prosecutors from approaching Court against corrupt
public servants. These protections are not
available to other citizens. Public servants are
treated as a special class of persons enjoying the
56
said protection so that they can perform their
duties without fear and favour and without threats
of malicious prosecution. However, the said
protection against malicious prosecution which was
extended in public interest cannot become a shield
to protect corrupt officials. These provisions
being exceptions to the equality provision of
Article 14 are analogous to provisions of
protective discrimination and these protections
must be construed very narrowly. These procedural
provisions relating to sanction must be construed
in such a manner as to advance the causes of
honesty and justice and good governance as opposed
to escalation of corruption. Therefore, in every
case where an application is made to an
appropriate authority for grant of prosecution in
connection with an offence under P.C. Act it is
the bounden duty of such authority to apply its
mind urgently to the situation and decide the
issue without being influenced by any extraneous
consideration. In doing so, the authority must
make a conscious effort to ensure the rule of law
57
and cause of justice is advanced. In considering
the question of granting or refusing such
sanction, the authority is answerable to law and
law alone. Therefore, the requirement to take the
decision with a reasonable dispatch is of the
essence in such a situation. Delay in granting
sanction proposal thwarts a very valid social
purpose, namely, the purpose of a speedy trial
with the requirement to bring the culprit to book.
Therefore, in this case the right of the
sanctioning authority, while either sanctioning or
refusing to grant sanction, is coupled with a
duty. The sanctioning authority must bear in mind
that what is at stake is the public confidence in
the maintenance of rule of law which is
fundamental in the administration of justice.
Delay in granting such sanction has spoilt many
valid prosecution and is adversely viewed in
public mind that in the name of considering a
prayer for sanction, a protection is given to a
corrupt public official as a quid pro quo for
services rendered by the public official in the
58
past or may be in the future and the sanctioning
authority and the corrupt officials were or are
partners in the same misdeeds. I may hasten to add
that this may not be factual position in this but
the general demoralizing effect of such a popular
perception is profound and pernicious. By causing
delay in considering the request for sanction, the
sanctioning authority stultifies judicial scrutiny
and determination of the allegations against
corrupt official and thus the legitimacy of the
judicial institutions is eroded. It, thus,
deprives a citizen 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. In this
connection, if we look at Section 19 of the P.C.
Act, we find that no time limit is mentioned
therein. This has virtually armed the sanctioning
authority with unbridled power which has often
resulted in protecting the guilty and perpetuating
criminality and injustice in society.
59
19. There are instances where as a result of delayed
grant of sanction prosecutions under the P.C. Act
against a public servant has been quashed. See
Mahendra Lal Das vs. State of Bihar and Others,
(2002) 1 SCC 149, wherein this Court quashed the
prosecution as the sanctioning authority granted
sanction after 13 years. Similarly, in the case of
Santosh De vs. Archna Guha and Others, (1994)
Supp.3 SCC 735, this Court quashed prosecution in
a case where grant of sanction was unduly delayed.
There are several such cases. The aforesaid
instances show a blatant subversion of the rule of
law. Thus, in many cases public servants whose
sanction proposals are pending before authorities
for long periods of time are being allowed to
escape criminal prosecution.
20. Article 14 must be construed as a guarantee
against uncanalized and arbitrary power.
Therefore, the absence of any time limit in
60
granting sanction in Section 19 of the P.C. Act is
not in consonance with the requirement of the due
process of law which has been read into our
Constitution by the Constitution Bench decision of
this Court in Maneka Gandhi vs. Union of India and
Another, (1978) 1 SCC 248.
21. I may not be understood to have expressed any
doubt about the constitutional validity of Section
19 of the P.C. Act, but in my judgment the power
under Section 19 of the P.C. Act must be
reasonably exercised. In my judgment the
Parliament and the appropriate authority must
consider restructuring Section 19 of the P.C. Act
in such a manner as to make it consonant with
reason, justice and fair play.
22. In my view, the Parliament should consider the
Constitutional imperative of Article 14 enshrining
the rule of law wherein ‘due process of law’ has
been read into by introducing a time limit in
61
Section 19 of the P.C. Act 1988 for its working in
a reasonable manner. The Parliament may, in my
opinion, consider the following guidelines:
a)All proposals for sanction placed before any
Sanctioning Authority, empowered to grant
sanction for the prosecution of a public servant
under section 19 of the P.C. Act must be decided
within a period of three months of the receipt
of the proposal by the concerned authority.
b)Where consultation is required with the Attorney
General or the Solicitor General or the Advocate
General of the State, as the case may be, and
the same is not possible within the three months
mentioned in clause (a) above, an extension of
one month period may be allowed, but the request
for consultation is to be sent in writing within
the three months mentioned in (a) above. A copy
of the said request will be sent to the
prosecuting agency or the private complainant to
62
intimate them about the extension of the time
limit.
c)At the end of the extended period of time limit,
if no decision is taken, sanction will be deemed
to have been granted to the proposal for
prosecution, and the prosecuting agency or the
private complainant will proceed to file the
chargesheet/complaint in the court to commence
prosecution within 15 days of the expiry of the
aforementioned time limit.
23. With these additional reasons, as indicated, I
agree with Brother Singhvi, J., and allow the
appeal and the judgment of the High Court is set
aside. No costs.
.......................J.
(ASOK KUMAR GANGULY)
New Delhi
63
January 31, 2012
64