a complaint can be filed by a citizen for prosecuting a public servant for an offence under the Prevention of Corruption Act, 1988

http://judis.nic.in/supremecourt/imgst.aspx?filename=39027

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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



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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,



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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:


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"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



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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



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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



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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



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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."



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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


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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



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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.



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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



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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.



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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.



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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-



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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,



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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



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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."



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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



20


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."



C
lauses ( 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

th
e State Government, as the case may be, sa
nction 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



21


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



22


(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



23


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



24


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 strait-

jacket 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:


25


"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 well-

established 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)



26


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

co
gnizance of offences enumerated in Section 6(1)( a

)


a
nd ( 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

co
mmencing from Ta
ylor v. Ta
ylor ; N
azir
Ahmad v.

Kin
g-Emperor and ending with C

hettiam Veettil

A
mmad v. Ta
luk 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


27


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 twenty-

four 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



28


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



29


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



30


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."



31


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



32


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



33


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.



34


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 sift



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



35


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



36


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



37


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,



38


(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.



39


(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



40


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 prior 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



41


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



42


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



43


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.


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





4


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.


4


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




4


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




4


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



4


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


4


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





5


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





5


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





5


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


5


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".





5


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


5


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




5


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




5


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




5


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.




5


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



6


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


6


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


6


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


6


January 31, 2012





6


*********

--
-Sincerely Yours,

Urvashi Sharma
101,Narayan Tower, Opposite F block Idgah
Rajajipuram,Lucknow-226017,Uttar Pradesh,India
Contact 9369613513
Right to Information Helpline 8081898081
Helpline Against Corruption 9455553838


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