9911796707
TMI Blog2012 (2) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... allegations made against the public servant are true. In Vineet Narain's case, time-limit of three months for grant of sanction for prosecution was granted with additional one month, however in present case, due to failure of officers in the PMO and the Ministry of Law and Justice, to apprise respondent No.1 about seriousness of allegations made by the appellant matter lingered for a period of more than one year. In result, order of High Court is set aside, and right granted to appellant to file a complaint for prosecuting respondent No.2. At the same time, it is directed 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) SC and the guidelines framed by the CVC - Decided in favor of petitioner - CIVIL APPEAL NO. 1193 OF 2012 - - - Dated:- 31-1-2012 - 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 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reby, 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: "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, employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment 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-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 doub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly indicate that in the absence of any such statutory provision, a locus standi of a 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt 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 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." (empha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 21.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 complaint for prosecuting respondent No.2. However, keeping in view the fact that the Court of Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed by him under the 1988 Act. 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 decisions on the point and also considering Section 6 of the old P.C. Act, 1947 which is almost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
