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TMI Blog2014 (8) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution is being used by the Government of India and the State Governments to protect dishonest and corrupt politicians and Government officials. The discretion to grant sanction has been misused. 3. The petition refers to various orders of this Court where incumbents were indicted but not prosecuted for want of sanction. In Common Cause, a registered Society vs. Union of India & Ors. (1996) 6 SCC 593, Captain Satish Sharma, the then Minister for Petroleum and Natural Gas was held to have acted in arbitrary manner in allotting petrol pumps but since sanction was refused, he could not be prosecuted. In Shiv Sagar Tiwari vs. Union of India & Ors. (1996) 6 SCC 599, Smt. Shiela Kaul, the then Minister for Housing and Urban Development, Government of India was indicted for making arbitrary, mala fide and unconstitutional allotments but still she could not be prosecuted. In M.C. Mehta (Taj Corridor Scam) vs. Union of India & Ors., (2007) 1 SCC 110, Ms. Mayawati, the then Chief Minister of U.P. and Shri Nasimuddin Siddiqui, the then Minister for Environment, U.P. were indicted and allegations against them were noticed but they could not be prosecuted in the absence of sanction. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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-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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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." 10. Again in a later order in the same case, i.e., Vineet Narain & Ors. vs. Union of India & Anr., reported in (1998) 1 SCC 226, it was observed as under: "55. 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 prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and [pic]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 the Sea Customs Act, 1878 (ii) Section 97 of the Gold (Control) Act, 1968 (iii) Section 6 of the Imports and Exports (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, 1948. This list is only illustrative and not exhaustive. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent 2 in respect of the offences allegedly committed by him under the 1988 Act. 49. CVC, after taking note of the judgment of the Punjab and Haryana High Court in Jagjit Singh v. State of Punjab, State of Bihar v. P.P. Sharma, Supt. of Police (CBI) v. Deepak Chowdhary, 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 constitute 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 IO 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 319 requests for sanction, in respect of 126 of such requests, sanction is awaited. Therefore, in more than one-third 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 the Rule of Law and common man's faith in the justice-delivering system. Both the Rule of Law and equality before law are cardinal questions (sic principles) 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, Prof. Wade while elaborating the concept of the Rule of Law referred to the opinion of Lord Griffiths which runs as follows: "... the judiciary accepts a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to [pic]refuse to countenance behaviour that threatens either basic human rights or the rule of law." [See R. v. Horseferry Road Magistrates' Court, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntenance of the Rule of Law which is fundamental in the administration of justice. Delay in granting such sanction has spoilt many valid prosecutions 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 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 the factual position in this (sic case) but the general demoralising effect of such a popular perception is profound and pernicious. 77. 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 PC Act, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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