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Published : August 09, 2012 | Author : noorameena
Category : Miscellaneous | Total Views : 7124 | Rating :

  
noorameena
Noor Ameena National University of Advanced Legal Studies Kochi
 

Prosecution of Public Servant upon Private Complaint: A Case Study

Preliminary information:
Name of the case: Dr. Subramanian Swamy v. Dr. Manmohan Singh and Anr.
Citation: Civil Appeal No. 1193 of 2012 (Arising out of SLP (C) No. 27535 of 2010).
Nature of the case: Writ Petition (Civil) No. 29646 of 2009.
Date of decision: 31.01.2012
Petitioner: Dr. Subramanian Swamy
Respondent: Dr. Manmohan Singh and Anr.
Bench: Division Bench
Judges: Asok Kumar Ganguly and G.S. Singhvi, JJ.
Judge who delivered the judgement: G.S. Singhvi, J.

Facts of the case:
The Appellant vide several letters to the Respondent No. 1, Dr. Manmohan Singh, sought to accord sanction to prosecute Respondent No. 2, A. Raja, the ex-Minister for Communication and Information Technology under the Prevention of Corruption Act, 1988, for alleged grant of licences in violation of Clause 8 of Guidelines for United Access Services Licence issued by the Ministry of Communication and Information Technology resulting in a loss of around Rs. 50,000 crores to the Government.

Questions Presented:
1. Whether a complaint can be filed by a citizen for prosecuting a public servant for an offence under the Prevention of Corruption Act, 1988.

2. Whether the authority competent to sanction prosecution of a public servant for offences under the Prevention of Corruption Act, 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 Indiaand the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission (CVC).

Whether sanction for prosecution of Respondent No. 2, A. Raja, 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.

The Supreme Court, in reliance of R. S. Nayak v. A. R. Antulay, reaffirmed that the prior sanction for prosecution is not necessary where the person in question has ceased to be a public servant under the ‘public office’ alleged to have been misused by him. 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 misused or abused, the question is whether the sanction of the authority competent to remove him from the office which is neither alleged to have been misused nor abused is necessary. The Supreme Court answered it in the negative. This can be justified by the following illustrations.

a) A, a public servant abused his position as minister but ceased to be a minister by the time the court had taken cognizance of the offence. Subsequently, after the commission of the offence but before the taking of cognizance of the offence by the court, A was elected as a Municipal Chairman, hence becoming a public servant under the relevant municipal laws. It is absurd to hold that the sanction of the authority that is competent to remove him from the office of Municipal Chairman is necessary to prosecute him for the offence which he committed while in office as Minister. Any interpretation of the provision which would necessitate the sanction of the latter authority would have the effect of shielding an unscrupulous public servant. If a contrary interpretation has been adopted, the result would be disastrous.

b) Suppose a person is holding six different offices of which only one was abused, the sanction of six different competent authorities capable of removing him from six different public offices would be necessary before the court can take cognizance of the offence, even if such person has ceased to be public servant under the office which is purported to have abused. The sanction of five authorities would be necessary even if a valid sanction has been obtained from the sanctioning authority of the public office which is purported to have abused. Such an interpretation would result in absurd consequences and the legislation would operate as rogue’s charter.

Hence, it is submitted that,
i) The sanctioning authority is 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.

ii) The ‘office’ refers to the office which the public servant misuses or abuses by corrupt motive for which he is to be prosecuted.

iii) The question of obtaining sanction is relatable to the time of holding the office when the offence was alleged to have been committed. Where the person is not holding the

iv) said office as he might have retired, superannuated, discharged or dismissed, prior sanction of the authority is not necessary.

v) Where a person holds more than one public office of which only one is abused, the sanction of only that authority that is competent to remove him from the office which is alleged to have been abused is necessary.

Hence, where a person accused has ceased to be a Minister, but continues to be a Member of the Parliament, prior sanction for prosecution is not necessary.

Whether the appellant has locus standi to file a complaint for prosecution of the offences allegedly committed by a public servant under The Prevention of Corruption Act, 1988.
There is no provision either in the 1988 Act or the Code of Criminal Procedure, 1973 (Code of Criminal Procedure) 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.

The concept of locus standi is foreign to criminal jurisprudence.
Anybody can set the criminal law in motion except where the statute indicates the contrary. Locus standi is a concept foreign to the criminal jurisprudence and even the prosecution of most serious offences like murder can be initiated upon a private complaint. The court can take cognizance of an offence upon a police report or a private complaint or the court can suo moto take cognizance of the offences upon satisfaction of the Court.

S. 5A is not a sine qua non for taking cognizance of an offence under S. 8 (1) of the Act.
S. 5A only provides a safeguard against the investigation of offences committed by public servants, by lower rank police officers. It has no connection with the initiation of proceedings before a Special Judge under S. 8 (1) of the Act. Hence, cognizance of an offence can be taken under a private complaint in the absence of a police report, since nothing to the contrary is deducible from the Act.

The right of private citizen to file a complaint is equivalent to right to access to court.
The right of private citizen to file a complaint against a corrupt public official must be equated with the right to access the Court in order to set criminal law in motion against a corrupt public official, which is a constitutional right. When a citizen approaches the court of law against a corrupt public servant, apart from the personal grievance of the citizen, the questions of bringing orderliness in the society and maintenance of equal balance in rule of law comes in.

The question of granting sanction for the prosecution arises not at the stage of cognizance.
The order of granting sanction is required to be filed with the complaint in connection with the prosecution under S. 19 of the Act. It was held in State of Uttar Pradesh v. Paras Nath Singh, that the very cognizance is barred in the absence of such sanction. Cognizance, in legal parlance, means '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'.

The taking of cognizance under the Prevention of Corruption Act is not guided by S. 190 of the Code of Criminal Procedure.
The Prevention of Corruption Act is a special statute which 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. Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190.

Hence, in the light of the aforesaid, the appellant has locus standi to approach this Hon’ble court.

Whether the authority competent to sanction prosecution of a public servant for offences under the Prevention of Corruption Act, 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 Indiaand the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission (CVC).

An appraisal of Vineet Narain case: Writ petitions were filed in public interest to ensure investigation in the ‘Hawala case’. The Court in turn looked into the allegations against Government agencies like CBI and revenue authorities who 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 nexus between several important politicians, bureaucrats and criminals with terrorists, who in turn provided financial support to them by clandestine and illegal means and flowing of money from unlawful sources which was revealed by certain arrested terrorists, were also brought before the court.

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. If the conduct of a public servant 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. The Court gave several guidelines regarding the prosecution of public servants vide interim orders and the final judgement.
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”.

The Guidelines issued by CVC in tune with the Vineet Narain ruling: The relevant clauses of the guidelines issued by the Central Vigilance Commissioner in tune with the ruling of Vineet Narain v. Union of India are produced 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.

(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.

The ruling of Vineet Narain v. Union of India has become the law of the land vide Article 141 of the Constitution. Where nothing to the contrary is entailed, the same has to be adhered. The guideline issued by the CVC is in conformity with the law laid down by the Supreme Court and therefore requires compliance. Hence, what 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 and not to undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.

Whether the High Court was justified in refusing to entertain the writ petition filed by the appellant.

The High Court had proceeded under a wholly erroneous assumption that Respondent No.1 had directed an investigation by the CBI into the allegations of grave irregularities in the grant of licences. However, the fact remains that CVC upon receipt of a representation dated 4.5.2009 that the grant of licences by Respondent No. 2 has resulted in huge loss to the Public Exchequer; the CVC conducted an inquiry under S. 8 (d) of CVC Act, 2003 and forwarded a copy to CBI. But the CBI took steps for investigation only when the Court intervened in the matter. Hence, the High Court was wrong in refusing to entertain the writ petition filed by the appellant.

Judgment:
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.

a) 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 intimate them about the extension of the time limit.

b) 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.

Reason for the Judgment:
S. 19 of the Prevention of Corruption Act bars the Court from taking cognizance of cases of corruption against public servant under Sections 7, 10, 11, 13 and 15 of the Act, unless the Central or State Government has accorded sanction. This provision, in effect, imposes fetters on the private citizens as well as prosecutors. The provision which has been enacted to provide protection to public servants from malicious prosecution cannot be used as a shield to protect corrupt public officials. The provision being an exception to the equality provision under Article 14 should be couched with rule of law. There are instances where the delay in granting sanction to prosecute the public servant under S. 19 of the Prevention of Corruption Act has resulted in quashing of the prosecution. Out of the 319 requests for sanction for prosecution against public servants, sanction is awaited in respect of 126 of such requests, which amounts to 1/3rd of the total requests. Most often, such delay in grant of sanction is to evade criminal prosecution.These instances show a blatant subversion of rule of law. The S. 19 of the Prevention of Corruption Act is not in consonance with the due process of law which was read into our Constitution vide Maneka Gandhi v. Union of India. Hence the ‘due process of law’ was read into the section by the court by introducing a time limit in S. 19 of the Prevention of Corruption Act.

Conclusion:
There is no doubt that the court has traversed the limits of judicial scrutiny to step into the legislative platform to make a precedent which has the effect of an amendment to the legislation. However, the Indian society fighting incessantly against the evil of corruption and the vice of corrupt politicians received the decision with wide applause. The approach of judiciary against corruption was decisive from the very beginning. The decision fell at the time when a large mass of public fight for a strong Lok Pal and when there was wide spread movement against corruption in India. The public response against the judgement was indeed positive. However, the extent to which such judicial interference in the spheres of legislature and executive shall be permitted in the democratic set up of India is questionable. Whether the court in exercise of its powers can alter the legislative judgement is also debatable which now fall into the hands of students of law and philosophy, the intelligentsia and the common man.
~~~~~~~~~~~~
# MANU/SC/0827/1998:(1998) 1 SCC 226.
# MANU/SC/0102/1984:(1984) 2 SCC 183.
# MANU/SC/0082/1984 : (1984) 2 SCC 500.
# A.R. Antulay v. R.S. Nayak (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....’
# MANU/SC/0973/2009 : (2009) 6 SCC 372.
# Dilawar Singh v. Parvinder Singh alias Iqbal Singh and Anr. MANU/SC/1620/2005: (2005) 12 SCC 709.
# MANU/SC/0827/1998:(1998) 1 SCC 226.
# Ibid.
# See Mahendra Lal Das v. State of Bihar and Ors. MANU/SC/0641/2001 : (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 v. Archna Guha and Ors. MANU/SC/0271/1994 : (1994) Supp. 3 SCC 735, this Court quashed prosecution in a case where grant of sanction was unduly delayed.
# MANU/SC/0133/1978 : (1978) 1 SCC 248.

The  author can be reached at: noorameena@legalserviceindia.com




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