Saturday 4 February 2012

Sanction For Prosecution Of Public Servant Lattest SC Judgement

REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO. 1193   OF 2012(Arising out of SLP(C) No. 27535 of 2010)Dr. Subramanian Swamy … AppellantversusDr. Manmohan Singh and another … RespondentsJ U D G M E N TG. S. Singhvi, J.1. Leave granted.2. Whether a complaint can be filed by a citizen for prosecutinga public servant for an offence under the Prevention of CorruptionAct, 1988 (for short, ‘the 1988 Act’) and whether the authoritycompetent to sanction prosecution of a public servant for offencesunder the 1988 Act is required to take an appropriate decisionwithin the time specified in clause I(15) of the directions containedin paragraph 58 of the judgment of this Court in Vineet Narain v.Union of India (1998) 1 SCC 226 and the guidelines issued by the1Central Government, Department of Personnel and Training andthe Central Vigilance Commission (CVC) are the question whichrequire consideration in this appeal.3. For the last more than three years, the appellant has beenvigorously pursuing, in public interest, the cases allegedlyinvolving loss of thousands of crores of rupees to the PublicExchequer due to arbitrary and illegal grant of licences at thebehest of Mr. A. Raja (respondent No. 2) who was appointed asMinister for Communication and Information Technology on16.5.2007 by the President on the advice of Dr. Manmohan Singh(respondent No. 1).  After collecting information about the grant oflicences, the appellant made detailed representation dated29.11.2008 to respondent No. 1 to accord sanction forprosecution of respondent No. 2 for offences under the 1988 Act.In his representation, the appellant pointed out that respondentNo. 2 had allotted new licences in 2G mobile services on ‘firstcome, first served’ basis to novice telecom companies, viz., SwanTelecom and Unitech, which was in clear violation of Clause 8 ofthe Guidelines for United Access Services Licence issued by theMinistry of Communication and Information Technology videletter No.10-21/2005-BS.I(Vol.II)/49 dated 14.12.2005 and,2thereby, caused loss of over Rs. 50,000 crores to the Government.The appellant gave details of the violation of Clause 8 and pointedout that the two officers, viz., R.J.S. Kushwaha and D. Jha of theDepartment of Telecom, who had opposed the showing of unduefavour to Swan Telecom, were transferred just before the grant oflicences and Bharat Sanchar Nigam Limited (BSNL) which hadnever entered into a roaming agreement with any operator, wasforced to enter into such an agreement with Swan Telecom. Theappellant further pointed out that immediately after acquiring 2Gspectrum licences, Swan Telecom and Unitech sold their stakes toforeign companies, i.e., Etisalat, a telecom operator from UAE andTelenor of Norway respectively and, thereby, made huge profits atthe expense of public revenue. He claimed that by 2G spectrumallocation under respondent No. 2, the Government received onlyone-sixth of what it would have received if it had opted for anauction. The appellant pointed out how respondent No. 2 ignoredthe recommendations of the Telecom Regulatory Authority of India(TRAI) and gave totally unwarranted benefits to the two companiesand thereby caused loss to the Public Exchequer.  Some of theportions of the appellant’s representation are extracted below:3“Clause 8 has been violated as follows: While AnilDhirubhai Ambani Group (ADAG), the promoters ofReliance Communications (R Com), had more than 10per cent stake in Swan Telecom, the figures weremanipulated and showed as 9.99 per cent holding tobeat the said Clause.  The documents available disclosethat on March 2, 2007, when Swan Telecom applied forUnited Access Services Licences, it was owned 100 percent by Reliance Communications and its associatesviz. Reliance Telecom, and by Tiger Trustees Limited,Swan Infonet Services Private Limited, and SwanAdvisory Services Private Limited (see Annexure I).  Atone or the other point of time, employees of ADAG(Himanshu Agarwal, Ashish Karyekar, Paresh Rathod)or its associate companies have been acquiring theshares of Swan Telecom itself.  But still the ADAGmanipulated the holdings in Swan to reduce it to only9.99 per cent.  Ambani has now quietly sold his sharesin Swan to Delphi Investments, a Mauritius basedcompany owned by Ahmed O. Alfi, specializing inautomobile 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 highlysuspicious and not normal business transactions.Swan company got 60% of the 22 Telecom licencedareas at a throw away price of Rs.1650 crores, when itwas worth Rs.60,000 crores total.Room has operations in the same circles wherethe application for Swan Telecom was filed.  Therefore,under Clause 8 of the Guidelines, Swan should nothave been allotted spectrum by the TelecommunicationMinistry.  But the company did get it on Minister’sdirection, which is an undue favour from him (Raja).There was obviously a quid pro quo which only a CBIenquiry can reveal, after an FIR is registered.  There isno need for a P/E, because the CVC has already donethe preliminary enquiry.Quite surprisingly, the 2G spectrum licences werepriced at 2001 levels to benefit these private players.That was when there were only 4 million cellphone4subscribers; now it is 350 million.  Hence 2001 price isnot applicable today.Immediately after acquiring 2G spectrum licences bothSwan and Unitech sold their stakes to foreigncompanies at a huge profits.  While Swan Telecom soldits stakes to UAE telecom operator Etisalat, Unitechsigned a deal with Telenor of Norway for selling itsshare at huge premiums.In the process of this 2G spectrum allocation, thegovernment received only one-sixth of what it wouldhave got had it gone through a fresh auction route.The total loss to the exchequer of giving away 2G GSMspectrum in this way – including to the CDMAoperators – is over Rs.50,000 crores and is said to beone of the biggest financial scams of all times in thecountry.While approving the 2G licences, Minister Rajaturned a blind eye to the fact that these two companiesdo not have any infrastructure to launch their services.Falsely claiming that the Telecom Regulatory Authorityof India had approved the first-cum-first served rule,Raja went ahead with the 2G spectrum allocation totwo debutants in the Telecom sector.  In fact earlierTRAI had discussed the spectrum allocation issue withexisting services providers and suggested to theTelecom Ministry that spectrum allocation be madethrough a transparent tender and auction process.This is confirmed by what the TRAI Chairman N. Misratold the CII organized conference on November 28,2008 (Annexure 2).  But Raja did not bother to listen tothe TRAI either and pursued the process on ‘first come,first served’ basis, benefiting those who had insideinformation, causing a loss of Rs.50,000 crores to theGovernment.  His dubious move has been to ensurebenefit to others at the cost of the national exchequer.”The request made in the representation, which was reliedupon by the learned Attorney General for showing that the5appellant had himself asked for an investigation, is also extractedbelow:“According to an uncontradicted report in CNN-IBNnews channel of November 26, 2008, you are said to be“very upset with A. Raja over the spectrum allocationissue”.  This confirms that an investigation isnecessary, for which I may be given sanction so thatthe process of law can be initiated.I, therefore, writ to demand the grant of sanction toprosecute Mr. A. Raja, Minister for Telecom of theUnion of India for offences under the Prevention ofCorruption Act.  The charges in brief are annexedherewith (Annexure 3).”       4. Since the appellant did not receive any response fromrespondent No.1, he sent letters dated 30.5.2009, 23.10.2009,31.10.2009, 8.3.2010 and 13.3.2010 and reiterated hisrequest/demand for grant of sanction to prosecute respondentNo.2.  In his letter dated 31.10.2009, the appellant referred to thefact that on being directed by the CVC, the Central Bureau ofInvestigation (CBI) had registered a first information report, andclaimed that prima facie case is established against respondentNo. 2 for his prosecution under Sections 11 and 13(1)(d) of the1988 Act.  The appellant also claimed that according to variousSupreme Court judgments it was not necessary to carry out adetailed inquiry, and he had produced sufficient evidence for6grant of sanction to initiate criminal prosecution againstrespondent No. 2 for the misuse of authority and pecuniary gainsfrom corrupt practices.  In his subsequent letters, the appellantagain asserted that the nation had suffered loss of nearlyRs.65,000 crores due to arbitrary, unreasonable and mala fideaction of respondent No.2.  In letter dated 13.3.2010, theappellant referred to the proceedings of the case in which thisCourt refused to interfere with the order of the Delhi High Courtdeclaring that the decision of respondent No.2 to change the cutoff date fixed for consideration of applications made for grant oflicences was arbitrary and mala fide.5. After 1 year and 4-1/2 months of the first letter written byhim, Secretary, Department of Personnel and Training, Ministry ofPersonnel sent letter dated 19.3.2010 to the appellant mentioningtherein that the CBI had registered a case on 21.10.2009 againstunknown officers of the Department of Telecommunications (DoT),unknown private persons/companies and others and that theissue of grant of sanction for prosecution would arise only afterperusal of the evidence collected by the investigating agency andother material provided to the Competent Authority and that it7would be premature to consider sanction for prosecution at thatstage.6. On receipt of the aforesaid communication, the appellantfiled Civil Writ Petition No. 2442/2010 in the Delhi High Courtand prayed for issue of a mandamus to respondent No.1 to passan order for grant of sanction for prosecution of respondent No. 2.The Division Bench of the Delhi High Court referred to thesubmission of the learned Solicitor General that when respondentNo. 1 has directed investigation by the CBI and the investigationis in progress, it is not permissible to take a decision on theapplication of the appellant either to grant or refuse the sanctionbecause that may affect the investigation, and dismissed the writpetition by recording the following observations: “The question that emanates for consideration iswhether, at this stage, when the investigation by theCBI is in progress and this Court had earlier declinedto monitor the same by order dated 25th May, 2010,which has been pressed into service by the learnedSolicitor General of India, it would be appropriate todirect the respondent no. 1 to take a decision asregards the application submitted by the petitionerseeking sanction to prosecute.In our considered opinion, when the matter is beinginvestigated by the CBI, and the investigation is inprogress, it would not be in fitness of things to issue amandamus to the first respondent to take a decision onthe application of the petitioner.”87. The special leave petition filed by the appellant, out of whichthis appeal arises, was initially taken up for consideration alongwith SLP(C) No. 24873/2010 filed by the Center for Public InterestLitigation against order dated 25.5.2010 passed by the DivisionBench of the High Court in Writ Petition (Civil) No. 3522/2010 towhich reference had been made in the impugned order.  Duringthe course of hearing of the special leave petition filed by theappellant, the learned Solicitor General, who had appeared onbehalf of respondent No. 1, made a statement that he has got therecord and is prepared to place the same before the Court.However, keeping in view the fact that the record sought to beproduced by the learned Solicitor General may not be readilyavailable to the appellant, the Court passed order dated18.11.2010 requiring the filing of an affidavit on behalf ofrespondent No. 1. Thereafter, Shri V. Vidyavati, Director in thePMO filed affidavit dated 20.11.2010, which reveals the followingfacts: “(i) On 1.12.2008, the Prime Minister perused the letterand noted “Please examine and let me know the facts ofthis case”. This was marked to the Principal Secretaryto the Prime Minister who in turn marked it to theSecretary. The Secretary marked it to me as Director inthe PMO. I prepared a note dated 5.12.2008 factually9summarizing the allegations and seeking approval toobtain the factual position from the sectoral side (in thePMO dealing with Telecommunications).(ii) On 11.12.2008, a copy of appellant’s letter dated29.11.2008 was sent to the Secretary, Department ofTelecommunication for submitting a factual report.The Department of Telecommunication sent reply dated13.02.2009 incorporating his comments.(iii) In the meanwhile, letters dated 10.11.2008 and22.11.2008 were received from Shri Gurudas Guptaand Shri Suravaran Sudhakar Reddy respectively(copies of these letters have not been produced beforethe Court). The same were forwarded to the Departmentof Telecommunication on 25.03.2009 for sending anappropriate reply to the appellant. (iv) On 01.06.2009, letter dated 30.05.2009 receivedfrom the appellant was placed before respondent No.1,who recorded the following endorsement “pleaseexamine and discuss”.(v) On 19.06.2009, the Director of the concerned Sectorin the PMO recorded that the Minister ofTelecommunications and Information Technology hassent D.O. letter dated 18.06.2009 to the appellant.When letter dated 23.10.2009 of the appellant wasplaced before respondent No.1, he recorded anendorsement on 27.10.2009 “please discuss”.(vi) In response to letter dated 31.10.2009 of theappellant, respondent No.1 made an endorsement“please examine”.(vii) On 18.11.2009, respondent No.1 stated thatMinistry of Law and Justice should examine andadvice. The advice of Ministry of Law and Justice wasreceived on 8.2.2010.  Para 7 thereof was as follows: “From the perusal of letter dated 23.10.2009 and31.10.2009, it is noticed that Shri Swamy wantsto rely upon the action and investigation of theCBI to collaborate and strengthen the said10allegation leveled by him against Shri A. Raja,Minister for Communication and InformationTechnology. It is specifically mentioned in Para 2of the letter dated 31.10.2009 of Shri Swamy thatthe FIR was registered by the CBI and “thesubstance of the allegation made by me in theabove cited letters to you are already underinvestigation”. If it is so, then it may be stated thatdecision to accord of sanction of prosecution maybe determined only after the perusal of theevidence (oral or documentary) collected by theinvestigation agency, i.e., CBI and other materialsto be provided to the competent authority.”(viii) On 05.03.2010, the deponent prepared a note thatan appropriate reply be sent to the appellant in thelight of the advice given by the Law Department andfinal reply was sent to the appellant after respondentNo.1 had approved note dated 17.03.2010.”8. The appellant filed rejoinder affidavit on 22.11.2010 alongwith a copy of letter dated 18.6.2009 written to him by respondentNo. 2 in the context of representation dated 29.11.2008 submittedby him to respondent No.1. 9. Although, respondent No.2 resigned from the Council ofMinisters on 14.11.2010, the appellant submitted that the issuesrelating to his right to file a complaint for prosecution ofrespondent No.2 and grant of sanction within the time specified inthe judgment in Vineet Narain’s case should be decided.1110. During the course of hearing, the learned Attorney Generalfiled written submissions.  After the hearing concluded, thelearned Attorney General filed supplementary written submissionsalong with a compilation of 126 cases in which the sanction forprosecution is awaited for periods ranging from more than oneyear to few months11. Final order in this case was deferred because it was felt thatthe directions given by this Court in Vineet Narain’s case mayrequire further elaboration in the light of the order passed in CivilAppeal No. 10660/2010 (arising out of SLP(C) No. 24873/2010)and the fact that decision on the question of grant of sanctionunder the 1988 Act and other statutes is pending for a sufficientlylong time in 126 cases. However, as the investigation with regardto some of the facets of what has come to be termed as 2G case isyet to be completed, we have considered it appropriate to passfinal order in the matter.12. Appellant Dr. Subramanian Swamy argued that the embargocontained in Section 19(1) of the 1988 Act operates only againstthe taking of cognizance by the Court in respect of offencespunishable under Sections 7, 10, 11, 13 and 15 committed by apublic servant,  but there is no bar to the filing of a private12complaint for prosecution of the concerned public servant andgrant of sanction by the Competent Authority, and thatrespondent No. 1 was duty bound to take appropriate decision onhis representation within the time specified in clause I(15) of thedirections contained in paragraph 58 of Vineet Narain’s case,more so because he had placed sufficient evidence to show thatrespondent No.2 had committed offences under the 1988 Act. 13. The learned Attorney General argued that the question ofgrant of sanction for prosecution of a public servant charged withany of the offences enumerated in Section 19(1) arises only at thestage when the Court decides to take cognizance and any requestmade prior to that is premature.  He submitted that the embargocontained in Section 19(1) of the Act is applicable to the Courtwhich is competent to take cognizance of an offence punishableunder Sections 7, 10, 11, 13 and 15 alleged to have beencommitted by a public servant and there is no provision for grantof sanction at a stage before the competent Court applies its mindto the issue of taking cognizance. Learned Attorney General reliedupon the judgment of the Calcutta High Court in Superintendentand Remembrancer of Legal Affairs v. Abani Kumar Banerjee AIR1950 Cal. 437 as also the judgments of this Court in R.R. Chari v.13State of Uttar Pradesh 1951 SCR 312, DevarapalliLakshminarayana Reddy v. V. Narayana Reddy (1976) 3 SCC 252,Ram Kumar v. State of Haryana (1987) 1 SCC 476, Krishna Pillaiv. T.A. Rajendran, 1990 (Supp) SCC 121, State of West Bengal v.Mohd. Khalid (1995) 1 SCC 684, State through C.B.I. v. RajKumar Jain (1998) 6 SCC 551, K. Kalimuthu v. State (2005) 4SCC 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 theappellant for grant of sanction to prosecute respondent No.2 forthe alleged offences under the 1988 Act was wholly misconceivedand respondent No.1 did not commit any illegality orconstitutional impropriety by not entertaining his prayer, more sobecause the appellant had himself asked for an investigation intothe alleged illegal grant of licences at the behest of respondentNo.2.  Learned Attorney General further argued that the appellantdoes not have the locus standi to file a complaint for prosecutingrespondent No.2 because the CBI is already investigating theallegations of irregularity committed in the grant of licences for 2Gspectrum and the loss, if any, suffered by the Public Exchequer.1414. We have considered the respective submissions.  Section 19of the 1988 Act reads as under:“19. Previous sanction necessary for prosecution. – (1)No court shall take cognizance of an offence punishableunder sections 7, 10, 11, 13 and 15 alleged to havebeen committed by a public servant, except with theprevious sanction, – (a) in the case of a person who is employed inconnection with the affairs of the Union and is notremovable from his office save by or with thesanction of the Central Government, of thatGovernment;(b) in the case of a person who is employed inconnection with the affairs of a State and is notremovable from his office save by or with thesanction of the State Government, of thatGovernment;(c) in the case of any other person, of the authoritycompetent to remove him from his office.(2) Where for any reason whatsoever any doubt arisesas to whether the previous sanction as required undersub-section (1) should be given by the CentralGovernment or the State Government or any otherauthority, such sanction shall be given by thatGovernment or authority which would have beencompetent to remove the public servant from his officeat the time when the offence was alleged to have beencommitted.(3) Notwithstanding anything contained in the Code ofCriminal Procedure, 1973 (2 of 1974),-   (a) no finding, sentence or order passed by aspecial Judge shall be reversed or altered by acourt in appeal, confirmation or revision on theground of the absence of, or any error, omission orirregularity in, the sanction required under sub-15section (1), unless in the opinion of that court, afailure of justice has in fact been occasionedthereby;(b) no court shall stay the proceedings under thisAct on the ground of any error, omission orirregularity in the sanction granted by theauthority, unless it is satisfied that such error,omission or irregularity has resulted in a failure ofjustice;(c) no court shall stay the proceedings underthis Act on any other ground and no court shallexercise the powers of revision in relation to anyinterlocutory order passed in any inquiry, trial,appeal or other proceedings.(4) In determining under sub-section (3) whether theabsence of, or any error, omission or irregularity in,such sanction has occasioned or resulted in a failure ofjustice the court shall have regard to the fact whetherthe objection could and should have been raised at anyearlier stage in the proceedings. Explanation. – For the purposes of this section, (a) error includes competency of the authority togrant sanction;(b) a sanction required for prosecution includesreference to any requirement that the prosecutionshall be at the instance of a specified authority orwith the sanction of a specified person or anyrequirement of a similar nature.”15. The question whether sanction for prosecution of respondentNo.2 for the offences allegedly committed by him under the 1988Act is required even after he resigned from the Council ofMinisters, though he continues to be a Member of Parliament,16need not detain us because the same has already been answeredby the Constitution Bench in R. S. Nayak v. A. R. Antulay (1984) 2SCC 183 the relevant portions of which are extracted below:“Now if the public servant holds two offices and he isaccused of having abused one and from which he isremoved but continues to hold the other which isneither alleged to have been used (sic misused) norabused, is a sanction of the authority competent toremove him from the office which is neither alleged orshown to have been abused or misused necessary? Thesubmission is that if the harassment of the publicservant by a frivolous prosecution and criminal wasteof his time in law courts keeping him away fromdischarging public duty, are the objects underlyingSection 6, the same would be defeated if it is held thatthe sanction of the latter authority is not necessary.The submission does not commend to us. We fail to seehow the competent authority entitled to remove thepublic servant from an office which is neither alleged tohave been used (sic misused) or abused would be ableto decide whether the prosecution is frivolous ortendentious. An illustration was posed to the learnedcounsel that a minister who is indisputably a publicservant greased his palms by abusing his office asminister, and then ceased to hold the office before thecourt was called upon to take cognizance of the offenceagainst him and therefore, sanction as contemplated bySection 6 would not be necessary; but if aftercommitting the offence and before the date of taking ofcognizance of the offence, he was elected as a MunicipalPresident in which capacity he was a public servantunder the relevant municipal law, and was holding thatoffice on the date on which court proceeded to takecognizance of the offence committed by him as aminister, would a sanction be necessary and that too ofthat authority competent to remove him from the officeof the Municipal President. The answer was inaffirmative. But the very illustration would show thatsuch cannot be the law. Such an interpretation of17Section 6 would render it as a shield to anunscrupulous public servant. Someone interested inprotecting may shift him from one office of publicservant to another and thereby defeat the process oflaw. One can legitimately envisage a situation whereina person may hold a dozen different offices, each oneclothing him with the status of a public servant underSection 21 IPC and even if he has abused only oneoffice for which either there is a valid sanction toprosecute him or he has ceased to hold that office bythe time court was called upon to take cognizance, yeton this assumption, sanction of 11 different competentauthorities each of which was entitled to remove himfrom 11 different public offices would be necessarybefore the court can take cognizance of the offencecommitted by such public servant, while abusing oneoffice which he may have ceased to hold. Such aninterpretation is contrary to all canons of constructionand leads to an absurd end product which of necessitymust be avoided. Legislation must at all costs beinterpreted in such a way that it would not operate as arogue's charter.We would however, like to make it abundantly clearthat if the two decisions purport to lay down that evenif a public servant has ceased to hold that office aspublic servant which he is alleged to have abused ormisused for corrupt motives, but on the date of takingcognizance of an offence alleged to have beencommitted by him as a public servant which he ceasedto be and holds an entirely different public office whichhe is neither alleged to have misused or abused forcorrupt motives, yet the sanction of authoritycompetent to remove him from such latter office wouldbe necessary before taking cognizance of the offencealleged to have been committed by the public servantwhile holding an office which he is alleged to haveabused or misused and which he has ceased to hold,the decision in our opinion, do not lay down the correctlaw and cannot be accepted as making a correctinterpretation of Section 6.”1816. The same view has been taken in Habibullsa Khan v. State ofOrissa (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’scase, it was argued that the observations made in para 25 of thejudgment in Antulay’s case are obiter.  While negating thissubmission, the Court observed :      “Hence, it is difficult to accept the contention raised byMr. U.R. Lalit, the learned Senior Counsel for thepetitioner that the aforesaid finding given by this Courtin Antulay case is obiter.Further, under Section 19 of the PC Act, sanction is tobe given by the Government or the authority whichwould have been competent to remove the publicservant from his office at the time when the offence wasalleged to have been committed. The question ofobtaining sanction would arise in a case where theoffence has been committed by a public servant who isholding the office and by misusing or abusing thepowers of the office, he has committed the offence. Theword “office” repeatedly used in Section 19 would meanthe “office” which the public servant misuses or abusesby 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 offencepunishable under Sections 7, 10, 11, 13 and 15alleged to have been committed by a publicservant, except with the previous sanction,—(a) in the case of a person who is employed inconnection with the affairs of the Union and is not19removable from his office save by or with thesanction of the Central Government, of thatGovernment;(b) in the case of a person who is employed inconnection with the affairs of a State and is notremovable from his office save by or with thesanction of the State Government, of thatGovernment;(c) in the case of any other person, of the authoritycompetent to remove him from his office.(2) Where for any reason whatsoever any doubtarises as to whether the previous sanction asrequired under sub-section (1) should be given bythe Central Government or the State Governmentor any other authority, such sanction shall begiven by that Government or authority whichwould have been competent to remove the publicservant from his office at the time when theoffence was alleged to have been committed.”   Clauses (  a   ) and (  b   ) of sub-section (1) specifically providethat in case of a person who is employed and is notremovable from his office by the Central Government or   the State Government, as the case may be,    sanction   toprosecute is required to be obtained either from theCentral Government or the State Government. Theemphasis is on the words “who is employed” inconnection with the affairs of the Union or the StateGovernment. If he is not employed then Section 19nowhere provides for obtaining such sanction. Further,under sub-section (2), the question of obtainingsanction is relatable to the time of holding the officewhen the offence was alleged to have been committed.In case where the person is not holding the said officeas he might have retired, superannuated, be dischargedor dismissed then the question of removing would notarise. Admittedly, when the alleged offence wascommitted, the petitioner was appointed by the CentralGovernment. He demitted his office after completion of20five years' tenure. Therefore, at the relevant time whenthe charge-sheet was filed, the petitioner was notholding the office of the Chairman of Goa Shipyard Ltd.Hence, there is no question of obtaining any previoussanction of the Central Government.”(emphasis supplied)17. The same view was reiterated in Parkash Singh Badal’s caseand the argument that even though some of the accused personshad ceased to be Ministers, they continued to be the Members ofthe Legislative Assembly and one of them was a Member ofParliament and as such cognizance could not be taken againstthem without prior sanction, was rejected.18. The next question which requires consideration is whetherthe appellant has the locus standi to file a complaint forprosecution of respondent No.2 for the offences allegedlycommitted by him under the 1988 Act.   There is no provisioneither in the 1988 Act or the Code of Criminal Procedure, 1973(CrPC) which bars a citizen from filing a complaint for prosecutionof a public servant who is alleged to have committed an offence.Therefore, the argument of the learned Attorney General that theappellant cannot file a complaint for prosecuting respondent No.2merits rejection.  A similar argument was negatived by theConstitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak21(1984) 2 SCC 500.  The facts of that case show that on a privatecomplaint filed by the respondent, the Special Judge tookcognizance of the offences allegedly committed by the appellant.The latter objected to the jurisdiction of the Special Judge on twocounts, including the one that the Court set up under Section 6 ofthe Criminal Law Amendment Act, 1952 (for short, ‘the 1952 Act’)was not competent to take cognizance of any of the offencesenumerated in Section 6(1)(a) and (b) upon a private complaint.His objections were rejected by the Special Judge.  The revisionfiled by the appellant was heard by the Division Bench of the HighCourt which ruled that a Special Judge is competent and isentitled 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 underSection 5A of the Prevention of Corruption Act, 1947 (for short,‘the 1947 Act’) by a police officer of the designated rank is not sinequa non for taking cognizance of an offence under Section 8(1) ofthe 1952 Act.  Before the Supreme Court, the argument againstthe locus standi of the respondent was reiterated and it wassubmitted that Section 5A of the 1947 Act is mandatory and aninvestigation by the designated officer is a condition precedent to22the taking of cognizance by the Special Judge of an offence oroffences committed by a public servant. While dealing with theissue relating to maintainability of a private complaint, theConstitution Bench observed:“It is a well recognised principle of criminaljurisprudence that anyone can set or put the criminallaw into motion except where the statute enacting orcreating an offence indicates to the contrary. Thescheme of the Code of Criminal Procedure envisagestwo parallel and independent agencies for takingcriminal offences to court. Even for the most seriousoffence of murder, it was not disputed that a privatecomplaint can, not only be filed but can be entertainedand proceeded with according to law. Locus standi ofthe complainant is a concept foreign to criminaljurisprudence save and except that where the statutecreating an offence provides for the eligibility of thecomplainant, by necessary implication the generalprinciple gets excluded by such statutory provision.Numerous statutory provisions, can be referred to insupport of this legal position such as (i) Section 187-Aof Sea Customs Act, 1878 (ii) Section 97 of Gold ControlAct, 1968 (iii) Section 6 of Import and Export ControlAct, 1947 (iv) Section 271 and Section 279 of theIncome Tax Act, 1961 (v) Section 61 of the ForeignExchange Regulation Act, 1973, (vi) Section 621 of theCompanies Act, 1956 and (vii) Section 77 of theElectricity Supply Act. This list is only illustrative andnot exhaustive. While Section 190 of the Code ofCriminal Procedure permits anyone to approach theMagistrate with a complaint, it does not prescribe anyqualification the complainant is required to fulfil to beeligible to file a complaint. But where an eligibilitycriterion for a complainant is contemplated specificprovisions have been made such as to be found inSections 195 to 199 of the CrPC. These specificprovisions clearly indicate that in the absence of anysuch statutory provision, a locus standi of a23complainant is a concept foreign to criminaljurisprudence. In other words, the principle thatanyone can set or put the criminal law in motionremains intact unless contra-indicated by a statutoryprovision. This general principle of nearly universalapplication is founded on a policy that an offence act or omission made punishable by any law for thetime being in force is not merely an offence committedrelation to the person who suffers harm but is also anoffence against society. The society for its orderly andpeaceful development is interested in the punishmentof the offender. Therefore, prosecution for seriousoffences is undertaken in the name of the Staterepresenting the people which would exclude anyelement of private vendetta or vengeance. If such is thepublic policy underlying penal statutes, who brings anact or omission made punishable by law to the notice ofthe authority competent to deal with it, is immaterialand irrelevant unless the statute indicates to thecontrary. Punishment of the offender in the interest ofthe society being one of the objects behind penalstatutes enacted for larger good of the society, right toinitiate proceedings cannot be whittled down,circumscribed or fettered by putting it into a straitjacket formula of locus standi unknown to criminaljurisprudence, save and except specific statutoryexception. To hold that such an exception exists that aprivate complaint for offences of corruption committedby public servant is not maintainable, the court wouldrequire an unambiguous statutory provision and atangled web of argument for drawing a far fetchedimplication, cannot be a substitute for an expressstatutory provision.”(emphasis supplied)The Constitution Bench then considered whether the SpecialJudge can take cognizance only on the basis of a police report andanswered the same in negative in the following words:24“In the matter of initiation of proceeding before aSpecial Judge under Section 8(1), the Legislature whileconferring power to take cognizance had threeopportunities to unambiguously state its mind whetherthe cognizance can be taken on a private complaint ornot. The first one was an opportunity to provide inSection 8(1) itself by merely stating that the SpecialJudge may take cognizance of an offence on a policereport submitted to it by an investigating officerconducting investigation as contemplated by Section 5-A. While providing for investigation by designated policeofficers of superior rank, the Legislature did not fetterthe power of Special Judge to take cognizance in amanner otherwise than on police report. The secondopportunity was when by Section 8(3) a status of adeemed public prosecutor was conferred on a privatecomplainant if he chooses to conduct the prosecution.The Legislature being aware of a provision like the onecontained in Section 225 of the CrPC, could have aswell provided that in every trial before a Special Judgethe prosecution shall be conducted by a PublicProsecutor, though that itself would not have beendecisive of the matter. And the third opportunity waswhen the Legislature while prescribing the procedureprescribed for warrant cases to be followed by SpecialJudge did not exclude by a specific provision that theonly procedure which the Special Judge can follow isthe one prescribed for trial of warrant cases on a policereport. The disinclination of the Legislature to soprovide points to the contrary and no canon ofconstruction permits the court to go in search of ahidden or implied limitation on the power of the SpecialJudge to take cognizance unfettered by suchrequirement of its being done on a police report alone.In our opinion, it is no answer to this fairly wellestablished legal position that for the last 32 years nocase has come to the notice of the court in whichcognizance was taken by a Special Judge on a privatecomplaint for offences punishable under the 1947 Act.”(emphasis supplied)25The Court then referred to Section 5A of the 1947 Act, theprovisions of the 1952 Act, the judgments in H.N. Rishbud andInder 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. MaheshChandra AIR 1957 M.B. 43 and held:“Having carefully examined these judgments in the lightof the submissions made, the only conclusion thatunquestionably emerges is that Section 5-A is asafeguard against investigation of offences committedby public servants, by petty or lower rank police officer.It has nothing to do directly or indirectly with the modeand method of taking cognizance of offences by theCourt of Special Judge. It also follows as a necessarycorollary that provision of Section 5-A is not a conditionprecedent to initiation of proceedings before the SpecialJudge who acquires power under Section 8(1) to take   cognizance of offences enumerated in Section 6(1)(  a  )   and (  b   ), with this limitation alone that it shall not beupon commitment to him by the Magistrate.Once the contention on behalf of the appellant thatinvestigation under Section 5-A is a conditionprecedent to the initiation of proceedings before aSpecial Judge and therefore cognizance of an offencecannot be taken except upon a police report, does notcommend to us and has no foundation in law, it isunnecessary to refer to the long line of decisions   commencing from    Taylor   v.    Taylor   ;    Nazir Ahmad   v.   King-Emperor   and ending with    Chettiam Veettil   Ammad   v.    Taluk Land Board   , laying down hithertouncontroverted legal principle that where a statuterequires to do a certain thing in a certain way, thething must be done in that way or not at all. Othermethods of performance are necessarily forbidden.Once Section 5-A is out of the way in the matter oftaking cognizance of offences committed by publicservants by a Special Judge, the power of the Special26Judge to take cognizance of such offences conferred bySection 8(1) with only one limitation, in any one of theknown methods of taking cognizance of offences bycourts of original jurisdiction remains undented. Onesuch statutorily recognised well-known method oftaking cognizance of offences by a court competent totake cognizance is upon receiving a complaint of factswhich constitutes the offence. And Section 8(1) saysthat the Special Judge has the power to takecognizance of offences enumerated in Section 6(1)(a)and (b) and the only mode of taking cognizanceexcluded by the provision is upon commitment. Ittherefore, follows that the Special Judge can takecognizance of offences committed by public servantsupon receiving a complaint of facts constituting suchoffences.It was, however, submitted that even if it be held thatthe Special Judge is entitled to entertain a privatecomplaint, no further steps can be taken by himwithout directing an investigation under Section 5-A sothat the safeguard of Section 5-A is not whittled down.This is the selfsame argument under a differentapparel. Accepting such a submission wouldtantamount to saying that on receipt of the complaintthe Special Judge must direct an investigation underSection 5-A, There is no warrant for such an approach.Astounding as it appeared to us, in all solemnity it wassubmitted that investigation of an offence by a superiorpolice officer affords a more solid safeguard comparedto a court. Myopic as this is, it would topsy turvy thefundamental belief that to a person accused of anoffence there is no better safeguard than a court. Andthis is constitutionally epitomised in Article 22 thatupon arrest by police, the arrested person must beproduced before the nearest Magistrate within twentyfour hours of the arrest. Further, numerous provisionsof the Code of Criminal Procedure such as Section 161,Section 164, and Section 25 of the Indian Evidence Actwould show the Legislature's hesitation in placingconfidence on police officers away from court's gaze.And the very fact that power is conferred on aPresidency Magistrate or Magistrate of the first class to27permit police officers of lower rank to investigate theseoffences would speak for the mind of the Legislaturethat the court is a more reliable safeguard than evensuperior 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 complaintfor prosecution of respondent No.2 in respect of the offencesallegedly committed by him under the 1988 Act. 20. The argument of the learned Attorney General that thequestion of granting sanction for prosecution of a public servantcharged with an offence under the 1988 Act arises only at thestage of taking cognizance and not before that is neithersupported by the plain language of the section nor the judicialprecedents relied upon by him.  Though, the term ‘cognizance’ hasnot been defined either in the 1988 Act or the CrPC, the same hasacquired a definite meaning and connotation from various judicialprecedents.  In legal parlance cognizance is “taking judicial noticeby the court of law, possessing jurisdiction, on a cause or matterpresented before it so as to decide whether there is any basis forinitiating proceedings and determination of the cause or matterjudicially”.  In R. R. Chari v. State of U.P. (1951) SCR 312, the28three Judge Bench approved the following observations made bythe Calcutta High Court in Superintendent and Remembrancer ofLegal Affairs, West Bengal v. Abni Kumar Banerjee (supra):"What is taking cognizance has not been defined in theCriminal Procedure Code and I have no desire toattempt to define it. It seems to me clear however thatbefore it can be said that any magistrate has takencognizance of any offence under section 190(1)(a),Criminal Procedure Code, he must not only haveapplied his mind to the contents of the petition but hemust have done so for the purpose of proceeding in aparticular way as indicated in the subsequentprovisions of this Chapter - proceeding under section200 and thereafter sending it for inquiry and reportunder section 202. When the magistrate applies hismind not for the purpose of proceeding under thesubsequent sections of this Chapter, but for takingaction of some other kind, e.g. ordering investigationunder section 156(3), or issuing a search warrant forthe purpose of the investigation, he cannot be said tohave taken cognizance of the offence.”21.  In Mohd. Khalid’s case, the Court referred to Section 190 ofthe CrPC and observed :“In its broad and literal sense, it means taking notice ofan offence. This would include the intention ofinitiating judicial proceedings against the offender inrespect of that offence or taking steps to see whetherthere is any basis for initiating judicial proceedings orfor other purposes. The word ‘cognizance’ indicates thepoint when a Magistrate or a Judge first takes judicialnotice of an offence. It is entirely a different thing frominitiation of proceedings; rather it is the conditionprecedent to the initiation of proceedings by the29Magistrate or the Judge. Cognizance is taken of casesand not of persons.”22. In Pastor P. Raju’s case, this Court referred to the provisionsof Chapter XIV and Sections 190 and 196 (1-A) of the CrPC andobserved : “There is no bar against registration of a criminal caseor investigation by the police agency or submission of areport by the police on completion of investigation, ascontemplated by Section 173 CrPC. If a criminal case isregistered, investigation of the offence is done and thepolice submits a report as a result of such investigationbefore a Magistrate without the previous sanction of theCentral Government or of the State Government or ofthe District Magistrate, there will be no violation ofSection 196(1-A) CrPC and no illegality of any kindwould be committed.”The Court then referred to some of the precedents includingthe judgment in Mohd. Khalid’s case and observed :“It is necessary to mention here that taking cognizanceof an offence is not the same thing as issuance ofprocess. Cognizance is taken at the initial stage whenthe Magistrate applies his judicial mind to the factsmentioned in a complaint or to a police report or uponinformation received from any other person that anoffence has been committed. The issuance of process isat a subsequent stage when after considering thematerial placed before it the court decides to proceedagainst the offenders against whom a prima facie caseis made out.”3023. In Kalimuthu’s case, the only question considered by thisCourt was whether in the absence of requisite sanction underSection 197 CrPC, the Special Judge for CBI cases, Chennai didnot have the jurisdiction to take cognizance of the allegedoffences.  The High Court had taken the view that Section 197was not applicable to the appellant’s case.  Affirming the viewtaken by the High Court, this Court observed : “The question relating to the need of sanction underSection 197 of the Code is not necessarily to beconsidered as soon as the complaint is lodged and onthe allegations contained therein. This question mayarise at any stage of the proceeding. The questionwhether sanction is necessary or not may have to bedetermined from stage to stage. Further, in cases whereoffences under the Act are concerned, the effect ofSection 197, dealing with the question of prejudice hasalso to be noted.”24. In Raj Kumar Jain’s case, this Court considered the questionwhether the CBI was required to obtain sanction from theprosecuting authority before approaching the Court for acceptingthe report under Section 173(2) of the CrPC.  This question wasconsidered in the backdrop of the fact that the CBI, which hadinvestigated the case registered against the respondent underSection 5(2) read with Section 5(1)(e) of the 1947 Act found thatthe allegation made against the respondent could not be31substantiated.  The Special Judge declined to accept the reportsubmitted under Section 173(2) CrPC by observing that the CBIwas required to place materials collected during investigationbefore the sanctioning authority and it was for the concernedauthority to grant or refuse sanction.  The Special Judge opinedthat only after the decision of the sanctioning authority, the CBIcould submit the report under Section 173(2).  The High Courtdismissed the petition filed by the CBI and confirmed the order ofthe Special Judge.  This Court referred to Section 6(1) of the 1947Act and observed: “From a plain reading of the above section it isevidently clear that a court cannot take cognizance ofthe offences mentioned therein without sanction of theappropriate authority. In enacting the above section,the legislature thought of providing a reasonableprotection to public servants in the discharge of theirofficial functions so that they may perform their dutiesand obligations undeterred by vexatious andunnecessary prosecutions. Viewed in that context, theCBI was under no obligation to place the materialscollected during investigation before the sanctioningauthority, when they found that no case was made outagainst the respondent. To put it differently, if the CBIhad found on investigation that a prima facie case wasmade out against the respondent to place him on trialand accordingly prepared a charge-sheet (challan)against him, then only the question of obtainingsanction of the authority under Section 6(1) of the Actwould have arisen for without that the Court would notbe competent to take cognizance of the charge-sheet. Itmust, therefore, be said that both the Special Judgeand the High Court were patently wrong in observing32that the CBI was required to obtain sanction from theprosecuting authority before approaching the Court foraccepting the report under Section 173(2) CrPC.”25. In our view, the decisions relied upon by the learnedAttorney General do not have any bearing on the moot questionwhether respondent No.1, being the Competent Authority tosanction prosecution of respondent No.2, was required to takeappropriate decision in the light of the direction contained inVineet Narain’s case. 26. Before proceeding further, we would like to add that at thetime of taking cognizance of the offence, the Court is required toconsider the averments made in the complaint or the charge sheetfiled under Section 173.  It is not open for the Court to analysethe evidence produced at that stage and come to the conclusionthat no prima facie case is made out for proceeding further in thematter. However, before issuing the process, it that it is open tothe Court to record the evidence and on consideration of theaverments made in the complaint and the evidence thus adduced,find out whether an offence has been made out. On finding thatsuch an offence has been made out the Court may direct the issueof process to the respondent and take further steps in the matter.33If it is a charge-sheet filed under Section 173 CrPC, the factsstated by the prosecution in the charge-sheet, on the basis of theevidence collected during investigation, would disclose the offencefor which cognizance would be taken by the Court. Thus, it is notthe province of the Court at that stage to embark upon and shiftthe evidence to come to the conclusion whether or not an offencehas been made out.27. We may also observe that grant or refusal of sanction is nota quasi judicial function and the person for whose prosecution thesanction is sought is not required to be heard by the CompetentAuthority before it takes a decision in the matter.   What isrequired to be seen by the Competent Authority is whether thefacts placed before it which, in a given case, may include thematerial collected by the complainant or the investigating agencyprima facie disclose commission of an offence by a public servant.If the Competent Authority is satisfied that the material placedbefore it is sufficient for prosecution of the public servant, then itis required to grant sanction. If the satisfaction of the CompetentAuthority is otherwise, then it can refuse sanction. In either case,the decision taken on the complaint made by a citizen is required34to be communicated to him and if he feels aggrieved by suchdecision, then he can avail appropriate legal remedy.28. In Vineet Narain’s case, the Court entertained the writpetitions filed in public interest for ensuring investigation intowhat came to be known as ‘Hawala case’.  The writ petitionremained pending for almost four years.  During that period,several interim orders were passed which are reported as VineetNarain 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) 5SCALE 254.  The final order was passed in Vineet Narain v. Unionof India (1998) 1 SCC 226.  In (1996) 2 SCC 199, the Courtreferred to the allegations made in the writ petition thatGovernment agencies like the CBI and the revenue authoritieshave failed to perform their duties and legal obligations inasmuchas they did not investigate into the matters arising out of seizureof the so-called “Jain Diaries” in certain raids conducted by theCBI. The Court took note of the allegation that the arrest of someterrorists led to the discovery of financial support to them byclandestine and illegal means and a nexus between severalimportant politicians, bureaucrats and criminals, who were35recipients of money from unlawful sources, and proceeded toobserve: “The facts and circumstances of the present case doindicate that it is of utmost public importance that thismatter is examined thoroughly by this Court to ensurethat all government agencies, entrusted with the dutyto discharge their functions and obligations inaccordance with law, do so, bearing in mind constantlythe concept of equality enshrined in the Constitutionand the basic tenet of rule of law: “Be you ever so high,the law is above you.” Investigation into everyaccusation made against each and every person on areasonable basis, irrespective of the position and statusof that person, must be conducted and completedexpeditiously. This is imperative to retain publicconfidence in the impartial working of the governmentagencies.”29. After examining various facets of the matter in detail, thethree Judge Bench in its final order reported in (1998) 1 SCC 226observed :“These principles of public life are of general applicationin every democracy and one is expected to bear them inmind while scrutinising the conduct of every holder of apublic office. It is trite that the holders of public officesare entrusted with certain powers to be exercised inpublic interest alone and, therefore, the office is held bythem in trust for the people. Any deviation from thepath of rectitude by any of them amounts to a breach oftrust and must be severely dealt with instead of beingpushed under the carpet. If the conduct amounts to anoffence, it must be promptly investigated and theoffender against whom a prima facie case is made outshould be prosecuted expeditiously so that the majestyof law is upheld and the rule of law vindicated. It is the36duty 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 lifeleading to a high degree of corruption is manifold. Italso has adverse effect on foreign investment andfunding from the International Monetary Fund and theWorld Bank who have warned that future aid tounderdeveloped countries may be subject to therequisite steps being taken to eradicate corruption,which prevents international aid from reaching thosefor whom it is meant. Increasing corruption has led toinvestigative journalism which is of value to a freesociety. The need to highlight corruption in public lifethrough the medium of public interest litigationinvoking judicial review may be frequent in India but isnot unknown in other countries: R. v. Secy. of State forForeign and Commonwealth Affairs.”In paragraph 58 of the judgment, the Court gave severaldirections in relation to the CBI, the CVC and the EnforcementDirectorate.  In para 58 (I)(15), the Court gave the followingdirection: “Time-limit of three months for grant of sanction forprosecution must be strictly adhered to. However,additional time of one month may be allowed whereconsultation 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 Punjaband Haryana High Court in Jagjit Singh v. State of Punjab (1996)Crl. Law Journal 2962, State of Bihar v. P. P. Sharma 1991 Supp.1 SCC 222, Superintendent of Police (CBI) v. Deepak Chowdhary,37(1995) 6 SC 225, framed guidelines which were circulated videoffice order No.31/5/05 dated 12.5.2005.  The relevant clauses ofthe guidelines are extracted below:“2(i) Grant of sanction is an administrative act.  Thepurpose is to protect the public servant fromharassment by frivolous or vexatious prosecution andnot to shield the corrupt.  The question of givingopportunity to the public servant at that stage does notarise.  The sanctioning authority has only to seewhether the facts would prima-facie constitutes theoffence.(ii) The competent authority cannot embark upon aninquiry to judge the truth of the allegations on the basisof representation which may be filed by the accusedperson before the Sanctioning Authority, by asking theI.O. to offer his comments or to further investigate thematter in the light of representation made by theaccused person or by otherwise holding a parallelinvestigation/enquiry by calling for the record/report ofhis department.(vii) However, if in any case, the Sanctioning Authorityafter consideration of the entire material placed beforeit, entertains any doubt on any point the competentauthority may specify the doubt with sufficientparticulars and may request the Authority who hassought sanction to clear the doubt.  But that would beonly to clear the doubt in order that the authority mayapply its mind proper, and not for the purpose ofconsidering the representations of the accused whichmay be filed while the matter is pending sanction.38(viii) If the Sanctioning Authority seeks the commentsof the IO while the matter is pending before it forsanction, it will almost be impossible for theSanctioning Authority to adhere to the time limitallowed by the Supreme Court in Vineet Narain’s case.”31. The aforementioned guidelines are in conformity with the lawlaid down by this Court that while considering the issue regardinggrant or refusal of sanction, the only thing which the CompetentAuthority is required to see is whether the material placed by thecomplainant or the investigating agency prima facie disclosescommission of an offence.  The Competent Authority cannotundertake a detailed inquiry to decide whether or not theallegations made against the public servant are true. 32. In the light of the above discussion, we shall now considerwhether the High Court was justified in refusing to entertain thewrit petition filed by the appellant.  In this context, it is appositeto observe that the High Court had proceeded under a whollyerroneous assumption that respondent No.1 had directedinvestigation by the CBI into the allegations of grave irregularitiesin the grant of licences.  As a matter of fact, on receipt ofrepresentation dated 4.5.2009 that the grant of licences byrespondent No.2 had resulted in huge loss to the Public39Exchequer, the CVC got conducted an inquiry under Section 8(d)of the Central Vigilance Commission Act, 2003 and forwarded acopy of the report to the Director, CBI for making an investigationinto the matter to establish the criminal conspiracy in theallocation of 2G spectrum under the UASL policy of the DoT andto bring to book all the wrongdoers. Thereupon, the CBI registeredFIR No.RC-DI-2009-A-0045 dated 21.10.2009 against unknownofficials of the DoT, unknown private persons/companies andothers for offences under Section 120-B IPC read with Sections13(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 vigorousinvestigation only when this Court intervened in the matter.   Thematerial placed on record does not show that the CBI hadregistered a case or started investigation at the instance ofrespondent No.1.  33. On his part, the appellant had submitted representation torespondent No. 1 almost one year to the registration of the firstinformation report by the CBI and highlighted the graveirregularities committed in the grant of licences resulting in theloss of thousands of crores of rupees to the Public Exchequer.  Hecontinuously pursued the matter by sending letters to respondent40No.1 at regular intervals.  The affidavit filed by Shri V. Vidyawati,Director in the PMO shows that the matter was placed beforerespondent No.1 on 1.12.2008, who directed the concerned officerto examine and apprise him with the facts of the case.Surprisingly, instead of complying with the direction given byrespondent No.1 the concerned officer sent the appellant’srepresentation to the DoT which was headed by none other thanrespondent No.2 against whom the appellant had made seriousallegations of irregularities in the grant of licences.  It was naturalfor respondent No.2 to have seized this opportunity, and hepromptly sent letter dated 18.6.2009 to the appellant justifyingthe grant of licences. The concerned officer in the PMO thenreferred the matter to the Ministry of Law and Justice for advice.It is not possible to appreciate that even though the appellantrepeatedly wrote letters to respondent No.1 highlighting theseriousness of the allegations made in his first representation andthe fact that he had already supplied the facts and documentswhich could be made basis for grant of sanction to prosecuterespondent No.2 and also pointed out that as per the judgmentsof this Court, detailed inquiry was not required to be made intothe allegations, the concerned officers in the PMO kept the matter41pending and then took the shelter of the fact that the CBI hadregistered the case and the investigation was pending.  In ourview, the officers in the PMO and the Ministry of Law and Justice,were duty bound to apprise respondent No.1 about seriousness ofallegations made by the appellant and the judgments of this Courtincluding the directions contained in paragraph 58(I) of thejudgment in Vineet Narain’s case as also the guidelines framed bythe CVC so as to enable him to take appropriate decision in thematter. By the very nature of the office held by him, respondentNo. 1 is not expected to personally look into the minute details ofeach and every case placed before him and has to depend on hisadvisers and other officers. Unfortunately, those who wereexpected to give proper advice to respondent No. 1 and place fullfacts and legal position before him failed to do so. We have nodoubt that if respondent No.1 had been apprised of the truefactual and legal position regarding the representation made bythe appellant, he would have surely taken appropriate decisionand would not have allowed the matter to linger for a period ofmore than one year.34. In the result, the appeal is allowed.  The impugned order isset aside.  It is declared that the appellant had the right to file a42complaint for prosecuting respondent No.2.  However, keeping inview the fact that the Court of Special Judge, CBI has alreadytaken   cognizance   of  the    offences    allegedly   committed   byrespondent No.2 under the 1988 Act, we do not consider itnecessary to give any other direction in the matter.   At the sametime, we deem it proper to observe that in future every CompetentAuthority shall take appropriate action on the representationmade by a citizen for sanction of the prosecution of a publicservant strictly in accordance with the direction contained inVineet Narain v. Union of India (1998) 1 SCC 226 and theguidelines framed by the CVC.…..…..…….………………….…J.       [G.S. Singhvi]…..…..……..…..………………..J.      [Asok Kumar Ganguly]New Delhi,January 31, 2012.43REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL 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 TGANGULY, J.1. After going through the judgment rendered by mylearned brother G.S. Singhvi, J., I am inagreement with the various conclusions reached byHis Lordship. However, I have added my own viewson certain important facts of the questions raisedin this case.2. Brother Singhvi, J., has come to a finding thathaving regard to the very nature of the officeheld by respondent No.1, it may not be expected ofrespondent No.1 to personally look into the minute44details of each and every matter and therespondent No.1, having regard to the burden ofhis very onerous office, has to depend on theofficers advising him. At the same time it may benoted that in the course of submission, theappellant, who argued in person, did not everallege any malafide or lack of good faith againstthe respondent No.1. The delay which had takenplace in the office of the respondent No.1 isunfortunate but it has not even been alleged bythe appellant that there was any deliberate actionon the part of the respondent No.1 in causing thedelay. The position of respondent No.1 in ourdemocratic polity seems to have been summed up inthe words of Shakespeare “Uneasy lies the headthat wears a crown” (Henry, The Fourth, Part 2 Act3, scene 1).3. I also agree with the conclusions of botherSinghvi, J., that the appellant has the locus tofile the complaint for prosecution of therespondent No.2 in respect of the offences allegedto have been committed by him under the 1988 Act.45Therefore, I agree with the finding of brotherSinghvi, J., that the argument of the learnedAttorney General to the contrary cannot beaccepted. Apart from that the learned AttorneyGeneral in the course of his submission proceededon the basis that the question of sanction has tobe considered with reference to Section 19 of thePrevention of Corruption Act (hereinafter “theP.C. Act”) or with reference to Section 197 of theCode of Criminal Procedure, 1973 (hereinafter “theCode”), and the scheme of both the sections beingsimilar (Vide paragraph 3 of the supplementarywritten submission filed by the learned AttorneyGeneral). In fact, the entire submission of thelearned Attorney General is structured on theaforesaid assumption. I fail to appreciate theaforesaid argument as the same is contrary to thescheme of Section 19 of the P.C. Act and alsoSection 197 of the Code. In Kalicharan Mahapatravs. State of Orissa reported in (1998) 6 SCC 411,this Court compared Section 19 of P.C. Act withSection 197 of the Code. After considering several46decisions on the point and also consideringSection 6 of the old P.C. Act, 1947 which isalmost identical with Section 19 of the P.C. Act,1988 and also noting Law Commission’s Report, thisCourt in paragraph 13 of Kalicharan (supra) cameto the following conclusions:“13. The sanction contemplated inSection 197 of the Code concerns apublic servant who “is accused of anyoffence alleged to have been committedby him while acting or purporting to actin the discharge of his official duty”,whereas the offences contemplated in thePC Act are those which cannot be treatedas acts either directly or evenpurportedly done in the discharge of hisofficial duties. Parliament must havedesired to maintain the distinction andhence the wording in the correspondingprovision in the former PC Act wasmaterially imported in the new PC Act,1988 without any change in spite of thechange made in Section 197 of the Code.”4. The above passage in Kalicharan (supra) has beenquoted with approval subsequently by this Court inLalu Prasad vs. State of Bihar reported in 2007(1) SCC 49 at paragraph 9, page 54.  In paragraph10, (page 54 of the report) this Court held in47Lalu Prasad (supra) that “Section 197 of the Codeand Section 19 of the Act operate in conceptuallydifferent fields”.5. In view of such consistent view by this Court thebasic submission of the learned Attorney Generalto the contrary is, with respect, untenable.6. I also entirely agree with the conclusion oflearned brother Singhvi, J., that the argument ofthe learned Attorney General that question forgranting sanction for prosecution of a publicservant charged with offences under the 1988 Actarises only at the stage of cognizance is also notacceptable. 7. In formulating this submission, the learnedAttorney General substantially advanced twocontentions. The first contention is that an ordergranting sanction is not required to be filed48along with a complaint in connection with aprosecution under Section 19 of the P.C. Act. Theaforesaid submission is contrary to the settledlaw laid down by this Court in various judgments.Recently a unanimous three-judge Bench decision ofthis Court in the case of State of Uttar Pradeshvs. Paras Nath Singh, [(2009) 6 SCC 372], speakingthrough Justice Pasayat and construing therequirement of sanction, held that withoutsanction:“……The very cognizance is barred. Thatis, the complaint cannot be taken noticeof. According to Black's Law Dictionarythe word ‘cognizance’ means‘jurisdiction’ or ‘the exercise ofjurisdiction’ or ‘power to try anddetermine causes’. In common parlance,it means taking notice of. A court,therefore, is precluded fromentertaining a complaint or takingnotice of it or exercising jurisdictionif it is in respect of a public servantwho is accused of an offence alleged tohave been committed during discharge ofhis official duty.”(Para 6, page 375 of the report)8. The other contention of the learned AttorneyGeneral is that in taking cognizance under the49P.C. Act the Court is guided by the provisionsunder Section 190 of the Code and in support ofthat contention the learned Attorney Generalrelied on several judgments. However, theaforesaid submissions were made without noticingthe judgment of this Court in the case of DilawarSingh vs. Parvinder Singh alias Iqbal Singh andAnother (2005) 12 SCC 709. Dealing with Section 19of P.C. Act and Section 190 of the Code, thisCourt held in paragraph 8 at page 713 of thereport as follows:“……The Prevention of Corruption Act is aspecial statute and as the preambleshows, this Act has been enacted toconsolidate and amend the law relatingto the prevention of corruption and formatters connected therewith. Here, theprinciple expressed in the maximgeneralia specialibus non derogant wouldapply which means that if a specialprovision has been made on a certainmatter, that matter is excluded from thegeneral provisions. (See GoddeVenkateswara Rao v. Govt. of A.P., Stateof Bihar v. Dr. Yogendra Singh andMaharashtra State Board of Secondary andHigher Secondary Education v. ParitoshBhupeshkumar Sheth.) Therefore, theprovisions of Section 19 of the Act willhave an overriding effect over the50general provisions contained in Section190……”9. Therefore, concurring with brother Singhvi, J., Iam unable to uphold the submission of the learnedAttorney General.10. As I am of the humble opinion that the questionsraised and argued in this case are of considerableconstitutional and legal importance, I wish to addmy own reasoning on the same.  11. Today, corruption in our country not only poses agrave danger to the concept of constitutionalgovernance, it also threatens the very foundationof Indian democracy and the Rule of Law. Themagnitude of corruption in our public life isincompatible with the concept of a socialist,secular democratic republic. It cannot be disputedthat where corruption begins all rights end.Corruption devalues human rights, chokes51development and undermines justice, liberty,equality, fraternity which are the core values inour preambular vision. Therefore, the duty of theCourt is that any anti-corruption law has to beinterpreted and worked out in such a fashion as tostrengthen the fight against corruption.  That isto say in a situation where two constructions areeminently reasonable, the Court has to accept theone that seeks to eradicate corruption to the onewhich seeks to perpetuate it.12.   Time and again this Court has expressed itsdismay and shock at the ever growing tentacles ofcorruption in our society but even then situationshave not improved much. [See Sanjiv Kumar v. Stateof Haryana & ors., (2005) 5 SCC 517; State of A.P.v. V. Vasudeva Rao, (2004) 9 SCC 319; ShobhaSuresh Jumani v. Appellate Tribunal ForfeitedProperty & another, (2001) 5 SCC 755; State ofM.P. & ors. v. Ram Singh, (2000) 5 SCC 88; J.Jayalalitha v. Union of India & another, (1999) 552SCC 138; Major S.K. Kale v. State of Maharashtra,(1977) 2 SCC 394.]13. Learned Attorney General in the course of hissubmission fairly admitted before us that out oftotal 319 requests for sanction, in respect of 126of such requests, sanction is awaited. Therefore,in more than 1/3rd cases of request for prosecutionin corruption cases against public servants,sanctions have not been accorded. The aforesaidscenario raises very important constitutionalissues as well as some questions relating tointerpretation of such sanctioning provision andalso the role that an independent judiciary has toplay in maintaining rule of law and common man’sfaith in the justice delivering system.14. Both rule of law and equality before law arecardinal questions in our Constitutional Laws asalso in International law and in this context therole of the judiciary is very vital. In his famous53treatise on Administrative Law, Professor Wadewhile elaborating the concept of rule of lawreferred to the opinion of Lord Griffith’s whichruns as follows:“the judiciary accept a responsibility forthe maintenance of the rule of law thatembraces a willingness to overseeexecutive action and to refuse tocountenance behaviour that threatenseither basic human rights or the rule oflaw.”  [See R. v. Horseferry Road Magistrates’Court ex p. Bennett {1994) 1 AC 42 at 62]15. I am in respectful agreement with the aforesaidprinciple.16. In this connection we might remind ourselves thatcourts while maintaining rule of law muststructure its jurisprudence on the famousformulation of Lord Coke where the learned LawLord made a comparison between “the golden andstraight metwand of law” as opposed to “theuncertain and crooked cord of discretion”. 5417. The right of private citizen to file a complaintagainst a corrupt public servant must be equatedwith his right to access the Court in order to setthe criminal law in motion against a corruptpublic official.  This right of access, aConstitutional right should not be burdened withunreasonable fetters. When a private citizenapproaches a court of law against a corrupt publicservant who is highly placed, what is at stake isnot only a vindication of personal grievance ofthat citizen but also the question of bringingorderliness in society and maintaining equalbalance in the rule of law. It was pointed out bythe Constitution Bench of this Court in SheonandanPaswan vs. State of Bihar and Others, (1987) 1 SCC288 at page 315:“……It is now settled law that a criminalproceeding is not a proceeding forvindication of a private grievance butit is a proceeding initiated for thepurpose of punishment to the offender inthe interest of the society. It is formaintaining stability and orderliness in55the society that certain acts areconstituted offences and the right isgiven to any citizen to set themachinery of the criminal law in motionfor the purpose of bringing the offenderto book. It is for this reason that inA.R. Antulay v. R.S. Nayak this Courtpointed out that (SCC p. 509, para 6)“punishment of the offender in theinterest of the society being one of theobjects behind penal statutes enactedfor larger good of the society, right toinitiate proceedings cannot be whittleddown, circumscribed or fettered byputting it into a strait jacket formulaof locus standi……”18. Keeping those principles in mind, as we must, ifwe look at Section 19 of the P.C. Act which bars aCourt from taking cognizance of cases ofcorruption against a public servant under Sections7, 10, 11, 13 and 15 of the Act, unless theCentral or the State Government, as the case maybe, has accorded sanction, virtually imposesfetters on private citizens and also onprosecutors from approaching Court against corruptpublic servants. These protections are notavailable to other citizens. Public servants aretreated as a special class of persons enjoying the56said protection so that they can perform theirduties without fear and favour and without threatsof malicious prosecution.  However, the saidprotection against malicious prosecution which wasextended in public interest cannot become a shieldto protect corrupt officials. These provisionsbeing exceptions to the equality provision ofArticle 14 are analogous to provisions ofprotective discrimination and these protectionsmust be construed very narrowly. These proceduralprovisions relating to sanction must be construedin such a manner as to advance the causes ofhonesty and justice and good governance as opposedto escalation of corruption. Therefore, in everycase where an application is made to anappropriate authority for grant of prosecution inconnection with an offence under P.C. Act it isthe bounden duty of such authority to apply itsmind urgently to the situation and decide theissue without being influenced by any extraneousconsideration. In doing so, the authority mustmake a conscious effort to ensure the rule of law57and cause of justice is advanced.  In consideringthe question of granting or refusing suchsanction, the authority is answerable to law andlaw alone. Therefore, the requirement to take thedecision with a reasonable dispatch is of theessence in such a situation. Delay in grantingsanction proposal thwarts a very valid socialpurpose, namely, the purpose of a speedy trialwith the requirement to bring the culprit to book.Therefore, in this case the right of thesanctioning authority, while either sanctioning orrefusing to grant sanction, is coupled with aduty. The sanctioning authority must bear in mindthat what is at stake is the public confidence inthe maintenance of rule of law which isfundamental in the administration of justice.Delay in granting such sanction has spoilt manyvalid prosecution and is adversely viewed inpublic mind that in the name of considering aprayer for  sanction, a protection is given to acorrupt public official as a quid pro quo forservices rendered by the public official in the58past or may be in the future and the sanctioningauthority and the corrupt officials were or arepartners in the same misdeeds. I may hasten to addthat this may not be factual position in this butthe general demoralizing effect of such a popularperception is profound and pernicious. By causingdelay in considering the request for sanction, thesanctioning authority stultifies judicial scrutinyand determination of the allegations againstcorrupt official and thus the legitimacy of thejudicial institutions is eroded. It, thus,deprives a citizen of his legitimate andfundamental right to get justice by setting thecriminal law in motion and thereby frustrates hisright to access judicial remedy which is aconstitutionally protected right. In thisconnection, if we look at Section 19 of the P.C.Act, we find that no time limit is mentionedtherein. This has virtually armed the sanctioningauthority with unbridled power which has oftenresulted in protecting the guilty and perpetuatingcriminality and injustice in society. 5919. There are instances where as a result of delayedgrant of sanction prosecutions under the P.C. Actagainst a public servant has been quashed. SeeMahendra Lal Das vs. State of Bihar and Others,(2002) 1 SCC 149, wherein this Court quashed theprosecution as the sanctioning authority grantedsanction after 13 years. Similarly, in the case ofSantosh De vs. Archna Guha and Others, (1994)Supp.3 SCC 735, this Court quashed prosecution ina case where grant of sanction was unduly delayed.There are several such cases. The aforesaidinstances show a blatant subversion of the rule oflaw. Thus, in many cases public servants whosesanction proposals are pending before authoritiesfor long periods of time are being allowed toescape criminal prosecution.20. Article 14 must be construed as a guaranteeagainst uncanalized and arbitrary power.Therefore, the absence of any time limit in60granting sanction in Section 19 of the P.C. Act isnot in consonance with the requirement of the dueprocess of law which has been read into ourConstitution by the Constitution Bench decision ofthis Court in Maneka Gandhi vs. Union of India andAnother, (1978) 1 SCC 248. 21. I may not be understood to have expressed anydoubt about the constitutional validity of Section19 of the P.C. Act, but in my judgment the powerunder Section 19 of the P.C. Act must bereasonably exercised. In my judgment theParliament and the appropriate authority mustconsider restructuring Section 19 of the P.C. Actin such a manner as to make it consonant withreason, justice and fair play.  22. In my view, the Parliament should consider theConstitutional imperative of Article 14 enshriningthe rule of law wherein ‘due process of law’ hasbeen read into by introducing a time limit in61Section 19 of the P.C. Act 1988 for its working ina reasonable manner. The Parliament may, in myopinion, consider the following guidelines: a)All proposals for sanction placed before anySanctioning Authority, empowered to grantsanction for the prosecution of a public servantunder section 19 of the P.C. Act must be decidedwithin a period of three months of the receiptof the proposal by the concerned authority.b)Where consultation is required with the AttorneyGeneral or the Solicitor General or the AdvocateGeneral of the State, as the case may be, andthe same is not possible within the three monthsmentioned in clause (a) above, an extension ofone month period may be allowed, but the requestfor consultation is to be sent in writing withinthe three months mentioned in (a) above. A copyof the said request will be sent to theprosecuting agency or the private complainant to62intimate them about the extension of the timelimit. c)At the end of the extended period of time limit,if no decision is taken, sanction will be deemedto have been granted to the proposal forprosecution, and the prosecuting agency or theprivate complainant will proceed to file thechargesheet/complaint in the court to commenceprosecution within 15 days of the expiry of theaforementioned time limit. 23. With these additional reasons, as indicated, Iagree with Brother Singhvi, J., and allow theappeal and the judgment of the High Court is setaside. No costs........................J.(ASOK KUMAR GANGULY)New Delhi63January 31, 201264
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