Saturday, September 8, 2012

Proposals for sanction must be decided within a period of three months against a Public Servant


Proposals  for  sanction must be decided within a period of three months against a Public Servant
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1193   OF 2012
(Arising out of SLP(C) No. 27535 of 2010)
Dr. Subramanian Swamy … Appellant
versus
Dr. Manmohan Singh and another … Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. Whether a complaint can be filed by a citizen for prosecuting
a public servant for an offence under the Prevention of Corruption
Act, 1988 (for short, ‘the 1988 Act’) and whether the authority
competent to sanction prosecution of a public servant for offences
under the 1988 Act is required to take an appropriate decision
within the time specified in clause I(15) of the directions contained
in paragraph 58 of the judgment of this Court in Vineet Narain v.
Union of India (1998) 1 SCC 226 and the guidelines issued by the
1Central Government, Department of Personnel and Training and
the Central Vigilance Commission (CVC) are the question which
require consideration in this appeal.
3. For the last more than three years, the appellant has been
vigorously  pursuing,  in  public  interest,  the  cases  allegedly
involving  loss  of  thousands  of  crores  of  rupees  to  the  Public
Exchequer due to arbitrary and illegal grant of licences at the
behest of Mr. A. Raja (respondent No. 2) who was appointed as
Minister  for  Communication  and  Information  Technology  on
16.5.2007 by the President on the advice of Dr. Manmohan Singh
(respondent No. 1).  After collecting information about the grant of
licences,  the  appellant  made  detailed  representation  dated
29.11.2008  to  respondent  No.  1  to  accord  sanction  for
prosecution of respondent No. 2 for offences under the 1988 Act.
In his representation, the appellant pointed out that respondent
No. 2 had allotted new licences in 2G mobile services on ‘first
come, first served’ basis to novice telecom companies, viz., Swan
Telecom and Unitech, which was in clear violation of Clause 8 of
the Guidelines for United Access Services Licence issued by the
Ministry  of  Communication  and  Information  Technology  vide
letter  No.10-21/2005-BS.I(Vol.II)/49  dated  14.12.2005  and,
2thereby, caused loss of over Rs. 50,000 crores to the Government.
The appellant gave details of the violation of Clause 8 and pointed
out that the two officers, viz., R.J.S. Kushwaha and D. Jha of the
Department of Telecom, who had opposed the showing of undue
favour to Swan Telecom, were transferred just before the grant of
licences and Bharat Sanchar Nigam Limited (BSNL) which had
never entered into a roaming agreement with any operator, was
forced to enter into such an agreement with Swan Telecom. The
appellant further pointed out that immediately after acquiring 2G
spectrum licences, Swan Telecom and Unitech sold their stakes to
foreign companies, i.e., Etisalat, a telecom operator from UAE and
Telenor of Norway respectively and, thereby, made huge profits at
the expense of public revenue. He claimed that by 2G spectrum
allocation under respondent No. 2, the Government received only
one-sixth of what it would have received if it had opted for an
auction. The appellant pointed out how respondent No. 2 ignored
the recommendations of the Telecom Regulatory Authority of India
(TRAI) and gave totally unwarranted benefits to the two companies
and thereby caused loss to the Public Exchequer.  Some of the
portions of the appellant’s representation are extracted below:
3“Clause  8  has  been  violated  as  follows:  While  Anil
Dhirubhai  Ambani  Group  (ADAG),  the  promoters  of
Reliance Communications (R Com), had more than 10
per  cent  stake  in  Swan  Telecom,  the  figures  were
manipulated and showed as 9.99 per cent holding to
beat the said Clause.  The documents available disclose
that on March 2, 2007, when Swan Telecom applied for
United Access Services Licences, it was owned 100 per
cent by Reliance Communications and its associates
viz. Reliance Telecom, and by Tiger Trustees Limited,
Swan  Infonet  Services  Private  Limited,  and  Swan
Advisory Services Private Limited (see Annexure I).  At
one  or  the  other  point  of  time, employees of  ADAG
(Himanshu Agarwal, Ashish Karyekar, Paresh Rathod)
or  its  associate  companies  have  been  acquiring  the
shares  of  Swan  Telecom  itself.   But  still  the  ADAG
manipulated the holdings in Swan to reduce it to only
9.99 per cent.  Ambani has now quietly sold his shares
in  Swan  to  Delphi  Investments,  a  Mauritius  based
company  owned  by  Ahmed  O.  Alfi,  specializing  in
automobile spare parts.  In turn,  Swan has sold 45%
of its shares to UAE’s Emirates Telecom Corporation
(Etisalat)  for  Rs.9000  crores!   All  this  is  highly
suspicious  and  not  normal  business  transactions.
Swan  company got 60% of the  22 Telecom  licenced
areas at a throw away price of Rs.1650 crores, when it
was worth Rs.60,000 crores total.
Room has operations in the same circles where
the application for Swan Telecom was filed.  Therefore,
under Clause 8 of the Guidelines, Swan should not
have been allotted spectrum by the Telecommunication
Ministry.  But the company did get it on Minister’s
direction, which is an undue favour from him (Raja).
There was obviously a quid pro quo which only a CBI
enquiry can reveal, after an FIR is registered.  There is
no need for a P/E, because the CVC has already done
the preliminary enquiry.
Quite  surprisingly,  the  2G  spectrum  licences  were
priced at 2001 levels to benefit these private players.
That  was  when  there  were  only  4  million  cellphone
4subscribers; now it is 350 million.  Hence 2001 price is
not applicable today.
Immediately after acquiring 2G spectrum licences both
Swan  and  Unitech  sold  their  stakes  to  foreign
companies at a huge profits.  While Swan Telecom sold
its stakes to UAE telecom operator Etisalat, Unitech
signed a deal with Telenor  of Norway for  selling its
share at huge premiums.
In  the  process  of  this  2G  spectrum  allocation,  the
government received only one-sixth of what it would
have got had it gone through a fresh auction route.
The total loss to the exchequer of giving away 2G GSM
spectrum  in  this  way  –  including  to  the  CDMA
operators – is over Rs.50,000 crores and is said to be
one of the biggest financial scams of all times in the
country.
While  approving the  2G licences,  Minister  Raja
turned a blind eye to the fact that these two companies
do not have any infrastructure to launch their services.
Falsely claiming that the Telecom Regulatory Authority
of India had approved the first-cum-first served rule,
Raja went ahead with the 2G spectrum allocation to
two debutants in the Telecom sector.  In fact earlier
TRAI had discussed the spectrum allocation issue with
existing  services  providers  and  suggested  to  the
Telecom  Ministry  that  spectrum  allocation  be  made
through  a  transparent  tender  and  auction  process.
This is confirmed by what the TRAI Chairman N. Misra
told  the  CII  organized  conference  on  November  28,
2008 (Annexure 2).  But Raja did not bother to listen to
the TRAI either and pursued the process on ‘first come,
first  served’  basis,  benefiting  those  who  had  inside
information, causing a loss of Rs.50,000 crores to the
Government.  His dubious move has been to ensure
benefit to others at the cost of the national exchequer.”
The request made in the representation, which was relied
upon  by  the  learned  Attorney  General  for  showing  that  the
5appellant had himself asked for an investigation, is also extracted
below:
“According  to  an  uncontradicted  report  in  CNN-IBN
news channel of November 26, 2008, you are said to be
“very upset with A. Raja over the spectrum allocation
issue”.   This  confirms  that  an  investigation  is
necessary, for which I may be given sanction so that
the process of law can be initiated.
I, therefore, writ to demand the grant of sanction to
prosecute  Mr.  A.  Raja,  Minister  for  Telecom  of  the
Union  of  India  for  offences  under  the  Prevention  of
Corruption  Act.   The  charges  in  brief  are  annexed
herewith (Annexure 3).”
 
4. Since  the  appellant  did  not  receive  any  response  from
respondent No.1, he sent letters dated 30.5.2009, 23.10.2009,
31.10.2009,  8.3.2010  and  13.3.2010  and  reiterated  his
request/demand for grant of sanction to prosecute respondent
No.2.  In his letter dated 31.10.2009, the appellant referred to the
fact that on being directed by the CVC, the Central Bureau of
Investigation (CBI) had registered a first information report, and
claimed that  prima facie case is established against respondent
No. 2 for his prosecution under Sections 11 and 13(1)(d) of the
1988 Act.  The appellant also claimed that according to various
Supreme Court judgments it was not necessary to carry out a
detailed  inquiry,  and  he  had  produced  sufficient  evidence  for
6grant  of  sanction  to  initiate  criminal  prosecution  against
respondent No. 2 for the misuse of authority and pecuniary gains
from corrupt practices.  In his subsequent letters, the appellant
again  asserted  that  the  nation  had  suffered  loss  of  nearly
Rs.65,000 crores due to arbitrary, unreasonable and mala fide
action  of  respondent  No.2.   In  letter  dated  13.3.2010,  the
appellant referred to the proceedings of the case in which this
Court refused to interfere with the order of the Delhi High Court
declaring that the decision of respondent No.2 to change the cut
off date fixed for consideration of applications made for grant of
licences was arbitrary and mala fide.
5. After 1 year and 4-1/2 months of the first letter written by
him, Secretary, Department of Personnel and Training, Ministry of
Personnel sent letter dated 19.3.2010 to the appellant mentioning
therein that the CBI had registered a case on 21.10.2009 against
unknown officers of the Department of Telecommunications (DoT),
unknown  private  persons/companies  and  others  and  that  the
issue of grant of sanction for prosecution would arise only after
perusal of the evidence collected by the investigating agency and
other material provided to the Competent Authority and that it
7would be premature to consider sanction for prosecution at that
stage.
6. On receipt of the aforesaid communication, the appellant
filed Civil Writ Petition No. 2442/2010 in the Delhi High Court
and prayed for issue of a mandamus to respondent No.1 to pass
an order for grant of sanction for prosecution of respondent No. 2.
The  Division  Bench  of  the  Delhi  High  Court  referred  to  the
submission of the learned Solicitor General that when respondent
No. 1 has directed investigation by the CBI and the investigation
is in progress, it is not permissible to take a decision on the
application of the appellant either to grant or refuse the sanction
because that may affect the investigation, and dismissed the writ
petition by recording the following observations:
“The  question  that  emanates  for  consideration  is
whether, at this stage, when the investigation by the
CBI is in progress and this Court had earlier declined
to monitor the same by order dated 25
th
 May, 2010,
which  has been pressed into  service by the learned
Solicitor General of India, it would be appropriate to
direct  the  respondent  no.  1  to  take  a  decision  as
regards  the  application  submitted  by  the  petitioner
seeking sanction to prosecute.
In our considered opinion, when the matter is being
investigated  by  the  CBI,  and  the  investigation  is  in
progress, it would not be in fitness of things to issue a
mandamus to the first respondent to take a decision on
the application of the petitioner.”
87. The special leave petition filed by the appellant, out of which
this appeal arises, was initially taken up for consideration along
with SLP(C) No. 24873/2010 filed by the Center for Public Interest
Litigation against order dated 25.5.2010 passed by the Division
Bench of the High Court in Writ Petition (Civil) No. 3522/2010 to
which reference had been made in the impugned order.  During
the course of hearing of the special leave petition filed by the
appellant, the learned Solicitor General, who had appeared on
behalf of respondent No. 1, made a statement that he has got the
record  and  is  prepared  to  place  the  same  before  the  Court.
However, keeping in view the fact that the record sought to be
produced by the  learned Solicitor  General may not  be readily
available  to  the  appellant,  the  Court  passed  order  dated
18.11.2010  requiring  the  filing  of  an  affidavit  on  behalf  of
respondent No. 1. Thereafter, Shri V. Vidyavati, Director in the
PMO filed affidavit dated 20.11.2010, which reveals the following
facts:
“(i) On 1.12.2008, the Prime Minister perused the letter
and noted “Please examine and let me know the facts of
this case”. This was marked to the Principal Secretary
to the Prime Minister who in turn marked it to the
Secretary. The Secretary marked it to me as Director in
the PMO. I prepared a note dated 5.12.2008 factually
9summarizing the allegations and seeking approval to
obtain the factual position from the sectoral side (in the
PMO dealing with Telecommunications).
(ii) On 11.12.2008, a copy of appellant’s letter dated
29.11.2008 was sent to the Secretary, Department of
Telecommunication  for  submitting  a  factual  report.
The Department of Telecommunication sent reply dated
13.02.2009 incorporating his comments.
(iii)  In the  meanwhile,  letters  dated  10.11.2008  and
22.11.2008  were  received from  Shri  Gurudas  Gupta
and  Shri  Suravaran  Sudhakar  Reddy  respectively
(copies of these letters have not been produced before
the Court). The same were forwarded to the Department
of Telecommunication  on 25.03.2009 for sending an
appropriate reply to the appellant.
(iv) On 01.06.2009, letter dated 30.05.2009 received
from the appellant was placed before respondent No.1,
who  recorded  the  following  endorsement  “please
examine and discuss”.
(v) On 19.06.2009, the Director of the concerned Sector
in  the  PMO  recorded  that  the  Minister  of
Telecommunications  and Information Technology has
sent  D.O.  letter  dated  18.06.2009  to  the  appellant.
When  letter  dated  23.10.2009  of  the  appellant  was
placed  before  respondent  No.1,  he  recorded  an
endorsement on 27.10.2009 “please discuss”.
(vi) In  response  to  letter  dated  31.10.2009  of  the
appellant,  respondent  No.1  made  an  endorsement
“please examine”.
(vii)  On  18.11.2009,  respondent  No.1  stated  that
Ministry  of  Law  and  Justice  should  examine  and
advice. The advice of Ministry of Law and Justice was
received on 8.2.2010.  Para 7 thereof was as follows:
“From the perusal of letter dated 23.10.2009 and
31.10.2009, it is noticed that Shri Swamy wants
to rely upon the action and investigation of the
CBI  to  collaborate  and  strengthen  the  said
10allegation  leveled  by  him  against  Shri  A.  Raja,
Minister  for  Communication  and  Information
Technology. It is specifically mentioned in Para 2
of the letter dated 31.10.2009 of Shri Swamy that
the  FIR  was  registered  by  the  CBI  and  “the
substance of the allegation made by me in the
above  cited  letters  to  you  are  already  under
investigation”. If it is so, then it may be stated that
decision to accord of sanction of prosecution may
be  determined  only  after  the  perusal  of  the
evidence (oral or  documentary) collected by the
investigation agency, i.e., CBI and other materials
to be provided to the competent authority.”
(viii) On 05.03.2010, the deponent prepared a note that
an appropriate reply be sent to the appellant in the
light of the advice given by the Law Department and
final reply was sent to the appellant after respondent
No.1 had approved note dated 17.03.2010.”
8. The appellant filed rejoinder affidavit on 22.11.2010 along
with a copy of letter dated 18.6.2009 written to him by respondent
No. 2 in the context of representation dated 29.11.2008 submitted
by him to respondent No.1.
9. Although,  respondent  No.2  resigned  from  the  Council  of
Ministers on 14.11.2010, the appellant submitted that the issues
relating  to  his  right  to  file  a  complaint  for  prosecution  of
respondent No.2 and grant of sanction within the time specified in
the judgment in Vineet Narain’s case should be decided.
1110. During the course of hearing, the learned Attorney General
filed  written  submissions.   After  the  hearing  concluded,  the
learned Attorney General filed supplementary written submissions
along with a compilation of 126 cases in which the sanction for
prosecution is awaited for periods ranging from more than one
year to few months
11. Final order in this case was deferred because it was felt that
the directions given by this Court in Vineet Narain’s case may
require further elaboration in the light of the order passed in Civil
Appeal No. 10660/2010 (arising out of SLP(C) No. 24873/2010)
and the fact that decision on the question of grant of sanction
under the 1988 Act and other statutes is pending for a sufficiently
long time in 126 cases. However, as the investigation with regard
to some of the facets of what has come to be termed as 2G case is
yet to be completed, we have considered it appropriate to pass
final order in the matter.
12. Appellant Dr. Subramanian Swamy argued that the embargo
contained in Section 19(1) of the 1988 Act operates only against
the  taking  of  cognizance  by  the  Court  in  respect  of  offences
punishable under Sections 7, 10, 11, 13 and 15 committed by a
public servant,  but there is no bar to the filing of a private
12complaint for prosecution of the concerned public servant and
grant  of  sanction  by  the  Competent  Authority,  and  that
respondent No. 1 was duty bound to take appropriate decision on
his representation within the time specified in clause I(15) of the
directions  contained  in  paragraph  58  of  Vineet  Narain’s  case,
more so because he had placed sufficient evidence to show that
respondent No.2 had committed offences under the 1988 Act.
13. The learned Attorney General argued that the question of
grant of sanction for prosecution of a public servant charged with
any of the offences enumerated in Section 19(1) arises only at the
stage when the Court decides to take cognizance and any request
made prior to that is premature.  He submitted that the embargo
contained in Section 19(1) of the Act is applicable to the Court
which is competent to take cognizance of an offence punishable
under  Sections  7,  10,  11,  13  and  15  alleged  to  have  been
committed by a public servant and there is no provision for grant
of sanction at a stage before the competent Court applies its mind
to the issue of taking cognizance. Learned Attorney General relied
upon the judgment of the Calcutta High Court in Superintendent
and Remembrancer of Legal Affairs v. Abani Kumar Banerjee AIR
1950 Cal. 437 as also the judgments of this Court in R.R. Chari v.
13State  of  Uttar  Pradesh  1951  SCR  312,  Devarapalli
Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 SCC 252,
Ram Kumar v. State of Haryana (1987) 1 SCC 476, Krishna Pillai
v. T.A. Rajendran, 1990 (Supp) SCC 121, State of West Bengal v.
Mohd.  Khalid  (1995)  1  SCC  684,  State  through  C.B.I.  v.  Raj
Kumar Jain (1998) 6 SCC 551, K. Kalimuthu v. State (2005) 4
SCC 512, Centre for Public Interest Litigation v. Union of India
(2005) 8 SCC 202 and State of Karnataka v. Pastor P. Raju (2006)
6 SCC 728 and argued that letter dated 29.11.2008 sent by the
appellant for grant of sanction to prosecute respondent No.2 for
the alleged offences under the 1988 Act was wholly misconceived
and  respondent  No.1  did  not  commit  any  illegality  or
constitutional impropriety by not entertaining his prayer, more so
because the appellant had himself asked for an investigation into
the alleged illegal grant of licences at the behest of respondent
No.2.  Learned Attorney General further argued that the appellant
does not have the locus standi to file a complaint for prosecuting
respondent  No.2  because  the  CBI  is  already  investigating  the
allegations of irregularity committed in the grant of licences for 2G
spectrum and the loss, if any, suffered by the Public Exchequer.
1414. We have considered the respective submissions.  Section 19
of the 1988 Act reads as under:
“19. Previous sanction necessary for prosecution. – (1)
No court shall take cognizance of an offence punishable
under sections 7, 10, 11, 13 and 15 alleged to have
been committed by a public servant, except with the
previous sanction, –
(a) in the case of a person who is employed in
connection with the affairs of the Union and is not
removable  from  his  office  save  by  or  with  the
sanction  of  the  Central  Government,  of  that
Government;
(b) in the case of a person who is employed in
connection with the affairs of a State and is not
removable  from  his  office  save  by  or  with  the
sanction  of  the  State  Government,  of  that
Government;
(c) in the case of any other person, of the authority
competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises
as to whether the previous sanction as required under
sub-section  (1)  should  be  given  by  the  Central
Government  or  the  State  Government  or  any  other
authority,  such  sanction  shall  be  given  by  that
Government  or  authority  which  would  have  been
competent to remove the public servant from his office
at the time when the offence was alleged to have been
committed.
(3) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),-
(a)  no  finding,  sentence  or  order  passed  by  a
special Judge shall be reversed or altered by a
court in appeal, confirmation or revision on the
ground of the absence of, or any error, omission or
irregularity in, the sanction required under sub-
15section (1), unless in the opinion of that court, a
failure  of  justice  has  in  fact  been  occasioned
thereby;
(b) no court shall stay the proceedings under this
Act  on  the  ground  of  any  error,  omission  or
irregularity  in  the  sanction  granted  by  the
authority, unless it is satisfied that such error,
omission or irregularity has resulted in a failure of
justice;
(c) no  court shall stay the  proceedings under
this Act on any other ground and no court shall
exercise the powers of revision in relation to any
interlocutory order passed in any inquiry, trial,
appeal or other proceedings.
(4) In determining under sub-section (3) whether the
absence of, or any error, omission or irregularity in,
such sanction has occasioned or resulted in a failure of
justice the court shall have regard to the fact whether
the objection could and should have been raised at any
earlier stage in the proceedings.
Explanation. – For the purposes of this section,
(a) error includes competency of the authority to
grant sanction;
(b) a sanction required for prosecution includes
reference to any requirement that the prosecution
shall be at the instance of a specified authority or
with  the  sanction  of  a  specified  person  or  any
requirement of a similar nature.”
15. The question whether sanction for prosecution of respondent
No.2 for the offences allegedly committed by him under the 1988
Act  is  required  even  after  he  resigned  from  the  Council  of
Ministers, though he continues to be a Member of Parliament,
16need not detain us because the same has already been answered
by the Constitution Bench in R. S. Nayak v. A. R. Antulay (1984) 2
SCC 183 the relevant portions of which are extracted below:
“Now if the public servant holds two offices and he is
accused of having abused one and from which he is
removed  but  continues  to  hold  the  other  which  is
neither alleged to have  been used (sic misused) nor
abused, is a sanction  of the authority competent to
remove him from the office which is neither alleged or
shown to have been abused or misused necessary? The
submission  is  that  if  the  harassment  of  the  public
servant by a frivolous prosecution and criminal waste
of  his  time  in  law  courts  keeping  him  away  from
discharging  public  duty,  are  the  objects  underlying
Section 6, the same would be defeated if it is held that
the sanction of the latter authority is not necessary.
The submission does not commend to us. We fail to see
how  the  competent  authority  entitled  to  remove  the
public servant from an office which is neither alleged to
have been used (sic misused) or abused would be able
to  decide  whether  the  prosecution  is  frivolous  or
tendentious. An illustration was posed to the learned
counsel that a minister who is indisputably a public
servant  greased  his  palms  by  abusing  his  office  as
minister, and then ceased to hold the office before the
court was called upon to take cognizance of the offence
against him and therefore, sanction as contemplated by
Section  6  would  not  be  necessary;  but  if  after
committing the offence and before the date of taking of
cognizance of the offence, he was elected as a Municipal
President in which capacity he was a public servant
under the relevant municipal law, and was holding that
office on the date on which court proceeded to take
cognizance  of  the  offence  committed  by  him  as  a
minister, would a sanction be necessary and that too of
that authority competent to remove him from the office
of  the  Municipal  President.  The  answer  was  in
affirmative. But the very illustration would show that
such  cannot  be  the  law.  Such  an  interpretation  of
17Section  6  would  render  it  as  a  shield  to  an
unscrupulous  public  servant.  Someone  interested  in
protecting  may  shift  him  from  one  office  of  public
servant to another and thereby defeat the process of
law. One can legitimately envisage a situation wherein
a person may hold a dozen different offices, each one
clothing him with the status of a public servant under
Section 21 IPC and even if he has abused only one
office  for  which  either  there  is  a  valid  sanction  to
prosecute him or he has ceased to hold that office by
the time court was called upon to take cognizance, yet
on this assumption, sanction of 11 different competent
authorities each of which was entitled to remove him
from  11  different  public  offices  would  be  necessary
before  the  court  can  take  cognizance  of  the  offence
committed by such public servant, while abusing one
office  which  he  may  have  ceased  to  hold.  Such  an
interpretation is contrary to all canons of construction
and leads to an absurd end product which of necessity
must  be  avoided.  Legislation  must  at  all  costs  be
interpreted in such a way that it would not operate as a
rogue's charter.
We would however, like to make it abundantly clear
that if the two decisions purport to lay down that even
if a public servant has ceased to hold that office as
public servant which he is alleged to have abused or
misused for corrupt motives, but on the date of taking
cognizance  of  an  offence  alleged  to  have  been
committed by him as a public servant which he ceased
to be and holds an entirely different public office which
he is neither alleged to have misused or abused for
corrupt  motives,  yet  the  sanction  of  authority
competent to remove him from such latter office would
be necessary before taking cognizance of the offence
alleged to have been committed by the public servant
while  holding  an  office  which  he  is  alleged  to  have
abused or misused and which he has ceased to hold,
the decision in our opinion, do not lay down the correct
law  and  cannot  be  accepted  as  making  a  correct
interpretation of Section 6.”
1816. The same view has been taken in Habibullsa Khan v. State of
Orissa (1995) 2 SCC 437 (para 12), State of H.P. v. M. P. Gupta
(2004) 2 SCC 349 (paras 17 and 19), Parkash Singh Badal v.
State of Punjab (2007) 1 SCC 1 and Balakrishnan Ravi Menon v.
Union of India (2007) 1 SCC 45.  In Balakrishnan Ravi Menon’s
case, it was argued that the observations made in para 25 of the
judgment  in  Antulay’s  case  are  obiter.   While  negating  this
submission, the Court observed :    
“Hence, it is difficult to accept the contention raised by
Mr.  U.R.  Lalit,  the  learned  Senior  Counsel  for  the
petitioner that the aforesaid finding given by this Court
in Antulay case is obiter.
Further, under Section 19 of the PC Act, sanction is to
be given by the Government or  the authority  which
would  have  been  competent  to  remove  the  public
servant from his office at the time when the offence was
alleged  to  have  been  committed.  The  question  of
obtaining  sanction  would  arise  in  a case  where the
offence has been committed by a public servant who is
holding  the  office  and  by  misusing  or  abusing  the
powers of the office, he has committed the offence. The
word “office” repeatedly used in Section 19 would mean
the “office” which the public servant misuses or abuses
by corrupt motive for which he is to be prosecuted.
Sub-sections (1) and (2) of Section 19 are as under:
“19. Previous sanction necessary for prosecution.
—(1) No court shall take cognizance of an offence
punishable under Sections 7, 10, 11, 13 and 15
alleged  to  have  been  committed  by  a  public
servant, except with the previous sanction,—
(a) in the case of a person who is employed in
connection with the affairs of the Union and is not
19removable  from  his  office  save  by  or  with  the
sanction  of  the  Central  Government,  of  that
Government;
(b) in the case of a person who is employed in
connection with the affairs of a State and is not
removable  from  his  office  save  by  or  with  the
sanction  of  the  State  Government,  of  that
Government;
(c) in the case of any other person, of the authority
competent to remove him from his office.
(2) Where for any reason whatsoever any doubt
arises  as  to  whether  the  previous  sanction  as
required under sub-section (1) should be given by
the Central Government or the State Government
or  any  other  authority,  such  sanction  shall  be
given  by  that  Government  or  authority  which
would have been competent to remove the public
servant  from  his  office  at  the  time  when  the
offence was alleged to have been committed.”
   Clauses (  a   ) and (  b   ) of sub-section (1) specifically provide
that in case of a person who is employed and is not
removable from his office by the Central Government or
   the State Government, as the case may be,    sanction   to
prosecute is required to be obtained either from the
Central  Government  or  the  State  Government.  The
emphasis  is  on  the  words  “who  is  employed”  in
connection with the affairs of the Union or the State
Government.  If he  is  not  employed then  Section  19
nowhere provides for obtaining such sanction. Further,
under  sub-section  (2),  the  question  of  obtaining
sanction is relatable to the time of holding the office
when the offence was alleged to have been committed.
In case where the person is not holding the said office
as he might have retired, superannuated, be discharged
or dismissed then the question of removing would not
arise.  Admittedly,  when  the  alleged  offence  was
committed, the petitioner was appointed by the Central
Government. He demitted his office after completion of
20five years' tenure. Therefore, at the relevant time when
the  charge-sheet  was  filed,  the  petitioner  was  not
holding the office of the Chairman of Goa Shipyard Ltd.
Hence, there is no question of obtaining any previous
sanction of the Central Government.”
(emphasis supplied)
17. The same view was reiterated in Parkash Singh Badal’s case
and the argument that even though some of the accused persons
had ceased to be Ministers, they continued to be the Members of
the  Legislative  Assembly  and  one  of  them  was  a  Member  of
Parliament and as such cognizance could not be taken against
them without prior sanction, was rejected.
18. The next question which requires consideration is whether
the  appellant  has  the  locus  standi to  file  a  complaint  for
prosecution  of  respondent  No.2  for  the  offences  allegedly
committed by him under the 1988 Act.   There is no provision
either in the 1988 Act or the Code of Criminal Procedure, 1973
(CrPC) which bars a citizen from filing a complaint for prosecution
of a public servant who is alleged to have committed an offence.
Therefore, the argument of the learned Attorney General that the
appellant cannot file a complaint for prosecuting respondent No.2
merits  rejection.   A  similar  argument  was  negatived  by  the
Constitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak
21(1984) 2 SCC 500.  The facts of that case show that on a private
complaint  filed  by  the  respondent,  the  Special  Judge  took
cognizance of the offences allegedly committed by the appellant.
The latter objected to the jurisdiction of the Special Judge on two
counts, including the one that the Court set up under Section 6 of
the Criminal Law Amendment Act, 1952 (for short, ‘the 1952 Act’)
was  not  competent  to  take  cognizance  of  any  of  the  offences
enumerated in Section 6(1)(a) and (b) upon a private complaint.
His objections were rejected by the Special Judge.  The revision
filed by the appellant was heard by the Division Bench of the High
Court  which  ruled  that  a  Special  Judge  is  competent  and  is
entitled to take cognizance of offences under Section 6(1)(a) and
(b) on a private complaint of the facts constituting the offence.
The High Court was of the opinion that a prior investigation under
Section 5A of the Prevention of Corruption Act, 1947 (for short,
‘the 1947 Act’) by a police officer of the designated rank is not sine
qua non for taking cognizance of an offence under Section 8(1) of
the 1952 Act.  Before the Supreme Court, the argument against
the  locus  standi of  the  respondent  was  reiterated  and  it  was
submitted that Section 5A of the 1947 Act is mandatory and an
investigation by the designated officer is a condition precedent to
22the taking of cognizance by the Special Judge of an offence or
offences committed by a public servant. While dealing with the
issue  relating  to  maintainability  of  a  private  complaint,  the
Constitution Bench observed:
“It  is  a  well  recognised  principle  of  criminal
jurisprudence that anyone can set or put the criminal
law into motion except where the statute enacting or
creating  an  offence  indicates  to  the  contrary.  The
scheme of the Code of Criminal Procedure envisages
two  parallel  and  independent  agencies  for  taking
criminal offences to court. Even for the most serious
offence of murder, it was not disputed that a private
complaint can, not only be filed but can be entertained
and proceeded with according to law.  Locus standi of
the  complainant  is  a  concept  foreign  to  criminal
jurisprudence save and except that where the statute
creating an offence provides for the eligibility of the
complainant,  by  necessary  implication  the  general
principle  gets  excluded  by  such  statutory  provision.
Numerous statutory provisions, can be referred to in
support of this legal position such as (i) Section 187-A
of Sea Customs Act, 1878 (ii) Section 97 of Gold Control
Act, 1968 (iii) Section 6 of Import and Export Control
Act,  1947  (iv)  Section  271  and  Section  279  of  the
Income Tax Act, 1961 (v) Section  61 of the  Foreign
Exchange Regulation Act, 1973, (vi) Section 621 of the
Companies  Act,  1956  and  (vii)  Section  77  of  the
Electricity Supply Act. This list is only illustrative and
not  exhaustive.  While  Section  190  of  the  Code  of
Criminal  Procedure  permits  anyone  to  approach  the
Magistrate with a complaint, it does not prescribe any
qualification the complainant is required to fulfil to be
eligible  to  file  a  complaint.  But  where  an  eligibility
criterion  for  a  complainant  is  contemplated  specific
provisions  have  been made  such  as  to  be  found  in
Sections  195  to  199  of  the  CrPC.  These  specific
provisions clearly indicate that in the absence of any
such  statutory  provision,  a  locus  standi  of  a
23complainant  is  a  concept  foreign  to  criminal
jurisprudence.  In  other  words,  the  principle  that
anyone  can  set  or  put  the  criminal  law  in  motion
remains intact unless contra-indicated by a statutory
provision.  This  general  principle  of  nearly  universal
application is founded on a policy that an offence i.e.
an act or omission made punishable by any law for the
time being in force is not merely an offence committed
relation to the person who suffers harm but is also an
offence against society. The society for its orderly and
peaceful development is interested in the punishment
of  the  offender.  Therefore,  prosecution  for  serious
offences  is  undertaken  in  the  name  of  the  State
representing  the  people  which  would  exclude  any
element of private vendetta or vengeance. If such is the
public policy underlying penal statutes, who brings an
act or omission made punishable by law to the notice of
the authority competent to deal with it, is immaterial
and  irrelevant  unless  the  statute  indicates  to  the
contrary. Punishment of the offender in the interest of
the  society  being  one  of  the  objects  behind  penal
statutes enacted for larger good of the society, right to
initiate  proceedings  cannot  be  whittled  down,
circumscribed or fettered by putting it into a straitjacket  formula  of  locus  standi  unknown  to  criminal
jurisprudence,  save  and  except  specific  statutory
exception. To hold that such an exception exists that a
private complaint for offences of corruption committed
by public servant is not maintainable, the court would
require  an  unambiguous  statutory  provision  and  a
tangled  web  of  argument  for  drawing  a  far  fetched
implication,  cannot  be  a  substitute  for  an  express
statutory provision.”
(emphasis supplied)
The Constitution Bench then considered whether the Special
Judge can take cognizance only on the basis of a police report and
answered the same in negative in the following words:
24“In  the  matter  of  initiation  of  proceeding  before  a
Special Judge under Section 8(1), the Legislature while
conferring  power  to  take  cognizance  had  three
opportunities to unambiguously state its mind whether
the cognizance can be taken on a private complaint or
not.  The first one  was an opportunity to provide in
Section 8(1) itself by merely stating that the Special
Judge may take cognizance of an offence on a police
report  submitted  to  it  by  an  investigating  officer
conducting investigation as contemplated by Section 5-
A. While providing for investigation by designated police
officers of superior rank, the Legislature did not fetter
the power of Special Judge to take cognizance in a
manner otherwise than on police report. The second
opportunity was when by Section 8(3) a status of a
deemed public prosecutor was conferred on a private
complainant if he chooses to conduct the prosecution.
The Legislature being aware of a provision like the one
contained in Section 225 of the CrPC, could have as
well provided that in every trial before a Special Judge
the  prosecution  shall  be  conducted  by  a  Public
Prosecutor,  though  that  itself  would  not  have  been
decisive of the matter. And the third opportunity was
when the Legislature while prescribing the procedure
prescribed for warrant cases to be followed by Special
Judge did not exclude by a specific provision that the
only procedure which the Special Judge can follow is
the one prescribed for trial of warrant cases on a police
report.  The  disinclination  of  the  Legislature  to  so
provide  points  to  the  contrary  and  no  canon  of
construction  permits the  court to go in search of a
hidden or implied limitation on the power of the Special
Judge  to  take  cognizance  unfettered  by  such
requirement of its being done on a police report alone.
In  our  opinion,  it  is  no  answer  to  this  fairly  wellestablished legal position that for the last 32 years no
case  has  come  to  the  notice  of  the  court  in  which
cognizance was taken by a Special Judge on a private
complaint for offences punishable under the 1947 Act.”
(emphasis supplied)
25The Court then referred to Section 5A of the 1947 Act, the
provisions of the 1952 Act, the judgments in H.N. Rishbud and
Inder Singh v. State of Delhi (1955) 1 SCR 1150, State of M.P. v.
Mubarak Ali 1959 Supp. (2) SCR 201, Union of India v. Mahesh
Chandra AIR 1957 M.B. 43 and held:
“Having carefully examined these judgments in the light
of  the  submissions  made,  the  only  conclusion  that
unquestionably  emerges  is  that  Section  5-A  is  a
safeguard against investigation of offences committed
by public servants, by petty or lower rank police officer.
It has nothing to do directly or indirectly with the mode
and method of taking cognizance  of offences by the
Court of Special Judge.  It also follows as a necessary
corollary that provision of Section 5-A is not a condition
precedent to initiation of proceedings before the Special
Judge who acquires power under Section 8(1) to take
   cognizance  of offences enumerated in  Section  6(1)(  a  )
   and (  b   ), with this limitation alone that it shall not be
upon commitment to him by the Magistrate.
Once the contention on behalf of the appellant that
investigation  under  Section  5-A  is  a  condition
precedent  to  the  initiation  of  proceedings  before  a
Special Judge and therefore cognizance of an offence
cannot be taken except upon a police report, does not
commend to us and has no foundation in law, it is
unnecessary  to  refer  to  the  long  line  of  decisions
   commencing  from     Taylor   v.     Taylor   ;     Nazir  Ahmad   v.
   King-Emperor   and  ending  with     Chettiam  Veettil
   Ammad   v.     Taluk  Land  Board   ,  laying  down  hitherto
uncontroverted  legal  principle  that  where  a  statute
requires to do a certain thing in a certain way, the
thing must be done in that way or not at all. Other
methods of performance are necessarily forbidden.
Once Section 5-A is out of the way in the matter of
taking  cognizance  of  offences  committed  by  public
servants by a Special Judge, the power of the Special
26Judge to take cognizance of such offences conferred by
Section 8(1) with only one limitation, in any one of the
known  methods  of  taking  cognizance  of  offences  by
courts of original jurisdiction remains undented. One
such  statutorily  recognised  well-known  method  of
taking cognizance of offences by a court competent to
take cognizance is upon receiving a complaint of facts
which constitutes the offence. And Section 8(1) says
that  the  Special  Judge  has  the  power  to  take
cognizance  of offences enumerated in  Section  6(1)(a)
and  (b)  and  the  only  mode  of  taking  cognizance
excluded  by  the  provision  is  upon  commitment.  It
therefore,  follows  that  the  Special  Judge  can  take
cognizance of offences committed by public servants
upon receiving a complaint of facts constituting such
offences.
It was, however, submitted that even if it be held that
the  Special  Judge  is  entitled  to  entertain  a  private
complaint,  no  further  steps  can  be  taken  by  him
without directing an investigation under Section 5-A so
that the safeguard of Section 5-A is not whittled down.
This  is  the  selfsame  argument  under  a  different
apparel.  Accepting  such  a  submission  would
tantamount to saying that on receipt of the complaint
the Special Judge must direct an investigation under
Section 5-A, There is no warrant for such an approach.
Astounding as it appeared to us, in all solemnity it was
submitted that investigation of an offence by a superior
police officer affords a more solid safeguard compared
to a court. Myopic as this is, it would topsy turvy the
fundamental  belief  that  to  a  person  accused  of  an
offence there is no better safeguard than a court. And
this  is  constitutionally  epitomised  in  Article  22  that
upon  arrest by  police, the  arrested  person  must  be
produced before the nearest Magistrate within twentyfour hours of the arrest. Further, numerous provisions
of the Code of Criminal Procedure such as Section 161,
Section 164, and Section 25 of the Indian Evidence Act
would  show  the  Legislature's  hesitation  in  placing
confidence on police officers away from court's gaze.
And  the  very  fact  that  power  is  conferred  on  a
Presidency Magistrate or Magistrate of the first class to
27permit police officers of lower rank to investigate these
offences would speak for the mind of the Legislature
that the court is a more reliable safeguard than even
superior police officers.”
(emphasis supplied)
19. In view of the aforesaid judgment of the Constitution Bench,
it must be held that the appellant has the right to file a complaint
for  prosecution  of  respondent  No.2  in  respect  of  the  offences
allegedly committed by him under the 1988 Act.
20. The  argument  of  the  learned  Attorney  General  that  the
question of granting sanction for prosecution of a public servant
charged with an offence under the 1988 Act arises only at the
stage  of  taking  cognizance  and  not  before  that  is  neither
supported by the plain language of the section nor the judicial
precedents relied upon by him.  Though, the term ‘cognizance’ has
not been defined either in the 1988 Act or the CrPC, the same has
acquired a definite meaning and connotation from various judicial
precedents.  In legal parlance cognizance is “taking judicial notice
by the court of law, possessing jurisdiction, on a cause or matter
presented before it so as to decide whether there is any basis for
initiating proceedings and determination of the cause or matter
judicially”.  In R. R. Chari v. State of U.P. (1951) SCR 312, the
28three Judge Bench approved the following observations made by
the Calcutta High Court in Superintendent and Remembrancer of
Legal Affairs, West Bengal v. Abni Kumar Banerjee (supra):
"What is taking cognizance has not been defined in the
Criminal  Procedure  Code  and  I  have  no  desire  to
attempt to define it. It seems to me clear however that
before it can be said that any magistrate has taken
cognizance  of  any  offence  under  section  190(1)(a),
Criminal  Procedure  Code,  he  must  not  only  have
applied his mind to the contents of the petition but he
must have done so for the purpose of proceeding in a
particular  way  as  indicated  in  the  subsequent
provisions of this Chapter - proceeding under section
200 and thereafter sending it for inquiry and report
under section 202. When the magistrate applies his
mind  not  for  the  purpose  of  proceeding  under  the
subsequent  sections  of  this  Chapter,  but  for  taking
action of some other kind, e.g. ordering investigation
under section 156(3), or issuing a search warrant for
the purpose of the investigation, he cannot be said to
have taken cognizance of the offence.”
21.  In Mohd. Khalid’s case, the Court referred to Section 190 of
the CrPC and observed :
“In its broad and literal sense, it means taking notice of
an  offence.  This  would  include  the  intention  of
initiating judicial proceedings against the offender in
respect of that offence or taking steps to see whether
there is any basis for initiating judicial proceedings or
for other purposes. The word ‘cognizance’ indicates the
point when a Magistrate or a Judge first takes judicial
notice of an offence. It is entirely a different thing from
initiation  of  proceedings;  rather  it  is  the  condition
precedent  to  the  initiation  of  proceedings  by  the
29Magistrate or the Judge. Cognizance is taken of cases
and not of persons.”
22. In Pastor P. Raju’s case, this Court referred to the provisions
of Chapter XIV and Sections 190 and 196 (1-A) of the CrPC and
observed :
“There is no bar against registration of a criminal case
or investigation by the police agency or submission of a
report by the police on completion of investigation, as
contemplated by Section 173 CrPC. If a criminal case is
registered, investigation of the offence is done and the
police submits a report as a result of such investigation
before a Magistrate without the previous sanction of the
Central Government or of the State Government or of
the  District  Magistrate, there  will  be no  violation  of
Section  196(1-A) CrPC  and  no  illegality of any kind
would be committed.”
The Court then referred to some of the precedents including
the judgment in Mohd. Khalid’s case and observed :
“It is necessary to mention here that taking cognizance
of  an  offence  is  not  the  same  thing  as  issuance  of
process. Cognizance is taken at the initial stage when
the Magistrate applies his judicial mind to  the facts
mentioned in a complaint or to a police report or upon
information  received from  any  other  person  that  an
offence has been committed. The issuance of process is
at  a  subsequent  stage  when  after  considering  the
material placed before it the court decides to proceed
against the offenders against whom a prima facie case
is made out.”
3023. In Kalimuthu’s case, the only question considered by this
Court was whether in the absence of requisite sanction under
Section 197 CrPC, the Special Judge for CBI cases, Chennai did
not  have  the  jurisdiction  to  take  cognizance  of  the  alleged
offences.  The High Court had taken the view that Section 197
was not applicable to the appellant’s case.  Affirming the view
taken by the High Court, this Court observed :
“The question relating to the need of sanction under
Section  197  of  the  Code  is  not  necessarily  to  be
considered as soon as the complaint is lodged and on
the allegations contained therein. This question may
arise  at  any  stage  of  the  proceeding.  The  question
whether sanction is necessary or not may have to be
determined from stage to stage. Further, in cases where
offences  under  the  Act  are  concerned,  the  effect  of
Section 197, dealing with the question of prejudice has
also to be noted.”
24. In Raj Kumar Jain’s case, this Court considered the question
whether  the  CBI  was  required  to  obtain  sanction  from  the
prosecuting authority before approaching the Court for accepting
the report under Section 173(2) of the CrPC.  This question was
considered in the backdrop of the fact that the CBI, which had
investigated  the  case  registered  against  the  respondent  under
Section 5(2) read with Section 5(1)(e) of the 1947 Act found that
the  allegation  made  against  the  respondent  could  not  be
31substantiated.  The Special Judge declined to accept the report
submitted under Section 173(2) CrPC by observing that the CBI
was  required  to  place  materials  collected  during  investigation
before the sanctioning authority and it was for the concerned
authority to grant or refuse sanction.  The Special Judge opined
that only after the decision of the sanctioning authority, the CBI
could submit the report under Section 173(2).  The High Court
dismissed the petition filed by the CBI and confirmed the order of
the Special Judge.  This Court referred to Section 6(1) of the 1947
Act and observed:
“From  a  plain  reading  of  the  above  section  it  is
evidently clear that a court cannot take cognizance of
the offences mentioned therein without sanction of the
appropriate authority. In enacting the above section,
the  legislature  thought  of  providing  a  reasonable
protection to public servants in the discharge of their
official functions so that they may perform their duties
and  obligations  undeterred  by  vexatious  and
unnecessary prosecutions. Viewed in that context, the
CBI  was  under  no  obligation  to  place the  materials
collected  during  investigation  before  the  sanctioning
authority, when they found that no case was made out
against the respondent. To put it differently, if the CBI
had found on investigation that a prima facie case was
made out against the respondent to place him on trial
and  accordingly  prepared  a  charge-sheet  (challan)
against  him,  then  only  the  question  of  obtaining
sanction of the authority under Section 6(1) of the Act
would have arisen for without that the Court would not
be competent to take cognizance of the charge-sheet. It
must,  therefore, be said that both the Special Judge
and the High Court were patently wrong in observing
32that the CBI was required to obtain sanction from the
prosecuting authority before approaching the Court for
accepting the report under Section 173(2) CrPC.”
25. In  our  view,  the  decisions  relied  upon  by  the  learned
Attorney General do not have any bearing on the moot question
whether  respondent  No.1,  being  the  Competent  Authority  to
sanction prosecution of respondent No.2, was required to take
appropriate decision  in the light  of the  direction contained in
Vineet Narain’s case.
26. Before proceeding further, we would like to add that at the
time of taking cognizance of the offence, the Court is required to
consider the averments made in the complaint or the charge sheet
filed under Section 173.  It is not open for the Court to analyse
the evidence produced at that stage and come to the conclusion
that no prima facie case is made out for proceeding further in the
matter. However, before issuing the process, it that it is open to
the Court to record the evidence and on consideration of the
averments made in the complaint and the evidence thus adduced,
find out whether an offence has been made out. On finding that
such an offence has been made out the Court may direct the issue
of process to the respondent and take further steps in the matter.
33If it is a charge-sheet filed under Section 173 CrPC, the facts
stated by the prosecution in the charge-sheet, on the basis of the
evidence collected during investigation, would disclose the offence
for which cognizance would be taken by the Court. Thus, it is not
the province of the Court at that stage to embark upon and shift
the evidence to come to the conclusion whether or not an offence
has been made out.
27. We may also observe that grant or refusal of sanction is not
a quasi judicial function and the person for whose prosecution the
sanction is sought is not required to be heard by the Competent
Authority  before it takes a decision  in the matter.   What  is
required to be seen by the Competent Authority is whether the
facts placed before it which, in a given case, may include the
material collected by the complainant or the investigating agency
prima facie disclose commission of an offence by a public servant.
If the Competent Authority is satisfied that the material placed
before it is sufficient for prosecution of the public servant, then it
is required to grant sanction. If the satisfaction of the Competent
Authority is otherwise, then it can refuse sanction. In either case,
the decision taken on the complaint made by a citizen is required
34to be communicated to him and if he feels aggrieved by such
decision, then he can avail appropriate legal remedy.
28. In  Vineet  Narain’s  case,  the  Court  entertained  the  writ
petitions filed in public interest for ensuring investigation into
what  came  to  be  known  as  ‘Hawala  case’.   The  writ  petition
remained pending for  almost four  years.  During that  period,
several interim orders were passed which are reported as Vineet
Narain v. Union of India 1996 (1) SCALE (SP) 42, Vineet Narain v.
Union of India (1996) 2 SCC 199, Vineet Narain v. Union of India
(1997) 4 SCC 778 and Vineet Narain v. Union of India (1997) 5
SCALE 254.  The final order was passed in Vineet Narain v. Union
of India (1998) 1 SCC 226.  In (1996) 2 SCC 199, the Court
referred  to  the  allegations  made  in  the  writ  petition  that
Government agencies like the CBI and the revenue authorities
have failed to perform their duties and legal obligations inasmuch
as they did not investigate into the matters arising out of seizure
of the so-called “Jain Diaries” in certain raids conducted by the
CBI. The Court took note of the allegation that the arrest of some
terrorists  led to the discovery of financial support to them by
clandestine  and  illegal  means  and  a  nexus  between  several
important  politicians,  bureaucrats  and  criminals,  who  were
35recipients  of  money  from  unlawful  sources,  and  proceeded  to
observe:
“The facts and circumstances of the present case do
indicate that it is of utmost public importance that this
matter is examined thoroughly by this Court to ensure
that all government agencies, entrusted with the duty
to  discharge  their  functions  and  obligations  in
accordance with law, do so, bearing in mind constantly
the concept of equality enshrined in the Constitution
and the basic tenet of rule of law: “Be you ever so high,
the  law  is  above  you.”  Investigation  into  every
accusation made against each and every person on a
reasonable basis, irrespective of the position and status
of  that  person,  must  be  conducted  and  completed
expeditiously.  This  is  imperative  to  retain  public
confidence in the impartial working of the government
agencies.”
29. After examining various facets of the matter in detail, the
three Judge Bench in its final order reported in (1998) 1 SCC 226
observed :
“These principles of public life are of general application
in every democracy and one is expected to bear them in
mind while scrutinising the conduct of every holder of a
public office. It is trite that the holders of public offices
are entrusted with certain powers to be exercised in
public interest alone and, therefore, the office is held by
them in trust for the people. Any deviation from the
path of rectitude by any of them amounts to a breach of
trust and must be severely dealt with instead of being
pushed under the carpet. If the conduct amounts to an
offence,  it  must  be  promptly  investigated  and  the
offender against whom a prima facie case is made out
should be prosecuted expeditiously so that the majesty
of law is upheld and the rule of law vindicated. It is the
36duty of the judiciary to enforce the rule of law and,
therefore, to guard against erosion of the rule of law.
The  adverse  impact  of  lack  of  probity  in  public  life
leading to a high degree of corruption is manifold. It
also  has  adverse  effect  on  foreign  investment  and
funding from the International Monetary Fund and the
World  Bank  who  have  warned  that  future  aid  to
underdeveloped  countries  may  be  subject  to  the
requisite  steps  being  taken  to  eradicate  corruption,
which prevents international aid from reaching those
for whom it is meant. Increasing corruption has led to
investigative  journalism  which  is  of  value  to  a  free
society. The need to highlight corruption in public life
through  the  medium  of  public  interest  litigation
invoking judicial review may be frequent in India but is
not unknown in other countries: R. v. Secy. of State for
Foreign and Commonwealth Affairs.”
In paragraph 58 of the judgment, the Court gave several
directions in relation to the CBI, the CVC and the Enforcement
Directorate.   In  para  58  (I)(15),  the  Court  gave  the  following
direction:
“Time-limit of three months for grant of sanction for
prosecution  must  be  strictly  adhered  to.  However,
additional time of one month may be allowed where
consultation is required with the Attorney General (AG)
or any other law officer in the AG's office.”
30. The CVC, after taking note of the judgment of the Punjab
and Haryana High Court in Jagjit Singh v. State of Punjab (1996)
Crl. Law Journal 2962, State of Bihar v. P. P. Sharma 1991 Supp.
1 SCC 222, Superintendent of Police (CBI) v. Deepak Chowdhary,
37(1995) 6 SC 225, framed guidelines which were circulated vide
office order No.31/5/05 dated 12.5.2005.  The relevant clauses of
the guidelines are extracted below:
“2(i) Grant of sanction is an administrative act.  The
purpose  is  to  protect  the  public  servant  from
harassment by frivolous or vexatious prosecution and
not  to  shield  the  corrupt.   The  question  of  giving
opportunity to the public servant at that stage does not
arise.   The  sanctioning  authority  has  only  to  see
whether  the  facts  would  prima-facie  constitutes  the
offence.
(ii) The competent authority cannot embark upon an
inquiry to judge the truth of the allegations on the basis
of representation which may be filed by the accused
person before the Sanctioning Authority, by asking the
I.O. to offer his comments or to further investigate the
matter  in  the  light  of  representation  made  by  the
accused  person  or  by  otherwise  holding  a  parallel
investigation/enquiry by calling for the record/report of
his department.
(vii) However, if in any case, the Sanctioning Authority
after consideration of the entire material placed before
it, entertains any doubt on any point the competent
authority  may  specify  the  doubt  with  sufficient
particulars  and  may  request  the  Authority  who  has
sought sanction to clear the doubt.  But that would be
only to clear the doubt in order that the authority may
apply  its  mind  proper,  and  not  for  the  purpose  of
considering the representations of the accused which
may be filed while the matter is pending sanction.
38(viii) If the Sanctioning Authority seeks the comments
of  the  IO  while  the  matter  is  pending  before  it for
sanction,  it  will  almost  be  impossible  for  the
Sanctioning  Authority  to  adhere  to  the  time  limit
allowed by the Supreme Court in Vineet Narain’s case.”
31. The aforementioned guidelines are in conformity with the law
laid down by this Court that while considering the issue regarding
grant or refusal of sanction, the only thing which the Competent
Authority is required to see is whether the material placed by the
complainant  or  the  investigating  agency  prima  facie discloses
commission  of  an  offence.   The  Competent  Authority  cannot
undertake  a  detailed  inquiry  to  decide  whether  or  not  the
allegations made against the public servant are true.
32. In the light of the above discussion, we shall now consider
whether the High Court was justified in refusing to entertain the
writ petition filed by the appellant.  In this context, it is apposite
to observe that the High Court had proceeded under a wholly
erroneous  assumption  that  respondent  No.1  had  directed
investigation by the CBI into the allegations of grave irregularities
in  the  grant  of  licences.   As  a  matter  of  fact,  on  receipt  of
representation  dated  4.5.2009  that  the  grant  of  licences  by
respondent  No.2  had  resulted  in  huge  loss  to  the  Public
39Exchequer, the CVC got conducted an inquiry under Section 8(d)
of the Central Vigilance Commission Act, 2003 and forwarded a
copy of the report to the Director, CBI for making an investigation
into  the  matter  to  establish  the  criminal  conspiracy  in  the
allocation of 2G spectrum under the UASL policy of the DoT and
to bring to book all the wrongdoers. Thereupon, the CBI registered
FIR No.RC-DI-2009-A-0045 dated 21.10.2009 against unknown
officials  of  the  DoT,  unknown  private  persons/companies  and
others for offences under Section 120-B IPC read with Sections
13(2) and 13(1)(d) of the 1988 Act.  For the next about one year,
the matter remained dormant and the CBI took steps for vigorous
investigation only when this Court intervened in the matter.   The
material  placed  on  record  does  not  show  that  the  CBI  had
registered  a  case  or  started  investigation  at  the  instance  of
respondent No.1.
33. On his part, the appellant had submitted representation to
respondent No. 1 almost one year to the registration of the first
information  report  by  the  CBI  and  highlighted  the  grave
irregularities committed in the grant of licences resulting in the
loss of thousands of crores of rupees to the Public Exchequer.  He
continuously pursued the matter by sending letters to respondent
40No.1 at regular intervals.  The affidavit filed by Shri V. Vidyawati,
Director in the PMO shows that the matter was placed before
respondent No.1 on 1.12.2008, who directed the concerned officer
to  examine  and  apprise  him  with  the  facts  of  the  case.
Surprisingly, instead of complying with  the  direction  given by
respondent  No.1  the  concerned  officer  sent  the  appellant’s
representation to the DoT which was headed by none other than
respondent No.2 against whom the appellant had made serious
allegations of irregularities in the grant of licences.  It was natural
for  respondent  No.2  to  have  seized  this  opportunity,  and  he
promptly sent letter dated 18.6.2009 to the appellant justifying
the  grant  of  licences. The  concerned officer in  the  PMO  then
referred the matter to the Ministry of Law and Justice for advice.
It is not possible to appreciate that even though the appellant
repeatedly  wrote  letters  to  respondent  No.1  highlighting  the
seriousness of the allegations made in his first representation and
the fact that he had already supplied the facts and documents
which could be made basis for grant of sanction to prosecute
respondent No.2 and also pointed out that as per the judgments
of this Court, detailed inquiry was not required to be made into
the allegations, the concerned officers in the PMO kept the matter
41pending and then took the shelter of the fact that the CBI had
registered the case and the investigation was pending.  In our
view, the officers in the PMO and the Ministry of Law and Justice,
were duty bound to apprise respondent No.1 about seriousness of
allegations made by the appellant and the judgments of this Court
including  the  directions  contained  in  paragraph  58(I)  of  the
judgment in Vineet Narain’s case as also the guidelines framed by
the CVC so as to enable him to take appropriate decision in the
matter. By the very nature of the office held by him, respondent
No. 1 is not expected to personally look into the minute details of
each and every case placed before him and has to depend on his
advisers  and  other  officers.  Unfortunately,  those  who  were
expected to give proper advice to respondent No. 1 and place full
facts and legal position before him failed to do so. We have no
doubt  that  if  respondent  No.1  had  been apprised of the  true
factual and legal position regarding the representation made by
the appellant, he would have surely taken appropriate decision
and would not have allowed the matter to linger for a period of
more than one year.
34. In the result, the appeal is allowed.  The impugned order is
set aside.  It is declared that the appellant had the right to file a
42complaint for prosecuting respondent No.2.  However, keeping in
view the fact that the Court of Special Judge, CBI has already
taken   cognizance   of  the    offences    allegedly   committed   by
respondent  No.2  under  the  1988  Act,  we  do  not  consider  it
necessary to give any other direction in the matter.   At the same
time, we deem it proper to observe that in future every Competent
Authority  shall  take  appropriate  action  on  the  representation
made by a citizen for sanction of the prosecution of a public
servant  strictly  in  accordance  with  the  direction  contained  in
Vineet  Narain  v.  Union  of  India  (1998)  1  SCC  226  and  the
guidelines framed by the CVC.
…..…..…….………………….…J.
       [G.S. Singhvi]
…..…..……..…..………………..J.
      [Asok Kumar Ganguly]
New Delhi,
January 31, 2012.
43REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1193 OF 2012
(Arising out of SLP (C) No.27535/2010)
Dr. Subramanian Swamy ....Appellant(s)
- Versus -
Dr. Manmohan Singh & another ....Respondent(s)
J U D G M E N T
GANGULY, J.
1. After  going  through  the  judgment  rendered  by  my
learned  brother  G.S.  Singhvi,  J.,  I  am  in
agreement with the various conclusions reached by
His Lordship. However, I have added my own views
on certain important facts of the questions raised
in this case.
2. Brother  Singhvi,  J.,  has  come  to  a  finding  that
having  regard  to  the  very  nature  of  the  office
held by respondent No.1, it may not be expected of
respondent No.1 to personally look into the minute
44details  of  each  and  every  matter  and  the
respondent  No.1,  having  regard  to  the  burden  of
his  very  onerous  office,  has  to  depend  on  the
officers advising him. At the same time it may be
noted  that  in  the  course  of  submission,  the
appellant,  who  argued  in  person,  did  not  ever
allege any malafide or lack of good faith against
the  respondent  No.1.  The  delay  which  had  taken
place  in  the  office  of  the  respondent  No.1  is
unfortunate  but  it  has  not  even  been  alleged  by
the appellant that there was any deliberate action
on the part of the respondent No.1 in causing the
delay.  The  position  of  respondent  No.1  in  our
democratic polity seems to have been summed up in
the  words  of  Shakespeare  “Uneasy  lies  the  head
that wears a crown” (Henry, The Fourth, Part 2 Act
3, scene 1).
3. I  also  agree  with  the  conclusions  of  bother
Singhvi, J., that the appellant has the locus to
file  the  complaint  for  prosecution  of  the
respondent No.2 in respect of the offences alleged
to have been committed by him under the 1988 Act.
45Therefore,  I  agree  with  the  finding  of  brother
Singhvi,  J.,  that  the  argument  of  the  learned
Attorney  General  to  the  contrary  cannot  be
accepted.  Apart  from  that  the  learned  Attorney
General in the course of his submission proceeded
on the basis that the question of sanction has to
be considered with reference to Section 19 of the
Prevention  of  Corruption  Act  (hereinafter  “the
P.C. Act”) or with reference to Section 197 of the
Code of Criminal Procedure, 1973 (hereinafter “the
Code”), and the scheme of both the sections being
similar  (Vide  paragraph  3  of  the  supplementary
written  submission  filed  by  the  learned  Attorney
General).  In  fact,  the  entire  submission  of  the
learned  Attorney  General  is  structured  on  the
aforesaid  assumption.  I  fail  to  appreciate  the
aforesaid argument as the same is contrary to the
scheme  of  Section  19  of  the  P.C.  Act  and  also
Section 197 of the Code. In  Kalicharan Mahapatra
vs. State of Orissa reported in (1998) 6 SCC 411,
this  Court  compared  Section  19  of  P.C.  Act  with
Section 197 of the Code. After considering several
46decisions  on  the  point  and  also  considering
Section  6  of  the  old  P.C.  Act,  1947  which  is
almost identical with Section 19 of the P.C. Act,
1988 and also noting Law Commission’s Report, this
Court in paragraph 13 of  Kalicharan (supra) came
to the following conclusions:
“13. The  sanction  contemplated  in
Section  197  of  the  Code  concerns  a
public  servant  who  “is  accused  of  any
offence  alleged  to  have  been  committed
by him while acting or purporting to act
in the discharge of his official duty”,
whereas the offences contemplated in the
PC Act are those which cannot be treated
as  acts  either  directly  or  even
purportedly done in the discharge of his
official  duties.  Parliament  must  have
desired to maintain the distinction and
hence  the  wording  in  the  corresponding
provision  in  the  former  PC  Act  was
materially  imported  in  the  new  PC  Act,
1988 without any change in spite of the
change made in Section 197 of the Code.”
4. The above passage in  Kalicharan  (supra) has been
quoted with approval subsequently by this Court in
Lalu  Prasad vs.  State  of  Bihar reported  in  2007
(1) SCC 49 at paragraph 9, page 54.  In paragraph
10,  (page  54  of  the  report)  this  Court  held  in
47Lalu Prasad (supra) that “Section 197 of the Code
and Section 19 of the Act operate in conceptually
different fields”.
5. In view of such consistent view by this Court the
basic  submission  of  the  learned  Attorney  General
to the contrary is, with respect, untenable.
6. I  also  entirely  agree  with  the  conclusion  of
learned brother Singhvi, J., that the argument of
the  learned  Attorney  General  that  question  for
granting  sanction  for  prosecution  of  a  public
servant charged with offences under the 1988 Act
arises only at the stage of cognizance is also not
acceptable.
7. In  formulating  this  submission,  the  learned
Attorney  General  substantially  advanced  two
contentions. The first contention is that an order
granting  sanction  is  not  required  to  be  filed
48along  with  a  complaint  in  connection  with  a
prosecution under Section 19 of the P.C. Act. The
aforesaid  submission  is  contrary  to  the  settled
law laid down by this Court in various judgments.
Recently a unanimous three-judge Bench decision of
this Court in the case of  State of Uttar Pradesh
vs. Paras Nath Singh, [(2009) 6 SCC 372], speaking
through  Justice  Pasayat  and  construing  the
requirement  of  sanction,  held  that  without
sanction:
“……The  very  cognizance  is  barred.  That
is, the complaint cannot be taken notice
of. According  to  Black's  Law Dictionary
the  word  ‘cognizance’  means
‘jurisdiction’  or  ‘the  exercise  of
jurisdiction’  or  ‘power  to  try  and
determine  causes’.  In  common  parlance,
it  means  taking  notice  of.  A  court,
therefore,  is  precluded  from
entertaining  a  complaint  or  taking
notice of it or exercising jurisdiction
if it is in respect of a public servant
who is accused of an offence alleged to
have been committed during discharge of
his official duty.”
(Para 6, page 375 of the report)
8. The  other  contention  of  the  learned  Attorney
General  is  that  in  taking  cognizance  under  the
49P.C.  Act  the  Court  is  guided  by  the  provisions
under  Section  190  of  the  Code  and  in  support  of
that  contention  the  learned  Attorney  General
relied  on  several  judgments.  However,  the
aforesaid  submissions  were  made  without  noticing
the judgment of this Court in the case of Dilawar
Singh vs.  Parvinder  Singh  alias  Iqbal  Singh  and
Another (2005) 12 SCC 709. Dealing with Section 19
of  P.C.  Act  and  Section  190  of  the  Code,  this
Court  held  in  paragraph  8  at  page  713  of  the
report as follows:
“……The Prevention of Corruption Act is a
special  statute  and  as  the  preamble
shows,  this  Act  has  been  enacted  to
consolidate  and  amend  the  law  relating
to the prevention of corruption and for
matters  connected  therewith.  Here,  the
principle  expressed  in  the  maxim
generalia specialibus non derogant would
apply  which  means  that  if  a  special
provision  has  been  made  on  a  certain
matter, that matter is excluded from the
general  provisions.  (See  Godde
Venkateswara Rao v. Govt. of A.P., State
of  Bihar v.  Dr.  Yogendra  Singh and
Maharashtra State Board of Secondary and
Higher  Secondary  Education v.  Paritosh
Bhupeshkumar  Sheth.)  Therefore,  the
provisions of Section 19 of the Act will
have  an  overriding  effect  over  the
50general  provisions  contained  in  Section
190……”
9. Therefore, concurring with brother Singhvi, J., I
am unable to uphold the submission of the learned
Attorney General.
10. As I am of the humble opinion that the questions
raised and argued in this case are of considerable
constitutional and legal importance, I wish to add
my own reasoning on the same.
11. Today, corruption in our country not only poses a
grave  danger  to  the  concept  of  constitutional
governance, it also threatens the very foundation
of  Indian  democracy  and  the  Rule  of  Law.  The
magnitude  of  corruption  in  our  public  life  is
incompatible  with  the  concept  of  a  socialist,
secular democratic republic. It cannot be disputed
that  where  corruption  begins  all  rights  end.
Corruption  devalues  human  rights,  chokes
51development  and  undermines  justice,  liberty,
equality, fraternity which are the core values in
our preambular vision. Therefore, the duty of the
Court  is  that  any  anti-corruption  law  has  to  be
interpreted and worked out in such a fashion as to
strengthen the fight against corruption.  That is
to say in a situation where two constructions are
eminently reasonable, the Court has to accept the
one that seeks to eradicate corruption to the one
which seeks to perpetuate it.
12.   Time  and  again  this  Court  has  expressed  its
dismay and shock at the ever growing tentacles of
corruption in our society but even then situations
have not improved much. [See Sanjiv Kumar v. State
of Haryana & ors., (2005) 5 SCC 517; State of A.P.
v.  V.  Vasudeva  Rao, (2004)  9  SCC  319;  Shobha
Suresh  Jumani v.  Appellate  Tribunal  Forfeited
Property  &  another,  (2001)  5  SCC  755;  State  of
M.P.  &  ors. v.  Ram  Singh,  (2000)  5  SCC  88;  J.
Jayalalitha v.  Union of India & another, (1999) 5
52SCC 138;  Major S.K. Kale v.  State of Maharashtra,
(1977) 2 SCC 394.]
13. Learned  Attorney  General  in  the  course  of  his
submission fairly admitted before us that out of
total 319 requests for sanction, in respect of 126
of such requests, sanction is awaited. Therefore,
in more than 1/3
rd
 cases of request for prosecution
in  corruption  cases  against  public  servants,
sanctions  have  not  been  accorded.  The  aforesaid
scenario  raises  very  important  constitutional
issues  as  well  as  some  questions  relating  to
interpretation  of  such  sanctioning  provision  and
also the role that an independent judiciary has to
play in maintaining rule of law and common man’s
faith in the justice delivering system.
14. Both  rule  of  law  and  equality  before  law  are
cardinal  questions  in  our  Constitutional  Laws  as
also in International law and in this context the
role of the judiciary is very vital. In his famous
53treatise  on  Administrative  Law,  Professor  Wade
while  elaborating  the  concept  of  rule  of  law
referred to the opinion of Lord Griffith’s which
runs as follows:
“the judiciary accept a responsibility for
the  maintenance  of  the  rule  of  law  that
embraces  a  willingness  to  oversee
executive  action  and  to  refuse  to
countenance  behaviour  that  threatens
either  basic  human  rights  or  the  rule  of
law.”
[See  R.  v.  Horseferry  Road  Magistrates’
Court ex p. Bennett {1994) 1 AC 42 at 62]
15. I  am  in  respectful  agreement  with  the  aforesaid
principle.
16. In this connection we might remind ourselves that
courts  while  maintaining  rule  of  law  must
structure  its  jurisprudence  on  the  famous
formulation  of  Lord  Coke  where  the  learned  Law
Lord  made  a  comparison  between  “the  golden  and
straight  metwand  of  law”  as  opposed  to  “the
uncertain and crooked cord of discretion”.
5417. The right of private citizen to file a complaint
against a corrupt public servant must be equated
with his right to access the Court in order to set
the  criminal  law  in  motion  against  a  corrupt
public  official.   This  right  of  access,  a
Constitutional  right  should  not  be  burdened  with
unreasonable  fetters.  When  a  private  citizen
approaches a court of law against a corrupt public
servant who is highly placed, what is at stake is
not  only  a  vindication  of  personal  grievance  of
that  citizen  but  also  the  question  of  bringing
orderliness  in  society  and  maintaining  equal
balance in the rule of law. It was pointed out by
the Constitution Bench of this Court in Sheonandan
Paswan vs. State of Bihar and Others, (1987) 1 SCC
288 at page 315:
“……It is now settled law that a criminal
proceeding  is  not  a  proceeding  for
vindication  of  a  private  grievance  but
it  is  a  proceeding  initiated  for  the
purpose of punishment to the offender in
the interest of the society. It is for
maintaining stability and orderliness in
55the  society  that  certain  acts  are
constituted  offences  and  the  right  is
given  to  any  citizen  to  set  the
machinery of the criminal law in motion
for the purpose of bringing the offender
to book. It is for this reason that in
A.R.  Antulay v.  R.S.  Nayak this  Court
pointed  out  that  (SCC  p.  509,  para  6)
“punishment  of  the  offender  in  the
interest of the society being one of the
objects  behind  penal  statutes  enacted
for larger good of the society, right to
initiate proceedings cannot be whittled
down,  circumscribed  or  fettered  by
putting it into a strait jacket formula
of locus standi……”
18. Keeping those principles in mind, as we must, if
we look at Section 19 of the P.C. Act which bars a
Court  from  taking  cognizance  of  cases  of
corruption against a public servant under Sections
7,  10,  11,  13  and  15  of  the  Act,  unless  the
Central or the State Government, as the case may
be,  has  accorded  sanction,  virtually  imposes
fetters  on  private  citizens  and  also  on
prosecutors from approaching Court against corrupt
public  servants.  These  protections  are  not
available  to  other  citizens.  Public  servants  are
treated as a special class of persons enjoying the
56said  protection  so  that  they  can  perform  their
duties without fear and favour and without threats
of  malicious  prosecution.   However,  the  said
protection against malicious prosecution which was
extended in public interest cannot become a shield
to  protect  corrupt  officials.  These  provisions
being  exceptions  to  the  equality  provision  of
Article  14  are  analogous  to  provisions  of
protective  discrimination  and  these  protections
must be construed very narrowly. These procedural
provisions relating to sanction must be construed
in  such  a  manner  as  to  advance  the  causes  of
honesty and justice and good governance as opposed
to  escalation  of  corruption.  Therefore,  in  every
case  where  an  application  is  made  to  an
appropriate authority for grant of prosecution in
connection  with  an  offence  under  P.C.  Act  it  is
the  bounden  duty  of  such  authority  to  apply  its
mind  urgently  to  the  situation  and  decide  the
issue  without  being  influenced  by  any  extraneous
consideration.  In  doing  so,  the  authority  must
make a conscious effort to ensure the rule of law
57and cause of justice is advanced.  In considering
the  question  of  granting  or  refusing  such
sanction, the authority is answerable to law and
law alone. Therefore, the requirement to take the
decision  with  a  reasonable  dispatch  is  of  the
essence  in  such  a  situation.  Delay  in  granting
sanction  proposal  thwarts  a  very  valid  social
purpose,  namely,  the  purpose  of  a  speedy  trial
with the requirement to bring the culprit to book.
Therefore,  in  this  case  the  right  of  the
sanctioning authority, while either sanctioning or
refusing  to  grant  sanction,  is  coupled  with  a
duty. The sanctioning authority must bear in mind
that what is at stake is the public confidence in
the  maintenance  of  rule  of  law  which  is
fundamental  in  the  administration  of  justice.
Delay  in  granting  such  sanction  has  spoilt  many
valid  prosecution  and  is  adversely  viewed  in
public  mind  that  in  the  name  of  considering  a
prayer for  sanction, a protection is given to a
corrupt  public  official  as  a  quid  pro  quo  for
services  rendered  by  the  public  official  in  the
58past or may be in the future and the sanctioning
authority  and  the  corrupt  officials  were  or  are
partners in the same misdeeds. I may hasten to add
that this may not be factual position in this but
the general demoralizing effect of such a popular
perception is profound and pernicious. By causing
delay in considering the request for sanction, the
sanctioning authority stultifies judicial scrutiny
and  determination  of  the  allegations  against
corrupt  official  and  thus  the  legitimacy  of  the
judicial  institutions  is  eroded.  It,  thus,
deprives  a  citizen  of  his  legitimate  and
fundamental  right  to  get  justice  by  setting  the
criminal law in motion and thereby frustrates his
right  to  access  judicial  remedy  which  is  a
constitutionally  protected  right.  In  this
connection, if we look at Section 19 of the P.C.
Act,  we  find  that  no  time  limit  is  mentioned
therein. This has virtually armed the sanctioning
authority  with  unbridled  power  which  has  often
resulted in protecting the guilty and perpetuating
criminality and injustice in society.
5919. There are instances where as a result of delayed
grant of sanction prosecutions under the P.C. Act
against  a  public  servant  has  been  quashed.  See
Mahendra  Lal  Das vs.  State  of  Bihar  and  Others,
(2002) 1 SCC 149, wherein this Court quashed the
prosecution  as  the  sanctioning  authority  granted
sanction after 13 years. Similarly, in the case of
Santosh  De vs.  Archna  Guha  and  Others,  (1994)
Supp.3 SCC 735, this Court quashed prosecution in
a case where grant of sanction was unduly delayed.
There  are  several  such  cases.  The  aforesaid
instances show a blatant subversion of the rule of
law.  Thus,  in  many  cases  public  servants  whose
sanction proposals are pending before authorities
for  long  periods  of  time  are  being  allowed  to
escape criminal prosecution.
20. Article  14  must  be  construed  as  a  guarantee
against  uncanalized  and  arbitrary  power.
Therefore,  the  absence  of  any  time  limit  in
60granting sanction in Section 19 of the P.C. Act is
not in consonance with the requirement of the due
process  of  law  which  has  been  read  into  our
Constitution by the Constitution Bench decision of
this Court in Maneka Gandhi vs. Union of India and
Another, (1978) 1 SCC 248.
21. I  may  not  be  understood  to  have  expressed  any
doubt about the constitutional validity of Section
19 of the P.C. Act, but in my judgment the power
under  Section  19  of  the  P.C.  Act  must  be
reasonably  exercised.  In  my  judgment  the
Parliament  and  the  appropriate  authority  must
consider restructuring Section 19 of the P.C. Act
in  such  a  manner  as  to  make  it  consonant  with
reason, justice and fair play.
22. In  my  view,  the  Parliament  should  consider  the
Constitutional imperative of Article 14 enshrining
the rule of law wherein ‘due process of law’ has
been  read  into  by  introducing  a  time  limit  in
61Section 19 of the P.C. Act 1988 for its working in
a  reasonable  manner.  The  Parliament  may,  in  my
opinion, consider the following guidelines:
a)All  proposals  for  sanction  placed  before  any
Sanctioning  Authority,  empowered  to  grant
sanction for the prosecution of a public servant
under section 19 of the P.C. Act must be decided
within a period of three months of the receipt
of the proposal by the concerned authority.
b)Where consultation is required with the Attorney
General or the Solicitor General or the Advocate
General  of  the  State,  as  the  case  may  be,  and
the same is not possible within the three months
mentioned in clause (a) above, an extension of
one month period may be allowed, but the request
for consultation is to be sent in writing within
the three months mentioned in (a) above. A copy
of  the  said  request  will  be  sent  to  the
prosecuting agency or the private complainant to
62intimate  them  about  the  extension  of  the  time
limit.
c)At the end of the extended period of time limit,
if no decision is taken, sanction will be deemed
to  have  been  granted  to  the  proposal  for
prosecution,  and  the  prosecuting  agency  or  the
private  complainant  will  proceed  to  file  the
chargesheet/complaint  in  the  court  to  commence
prosecution within 15 days of the expiry of the
aforementioned time limit.
23. With  these  additional  reasons,  as  indicated,  I
agree  with  Brother  Singhvi,  J.,  and  allow  the
appeal and the judgment of the High Court is set
aside. No costs.
.......................J.
(ASOK KUMAR GANGULY)
New Delhi
63January 31, 2012
64

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