Supreme Court of India
DR. SUBRAMANIAN SWAMYversusDR. MANMOHAN SINGH AND ANOTHER
- Citation
- 2012 INSC 59
- Decided
- 31 January 2012
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
A private citizen may file a complaint for prosecution of a public servant under the PC Act, and the competent authority must decide on sanction based on prima facie evidence within the statutory time‑limit, not wait for cognizance.
Summary
Dr. Subramanian Swamy filed a representation with the Prime Minister seeking sanction to prosecute the then Minister of Communications, A. Raja, for alleged corruption in the 2G spectrum allocation. After repeated reminders and a CBI FIR was registered 16 months later, the Delhi High Court dismissed his writ petition, holding that the matter was under investigation and a mandamus could not be issued. On appeal, the Supreme Court held that a private citizen has the right to file a complaint against a public servant under the Prevention of Corruption Act, 1988, and that the competent authority must decide on sanction based on prima facie material, not wait for cognizance, and must adhere to the three‑month time limit (with a one‑month extension) prescribed in Vineet Narain. The Court set aside the High Court order, noting that the Special Judge had already taken cognizance, and emphasized that future sanction decisions must follow the Vineet Narain directions and CVC guidelines. The appeal was allowed.
Issues considered
- Whether a private citizen can file a complaint for prosecution of a public servant under the Prevention of Corruption Act, 1988.
- Whether the competent authority must grant or refuse sanction within the time limits specified in Vineet Narain and the CVC guidelines.
- Whether sanction is required after a minister resigns from the Council of Ministers but remains a Member of Parliament.
- Whether the question of granting sanction arises only at the stage of taking cognizance of the offence.
- Whether the competent authority may undertake a detailed inquiry before deciding on sanction.
Legislation cited
- Central Vigilance Commission Act, 2003s. 8(d)
- Code of Criminal Procedure, 1973s. 190, s. 197
- Prevention of Corruption Act, 1988s. 11, s. 13(1)(d), s. 19
Subjects
Prevention of Corruption Actsanction for prosecutionprivate complaintVineet Narain guidelinespublic servantcognizance2G spectrum scamArticle 14delay in sanction
Judgment
[2012] 3 S.C.R. 52
A DR. SUBRAMANIAN SWAMY
v.
DR. MANMOHAN SINGH AND ANOTHER
(Civil Appeal No. 1193 of 2012)
JANUARY 31, 2012
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Prevention of Corruption Act, 1988 - s. 19:
c Sanction for prosecution - Prosecution of public servant
for commission of offence under the 1988 Act - Filing of
complaint by private citizen - Permissibility of - Taking
appropriate decision within the time specified in· *Vineet
Narain v. Union of India; guidelines issued by the Department
D of Personnel and Training and eve - Requirement of - On
facts, illegal grant of licence in 2G Mobile Service at the
behest of Minister - Representation dated 29. 11. 2008 to the
Prime Minister for according sanction for prosecution of the
Minister for offences under the 1988 Act by appellant (private
E citizen) - Repeated reminders from 30.05.2009 to 13.03.2010
- Case of the appellant that he had placed sufficient evidence
- Meanwhile on direction by CVC, CBI registered FIR - 16
months after the appellant's first representation, intimation to
the appellant that grant of sanction for prosecution would arise
only after perusal of the evidence collected by the
F investigating agency and other material provided to the
·Competent Authority- Writ petition by appellant seeking issue
of a mandamus to Prime Minister to pass an order for grant
of sanction for prosecution of the Minister - Dismissed by
High Court holding that the matter was being investigated by
G the CBI, and the investigation was in progress -
Subsequently, the Minister resigned, though he continued to
be a Member of Parliament - On appeal, held: Appellant had
right to file complaint for prosecution of the Minister as there
is no bar either in the 1988 Act or Cr. P. C. - It cannot be said
H 52
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 53
SINGH AND ANR.
that grant of sanction for prosecution of a public servant arises A
only at the stage of taking cognizance and any request made
prior to that is premature - While considering grant or refusal
of sanction, the Competent Authority is to see whether the
material collected by the complainant or the investigating
agency prima facie disclose commission of an offence by a B
public servant - It cannot undertake detailed enquiry -
Further, the material placed on record does not show that the
CBI had registered a case or started investigation at the
instance of Prime Minister - High Court proceeded under a
wholly erroneous assumption - Even though the appellant c
repeatedly wrote letters to Prime Minister highlighting the
seriousness of the allegations made in his first representation
and that he had already supplied the facts and documents
on basis of which sanction could be granted for prosecution
of the Minister, the concerned officers in the PMO kept the D
matter pending and then took the shelter of the fact that the
CBI had registered the case and the investigation was
pending - Officers in the PMO and the Ministry of Law and
Justice, were duty bound to apprise Prime Minister about
seriousness of allegations made by the appellant and the
directions in *Vineet Narain's case that time limit of three E
months for grant of sanction for prosecution must be strictly
adhered to with one month additional in specified situation,
as also the guidelines framed by the eve so as to enable
him to take appropriate decision in the matter - Thus, the
order of the High Court is set aside - However, since the Court F
of Special Judge, CBI has already taken cognizance of the
offences allegedly committed by the Minister under the 1988
Act, no other direction issued - In future every Competent
Authority to take appropriate action for grant of sanction for
prosecution of a public servant strictly in accordance with the G
direction in *Vineet Narain v. Union of India and the
guidelines framed by the eve.
Previous sanction for prosecution - Necessity of -
Offence allegedly committed by Minister (Public servant) H
54 SUPREME COURT REPORTS [2012] 3 S.C.R.
A under the 1988 Act - Sanction for prosecution - Requirement
of, even after he resigned from the Council of Ministers,
though he continued to be a Member of Parliament - Held:
Sanction for prosecution not necessary as clearly answered
by the Constitution Bench in **R.S. Nayak v. A.R. Antulay's
s case.
Sanction for prosecution ·- Time limit for Competent
Authority to grant sanction - Held: In terms with the directions
laid down in *Vineet Narain v. Union of India, time limit of
three months for grant of sanction for prosecution must be
C strictly adhered to - f-lowever, additional time of one month
may be allowed where consultation is required with the
Attorney.General or any other law officer in AG's office.
Sanction for prosecution - Person for whose prosecution
D sanction sought - Opportunity of hearing by Competent
Authority - Held: Grant or refusal of sanction is not a quasi
judicial function - Said person is not required to be heard by
the Competent Authority before it takes a decision in the
matter - Competent Authority is required to see whether the
E material collected by the complainant or the investigating
agency prima facie disclose commission of an offence by a
public servant - It cannot undertake a detailed inquiry - If
material placed are sufficient for sanction, then Competent
Authority is required to grant sanction, otherwise, it can refuse
F - In either case, said decision is to be communicated to him
to avail appropriate legal remedy.
Words and Phrases - 'Cognizance' - Meaning of.
Licences in 2G mobile services were granted illegally
G at the behest of respondent No. 2 (Minister for
Communication and Information Technology) causing
loss of thousands of crores of rupees to the
Government. Appellant made a representation dated
29.11.2008 to respondent No. 1 (Prime Minister) to accord
H sanction for prosecution of respondent No.2 for offences
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 55
SINGH AND ANR.
under the Prevention of Corruption Act, 1988. The A
appellant did not receive any response from respondent
No.1. He sent repeated letters from 30.5.2009to13.3.2010.
Meanwhile on being directed by Central Vigilance
Commission (CVC), the Central Bureau of Investigation
(CBI) registered first information report against B
respondent No. 2. In one of the letter, the appellant
claimed that it was not necessary to carry out a detailed
inquiry, and that he had produced sufficient evidence for
grant of sanction to initiate criminal prosecution against
respondent No. 2. 16-1/2 months after the appellant's first c
letter, Secretary, Department of Personnel and Training,
Ministry of Personnel sent a letter to the appellant that the
CBI had registered a case on 21.10.2009 against
unknown officers of the Department of
Telecommunications (DoT), unknown private persons/ D
companies and others; 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
would be pre-mature to consider sanction for
prosecution at that stage. The appellant then filed a writ . E
petition and prayed for iss.ue of a mandamus to
-respondent No.1 to pass an order for grant of sanction
for prosecution of respondent No. 2 for offences under
Sections 11 and 13(1)(d) of the 1988 Act. The Division
Bench of the High Court dismissed the writ petition F
holding that 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 respondent
No. 1 to take a decision on sanctioning prosecution.
Thus, the appellant filed the instant appeal. G
1
After filing of SLP, respondent No. 2 resigned from
the Council of Mini.sters on 14.11.2010, though he
continued to be a member of Parliament.
H
56 ·SUPREME COURT REPORTS [2012] 3 S.C.R.
A Th~ ,question which arose for consideration in the
instant appeal were whether a complaint can be filed by
a citizen for prosecuting a public servant for an offence
under the Prevention of Corruption Act, 1988; and
whether the authority competent to sanction prosecution
B of a public servant for offences under the 1988 Act is
required to take an appropriate decision within the time
specified in clause 1(15) of the directior.s contained in
paragraph 58 of the judgment of this Court in * Vineet
Narain v. Union of India (1998) 1 SCC 226 and the
C guidelines issued by the Central Government,
Department of Personnel and Training and the (CVC).
Allowing the appeal, the Court
HELD: Per Singhvi, J: (For himself ~nd Ganguly, J)
D
1.1. The question whether sanction for prosecution
of respondent No.2 for the offences allegedly committed
by him under the Prevention of Corruption Act, 1988 is
required ,even after he resigned from the Council of
E . Ministers, though he continues to be a Member of
Parliament, has already been answered by the
Constitution Bench in **R. S. Nayak v. A. R. Antu/ay's
case that if a public servant has ceased to hold the office
as public servant which he is alleged to have abused or
misused ,for corrupt motives on the date of taking
F cognizance of an offence alleged to have been committed
by him as a public servant and holds an entirely different
public office which he is neither alleged to have misused
or abused for corrupt motives, the sanction of authority ·
competent to remove him from such latter office would
G be not necessary. [Para 15) [81-F-H; 82-A]
**R. S. Nayak v. A. R. Antu/ay (1984) 2 SCC 183 -
followed.
Habibul/sa Khan v. State of Orissa (1995) 2 SCC 437: r
H
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 57
SINGH AND ANR.
1995 (1) SCR 819; State of H.P. v. M. P. Gupta (2004) 2 SCC A
349; 2003 (6) Suppl. SCR 541; Parkash Singh Badal v. State
of Punjab (2007) 1 SCC 1: 2006 (10 ) Suppl. SCR 197;
Balakrishnan Ravi Menon v. Union of India (2007) 1 SCC 45
- referred to.
B
1.2. There is no provision either in the 1988 Act or the
Code of Criminal Procedure, 1973 which bars a citizen
from filing a complaint for prosecution of a public servant
who is alleged to have committed an offence. The
appellant has the right to file a complaint for prosecution
of respondent No.2 in respect of the offences allegedly C
committed by him under the 1988 Act. [Paras 18 and 19)
[86-D-E; 92-F]
**A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC
500: 1984 (2) SCR 914 - followed. D
H.N. Rishbud and lnder 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 -
referred to.
E
1.3. The submission 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 F
judicial precedents relied upon. Though, the term
'cognizance' has not been defined either in the 1988 Act
or the Cr.P.C., the same has acquired a definite meaning
and connotation from various judicial precedents. In legal
parlance cognizance is "taking judicial notice by the court G
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". [Para 20) [92-G-H; 93-A-B]
R. R. Chari v. State of U. P. (1951) SCR 312; H
58 SUPREME COURT REPORTS [2012] 3 S.C.R.
A Superintendent and Remembrancer of Legal Affairs v Abani
Kumar Banerjee AIR 1950 Cal. 437; State of West Bengal
v. Mohd. Khalid (1995) 1 SCC 68'4 :1994 (6) Suppl. SCR 16;
State through C.8.1. v. Raj Kumar Jain (1998) 6 SCC 551:
1998 (3) SCR 957; K. Kalimuthu v. State (2005) 4 SCC 512:
B 2005 (3) SCR 1; Centre for Public Interest Litigation v. Union
of India (2005) 8 SCC 202: 2005 (4) Suppl. SCR 77; State
of Karnataka v. Pastor P. Raju (2006) 6 SCC 728: 2006 (4)
Suppl. SCR 269 - referred to.
1.4. At the time of taking cognizance of the offence,
C 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
D the matter. However, before issuing the process, 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
E offence has been made out the Court may direct the
issue of process to the respondent and take further steps
in the matter. If it is a charge-sheet filed under Section 173
Cr.P.C., the facts stated by the prosecution in the charge-
sheet, on the basis of the evidence collected during
F 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 sift the evidence to come to the conclusion whether
or not an offence has been made out. [Para 26] [96-G-H;
G 97-A-C]
1.5. The 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
H matter. What is required to be seen by the Competent
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 59
SINGH AND ANR.
Authority is whether the facts placed before it which, in A
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 B
servant, then it is required to grant sanction. If the
satisfaction of the Competent Authority is otherwise, then
it can refuse sanction. In either case, the decision taken
on the complaint made by a citizen is required to be
communicated to him and if he feels aggrieved by such c
·decision, then he can avail appropriate legal remedy.
[Para 27) [97 -C-F]
1.6. The CVC framed guidelines which were
circulated vide office order No. 311512005 dated 12.5.2005.
The said guidelines are in conformity with the law laid D
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 E
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. [Para 31) [101-
B-C]
F
**Vineet Narain v. Union of India (1998) 1 SCC 226 -
relied on.
Vineet Narain v. Union of India 1996 (1) SCALE (SP) 42;
Vineet Narain v. Union of India (1996) 2 SCC 199: 1996 (1)
SCR 1053; Vineet Narain v. Union of India (1997) 4 SCC G
778; Vineet Narain v. Union of India (1997) 5 SCALE 254;;
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 (1995)
6 SC 225 - referred to. H
60 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 1.7. 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
B of licences by respondent No.2 had resulted in huge loss
to the Public Exchequer, the CVC got conducted an
inquiry under Section 8(d) of the Central Vigilance
Commission Act, 2003 and forwarded a copy of the report
to the Director, CBI for making an investigation into the
c 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 dated 21.10.2009 against unknown
officials of the DoT, unknown private persons/companies
and others for offences under Section 120-B IPC read
D 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
E case or started investigation at the instance of
respondent No.1. [Para 32] [101-D-H; 102-A]
1.8·. On his part, the appellant had submitted
representation to respondent No. 1 almost one year prior
F 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
G respondent No.1 at regular intervals. The affidavit filed by
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 cas~. Surprisingly, instead of complying with
H the direction given by respondent No.1 the concerned
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 61
SINGH AND ANR.
officer sent the appellant's representation to the DoT A
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 B
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 c
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 D
required to be made into the allegations, the concerned
officers in the PMO kept the matter pending and then took
the shelter of the fact that the CBI had registered the case
and the investigation was pending. The officers in the
PMO and the Ministry of Law and Justice, were duty
bound to apprise respondent No.1 about seriousness of E
allegations made by the appellant and the judgments of
this Court including the directions contained in paragraph
58(1) of the judgment in **Vineet Narain's case that time
limit of three months for grant of sanction for prosecution
must be strictly adhered to, however, additional time of F
one month may be allowed where con.sultation is req!Jired
with the Attorney General or any other law officer in AG's
office, as also the guidelines framed by the eve so as to
enable him to take appropriate decision in the matter. By
the very nature of the office held by him, respondent No. G
1 is not expected to personally look into the minute
details of each and every case pl'!ced 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 H
62 SUPREME COURT REPORTS [2012] 3 S.C.R.
A position before him failed to do so. 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
B than o,ne year. [Para 33] [102-B-H; 103-A-C]
1.9. T~e impugned order is set aside. It is declared
that the appellant had the right to file a complaint for
prosecuting respondent No.2. However, keeping in view
the fact that the Court of Special Judge, CBI has already
C taken cognizance of the offences allegedly committed by
respondent No.2 under the 1988 Act, it is not necessary
to give any other direction in the matter. At the same time,
it is observed that in future every Competent Authority
shall take appropriate action on the representation made
D 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 and the
guidelines framed by the CVC. [Para 34] [103-D-F]
E **Vineet Narain v. Union of India (1998) 1 SCC 226 -
relied on.
Devarapal/i Lakshminarayana Reddy v. V. Narayana
Reddy (1976) 3 SCC 252: 1976 (0) Suppl. SCR 524; Ram
Kumar v. State of Haryana (1987) 1 SCC 476: 1987 (1) SCR
F 991; Krishna Pillai v. T.A. Rajendran 1990 (Supp) SCC 121;
State of H.P. v. M. P. Gupta (2004) 2 SCC 349: 2003 (6)
Suppl. SCR 541- referred to.
Per Ganguly, J: ·(Supplementing)
G
1.1. Today, corruption in the country not only poses
a grave danger to ~he concept of constitutional
governance, it also threatens the very foundation of
Indian democracy and the Rule of Law. The magnitude
H of corruption in the public life is incompatible with the
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 63
SINGH AND ANR.
concept of a socialist, secular democratic republic. It A
cannot be disputed that where corruption begins all rights
end. Corruption devalues human rights, chokes
development and undermines justice, liberty, equality,
fraternity which are the core values in the preambular
vision. Therefore, the duty of the Court is that any anti- B
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 c
one which seeks to perpetuate it. [Paras 11) [107-D-F]
Sanjiv Kumar v. State of Haryana & Ors. (2005) 5 SCC
517; State of A.P. v. V. Vasudeva Rao (2004) 9 SCC 319:
2003 (5) Suppl. SCR 500; Shobha Suresh Jumani v.
Appellate Tribunal Forfeited Property & Anr. (2001) 5 SCC D
755: 2001 (3) SCR 525; State of M.P. & Ors. v. Ram Singh
(2000) 5 SCC 88: 2000 (1) SCR 579; J. Jayalalitha v.. Union
of India & Anr. (1999) 5 SCC 138: 1999 (3) SCR 653; Major
S.K. Kale v. State of Maharashtra (1977) 2 SCC 394: 1977
(2) SCR 533 - referred to. E
1.2. 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 F
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 G
the question of bringing orderliness in society and
maintaining equal balance in the rule of law. [Para 17]
[109-B-C] .
Sheonandan Paswan vs. State of Bihar and Ors. (1987)
1 SCC 288: 1987 (1) SCR 702 - referred to. H
64 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 1.3. Section 19 of the Prevention of Corruption Act,
1988 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,
B virtually imposes fetters on private citizens and also on
prosecutors from approaching Court against corrupt
public servants. These protections are not av~ilable to
other citizens. Public servants are treated as a special
class of persons enjoying the said protection so that they
C 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
D analogous to provisions of protective discrimination a·nd
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
E 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
F 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 and
cause of justice is advanced. In considering the question
of granting or refusing such sanction, the authority is
G 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
H
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 65
SINGH AND ANR.
requirement to bring the culprit to book. Therefore, the A
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 B
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 c
past or may be in the future and the sanctioning authority
and the corrupt officials were or are partners in the same
misdeeds. This may not be factual position in the instant
case, but the general demoralizing effect of such a
popular perception is profound and pernicious. By D
causing delay in considering the request for sanction, the
sanctioning a'uthority 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
E
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.
Under Section 19 of the P.C. Act, no time limit is
mentioned. This has virtually armed the sanctioning
authority with unbridled power which has often resulted F
in protecting the guilty and perpetuating criminality and
injustice in society. [Para 18] [109-G-H; 110-A-H; 111A-D]
Mahendra Lal Das vs. State of Bihar and Ors. (2002) 1
SCC 149: 2001 (4) Suppl. SCR 157; Santosh De vs. Archna G
Guha and Ors. (1994) Supp.3 SCC 735 - referred to.
1.4.-Article 14 must be construed as a guarantee
against uncanalized and arbitrary power. Therefore, the
absence of any time limit in granting sanction in Section
19 of the P .C. Act is not in consonance with the H
66 SUPREME COURT REPORTS (2012] 3 S.C.R.
A requirement of the due process of law which has been
read into the Constitution. [Para 20) [111-H; 112-A].
Maneka Gandhi vs. Union of India and Anr. (1978) 1
SCC 248: 1978 (2) SCR 621 - referred to.
B 1.5 Section 19 of the P.C. Act is constitutionally valid.
The power under Section 19 of the P.C. Act must be
reasonably exercised. The Parliament and the
appropriate authority must consider restructuring
Section 19 of the P.C. Act in such a manner as to make it
C consonant with reason, justice and fair play. [Para 21)
[112-B] .
Kalicharan Mahapatra vs. State of Orissa (1998) 6 SCC
411: 1998 (3) SCR 961; Latu Prasad vs. State of Bihar 2007
D (1) SCC 49: 2006 (10) Suppl. SCR 251; State of Uttar
Pradesh vs. Paras Nath Singh (2009) 6 SCC 372: 2009 (8)
SCR 85; Dilawar Singh vs. Parvinder Singh alias Iqbal Singh
and Anr. (2005) 12 SCC 709: 2005 (5) Suppl. SCR 83 -
referred to.
E R. v. Horseferry Road Magistrates'Court ex p. Bennett
(1994) 1 AC 42 - referred to.
1.6. The Parliament should consider the
Constitutional imperative of Article 14 enshrining the rule
F of law wherein 'due process of law' has been read into
by introducing a time limit in Section 19 of the P.C. Act
1988 for its working in a reasonable manner. The
Parliament may, consider the following guidelines:
(a) All proposals for sanction placed before any
G 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.
H
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 67
SINGH AND ANR.
(b) Where consultation is required with the Attorney A
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· B
consultation is to be sent in writing within the three
months mentioned in (a) above. A copy of the said
request would be sent to the prosecuting agency or
the private complainant to intimate them about the
extension of the time limit. c
(c) At the end of the extended period of time limit, if
no decision is taken, sanction would be deemed to
have been granted to the proposal for prosecution,
and the prosecuting agency or the private
complainant would proceed to file the charge sheet/ D
complaint in the court to commence prosecution
within 15 days of the expiry of the aforementioned
time limit. [Para 22) [112-C-H; 113-A-B]
Case Law Reference: E
. Singhvi, J and Ganguly, J:
1951 SCR 312 Referred to. Para 9
1976 (0) Suppl. SCR 524 Referred to. Para 9
F
1987 (1) SCR 991 Referred to. Para 9
1990 (Supp) sec 121 Referred to. Para 9
1994 (6) Suppl. SCR ·15 Referred to. Para 9
G
1998 (3) SCR 957 Referred to. Para 9
2005 (3) SCR 1 Referred to. Para 9
2005 (4 ) Suppl. SCR 77 Referred to. Para 9·
H
68 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 2006 (4) Suppl. SCR 269 Referred to. Para 9
(1984) 2 sec 183 Referred to. Para 15
1995 (1) SCR 819 Referred to. Para 16
2003 (6 ) Suppl. SCR 541 Referred to. Para 16
B
2006 (10) Suppl. SCR 197 Referred to. Para 16
(2007) 1 sec 45 Referred to. Para 16
1984 (2) SCR 914 Referred to. Para 18
c (1955) 1 SCR 1150 Referred to. Para 18
1959 Supp. (2) SCR 201 Referred to. Para 18
AIR 1957 M.B. 43 Referred to. Para 18
D (1951) SCR 312 Referred to. Para 20
1996 (1) SCALE (SP) 42 Referred to. Para 28
1996 (1) SCR 1053 Referred to. Para 28
E (1997) 4 sec 118 Referred to. Para 28
(1997) 5 SCALE 254 Referred to. Para 28 .
(1998)1 sec 226 Relied on. Para 31, 33,
34
F (1996) Crl. Law Journal 2962 Referred to. Para30 ·
1991 Supp. 1 sec 222 Referred to. Para 30
(1995) 6 SC 225 Referred to. Para 30
G Ganguly, J
1998 (3) SCR 961 Referred to. Para 3
2006 (10) Suppl. SCR 251 Referred to. Para 4
2009 (8) SCR 85 Referred to. Para 7
H
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 69
SINGH AND ANR.
2005 (5) Suppl. SCR 83 Referred to. Para 8 A
(2005) 5 sec 517 Referred to. Para 12
2003 (5) Suppl. SCR 500 Referred to. Para 12
2001 (3)· SCR 525 Referred to. Para 12 B
2000 (1) SCR 579 Referred to. Para 12
1999 (3) SCR 653 Referred to. Para 12
1977 (2) SCR 533 Referred to. Para 12
c
(1994) 1 AC 42 Referred to. Para 14
1987 (1) SCR 702 Referred to. Para 17
2001 (4) Suppl. SCR 157 Referred to. Para 19
(1994) Supp.3 sec 735 Referred to. Para 19 D
1978 (2) SCR 621 · Referred to. Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1193 of 2012.
E
From the Judgment & Order dated 18.08.2010 of the High
Court of Delhi at New Delhi in W.P. (C) No. 2442 of 2010.
Dr. Subramanian Swamy Petitioner-In-Person.
F
Goolam E. Vahanvati, AG, Devadatt Kamat, Anoopam N.
Prasad, Rohit Sharma for the Respondent.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted .. G
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 H
70 SUPREME COURT REPORTS [2012] 3 S.C.R.
A appropriate decision within the time specified in clause 1(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 Central Government,
Department of Personnel and Training and the Central
B 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
C 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
D 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
E 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.l(Vol.ll)/49
F dated 14.12.2005 and, thereby, 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
G 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
H spectrum licences, Swan Telecom and Unitech sold their stakes
11
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 71
SINGH AND ANR. [G.S. SINGHVI, J.]
to foreign companies, i.e., Etisalat, a telecom operator from A
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 B
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: c
"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 D
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 lnfonet Services E
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 F
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 0. Alfi, specializing in
automobile spare parts. In turn, Swan has sold 45% of its G
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. . H
72 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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 PIE, because the
eve has already done the preliminary enquiry.
Quite surprisingly, the 2G spectrum licences were priced
c at 2001 levels to benefit these private players. That was
when there were only 4 million cellphone subscribers; now
it is 350 million. Hence 2001 price is not applicable today.
Immediately after acquiring 2G spectrum licences both
D 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
E
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
Hs.50,000 crores and is said to be one of the biggest
F 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
G 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
H· and suggested to the Telecom Ministry that spectrum
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 73
SINGH AND ANR. [G.S. SINGHVI, J.]
allocation be made through a transparent tender and A
auction process. This is confirmed by what the TRAI
Chairman N. Misra told the Cll 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 B
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 C
upon by the learned Attorney General for showing that the
appellant had himself asked for an investigation, is also
extracted below:
"According to an uncontradicted report in CNN-IBN news
channel of November 26, 2008, you are said to be "very D
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.
E
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)."
F
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 G
that on being directed by the CVC, the Central Bur~au 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 H
74 SUPREME COURT REPORTS [2012] 3 S.C.R.
A according to various Supreme Court judgments it was not
necessa1y to carry out a detailed inquiry, and he had produced
sufficient evidence for grant of sanction to initiate criminal
prosecution against respondent No. 2 for the misuse of authority
and pecuniary gains from corrupt practices. In his subsequent
B 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
c 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,
D 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
E 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 would be
premature to consider sanction for prosecution at that stage.
F 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
G 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
H observations:
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 75
SINGH AND ANR. [G.S. SINGHVI, J.]
"The question that emanates for consideration is whether, A
at this stage, when the investigation by the CBI is in
progress and this Court had earlier declined to monitor the
same by order dated 25th May, 2010, which has been
pressed into service by the learned Solicitor General of
India, it would be appropriate to direct the respondent no. B
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 C
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."
7. The special leave petition filed by the appellant, out of
which this appeal arises, was initially taken up for consideration D
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 E
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, ~eeping in view
the fact that the record sought to be produced by the learned F
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: G
"(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 H
76 'SUPREME COURT REPORTS [2012] 3 S.C.R.
A prepared a note dated 5.12.2008 factually summarizing the
allegations and seeking approval to obtain the factual
position from the sectoral side (in the PMO dealing with
Telecommunications).
B (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.
c (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).
"]':he same were forwarded to the Department of
D 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
E
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
F 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".
G (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
bf Law and Justice should examine and advice. The advice
. bf Ministry of Law and Justice was received on 8.2.2010.
H · Para 7 thereof was as follows:
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 77
SINGH AND ANR. [G.S. SINGHVI, J.]
"From the perusal of letter dated 23.10.2009 and A
31.10.2009, it is noticed that Shri Swamy wants to
rely upon the action and investigation of the CBI to
collaborate and strengthen the said allegation
leveled by him against Shri A. Raja, Minister for
Communication and Information Technology. It is B
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 c
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 D
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 E
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 F
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 G
in the judgment in Vineet Narain's case should be decided.
10. During the course of hearing, the learned Attorney
General filed written submissions. After the hearing concluded,
the learned Attorney General filed supplementary written H
78 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
8
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
C investigation with regard to some of the facets of what has come
to be termea 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
D 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 complaint for prosecution of the concerned public
E 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 1(15) of the directions contained in paragraph 58 of
Vineet Narain's case, more so because he had placed
F 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
G 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
H to have been committed by a public servant and there is no
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 79
SINGH AND ANR. [G.S. SINGHVI, J.]
provision for grant of sanction at a stage before the competent A
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. State of Uttar B
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 C
Kumar Jain (1998) 6 SCC 551, K. Kalimuthu v. State (2005)
4 SCC 512, Centre for Public lf)terest 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 D
prosecute respondent No.2 for the alleged offences under the
1988 Act was wholly misconceiyed 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 E
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 F
and the loss, if any, suffered by the Public Exchequer.
14. We have considered the respective submissions.
Section 19 of the 1988 Act reads as under:
"19. Previous sanction necessary for prosecution. - (1) No G
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, -
H
80 SUPREME COURT REPORTS (2012] 3 S.C.R.
A (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
(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
(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
D 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
E
been committed.
(3) Notwithstanding anything contained in the Code of
C,riminal Procedure, 1973 (2 of 1974),-
F (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-
G section (1 ), unless in the opinion of that court, a ·
failure of justice has in fact been occasioned
thereby;
(b) no court shall stay the proceedings under this
Act on the ground of any error, omission or
H
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 81
SINGH AND ANR. [G.S. SINGHVI, J.]
irregularity in the sanction granted by the authority, A
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 B
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 C
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.
D
Explanation. - For the purposes of this section,
(a) error includes competency of the authority to
grant sanction;
(b) a sanction required for prosecution includes E
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."
F
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, need not detain us because the same has already G
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 H
82 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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
c 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
D
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
E not be necessary; but if .after committing the offence an'd
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
F 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
G cannot be the law. Such an interpretation of Section 6
would render it as a shield to an unscrupulous public
servant. Someone interested in protecting may shift him
from one office of public servant to another and thereby
defeat the process of law. One can legitimately envisage
H a situation wherein a person may hold a dozen different
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 83
SINGH AND ANR. [G.S. SINGHVI, J.]
offices, each one clothing him with the status of a public A
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 B
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 c
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 D
the two decisions purport to lay down that everi 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 E
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 F
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 G
6."
16. 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 H
84 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B observed:
"Hence, it is difficult to accept the contention raised by Mr.
~.R. Lalit, the learned Senior Counsel for the petitioner that
the aforesaid finding given by this Court in Antulay case
is obiter.
c
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
D 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
E 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
Linder:
•
"19. Previous sanction necessary for
F 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,-
G (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;
H
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 85
SINGH AND ANR. [G.S. SINGHVI, J.]
(b) in the case of a person who is employed in A
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;
8
(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 doL1bt
arises as to whether the previous sanction as
required under sub-section (1) should be given by C
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 o·
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 E
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 F
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 G
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 five years' tenure. H
86 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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."
B (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
C 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
0
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
E 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.
F Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500. The
facts of that case show that on a private complaint filed by the
respondent, the Special Judge took cognizance of the offences
allegedly committed by the appellant. The latter objected to the
jurisdiction of the Special Judge on two counts, including the
G 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
H
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 87
SINGH AND ANR. [G.S. SINGHVI, J.]
filed by the appellant was heard by the Division Bench of the A
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 SA of the Prevention of Corruption B
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 19S2 Act. Before the
Supreme Court, the argument against the locus standi of the
respondent was reiterated and it was submitted that Section c
SA of the 1947 Act is mandatory and an investigation by the
designated officer is a condition precedent to the 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 D
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 E
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. F
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. G
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 H
88 . -SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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
c 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 complainant is a
concept foreign to criminal jurisprudence. In other words,
the principle that anyone can set or put the criminal law
in motion remains intact unless contra-indicated by a
D
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 fi}r the time being in force is not merely an offence
committed relation to the person who suffers harm but is
E also an offence against society. The society for its orderly
and 1peaceful 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
F 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.
G 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
H unknown to criminal jurisprudence, save and except
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 89
SINGH AND ANR. [G.S. SINGHVI, J.]
specific statutory exception. To hold that such an exception A
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 B
provision."
(emphasis supplied)
The Constitution Bench then considered whether the Special
Judge can take cognizance only on the basis of a police report C
and answered the same in negative in the following words:
"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 D
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
E
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
F
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 G
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 H
90 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B court to go in search of a hidden or implied limitation on
the power of the Special Judge to take cognizance
unfettered by such requirement of its being done on a
police report alone. In our opinion, it is no answer to this
fairly well-established legal position that for the last 32
years no case has come to the notice of the court in which
c cognizance was taken by a Special Judge on a private
complaint for offences punishable under the 1947 Act."
(emphasis supplied)
D The Court then referred to Section SA of the 1947 Act,
the provisions of the 1952 Act, the judgments in H. N. Rish bud
and lnder 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:
E "Havingyarefully 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
F 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
G 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.
H Once the contention on behalf of the appellant that
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 91
SINGH AND ANR. [G.S. SINGHVI, J.]
investigation under Section 5-A is a condition precedent A
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. B
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 C
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 Judge to take
cognizance of such offences conferred by Section 8(1) D
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 E
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 F
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 G
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 H
92 SUPREME COURT REPORTS [2012] 3 S.C.R.
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
B 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
c that upon arrest by police, the arrested person must be
produced before the nearest Magistrate within twenty-four
hours of the arrest. Further, numerous provisions of the
Code of Criminal Procedure such as Section 161, Section
164, and Sectio·n 25 of the Indian Evidence Act would
show the Legislature's hesitation in placing confidence on
D
police officers away from court's gaze. And the very fact
that power is conferred on a Presidency Magistrate or
Magistrate of the first class to permit police officers of
lower rank to investigate these offences would speak for
the mind of the Legislature that the court is a more reliable
E safeguard than even superior police officers."
(emphasis supplied)
19. In view of the aforesaid judgment of the Constitution
F 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 ofgranting sanction for prosecution of a public servant
G 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
H same has acquired a definite meaning and connotation from
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 93
SINGH AND ANR. [G.S. SINGHVI, J.]
various judicial precedents. In legal parlance cognizance is A
"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 three Judge Bench B
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 C
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 D
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 E
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." F
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 G·
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 H
94 SUPREME COURT REPORTS [2012] 3 S.C.R.
A entirely a different thing from initiation of proceedings;
rather, it is the condition precedent to the initiation of
proceedings by the Magistrate or the Judge. Cognizance
is taken of cases and not of persons." ·
22. In Pastor P. Raju's case, this Court referred to the
8
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
C 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
D 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."
E 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
F 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 proces~ is at a subsequent
stage when after considering the material placed before
·G it the court decides to proceed against the offenders
against whom a prima facie case is made out."
23. In Kalimuthu's case, the only question considered by
this Court was whether in the absence of requisite sanction
H under Section 197 CrPC, the Special Judge for CBI cases,
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 95
SINGH AND ANR. [G.S. SINGHVI, J.]
Chennai did not have the jurisdiction to take cognizance of the A
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
B
"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 C
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."
D
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 E
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 substantiated. The Special Judge declined to
accept the report submitted under Section 173(2) CrPC by F
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 G
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 H
96 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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
c 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
D
of the charge-sheet. It must, therefore, be said that both
the Special Judge and the High Court were patently wrong
in observing that the CBI was required to obtain sanction
from the prosecuting authority before approaching the
Court for accepting the report under Section 173(2) CrPC."
E
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
F 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
G 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
H process, it that it is open to the Court to record the evidence
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 97
SINGH AND ANR. [G.S. SINGHVI, J.]
and on consideration of the averments made in the complaint A
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. If it is a charge-sheet filed
under Section 173 CrPC, the facts stated by the prosecution B
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 sift the
evidence to come to the conclusion whether or not an offence c
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 D
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 E
satisfied that the material placed before it is sufficient for
pr.osecution 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 F
to be communicated to him and if he feels aggrieved by such
decision, then he can avail appropriate legal remedy.
28. In Vineet Narain's case, the Court entertained the writ
petitions filed in public interest for ensuring investigation into G
what came to be known as 'Hawala case'. The writ petition
remained pending for a~most 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 H
98 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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
c means and a nexus between several important politicians,
bureaucrats and criminals, who were recipients of money from
unlawful sources, and proceeded to observe:
"The facts and circumstances of the present case do
indica!e that it is of utmost public importance that this
D 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 Constitutiori and the basic tenet
E 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
F 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
G 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
H entrusted with certain powers to be exercised in public
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 99
SINGH AND ANR. [G.S. SINGHVI, J.]
interest alone and, therefore, the office is held by them in A
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 B
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 duty of the judiciary to enforce
the rule of law and, therefore, to guard against erosion of
the rule of law. c
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 D
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 E
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."
F
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 (1)(15), the Court gave the following
direction:
"Time-limit of three months for grant of sanction for G
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."
H
100 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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, (1995) 6 SC 225, framed
B 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
c 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.
D
(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 1.0. to offer
E 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
F 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
G 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.
H (viii) If the Sanctioning Authority seeks the comments of
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 101
SINGH AND ANR. [G.S. SINGHVI, J.]
the 10 while the matter is pending before it for sanction, it A
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 B
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 C
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 tile appellant. In this context,
it is apposite to observe that the High Court had proceeded D
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 E
Public Exchequer, the eve 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 F
policy of the DoT and to bring to book all the wrongdoers.
Thereupon, the CBI registered FIR No.RC-Dl-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) G
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
H
102 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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 prior to the registration
of the first information report by the CBI and highlighted the
B 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 No.1 at regular intervals. The affidavit filed
by Shri V. Vidyawati, Director in the PMO shows that the matter
C 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
D 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
E 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
F had already supplied the facts and docum.ents 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
pending and then took the shelter of the fact that the CBI had
G 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
H paragraph 58(1) of the judgment in Vineet Narain's case as also
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 103
SINGH AND ANR.
the guidelines framed by the CVC so as to enable him to take A
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 B
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 c
have allowed the matter to linger for a period of more than oae
year.
34. In the result, the appeal is allowed. The impugned order
is set aside. It is declared that the appellant had the right to
file a complaint for prosecuting respondent No.2. However, D
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 E
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. F
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. G
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 det.ails of each and every matter and the H
104 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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
C 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
D prosecution of the respondent No.2 in respect of the offences
alleged to have been committed by him under the 1988 Act.
Therefore, I agree with the finding of brother Singhvi, J .. that
the argument of the learned Attorney General to the contrary
cannot be accepted. Apart from that the learned Attorney
E 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"),
F 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
G same is contrary to the scheme of Section 19 ofthe P.C. Act
and also Section 197 of the Code. In Ka/icharan Mahcipatra
vs. State of Orissa reported in (1998) 6 SCC 411, this Court
compared Section 19 of P.C. Act with Section 197 of the Code.
After considering several decisions on the point and also
H considering Section 6 of the old P.C. Act, 1947 which is almost
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 105
SINGH AND ANR. [ASOK KUMAR GANGULY, J.]
identical with Section 19 of the P.C. Act, 1988 and also noting A
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 8
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. C
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."
D
4. The above passage in Kalicharan (supra) has been
quoted with approval subsequently by this Court in Latu Prasad
vs. State of Bihar reported in 2007 (1) ,Sec 49 at paragraph
9, page 54. In paragraph 10, (page 54 pf the report) this Court
held in Latu Prasad (supra) that "Section 197 of the Code and E
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.
F
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. G
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 along with a complaint in connection with a prosecution H
106 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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
c '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
D offence alleged to have been committed during discharge
of his official duty."
(Para 6, page 375 of the report)
E 8. The other contention of the learned Attorney General is
that in taking cognizance under the P.C. Act the Court is guided
by the provisions under Section 190 of the Code and in support
of that contention the learned Attorney General relied on
,several judgments. However, the aforesaid submissions were
F 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:
G "...... 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
H non derogant would apply which means that if a special
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 107
SINGH AND ANR. [ASOK KUMAR GANGULY, J.]
provision has been made on a certain matter, that matter A
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 8
Section 19 of the Act will have an overriding effect over
the general provisions contained in Section 190 ...... "
9. Therefore, concurring with brother Singhvi; J., I am
unable to uphold the submission of the learned Attorney
General. C
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.
D
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 E
republic. It cannot be disputed that where corruption begins all
rights end. Corruption devalues human rights, chokes
development 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 F
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.
G
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 H
108 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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 SCC 138; Major S.K. Kale v. State of Maharashtra,
(1977) 2 sec 394.J
8 13. Learned Attorney General in the course of his
submission fairly admitted before us that out of total 319
requests for sanction, in respect of 126 of such requests,
sanction is awaited. Therefore, in more than 1/3rd cases of
request. for prosecution in corruption cases against public
C 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
D 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
E famous treatise on Administrative Law, Professor Wade while
elaborating the' concept of rule of law referred to the opinion of
Lord Griffith's which runs as follows:
"the judiciary accept a responsibility for the maintenance
of the rule of law that embraces a willingness to oversee
F 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]
G
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
H the famous formulation of Lord Coke where the learned Law
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 109
SINGH AND ANR. [ASOK KUMAR GANGULY, J.]
Lord made a comparison between "the golden and straight A
metwand of law" as opposed to "the uncertain and crooked cord
of discretion".
17. The right of private citizen to file a complaint against
a corrupt public servant must be equated with his right to
B
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 C
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:
D
"...... 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 the society that E
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 AR. Antulay v. R.S. Nayak this
Court pointed out that (SCC p. 509, para 6) "punishment F
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. ..... " G
18. Keeping those principles 1n 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 H
110 SUPREME COURT REPORTS [2012] 3 S.C.R.
A accorded sanction, virtually imposes fetters on private citizens
and also on prosecutors from approaching Court against corrupt
public servants. These protections are not available to other
citizens. Public servants are treated as a special class of
persons enjoying the said protection so that they can perform
B 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
c 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
D 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
E consideration. In doing so, the authority must make a conscious
effort to ensure the rule of law and 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
F 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
G sanctioning authority must l;lear 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
H a prayer for sanction, a protection is given to a corrupt public
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 111
SINGH AND ANR. [ASOK KUMAR GANGULY, J.]
official as a quid pro quo for services rendered by the public A
official in the past or may be in the future and the sanctioning
authority and the corrupt officials were or are partners in the
same misdeeds. I may hasten to add that this may not be
factual position in this but the general demoralizing effect of
such a popular perception is profound and pernicious. By B
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 C
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 D
authority with unbridled power which has often resulted in
protecting the guilty and perpetuating criminality and injustice
in society.
19. There are instances where as a result of delayed grant
of sanction prosecutions under the P.C. Act against a public E
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 sanctioningJUthority granted
sanction after 13 years. Similarly, in the case of Santosh De
vs. Archna Guha and Others, (1994) Supp.3 SCC 735, this F
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 G
time are being allowed to escape criminal prosecution.
20. Article 14 must be construed as a guarantee against
uncanalized and arbitrary power. Therefore, the absence of any
time limit in granting sanction in Section 19 of the P.C. Act is
not in consonance with the requirement of the due process of H .
112 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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
C consonant with reason, justice and fair play.
22. In my view, the Pari'iament 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 Section 19 of the P.C. Act 1988 for its working
D 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
E 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
F 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
G consultation is to be sent in writing within the three
months mentioned in (a) above. A copy of the said
request will be sent to the prosecuting agency or
the private complainant to intimate theni about the
extension of the time limit.
H
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN 113
SINGH AND ANR. [ASOK KUMAR GANGULY, J.]
(c) At the end of the extended period of time limit, if A
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 B
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 C
of the High Court is set aside. No costs.
·N.J. Appeal allowed.
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