Swamy v Singh - Private Citizen has a Right to ask for sanction to Prosecute a Public Servant - SC
IN this battle, Swamy vs Singh, Swamy won hands down in the Supreme Court, yesterday. The petitioner is the former Law Minister Dr. Subramanian swamy, Respondent No.1 is Dr. Manmohan Singh, Prime Minister of India and Respondent No. 2 is A. Raja, former Union Minister, now lodged in Tihar Jail.
For more than three years, Dr. Swamy has been vigorously pursuing, in public interest, the cases allegedly involving loss of thousands of crores of rupees to the Public Exchequer due to arbitrary and illegal grant of licences at the behest of Mr. A. Raja (respondent No. 2). After collecting information about the grant of licences, the appellant made detailed representation dated 29.11.2008 to respondent No. 1 to accord sanction for prosecution of respondent No. 2, which did not meet with much of success.
Dr. Swamy then filed a writ 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 Delhi High Court dismissed the petition on the ground that CBI had already started investigation. Dr. Swamy then approached the Supreme Court.
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 of a public servant for offences under the 1988 Act is required to take an appropriate decision within the time specified in clause I(15) of the directions contained in paragraph 58 of the judgment of the Court in Vineet Narain v. Union of India (2002-TIOL-203-SC-PIL) and the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission (CVC) are the questions in this appeal.
The Attorney General argued that the question of grant of sanction for prosecution of a public servant charged with any of the offences enumerated in Section 19(1) arises only at the stage when the Court decides to take cognizance and any request made prior to that is premature.
The Supreme Court was not impressed and observed that this argument is neither supported by the plain language of the section nor the judicial precedents relied upon by him.
Some observations of the Supreme Court:
Cognizance: Though, the term ‘cognizance' has not been defined either in the 1988 Act or the Cr.PC, the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is “taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially”.
Sanction to prosecute is not a quasi-judicial function: Grant or refusal of sanction is not a quasi-judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction. In either case, the decision taken on the complaint made by a citizen is required to be communicated to him and if he feels aggrieved by such decision, then he can avail appropriate legal remedy.
Locus Standi to file a complaint for prosecution: There is no provision either in the 1988 Act or the Code of Criminal Procedure, 1973 (CrPC) which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence. Therefore, the argument of the learned Attorney General that the appellant cannot file a complaint for prosecuting respondent No.2 merits rejection.
Right of Private Citizen to file Complaint: The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official. This right of access, a Constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the rule of law.
Public Servants - a Special Class? Public servants are treated as a special class of persons enjoying protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution, which was extended in public interest, cannot become a shield to protect corrupt officials. In considering the question of granting or refusing such sanction, the authority is answerable to law and law alone. Therefore, the requirement to take the decision with a reasonable dispatch is of the essence in such a situation. Delay in granting sanction proposal thwarts a very valid social purpose, namely, the purpose of a speedy trial with the requirement to bring the culprit to book. Therefore, in this case the right of the sanctioning authority, while either sanctioning or refusing to grant sanction, is coupled with a duty. The sanctioning authority must bear in mind that what is at stake is the public confidence in the maintenance of rule of law which is fundamental in the administration of justice. Delay in granting such sanction has spoilt many valid prosecution and is adversely viewed in public mind that in the name of considering a prayer for sanction, a protection is given to a corrupt public official as a quid pro quo for services rendered by the public official in the past or may be in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds.
In Future: In future every Competent Authority shall take appropriate action on the representation made by a citizen for sanction of the prosecution of a public servant strictly in accordance with the direction contained in Vineet Narain v. Union of India and the guidelines framed by the CVC.
Recommendation: All proposals for sanction must be decided within a period of three months; if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge sheet/complaint in the court to commence prosecution within 15 days of the expiry of the time limit.
Justice GS Singhvi gave the main judgement while Justice AK Ganguly gave a separate concurring judgement.
