DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN SINGH & Anr.

Judgment

: (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 SINGH AND ANR. 57 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. C D

1.4. At the time of taking cognizance of the offence, the Court is required to consider the averments made in the complaint or the charge sheet filed under Section 173. It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. However, before issuing the process, it 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 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; F 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 SINGH AND ANR. 59 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] **Vineet Narain v. Union of India (1998) 1 SCC 226 - F 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 to the registration of the first information report by the CBI and highlighted the grave irregularities committed in the grant of licences resulting in the loss of thousands of crores of rupees to the Public Exchequer. He continuously pursued the matter by sending letters to respondent 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 the direction given by respondent No.1 the concerned F G H DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN SINGH AND ANR. 61 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 than o,ne year. [Para 33] [102-B-H; 103-A-C] B 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 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.