IMPORTANT POINT
Any citizen may make representation for sanction of prosecution of a public servant whereupon the competent authority shall act within the time frame in accordance with (1998) 1 SCC 226 and CVC guidelines.

Headnote:(a) Prevention of Corruption Act, 1988 – Section 6 – No sanction is required for prosecution of a public servant for abuse of his previous office which he is not holding any more even though if he holds another public office at the time of taking cognizance. (Para 15)
        (1984) 2 SCC 183; (1995) 2 SCC 437; (2004) 2 SCC 349; (2007) 1 SCC 1; (2007) 1 SCC 45 – Relied upon
        (b) Prevention of Corruption Act, 1988 – Section 19 – The emphasis is on the words “who is employed” – Therefore the question of obtaining sanction is relatable to the time of holding the office – No sanction is required for prosecution for an offence committed while holding an office if the public servant has ceased to hold that office. (Para 16)
        (2007) 1 SCC 45; (2007) 1 SCC 1 – Relied upon
        (c) Locus standi – There is no provision either in the Prevention of Corruption Act, 1988 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. (Para 18)
        (1984) 2 SCC 500 – Relied upon
        (1955) 1 SCR 1150; 1959 Supp. (2) SCR 201; AIR 1957 M.B. 43 – Referred
        (d) Words and Phrases – Cognizance – 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” – It is entirely a different thing from initiation of proceedings – Rather it is the condition precedent to the initiation of proceedings – Cognizance is taken of cases and not of persons – Cognizance can be taken even without sanction u/s 197 Cr.P.C. (Paras 20, 21 and 23)
        1951 SCR 312; (1995) 1 SCC 684; (2005) 4 SCC 512 – Relied upon
        AIR 1950 Cal. 437 – Cited with approval
        (1976) 3 SCC 252; (1987) 1 SCC 476; 1990 (Supp) SCC 121; (1998) 6 SCC 551 –Distinguished
        (e) Code of Criminal Procedure, 1973 – Section 173 – At the stage of section 173 it is not open to the court to embark upon and shift the evidence to come to the conclusion whether or not an offence has been made out. (Para 26)
        (f) Prevention of Corruption Act, 1988 – Section 6 – Grant or refusal of sanction is not a quasi judicial function – 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. (Para 27)
        (g) Prevention of Corruption Act, 1988 – Section 19 – Time-limit of three months for grant of sanction for prosecution must be strictly adhered to – However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG’s office – CVC guidelines contained in office order No.31/5/05 dated 12.5.2005 being in conformity with the law laid down by the Supreme Court are to be followed. (Para 30)
        1996 (1) SCALE (SP) 42; (1996) 2 SCC 199; (1997) 4 SCC 778; (1997) 5 SCALE 254; (1998) 1 SCC 226; 1991 Supp. 1 SCC 222; (1995) 6 SCC 225 – Relied upon
        (1996) Cr. LJ 2962 – Cited with approval
       Facts of the case :
        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 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 Vigilance Commission (CVC) are the question which require consideration in this appeal.
       Finding of the Court:
        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.

Judgement Key Points

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JUDGMENT

G. S. Singhvi, J.

1. Leave granted.

2. Whether a complaint can be filed by a citizen for prosecuting a public servant for an offence under the Prevention of Corruption Act, 1988 (for short, ‘the 1988 Act’) and whether the authority competent to sanction prosecution of a public servant for offences under the 1988 Act is required to take an appropriate decision within the time specified in clause I(15) of the directions contained in paragraph 58 of the judgment of this Court in Vineet Narain v. Union of India1 (1998) 1 SCC 226 and the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission (CVC) are the question which require consideration in this appeal.

3. For the last more than three years, the appellant has been vigorously pursuing, in public interest, the cases allegedly involving loss of thousands of crores of rupees to the Public Exchequer due to arbitrary and illegal grant of licences at the behest of Mr. A. Raja (respondent No. 2) who was appointed as Minister for Communication and Information Technology on 16.5.2007 by the President on the advice of Dr. Manmohan Singh (respondent No. 1). After collecting information about the grant of licences, the appellant made detailed representation dated 29.11.2008 to respondent No. 1 to accord sanction for prosecution of respondent No. 2 for offences under the 1988 Act. In his representation, the appellant pointed out that respondent No. 2 had allotted new licences in 2G mobile services on ‘first come, first served’ basis to novice telecom companies, viz., Swan Telecom and Unitech, which was in clear violation of Clause 8 of the Guidelines for United Access Services Licence issued by the Ministry of Communication and Information Technology vide letter No.10-21/2005-BS.I(Vol.II)/49 dated 14.12.2005 and, 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 Telecom, were transferred just before the grant of licences and Bharat Sanchar Nigam Limited (BSNL) which had never entered into a roaming agreement with any operator, was forced to enter into such an agreement with Swan Telecom. The appellant further pointed out that immediately after acquiring 2G spectrum licences, Swan Telecom and Unitech sold their stakes to foreign companies, i.e., Etisalat, a telecom operator from UAE and Telenor of Norway respectively and, thereby, made huge profits at the expense of public revenue. He claimed that by 2G spectrum allocation under respondent No. 2, the Government received only one-sixth of what it would have received if it had opted for an auction. The appellant pointed out how respondent No. 2 ignored the recommendations of the Telecom Regulatory Authority of India (TRAI) and gave totally unwarranted benefits to the two companies and thereby caused loss to the Public Exchequer. Some of the portions of the appellant’s representation are extracted below:

“Clause 8 has been violated as follows: While Anil Dhirubhai Ambani Group (ADAG), the promoters of Reliance Communications (R Com), had more than 10 per cent stake in Swan Telecom, the figures were manipulated and showed as 9.99 per cent holding to beat the said Clause. The documents available disclose that on March 2, 2007, when Swan Telecom applied for United Access Services Licences, it was owned 100 per cent by Reliance Communications and its associates viz. Reliance Telecom, and by Tiger Trustees Limited, Swan Infonet Services Private Limited, and Swan Advisory Services Private Limited (see Annexure I). At one or the other point of time, employees of ADAG (Himanshu Agarwal, Ashish Karyekar, Paresh Rathod) or its associate companies have been acquiring the shares of Swan Telecom itself. But still the ADAG manipulated the holdings in Swan to reduce i

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2012 Supreme(SC) 78

2012 (1) Supreme 577SUPREME COURT OF INDIAG.S. Singhvi and Asok Kumar Ganguly, JJ. Dr. Subramanian Swamy — AppellantversusDr. Manmohan Singh and another — RespondentsCivil Appeal No. 1193 of 2012(Arising out of SLP(C) No. 27535 of 2010)Decided on : 31-1-2012

IMPORTANT POINT Any citizen may make representation for sanction of prosecution of a public servant whereupon the competent authority shall act within the time frame in accordance with (1998) 1 SCC 226 and CVC guidelines.

Cases Referred (21)

2012 (1) Supreme 577
SUPREME COURT OF INDIA
G.S. Singhvi and Asok Kumar Ganguly, JJ.
Dr. Subramanian Swamy — Appellant
versus
Dr. Manmohan Singh and another — Respondents
Civil Appeal No. 1193 of 2012
(Arising out of SLP(C) No. 27535 of 2010)
Decided on : 31-1-2012

IMPORTANT POINT
Any citizen may make representation for sanction of prosecution of a public servant whereupon the competent authority shall act within the time frame in accordance with (1998) 1 SCC 226 and CVC guidelines.