Conditions for grant of valid sanction for prosecution under PC Act of 1988

Grant of sanction is a sacrosanct act and is intended to provide safeguard to a public servant against frivolous and vexatious litigation.

b) The sanctioning authority after being apprised of all the facts, must be of an opinion that primafacie a case is made out against the public servant.

c) Thus, for a valid sanction the sanctioning authority must be apprised of all the relevant material and relevant facts in relation to the commission of the offence.

d) This application of mind by the sanctioning authority is a sine qua non for a valid sanction.

e) The ratio of the sanction order must speak for itself and should enunciate that the sanctioning authority has gone through the entire record of the investigation. Thus, the sanction order must expressly show that the sanctioning authority has perused the material placed before it, and after considering the circumstances in the case against the public servant, has granted sanction. Continue reading “Conditions for grant of valid sanction for prosecution under PC Act of 1988” →

Delay in trial of offence under Prevention of Corruption Act.

No time limit can be stipulated for disposal of the criminal trial. The delay caused has to be weighed on the factual score, regard being had to the nature of the offence and the concept of social justice and the cry of the collective.

In the case at hand, the appellant has been charge-sheeted under the Prevention of Corruption Act, 1988 for disproportionate assets. The said Act has a purpose to serve. The Parliament intended to eradicate corruption and provide deterrent punishment when criminal culpability is proven. The intendment of the legislature has an immense social relevance. In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small and in certain cases, it is extremely high. The gravity of the offence in such a case, in our considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenet of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law. Be it noted, system of good governance is founded on collective faith in the institutions. If corrosions are allowed to continue by giving allowance to quash the proceedings in corruption cases solely because of delay without scrutinizing other relevant factors, a time may come when the unscrupulous people would foster and garner the tendency to pave the path of anarchism.

It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance.

Continue reading “Delay in trial of offence under Prevention of Corruption Act.” →

Departmental proceedings after acquittal

Acquittal under Prevention of Corruption Act:

Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the Respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. Continue reading “Departmental proceedings after acquittal” →

Burden of proving bribe under Prevention of Corruption Act

The trap for bribe:

P.W.2 was desirous for transfer of the electric connection on the land in question in his own name to facilitate a subsidy of Rs.625/ every six months. The village administrative officer was required to sign the necessary documents for the purpose. P.W.2 lodged a written complaint on 17.12.2003 against the village administrative officer alone for having demanded a sum of Rs.600/ as illegal gratification for the purpose. P.W.2 lodged a written report regarding the same. Necessary mazhar was prepared. The appellants were village assistants in the office of the village administrative officer. Continue reading “Burden of proving bribe under Prevention of Corruption Act” →

Authorisation to Investigate under Prevention of Corruption Act

Authorisation to investigate u/s 17 of PC Act:

The truth and veracity of the authorisation order not being in issue, the failure to file it along with the chargesheet was an omission constituting a procedural lapse only. The rejection of the first application on 11.03.2008 not having been ordered on merits, but for failure to furnish a satisfactory explanation for the delay, Section 362 Cr.P.C has no relevance on facts. We are, therefore, of the opinion that there was no impediment in the appellant seeking to bring the same on record subsequently under Section 173(2)(5)(a) of the Code. The consequences of disallowing the procedural lapse were substantive in nature.

Failure to produce authorisation alongwith chargesheet:

Continue reading “Authorisation to Investigate under Prevention of Corruption Act” →

Sanction for prosecution of corrupt Government Official

Prosecution of corrupt official.

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. Continue reading “Sanction for prosecution of corrupt Government Official” →

Conviction for corruption on circumstantial evidence

Conviction under Prevention of Corruption Act, 1988

Section 13(1)(d) of the Prevention of Corruption Act, 1988 read as hereunder:-

(d) if he,–

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or Section 13(2) in The Prevention of Corruption Act, 1988 (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

For establishing the offence under the aforesaid sections, the ingredients of the public servant having abused his position and by abusing that position he has obtained for himself or any other person any valuable thing or pecuniary advantage, has to be proved Continue reading “Conviction for corruption on circumstantial evidence” →

Corruption: Locus standi of a private person.

Locus Standi of a private person to file complaint of corruption:

Complaint in respect of allegations of Prevention of corruption Act, 1988:

It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law.

Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions, can be referred to in support of this legal position such as:

(i) Section 187-A of Sea Customs Act, 1878
(ii) Section 97 of Gold Control Act, 1968
(iii) Section 6 of Import and Export Control Act, 1947
(iv) Section 271 and Section 279 of the Income Tax Act, 1961
(v) Section 61 of the Foreign Exchange Regulation Act, 1973,
(vi) Section 621 of the Companies Act, 1956 and
(vii) Section 77 of the Electricity Supply Act.

This list is only illustrative and not exhaustive. While Section 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the CrPC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a 24 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 statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force is not merely an offence committed relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait- jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the court would require an unambiguous statutory provision and a tangled web of argument for drawing a far fetched implication, cannot be a substitute for an express statutory provision.
The only conclusion that unquestionably emerges is that Section 5-A is a safeguard against investigation of offences committed by public servants, by petty or lower rank police officer. It has nothing to do directly or indirectly with the mode and method of taking cognizance of offences by the Court of Special Judge. It also follows as a necessary corollary that provision of Section 5-A is not a condition precedent to initiation of proceedings before the Special Judge who acquires power under Section 8(1) to take cognizance of offences enumerated in Section 6(1)(a) and (b), with this limitation alone that it shall not be upon commitment to him by the Magistrate.

[Source: A.R. Antulay v. R.S. Nayak, 1984 AIR SC 718, 1984 SCR (2) 914, (Supreme Court of India)]

The above observations were made in respect of Section 5-A of Criminal Laws (Amendment) Act, which was similar to section 19 of Prevention of Corruption Act, 1988 and therefore were followed by Supreme Court of India under that Act, as well.

(See Subramanium Swamy vs. Manmohan Singh)

Sanction for prosecution of Public Servants in India.

Prosecution of Public Servants in India, for corruption:

Consideration and scope of powers of Competent Authority:

Section 19 of Prevention of Corruption Act, 1988 of India, governs the sanction for prosecution which is under:

19. Previous sanction necessary for prosecution. – (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),:
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-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 irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.Explanation. – For the purposes of this section,
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.

Function of Authority competent to grant sanction for prosecution of public servants:

Grant or refusal of sanction is not a quasi judicial function and the person (public servants) 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.

[Source: Subramanium Swamy v. Manmohan Singh (Supreme Court of India)]

Time limit for Prosecution for Corruption

Delay in granting sanction for prosecution of public servants:

Time limit for sanction for prosecution:

Prosecution for corruption in India is dealt with by section 19 of Prevention of Corruption Act, 1988 which requires that prosecution must obtain prior sanction from the Government. In practice the Government would sit on the application for sanction forever. The supreme court has recently read down this provision and set a time limit within which, if no decision is taken, the permission to prosecute shall be deemed to have been granted.

Deemed sanction for prosecution in case of delay:

The Parliament should consider the Constitutional imperative of Article 14 enshrining the rule of law wherein `due process of law’ has been read into by introducing a time limit in Section 19 of the P.C. Act 1988 for its working in a reasonable manner. The Parliament may, in my opinion, consider the following guidelines:
a) All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction for the prosecution of a public servant under section 19 of the P.C. Act must be decided within a period of three months of the receipt of the proposal by the concerned authority.
b) Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time limit.
c) At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.

However the above Observation has been made by only one Judge i.e. Asok Kumar Ganguli, J. and not assented by G.S.Singhvi, J., it only has persuasive value at present. At best this paper tiger can only persuade future judges or legislatures to make it binding.