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” →
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.” →
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” →
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 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” →
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 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” →
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.