# DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN SINGH AND ANOTHER

- **Citation:** [2012] 3 S.C.R. 52
- **Court:** Supreme Court of India
- **Decided:** 2012-01-31
- **Case number:** Civil Appeal No. 1193 of 2012
- **Bench:** G.S. Singhvi, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-subramanian-swamy-v-dr-manmohan-singh-and-another-28288
- **Pages:** 62

## Headnote

Prevention of Corruption Act, 1988 - s. 19:
c
Sanction for prosecution - Prosecution of public servant
for commission of offence under the 1988 Act - Filing of
complaint by private citizen - Permissibility of -
Taking
appropriate decision within the time specified in· *Vineet
Narain v. Union of India; guidelines issued by the Department
D of Personnel and Training and eve - Requirement of - On
facts, illegal grant of licence in 2G Mobile Service at the
behest of Minister - Representation dated 29. 11. 2008 to the
Prime Minister for according sanction for prosecution of the
Minister for offences under the 1988 Act by appellant (private
E citizen) - Repeated reminders from 30.05.2009 to 13.03.2010
- Case of the appellant that he had placed sufficient evidence
- Meanwhile on direction by CVC, CBI registered FIR - 16
months after the appellant's first representation, intimation to
the appellant that grant of sanction for prosecution would arise
only after perusal of the evidence collected by the
F
investigating agency and other material provided to the
·Competent Authority- Writ petition by appellant seeking issue
of a mandamus to Prime Minister to pass an order for grant
of sanction for prosecution of the Minister - Dismissed by
High Court holding that the matter was being investigated by
G the CBI, and the investigation was in progress -
Subsequently, the Minister resigned, though he continued to
be a Member of Parliament - On appeal, held: Appellant had
right to file complaint for prosecution of the Minister as there
is no bar either in the 1988 Act or Cr. P. C. - It cannot be said
H
52
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN
53
SINGH AND ANR.
that grant of sanction for prosecution of a public servant arises
A
only at the stage of taking cognizance and any request made
prior to that is premature - While considering grant or refusal
of sanction, the Competent Authority is to see whether the
material collected by the complainant or the investigating
agency prima facie disclose commission of an offence by a
B
public servant - It cannot undertake detailed enquiry -
Further, the material placed on record does not show that the
CBI had registered a case or started investigation at the
instance of Prime Minister - High Court proceeded under a
wholly erroneous assumption - Even though the appellant c
repeatedly wrote letters to Prime Minister highlighting the
seriousness of the allegations made in his first representation
and that he had already supplied the facts and documents
on basis of which sanction could be granted for prosecution
of the Minister, the concerned officers in the PMO kept the
D
matter pending and then took the shelter of the fact that the
CBI had registered the case and the investigation was
pending - Officers in the PMO and the Ministry of Law and
Justice, were duty bound to apprise Prime Minister about
seriousness of allegations made by the appellant and the
directions in *Vineet Narain's case that time limit of three
E
months for grant of sanction for prosecution must be strictly
adhered to with one month additional in specified situation,
as also the guidelines framed by the eve so as to enable
him to take appropriate decision in the matter - Thus, the
order of the High Court is set aside - However, since the Court
F
of Special Judge, CBI has already taken cognizance of the
offences allegedly committed by the Minister under the 1988
Act, no other direction issued - In future every Competent
Authority to take appropriate action for grant of sanction for
prosecution of a public servant strictly in accordance with the
G
direction in *Vineet Narain v. Union of India and the
guidelines framed by the eve.
Previous sanction for prosecution - Necessity of -
Offence allegedly committed by Minister (Public servant)
H
54
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A under the 1988 Act - Sanction for prosecution - Requirement
of, even after he resigned from the Council of Ministers,
though he continued to be a Member of Parliament

## Text

_Characters 0–39,986 of 119,407. This is a partial read: ask again with offset=39986 for what follows._

A
B
[2012] 3 S.C.R. 52
DR. SUBRAMANIAN SWAMY
v.
DR. MANMOHAN SINGH AND ANOTHER
(Civil Appeal No. 1193 of 2012)
JANUARY 31, 2012
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Prevention of Corruption Act, 1988 - s. 19:
c
Sanction for prosecution - Prosecution of public servant
for commission of offence under the 1988 Act - Filing of
complaint by private citizen - Permissibility of -
Taking
appropriate decision within the time specified in· *Vineet
Narain v. Union of India; guidelines issued by the Department
D of Personnel and Training and eve - Requirement of - On
facts, illegal grant of licence in 2G Mobile Service at the
behest of Minister - Representation dated 29. 11. 2008 to the
Prime Minister for according sanction for prosecution of the
Minister for offences under the 1988 Act by appellant (private
E citizen) - Repeated reminders from 30.05.2009 to 13.03.2010
- Case of the appellant that he had placed sufficient evidence
- Meanwhile on direction by CVC, CBI registered FIR - 16
months after the appellant's first representation, intimation to
the appellant that grant of sanction for prosecution would arise
only after perusal of the evidence collected by the
F
investigating agency and other material provided to the
·Competent Authority- Writ petition by appellant seeking issue
of a mandamus to Prime Minister to pass an order for grant
of sanction for prosecution of the Minister - Dismissed by
High Court holding that the matter was being investigated by
G the CBI, and the investigation was in progress -
Subsequently, the Minister resigned, though he continued to
be a Member of Parliament - On appeal, held: Appellant had
right to file complaint for prosecution of the Minister as there
is no bar either in the 1988 Act or Cr. P. C. - It cannot be said
H
52
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN
53
SINGH AND ANR.
that grant of sanction for prosecution of a public servant arises
A
only at the stage of taking cognizance and any request made
prior to that is premature - While considering grant or refusal
of sanction, the Competent Authority is to see whether the
material collected by the complainant or the investigating
agency prima facie disclose commission of an offence by a
B
public servant - It cannot undertake detailed enquiry -
Further, the material placed on record does not show that the
CBI had registered a case or started investigation at the
instance of Prime Minister - High Court proceeded under a
wholly erroneous assumption - Even though the appellant c
repeatedly wrote letters to Prime Minister highlighting the
seriousness of the allegations made in his first representation
and that he had already supplied the facts and documents
on basis of which sanction could be granted for prosecution
of the Minister, the concerned officers in the PMO kept the
D
matter pending and then took the shelter of the fact that the
CBI had registered the case and the investigation was
pending - Officers in the PMO and the Ministry of Law and
Justice, were duty bound to apprise Prime Minister about
seriousness of allegations made by the appellant and the
directions in *Vineet Narain's case that time limit of three
E
months for grant of sanction for prosecution must be strictly
adhered to with one month additional in specified situation,
as also the guidelines framed by the eve so as to enable
him to take appropriate decision in the matter - Thus, the
order of the High Court is set aside - However, since the Court
F
of Special Judge, CBI has already taken cognizance of the
offences allegedly committed by the Minister under the 1988
Act, no other direction issued - In future every Competent
Authority to take appropriate action for grant of sanction for
prosecution of a public servant strictly in accordance with the
G
direction in *Vineet Narain v. Union of India and the
guidelines framed by the eve.
Previous sanction for prosecution - Necessity of -
Offence allegedly committed by Minister (Public servant)
H
54
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A under the 1988 Act - Sanction for prosecution - Requirement
of, even after he resigned from the Council of Ministers,
though he continued to be a Member of Parliament - Held:
Sanction for prosecution not necessary as clearly answered
by the Constitution Bench in **R.S. Nayak v. A.R. Antulay's
s case.
Sanction for prosecution ·- Time limit for Competent
Authority to grant sanction - Held: In terms with the directions
laid down in *Vineet Narain v. Union of India, time limit of
three months for grant of sanction for prosecution must be
C strictly adhered to - f-lowever, additional time of one month
may be allowed where consultation is required with the
Attorney.General or any other law officer in AG's office.
Sanction for prosecution - Person for whose prosecution
D sanction sought - Opportunity of hearing by Competent
Authority - Held: Grant or refusal of sanction is not a quasi
judicial function - Said person is not required to be heard by
the Competent Authority before it takes a decision in the
matter - Competent Authority is required to see whether the
E material collected by the complainant or the investigating
agency prima facie disclose commission of an offence by a
public servant - It cannot undertake a detailed inquiry - If
material placed are sufficient for sanction, then Competent
Authority is required to grant sanction, otherwise, it can refuse
F - In either case, said decision is to be communicated to him
to avail appropriate legal remedy.
Words and Phrases - 'Cognizance' - Meaning of.
Licences in 2G mobile services were granted illegally
G at the behest of respondent No. 2 (Minister for
Communication and Information Technology) causing
loss of thousands of crores of rupees to the
Government. Appellant made a representation dated
29.11.2008 to respondent No. 1 (Prime Minister) to accord
H sanction for prosecution of respondent No.2 for offences
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN
55
SINGH AND ANR.
under the Prevention of Corruption Act, 1988. The A
appellant did not receive any response from respondent
No.1. He sent repeated letters from 30.5.2009to13.3.2010.
Meanwhile on being directed by Central Vigilance
Commission (CVC), the Central Bureau of Investigation
(CBI) registered first information report against B
respondent No. 2. In one of the letter, the appellant
claimed that it was not necessary to carry out a detailed
inquiry, and that he had produced sufficient evidence for
grant of sanction to initiate criminal prosecution against
respondent No. 2. 16-1/2 months after the appellant's first c
letter, Secretary, Department of Personnel and Training,
Ministry of Personnel sent a letter to the appellant that the
CBI had registered a case on 21.10.2009 against
unknown
officers
of
the
Department
of
Telecommunications (DoT), unknown private persons/ D
companies and others; that the issue of grant of sanction
for prosecution would arise only after perusal of the
evidence collected by the investigating agency and other
material provided to the Competent Authority; and that it
would be pre-mature to consider sanction for
prosecution at that stage. The appellant then filed a writ . E
petition and prayed for iss.ue of a mandamus to
-respondent No.1 to pass an order for grant of sanction
for prosecution of respondent No. 2 for offences under
Sections 11 and 13(1)(d) of the 1988 Act. The Division
Bench of the High Court dismissed the writ petition F
holding that when the matter is being investigated by the
CBI, and the investigation is in progress, it would not be
in fitness of things to issue a mandamus to respondent
No. 1 to take a decision on sanctioning prosecution.
Thus, the appellant filed the instant appeal.
G
1
After filing of SLP, respondent No. 2 resigned from
the Council of Mini.sters on 14.11.2010, though he
continued to be a member of Parliament.
H
56
·SUPREME COURT REPORTS
[2012] 3 S.C.R.
A
Th~ ,question which arose for consideration in the
instant appeal were 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
B of a public servant for offences under the 1988 Act is
required to take an appropriate decision within the time
specified in clause 1(15) of the directior.s contained in
paragraph 58 of the judgment of this Court in * Vineet
Narain v. Union of India (1998) 1 SCC 226 and the
C guidelines issued by the Central Government,
Department of Personnel and Training and the (CVC).
D
Allowing the appeal, the Court
HELD: Per Singhvi, J: (For himself ~nd Ganguly, J)
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]
H
**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
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN
57
SINGH AND ANR.
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.
1.2. There is no provision either in the 1988 Act or the B
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.
1.3. The submission that the question of granting
sanction for prosecution of a public servant charged with
E
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.
1.4. At the time of taking cognizance of the offence,
C 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
D 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 chargesheet, on the basis of the evidence collected during
F 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;
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
59
SINGH AND ANR.
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) [101B-C]
**Vineet Narain v. Union of India (1998) 1 SCC 226 -
relied on.
F
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
F 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
G 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
H the direction given by respondent No.1 the concerned
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN
61
SINGH AND ANR.
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
B than o,ne year. [Para 33] [102-B-H; 103-A-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
C 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.
Devarapal/i Lakshminarayana Reddy v. V. Narayana
Reddy (1976) 3 SCC 252: 1976 (0) Suppl. SCR 524; Ram
Kumar v. State of Haryana (1987) 1 SCC 476: 1987 (1) SCR
F 991; Krishna Pillai v. T.A. Rajendran 1990 (Supp) SCC 121;
State of H.P. v. M. P. Gupta (2004) 2 SCC 349: 2003 (6)
Suppl. SCR 541- referred to.
G
Per Ganguly, J: ·(Supplementing)
1.1. Today, corruption in the country not only poses
a grave danger to ~he concept of constitutional
governance, it also threatens the very foundation of
Indian democracy and the Rule of Law. The magnitude
H of corruption in the public life is incompatible with the
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN
63
SINGH AND ANR.
concept of a socialist, secular democratic republic. It A
cannot be disputed that where corruption begins all rights
end. Corruption devalues human rights, chokes
development and undermines justice, liberty, equality,
fraternity which are the core values in the preambular
vision. Therefore, the duty of the Court is that any antiB
corruption law has to be interpreted and worked out in
such a fashion as to strengthen the fight against
corruption. That is to say in a situation where two
constructions are eminently reasonable, the Court has to
accept the one that seeks to eradicate corruption to the c
one which seeks to perpetuate it. [Paras 11) [107-D-F]
Sanjiv Kumar v. State of Haryana & Ors. (2005) 5 SCC
517; State of A.P. v. V. Vasudeva Rao (2004) 9 SCC 319:
2003 (5) Suppl. SCR 500; Shobha Suresh Jumani v.
Appellate Tribunal Forfeited Property & Anr. (2001) 5 SCC D
755: 2001 (3) SCR 525; State of M.P. & Ors. v. Ram Singh
(2000) 5 SCC 88: 2000 (1) SCR 579; J. Jayalalitha v .. Union
of India & Anr. (1999) 5 SCC 138: 1999 (3) SCR 653; Major
S.K. Kale v. State of Maharashtra (1977) 2 SCC 394: 1977
(2) SCR 533 - referred to.
E
1.2. 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 F
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 G
the question of bringing orderliness in society and
maintaining equal balance in the rule of law. [Para 17]
[109-B-C]
.
Sheonandan Paswan vs. State of Bihar and Ors. (1987)
1 SCC 288: 1987 (1) SCR 702 - referred to.
H
64
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A
1.3. Section 19 of the Prevention of Corruption Act,
1988 bars a Court from taking cognizance of cases of
corruption against a public servant under Sections 7, 10,
11, 13 and 15 of the Act, unless the Central or the State
Government, as the case may be, has accorded sanction,
B virtually imposes fetters on private citizens and also on
prosecutors from approaching Court against corrupt
public servants. These protections are not av~ilable to
other citizens. Public servants are treated as a special
class of persons enjoying the said protection so that they
C 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. These provisions being
exceptions to the equality provision of Article 14 are
D analogous to provisions of protective discrimination a·nd
these protections must be construed very narrowly.
These procedural provisions relating to sanction must be
construed in such a manner as to advance the causes
of honesty and justice and good governance as
E opposed to escalation of corruption. Therefore, in every
case where an application is made to an appropriate
authority for grant of prosecution in connection with an
offence under P.C. Act it is the bounden duty of such
authority to apply its mind urgently to the situation and
F decide the issue without being influenced by any
extraneous consideration. In doing so, the authority must
make a conscious effort to ensure the rule of law and
cause of justice is advanced. In considering the question
of granting or refusing such sanction, the authority is
G 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
H
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN
65
SINGH AND ANR.
requirement to bring the culprit to book. Therefore, the
A
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
B
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 c
past or may be in the future and the sanctioning authority
and the corrupt officials were or are partners in the same
misdeeds. This may not be factual position in the instant
case, but the general demoralizing effect of such a
popular perception is profound and pernicious. By
D
causing delay in considering the request for sanction, the
sanctioning a'uthority stultifies judicial scrutiny and
determination of the allegations against corrupt official
and thus, the legitimacy of the judicial institutions is
eroded. It, thus, deprives a citizen of his legitimate and
fundamental right to get justice by setting the criminal law
E
in motion and thereby frustrates his right to access
judicial remedy which is a constitutionally protected right.
Under Section 19 of the P.C. Act, no time limit is
mentioned. This has virtually armed the sanctioning
authority with unbridled power which has often resulted
in protecting the guilty and perpetuating criminality and
injustice in society. [Para 18] [109-G-H; 110-A-H; 111A-D]
F
Mahendra Lal Das vs. State of Bihar and Ors. (2002) 1
SCC 149: 2001 (4) Suppl. SCR 157; Santosh De vs. Archna
G
Guha and Ors. (1994) Supp.3 SCC 735 - referred to.
1.4.-Article 14 must be construed as a guarantee
against uncanalized and arbitrary power. Therefore, the
absence of any time limit in granting sanction in Section
19 of the P .C. Act is not in consonance with the
H
66
SUPREME COURT REPORTS
(2012] 3 S.C.R.
A requirement of the due process of law which has been
read into the Constitution. [Para 20) [111-H; 112-A].
B
Maneka Gandhi vs. Union of India and Anr. (1978) 1
SCC 248: 1978 (2) SCR 621 - referred to.
1.5 Section 19 of the P .C. Act is constitutionally valid.
The power under Section 19 of the P.C. Act must be
reasonably exercised. The Parliament and the
appropriate authority must consider restructuring
Section 19 of the P.C. Act in such a manner as to make it
C consonant with reason, justice and fair play. [Para 21)
[112-B] .
Kalicharan Mahapatra vs. State of Orissa (1998) 6 SCC
411: 1998 (3) SCR 961; Latu Prasad vs. State of Bihar 2007
D (1) SCC 49: 2006 (10) Suppl. SCR 251; State of Uttar
Pradesh vs. Paras Nath Singh (2009) 6 SCC 372: 2009 (8)
SCR 85; Dilawar Singh vs. Parvinder Singh alias Iqbal Singh
and Anr. (2005) 12 SCC 709: 2005 (5) Suppl. SCR 83 -
referred to.
E
R. v. Horseferry Road Magistrates'Court ex p. Bennett
(1994) 1 AC 42 - referred to.
1.6.
The
Parliament should
consider the
Constitutional imperative of Article 14 enshrining the rule
F 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, consider the following guidelines:
G
H
(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.
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN
67
SINGH AND ANR.
(b) Where consultation is required with the Attorney
A
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· B
consultation is to be sent in writing within the three
months mentioned in (a) above. A copy of the said
request would be sent to the prosecuting agency or
the private complainant to intimate them about the
extension of the time limit.
c
(c) At the end of the extended period of time limit, if
no decision is taken, sanction would be deemed to
have been granted to the proposal for prosecution,
and the prosecuting agency or the private
complainant would proceed to file the charge sheet/
D
complaint in the court to commence prosecution
within 15 days of the expiry of the aforementioned
time limit. [Para 22) [112-C-H; 113-A-B]
Case Law Reference:
E
. Singhvi, J and Ganguly, J:
1951 SCR 312
Referred to.
Para 9
1976 (0) Suppl. SCR 524
Referred to.
Para 9
F
1987 (1) SCR 991
Referred to.
Para 9
1990 (Supp) sec 121
Referred to.
Para 9
1994 (6) Suppl. SCR ·15
Referred to.
Para 9
1998 (3) SCR 957
Referred to.
Para 9
G
2005 (3) SCR 1
Referred to.
Para 9
2005 (4 ) Suppl. SCR 77
Referred to.
Para 9·
H
68
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A
2006 (4) Suppl. SCR 269
Referred to.
Para 9
(1984) 2 sec 183
Referred to.
Para 15
1995 (1) SCR 819
Referred to.
Para 16
B
2003 (6 ) Suppl. SCR 541
Referred to.
Para 16
2006 (10) Suppl. SCR 197
Referred to.
Para 16
(2007) 1 sec 45
Referred to.
Para 16
1984 (2) SCR 914
Referred to.
Para 18
c
(1955) 1 SCR 1150
Referred to.
Para 18
1959 Supp. (2) SCR 201
Referred to.
Para 18
AIR 1957 M.B. 43
Referred to.
Para 18
D
(1951) SCR 312
Referred to.
Para 20
1996 (1) SCALE (SP) 42
Referred to.
Para 28
1996 (1) SCR 1053
Referred to.
Para 28
E
(1997) 4 sec 118
Referred to.
Para 28
(1997) 5 SCALE 254
Referred to.
Para 28 .
(1998)1 sec 226
Relied on.
Para 31, 33,
34
F
(1996) Crl. Law Journal 2962 Referred to. Para30 ·
1991 Supp. 1 sec 222
Referred to.
Para 30
(1995) 6 SC 225
Referred to.
Para 30
G
Ganguly, J
1998 (3) SCR 961
Referred to.
Para 3
2006 (10) Suppl. SCR 251
Referred to.
Para 4
H
2009 (8) SCR 85
Referred to.
Para 7
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN
69
SINGH AND ANR.
2005 (5) Suppl. SCR 83
Referred to.
Para 8
A
(2005) 5 sec 517
Referred to.
Para 12
2003 (5) Suppl. SCR 500
Referred to.
Para 12
2001 (3)· SCR 525
Referred to.
Para 12
B
2000 (1) SCR 579
Referred to.
Para 12
1999 (3) SCR 653
Referred to.
Para 12
1977 (2) SCR 533
Referred to.
Para 12
c
(1994) 1 AC 42
Referred to.
Para 14
1987 (1) SCR 702
Referred to.
Para 17
2001 (4) Suppl. SCR 157
Referred to.
Para 19
(1994) Supp.3 sec 735
Referred to.
Para 19
D
1978 (2) SCR 621
· Referred to.
Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1193 of 2012.
E
From the Judgment & Order dated 18.08.2010 of the High
Court of Delhi at New Delhi in W.P. (C) No. 2442 of 2010.
Dr. Subramanian Swamy Petitioner-In-Person.
Goolam E. Vahanvati, AG, Devadatt Kamat, Anoopam N.
F
Prasad, Rohit Sharma for the Respondent.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted ..
G
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
H
70
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A appropriate decision within the time specified in clause 1(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
B 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
C 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
D 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
E 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.l(Vol.ll)/49
F 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
G 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
H spectrum licences, Swan Telecom and Unitech sold their stakes
11
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN
71
SINGH AND ANR. [G.S. SINGHVI, J.]
to foreign companies, i.e., Etisalat, a telecom operator from
A
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
B
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:
c
"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
D
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 lnfonet Services
E
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
F
still the ADAG manipulated the holdings in Swan to reduce
it to only 9.99 per cent. Ambani has now quietly sold his
shares in Swan to Delphi Investments, a Mauritius based
company owned by Ahmed 0. Alfi, specializing in
automobile spare parts. In turn, Swan has sold 45% of its
G
shares to UAE's Emirates Telecom Corporation (Etisalat)
for Rs.9000 crores! All this is highly suspicious and not
normal business transactions. Swan company got 60% of
the 22 Telecom licenced areas at a throw away price of
Rs.1650 crores, when it was worth Rs.60,000 crores total. . H
A
B
c
D
E
F
G
H·
72
SUPREME COURT REPORTS
[2012] 3 S.C.R.
Room has operations in the same circles where the
application for Swan Telecom was filed. Therefore, under
Clause 8 of the Guidelines, Swan should not have been
allotted spectrum by the Telecommunication Ministry. But.
the. company did get it on Minister's direction, which is an
undue favour from him (Raja). There was obviously a quid
pro quo which only a CBI enquiry can reveal, after an FIR
is registered. There is no need for a PIE, because the
eve has already done the preliminary enquiry.
Quite surprisingly, the 2G spectrum licences were priced
at 2001 levels to benefit these private players. That was
when there were only 4 million cellphone subscribers; now
it is 350 million. Hence 2001 price is not applicable today.
Immediately after acquiring 2G spectrum licences both
Swan and Unitech sold their stakes to foreign companies
at a huge profits. While Swan Telecom sold its stakes to
UAE telecom operator Etisalat, Unitech signed a deal with
Telenor of Norway for selling its share at huge premiums.
In the process of this 2G spectrum allocation, the
government received only one-sixth of what it would have
got had it gone through a fresh auction route. The total loss
to the exchequer of giving away 2G GSM spectrum in this
way - including to the CDMA operators - is over
Hs.50,000 crores and is said to be one of the biggest
financial scams of all times in the country.
While approving the 2G licences, Minister Raja
turned a blind eye to the fact that these two companies do
not have any infrastructure to launch their services. Falsely
claiming that the Telecom Regulatory Authority of India had
approved the first-cum-first served rule, Raja went ahead
with the 2G spectrum allocation to two debutants in the
Telecom sector. In fact earlier TRAI had discussed the
spectrum allocation issue with existing services providers
and suggested to the Telecom Ministry that spectrum
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN
73
SINGH AND ANR. [G.S. SINGHVI, J.]
allocation be made through a transparent tender and
A
auction process. This is confirmed by what the TRAI
Chairman N. Misra told the Cll organized conference on
November 28, 2008 (Annexure 2). But Raja did not bother
to listen to the TRAI either and pursued the process on
'first come, first served' basis, benefiting those who had
B
inside information, causing a loss of Rs.50,000 crores to
the Government. His dubious move has been to ensure
benefit to others at the cost of the national exchequer."
The request made in the representation, which was relied
C
upon by the learned Attorney General for showing that the
appellant had himself asked for an investigation, is also
extracted below:
"According to an uncontradicted report in CNN-IBN news
channel of November 26, 2008, you are said to be "very
D
upset with A Raja over the spectrum allocation issue". This
confirms that an investigation is necessary, for which I may
be given sanction so that the process of law can be
initiated.
E
I, therefore, writ to demand the grant of sanction to
prosecute Mr. A. Raja, Minister for Telecom of the Union
of India for offences under the Prevention of Corruption
Act. The charges in brief are annexed herewith (Annexure
3)."
4.