No sanction to prosecute Raja as no complain filed: Govt tells SC

GE Vahanvati said request "made by Swamy in his letter was misconceived & PM was not obliged to act."

Zeenews Bureau

New Delhi: Prime Minister Manmohan Singh was not obliged under the law to give sanction for prosecution of former telecom minister A. Raja in the scandal involving spectrum allocation to mobile companies merely on the basis of a letter, the government told the Supreme Court Tuesday.

Attorney General G E Vahanvati, who was arguing on
behalf of Prime Minister Manmohan Singh on a petition filed by
Janata Party President Subramanian Swamy seeking his sanctiion
for prosecution of Raja in the case, said that the request
was "misconceived and premature".

However, this was contested by Swamy, who maintained
that he can directly approach the Prime Minister for seeking
prosecution of a minister while he also has the right to go to
a court.

During day-long arguments on the case in which the PMO
was asked to file an affidavit on the alleged inaction on
Swamy`s plea, the court raised the issues like what is the
reasonable time-limit fro granting the sanction.

"There is no question of consideration of sanction
when no complaint was filed at all. It is a settled law that
there is no question of sanction merely on the institution of
the compliant," Vahanvati told a bench of Justices G S Singhvi
and A K Ganguly.

"Till date, the petitioner (Swamy) has not even filed
a complaint in the competent court and in such circumstances,
the question of sanction cannot and does not arise," he

The government`s senior-most law officer said the
request "made by Swamy in his letter dated Nov 29, 2008 was
entirely misconceived. He sought sanction for prosecution even
without filing a complaint before the competent court."

The AG said the stage for grant of sanction is when
the court wants to consider the question of whether to take
cognisance of a complaint.

Explaining that the process of taking cognisance is
different from initiation of proceedings, the law officer
said, "The cognisance is a condition precedent to the
initiation of proceedings by the magistrate or the judge.

"Cognisance is taken of cases and not of persons. In
other words, cognisance means the judicial hearing of the
matter," the Attorney General argued.

Thus, no question of taking cognisance arises unless
there is a complaint before the court, Vahanvati said, adding
before taking cognisance, the accused can contend that
sanction is required and if so the magistrate before taking
cognisance must call for sanction.

Vahanvati said there is no question of taking
cognisance in the absence of a complaint before a court and
unless the court has applied its judicial mind to the

"On both these grounds, Swamy`s application was
misconceived," he said maintaining that the stage for
consideration of sanction arises when the court takes

The stage of cognisance is only subsequent to filing
of a complaint, Vahanvati emphasised.

"In these circumstances, the question of granting
sanction prior to even the filing of the complaint is entirely
premature," he said, adding that "here is the case of Swamy
where the complaint was not filed and there was no question of
grant of sanction".

He said the law in this regard is very clear and this
was the stage in Swamy`s case since November 2008 when he
wrote the first letter to the Prime Minister, which was
subsequently followed by several other letters.

While the Attorney General was making his submissions,
the bench asked, "What according to you (the attorney
general) is the correct procedure?"

The court was told Swamy`s Nov 29, 2008 letter invoking Section 13 of the Prevention of Corruption Act (PCA) for seeking permission was erroneous. The relevant provision was Section 19 of the PCA. Section 13 of the law deals with the criminal misconduct of a public servant, he said.

He said that under Section 19 it was incumbent upon Swamy to first file a complaint before the competent court to initiate proceedings. Section 19 of the PCA says that sanction from the sanctioning authority was necessary for prosecution of a public servant.

If this (competent) court after application of judicial mind comes to the conclusion that the prima facie the complaint was a fit case for initiating the criminal proceedings, then the complainant will have to seek sanction from the sanctioning authority.

In the course of the application of judicial mind, the court could even order inquiry into the complaint.

Swamy replied that he can directly approach the Prime
Minister for seeking prosecution of a minister or can go to
the court.

"Both the avenues are open to me," he said, adding,
"The Prevention of Corruption Act empowers the citizen to
initiate prosecution".

He took objection to the government`s stand that "he
was a nobody and why the PM will take step on his complaint
seeking sanction for prosecution of the minister.

"Time has come that law has to become crystal clear on
the subject," he said.

Interrupting him, the bench clarified that the
Attorney General has not questioned his locus standi.

"The Attorney General is only saying that you
have a right to file a complaint before a court which will
take cognisance of it for the grant of sanction," it said.

Swamy, however, contended, "Why should I follow the
suggestions of Attorney General?"

Swamy said when the judge will take cognisance, the
matter will come to the competent authority for sanction.
"In that case, I have to come back (to the sanctioning
authority). I decided to take that step in advance, I decided
to go to the Prime Minister," he said.

Swamy said the PMO was saying that all his letters
were considered but the Prime Minister took extraordinary time
and still did not decide on his plea for grant of sanction to
prosecute Raja.

He said the three-month guideline laid down in the
apex court judgement in Vineet Narayan case was not applied in
his case.

The bench, however, said there was a need to examine
the judgement in detail.

Swamy said, "The concept of reasonableness has to be
applied to the issue."

He said the reasonable period (for the grant of
sanction) may be laid down by this court if distinction has to
be made from Vineet Narayan`s case.

Coming to the affidavit filed on behalf of the Prime
Minister, Swamy said the PMO had no clue what has been done to
his letter.

He said the delay was due to the Law Ministry and the
bureaucracy which took time on his complaint and "there was no
malafide on the part of the Prime Minister.

"No one told him (PM) what the law is," he submitted.

At this point, the bench said in a lighter vein,
"Instead of malafide, you can say there was no intention to

Agreeing with the court, Swamy went ahead and pointed
out that the letter written by him to the Prime Minister could
not have been forwarded to Raja who had responded on it to

"At no point of time, anybody from the law ministry,
PMO, etc told the Prime Minister that he himself has to decide
on my letter," Swamy said.

He said, at one point in the affidavit, it has been
stated that his complaint had gone to the political wing of
the PMO. This means there was only delay, he added.

"At all stages, they should have told the PM about the
law (on sanction) which was not done. They should have told
the PM that he should have decided it," Swamy said,, adding
"it is the duty of the legal cell to apprise the PM of the
correct position of law".

-Agencies inputs