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

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

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 complaint.

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

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 act".

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 him.

"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