Complainant
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.
A.R. Antulay v. R.S. Nayak, 1984 AIR SC 718, 1984 SCR (2) 914 followed in Subramanium Swamy vs. Manmohan Singh
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.
A.R. Antulay ibid.
Investigation
Under the Criminal Procedure Code investigation consists generally of the following steps:
(i) proceeding to the spot;
(ii) ascertainment of the fact and the circumstance of the case;
(iii) discovery and arrest of the suspected offender;
(iv) collection of evidence relating to the commission of the offence which may consist of
(a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,
(b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and
(v) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173 (of CrPC).
State of Madhya Pradesh vs. Mubarak Ali, AIR 1959 SC 707: 1959 CrLJ 920: 1959 Supp (2) SCR 201: 1959 Pat LR (SC) 54: 1959(2) MLJ (SC) 105.
Preliminary Investigation
Before a public servant, whatever be his status, is publicly charged with acts, of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general.
P. Sirajuddin vs State of Madras, AIR 1971 SC 520, 1970 SCR (3) 931.
Investigating Officer
The section 17 of PCA 1988 stipulates that a police officer of following ranks or above can only investigate an offence under that Act—
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank.
The investigating officer of prescribed rank is also empowered to arrest a person without any warrant of arrest from court. However even such high ranking officer can not commence investigation without approval from competent authority.
Approval for investigation
Offence of corruption under PCA 1988 is a privileged offence. No Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties, can be taken without approval of competent authority.
While it shall be lawful for the investigating officer to look into allegations of 'improper motive' for decision making in official dischargeof duties, the investigation can not go into the 'merits' of the facts of decision. It is a very fine line which has been drawn here. Section 17-A of PCA 1988 provides as under:
"(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval—
(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:
Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month."
Therefore if offence is committed in presence of police officer, it is entitled to act without approval from anybody. It would have been interesting if the legislature had made provision about video recording of commission of offence. But more about that later.
Custodial interrogation
If the custodial interrogation of an accused is necessary in public interest and the gravity of the allegations is such that the custody of the accused should be handed over to the police for fair and impartial investigation, the provisions of Section 438 should not be invoked in favour of such an accused.
"Custodial interrogation in public interest" has not been defined either in the Code of Criminal Procedure or under the Indian Penal Code, but it is not difficult to give the correct interpretation "in public interest". Day in and day out political executive and bureaucracy are being involved in corruption cases. Allegations are with regard to nepotism and also with regard to the getting of materialistic gains. Various scams running into crores and multi-crores have come to the notice of the investigating agencies and the Governments from time to time. Hardly there is any quarter of the society which has not been affected with the scams etc. What type of impression we are giving to our public can be easily judged and opinion can be formulated in this regard. What example our leaders are setting for the masses is a sad tale in itself. The materialistic race is going on in every section of the society and this disease of corruption has eaten the very roots of our system. Everyone is concerned about corruption. But very few are giving proper attention how to eradicate this menace.
If the custodial interrogation of an accused is necessary in public interest and that the gravity of the allegations is such that the custody of the accused should be handed over to the police for fair and impartial investigation, the provisions of Section 438 should not be invoked in favour of such an accused. Further if a ring of bail is extended around an accused, he may not be of much assistance to the Investigating Officer to arrive at a just conclusion during the course of Investigation which is the predominant right of the investigating agency.
Siri Krishan Das vs. State of Haryana, 2000 (2) Crimes 529 P&H.
When case of corruption is made out against the accused, custodial interrogation should not be refused. It was observed on the facts of that case:
"I am of the considered opinion that case of custodial interrogation vis-à-vis Siri Krishan Dass, Shri Anil Kumar and Shri R.K. Garg is made out as the allegations against them are very serious and required to be probed to the logical ends. It is the admitted case of the accused party that Siri Krishan Dass was the minister and the department of H.U.D.A. was under his control. It is also the admitted case of the accused that an area running into 70 acres is situated close by to the acquired area of 130 acres. We can easily formulate an opinion that when an area has been acquired by H.U.D.A. for industrial purposes, the prices of the adjoining area will shoot like anything. Everybody has a style of working. Nobody will try to gain the benefit apparently. Some decisions are taken in such a secrecy and with such a motive that apparently the action on the part of the authorities may look innocent but on deeper scrutiny such an action is calculated to gain advantage. The things speaks for themselves that out of Rs.13,35,00,000/- a sum of Rs.11,39,84,000/- was diverted for Rohtak, which is the constituency of Siri Krishan Dass. It is also a fact that construction of the roads etc. has been done by H.U.D.A. of which he was the minister. A person who wielded considerable influence when he was the minister would always try to exercise his influence upon others. Though an effort has been made in order to convince to this Court that Shri Anil Kumar and Shri R.K. Garg are the victims of malice at the instance of Shri O.P. Chautala. I am not convinced with the argument. The allegations are very clear that these officers broke the norms. The plans were not got sanctioned according to rules. It is very easy to make allegations on the part of a public servant against political bosses, but before such allegations may be accepted, strong evidence is also required to give a verdict in favour of such a person.
With regard to the case of Shri Man Mohan Singh, admittedly, this man was not in authority. Simply he is the son of his co-accused, who at one time was the minister in-charge, is no ground to reject his anticipatory bail, qua him case of custodial interrogation in public interest is not made out."
Siri Krishan Das vs. State of Haryana, 2000 (2) Crimes 529 P&H.
Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation.
P. Chidambaram vs Directorate Of Enforcement decided by SC on 5 September, 2019.
Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the department. Having regard to the nature of allegations and the stage of the investigation, the investigating agency has to be given sufficient freedom in the process of investigation.
P. Chidambaram vs Directorate Of Enforcement decided by SC on 5 September, 2019.
The Supreme Court did, however granted post arrest bail to above accused person after he remained in judicial custody for about 105 days. It was observed:
"The appellant is aged about 74 years and as noted by the High Court itself in its order, the appellant has already suffered two bouts of illness during incarceration and was put on antibiotics and has been advised to take steroids of maximum strength. In that circumstance, the availability of the appellant for further investigation, interrogation and facing trial is not jeopardized and he is already held to be not a 'flight risk' and there is no possibility of tampering the evidence or influencing\intimidating the witnesses. Taking these and all other facts and circumstances including the duration of custody into consideration the appellant in our considered view is entitled to be granted bail."
P. Chidambram vs. State decided by SC on 4 December 2019
Sanction for prosecution
Once the person against whom prosecution is to be launched is found to be covered by the definition of "public servant" and the requirement to that extent is satisfied, the next question whether he is to be prosecuted or not is considered either by the Central Government or by the State Government and if the person is neither the employee of the Central Government nor of the State Government, the question of sanction is considered by the person who is competent to remove him from the office held by him.
Ordinarily law enforcement agency has a duty to act against violation of law but allegations of corruption against Govt. servants is placed on different pedestal. To ensure that there is no false prosecution or harassment of Govt. servants a special procedure is envisaged that before prosecution, complainant has to obtain permission of the Government. Section 19 of PCA Act, provides the procedure for obtaining the sanction for prosecution. This is second sanction. First was u/s 17-A of PC Act for investigation. After investigation is over, prosecution has to seek another sanction for prosecution.
There is a distinction between the absence of sanction and the alleged invalidity on account of non application of mind. The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. When there is a sanction, though the accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial.
Dinesh Kumar vs. Chairman, Airport Authority of India, (2012) 1 SCC 532. followed in Central Bureau Of Investigation vs Mrs. Pramila Virendra Kumar decided by SC on 25 September, 2019
An applicant can be estopped from pleading that the previous sanction was valid and was so estopped by his getting his previous conviction quashed on the ground that it was invalid — Once he was estopped from pleading that the previous sanction was valid, the previous trial must be held to be invalid and the second trial cannot be held to be barred by section 403 of Criminal Procedure Code, 1973.
Lallan Prasad vs. State of U.P., 1998 (4) Crimes 93 All.
The mandate is clear and unambiguous, that a Court "shall not" take cognizance without sanction. The same needs no further elaboration. Therefore, a Court just cannot take cognizance, without sanction by the appropriate authority. Thus viewed, no merit in the contention, that where cognizance is taken under Section 319 of the 'Code', sanction either under Section 197 of the 'Code' (or under the concerned special enactment) is not a mandatory pre-requisite.
Surinderjit Singh Mand vs State of Punjab decided by SC on 5 July, 2016.
The Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that "public servant" is to be prosecuted or not. Since the Section clearly prohibits the Courts from taking cognizance of the offences specified therein, it envisages that Central or the State Government or the "other authority" has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction.
Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 (7) SCC 622.
The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for prosecution in accordance with law. If the trial Court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non-est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution.
Nanjappa vs State Of Karnataka decided by SC on 24 July, 2015.
Official Act
In one case the accused officials and the other unknown persons had entered into a criminal conspiracy by abusing their official position as public servants and had unauthorisedly and illegally transferred a plot of land from one Housing Society to another at a consideration of Rs.4,33,90,337/- which was much lower than the then prevailing sector rate of Rs.18,000/- per sq.mtrs. of NOIDA, thereby, giving themselves and other members of the Housing Society an undue pecuniary advantage. It was also revealed in the enquiry that the membership of the Housing Society was granted to such persons who were otherwise not eligible for getting membership as per the bye-laws of the society and terms and conditions stipulated. Supreme Court while quashing the proceedings taking cognizance and issuing summons to the accused persons for want ofprevious sanction obtained from the Central Government to prosecute, observed:
"...In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence..."
Prof. N.K.Ganguly vs CBI New Delhi decided by SC on 19 November, 2015.
Delay in grant of sanction
Delay in granting such sanction has spoilt many valid prosecutions 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 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 this but the general demoralizing effect of such a popular perception is profound and pernicious. By causing delay in considering the request for sanction, the sanctioning authority 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 in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right.
Dr. Subramanian Swamy vs Dr. Manmohan Singh, decided by SC on 31 January, 2012 (per Ganguli J.).
The learned judge in aforesaid case also suggested introducing a deeming clause in section 19 of PC Act whereby, sanction for prosecution could be deemed to have been granted if no decision is communicated within 3 months or so but no such amendment has been made.
As regard the complicity of Prime Minister Office in causing the delay, the majority judgement in above case observed:
"…...the 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 judgments of this Court including the directions contained in paragraph 58(I) of the judgment in Vineet Narain's case as also the guidelines framed by the CVC so as to enable him to take appropriate decision in the matter. By the very nature of the office held by him, Prime Minister is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers. Unfortunately, those who were expected to give proper advice to Prime Minister and place full facts and legal position before him failed to do so. We have no doubt that if Prime Minister 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 than one year."
Dr. Subramanian Swamy vs Dr. Manmohan Singh, decided by SC on 31 January, 2012.
Needless to say that intention to take action can not be infused by judicial or for that matter by legislative or administrative order. Actually the whole idea of delay is often to cry fowl later and seek quashing of proceedings on the ground of delay in speedy justice.
In another case, after the raid and search, no action was taken by the prosecution for six years. The Public Prosecutor consistently opined that no criminal case was made out against the appellant. The Commissioner on independent consideration refused to grant the sanction but later on at the asking of the DIG (Vigilance) he changes his view. The prosecution against the appellant was pending for over a period of thirteen years and it held be travesty of justice to permit the prosecution at this stage which would mean that the appellant would suffer the trial/appeal for another decade. Accordingly prosecution was quashed.
Ramanand Chaudhary v. State of Bihar, AIR 1994 SC 948: 1994 CriLJ 1221, 2004 (3) SCALE 266.
In cases of corruption the amount involved is not material but speedy justice is the mandate of the Constitution being in the interests of the accused as well as that of the society. Cases relating to corruption are to be dealt with swiftly, promptly and without delay. As and when delay is found to have been caused during the investigation, inquiry or trial, the concerned appropriate authorities are under an obligation to find out and deal with the persons responsible for such delay. The delay can be attributed either to the connivance of the authorities with the accused or used as a lever to pressurise and harass the accused as is alleged to have been done to the appellant in this case. ….In this case the prosecution has miserably failed to explain the delay of more than 13 years by now, in granting the sanction for prosecution of the appellant-accused of possessing disproportionate wealth of about Rs. 50,600. The authorities of the respondent-State also appear to be not satisfied about the merits of the case and were convinced that despite granting of sanction the trial would be a mere formality and exercise in futility.
Mahendra Lal Das vs. State of Bihar, (2002) 1 SCC 149.
Look at the start and note the reasoning in above case. It started with need to prosecute the corrupt but it ended with quashing of proceedings.
Prosecution of Chief Minister
When there is to be a prosecution of the Chief Minister, the Governor would, while determining whether sanction for such prosecution should be granted or not under the Prevention of Corruption Act, as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers.
State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463; M.P. Special Police Establishment v. State of M.P., (2004) 8 SCC 788.
Prosecution of dead person
A prosecution cannot continue against a dead person. A fortiori a criminal court cannot continue proceedings against a dead person and find him guilty. Such proceedings and the findings are contrary to the very foundation of criminal jurisprudence. In such a case the accused does not exist and cannot be convicted.
U.Subhadramma vs State of A.P decided by SC on 4 July, 2016.
But notice that proceedings under PMLA can continue against a dead person. Read more about it in Chapter 10.
Double jeopardy
The whole basis of Section 300 (1) Cr.P.C. and article 20(2) of the Constitution is that the person who was tried by a competent court, once acquitted or convicted, cannot be tried for the same offence. However when the respondent/accused was so discharged due to lack of proper sanction, the principles of "double jeopardy" will not apply.
There was no bar for filing fresh/supplementary charge sheet after obtaining a valid sanction for prosecution. The Special Court once it found that there was no valid sanction, it should have directed the prosecution to do the needful. Dismissal of fresh charge sheet filed with proper sanction order was held to be not hit by principle of double jeopardy.
State of Mizoram vs Dr. C. Sangnghina decided by SC on 30 October, 2018.
Review of Sanction
Change in Circumstances
It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us a sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such a course.
State of Himachal Pradesh vs. Nishant Sareen reported in 2010 (14) SCC 527.
Therefore sanctioning authority was held empowered to review the earlier order dated 07.05.2014 due to amendment in Section 19 of Prevention of Corruption Act, 1988 and grant fresh sanction for prosecution.
Chhote Lal vs State Of U.P. decided by Alld. HC on 17 July, 2019.
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