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Dr. Subramanian Swamy …versus Dr. Manmohan Singh and another …

Praveen Sharma ,
  07 February 2012       Share Bookmark

Court :
Supreme Court
Brief :
Facts: 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 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). Issue: 1. 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’) 2. whether the authority competent to sanction prosecution of a public servant for offences under the 1988 Act is required to take an appropriate decision within the time specified. Observations: G.S. Singhvi, J. 1. The question of granting sanction for prosecution of a public servant charged with 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 judicial precedents relied upon by him. 2. It is evidently clear that a court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. 3. 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 matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in 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. Observations: GANGULY, J. 1.The position of respondent No.1 in our democratic polity seems to have been summed up in the words of Shakespeare “Uneasy lies the head that wears a crown” (Henry, The Fourth, Part 2 Act 3, scene 1). 2. According to Black's Law Dictionary the word ‘cognizance’ means ‘jurisdiction’ or ‘the exercise of jurisdiction’ or ‘power to try and determine causes’. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.” 3. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It 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 our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. 4. 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 61Section 19 of the P.C. Act 1988 for its working in a reasonable manner. Held: In the result, the appeal is allowed. The impugned order is set aside. It is declared that the appellant had the right to file a complaint for prosecuting respondent No.2. No costs.
Citation :
Dr. Subramanian Swamy … Appellant versus Dr. Manmohan Singh and another … Respondents CIVIL APPEAL NO. 1193 OF 2012 (Arising out of SLP(C) No. 27535 of 2010)

 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1193   OF 2012

(Arising out of SLP(C) No. 27535 of 2010)

Dr. Subramanian Swamy … Appellant

versus

Dr. Manmohan Singh and another … Respondents

J U D G M E N T

G. S. Singhvi, J.

1. Leave granted.

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 appropriate decision within the time specified in clause I(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 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 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 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 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.I(Vol.II)/49 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 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 spectrum licences, Swan Telecom and Unitech sold their stakes to foreign companies, i.e., Etisalat, a telecom operator from 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 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: 3“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 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 Infonet Services 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 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 O. Alfi, specializing in automobile spare parts.  In turn,  Swan has sold 45% of its 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. 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 P/E, because the CVC 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 Rs.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 allocation be made through a transparent tender and auction process. This is confirmed by what the TRAI Chairman N. Misra told the CII 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 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 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 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. 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).”.........................................................................

......................................

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.

23. With these additional reasons, as indicated, I agree with Brother Singhvi, J., and allow the appeal and the judgment of the High Court is set aside. No costs.

.......................J. (ASOK KUMAR GANGULY)

New Delhi

63January 31, 2012 

 
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