Writ Petition (C) No. 305 of 2007. Case: Manzoor Ali Khan Vs Union of India (UOI). Supreme Court
|Case Number:||Writ Petition (C) No. 305 of 2007|
|Party Name:||Manzoor Ali Khan Vs Union of India (UOI)|
|Judges:||T.S. Thakur and A.K. Goel, JJ.|
|Issue:||Prevention of Corruption Act, 1988 - Sections 7, 10, 11, 13, 15, 19, 19(1), 19(3); Sea Customs Act, 1878 - Section 187A; Gold (Control) Act, 1968 - Section 97; Imports and Exports (Control) Act, 1947 - Section 6; Income Tax Act, 1961 - Sections 271, 279; Foreign Exchange Regulation Act, 1973 - Section 61; Companies Act, 1956 - Section 621; ...|
|Judgement Date:||August 06, 2014|
A.K. Goel, J.
1. This petition, by way of public interest litigation, seeks direction to declare Section 19 of the Prevention of Corruption Act, 1988 ("PC Act") unconstitutional and to direct prosecution of all cases registered and investigated under the provisions of PC Act against the politicians, M.L. As, M. Ps and Government officials, without sanction as required Under Section 19 of the PC Act.
2. According to the averments in the writ petition, the Petitioner is a practising advocate in the State of Jammu & Kashmir. In the said State, several Government officials have been charged for corruption but in the absence of requisite sanction, they could not be prosecuted. Referring to several instances including those noticed by this Court in various orders, it is submitted that the provision for sanction as a condition precedent for prosecution is being used by the Government of India and the State Governments to protect dishonest and corrupt politicians and Government officials. The discretion to grant sanction has been misused.
3. The petition refers to various orders of this Court where incumbents were indicted but not prosecuted for want of sanction. In Common Cause, a registered Society v. Union of India and Ors. (1996) 6 SCC 593, Captain Satish Sharma, the then Minister for Petroleum and Natural Gas was held to have acted in arbitrary manner in allotting petrol pumps but since sanction was refused, he could not be prosecuted. In Shiv Sagar Tiwari v. Union of India and Ors. (1996) 6 SCC 599, Smt. Shiela Kaul, the then Minister for Housing and Urban Development, Government of India was indicted for making arbitrary, mala fide and unconstitutional allotments but still she could not be prosecuted. In M.C. Mehta (Taj Corridor Scam) v. Union of India and Ors. (2007) 1 SCC 110, Ms. Mayawati, the then Chief Minister of U.P. and Shri Nasimuddin Siddiqui, the then Minister for Environment, U.P. were indicted and allegations against them were noticed but they could not be prosecuted in the absence of sanction. It is further stated that in Prakash Singh Badal and Anr. v. State of Punjab and Ors. 2007 (1) SCC 1, Lalu Prasad @ Lalu Prasad Yadav v. State of Bihar Thr. CBI (AHD) Patna 2007 (1) SCC 49 and K. Karunakaran v. State of Kerala 2007 (1) SCC 59, validity of requirement of sanction was not gone into on the ground of absence of challenge to its validity. In Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi (Dr.) and Ors. (1987) 1 SCC 227, this Court noticed that there was a steady decline of public standards and morals. It was necessary to cleanse public life even before cleaning the physical atmosphere. The provision for sanction under the PC Act confers unguided and arbitrary discretion on the Government to grant or not to grant sanction to prosecute corrupt and dishonest politicians, M. Ps, M.L. As and Government officials.
4. In response to the notice issued by this Court, affidavits have been filed by several State Governments and Union Territories but no counter affidavit has been filed by the Union of India. The stand taken in all the affidavits is almost identical. According to the said stand, the object of Section 19 of the PC Act is to protect public servants against irresponsible, frivolous and vexatious proceedings for acts performed in good faith in the discharge of their official duties and to protect them from unnecessary harassment of legal proceedings arising out of unfounded and baseless complaints. In the absence of such a provision, the public servant may not be inclined to offer his/her free and frank opinion and may not be able to function freely.
5. We have heard Mr. D.K. Garg, learned Counsel for the Petitioner and Mr. P.S. Narasimha, learned Additional Solicitor General for the Union of India and learned Counsel for various States.
6. Section 19 of the PC Act is as follows:
19. Previous sanction necessary for prosecution.--
(1) No court shall take cognizance of an offence punishable Under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required Under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required Under Sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the...
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