The government today told the Supreme Court that the question of granting sanction for prosecution of former Telecom Minister A Raja in the 2G spectrum scam did not arise as no complaint was filed before a competent court.
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 AG said a complaint has to be filed in the competent court which must be comprehensive while one is making submissions, raising question of law.
He said that "no prior sanction is required for filing complaint in the competent court."
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.