Terming Janata Party president Subramanian Swamy's plea for prosecuting A Raja in the 2G spectrum case as "misconceived and premature", Government today told the Supreme Court that the sanction had been sought even before a complaint was filed in a court.
"There is no question of consideration of sanction when no complaint was filed at all. It is settled law that there is no question of sanction merely on the institution of the compliant," Attorney General G E 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.
Vahanvati made the submissions during the hearing by the apex court of Swamy's petition seeking the court's direction to Prime Minister Manmohan Singh to grant sanction to prosecute Raja, who has resigned as Telecom Minister following the controversy over spectrum allocation.
The government's senior-most law officer said the request "made by Swamy in his letter dated Nov 29, 2008 was entirely misconceived. A petitioner sought sanction for prosecution even without filing a complaint before the competent court."
He 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 the 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 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," Vahanvati said, maintaining that the stage for consideration of sanction arises when the court is taking 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 bench said a complaint has to be filed in the competent court which must be comprehensive while one is making submissions, raising question of law.
The Attorney General concluded his argument saying that "no prior sanction is required for filing complaint in the competent court."
Swamy contested Attorney General's submissions saying that he can directly approach the Prime Minister for seeking prosecution of a minister, while he also has the alternative right to 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.
"I am entitled to go to the court but to save time, I went to the Prime Minister in the beginning," Swamy said.
He, however, said in today's situation, no such sanction was required for Raja's prosecution.
