The Supreme Court Monday sought the Centre's response on a plea challenging the constitutional validity of a provision of the anti-graft law which mandates prior sanction for starting a probe against a government official in a corruption case.
A bench comprising Chief Justice Ranjan Gogoi and Justice Ajay Rastogi issued notice to the Centre on the PIL filed by NGO 'Centre for Public Interest Litigation' (CPIL) against the validity of amended section 17A (1) of the Prevention of Corruption Act.
Advocate Prashant Bhushan, representing the NGO, said the amended provision makes the prior sanction of appointing authority essential to launch investigation against government servants in corruption cases.
"We think that you are entitled to a hearing and so we have issued the notice," he bench said.
The plea has alleged that the amended section curtailed investigation against corrupt officials at the threshold and it was the third attempt by the government to introduce a provision which had already been held un-constitutional twice by the apex court.
It has said that according to the amended Act, prior sanction for enquiry or investigation is required only where the alleged offence by a public servant is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties.
"It would be extremely difficult for the police to determine whether a complaint about an alleged offence is relatable to any recommendation made or decision taken by a public servant, especially as even an enquiry cannot be made without prior sanction," it said.
The plea has claimed that discretion to determine whether or not an alleged offence is relatable to any recommendation made or decision taken by a public servant could become a matter of litigation and would impede time-bound action on cases of corruption.
"The impugned amendments have rendered the PC Act almost ineffective by completely diluting the scope of some of the original provisions, by deleting some of the earlier offences and also by introducing new provision, which in effect would protect corrupt officials and exponentially increase level of corruption," it said.
The plea further claimed that obtaining of prior sanction to commence investigation not only took away the element of secrecy and surprise but introduced a period of delay during which vital evidences can be manipulated or destroyed and gave time to the accused to lobby by employing various means for denial of permission.
"The seeking of permission in itself becomes a cause for corruption as it introduces yet another discretion, at the crucial stage of commencement of investigation.
"Often this discretion of granting permission has conflicts of interest as the matter is referred to the very same department in which the corruption took place," it said.
The plea also challenged the constitutional validity of section 13 (1) (d) (ii) (criminal misconduct) of PC Act, which made it an offence for a public servant to abuse his position and obtain for himself or any other person any valuable thing or pecuniary advantage by abuse of office.
"This particular provision was resorted to by the CBI while filing charge sheet in every high-profile mega corruption case. While it was important that the person involved was charged or convicted but it was far more important that the deal/largesse was set aside and the loss to the exchequer reversed in these mega scam cases involving loss to exchequer of more than lac crores as was the case in the spectrum allotment and coal and iron ore mine allotment cases," it said.
The plea also claimed that the ease of fund transfers, offshore banking, lack of financial intelligence or informers, front companies, "benami" make it extremely difficult to trace a money trail indicating bribes were paid.
It alleged that due to lapse of time between the payment of bribes and commencement of investigations, the bribes are converted into other assets or stashed away in safe havens.
"Besides, for a public servant, payment of bribes from the private party may not always be considerations, many times they abuse their positions in order to seek favours in promotion and posting, post-retirement benefits from their superiors," it said.
The plea has said that section 13(1)(d) acted as a protection against non-traceability of the bribe, accepting favours other than bribe and prevented wasting valuable resources in tracing a bribe.
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