In order to
commence a legal action, the person must have some real grievance against any
person, i.e. he must claim that his rights, whether under the law, or under the
contract, or under equity, or under the common law or customs, is infringed; or
must say that law has been breached to his prejudice. The Locus means the
Person approaching the Court of law must have a sufficient “interest” in the
subject matter of the case.
However, this
requirement of Locus is exempted under the criminal law, except under certain
situations, a person may still require a locus to initiate criminal
proceedings.
AIR 2001 SC 1820
Para 5: Before adverting
to the matter in issue and the rival contentions advanced one redeeming feature
ought to be noticed here pertain to Criminal jurisprudence. To pursue an
offender in the event of commission of an offence, is to sub-serve a social
need -- Society cannot afford to have a criminal escape his liability, since
that would bring about a State of social pollution, which is neither desired
nor warranted and this is irrespective of the concept of locus -- the doctrine
of locus-standi is totally foreign to criminal jurisprudence. This observation
of ours however obtains support from the decision of this Court in A. R.
Antulay V/s. Ramdas Sriniwas Nayak, (1984) 2 SCC 500.
AIR 1984 SC 718
Para 4: On behalf of the
respondent-complainant it was urged that it is one of the fundamental
postulates of the administration of criminal justice that anyone can set the
criminal law into motion unless the statute enacting the offence makes a
special provision to the contrary both with regard to the locus standi of the
complainant, the manner and method of investigation and the person competent to
investigate the offence, and the Court competent to take cognizance. It was
submitted that in Section 8 (1) which specifically confers power on the special
Judge to take cognizance of an offence without commitment of the case to it
there is nothing which would preclude a complainant from filing a private
complaint or which would deny jurisdiction to the special Judge to take
cognizance of the offences on such a private complaint. It was submitted that
even if Section 5-A is treated as mandatory and incorporates a safeguard, it is
a safeguard against investigation of offences committed by a public servant by
police officers of lower rank and nothing more. It was lastly urged that on a
comprehensive view of the provisions of 1952 Act, it does not transpire that
any of its provisions and were specifically Section 5-A denies the power to the
special Judge to take cognizance of offences enumerated in Section 6 (1) (a)
and (b) upon a private complaint. It was also contended that before taking such
a drastic view of blocking the access to justice by holding that a private
complaint cannot be entertained by the special Judge, the Court must insist on
specific and positive provision of such incontrovertible character as to
supplant the scheme of Criminal P. C. which permits two parallel and
independent agencies to take criminal offences to Court. An incidental
submission was that the Legislature clearly expresses itself when it requires a
certain qualification for filing the complaint and to specify a certain Court
competent to take cognizance and the method and manner of taking cognizance of
those specified offences. To substantiate this submission our attention was
drawn to a number of statutes which we will presently mention.
Para 5: The contention,
put in the forefront was, that Section 5-A upon its true interpretation and
keeping in view that it enacts a mandatory safeguard in favour of public
servants, investigation therein contemplated is a condition precedent to taking
cognizance of offences enumerated in Section 6 (1) (a) and (b) and as a
corollary a private complaint would not lie and cannot be entertained by a
special Judge under Section 8 (1) of 1952 Act. The contention may be examined
on principle and precedent.
Para 6: It is a well recognized
principle of criminal jurisprudence that anyone can set or put the criminal law
into motion except where the statute enact or creating an offence indicates to
the contrary. The scheme of the Criminal P. C. envisages two parallel and
independent agencies for taking criminal offences to Court. Even for the most
serious offence of murder, it was not disputed that a private complaint can,
not only be filed but can be entertained and proceeded with according to law.
Locus standi of the complainant is a concept foreign to criminal jurisprudence
save and except that where the statute creating an offence provides for the
eligibility of the complainant, by necessary implication the general principle
gets excluded by such statutory provision. Numerous statutory provisions, can
be referred to in support of this legal position under as (i) Section 187-A of
Sea Customs Act, 1878, (ii) Section 97 of Gold Control Act, 1968, (iii) Section
6 of Imports and Exports Control Act, 1947, (iv) Section 271 and Section 279 of
the Income-tax Act, 1961, (v) Section 61 of the Foreign Exchange Regulation
Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of
the Electricity (Supply) Act. This list is only illustrative and not
exhaustive. While Section 190 of the Criminal P. C. permits anyone to approach
the Magistrate with a complaint, it does not prescribe any qualification the
complainant is required to fulfil to be eligible to file a complaint. But where
an eligibility criterion for a complainant is contemplated specific provisions
have been made such as to be found in Sections 195 to 199 of the Cr. P. C.
These specific provisions clearly indicate that in the absence of any such
statutory provision, a locus standi of a complainant is a concept foreign to
criminal jurisprudence. In other words, the principle that anyone can set or
put the criminal law in motion remains intact unless contra-indicated by a
statutory provision. This general principle of nearly universal application is
founded on a policy that an offence i.e. an act or omission made punishable by
any law for the time being in force is not merely an offence committed in
relation to the person who suffers harm but is also an offence against society.
The society for its orderly and peaceful development is interested in the
punishment of the offender. Therefore, prosecution for serious offences is
undertaken in the name of the State representing the people which would exclude
any element of private vendatta or vengeance. If such is the public policy
underlying penal statutes, who brings an act or, omission made punishable by
law to the notice of the authority competent to deal with it, is immaterial and
irrelevant unless the statute indicates to the contrary. Punishment of the
offender in the interest of the society being one of the objects behind penal
statutes enacted for larger good of the society, right to initiate proceedings
cannot be whittled down, circumscribed or fettered by putting it into a
straight-jacket formula of locus standi unknown to criminal jurisprudence, save
and except specific statutory exception. To hold that such an exception exists
that a private complaint for offences of corruption committed by public servant
is not maintainable, the Court would require an unambiguous statutory provision
and a tangled web of argument for drawing a farfetched implication, cannot be a
substitute for an express statutory provision. In the matter of initiation of
proceeding before a special Judge under Section 8(1), the Legislature while
conferring power to take cognizance had three opportunities to unambiguously
state its mind whether the cognizance can be taken on a private complaint or
not. The first one was an opportunity to provide in Section 8(1) itself by
merely stating that the special Judge may take cognizance of an offence on a
police report submitted to it by an investigating officer conducting
investigation as contemplated by Section 5-A. While providing for investigation
by designated police officers of superior rank, the Legislature did not fetter
the power of special Judge to take cognizance in a manner otherwise than on
police report. The second opportunity was when by Section 8(3) a status of a
deemed public prosecutor was conferred on a private complainant if he chooses
to conduct the prosecution. The Legislature being aware of a provision like the
one contained in sec. 225 of the Criminal P. C., could have as well provided
that in every trial before a special Judge the prosecution shall be conducted
by a Public Prosecutor, though that itself would not have been decisive of the
matter. And the third opportunity was when the Legislature while prescribing
the procedure prescribed for warrant cases to be followed by special Judge did
not exclude by a specific provision that the only procedure which the special
Judge can follow is the one prescribed for trial of warrant cases on a police
report. The disinclination of the Legislature to so provide points to the
contrary and no canon of construction permits the Court to go in search of 'a
hidden or implied limitation on the power of the special Judge to take
cognizance unfettered by such requirement of its being done on a police report
alone. In our opinion, it is no answer to this fairly well-established legal
position that for the last 32 years no case has come to the notice of the Court
in which cognizance was taken by a special Judge in a private complaint for
offences punishable under the 1947 Act. If something that did not happen in the
past is to be the sole reliable guide so as to deny any such thing happening in
the future, law would be rendered static and slowly whether away.
Para 7: The scheme
underlying Criminal P.C. clearly reveals that anyone who wants to give
information of an offence may either approach the Magistrate or the officer in
charge of a Police Station. If the offence complained of is a non-cognizable
one, the Police Officer can either direct the complainant to approach the
Magistrate or he may obtain permission of the Magistrate and investigate the
offence. Similarly anyone can approach the Magistrate with a complaint and even
if the offence disclosed is a serious one, the Magistrate is 'competent to take
cognizance of the offence and initiate proceedings. It is open to the
Magistrate but not obligatory upon him to direct investigation by police. Thus
two agencies have been set up for taking offences to Court. One would
therefore, require a cogent and explicit provision to hold that Section 5-A
displaces this scheme.
Para 9: Chapter XII of
the Criminal P. C., 1973 bears the heading 'Information to the police and their
powers to investigate' Section 154 provides for information to police in
cognizable cases. It casts a duty on the officer in charge, of a police station
to reduce to writing every relating to commission of a cognizable offence given
to him and the same will be read over to the informant and the same shall be
signed by the informant and a copy thereof shall be given to him. If
information given to an officer in charge of a Police Station disclosed a
non-cognizable offence, he has to enter the substance of the information in a
book to be kept by such officer in such form as the State Government may
prescribe in this behalf and to refer the informant to the Magistrate (S. 155
(1).) Sub-s. (2) puts an embargo on the power of the police officer-in-charge
of police station to investigate a non-cognizable offence without the order of
a Magistrate having power to try the case or commit the case for trial. sec.
156 sets out the powers of the officer in charge of police station to
investigate cognizable cases. Sub-section (2) of Section 156 may be noticed. It
says that 'no proceeding of a Police officer in any such case shall at any
stage be called in question on the ground that the case was one which such
officer was not empowered under the section to investigate.' Sub-section (3)
confers power on the Magistrate empowered under Section 190 to take cognizance
of an offence, to order an investigation as set out in sub-sections (1) and (2)
of Section 156. Section 167 enables the Magistrate to remand the accused to
police custody in the circumstances therein mentioned; Section 173 provides
that 'every investigation under Chapter XII shall be completed without
unnecessary delay and as soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take cognizance of
the offence on a police report, a report in the form prescribed by the State
Government, setting out various things enumerated in the section. Sub-section
(8) of Section 173 provides that despite submission of the report on completion
of the investigation, further. investigation can be conducted in respect of the
same offence and further evidence so collected has to be forwarded to the same
Magistrate. The report of this further investigation shall by and large conform
with the requirements of sub-sections (2) to (6) Fasciculus of sections in
Chapter XIV prescribed conditions requisite for initiation of proceedings
Section 190 provides that subject to the provisions of the Chapter, any
Magistrate of the first class, and any Magistrate of the second class specially
empowered in this behalf under sub-sec. (2). may take cognizance of any
offence- (a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts, and (c) upon information received from
any person other than a police officer, or upon his own knowledge, that such
offence has been committed Section 191 obliges the Magisrate when he takes
cognizance of an offence under Clause (c) of sub-sec. (1) of sec. 190, to
inform the accused when he appears before him, that he is entitled to have the
case inquired into or tried by another Magistrate. Section 193 provides that
'except as otherwise expressly provided in the Code or by any other law for the
time being in force, no Court of Session shall take cognizance of any offence
as a Court of original jurisdiction unless the case has been committed to it by
a Magistrate under the Code.'
Para 10: Cognizable
offence has been defined in Section 2 (c) of the Cr. P. C. to mean 'an offence
for which, and "cognizable case" means a case in which, a police
officer may in accordance with the First Schedule or under any law for the time
being in force, arrest without warrant'. Complaint is defined in Section 2 (d)
to mean 'any allegation made orally or in writing to a Magistrate, with a view
to his taking action under the Code, that some person, whether known or unknown
has committed an offence, but does not include a police report.' There is an
explanation appended to the section which has some relevance. 'A report made by
a police officer in a case which disclosed, after investigation, the commission
of a non-cognizable offence shall be deemed to be a complaint; and the police
officer by whom such report is made shall be deemed to be complainant.' Section
2 (e) defines 'non-cognizable offence' to mean 'an offence for which' and "non-cognizable"
case means a case in which, a police officer, has no authority to arrest
without warrant'. Police report is defined in Sec. 2 (r) to mean 'a report
forwarded by a police officer to a Magistrate under sub-sec. (2) of sec. 173.'
officer-in-charge of a police station' has been defined in Section 2 (o) to
include any police officer present at the station house who is next in rank to
such officer and is above the rank of constable or, when the State Government
so directs, any other police officer so present.' In other words, a
Head-constable of Police that is one step higher from a constable can be in
charge of a police station.
Para 11: It may now be
mentioned that offences under Sections 161, 162, 163, 164, 165, 165-A, I. P. C.
and Section 5 (2) of the 1947 Act are cognizable offences. If they are
cognizable offences, anyone can go to a police station under Section 154, I. P.
C., give information of the offence and an officer of the level of a
Head-constable of Police can start investigation to the chagrin and annoyance
of a public servant who may be a highly placed officer. It must also be
recalled that prior to 1947, offence under Section 161, I. P. C. was a
non-cognizable offence meaning thereby that a Magistrate under Section 190 of
the Criminal P. C. would take cognizance upon a private complaint and initiate
a proceeding. By sec. 3 of the 1947 Act, offences under Sections 161 and 165
were made cognizable Legislature being aware that once these two offences are
made cognizable, a police officer of the rank of Head-constable would be
entitled to initiate investigation against the public servant who may as well
be highly placed officer in police, revenue, taxation or other departments. In
order to guard against this invidious situation, while making offences under
Sections 161 and 165 cognizable by Section 3, as it stood in 1947, care was
taken to introduce a proviso to Section 3 which reads as under :
"Provided
that a police officer below the rank of Deputy Superintendent of Police shall
not investigate any such offences without the order of a Magistrate of the
First Class or make any arrest therefor without a warrant."
While
investigating a cognizable offence, the investigating officer who is an officer
in charge of a police station has a right to arrest the accused without a
warrant. On these offences being made cognizable, in order to protect public
servant from being arrested by a petty police officer as well to avoid
investigation of an offence of corruption being conducted by police officers
below the specified rank the proviso was enacted thereby depriving low level
police officers from exercising this drastic power. However, Legislature was
aware that an officer of a rank of Deputy Superintendent of Police may not
always be available and to guard against offences going undetected, a further
power was conferred that although ordinarily the offence by public servant
under the aforementioned sections shall not be investigated by an officer below
the rank of Deputy Superintendent of Police, the Magistrate of the first class
can grant permission to an officer of the lower rank to investigate the offence
in teeth of the statute. Therefore, two safeguards were sought to be
incorporated in the predecessor provision of the present Section 5-A, being the
proviso to Section 3, namely, these offences having become cognizable shall not
be investigated by an officer of a rank below that of a Deputy Superintendent
of Police but if it becomes so necessary, it shall not be done without the
order of a Magistrate of the first class. Left to police, investigation by the
designated officer of superior rank guaranteed a protection against frivolous
investigation. In larger public interest non-availability of such higher
officers was catered to by conferring power on the Magistrate of the first
class to grant permission to an officer of the rank lower than the designated
officer to investigate such offences. Two conclusions emerge from this
situation, that investigation by a police officer of the higher rank on his own
may tend to curb frivolous or speculative prosecution but even if an officer of
a rank lower than the designated officer is to undertake the investigation for
the reasons which he must convince the Magistrate of the first class, the
Legislature considered courts' intervention as adequate safeguard against
investigation by police officer of a lower rank. It may be mentioned that
Section 5-A was first introduced by the Prevention of Corruption (Second
Amendment) Act, 1952 but was substituted by the present Section 5-A by Act 40
of 1964 which was enacted to give effect to the recommendations of the
Santhanam Committee. Section 5-A specifies the officers of superior rank in
police force on whom the power to investigate offences under Sections 161, 165,
165-A, I. P. C. and Section 5 of the 1947 Act is conferred. Simultaneously
power was conferred on the Presidency Magistrate or a Magistrate of the first
class, as the case may be, to permit an officer inferior in rank to the
designated officer to undertake investigation and to make an arrest without a
warrant. The legislative intention is further manifested by the proviso to
Section 5-A which enables the State Government to authorise police officer not
below the rank of an Inspector of Police by general or special order to
investigate the aforementioned offences without the order of the Presidency
Magistrate or a magistrate of the first class, and may make an arrest without a
warrant. Again while specifying officers of higher rank in Clauses (a) to (d)
of Section 5-(1) who would, by virtue of office, be entitled to investigate the
aforementioned offences as cognizable offences and could also make arrest
without warrant power was conferred on the Presidency Magistrate or the
Magistrate of the first class to remove this umbrella of protection by giving
an authority to investigate such offences to a police officer of rank lower
than the officers of designated rank, and the proviso makes a further dent in
the safeguard in that the State Government by general or special order can
bring down the designated rank to the level of Inspector of Police to
investigate these offences.
AIR 2014 SC 2140
Para 80: In
a comparatively recent decision of this Court in Subramanian Swamy, this court
was concerned with the question whether a complaint can be filed by a citizen
for prosecuting the public servant for an offence under the PC Act, 1988 and
whether the authority competent to sanction prosecution of a public servant for
offences under that Act is required to take 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 and the guidelines issued by the
Central Government, Department of Personnel and Training and the Central
Vigilance Commission. In the supplementing judgment, A K. Ganguly, J. while
concurring with the main judgment delivered by G. S. Singhvi, J. observed:
"Today,
corruption in our country not only poses a grave danger to the concept of
constitutional governance, it also threatens the very foundation of the 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.........."
Dealing with
Section 19 of the PC Act, 1988 which bars a court from taking cognizance of the
cases of corruption against a public servant under Sections 7, 10, 11, 13 and
15 of the PC Act, 1988, unless the Central or the State Government, as the case
may be, has accorded sanction observed that this provision virtually imposes
fetters on private citizens and also on prosecutors from approaching court
against corrupt public servants. Public servants are treated as a special class
of persons enjoying the said protection so that they can perform their duties
without fear and favour and without threats of malicious prosecution but the
protection against malicious prosecution which is extended in public interest
cannot become a shield to protect corrupt officials.
Sandeep
Jalan
Advocate
Law
Referencer: https://www.vakeelkanumber.com/
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