Corruption: Locus standi of a private person.
Sandeep Bhalla Corruption, Criminal Law March 30, 2013
Locus Standi of a private person to file complaint of corruption:
Complaint in respect of allegations of Prevention of corruption Act, 1988:
It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure 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 such as:
(i) Section 187-A of Sea Customs Act, 1878
(ii) Section 97 of Gold Control Act, 1968
(iii) Section 6 of Import and Export 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 Code of Criminal Procedure 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 CrPC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a 24 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 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 vendetta 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 strait- 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 far fetched implication, cannot be a substitute for an express statutory provision.
The only conclusion that unquestionably emerges is that Section 5-A is a safeguard against investigation of offences committed by public servants, by petty or lower rank police officer. It has nothing to do directly or indirectly with the mode and method of taking cognizance of offences by the Court of Special Judge. It also follows as a necessary corollary that provision of Section 5-A is not a condition precedent to initiation of proceedings before the Special Judge who acquires power under Section 8(1) to take cognizance of offences enumerated in Section 6(1)(a) and (b), with this limitation alone that it shall not be upon commitment to him by the Magistrate.
[Source: A.R. Antulay v. R.S. Nayak, 1984 AIR SC 718, 1984 SCR (2) 914, (Supreme Court of India)]
The above observations were made in respect of Section 5-A of Criminal Laws (Amendment) Act, which was similar to section 19 of Prevention of Corruption Act, 1988 and therefore were followed by Supreme Court of India under that Act, as well.
(See Subramanium Swamy vs. Manmohan Singh)
AR Antulay
Locus Standi
Prevention of Corruption Act
Private Complaint
RS Nayak
Santion for prosecution
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