Maharashtra govt’s CrPC amendment shields corrupt babus: PIL in Bombay HC

The Devendra Fadnavis-led Maharashtra government’s latest amendment to the Code of Criminal Procedure (CrPC) helps corrupt bureaucrats, a PIL filed by lawyer-activist Abha Singh in the Bombay High Court contends.

In August last year, the Maharashtra government amended Section 156(3) of the CrPC which called for prior sanction of the government be taken if a Magistrate, on a private citizen’s complaint, ordered an FIR to be lodged against a public servant. This mandatory requirement is absent if the police or the Anti-Corruption Bureau (ACB) registers the FIR.

The government’s rationale for bringing in the amendment was that high-ranking civil servants, MLAs, policemen and elected members of panchayats were the frequent victims of motivated, malicious and false complaints of corruption, custodial torture and other illegalities. Investigation and prosecution of these charges were placing hurdles in government-decision making and functioning.

Singh has challenged this provision as being ultra vires the Constitution of India, and going beyond the powers accorded to the State Legislature, as it intends to amend the Prevention of Corruption Act, 1988 “through the backdoor”.

This amendment creates a “logical impossibility”, Singh contends. Because, the Magistrate must apply his mind before granting sanction, but the facts on the basis of which such application of mind is to be done, shall come forth only after an investigation is conducted. So how can prior sanction be required before the investigation is started, Singh asks.

Further, the amendment is discriminatory because while it gives no protection to the common man, it places public servants in a privileged category. It also illegally goes against the legal requirement of judicial supervision of an investigation by curtailing the powers of a Magistrate.

Against Established Judicial Precedent

On May 16th, 2014, a constitution bench of the Supreme Court in the case of Subramanian Swamy, while striking down Section 6E of the Delhi Special Police Act, held that any legal provision which mandates the seeking of prior sanction before conducting an investigation or prosecution militates against the letter and spirit of the Prevention of Corruption Act, and is therefore unconstitutional. Section 6E was commonly known as the “Single Directive” which stated that no bureaucrat holding the rank of Joint Secretary and above, and no MLA or MP could be proceeded against without the nod of the government or the respective competent authority. The court held that any law which created a special category of public servants who are treated differently and granted more protection is illegal.

As per law, the police are bound to register an FIR and investigate, and in case they don’t, going by the constitution bench ruling in the Lalita Kumari case on November 12th, 2013, they will be liable to face both administrative and criminal proceedings. Sections 156(3) and 190 further strengthen a citizen’s right – by providing that a magistrate can direct the police to lodge an FIR, or conduct a proper investigation.

The government has tried to give legal heft to its decision by citing the Supreme Court’s October 1st, 2013, ruling in the Anil Das case , which held that a magistrate could neither take cognizance of a complaint nor direct an investigation without the government’s prior permission. But this ruling by a bench of two judges now stands overruled because of the Lalita Kumari decision which was delivered a month later by a larger bench. It is significant to note that the Lalita Kumari judgement wasn’t limited to the registration of an FIR; it also held that a preliminary enquiry to verify the veracity of the allegations is a must in corruption cases.

This amendment “defeats the objective of our country to fight corruption. It has accorded unprecedented feeling of impunity to public servants who otherwise are rarely apprehended for their enormous acts of the corruption,” Singh’s petition contends.