Plea to prosecute Raja in 2G scam misconceived:Congress To Supreme Court

Terming Janata Party president Subramanian Swamy's plea for prosecuting A Raja in the 2G spectrum case as "misconceived and premature", government on Tuesday 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 GE Vahanvati told a bench of justices GS Singhvi and AK 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 November 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.