New Delhi: Will Lokpal have jurisdiction to conduct investigations abroad? This was the q estion asked by CBI Director Ranjit Sinha to the government as he sought clarification about various “inconsistencies” in the Act passed by Parliament recently.
In his five-page letter to Personnel Department Secretary S K Sarkar, Sinha said Section 36 of the ‘The Lokpal and Lokayukta Act, 2013’ states that a Lokpal officer, making a preliminary probe, can approach the local court and secure an order for making any evidence available if it is in “different contracting state”.
“…the Special Court, on being satisfied that such evidence is required in connection with the preliminary inquiry or investigation into an offence or proceeding under this Act, may issue a letter of request to a court or an authority in the contracting state competent to deal with such request,” the Act said.
However, the CBI Director raised a query, saying, from this section it was not clear whether such states included foreign countries and if such requests could be sent by using the provisions of the Treaties and Agreements with such foreign countries.
Sinha also pointed out some anomalies in the amended CVC Act, flagging the amended Section 8 whereby the agency will not be able to file charge sheets against group C and D officials of the Centre without consulting the Central Vigilance Commission.
The CBI Director said bestowing such powers on a non-police officer of forming an opinion on the material collected during investigations by a police officer, about prosecution or otherwise, is completely contrary to the provisions of the CrPC as well as the settled position of law as decided by the Supreme Court in catena of judgements.
Sinha has also suggested that in case a false, frivolous or vexatious complaint is filed against the CBI, Director ofCBI should also be allowed to make complaints in the court.
Section 46 (1) of the Lokpal Act says notwithstanding anything contained in this Act, whoever makes any false and frivolous or vexatious complaint under this Act shall, on conviction, face imprisonment of up to one year and a fine of up to Rs one lakh.
Sub section (3) of the above provision states that Special court can only take cognisance when Lokpal or any officer authorised by it files complaint against a complainant of false and frivolous or vexatious complaint.
The CBI Director has also opposed the provision of giving chance to the officers, against whom complaint is received, to explain before giving sanction to prosecution.
“Important issue that can lead to litigation and claims of equality before law arise out of the provisions of Section 23, which provide that the Lokpal will afford opportunity to the public servants before granting sanction for prosecution.
Since similar opportunity is not afforded in investigations by other agencies, including the DSPE, a valid claim of discrimination may arise,” Sinha said.
He also pointed out that under section 44 of the Act, all public servants are legally bound to file asset and liability statements of themselves, spouse and dependent children, but does not clarify whether this includes need or justification for filing such details in case of spouse who is having independent assets and liabilities.
“This is also in contravention of the amendments being proposed in the Prevention of Corruption (Amendment) Bill 2013 wherein, under the proposed Section 13(1)(b) of the aforesaid Bill, it has been provided that any income from lawful source will be considered, while deciding whether the assets are disproportionate or not,” he said.