The AAP Government’s decision to transfer former Delhi law secretary R Kirannath had reportedly its genesis in a confidential note in which the officer had made it clear to Chief Minister Arvind Kejriwal that the Centre’s March 20, 1974 notification giving absolute powers to the lieutenant Governor for grant of sanction for prosecution was a binding on the Delhi Government.
Kirannath the then law Secretary has written a secret note saying his Government was acting against the spirit of the rules and regulations framed by the Centre under constitution to run the administration. The law secretary had advised Kejriwal to send files for l-G Najeeb Jung’s approval as that was mandatory and it is the l-G whose consent is needed.
Quoting the 2005 Supreme Court ruling in the Afzal Guru case, Kirannath had said the l-G had acted in exercise of powers conferred by sub-Section (1) of Section 196 CrPC read with the Government of India, Ministry of Home Affairs notification of March 20, 1974.
Under the said notification, the court had said there was delegation of powers to the l-G to grant sanction. “The Government of NCT of Delhi Act, 1991 does not in any way affect the validity of delegation contained in the Presidential Notification issued under Article 239,” the note said.
Top sources told The Pioneer that Kirannath’s confidential note had irked the Chief Minister who was of the opinion that no sanction was required from the l-G for prosecution of any official including implementation of circle rate. This means that directorate of prosecution comes under the l-G and appointment of all standing counsels and public prosecutors needs Raj Niwas approval. Kejriwal was of the view that the elected Government was competent enough to grant any such sanction.
In her confidential note, Kirannath had based her facts in relation to Section 196 of the Code of Criminal Procedure which provides that no court shall take cognizance of any offence punishable under Section 153-B or sub-section (2) or sub-section (3) of Section 505 of the Indian Penal Code; or a criminal conspiracy to commit such offence, except with the previous sanction of the Centre or of the State Government or of the District Magistrate.
Even former law minister Kapil Mishra had issued a circular directing the officials that no files be sent to the l-G as his sanction was not required to proceed further. He had said that the ministers concerned were competent enough to take a final decision on theirrespective files.
A senior bureaucrat said that the main objective of the said provision is to prevent unauthorised people from intruding the matters of a State by instituting State prosecutions, and to secure that such prosecution shall only be instituted under the authority of the Government. “And the term ‘Government’ means either the President or the Governor acting on the advice of the Council of Ministers or on the advice of the individual Minister to whom the department concerned has been allocated under the Rules of Business.”
In its judgement, the apex court had noted, “The said notification which finds place in the annexures to the written submissions made on behalf of Gilani shows that it was issued under Article 239(1) of the Constitution enabling the Administrator of the Union Territory to discharge powers and functions of the State Government under the Cr.PC. We accept the submission of the learned senior counsel for the State that the delegation of power contained in the said notification will continue to operate unless the Parliament by law provides otherwise. The Government of NCT of Delhi Act, 1991 does not in any way affect the validity of delegation contained in the Presidential Notification issued under Article 239. We therefore hold that the sanctions under Section 50 of POTA and Section 196 of Cr.P.C. were accorded by a competent authority”