Complaint, Preliminary Inquiry and the Right to be Heard

Second proviso. On such a reference the Commission, after preliminary inquiry, submits its report to the Lokpal in the case of Group A and B; and in the case of Group C and D it proceeds under its own Act instead.

Third proviso. Before ordering an investigation under clause (b), the Lokpal shall call for the explanation of the public servant so as to determine whether a prima facie case for investigation exists.

Fourth proviso. Seeking that explanation shall not interfere with any search and seizure required to be undertaken by an agency under the Act.

Read the first two provisos together and you have the answer to a question examiners like. The Lokpal and the Central Vigilance Commission are not rivals; the Act makes the Commission the Lokpal's inquiring arm for the civil service, keeps Group A and B answerable back to the Lokpal, and leaves Group C and D wholly to the Commission's own machinery. Chapter 720 develops the division.

And the third proviso is a real protection. A public servant is heard before an investigation is even ordered, which is more than the ordinary criminal law gives anybody. The fourth proviso stops that protection being used to empty a cupboard.

Section 20(2) to (4): the preliminary inquiry

Sub-section (2). During the preliminary inquiry the Inquiry Wing or the agency conducts the inquiry, and on the material, information and documents collected seeks the comments of the public servant and of the competent authority; after obtaining them it submits a report to the Lokpal within sixty days from the date of receipt of the reference.

Sub-section (3). A bench of not less than three Members shall consider every such report and, after giving an opportunity of being heard to the public servant, decide whether a prima facie case exists, and proceed with one or more of:

1. (a) investigation by an agency or the Delhi Special Police Establishment;
2. (b) initiation of departmental proceedings or other appropriate action by the competent authority;
3. (c) closure of the proceedings against the public servant, and to proceed against the complainant under section 46.

Sub-section (4). A preliminary inquiry shall ordinarily be completed within ninety days, and for reasons recorded in writing within a further ninety days from the date of receipt of the complaint.

Clause (c) is the most criticised sentence in the Act and chapter 200 works it. A closure of the case against the public servant is coupled with the possibility of prosecuting the complainant for a false complaint. The intention is to deter malicious complaints; the effect that critics point to is to deter complaints altogether.

Section 20(5) to (12): the investigation and after

Sub-section (5). The Lokpal directs an agency to investigate as expeditiously as possible and to complete the investigation within six months from the date of its order, extendable by a further period not exceeding six months at a time for reasons recorded in writing.

Sub-section (6). Notwithstanding section 173 of the Code of Criminal Procedure, the agency shall, in cases referred by the Lokpal, submit the investigation report under that section to the court having jurisdiction and forward a copy to the Lokpal.

Sub-section (7). A bench of not less than three Members considers every such report and, after obtaining the comments of the competent authority and the public servant, may:

1. (a) grant sanction to its Prosecution Wing or the investigating agency to file a charge sheet, or direct the closure report before the Special Court; or
2. (b) direct the competent authority to initiate departmental proceedings or other appropriate action.

Sub-section (8) allows the Lokpal, after deciding under sub-section (7), to direct its Prosecution Wing or the investigating agency accordingly.

Sub-section (9). The Lokpal may pass orders for the safe custody of documents during a preliminary inquiry or investigation.

Sub-section (10). The Lokpal's website shall display to the public the status of the number of complaints pending and disposed of, in the manner specified by regulations.

Sub-section (11). The Lokpal may retain original records and evidence likely to be required in the inquiry, the investigation or the conduct of a case by it or by the Special Court.

Sub-section (12). The manner and procedure of a preliminary inquiry or investigation, including what material and documents are to be made available to the public servant, is as specified by regulations.

Sub-section (10) is a small provision with a large idea in it. Publicity is the classical ombudsman's sanction, and here it appears as a statutory duty to publish caseload. It is the only place in the Act where the Lokpal must tell the public anything without waiting for its annual report.

Section 21: the person who is not accused

If at any stage the Lokpal considers it necessary to inquire into the conduct of any person other than the accused, or is of opinion that the reputation of any person other than an accused is likely to be prejudicially affected by the preliminary inquiry, it shall give that person a reasonable opportunity of being heard in the preliminary inquiry and to produce evidence in his defence, consistent with the principles of natural justice.

This is section 8B of the Commissions of Inquiry Act 1952 in a different statute, and the resemblance is not accidental. Chapter 440 reads section 8B, and a good answer on either institution should notice that Indian law has settled on the same protection for anyone whose reputation an inquiry may damage, whether or not they are the target.

Section 22: the power to require information

For the purposes of any preliminary inquiry or investigation, the Lokpal or the investigating agency may require any public servant or any other person who in its opinion is able to furnish information or produce documents relevant to the inquiry or investigation, to furnish that information or produce those documents.

Notice the breadth. Any person, not only a public servant. This is the power chapter 50 identified as the one that makes maladministration visible: the ombudsman can see the file that decided the case.

A worked example

A complaint alleges that a Group A officer of a Ministry took two lakh rupees to clear a bill.

Day 0. The complaint is received. The Lokpal decides to proceed and orders a preliminary inquiry: section 20(1)(a).

First proviso. The officer is Group A, so the complaint must be referred to the Central Vigilance Commission.

Within sixty days of the reference. The Commission conducts the preliminary inquiry, seeks the comments of the officer and of his competent authority, and reports to the Lokpal: section 20(2) with the second proviso.

Ninety days, extendable by ninety. That is the outer limit for the preliminary inquiry itself: section 20(4).

A bench of three or more. It considers the report, hears the officer, and finds a prima facie case: section 20(3).

Third proviso to section 20(1). Before ordering an investigation the Lokpal calls for the officer's explanation.

Investigation ordered. Six months, extendable by six at a time: section 20(5). The agency files its section 173 report with the court having jurisdiction and copies it to the Lokpal: section 20(6).

A bench of three or more again. It obtains the comments of the competent authority and the officer, and grants sanction for a charge sheet: section 20(7)(a) with section 23.

Now change the finding. Suppose the bench at the section 20(3) stage finds no prima facie case. It closes the proceedings, and it may proceed against the complainant under section 46.

And change the rank. Had the officer been Group C, the second proviso would have sent the matter to the Central Vigilance Commission to be dealt with under its own Act, and it would not have come back to the Lokpal at all.

What beginners get wrong

That every complaint leads to a preliminary inquiry. Section 20(1)(b) allows the Lokpal to order an investigation directly where a prima facie case already exists.

That the Lokpal itself inquires into every public servant. The first proviso makes reference to the Central Vigilance Commission compulsory for Groups A to D once a preliminary inquiry is decided on.

That the public servant is heard once. He is heard at least three times: for comments under section 20(2), on the report under section 20(3), and by way of explanation under the third proviso before an investigation is ordered.

That the ninety day and sixty day limits are the same clock. Sixty days runs from receipt of the reference by the inquiring body; ninety days runs from receipt of the complaint.

Quick revision

s.20(1): preliminary inquiry or investigation. Four provisos: reference of Groups A to D to the Central Vigilance Commission; Groups A and B report back, Groups C and D stay with the Commission; the public servant's explanation before an investigation; and no interference with search and seizure.

s.20(2): report within sixty days of the reference, after comments from the public servant and the competent authority.

s.20(3): a bench of not less than three, after hearing the public servant, orders investigation, departmental proceedings, or closure with action against the complainant under section 46.

s.20(4): preliminary inquiry ninety days, extendable by ninety.

s.20(5): investigation six months, extendable by six at a time.

s.20(6): the agency files the section 173 report with the court, copy to the Lokpal.

s.20(7): a bench of three or more grants sanction for a charge sheet or directs departmental action.

s.20(10): the website displays complaints pending and disposed of.

s.21: a person other than the accused whose reputation may be prejudicially affected must be heard.

s.22: power to require information or documents from any person.

Test yourself

1. Distinguish a preliminary inquiry from an investigation under the Act. A preliminary inquiry, under section 20(1)(a), is conducted by the Inquiry Wing or an agency to ascertain whether a prima facie case exists; it must be completed ordinarily in ninety days, extendable by ninety, and produces a report to the Lokpal within sixty days of the reference. An investigation, under section 20(1)(b) and (5), is investigation in the sense of the Code of Criminal Procedure, done by an agency within six months extendable by six months at a time, and ends in a report under section 173 filed with the court having jurisdiction.

2. What happens to a complaint against a Group C official? Under the first proviso to section 20(1) it must be referred to the Central Vigilance Commission. Under the second proviso the Commission, in the case of Group C and Group D public servants, proceeds in accordance with the Central Vigilance Commission Act 2003 rather than reporting back to the Lokpal, which is the position for Group A and B.

3. How many times is the public servant heard before a charge sheet is filed? At least three times. His comments are sought during the preliminary inquiry under section 20(2); he is given an opportunity of being heard by the bench considering the report under section 20(3); and his explanation is called for under the third proviso to section 20(1) before an investigation is ordered. His comments are also obtained again by the bench considering the investigation report under section 20(7).

4. Who else must be heard, and under which section? Under section 21, any person other than the accused whose conduct the Lokpal considers it necessary to inquire into, or whose reputation is likely to be prejudicially affected by the preliminary inquiry, must be given a reasonable opportunity of being heard and to produce evidence in his defence, consistent with the principles of natural justice.

5. What may the Lokpal do if it finds no prima facie case? Under section 20(3)(c) it may close the proceedings against the public servant and proceed against the complainant under section 46, which provides for prosecution for a false complaint and compensation to the public servant. That coupling is the most criticised feature of the Act's procedure, because a deterrent aimed at malicious complaints also deters honest ones.