ACAUT proposal for Nagaland Lokayukta Bill 2017

Section-17: Power of Lokayukta to transfer cases.—

On an application for transfer made by the complainant or the public servant, the Lokayukta, after giving an opportunity or being heard to the complainant or the public servant, as the case may be, may transfer any case pending before one bench for disposal to any other bench.

Section-18: Decision to be by majority.—

If the Members of a bench consisting of an even number of Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Lokayukta who shall hear and decide the point or points himself.

Section-19: Provisions relating to complaints and preliminary enquiry and investigation.—

(1)     The Lokayukta on receipt of a complaint accompanied by an affidavit made in such form as may be prescribed, if it decides to proceed further, may order–

(a)     preliminary enquiry against any public servant by its Investigation Wing or any agency to ascertain whether there exists a prima facie case for proceeding in the matter; or

(b)    investigation by any agency, when there exists a prima facie case:

Provided that the Lokayukta shall if it has decided to proceed with the preliminary enquiry, by a general or special order, refer the complaints or a category of complaints or a complaint received by it in respect of public servants to the Investigation Wing, constituted under this Act:

Provided further that the Investigation Wing in respect of complaint(s) referred to it under the first proviso, after making preliminary enquiry in respect of public servants, shall submit its report to the Lokayukta in accordance with the provisions contained in sub-section (2) and (4) and shall proceed in accordance with the provisions of this Act:

Provided further that before ordering an investigation under clause (b), the Lokayukta shall call for the explanation of the public servant so as to determine whether there exists a prima facie case for investigation:

Provided further that the seeking of explanation from the public servant before an investigation shall not interfere with the search and seizure, if any, required to be undertaken by the Investigation Wing under this Act.

(2)     During the preliminary enquiry referred to in sub-section (1), the Investigation Wing may conduct a preliminary enquiry and on the basis of material, information and documents collected, seek the comments on the allegations made in the complaint from the public servant and the competent authority and after obtaining the comments of the concerned public servant and the competent authority, submit within sixty days from the date of receipt of the reference, a report to the Lokayukta.

(3)     A bench consisting of not less than two Upa-lokayuktas of the Lokayukta shall consider every report received under sub-section (2) from the Investigation Wing or any agency, and after giving an opportunity of being heard to the public servant, decide whether there exists a prima facie case and proceed with one or more of the following actions, namely:–

(a)     investigation by the Investigation Wing or by any agency; or

(b)     initiation of the departmental proceedings or any other appropriate action against the concerned public servants by the competent authority; or

(c)     closure of the proceedings against the public servant, or/and to proceed against the complainant under relevant section, that is, prosecution for false complaint and payment of compensation etc. to public servant.

(4)     Every preliminary enquiry referred to in sub-section (1) shall ordinarily be completed within a period of ninety days and for reasons to be recorded in writing, within a further period of ninety days from the date of receipt of the complaint.

(5)     In case the Lokayukta decides to proceed to investigate into the complaint, it shall direct the Investigation Wing or any agency to carry out the investigation as expeditiously as possible and complete the investigation within a period of six months from the date of its order:

Provided that the Lokayukta may extend the said period by a further period not exceeding six months at a time for the reasons to be recorded in writing.

(6)     A bench consisting of not less than three Members of the Lokayukta shall consider every report received by it from any agency and after obtaining the comments of the competent authority and the public servant–

(a)     may grant sanction to its Prosecution Wing or investigating agency to file charge-sheet or direct the closure of report before the Special Court against the public servant; or

(b)     may direct the competent authority to initiate the departmental proceedings or any other appropriate action against the concerned public servant.

(7)     The Lokayukta may, after taking a decision under sub-section (6) on the filing of the charge-sheet direct its Prosecution Wing or any investigating agency to initiate prosecution in the Special Court in respect of the cases investigated by the agency.

(8)     The Lokayukta may, during the preliminary enquiry or the investigation, as the case may be, pass appropriate orders for the safe custody of the documents relevant to the preliminary enquiry or, as the case may be, investigation as it deems fit.

(9)     The website of the Lokayukta shall, from time to time and in such manner as may be specified by regulations, display to the public, the status of number of complaints pending before it or disposed of by it.

(10)    The Lokayukta may retain the original records and evidences which are likely to be required in the process of preliminary enquiry or investigation or conduct of a case by it or by the Special Court.

(11)    Save as otherwise provided, the manner and procedure of conducting a preliminary enquiry or investigation (including such material and documents to be made available to the public servant) under this Act, shall be such as may be specified by regulations.

(12)    The Lokayukta and the Investigation Wing shall also exercise all the powers of police officers as provided in the Code of Criminal Procedure 1973, while conducting any enquiry or investigation under this Act.

Section-20: Persons likely to be prejudicially affected to be heard.—

If, at any stage of the proceeding, the Lokayukta–

(a)     considers it necessary to inquire into the conduct of any person other than the accused; or

(b)     is of opinion that the reputation of any person other than the accused is likely to be prejudicially affected by the preliminary enquiry, the Lokayukta shall give to that person a reasonable opportunity of being heard in the preliminary enquiry and to produce evidence in his defense, consistent with the principles of natural justice.

Section-21: Lokayukta may require any public servant or any other person to furnish information etc.—

Subject to the provisions of this Act, for the purpose of any preliminary enquiry or investigation, the Lokayukta or the investigating agency, as the case may be, may require any public servant or any other person who, in its opinion, is able to furnish information or produce documents relevant to such preliminary enquiry or investigation, to furnish any such information or produce any such document.

Section-22: Power of Lokayukta to grant sanction for initiating prosecution.—

• Without prejudice to the generality of the provisions contained in section 197 of the Code of Criminal Procedure, 1973 or section 19 of the Prevention of Corruption Act, 1988, the Lokayukta shall have the power to grant sanction for prosecution For any matter pending before it or for enquiry or investigation under clause (a) of sub-section (6) and sub-section (7) of section 19.
• The competent authority shall, whenever requested, grant prosecution sanction within 90 days of the request being made. However, if such sanction is not granted, the Lokayukta, shall decide to grant prosecution sanction by majority;
• No prosecution under sub-section (1) shall be initiated against any public servant accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, and no court shall take cognizance of such offence except with the previous sanction of the Lokayukta.
• (Nothing contained in sub-sections (1) and (2) shall apply in respect of the persons holding office in pursuance of the provisions of the Constitution and in respect of which a procedure for removal of such person has been specified therein.

POWERS OF LOKAYUKTA

Section-23:  Supervisory powers of Lokayukta.—

(1)     The Lokayukta shall have the powers of superintendence over and to give direction in respect of the matters referred by the Lokayukta for preliminary enquiry or investigation under this Act:

(2)     The Investigation Wing shall send a statement at such interval as the Lokayukta may direct, to the Lokayukta in respect of action taken on complaints referred to it under the second proviso to sub-section (1) of section 18 and on receipt of such statement, the Lokayukta may issue guidelines for effective and expeditious disposal of such cases.

(3)     Any officer of Investigating Wing, investigating a case referred to it by the Lokayukta, shall not be transferred without the approval of the Lokayukta.

(4)     The Prosecuting Wing may, with the consent of the Lokayukta, appoint a panel of Advocates, other than the Government Advocates, for conducting the cases referred to it by the Lokayukta.

(5)     The State Government shall from time to time make available such funds as may be required by the Lokayukta for conducting effective enquiries or investigations or prosecution into complaints or cases.