Case BriefsSupreme Court

Supreme Court: In a major blow to Senior Congress leader P Chidambaram, the Court has rejected his plea against the Delhi High Court order rejecting his anticipatory bail plea in the INX Media case being probed by Enforcement Directorate (ED). The bench of R Banumathi and AR Bopanna, JJ said,

“In a case of money-laundering where it involves many stages of “placement”, “layering i.e. funds moved to other institutions to conceal origin” and “interrogation i.e. funds used to acquire various assets”, it requires systematic and analysed investigation which would be of great advantage.”

The Court was hearing Chidambaram’s plea against the Delhi High Court order rejecting his anticipatory bail plea in the INX Media case involving alleged irregularities in Foreign Investment Promotion Board (FIPB) clearance given to the INX Media for receiving foreign investment to the tune of Rs.305 crores against approved inflow of Rs.4.62 crores.

Delhi High Court had denied the bail on 2 factors, namely, (i) gravity of the offence; and (ii) the appellant was “evasive” to deny the anticipatory bail. Taking strong exception against the said grounds, Senior Advocate Abhishek Manu Singhvi, argued that,

  • the “gravity of the offence” cannot be the perception of the individual or the court and the test for “gravity of the offence” should be the punishment prescribed by the statute for the offence committed.
  • Insofar as the finding of the High Court that “the appellant was evasive to the questions”, the investigating agency Enforcement Directorate cannot expect an accused to give answers in the manner they want and that the accused is entitled to protection under Article 20(3) of the Constitution of India.

The Court, however, noticed that ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation.

“Pre-arrest bail is to strike a balance between the individual’s right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information.”

Stating that Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless, the Court noticed that in the case in hand, there are allegations of laundering the proceeds of the crime and that the Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. It, hence, held that grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation.

“Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.”

The Court, however, clarified that

“As and when the application for regular bail is filed, the same shall be considered by the learned trial court on its own merits and in accordance with law without being influenced by any of the observations made in this judgment and the impugned order of the High Court.”

Meanwhile, the CBI special court has sent former union minister P. Chidambaram to judicial custody till 19 September in the money-laundering and corruption case related to the INX Media scam.

[P. Chidambaram v. Directorate of Enforcement, 2019 SCC OnLine SC 1143, decided on 05.09.2019]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: KK. Wickremasinghe and K.Priyantha Fernando, JJ. contemplated an appeal against the judgment of High Court related to Section 70 of the Bribery Act, 1994 i.e for offence of ‘Corruption’.

The Appellant raised an objection in the Magistrate’s Court, that the investigation was initiated by an incompetent authority on anonymous complaint. The Magistrate rejected the preliminary objections raised by the appellant. Hence, the appellant filed a revision application in the High Court, where the revision application was dismissed by the High Court.

The counsel for the appellant submitted that according to the Act when any investigation had to be commenced against a person the Commission had to communicate it to the aggrieved person. Further, it was submitted that, genuineness of the communication had to be investigated, and that the identity of the person who communicated was important for that purpose. Another main contention of the counsel was if the allegations were found to be false against the person, the complainant who communicated the said complaint to the Commission had to be punished hence; such complainant had to be an identifiable person.

The appellant also relied on the Indian Criminal law i.e the Code of Criminal Procedure and cited Section 154 CrPC, i.e. Information in Cognizable cases, it was stated that similar to Section 154 CrPC in SriLankan Code they had Section 109 which stated that, every information received by a Police officer had to be given orally or in writing and that if given orally, it had to be reduced to writing and shall be signed by the person who was giving such information.

On the other hand the counsel for the respondent submitted that the word ‘communication’ was nowhere defined in the Act, therefore the functions and the objectives of the Act had to be taken into consideration when interpreting the same. It was also contended that the word ‘communication’ had no relevancy under Section 21 when interpreting the same. It was submitted that the Commission only acted upon the genuine complaint and the false once automatically got filtered.

The Court, observed that the word ‘communication’ was not defined anywhere in the Act. It was held that, “The word used in the Sinhala text of Act No. 19 of 1994 for communication is ‘I(lll)®~®’. Act No. 19 of 1994 does not mention whether such ‘communication’ should be anonymous or onymous, although the procedure to be followed by the Commission upon receiving the ‘communication’ is provided.”

It was noted by the Court that under Section 4(1) of the Act, 1994, it was stated that ‘Upon receipt of the communication under subsection (1) the Commission, if was satisfied that such information was genuine and that the communication disclosed material upon which an investigation ought to be conducted, shall conduct such investigation as may be necessary for the purpose of deciding prosecution.’

It was further observed by the Court that the legislature had made a clear and certain provision to filter the ‘communication’ received by the Commission; it filtered the false communication and acted upon the genuine complaints only. It was held that even the communication was anonymous it would not cause any prejudice.

The Court hence, suggested that there were sufficient reasons to initiate the investigation and no interference was required. “It was also important to note that Sri Lanka was a signatory to the United Nations Convention against Corruption (UNCAC). There was a specific provision in ‘UNCAC’, where protection should be given to whistleblowers. Unfortunately, such provision was not available in our legislature. In this context, I am of the view that, such ‘communication’ even if it is anonymous, should be acted upon, if it can be verified independently to be genuine to commence an investigation.”[Director General, Commission to Investigate v. Narasinghe Buwelikada Deshika Malkanthi, 2019 SCC OnLine SL CA 7, decided on 09-08-2019]

Hot Off The PressNews

Supreme Court: The Enforcement Directorate has told the Court that custodial interrogation of senior Congress leader P Chidambaram in the INX media case is required as if his plea for anticipatory bail is given it would affect cases involving Vijay Mallya, Mehul Choksi, Neerav Modi and Zakir Naik.

Disputing the contention of Chidambaram’s lawyers, the agency also argued that the offence of money laundering is against the society, nation and the economy. Solicitor General Tushar Mehta appearing for the probe agency told a Bench of Justice R Banumathi and Justice AS Bopanna,

“Money laundering is an offence against society, nation and economy. Economic offences are gravest offences irrespective of quantum of sentence,”

Countering the arguments of Chidambaram’s advocates Kapil Sibal and Abhishek Manu Singhvi that Prevention of Money Laundering Act (PMLA) offences with seven years of punishment is not a grave offence because as per the Code of Criminal Procedure grave offences entail death penalty and life, Mehta said money laundering offences are “grave”. He said,

“Chidambaram’s counsels have argued that gravity of an offence is subjective. PMLA offences may not be grave for them but the Courts have consistently held that economic offences are grave in nature. Gravity is a relative concept. Quantum of punishment is not relevant. What’s important is what will be the impact of your offence in society. Money laundering is an offence against the society, nation and economy. Economic offences are gravest offences irrespective of quantum of sentence,”

The Court was hearing Chidambaram’s plea against Delhi High Court’s order denying anticipatory bail to him in a case being probed by the ED.

SG also objected to the proposition made by Chidambaram’s counsel Kapil Sibal to confront him with evidence before presenting it in the court, saying it is “absurd” and would have “devastating results” and is “preposterous”. He added,

“Whether the accused’s reply was evasive or not is decided by investigating agency and not by the court”

SG also contended that if accused at large is confronted with the evidence collected, then the agency will have exposed its evidence and witnesses and it will give a chance to the accused to tamper with evidence and erase the money trail.

“The investigating agency has absolute discretion to what extent to reveal the evidence to the accused. It is best to confront the accused with evidence when he is in custody,”

He further said that investigation is an art where the agency brings the accused to divulge details and not a mere question and answer format or an interview. He also argued that if given an anticipatory bail, Chidambaram may erase the money trail, influence the witnesses and tamper with evidence.

“It’s impossible to investigate when he’s armed with anticipatory bail. It’s ED’s right and duty to unearth the truth. It would be difficult for the ED to catch him if he is under a protective umbrella and best way to elicit truth is when an accused is not under a protective umbrella,”

In 2017, the Central Bureau of Investigation  had registered an FIR alleging irregularities in the Foreign Investment Promotion Board (FIPB) clearance was given to INX Media to the tune of Rs 305 crore in 2007 when Chidambaram was the Union finance minister.

Following the FIR filed by CBI, ED had filed a case of money laundering against him.

(Source: ANI)

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Supreme Court: The bench of R Banumathi and A S Bopanna, JJ has extended till tomorrow the interim protection from arrest granted to senior Congress leader P Chidambaram in a money laundering case filed by the Enforcement Directorate in the alleged INX media scam.

The Court was hearing a Special Leave Petition (SLP) moved by Chidambaram against the Delhi High Court order denying him anticipatory bail in the ED case. The hearing in the case will continue tomorrow.

Solicitor General Tushar Mehta is likely to make submissions on the application filed by the Kapil Sibal, counsel of Chidambaram, seeking a direction to the Enforcement Directorate (ED) to produce his client’s statement recorded by them in the case.

A Special court had yesterday extended the CBI remand of the Congress leader by four days in a corruption case filed by the CBI in INX media scam. The agency had sought an extension contending that they have to “unravel the larger conspiracy”.

In 2017, the CBI had registered an FIR alleging irregularities in the Foreign Investment Promotion Board (FIPB) clearance given to INX Media to the tune of Rs 305 crore in 2007 when Chidambaram was the Union finance minister. Following the FIR filed by CBI, ED had filed a case of money laundering against him.

(Source: ANI)

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Supreme Court:  The bench of R Banumathi and A S Bopanna, JJ has extended the protection from arrest given to former finance minister P Chidambaram in the INX Media money laundering case lodged by the Enforcement Directorate till Tuesday. The bench also dismissed the petition filed by senior Congress leader P. Chidambaram for anticipatory bail in the corruption case lodged by the Central Bureau of Investigation (CBI), saying the plea has become “infructuous” as he had already been arrested.

The bench will continue hearing on Tuesday the petition of Chidambaram challenging the Delhi High Court order which had rejected his anticipatory bail plea in the money laundering case.

Senior advocate Kapil Sibal, appearing for Chidambaram completed his arguments and said he will file the rejoinder to the ED’s counter affidavit.

Solicitor General Tushar Mehta, appearing for ED, said he will advance his arguments Tuesday and the bench posted the matter for hearing at noon tomorrow.

During the pre-lunch session, Sibal said that fair trial and fair investigation were part of Article 21 and the court must protect the fundamental right of liberty of Chidambaram. He strongly objected to Mehta’s argument to place on record certain documents in sealed cover for the perusal of the bench.

He said that Chidambaram was examined thrice by the ED — on December 19, 2018, January 1, 2019 and January 21, 2019 — but the questions related to the allegations levelled by the ED against him were not put to him.

The CBI had registered an FIR on May 15, 2017, alleging irregularities in the Foreign Investment Promotion Board (FIPB) clearance granted to the INX Media group for receiving overseas funds of Rs 305 crore in 2007 during Chidambaram’s tenure as the finance minister.

Thereafter, the ED lodged a money laundering case against him in 2017.

Sibal said FIPB consisted of six secretaries of the government, and Chidambaram had only signed the approval as the then finance minister. He further argued,

“The ED has alleged the use of shell companies in the matter but no such firm is directly or indirectly connected to Chidambaram,”

He also said that Chidambaram was not named in the ED’s FIR and no allegations were levelled against him.

Chidambaram, 73, headed the ministries of finance and home during the UPA regime.

(Source: India Today)

Hot Off The PressNews

Supreme Court: The Court has said that it will hear the appeal filed by former union minister P Chidambaram against the Delhi High Court’s order rejecting his anticipatory bail plea in the INX media case being probed by the CBI on August 26.

During the hearing, when the Court asked litigant’s advocate Kapil Sibal if he wants to argue, he said, “Yes, I want to argue.” Citing the notice posted by the probe agency on Tuesday outside Chidambaram’s residence asking him to present himself within two hours of the receipt of the summon, Sibal said his client moved the Supreme Court soon after the development and also intimidated the CBI. Sibal added that his client’s right under Article 21 cannot be denied. He said,

“Chidambaram is in five days of police remand by the CBI. I challenge that order,”

Thereafter, Solicitor General Tushar Mehta, who argued for central probe agency said,

“Chidambaram’s plea doesn’t survive since he is in CBI’s custody”.

After hearing the arguments from both the sides, Justice R Banumathi said that the appeal filed by Chidambaram will be heard on August 26. “In ED matter Chidambaram has not been arrested,” she said.

On August 21, the Delhi High Court had dismissed Chidambaram’s plea for anticipatory bail. The Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) had issued look-out notices against him on Wednesday in the INX media case. A special anti-corruption court on Thursday sent the Congress leader to CBI custody till August 26.

In 2017, the CBI had registered an FIR alleging irregularities in the Foreign Investment Promotion Board (FIPB) clearance given to INX Media to the tune of Rs 305 crore in 2007 when Chidambaram was the Union Finance Minister.

(Source: ANI)

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Mr Divya Prakash Sinha, Information Commissioner directed the Central Bureau of Investigation (CBI) to disclose and share information relating to corruption or human rights violation irrespective of the fact the information pertains to the intelligence or security organizations, its own officers or matters being investigated by the organization.

In a Right to Information (RTI) application filed by the Appellant, details regarding irregularities committed in allotting LPG distributorship by the officers of the Indian Oil Corporation Ltd., Jaipur and in particular against, Ranjeet Singh, were sought. However, the Central Public Information Officer (CPIO) refused to provide any information citing Section 24 (1) of the Right to Information Act, 2005 which states that the intelligence and security organizations are exempted from the Act, but if the issue pertains to corruption or human rights violation, the same shall not be exempted from the exclusion clause, and has to be disclosed under the RTI Act.

During the proceedings, learned counsel for the Respondent, R.S. Shekhawat, Deputy SP and Rep. of CPIO, Central Bureau of Investigation, Jaipur further referred to written statements of the CPIO sent to the Commission wherein it had been submitted that CPIO, CBI is obliged to provide information relating to an allegation of corruption against its own employees and not regarding cases of corruption being investigated by the CBI.

The Commission rejected the contention made by the Respondents and referred to the Delhi High Court judgment of CPIO, Intelligence Bureau v. Sanjiv Chaturvedi, 2017 SCC OnLine Del 10084, wherein it was held that the term “any information” in the proviso to Section 24 (1) includes all kinds of information. It further stated that “The proviso becomes applicable if the information pertains to allegations of corruption and human rights violation. The proviso is not qualified and conditional on the information being related to the exempt intelligence and security organizations. If the information sought, furnished by the exempt intelligence and security organizations, pertains to allegations of corruption and human rights violation, it would be exempt from the exclusion clause.” The High Court concluded that “the only conclusion that can be drawn is that, if the information sought pertains to allegation of corruption and human right violation, it would be exempt from the exclusion clause, irrespective of the fact that the information pertains to the exempt intelligence and security organizations or not or pertains to an Officer of the Intelligence Bureau or not.”

In view of the above, the Commission disposed this appeal stating that the aforesaid judgment shall be applicable in the instant case, and also directed the Director of CBI to sensitize its CPIOs on Section 24 of RTI Act by way of appropriate workshops. [Radha Mohan Sharma v. CPIO, Central Bureau of Investigation, 2019 SCC OnLine CIC 298, decided on 08-05-2019]

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Supreme Court:  The 3-judge bench of Ranjan Gogoi, CJ and SK Kaul and KM Joseph, JJ has directed the Centre to file response by May 4 to the petitions seeking review of last December’s verdict by which the Court had dismissed the pleas challenging India’s deal to procure 36 Rafale fighter jets from France. The bench did not allow the plea of the Centre that it be granted four weeks time to file its response to the pleas.

The Court has fixed May 6 for hearing the petitions.

Former Union ministers Arun Shourie and Yashwant Sinha and activist lawyer Prashant Bhushan have filed a petition seeking review of the December 14, 2018 verdict of the Court giving clean chit to the Rafale deal. AAP leader and Rajya Sabha MP Sanjay Singh has also filed a separate review petition in the case.

In the verdict, the apex court said there was no occasion to doubt the decision-making process in the procurement of 36 Rafale fighter jets from France and dismissed all the petitions seeking an investigation into alleged irregularities in the Rs 58,000 crore deal. It said,

“We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft.”

The court said there was no substantial evidence of commercial favouritism to any private entity. It aslo said,

Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft manufactured by French aerospace company Dassault Aviation. A deal to procure the jets was signed between India and France in 2015. The delivery is expected to begin in September this year.


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Rafale Deal: SC dismisses Centre’s preliminary objections regarding admissibility of the leaked documents and has held that the documents are admissible

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ has dismissed Centre’s preliminary objections regarding admissibility of the leaked documents and has held that the documents are admissible. Joseph, J, wrote a separate but concurring judgment.

CJI Gogoi, writing for himself and Kaul, J wrote,

“even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court?”

On ‘The Hindu’s’ right to publish the documents in question

the publication of the said documents in ‘The Hindu’ newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press.”

The Court said that no law enacted by Parliament specifically barring or prohibiting the publication   of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to it’s notice. Hence, the right to such publication is well within the constitutional guarantee of freedom of speech.

KM Joseph, J’s in his concurrent opinion noted

“The documents in question have been published in ‘The Hindu’, a national daily as noticed in the order of the learned Chief Justice. It is true that they have not been officially published. The correctness of the contents per se of the documents are not questioned.”

On alleged violation of Sections 3 and 5 of the Official Secrets Act, 1923

The Court noticed that there is no provision in the Official Secrets Act and no such provision in any other statute by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.

Insofar as the claim of privilege is concerned, on the very face of  it, Section 123 of the Indian   Evidence Act, 1872 relates to unpublished public records. Noticing that the three documents have been published in different editions of ‘The Hindu’ newspaper, the Court said,

“the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value.”

On exemption from disclosure under Section 8(2) of the Right to Information Act, 2005

The Court noticed that Section 8(2) of the Right to Information Act contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under sub­section (1) of Section 8, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected. It said,

“When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest.”

On potential of the case to threaten the security of citizens

The Court rejected the contention and noted the lines from Kesavananda Bharati  v. State of Kerala, (1973) 4 SCC 225,

“That all Constitutional interpretations have political consequences should not obliterate the fact   that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.”

[Yashwant Sinha v. CBI, 2019 SCC OnLine SC 517, decided on 10.04.2019]


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Hot Off The PressNews

Supreme Court: Making it clear that it will decide first on the preliminary objections raised by the Centre and then go into the facts of the Rafale fighter jet deal case, the 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ reserved it’s order on the preliminary objections regarding admissibility of the leaked documents.

Attorney General K K Venugopal had argued that the Government had privilege over documents pertaining to the Rafale fighter jet deal with France and that no one can produce them in the court without the permission of the department concerned. He referred to section 123 of the Evidence Act and provisions of RTI Act and said that no one can publish documents which relate to national security as the security of the State supercedes everything.

Advocate Prashant Bhushan, one of the petitioners seeking review, opposed the submission and said that the Rafale deal documents, which AG says are privileged, have been published and are already in public domain. He said that provisions of RTI Act say public interest outweighs other things and no privilege can be claimed except for documents which pertain to intelligence agencies. He also argued that the Press Council of India Act provides provisions for protecting sources of journalists.

In the case that has become a high voltage Courtroom drama, the government told the Court last week that documents related to the Rafale fighter jet deal have been stolen from the Defence Ministry. The Hindu newspaper had published articles on the Rafale deal that were allegedly based on the said documents.

The Hindu Publishing Group Chairman N Ram said those documents were published in public interest as the details of the Rafale deal were withheld or covered up. He said:

“You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves.”

Yesterday, the Court had allowed the Defence Ministry to file an affidavit in the matter.

(With inputs from Business Standard)

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Supreme Court: The Court has allowed the Defence Ministry to file an affidavit in the Rafale Deal case that will come up for hearing tomorrow.

In the case that has become a high voltage Courtroom drama, the government told the Court last week that documents related to the Rafale fighter jet deal have been stolen from the Defence Ministry. The Hindu newspaper had published articles on the Rafale deal that were allegedly based on the said documents.

The Hindu Publishing Group Chairman N Ram said those documents were published in public interest as the details of the Rafale deal were withheld or covered up. He said:

“You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves.”

The AG submitted that the documents were marked secret and classified and are therefore in violation of the Official Secrets Act. He also told the Supreme Court that the Rafale case pertains to defence procurement which cannot be reviewed judicially.

AG told the Court that every statement of the court made in the Rafale case may be used to destabilise either the government or the opposition and therefore court should refrain from making it.

CJI asked AG:

“if an act of corruption is committed in Rafale deal, will Govt take shelter behind Official Secrets Act? I am not saying it is committed, but if it is then government cannot take shelter behind OSA.”

The Court said that it been has settled in a catena of judgments that even if stolen documents are cited, and if they are found relevant, the court can look into them.

Hot Off The PressNews

Supreme Court: The government has told the Supreme Court that documents related to the Rafale fighter jet deal have been stolen from the Defence Ministry. The Hindu newspaper had published articles on the Rafale deal that were allegedly based on the said documents.

Attorney General KK Venugopal told the Court that those who put documents on the Rafale deal in the public domain are guilty under the Official Secrets Act as also contempt of court.

However, The Hindu Publishing Group Chairman N Ram said those documents were published in public interest as the details of the Rafale deal were withheld or covered up. He said:

“You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves.”

The 3-judge bench of CJ Ranjan Gogoi and SK Kaul and KM Joseph, JJ was hearing a batch of petitions seeking a review of its December 14 verdict dismissing all the pleas against the deal procured by India from France.

Former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan, who had jointly filed the petition, alleged that the Centre suppressed crucial facts when the apex court decided to dismiss the batch of PILs.

When Bhushan referred to an articles written by Ram, AG said the write-ups were based on stolen documents. He also told the Court that an FIR has not been registered so far into the theft of documents.

The AG submitted that the documents were marked secret and classified and are therefore in violation of the Official Secrets Act. He also told the Supreme Court that the Rafale case pertains to defence procurement which cannot be reviewed judicially.

AG told the Court that every statement of the court made in the Rafale case may be used to destabilise either the government or the opposition and therefore court should refrain from making it.

CJI asked AG:

“if an act of corruption is committed in Rafale deal, will Govt take shelter behind Official Secrets Act? I am not saying it is committed, but if it is then government cannot take shelter behind OSA.”

The Court said that it been has settled in a catena of judgments that even if stolen documents are cited, and if they are found relevant, the court can look into them.

When AG said that any order to the effect would be damaging to the country as the recent incidents have shown how vulnerable is the scenario in which the country was trying to meet its defence requirements, the Court said that the issue of national security did not arise in the case as allegations were of grave crime of corruption.

The Court will next hear the matter on March 14.

(Source: PTI)

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta, J., dismissed a bail petition filed by the petitioners under Section 497-A of the Code of Criminal Procedure, seeking bail in a matter involving offences under Sections 420,467, 468, 471 of the Ranbir Penal Code and Section 5(2) of J&K Prevention of Corruption Act, 2006.

The main issue that arose before the court was whether the petitioners are entitled to get bail in a matter involving alleged offences of corruption and cheating.

The Court observed that the petitioners were alleged to have made back-dated appointments in lieu of money from the beneficiaries. The petitioners had made back-dated appointments and as such, it is an action which is covered under the category of cognizable offences. The appointments made by the petitioner were allegedly illegal, also some of the appointees were students and the others were running their own businesses. Another serious allegation that was leveled against the petitioners was that they have tampered with the records of daily wage workers and have replaced their names with the names of appointees who were given appointment by the petitioners. The Court relied upon the judgment of State of A.P. v. Bimal Krishna Kundu, (1997) 8 SCC 104, wherein it was held that arming an accused with a bail order, when serious allegations of corruption are leveled against him/her, would hamper the investigation and would also impede the prospects of unearthing all ramifications involved in the conspiracy. 

The Court held that the allegations leveled against the petitioners were quite serious in nature and hence granting them bail would not be the appropriate thing to do. Further, all the aspects of the matter require detailed investigation and for that purpose custodial interrogation is also required. Resultantly, the bail petition was dismissed.[Mohd. Kubir Malik v. State of J&K, 2018 SCC OnLine J&K 788, order dated 03-11-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Ranjan Gogoi and Sanjay Kishan Kaul and K.M. Joseph, JJ., laid down some interim arrangement in order to govern the present situation.

Background:

The Central Government divested the CBI Director Alok Verma and his deputy Special Director Rakesh Asthana of all their powers and sent them on leave pending enquiry against them in the alleged corruption charges.

The decision was taken on the recommendation of the Central Vigilance Commission which stated that Alok Verma was not cooperating in inquiry in the allegations of corruption and criminal misconduct levelled against him by Rakesh Asthana and it would be only fair to take both off duty till the charges are probed. Furthermore, M. Nageswara Rao, a 1986 Odisha cadre IPS officer who joined the CBI in 2016 was appointed as interim Director of India’s premier investigating the agency.

Alok Verma has approached the Supreme Court against the order of the Central Government that stripped him off his powers and sent him on forced leave.

The interim directions by the court are as follows:

  • Enquiry in regard to the allegations made against the present Director, Central Bureau of Investigation (CBI) Alok Verma shall be completed by the Central Vigilance Commission (CVC) within a period of two weeks.
  • The stated enquiry will be conducted under the supervision of the retired judge of the Supreme Court of India, Justice A.K. Patnaik.
  • M. Nageswara Rao who has been entrusted with the task of looking after the duties of the Director of the CBI shall not take any policy decisions or any major decisions and will perform the routine tasks that are essential to keep the functionality of CBI.

Further, the Supreme Court made it clear that the supervision of on-going enquiry by the CVC to a former judge is an exception being taken due to the necessity being felt on considering the facts of the present case.

The matter has been listed immediately after the Diwali holidays i.e. on 12-11-2018. Alok Verma is represented by veteran advocate Fali S. Nariman, while Attorney General K.K. Venugopal is appearing for the Central Government. [Alok Kumar Verma v. Union of India,2018 SCC OnLine SC 2249, Order dated 26-10-2018]

Case BriefsSupreme Court

“Introduction of NOTA will be an anathema to the fundamental criterion of democracy.”

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, while deciding a petition challenging the availability of the option “None of the Above” (NOTA), stated that “it would not only undermine the purity of democracy but also serve the Satan of defection and corruption. ”

The facts of the case pertain to availability of the option of NOTA in the elections held for Rajya Sabha. The petitioner challenged a circular issued in relation to the conduct of elections for the Council of States (Rajya Sabha). He asserted that Election Commission of India had issued directions stating that the option of NOTA could be applicable to elections for the Rajya Sabha, which the petitioner contended to be contrary to Article 80(4) of the Constitution of India and the decision pronounced by the Supreme Court in PUCL v. Union of India, (2013) 10 SCC 1.

On the other hand, contentions, as placed by the respondents, were that the EC had issued a letter which was further reiterated on 12-11-2015 that the option of NOTA would be applicable to elections for Rajya Sabha and as the elections were already conducted, no justification stood for challenging the said direction at such a belated stage.

The Supreme Court, while concluding its decision, emphasized that “In a democracy, the purity of election is categorically imperative”. It opined that on exercising the choice of NOTA in the voting process of the Rajya Sabha, such choice would have a negative impact. Further, it was observed by the Court that provisions for introduction of NOTA as conceived by the Election Commission, on the basis of the judgment mentioned hereinabove, were absolutely erroneous and the introduction of NOTA would certainly lead to the aspect of defection that would indirectly usher in with immense vigour. Holding thus, the Court allowed the petition and quashed the said introduction. [Shailesh Manubhai Parmar v. Election Commission of India,2018 SCC OnLine SC 1041, decided on 21-08-2018]

OP. ED.

Introduction

Corruption and maladministration in public life is fatal to economic growth. Corruption also erodes the authority of the State, promotes crime and violence, and undermines the rule of law and the very foundations of a democratic polity. The issue of corruption in India merits consideration as a national issue at least at par with secularism, stability, reservation in services, political empowerment of women and like subjects. Though at different times different persons raised their voice against corruption, but the real fight against corruption as a national and priority issue was championed by late Jayaprakash Narayan. After his movement, the fight against corruption continued by several other leaders, however, sometimes wrong priorities focusing on non-issues and divisive factors by some leaders on the national agenda lead to negative consequences. The concept of establishing an independent body to look into the citizens grievances in India dates back to the year 1952, when for the first time it was discussed in Parliament during a discussion on the Prevention of Corruption Bill. Seven years later the need for Ombudsman type of institution in India was effectively articulated by the then Chairman of the University Grants Commission and former Minister of Finance, Shri C.D. Deshmukh. Shri Deshmukh observed that “an uneasy public hears of nepotism, high-handedness, gerrymandering, feathering of nests through progeny, and a dozen other sins of omission and commission, and yet is helpless for lack of precise data, facts and figures, evidence and proof”[1]. He even came forward to make a beginning by lodging half a dozen complaints if a high level, impartial standing judicial Tribunal to investigate and report on complaints or lying of information was set up.

Genesis of the Ombudsman concept in India

Regarding the need of an independent agency to look into the grievances of citizens was highlighted by Mr M.C. Setalvad, the then Attorney General of India in the Third All India Law Conference held on 12-8-1962 to 14-8-1962. It was in fact the relentless effort of the great Parliamentarian Dr L.M. Singhvi who fought rigorously for setting up of an Ombudsman type of institution in India. Dr Singhvi said that “the institution of Ombudsman would enable the citizens to effectively ventilate their grievances which could not be substituted by the question hour in Parliament or through writing letters to the Ministers concerned and the available judicial remedy is also not adequate as the courts are prejudiced by limitations of procedures and technicalities.”[2] Dr Singhvi made several efforts to make the Government convinced for establishing the Ombudsman, but failed. During that period Prime Minister Jawaharlal Nehru in his address to the All India Congress Committee at Jaipur (3-11-1963) observed that “while the system of Ombudsman fascinated him, since the office would have overall authority to deal with charges even against the Prime Minister and would command respect and confidence of all, he, nevertheless, felt that its introduction was beset with difficulties in a big country like India”[3].

Subsequently, Shri P.B. Gajendragadkar, the then Chief Justice of India, raised the issue of Ombudsman and he commended for careful examination of the idea of an independent authority for the redress of public grievances.[4] The Provincial Bar Association of Madras supported the creation of the institution of Ombudsman in their meeting held in October 1963. A number of other Committees also like the Committee on Prevention of Corruption (1962), Administrative Reforms Commission of Rajasthan, Special Consultative Group of Ministers of Parliament (1965), Administrative Reforms Commission (ARC) (1966 and 2007), the National Commission to Review the Working of the Constitution (2002), all have recommended the setting up of the institution of Ombudsman or Lokpal.

The Administrative Reforms Commission (ARC) set up in 1966 under the chairmanship of late Shri Morarji Desai have recommended the idea of setting up two types of Ombudsman institutions, namely, (1) the Lokpal (protector of people); and (2) the Lokayukta (Commissioner of the People). As per the recommendation of the ARC, the Lokpal was expected to deal with the complaints against the Ministers and the Secretaries of Government posted at the Centre and in the States, whereas the Lokayukta in each State and one for the centre to look into the complaints against public officials other than Ministers and Secretaries to the Government.

In the year 2002, another Commission was set up under the chairmanship of former Chief Justice of India, Shri M.N. Venkatachaliah in the name of “The National Commission to Review the Working of the Constitution.” The Commission recommended the establishment of the institution of the Lokpal as a constitutional authority so that a cleaner Government could be achieved. More specifically, the Commission recommended two things—(1) The Constitution should provide for the appointment of the Lokpal and make it obligatory for States to establish the institution of Lokayukta; and (2) the office of the Prime Minister should be kept out of the purview of the Lokpal.

Again in 2007, the Second Administrative Reforms Commission under the chairmanship of Dr Veerappa Moily was set up, which also recommended to amend the Constitution so as to provide for a national Ombudsman called the Rashtriya Lokayukta. The Commission further recommended that the role and jurisdiction of the Rashtriya Lokayukta should be defined in the Constitution, but the composition, mode of appointment and other details can be decided by Parliament through legislation. All Ministers, Chief Ministers and Members of Parliament, except the Prime Minister, should come within the purview of the Rashtriya Lokayukta. Regarding the composition and appointment of the Rashtriya Lokayukta, the Commission suggested that it should consist of a serving or retired Judge of the Supreme Court as the Chairperson, an eminent jurist as Member and the Central Vigilance Commissioner as the ex-officio Member. The Chairperson and Members should be selected by a Committee consisting of the Vice-President, the Prime Minister, the Leader of the Opposition, the Speaker of the Lok Sabha and the Chief Justice of India. The Commission has said that the Chairperson and Member should be appointed for only one term of three years and they should not hold any public office later, except the office of Chief Justice of India, if they are eligible.

Need for establishment of the Lokpal

When the question of governance comes, the possibilities of misgovernance by the rulers become more visible. The need for the establishment of any institute always depends upon a specific and pertinent cause. Likewise, the need for establishment of the institute of Lokpal is the outcome of the issue of rampant growth of corruption in almost every sphere. It is not that the evil of corruption is of recent origin; rather it was as old as governance.

Kautilya in his Arthashastra rightly observes that for those who guard the treasury the temptation to be dishonest is almost a natural instinct. He says:

“Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a government servant not to eat up at least a bit of the king’s revenue. Just as fish moving under water cannot possibly be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out while taking money for themselves.”

Corruption in India has been a problem ever since the country had been having a multilayered administration by Ministers, Administrative Chiefs and Officers. The problem of corruption in ancient India, coupled with bribery, kept infesting the society more and more in an increasing rate. This is quite clear from the way the contemporary writers like Kshemendra and Kalhana, who lived in 990-1065 BC, have condemned the government officials, as well as other employees of different levels, in their celebrated works.[5] Kshemendra has advised the king to remove all the ministers, generals, officials and priests from office with immediate effect, who were either taking bribes themselves or have been indulging in corruption in some other way. Yet another work by Kshemendra, called Narmamala, depicts corruption bribery spreading fast like rampant maladies. He also found an answer to the much discussed question how to stop corruption in India of his time; he has explicitly addressed the contemporary intelligentsia to step forward and shoulder the responsibility of purging their folks.

Anti-Corruption laws in India

Public servants in India can be penalised for corruption under the Penal Code, 1860 and the Prevention of Corruption Act, 1988. The Benami Transactions (Prohibition) Act, 1988 prohibits benami transactions. The Prevention of Money-Laundering Act, 2002 penalises public servants for the offence of moneylaundering. India is also a signatory to the UN Convention against Corruption since 2005. The Convention covers a wide range of acts of corruption and also proposes certain preventive policies.

Key features of the Acts related to corruption

Penal Code, 1860

(i) The Penal Code, 1860 defines “public servant” as a government employee, officers in the military, navy or air force, police, Judges, officers of court of justice, and any local authority established by a Central or State Act.

(ii) Section 169 pertains to a public servant unlawfully buying or bidding for property. The public servant shall be punished with imprisonment of up to two years or with fine or both. If the property is purchased, it shall be confiscated.

(iii) Section 409 pertains to criminal breach of trust by a public servant. The public servant shall be punished with life imprisonment or with imprisonment of up to 10 years and a fine.

The Prevention of Corruption Act, 1988

(i) In addition to the categories included in the IPC, the definition of “public servant” includes office-bearers of cooperative societies receiving financial aid from the Government, employees of universities, Public Service Commission and banks. The words as per Section 2(c) of the Act mean that a person who is in service at the time when the court is called upon to take cognizance of the offence[6].

(ii) If a public servant takes gratification other than his legal remuneration in respect of an official act or to influence public servants is liable to minimum punishment of six months and maximum punishment of five years and fine. The Act also penalises a public servant for taking gratification to influence the public by illegal means and for exercising his personal influence with a public servant. However, nexus should be established between performance of the official duty and acceptance of gratification.[7]

(iii) If a public servant accepts a valuable thing without paying for it or paying inadequately from a person with whom he is involved in a business transaction in his official capacity, he shall be penalised with minimum punishment of six months and maximum punishment of five years and fine. Under Section 4 of this Act presumption will be drawn against the accused the moment the prosecution proves that the accused accepted or agreed to accept or obtained or attempted to obtain any gratification or valuable thing.[8]

(iv) It is necessary to obtain prior sanction from the Central or State Government in order to prosecute a public servant. The section is a safeguard for the innocent and not a shield for the guilty[9]. The discretion to sanction for prosecution is absolute. It cannot be questioned in a court of law[10]. Trial without sanction is null and void. Subsequent trial with proper sanction is not barred[11]. If there is no sanction no cognizance of the offence can be taken at all. The sanction is required only for purpose of taking cognizance of offence. Once cognizance is taken its utility is exhausted and it is no longer needed either during trial or conviction[12].

The Benami Transactions (Prohibition) Act, 1988

(i) The Act prohibits any benami transaction (purchase of property in false name of another person who does not pay for the property) except when a person purchases property in his wife’s or unmarried daughter’s name.

(ii) Any person who enters into a benami transaction shall be punishable with imprisonment of up to three years and/or a fine.

(iii) All properties that are held to be benami can be acquired by a prescribed authority and no money shall be paid for such acquisition.

The Prevention of Money-Laundering Act, 2002

(i) The Act states that an offence of moneylaundering has been committed if a person is a party to any process connected with the proceeds of crime and projects such proceeds as untainted property. “Proceeds of crime” means any property obtained by a person as a result of criminal activity related to certain offences listed in the schedule to the Act. A person can be charged with the offence of moneylaundering only if he has been charged with committing a scheduled offence.

(ii) The penalty for committing the offence of moneylaundering is rigorous imprisonment for three to seven years and a fine of up to Rs 5 lakhs. If a person is convicted of an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 the term of imprisonment can extend up to 10 years.

(iii) The adjudicating authority, appointed by the Central Government, shall decide whether any of the property attached or seized is involved in moneylaundering. An Appellate Tribunal shall hear appeals against the orders of the adjudicating authority and any other authority under the Act.

(iv) Every banking company, financial institution and intermediary shall maintain a record of all transactions of a specified nature and value, and verify and maintain records of all its customers, and furnish such information to the specified authorities.

Procedure followed to investigate and prosecute corrupt public servants

In order to investigate cases against corrupt public servants and to prosecute them, the following process is to be followed—

(i) The three main agencies involved in inquiring, investigating and prosecuting corruption cases are the Central Vigilance Commission (CVC), the Central Bureau of Investigation (CBI) and the State Anti-Corruption Bureau (ACB).

(ii) Cases relating to moneylaundering by public servants are investigated and prosecuted by the Directorate of Enforcement and the Financial Intelligence Unit, which are under the Ministry of Finance.

(iii) The CBI and State ACBs investigate cases related to corruption under the Prevention of Corruption Act, 1988 and the Penal Code, 1860. The CBI’s jurisdiction is the Central Government and Union Territories while the State ACBs investigates cases within the States. States can refer cases to the CBI.

(iv) The CVC is a statutory body that supervises corruption cases in government departments. The CBI is under its supervision. The CVC can refer cases either to the Central Vigilance Officer (CVO) in each department or to the CBI. The CVC or the CVO recommends the action to be taken against a public servant but the decision to take any disciplinary action against a civil servant rests on the department authority.

(v) Prosecution can be initiated by an investigating agency only after it has the received sanction.

The Lokpal and Lokayuktas Act, 2013

After the success of a longstanding movement, finally the Lokpal and Lokayuktas Act, 2013 was passed by Indian Parliament in December 2013 and received the Presidential assent on 1-1-2014. As sought for, the Act aimed at the prevention and control of corruption by setting up of an independent and impartial body at the central level named as the “Lokpal” and at the State level as the Lokayukta . The institution of Lokpal would receive complaints relating to corruption against public servants from most of the categories within and outside India. The extent of the Act is to the whole of India, including Jammu and Kashmir.

Powers of the Lokpal as per the Lokpal and Lokayuktas Act, 2013

(i) It includes the powers of superintendence over, and to give direction to the CBI. Any case when referred by the Lokpal to the CBI, the investigating officer in such case cannot be transferred without the approval of the Lokpal. The Lokpal has the power to authorise the CBI to search and seizure as and when required for the matters connected to such case.

(ii) The Inquiry Wing of the Lokpal is to be vested with the powers of a civil court that includes the Lokpal to confiscate the assets, proceeds, receipts and benefits acquired or procured by the alleged person by means of corruption under certain special circumstances.

(iii) Lokpal will have the power to recommend for the transfer or suspension of public servant connected with allegation of corruption.

(iv) During preliminary inquiry Lokpal has the power to pass any direction to prevent destruction of records by anybody.

(v) The Lokpal while dealing with the cases arising out of the Prevention of Corruption Act, 1988 or under the Lokpal Act, if recommends, the Central Government shall constitute Special Courts to hear and decide the cases. The time-limit for such courts to complete the trial as per the Act, is to be within a period of one year from the date of filing of the case in the court which may be extended for 3 months by recording in writing.

(vi) The Act, however, excludes the power of the Lokpal to inquire into any complaint made against the Chairperson or any Member of its own institution.

When the central law was enacted, Anna Hazare, the pioneer of the Lokpal movement, was quite apprehensive about the fact that it would be meaningless to enact the law unless implemented and enforced properly. He even accused the Government of delaying the Lokpal’s appointment, and questioned its intent and credibility to fight corruption. Ironically while he continues to make noises at this age, his aides like Kiran Bedi and V.K. Singh have accepted top Government positions. Arvind Kejriwal who was the Chief Architect of the Civil Society Movement against corruption in 2011 that forced United Progressive Alliance (UPA) to introduce a Bill in Parliament, has formed a party of his own, and become the Chief Minister of Delhi. Though Kejriwal passed Delhi’s Lokpal legislation in 2015, but faced several allegations of inserting weak provisions in the law.

Conclusion

Four years have already been passed since the passing of the Lokpal and Lokayuktas Act, 2014, but still it is not implemented. India is still waiting to see its first Lokpal. These four years of Government under the National Democratic Alliance (NDA) banner, which has come to power with a massive mandate to push growth and fight against corruption, is not taking any effective step to implement the law. Regarding non-appointment of the Lokpal, the Government’s contention is that a search committee could not be formed as there was no leader of opposition in the Lok Sabha. Justifying its stand by giving a very shocking explanation, the Government instead of urgently sorting out the limited issue of leader of opposition introduced a 10 page amendment to the Act in December 2014. The matter subsequently moved to a parliamentary panel. Previously, while the present party in power was in opposition, it has always emphasised more on establishment of a strong and independent Lokpal, whereas now being in power, the party is not only trying to dilute the law, but also delaying its enforcement.

The Government’s strong belief is that it is performing well instead of having a Lokpal Institution. “Corruption had eaten away our country like termites. So if I have stopped so much corruption, there will of course be many who will curse me. Only those who looted the nation are not enthused by this Government,” said the Prime Minister, while giving speech in the completion of second year celebration of his Government. The Prime Minister’s remarks come just days after the Supreme Court questioned why his Government had not appointed anyone as Lokpal. “What is holding you back? You cannot sit over it,” the court asked the Government, while seeking to know by 19-7-2016 the steps taken for the appointment. The court was hearing a Public Interest Litigation (PIL) filed by NGO Common Cause that alleged that the Government and other parties were dragging feet. In 2002 the Supreme Court had directed the Government to appoint a Lokpal to bring an end to the commission of a scam each day. Recently on 15-5-2018, while asked by the Supreme Court to the Centre regarding the steps taken by it to implement the Act, the Government informed the Supreme Court that it has appointed Mukul Rohatgi, former Attorney General of India to the post of “eminent jurist” of the Lokpal Selection Committee which post remained vacant since the demise of Senior Advocate P.P. Rao last year and is going to take necessary steps for appointment of the Lokpal.

As per the current ranking of the Transparency International’s global corruption index, India stands on 81. At this point of time, one cannot say that the Lokpal and Lokayuktas Act, 2014 would be the best law India needs to check corruption. Still the hope for having a better future could not be ruled out, which is possible only when the law would be implemented in its proper perspective.

—————

* Associate Professor, SOA National Institute of Law (SNIL), Bhubaneswar, Odisha, e-mail madhubratamohanty@soa.ac.in

[1]  Shri C.D. Deshmukh, in his lecture delivered on 11-7-1959 at Madras.

[2]  During the debates in the Lok Sabha for demands for the grants of Law Ministry, on 3-4-1963.

[3]  Quoted in “Lokpal : Ombudsman in India” M.P. Jain, First Edn., 1970, p. 2.

[4]  Justice Shri P.B. Gajendragadkar in his analysis on the “Role of Administration in a Democratic Welfare State.”

[5]  Kshemendra in his famous book Desopadesha.

[6]  State of Bombay v. Vishwakant Shrikant, 1953 SCC OnLine Bom 52 : AIR 1954 Bom 109.

[7]  Ram Krishan v. State of Delhi, AIR 1956 SC 476; Mahesh Prasad v. State of  U.P., AIR 1955 SC 70; Ram  Charan Bhatt v. State, 1964 SCC OnLine All 377 : AIR 1967 All 321.

[8]  M.C. Mitra v. State, 1951 SCC OnLine Cal 74 : AIR 1951 Cal 524; State of Madras v. A. Vaidyanatha Iyer, AIR 1958 SC 61; State of Ajmer v. Shivji Lal, AIR 1959 SC 847.

[9]  Gurbachan Singh v. State, 1969 SCC OnLine Del 57 : AIR 1970 Del 102 : 1970 Cri LJ 674.

[10]  Dharam Sarup v. State, 1952 SCC OnLine All 256 : AIR 1953 All 37 : 1953 Cri LJ 192.

[11]  Baij Nath Prasad v. State of Bhopal, AIR 1957 SC 494 : 1957 Cri LJ 597.

[12]  Ram Pukar Singh v. State, 1953 SCC OnLine All 193 : AIR 1954 All 223 : 1954 Cri LJ 459.

Foreign CourtsNews

As reported by media, the Accountability Court of Pakistan pronounced the verdict against Former Prime Minister of Pakistan Nawaz Sharif and daughter Maryam with the sentence of 10 and 7 years in jail, respectively. Nawaz has been handed a fine of 8 million pounds, while Maryam has been fined 2 million pounds. The money will go into the state treasury.

Nawaz Sharif and his family are facing trial in three corruption cases filed by the National Accountability Bureau (NAB), which are Avenfield properties, Gulf Steel Mills and Al-Azizia Steel Mills. The Avenfield reference pertains to the purchase of four flats in Avenfield House, Park Lane, London.

Accountability Court-I Judge Mohammad Bashir announced the sentence in the ‘Avenfield’ case. The Avenfield properties reference was one of three filed by the National Accountability Bureau (NAB) in light of the Supreme Court’s verdict against Nawaz in the Panama Papers case.

[Source: Dawn]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench comprising of Sudhir Agarwal and Ajit Kumar, JJ. opined that time and again, complaints of various irregularities coupled with corruption prevailing at large-scale in Development Authorities have been brought to the notice of this court in various matters and the record has fortified in respect of MDA in the present case.
The petitioner was involved in an auction process conducted by Meerut Development Authority for the sale of certain plots in the Defence Enclave, Meerut. According to the petitioner and the facts stated by him, he was the only tenderer in the whole process involved and certainly due to that reason he was declared to be the highest bidder in the auction. Subsequently, for that reason he had sent a letter to the authorities in that regard and asked for his allotment letter. Later, the petitioner came to know that tender-cum-auction sheet was tampered by adding  Respondent 5 and making his bid the highest.
The entire process of tender-cum-auction was realized to be a farce after observing the stated facts by the petitioner, which came to the conclusion of MDA violating the terms and conditions and allotting land to its own favourites at throwaway prices.
Therefore the Hon’ble Court observed that after recording the facts and stands taken in various affidavits submitted before this court, a clear collusion of all officers involved in the matter including the Vice-Chairman, MDA cannot be spared. Further with sheer disappointment in the authorities, the Court also highlighted that in the matter of public dealing where process of allotment of land needs impartial, objective and transparent procedure, MDA and its officials are indulged in otherwise corrupt activities. Patent and evident illustration of corruption can only be the apt way of depicting this act.
The matter was further directed to the Principal Secretary, Nagar Vikas to forthwith refer the matter for vigilance inquiry against all officials involved and further, accordingly criminal and other actions shall be initiated in this regard. [Narendra Kumar Tyagi v. State of U.P.,  2018 SCC OnLine All 107, order dated 11-01-2018]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RK Agarwal, Arun Mishra and AM Khanwilkar, JJ reserved verdict on the petition filed by Campaign for Judicial Accountability and Reforms (CJAR) wherin it was alleged that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam.

Earlier, the same bench had dismissed the petition filed by advocate Kamini Jaiswal stating that there was no question of registering any FIR against any sitting Judge of the High Court or of this Court as it is not permissible as per the law laid down by a 5-judge Constitution Bench in K. Veeraswami v. Union of India, (1991) 3 SCC 655 ,wherein this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges.

The bench was formed after the Court of CJI witnessed huge ruckus after, 09.11.2017, a 2-judge bench of J Chelameswar and S. Abdul Nazeer, JJ had said that the petition filed by Kamini Jaiswal be heard by the Constitution Bench of the first five Judges.

On 10.11.2017,  Dr. AK Sikri and Ashok Bhushan, JJ, in the present case, ordered that the matter be placed before the Chief Justice for passing appropriate orders for listing this matter. When the CJI took note of the issue, he, along with 4 other judges, recalled the 2-judge bench order in Kamini Jaiswal matter that had placed the matter before a Constitution bench of the first five judges of the Supreme Court. The 5-judge bench said:

neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench.”

The order will be pronounced on 01.12.2017. [Campaign for Judicial Accountability and Reforms v. Union of India, Writ Petition (Crl) No. 169/2017, order dated 27.11.2017]

Case BriefsSupreme Court

Supreme Court: Dismissing the petition filed by advocate Kamini Jaiswal wherin it was alleged that that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam, the 3-judge bench of RK Agrawal, Arun Mishra and AM Khanwilkar, JJ held that there was no question of registering any FIR against any sitting Judge of the High Court or of this Court as it is not permissible as per the law laid down by a 5-judge Constitution Bench in K. Veeraswami v. Union of India, (1991) 3 SCC 655 ,wherein this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges.

Noticing that the FIR mentioned by the petitioner did not reflect the names of any of the Supreme Court judges, the bench said:

“The entire judicial system has been unnecessarily brought into disrepute for no good cause whatsoever. It passes comprehension how it was, that the petitioner presumed, that there is an FIR lodged against any public functionary.”

It was held that there cannot be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Hon’ble Chief Justice of India and, in case there is an allegation against Hon’ble Chief Justice of India, the decision has to be taken by the Hon’ble President, in accordance with the procedure prescribed in the said decision.

Upon the contention that a judicial order cannot be violated, and it could not have been rendered ineffective by the Constitution Bench decision of this Court dated 10.11.2017 and that by doing so the Chief Justice was being a judge in his own case, the bench relied upon the 3-judge bench decision in Dr. D C Saxena v. Chief Justice of India, (1996) 5 SCC 216, where it was held:

it was the duty of the Chief Justice to assign judicial work to brother Judges. By doing so, he did not become a Judge in his own cause. It is contempt to imply that the Chief Justice would assign it to a Bench which would not pass an order adverse to him.”

Regarding the contention that A.M. Khanwilkar, J. should have recused himself from the bench as he was a member of the Bench which disposed of the matter of Prasad Education Trust vide order dated 18.9.2017, the Court said that it was nothing but another attempt of forum hunting which cannot be permitted. The bench said:

“it is the duty of the Bench to take up such matter firmly; such unscrupulous allegations and insinuations cannot be allowed to be hurled by oral prayer made on behalf of the petitioner for recusal.”

To conclude, the bench said:

“Though it is true, that none of us is above law; no person in the higher echelons is above the law but, at the same time, it is the duty of both the Bar and the Bench, to protect the dignity of the entire judicial system.”

Coming down heavily upon the petitioner, who after arguing at length, at the end, submitted that she was not aiming at any individual, the Court said:

“If that was not so, unfounded allegations ought not to have been made against the system and that too against the Hon’ble Chief Justice of this country.”

Upon the question of unprecedented situation being created on 10.11.2017, the bench said:

“As Hon’ble Chief Justice of India had to assign it to a Bench, situation of dilemma was created for Hon’ble Chief Justice of India whether to assign the matter of CJAR to an appropriate Bench or to go by the judicial order by constituting a Bench of 5 senior Judges on 13.11.2017.”

The Court said that it deprecated the practice of forum hunting and that it cannot fall prey to such unscrupulous devices adopted by the litigants, so as to choose the Benches, as that is a real threat to very existence of the system itself and it would be denigrated in case we succumb to such pressure tactics. [Kamini Jaiswal v. Union of India, 2017 SCC OnLine SC 1322, decided on 14.11.2017]