Part III / III UNDERSTANDING ORDER OF JUDGE O P SAINI ON APPLICATION OF DR SWAMY ON MR P CHIDAMBARAM

UNDERSTANDING ORDER OF JUDGE O P SAINI

ON APPLICATION OF DR SWAMY ON MR P CHIDAMBARAM

PART III : GIST OF THE ORDER

By Anirban Roy, Advocate

1.        In December 2010, Dr Swamy filed his Private Criminal Complaint charging Mr A Raja (AR) with offences under Sections 13 (1) (c ), (d) & (e) of the Prevention of Corruption Act, 1988 which deal with an offence of “criminal misconduct”. The gist of the provisions of the above Sections are as follows:

a.    Under Section 13 (1) (c ), a Public Servant commits an offence of “criminal misconduct” when he dishonestly / fraudulently misappropriates a property entrusted to him for his own use.  

b.   Under Section 13 (1) (d), a Public Servant commits an offence of “criminal misconduct” when he obtains a valuable thing or pecuniary advantage for himself or any other person either by corrupt or illegal means / abusing his position as a Public Servant. Or he obtains a valuable thing or pecuniary advantage without any public interest for any person while holding office as a Public Servant.

c.    Under Section 13 (1) (e), a Public Servant commits an offence of “criminal misconduct” when he possesses pecuniary resources or property disproportionate to his known sources of income which he cannot account satisfactorily.

2.        Dr Swamy produced documents from his sources as well as official documents obtained under Right to Information Act to show how AR ignored the recommendations of the Prime Minister and others to auction the licenses and revise the entry fee upwards, how AR persisted with First Come First Served Basis, how AR persisted with 2001 prices, how AR rigged even the First Come First Served Basis, how licenses were awarded to two unqualified and undeserving real estate companies namely Swan Telecom and Unitech Wireless, how these two companies offloaded their controlling shares Etisalat and Telenor at seven to eight times the fee, how these two companies were otherwise benefited, how these two companies were connected to persons close to AR including his wife and so on. Based on these materials, Dr Swamy prayed that a process be issued against AR and he be prosecuted.

3.        In his Private Criminal Complaint as well as in his examination in support of his Complaint which took place in January 2011, Dr Swamy restricted his case to AR only. He had not made any allegation against Mr P Chidambaram (PC) or had not produced any materials against him.

4.        Subsequently Dr Swamy enlarged his case to cover PC as well.

5.        By way of further examination in December 2011 and January 2011, Dr Swamy alleged that AR could not have committed these offences alone and that the same were committed with the active connivance, collusion and consent of PC in respect of the following two things:

a.    Fixation of the price of the license

b.   Permitting Swan and Unitech to dilute their shares even before roll out of their services.

Dr Swamy produced several documents in support of the above two contentions.

6.        The allegations against PC pertained to conspiracy alone and that too in respect of the above two areas only.

7.        On the aspect of conspiracy, the Court cited several judgments on the issue and observed that in an allegation for conspiracy, one ought to see whether two persons were independently pursuing the same end or whether they came together intentionally in pursuit of an illegal object. The former is not criminal conspiracy while the latter is. Further in case of the latter it has to be seen whether there was a physical manifestation of agreement.

8.        In the facts of the present case, the Court accepted the documents produced by Dr Swamy at face value and the contentions of Dr Swamy that the prices were indeed fixed by AR and PC jointly and that PC allowed the two companies to offload their shares.

9.        The Court however held that there were no allegations or materials whatsoever that PC played any role in rigging the process or in allocating the licenses to ineligible companies or that he had received any bribe. In contrast, there were such allegations and incriminating materials against AR and others.

10.     The Court also held that the acts allegedly done by PC were not per se criminal although they might acquire criminal colour when done with criminal intent. However there were no materials to show that they were malafide or that PC was acting with corrupt or illegal motives or was abusing his official position.

11.     The Court also held that there was no evidence on record to suggest that there was any agreement between PC and AR to subvert the process and obtain any pecuniary advantage. Everyone participating in the decision making process with an accused cannot be roped in as an accused. Mere association is not enough and there has to be more than mere association. The role played, the circumstances in which decision was taken and the intention are relevant facts which have to be judged from the facts and circumstances of the case. In this case, the materials are lacking.

12.     In these circumstances it was held that there are no materials to show that PC was acting in a criminal conspiracy with AR while being party to two decisions regarding non-revision of pricing and dilution of equity. The Application of Dr Swamy to add PC as an accused to his Private Criminal Complaint was therefore dismissed.

Anirban Roy

February 10, 2012

Email: anirban@royslawfirm.com

Twitter : @Anirban From RLF

Facebook : Anirban  FromRlf

Part II / III UNDERSTANDING ORDER OF JUDGE O P SAINI ON APPLICATION OF DR SWAMY ON MR P CHIDAMBARAM

UNDERSTANDING ORDER OF JUDGE O P SAINI

ON APPLICATION OF DR SWAMY ON MR P CHIDAMBARAM

PART II : CHRONOLOGY OF EVENTS LEADING UPTO THE ORDER

By Anirban Roy, Advocate

1.            The Chronology of events leading upto the Order dated February 04, 2012 of Judge O P Saini on the Application made by Dr Swamy to add Mr P Chidambaram as an Accused in his Private Criminal Complaint can be set out as follows:

a.            In December 2010, the Supreme Court had directed setting up of a Special CBI Court at Patiala House, New Delhi under Judge O P Saini to try the CBI case in the telecom scam.

b.            In December 2010, Dr. Swamy filed a Private Criminal Complaint in the telecom scam against Mr A Raja. The same was subsequently moved to the Special CBI Court of Judge O P Saini set up by the Supreme Court. Thus the Private Criminal Complaint of Dr Swamy became a parallel criminal case in respect of the telecom scam.

c.             In January 2011, Dr Swamy examined himself in support of his Private Criminal Complaint.

d.            In May 2011, Dr Swamy informed the Special CBI Court that he wished to proceed in his Private Criminal Complaint independently of the CBI case and he wished to be appointed as the Public Prosecutor in his Complaint. Both of these were allowed.

e.            In August 2011, Dr. Swamy moved the Supreme Court for a CBI probe against Mr P Chidambaram for his role in the telecom scam.

f.              Soon thereafter, Dr Swamy made an Application before the Special CBI Court to add Mr P Chidambaram as an Accused in his Private Criminal Complaint and to examine himself once again in support of his Complaint. 

g.            In October 2011, the Supreme Court reserved orders on the Application of Dr Swamy for CBI Probe against Mr P Chidambaram.

h.           In December 2011, the Special CBI Court allowed Dr Swamy to re-examine himself in support of his Private Criminal Complaint.

i.              On December 17, 2011 and January 07, 2012, Dr Swamy re-examined himself in support of his Private Criminal Complaint.

j.              On February 02, 2012, the Supreme Court refuses to issue directions to the CBI for a probe against Mr P Chidambaram.

k.            On February 04, 2012, the Special CBI Court of Judge O P Saini rejected the Application of Dr Swamy to add Mr P Chidambaram as an Accused.

2.            The above chronology has been culled out from the Order dated February 04, 2012 of Judge O P Saini and media reports. There are some missing links but the essence can be ascertained. The entire record of proceedings of the Private Criminal Complaint is not readily available.

3.            Based on the chronology set out above, a few crucial points may be noted:

a.            This Private Criminal Complaint of Dr Swamy is a bit peculiar. It is one of the rare cases, if not the only one, where an entirely different dimension namely the case against Mr P Chidambaram was sought to be introduced by Dr Swamy after filing of the Complaint and after having examined himself in support of the Complaint.

b.            Before the Supreme Court, Dr Swamy sought investigation by the CBI against Mr P Chidambaram thereby implying that all evidences were not available with him. On the contrary, in his Private Criminal Complaint, Dr Swamy sought “issuance of process” against Mr P Chidambaram thereby implying that the Complaint was “fully baked”.

c.             Irrespective of what Dr Swamy had sought before the Supreme Court, as far as his Private Criminal Complaint is concerned, there was no scope for any further “investigation” against Mr Chidambaram. The case of Dr Swamy was for “issuance of process” and he had to stand or fall by the evidence he had produced, initially and subsequently.

d.            The Court on its own could have ordered an enquiry / investigation under Section 202 of CrPC but the nature, scope and purpose of such an enquiry / investigation is not even remotely similar to an investigation under Section 156(3) of CrPC.

Anirban Roy

February 09, 2012

Email: anirban@royslawfirm.com

Twitter : @Anirban From RLF

Facebook : Anirban  FromRlf

PART I / III UNDERSTANDING ORDER OF JUDGE O P SAINI ON APPLICATION OF DR SWAMY ON MR P CHIDAMBARAM

UNDERSTANDING ORDER OF JUDGE O P SAINI

ON APPLICATION OF DR SWAMY ON MR P CHIDAMBARAM

PART I : RELEVANT PROVISIONS OF CRIMINAL LAW SIMPLIFIED

By Anirban Roy, Advocate

1.            A person commits a criminal offence only when he does an act which is specifically defined as an offence under any statute. An offence has to be necessarily pre-defined under some statute. Indian Penal Code, 1860 (IPC) is the principal statute defining offences although there are several others like Prevention of Corruption Act, 1988, Negotiable Instruments Act, 1881 etc. An act which is not defined as an offence under any statute is not an offence, however outrageous it may be.

2.            The Criminal Machinery may be set in motion by any person either by filing a Police Complaint or by filing a Private Criminal Complaint before the Criminal Court.

3.            A Police Complaint is obviously filed before the Police who is obliged to lodge a First Information Report (FIR) and begin investigation.

4.            A Private Criminal Complaint is filed under Section 190 of the Code of Criminal Procedure, 1973 (CrPC) before a Criminal Court.  CrPC sets out the procedure that is to be followed in criminal cases.

5.            When faced with a Private Criminal Complaint, the Court has the following options:

a.            If the Court is of the view that the Private Criminal Complaint is merely an information of the offence and Police Investigation is necessary to establish the offence, it may order the Police to investigate under Section 156(3) of CrPC. Upon such an order, the Police is bound to lodge an FIR and investigate. It more or less becomes a Police Complaint thereafter.

b.            If the Court is of the view that no investigation is necessary and it is a case to proceed further, the Court is said to have taken cognizance. It then examines the Complainant under Section 200 of CrPC and issues process to the Accused under Section 204 of CrPC for requiring his attendance in Court.

c.             In some cases, after taking cognizance, the Court may postpone the issue of process and call for further enquiry / investigation under Section 202 of CrPC. An enquiry / investigation under Section 202 of CrPC is not the same as order for investigation under Section 156(3) of CrPC. The scope of this enquiry is extremely limited. It is merely to ascertain the truth or falsehood of the allegations made in the Complaint and to ascertain if process has to be issued against the Accused. It is not an investigation into the offence.

d.            In some cases, after taking cognizance and after examination of the Complainant and after considering the results of enquiry / investigation under Section 202 of CrPC, the Court may decide not to proceed further. In such cases the Court dismisses the Complaint under Section 203 of CrPC.

6.            The Accused comes to the Court for the first time after receipt of Summons / Warrant under Section 204 of CrPC.

7.            After the Accused comes to Court, the Court proceeds to frame charges. For framing charges, the Court restricts itself only to the materials brought on record by the Complaint.

8.            After framing of charges by the Court, the Accused is asked if he pleads guilty to the charges. If he pleads guilty, the Court may convict him. If he does not plead guilty, the trial in the matter commences.

9.            A basics of a criminal trial is as follows:

a.            The Complainant and his witnesses lead their evidence which is subjected to cross-examination by the Accused.

b.            After the Complainant leads his evidence, the Court records the statement of the Accused under Section 313 of CrPC on the case of the Complainant (if he wishes to do so).

c.             Thereafter the Accused and his witnesses lead their evidence (if he wishes to do so). If they do so, it is subjected to cross-examination by the Complainant.

d.            After recording of evidence, the matter is argued and the judgment pronounced by the Court.

10.       Criminal Law in India and worldwide and for hundreds of years is based on the following salutary principles

a.            A person is presumed to be innocent unless proved guilty.

b.            The guilt of a person is to be proved beyond reasonable doubt. There ought not to be even an iota of doubt as regards the innocence of the person.

c.             Even if 99 guilty persons get away with an offence, not even one innocent person should be falsely convicted.

11.       Translated into practice, the above principles imply that the entire burden is upon the Complainant to show that the Accused is guilty. It is not upon the Accused to show that he is not guilty. Unlike in Hindi Films and TV Serials, the Accused can never be confronted with questions like “How do you say you are not guilty?”. The Accused can never be asked to give evidence against himself. The Accused can choose to keep quiet. If the Complainant fails to prove his case, the Accused has to be acquitted (even if he actually guilty!!!!!!!!!).

12.       The above are time tested principles and ought not be perceived as deficiencies in the criminal legal system. In fact they are the strengths. They have been laid down to protect innocent persons from being persecuted.

13.       While conducting a criminal trial, the Court does not act like a fact finding body. The job of the Court is to appreciate the evidence that are placed before it, apply the law and give its findings on the charges framed. To understand this point, lets take the case of a murder trial. If murder is established but the accused is acquitted, the Court does not continue the proceedings on its own to identify the real murderer.

14.       The Court considers the case of the Complainant at three stages. At the first stage, i.e. while taking cognizance, the Court merely forms a prima facie view that an offence has been committed without getting into too much details. At the next stage, i.e. at the stage of  framing charges, a slightly higher level of satisfaction is required. At the stage of trial, the Court has to be convinced beyond reasonable doubt that an offence has been committed.

15.       When faced with a criminal case, the Accused has three options.

a.            Firstly, he may decide to face out the trial.

b.            Secondly, he may choose to have the criminal case quashed under Section 482 of CrPC by a High Court either at the investigation stage or even thereafter. For quashing, the Accused needs to show that even if the allegations of the Complainant and the evidence produced are taken at their face value, no offence can be said to be borne out or that the criminal case is patently malafide etc. For the purpose of quashing, the High Court looks only into the case of the Complainant to see its inherent fallacies. It does not look into the defense of the Accused. 

c.             Thirdly, he may chose to challenge the framing of charges in a revision petition before a higher court to contend that the materials on record did not warrant the framing of charges. Same principles as that of quashing apply.

16.       If the High Court does not quash a criminal case or if the higher court does not set aside the charges framed, it does not necessarily mean that the Accused cannot be acquitted at trial. This is because the defense of the Accused is not seen in such proceedings and only the case of the Complainant is seen.

Anirban Roy

February 09, 2012

Email: anirban@royslawfirm.com

Twitter : @Anirban From RLF

Facebook : Anirban  FromRlf

POLITICIAN & ACTIVIST

POLITICIAN & ACTIVIST

By Anirban Roy, Advocate

A well known actress from Mumbai also known for her good work on social causes posed this question to me “What is the difference between a Politician and an Activist?”. Apparently she wanted to contest the Corporation Elections and was denied a ticket by a political party who asked her to make up her mind as to whether she desired to be a “Politician” or an “Activist”. She was baffled as she was of the view that there is no difference between the two terms.

A difficult question. But lets first try and understand this strange animal called “Politician”.

“Politician” – One of the most maligned words across the world and certainly in India as of date. These guys are treated with contempt as if they come from a different planet. Even a kid in India will tell you that all “Politicians” are “selfish”, “corrupt” and just “bad”.

Now, a very basic question. Who is a “Politician”?. I am not a political science student and my common sense answer to that would be that a “Politician” is one who is engaged in public affairs and governance. So “Politician” is not a bad word per se in my dictionary.

From the perspective of governance of a country and handling of its public affairs, we require different types and shades of “Politicians”.

Firstly, since all of us cannot take part in governance, we necessarily need “representatives” who can speak on our behalf at the forums i.e. Corporations, Assemblies & Parliament. Although suggested today by certain celebrities with abstract thoughts, we can neither do away with these forums nor with these representatives.

Secondly, when we are talking of a country as big as India, we obviously cannot have a bunch of individual “representatives” running the country. Now come on, members of a housing society cannot unanimously agree on any issue and we are talking about India. So we require organized groups with firmed up views on various issues (irrespective of the individual views of individual members) so that there is greater control. The slang term for such an organized group is “political parties”.

Thirdly, to hold together “political parties” and make them grow we require “strategists”. Something akin to what Kautilya did for Chandragupta.

Fourthly, we require “leaders” who can hold together people and shape up public opinions and give directions to them.

Fifthly, we require “statesmen” who can think at a macro level and develop a vision for the entire nation. We may or may not agree with their visions but we do require such visionaries. Gandhiji and Netaji were certainly “Politicians” even if we hesitate to term them as such.

All the above five, if not more, are the different shades of “Politicians”. A “representative” is not necessarily a “leader” who is not necessarily a “strategist” and who is not necessarily a “statesman”. But all shades of “Politicians” are necessary for governance and conduct of public affairs of a country.

Lets now see a few aspects peculiar to “Politicians”.

Whether one accepts or not, a “Politician” of any category has to carry a load along with him. People, his partymen and in the modern Indian context, “Coalition Partners”. And therefore he has to balance. Quite like a husband who balances between his wife and his mother. There are so many things which he does which his wife knows but his mother does not or his mother knows but his wife does not or both do not know. All for the welfare of the family. Manipulation begins at home !!! Just imagine what kind of balancing one has to do when the numbers grow manifold for a “Politician”. All for the welfare of the society. So by compulsion a “Politician” becomes a manipulator.

To govern the country a “political party” needs to be in control and for that it has to continuously aspire to come to power and for that it has to make itself known to the people. This cannot be achieved by merely holding close door meetings. A “political party” needs to make noise. We can afford to toss the coin on the carpet but a “political party” needs to toss the coin on the floor. Same applies to an individual “Politician”.

To get power, mere good intentions and good work would not be sufficient for any “political party”. It needs to strategise and make deals to move forward and all of which cannot be made public. So a “political party” at times needs to act differently from what it can talk about openly and from what its actual views are. So compromises and double speak emerge. Same applies to an individual “Politicians”.

We certainly cannot expect “Politicians” to pump in funds for their activities from their homes. They have to necessarily accept monies from people who are overflowing with it. And can we expect these donors not to impose their terms? “Politicians” and “political parties” need to return favours.

The above are not exhaustive of the essential features of a “Politician” but merely illustrative. However they give us an indication that “Politics” is not an easy game. However, per se, these features are not negative.

How then do we get “bad” and “corrupt” “Politicians”? When a “Politician” fails to use his discretion and overdoes the above and does so not for the ultimate benefit of the society but for his own self enrichment, he becomes “bad” and “corrupt”. Further when he ultimately gets power and he abuses that power for his own self enrichment, he becomes “bad” and “corrupt”.

Unfortunately for us we seem to be having too many of these “bad” and “corrupt” “Politicians”. The solution lies not in wishing these “Politicians” away and not in alienating them from society. And certainly not by staying away from “Politics”. We cannot afford a disenchantment from public life or else the world for our children would be worse than what we have.

The other problem that we face is that we do not have dearth of “representatives”, “strategists” and “political parties”. What we do not have are “leaders” and “statesmen”. By their essential nature, “leaders” and “statesmen” can never be “bad” and “corrupt”. We need to fill this gap of “leaders” and “statesmen” and for this, good people should come forward.

Now coming back to the question we started with. “Politician” V/s “Activist”.

An “Activist” is a person who passionately works for a cause. Be it for the destitute women or mal-nutritious children or trees or stray dogs whatever or just helping people with their problems. An “Activist” needs commitment, sincerity, competence, capacity etc at a personal level and financial backing wherever needed. The focus is on one issue that is taken up and rigorously followed. An “Activist” does not face the multi-faceted challenges that a “Politician” faces although he / she may have others. An “Activist” does not need to be manipulative, or make noise or compromise or return favours. The “Activist” can chart his / her own course and does not need to conform to views, decisions, plans and policies of the “political party” to which he / she belongs. An “Activist” is free and carefree.

If an “Activist” desires to enter public life and take part in governance he / she certainly can certainly become a “Politician” as well and there certainly can be no bar. But if an “Activist” desires to work under the banner of a “political party”, he / she has to give up a chunk of the freedom. The alternative to that would be “Ekla Chalo Re” as suggested by Rabindranath Tagore to Gandhiji. Be an Independent and chart your own course and set new rules.

Anirban Roy

February 04, 2012

Email : anirban@royslawfirm.com

Twitter : @Anirban From RLF

Facebook : Anirban FromRlf