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