Case BriefsSupreme Court

Supreme Court of India: The Division Bench comprising of Dhananjaya Y. Chandrachud and M.R. Shah*, JJ., addressed the instant appeal challenging the validity of notice send to the appellant by Anti-corruption Bureau regarding pre-FIR open enquiry against him. The Bench stated,

“…(If) an enquiry is held and/or conducted after following the procedure as per Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at pre-registration of FIR stage.”


The background of the instant case relates to various allegations made against the appellant and his brothers with regard to accumulating the assets disproportionate to his known sources of income. Noticeably, the appellant was a Member and President of Municipal Council, Katol, Nagpur. In connection with the said complaint, the Police Inspector, Anti-corruption Bureau, had issued a notice, calling upon the appellant to personally remain present before the investigating officer of the Anti-corruption Bureau to give his statement in an ‘open enquiry’ in respect of the property owned by him along with the information on the points stated in the said notice and further, asking him to provide documents relating to his property, assets, bank statements, income tax returns.

The grievance of the petitioner was that the Police Inspector, Anti-Corruption Bureau, had no power to issue the said notice. It was also submitted that there is no statutory provision which would compel any body to give statement to the police. It was also submitted that there was no FIR against the appellant. Per contra, the respondent authority submitted that the said ‘open enquiry’ was ordered to find out if an offence under Section 13(e) of the Prevention of Corruption Act was disclosed.

Whether such an enquiry at pre-FIR stage would be legal and to what extent such an enquiry is permissible?

In Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, this Court had observed that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence. However, this Court had also considered the situations/cases in which preliminary enquiry is permissible/desirable and certain illustrations were also  carved out in which the preliminary enquiry was held to be permissible/desirable before registering/lodging of an FIR. It was further observed that if the information received did not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not. It had been clarified that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. Similarly, in P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, this Court expressed the need for a preliminary enquiry before proceeding against public servants.

When a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of indulging into corrupt practice, it does incalculable harm not only to the officer in particular but to the department he belonged to in general. Thus, before lodging FIR against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer to ascertain whether cognizable offence is disclosed or not.

Observing that a fool proof safeguard and procedure is provided under the Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual of Instructions 1968, before lodging an FIR/complaint before the Court against the public servant, the Bench disregarded any doubt of irregularity regarding the issuance of impugned notice. Further, the Bench observed that the information sought on the aforesaid points was having a direct connection with the allegations made against the appellant, namely, accumulating assets disproportionate to his known sources of income. Clarifying that such an ‘open enquiry’, should be restricted to facilitate the appellant to clarify regarding his assets and known sources of income, the Bench said the same could not be said to be a fishing or roving enquiry.


Clarifying that the statement of the appellant and the information so received during the course of discrete enquiry should be only for the purpose to satisfy and find out whether an offence under Section 13(1)(e) of the PC Act, 1988 was disclosed. Such a statement cannot be said to be confessional in character, and would be restricted only to ascertain whether a cognizable offence is disclosed or not. The Bench held that such an enquiry would be to safeguard the interest of appellant which may avoid further harassment to him. Hence, the Bench refused to interfere with the impugned judgment and order passed by the High Court of Bombay and dismissed the appeal with the above observations.

[Charansingh v. State of Maharashtra, 2021 SCC OnLine SC 251, decided on 24-03-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice M.R. Shah

Appearance before the Court by:

For the Appellant: Sr. Adv. Subodh Dharmadhikari,

For the Respondent/s: Sr. Adv. Raja Thakare

Case BriefsSupreme Court

Supreme Court: The bench of MM Shantanagoudar* and Vineet Saran, JJ has held that Section 195(1)(b)(i) CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193 IPC, which is committed during the stage of investigation. This is provided that the investigating agency has lodged complaint or registered the case under Section 193, IPC prior to commencement of proceedings and production of such evidence before the trial court. In such circumstance, the same would not be considered an offence committed in, or in relation to, any proceeding in any Court for the purpose of Section 195(1)(b)(i) CrPC.

Background and issues raised

A case was registered against the Appellant/Accused No. 1, who was working as Regional Manager (South) at Chennai with the Rashtriya Ispat Nigam Ltd, under Section 120B read with Sections 420, 467, 468 and 471 IPC; and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (PC Act).

In the present case, the Accused Nos. 2 and 3 had colluded with Appellant/Accused No. 1 to create a false sale deed, and gave false explanation of escrow arrangement amongst the three parties, to justify how the seized currency came to be in the Appellant’s possession. This was done to exonerate the Appellant/Accused No. 1 and recover the seized currency at the stage of investigation itself.

This gave rise to the question before the Court as to

  1. Whether Section 195(1)(b)(i), CrPC bars lodging of case by the investigating agency under Section 193, IPC, in respect of offence of giving false evidence which is committed at the stage of investigation, prior to production of such evidence before the Trial Court?
  2. Whether an offence under Section 193, IPC committed at the stage of investigation, prior to production of the false evidence before the Trial Court by a person who is not yet party to proceedings before the Trial Court, is an offence “in relation to” a proceeding in any court under Section 195(1)(b)(i), CrPC?
  3. Whether the words “stage of a judicial proceeding” under Explanation 2 to Section 193, IPC can be equated with “proceeding in any court” under Section 195(1)(b)(i), CrPC?

Analysis by the Court

Import of the Words “in relation to” in Section 195(1)(b) (i) CrPC

The construction of the words “in relation to” must be controlled by the overarching principle   applicable to Section 195(1)(b), CrPC i.e., even if the offence is committed prior to giving of the fabricated evidence in court, it must have a direct or reasonably close nexus with the court proceedings.

Section 195(1)(b)(i), CrPC may be attracted to the offence of fabricating false evidence prior to its production before the Court, provided that such evidence is led by a person who is party to the court proceedings, for the purpose of leading the Court to form a certain opinion based on such evidence. The bar against taking of cognizance under Section 195(1)(b)(i) may also apply where a person who is initially not a party to the court proceedings fabricates certain evidence, and

1) subsequently becomes a party and produces it before the Court; or;

2) falsely deposes as a witness before the Court on the strength of such evidence,

for the purpose of causing the Court to form an erroneous opinion on a point material to the result of the proceedings.

However, where a person fabricates false evidence for the purpose of misleading the investigating officer, this may not have any direct nexus with the subsequent court proceedings.

“There is an indirect nexus inasmuch as if the investigating agency does not suspect any wrongdoing, and the Court commits the case for trial, the evidence will be produced for the Court’s perusal and impact the judicial decision-making process. However, it may be equally possible that even if the fabricated evidence appears sufficiently convincing, the investigating agency may drop proceedings against the accused and divert its time and resources elsewhere. Therefore, the offence may never reach the stage of court proceedings. Further, if it subsequently comes to light that the evidence was falsely adduced, it will be the investigating agency which will suffer loss of face and be forced to conduct a fresh investigation.”

Hence, though the offence is one which affects the administration of justice, it is the investigating agency, and not the Court, which is the aggrieved party in such circumstance.

“Just like a private party who has been a victim of forgery committed outside the precincts of the Court, the investigative agency should not be left remediless against persons producing false evidence for the purpose of interfering with the investigation process. Moreover, the present case concerns offences alleged to have been committed under the PC Act. Public interest and the reputation of the State will suffer significant harm if corrupt public servants are facilitated by third parties in hiding their assets from scrutiny. Hence any interpretation which negates against the speedy and effective trial of such persons must be avoided.”

Whether “stage of a judicial proceeding” under Explanation 2 to Section 193 IPC is synonymous   with “ proceeding in any court” under Section 195(1)(b)(i) CrPC?

Section 195(1)(b) is meant to restrict the right to make complaint in respect of certain offences to public servants, or to the relevant Court, as they are considered to be the only party who is directly aggrieved or impacted by those offences. Furthermore, for the purpose of Section 195(1)(b)(i), CrPC, there must be an intention on part of the alleged offender to directly mislead the Court into forming a certain opinion by commission of offence under Section 193 IPC.

“Though a criminal investigation is certainly a stage of a judicial proceeding insofar as it may culminate in issue of process and trial against the accused, it would not be a proceeding in relation to a certain Court under Section 195(1)(b) (i), CrPC before the Court has even taken judicial notice of such investigation.”

Section 2(i) CrPC defines “judicial proceeding” as including any proceeding in the course of which evidence is or may be legally taken by oath. The investigation under the PC Act was admittedly a stage of a judicial proceeding by virtue of Explanation 2 to Section 193 IPC. However, neither was the fabricated evidence in the present case given on oath before the investigating officer, nor is the investigating authority under the PC Act deemed to be a “court” for the purpose of Section 195(1) (b), CrPC.

In the present case, it is not the Trial Court but the Investigating authority/agency which has been directly impacted due to fabrication of evidence by the Appellants/accused.

“The Appellants’ intention was not to mislead the Trial Court, at least not at the first instance. Rather, their goal was to ensure that the Appellant/Accused No. 1 was cleared of wrongdoing at the stage of investigation itself. It was after being charged under Section 193 IPC, that the Appellants/accused reiterated the fictitious escrow arrangement story before the Trial Court so as to prove their innocence. Hence it cannot be said that the offence under Sections 120B read with 193 IPC was committed by the Appellants “in relation to” a proceeding in a court under Section 195(1)(b)(i), CrPC.”

Thus, the investigation conducted by the agency under the PC Act cannot be equated with a proceeding in a court of law under Section 195(1) (b)(i) CrPC, though it is deemed to be a stage of a judicial proceeding under Section 193, IPC.

“Had this been a case wherein the Investigating agency had not developed any suspicion against Accused Nos. 2 and 3, and the Trial Court had subsequently discovered the subterfuge caused by them, we may have taken a different view.”

[Bhima Razu Prasad v. State, 2021 SCC OnLine SC 210, decided on 12.03.2021]

*Judgment by: Justice MM Shantanagoudar

Appearance before the Court by:

For Appellants: Senior counsel Basava Prabhu Patil, and counsels Amit Anand Tiwari and B. Karunakaran

For State: Additional Solicitor General Aishwarya Bhati

Case BriefsHigh Courts

Tripura High Court: Akil Kureshi, CJ., disposed of a writ petition which was filed challenging a departmental inquiry and suspension pending such departmental inquiry against the petitioner.

Petitioner was a Junior Engineer in the Government of Tripura. A complaint was made against him holding assets disproportionate to his known source of income before the Lokayukta who upon completion of the investigation submitted his report in which he had concluded that the petitioner had received salary of Rs 22,13,279/- for the period between 1998 to March, 2012 as against which he had created assets worth Rs 74,26,472/- which was referable to the same period of 1998 to March, 2012. Lokayukta was of the opinion that the petitioner held assets disproportionate to his known source of income. He recommended initiation of departmental proceedings as well as criminal case against the petitioner and to place him under suspension. On 25th March, 2015 the disciplinary authority had issued a departmental charge sheet to the petitioner which contained two charges. Charge Article I was that as held by the Lokayukta in his report, the petitioner had amassed wealth far in excess of his known source of income. Charge Article II was that by such actions the petitioner had committed offences punishable under the Prevention of Corruption Act, 1988. On 13th May 2015, the disciplinary authority appointed Inquiry Officer.

After hearing both the parties the Court decided that there were no reasons to quash the departmental inquiry. The Court observed that it was up to the Government to accept or to reject the recommendations of the Lokayukta. If the departmental inquiry or the criminal proceedings are not time barred, the State Government cannot be restrained from taking any action against the petitioner even if it is on the report of the Lokayukta. Once the material has come to the notice of the Government prima facie indicating that the petitioner has indulged in some corrupt practice, the Government is duty-bound to act on the same. It was, therefore, held that there was no merit in the petition; however, in any departmental or criminal proceeding which may be initiated against the petitioner he would have a full right to defend himself. Coming to the continued suspension, the Court held that firstly, the charges were extremely serious. Secondly, the petitioner was also facing a criminal case for offences punishable under the Prevention of Corruption Act and thirdly, the competent authority has been reviewing the suspension order from time to time.[Bikash Bhowmik v. State of Tripura, 2021 SCC OnLine Tri 100, decided on 18-02-2021]

Suchita Shukla, Editorial Assistant has put this story together.

Case BriefsSupreme Court

Supreme Court: Setting aside the conviction of a man under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah has reminded the Courts to take utmost care in scanning the evidence before recording conviction under the provisions of Prevention of Corruption Act.

“Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered.  At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.”

In the present case, the accused, working as Sanitary Inspector in Madurai Municipal Corporation, was charge-sheeted for the offence under Sections 7, 13(2) read with 13(1)(d) of the Act for an amount of Rs.500/¬ and a cell phone as illegal gratification from one Thiru. D. Gopal, who was working as Supervisor in a Voluntary Service Organisation called Neat And Clean Service Squad (NACSS), which was given sanitation work on contract basis in Madurai Corporation.

While the Trial Court acquitted the accused, the Madras High Court convicted him. It was argued by the accused that the well reasoned judgment of the trial court, which was rendered by appreciating oral and documentary evidence on record, was reversed by the High Court without recording valid and cogent reasons.

Having regard to material contradictions that were put forth before the Court, the Supreme Court noticed that acquittal is a “possible view”. Even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged.

The trial court has disbelieved witnesses by recording several valid and cogent reasons, but the High Court, without appreciating evidence in proper perspective, has reversed the view taken by the trial court.  Further, the High Court also has not recorded any finding whether the view taken by the trial court is a “possible view” or not, having regard to the evidence on record.

“Though the High Court was of the view that PW-2, 3 and 5 can be believed, unless it is held that the view taken by the trial court disbelieving the witnesses is not a possible view, the High Court ought not have interfered with the acquittal recorded by the trial court.”

In view of the material contradictions, the prosecution has not proved the case beyond reasonable doubt to convict the appellant. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused.

“Mere recovery of tainted money, divorced from the circumstances under which such money and article is found is not sufficient to convict the accused when the substantive evidence in the case is not reliable.”

The Court was, hence, of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment of the High Court is fit to be set aside.

[N. Vijayakumar v. State of Tamil Nadu, 2021 SCC OnLine SC 53, decided on 03.02.2021]

*Justice R. Subhash Reddy has penned this judgment

Appearances before the Court by

For accused: Senior Advocate S. Nagamuthu

For State: Advocate M. Yogesh Kanna

Hot Off The PressNews

Kuala Lumpur High Court: Popularly called as the “Man of Steal” by his critics, former PM of Malaysia, Mr. Najib Razak was sentenced to 12 years in prison for abuse of power, and 10 years in jail for each of six counts of money laundering and breach of trust. The sentences are to run concurrently. Additionally he has to pay a fine of nearly $50 million. Mohamad Nazlan Mohamad Ghazali, J., rejected the argument that Mr. Najib received the money as a gift from a Saudi royal and that he was unaware of the balance in his own account. The Judge observed that, “After considering all evidence in this trial, I find that the prosecution has successfully proven its case beyond a reasonable doubt.”

There were several allegations against him like pilferation of government coffers to lead a luxurious life. Most importantly he was accused of transferring 42 million ringgit ($10m) from 1 Malaysia Development Berhad (1MDB) to his private accounts during his tenure as PM. The Fund was a sovereign wealth fund, set up in 2009, when Razak was the PM. Sovereign wealth funds are government-owned investment funds that are used to boost a country’s economic development. In 2015, questions were raised around 1MBD’s activities after it missed payments owed to banks and bondholders. Malaysian and US authorities allege that $4.5bn was illicitly plundered from the fund and diverted into private pockets.

The Court rejecting Mr. Najib’s defense that the theft was carried out without his knowledge by Jho Low, a wealthy Malaysian businessman, observed that, “It would be extraordinary that the accused as the then-prime minister and finance minister did not know it.” In rejecting Mr. Najib’s defense and questioning his credibility, the Judge cast doubt on whether the former prime minister’s legal strategy can be effective in his upcoming trials, which will focus on much larger amounts of money that went missing from 1MDB.

                                                                                       Source: The New York Times

Image Credits:

Op EdsOP. ED.

Corruption has emerged as a critical element in explaining electricity sector performance. The sector, with its complex mix of public and private sectors and often enshrined centers of monopoly power, is susceptible to corruption. Public auctions and open competitive bidding for contracts have often been compromised by secret, informal collusion. Typically, those with political connections and insider information are better able to secure lucrative contracts and such other business opportunities. Power operations remain vulnerable to corrupt activities. There remains a prospect of tie-in between corruption, the quality of electricity supply, utilities and end-users. In generic perception, corruption is the abuse of entrusted power for personal gain. It is the practice of offering, giving, receiving or soliciting, directly or indirectly, anything of value to influence improperly the actions of another party.

Forms of Corruption

Corruption in electricity sector is a problem that takes on many forms with varying degrees of incidence and damage. In high profile corruption a fixed sum or certain percentage of a contract, or any other favour in money of kind is usually paid to a State official or politicians who can make contracts on behalf of the State or otherwise distribute benefits to companies or individuals and business. These are payments or returns needed or demanded to make things pass swifter, smoother or more favourably through the private, State or government bureaucracies.

The abuse of favouritism and nepotism does not involve a direct personal benefit to an official but promotes the interests of those linked to the official. It may be through family, political influence, tribe or religious group.

Petty corruption refers to everyday abuse of entrusted power by jack-in-office at the interface with customers and is one of the reasons for the low payment collection rates. Kickbacks, gratuities, commercial arrangements, baksheesh, sweeteners, pay-offs, speed or grease money are taken for illegal connections, prevent disconnection of power lines,  procure proper power supply, correcting or reducing the bill, repairs, line faults, documentation of new connections, etc.


In the sector, there are several corruption “hotspots”. In planning and implementing capital projects by the electricity utility for additional generation capacity, a new transmission or distribution lines the officials who can influence award of construction and equipment contracts get a kickback of a percentage of the contract value and the project is executed by inflating the price or reducing the quality of the work. More payment is made to private contractors than the work is worth. In supplying the fuel to electricity utility, suppliers may pay a kickback to officials who could award the supply contract. To provide kickback the supplier inflates prices and provides fuel that does not meet requisite specifications, or supplies less fuel than was paid for. Officials who work in the sector may own companies that supply fuel, and use their influence and relationship to direct the contract award to their companies. Few suppliers receive most of the contracts and awards seem to be rotated among suppliers. Staff sent to disconnect a customer may accept payment for leaving the customer connected, while reporting back to the utility that the disconnection has been done. Meter readers frequently delegate the actual task of meter reading to informal operators and focus their own efforts on developing a business in illegal connections.


Corruption promotes inefficiencies in utilisation of resources, reduces labour productivity, increases the networks’ energy losses, constrain the efforts to increase access to electricity services, distorts the markets, compromises quality, destroys the environment and make the power expensive. Cost inflation from corruption in fuel procurement effects businesses and has a large impact on the cost of electricity to end-users. The poor may be too vulnerable to resist the capacity of the coalition of corrupt utility employees and their protectors and perhaps are the worst sufferers of brunt of corruption. Lofty corruption is seldom visible, however, when exposed gets media attention, but petty corruption is an everyday normal activity. It is a major source of harassment of consumers.


Corruption is a pervasive scourge; it cripples economic development by inhibiting the performance of the electricity sector. Thus, reducing corruption is at the heart of sustainable development goals and achieving the ambitious targets set for financing and development. Improving transparency, public participation, and accountability to advance governance from a public interest perspective is essential to curb corruption and opens up the possibility of unseating vested interests that may have a stranglehold over electricity decision-making. The fight against corruption and its relation to accountability and transparency in the public sector cannot be configured as a purely technical issue, but involves the government’s relationship with society and a need for greater citizen participation. Well-designed reforms can boost economic performance of the sector directly and can indirectly reduce the negative effects of macro-level institutional deficiencies and ameliorate micro indicators of performance. In a situation, the struggle to fight cancer of corruption has to go a long way.

Motif to Vanquish Corruption

Participatory governance is the touchstone of good governance. The Electricity Act of 2003 (EA-03) has enabling provisions for greater citizen participation in the control of the actions of public sectors and provides venues to redress grievances. The inclusive provisions for the quality of budgetary management and audit systems positively affect the perception of corruption. The statute envisages Central Electricity Authority (CEA) to be a subsidiary of the Ministry of Power (MoP), entrusted with a consultative role. CEA has the authority to seek information from stakeholders and make recommendations to MoP on key policy issues. Recent positive trends include posting of draft policy statements on the web for comment, and consultations in different parts of the country. Access to information by the public and disclosure of information by the utility is essential in ensuring high-quality comments are received to promote accountability and transparency in the functioning of the sector. Transparency is strongly associated with less corruption.

EA-03 paved the way, inter alia, for promoting competition and rationalisation of tariff. Section 62 of the Act provides the determination of tariff which will act as a ceiling tariff and Section 63 of the Act provides for determination of tariff through a competitive bidding process. The factors that guide the appropriate Commission while specifying the terms and conditions for determination of tariff have been prescribed under Section 61 of the Act. The statutory scheme provided under Sections 61 to 63 of the Act is intended to promote competition in the sector. In all cases competition decreases the magnitude of corruption with significance.

The revised Tariff Policy, 2016 envisages transparency, consistency and predictability in approach for tariff fixation with a specified object to promote transparency, consistency and predictability in regulatory approach across jurisdictions and minimise the perceptions of regulatory risks. Tariff Policy has emphasised the need for transparency in coal quality assessment of the coal supplied by the third-party sampling mechanism and fuel procurement through e-auction. The generating companies have been empowered to select suitable technology at competitive rates through the process of transparent competitive bidding.

Among institutions, the appellate authority that looks into appeals from regulatory orders has been established and has begun functioning. Electricity Regulatory Commissions (ERCs) in various States have notified regulatory guidelines on quality of service standards, complaint redressal mechanism and consequences of non-compliance. ERCs have adequate powers under EA-03 to enforce regulations concerning consumers’ interests including imposition of penalty under Section 43, compensation under Section 57 and invoking Section 142 whenever required. ERCs also appoint Ombudsmen in the first instance endeavours to settle the dispute by agreement between the parties and pass an award. Non-compliance of Ombudsman’s order constitutes violation and attracts penal action in terms of the relevant provision of EA-03. The State Governments for the purposes of providing speedy trial have constituted Special Courts for cases concerning theft or illegal abstraction of electricity, attracting the offence under Sections 135 to 140 and 150 of the EA-03. The provisions of Section 175 being in addition to and not in derogation of any other law could come into operation to make the provisions of the Prevention of Corruption Act, 1988, also prevail.

Government is attempting to focus on looking at corruption within a larger “good governance” paradigm and has initiated for the electricity governance initiative (EGI) which is a collaboration of civil society, policy-makers, regulators, and sector actors to promote the open, transparent and accountable decision-making processes. EGI is jointly collaborated by the World Resources Institute and Prayas Energy Group (India). EGI has developed a toolkit benchmarking best practice and promoting accountability in the electricity sector. The toolkit consists of more than 60 research questions that generate indicators of relative strength and weakness in electricity decision-making processes.

Government is ready for the next push of reforms to bring about a wholesale change in approach. There is plan for introducing time-of-the-day tariff and open access for large consumers by separating carriage and content. Utilities and generators are now at more flexibility to use their coal linkages at more efficient plants. Generators can supply from any plant of their choice instead of the plant designated in a power purchase agreement (PPA).

MoP has declared that power is not a free commodity and has mandated for letters of credit (LC) against power purchases. State power distribution companies will have to hand over electricity supply businesses to multiple licensees or franchisees to get Central Government assistance or loans from the Power Finance Corporation. In case if States are announcing subsidies, they have to give direct benefit transfer into the accounts of consumers. For theft control Government has announced giving part assistance to notorious States for setting up aerial bunch cables or underground cabling and setting up specialised police stations on power pilferage.

Government is proposing to do away with human interface in meter reading and billing of consumers for power consumption. Mandatory installation of prepaid meters for small consumers and smart meters for large ones, with every connection in the future in each State, would prevent corruption and increase compliance in bill payments. This will be a pro-poor step as it will give the poor consumers flexibility to recharge that prepaid meters online through mobile phones, as and when they want, with a small amount at any given point of time. This would do away with the human element in meter reading, billing and recovery of the amount from consumer and hence the corruption involved at the lowest level.

To Close Down

More corruption in the country is strongly associated with more inefficient firms, in the sense that they employ more inputs to produce a given level of output. Corruption, however neither lower nor raise profits of the utility. It is an obstacle to growth and development of electricity sector. The business case for countering corruption extends beyond complying with laws. A utility committed to counter corruption should communicate a strong message that management and board is prepared to forego contracts and accept sale loss rather than to adopt corrupt practices to increase probity and integrity. The primary audience for this guidance are persons charged with putting in place “‘adequate procedures” as those for compliance, risk, legal, audit, corporate responsibility or ethics department. Cooperation of the people has to be obtained for successfully controlling corruption. Public awareness is a must to combat corruption in India. Female participation within the ownership of a firm has a significant effect on maintaining a negative coefficient for corruption with significance in all cases. Regulator has to remain independent and out of all external influences. An effective strategy for detecting and deterring corruption has to be built on a solid understanding of what it involves, why it takes place, and how improvements in governance can reduce corruption. Punishments for such unwarranted behaviours must be more harsh and enforceable. Zero tolerance and a robust and consistent anti-corruption programme in the power sector can be the strongest pummel in a brawl against corruption.

*Harsha Rajwanshi is Assistant Professor of Law, Dean, External Relations and Centre Director, Gujarat National Law University & Faculty Advisor to GUVNL-GNLU Research Fellowship on Energy Law and Policy.

Hot Off The PressNews

Supreme Court: The bench of R Banumathi, A S Bopanna and Hrishikesh Roy, JJ has  sought a response from the Enforcement Directorate (ED) on an appeal filed by former union finance minister P Chidambaram challenging the Delhi High Court ‘s order dismissing his bail petition in the INX Media money laundering case. The Court issued a notice to the probe agency and posted the matter for hearing to November 26.

Chidambaram sought bail in a case pertaining to the Foreign Investment Promotion Board (FIPB) clearance given to INX Media to the tune of Rs 305 crore in 2007 by Chidambaram when he was the Finance Minister. He was arrested by the ED on October 16 and is currently in judicial custody. Denying bail  to Chidambaram in the case, the High Court had stated that prima facie allegations against him are “serious in nature” and he played an “active and key role” in the offence.

Senior advocates Kapil Sibal and Abhishek Manu Singhvi, appearing on behalf of Chidambaram today, submitted before the top court that their client has been in jail for over 90 days and has cleared the triple test criterion to avail the bail. Chidambaram had sought bail on the health grounds. The Congress leader also asserted that no part of the triple test, which includes flight risk, influencing witnesses and tampering with evidence, has been made out against him. He stated that there was no allegation that he was a flight risk following the issuance of a Look out Circular (LOC).

On October 22, 2019, the bench had granted bail to former Finance Minister and senior Congress leader P Chidambaram in connection with the INX Media case registered by the Central Bureau of Investigation (CBI).

The Court noticed that Chidambaram was neither a “flight risk” nor there was possibility of his abscondence and said that Chidambaram

“being the Member of Parliament and a Senior Member of the Bar has strong roots in society and his passport having been surrendered and “look out notice” issued against him, there is no likelihood of his fleeing away from the country or his abscondence from the trial.”

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of R Banumathi, AS Bopanna and Hrishikesh Roy, JJ has granted bail to former Finance Minister and senior Congress leader P Chidambaram in connection with the INX Media case registered by the Central Bureau of Investigation (CBI).

Chidambaram is currently in the custody of Enforcement Directorate (ED) till October 24 in the INX Media money laundering case. Chidambaram, who is currently in judicial custody in Tihar jail, had filed a Special Leave Petition (SLP) in the apex court days after the High Court dismissed his bail plea contending that he might influence the witnesses in the case.

When the Solicitor General  Tushar Mehta submitted before the Court that “flight risk” of economic offenders should be looked at as a national phenomenon and be dealt with in that manner merely because certain other offenders have flown out of the country, the Court said that the same cannot, be put in a straight-jacket formula so as to deny bail to the one who is before the Court, due to the conduct of other offenders, if the person under consideration is otherwise entitled to bail on the merits of his own case. Hence, such consideration including as to “flight risk” is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved.

The Court noticed that Chidambaram was neither a “flight risk” nor there was possibility of his abscondence and said that Chidambaram

“being the Member of Parliament and a Senior Member of the Bar has strong roots in society and his passport having been surrendered and “look out notice” issued against him, there is no likelihood of his fleeing away from the country or his abscondence from the trial.”

On the allegation of possibility of influencing the witnesses, the Court noticed,

“Till the date, there has been no allegation regarding influencing of any witness by the appellant or his men directly or indirectly. In the number of remand applications, there was no whisper that any material witness has been approached not to disclose information about the appellant and his son. It appears that only at the time of opposing the bail and in the counter affidavit filed by the CBI before the High Court, the averments were made.”

The Court observed that CBI has no direct evidence against Chidambaram regarding the allegation of appellant directly or indirectly influencing the witnesses. It further noticed that the conclusion of the learned Single Judge of Delhi High Court “…that it cannot be ruled out that the petitioner will not influence the witnesses directly or indirectly……” is not substantiated by any materials and is only a generalised apprehension and appears to be speculative. It, hence, held,

“Mere averments that the appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant; more so, when the appellant has been in custody for nearly two months, co-operated with the investigating agency and the charge sheet is also filed.”

Setting aside the Delhi High Court judgment, the Court, hence, directed that Chidambaram be released on bail if not required in another case subject to the condition of his executing bail bonds for a sum of Rs.1,00,000/- with two sureties of like sum to the satisfaction of the Special CBI Judge. The Court further directed,

“The passport if already not deposited, shall be deposited with the Special Court and Chidambaram shall not leave the country without leave of the Special Court and subject to the order that may be passed by the Special Judge from time to time. He shall make himself available for interrogation as and when required.”

[P. Chidambaram v. Central Bureau of Investigation, 2019 SCC OnLine SC 1380, decided on 22.10.2019\

Case BriefsSupreme Court

Supreme Court: Setting aside the Delhi High Court order any staying any action against Gautam Khaitan in a case relating to the  Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, the 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ said that the interim order passed by the High Court is not sustainable in law.

The Court said,

“The penal provisions under Sections 50 and 51 of the Black Money Act would come into play only when an assessee has failed to take benefit of Section 59 and neither disclosed assets covered by the Black Money Act nor paid the tax and penalty thereon. As such, we find that the High Court was not right in holding that, by the notification/order impugned before it, the penal provisions were made retrospectively applicable.”

the scheme of the Black Money Act is to provide stringent measures for curbing the menace of black money. Various offences have been defined and stringent punishments have also been provided. However, the scheme of the Black Money Act also provided one-time opportunity to make a declaration in respect of any undisclosed asset located outside India and acquired from income chargeable to tax under the Income Tax Act. Section 59 of the Black Money Act provided that such a declaration was to be made on or after the date of commencement of the Black Money Act, but on or before a date notified by the Central Government in the Official Gazette.

After going through various provisions of the Black Money Act, the Court said that a conjoint reading of the various provisions would reveal, that the Assessing Officer can charge the taxes only from the   assessment year commencing on or after 01.04.2016. However, the value of the said asset has to be as per its valuation in the previous year. As such, even if there was no change of date in sub­section (3) of Section 1 of the Black Money Act, the value of the asset was to be determined as per its valuation in the previous year. The date has been changed only for the purpose of enabling the assessee(s) to take benefit of Section 59 of the Black Money Act. The power has been exercised only in order to remove difficulties.

The Court, hence, noticed that the penal provisions under Sections 50 and 51 of the Black Money Act would come into play only when an assessee has failed to take benefit of Section 59 and neither disclosed assets covered by the Black Money Act nor paid the tax and penalty thereon.

The Court, however, concluded by saying that

“in any case, in the factual scenario of the present case, it would reveal, that the assessment year in consideration was 2019­2020 and the previous year relevant to the assessment year was the year ending on 31.03.2019.”

The Court, hence, asked the High Court to consider the matter afresh.

Gautam Khaitan is one of the accused in Rs. 3600 crore AgustaWestland VVIP chopper scam. He had challenged the legality of various provisions of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 before the Delhi High Court.

[Union of India v. Gautam Khaitan, 2019 SCC OnLine SC 1342, decided on 15.10.2019]

Hot Off The PressNews

Supreme Court: Senior Congress leader P Chidambaram on Thursday moved the Supreme Court against the order of the Delhi High Court that dismissed his bail plea in the INX Media case. Chidambaram, who is currently in judicial custody in Tihar jail, filed a Special Leave Petition (SLP) before the Supreme Court earlier today, days after the High Court dismissed his bail plea contending that he might influence the witnesses in the case.

Refuting the contentions put forth by the high court, Chidambaram asserted that he has not influenced any witness or accused in the case.

“A mere apprehension without there being substantial evidence and particulars of an accused approaching any witness is not enough to deny bail to an accused,”

Alluding to certain inputs submitted by the Central Bureau of Investigation (CBI) to the court in a sealed cover, the petition stated,

“The liberty has thus been denied on the basis of the baseless, anonymous and unverified allegation made behind the petitioner’s back.”

Chidambaram said that the submissions made by the agency in the sealed cover were “highly objectionable and against all canons of fair play and justice”. The petition also stated that the FIR registered in 2015, did not name Chidambaram. The plea asserted that there was no reference or allegation against him in the FIR.

Chidambaram is facing probe for alleged irregularities in the Foreign Investment Promotion Board (FIPB) clearance given to INX Media to the tune of Rs 305 crore in 2007 when he was the Union finance minister. While the CBI is probing the corruption allegations, the Enforcement Directorate (ED) is looking into money laundering allegations against him in the case. The CBI had arrested Chidambaram on August 21 following which he was sent to judicial custody, which is slated to end today.

(Source: ANI)

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)

Hot Off The PressNews

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)

Hot Off The PressNews

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]

Hot Off The PressNews

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.

Also read:

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]

Also Read:

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)