Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J. dismissed a criminal miscellaneous application filed by the petitioner challenging the order of cognizance passed against him under various Sections of IPC and Prevention of Corruption Act, 1988. 

In the instant petition the accused in connection with Vigilance P.S. Case of 2013 registered under Sections  409, 420, 467, 468, 471, 477A and 120B of the Penal Code as well as under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. The petitioner, when worked as an Executive Engineer, was alleged to pass false measurement report of Government schemes and uncompleted worked which was marked as completed in the aforementioned reports. It was further alleged that the reports were submitted in collusion with the Assistant Engineer. 

It was averred by the petitioner that allegation made in the FIR on their face value did not disclose a cognizable offence made out against the petitioner and even if any non-cognizable offence is made out, investigation of the same was not permissible, except under order of the Magistrate.

The Court observed that no cognizable offence was disclosed in the FIR against the petitioner though the apparent allegation of embezzlement of public money was there. It was stated that, petitioner was a Government servant having a specific allegation of submission of measurement report which showed completion of the work whereas the work was not completed at all in respect of Government schemes. Hence, prima facie material was there against the petitioner for proceeding with the trial. [Md. Zahoorul Haque v. State Of Bihar, 2019 SCC OnLine Pat 1017, decided on 25-06-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal, Prevention of Money Laundering Act (New Delhi): A Coram of Manmohan Singh (Chairman), J. and G.C. Mishra (Member) allowed an appeal under Section 26 of the Prevention of Money Laundering Act, 2002 against an order passed by the Adjudicating Authority for attaching property.

In the instant case the CBI registered a criminal case under Section 120-B of Penal Code, 1860 read with Sections 7, 12, 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 against one Joint Director of Enforcement Directorate (ED) wherein it was alleged that he assisted the appellant (herein), indulging in corrupt practices in an investigation. It was also alleged that they had taken a huge amount of bribes as quid-pro-quo for acts of omission and commission during the said investigation. As a result, the appellant was arrested by CBI and a charge sheet was filed against him. On the basis of the registration of the case by CBI, a Prevention of Money Laundering Act, 2002 (PMLA) case was also recorded at New Delhi. The ED provisionally attached the immovable property of the appellant which was confirmed by the Adjudicating Authority.

The respondent’s counsel, Shilpi Satyapriya Satyam, contended that the aforesaid property was attached as a “value thereof” in accordance with provision made under Section 2(1)(u) read with Section 2(1)(v) of the PMLA. The counsel for the appellant, R.K. Handoo, drew the attention of the Tribunal to the provision in Section 8(3)(a) of PMLA, 2002 as amended by Act 13 of 2018 which reads as, “a) continue during [investigation for a period not exceeding ninety days or] the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be. On the basis of this the counsel contended that the confirmation order of attachment passed by the Adjudicating Authority did not survive. Also, no prosecution complaint was filed against the appeal, and hence the appeal be allowed.

The Tribunal found, “It is strange to note here that an immovable property of a person has been made part of a prosecution complaint for confiscation without making that person as a party and affording that person an opportunity to defend his case.” It was further noted, “Section 8(3)(a) of PMLA has been amended by the Act 13 of 2018, wherein a limitation period has been provided for continuation of attachment or retention of property or record post confirmation of attachment/retention and it is the intention of the legislature not to allow the Investigating Authority to get the property attached or retained the record/documents/items indefinitely in the name of investigation.”

Thus, the appeal was allowed. The Tribunal directed the appellant to move to the concerned Special Court for an appropriate remedy, wherein the Prosecution Complaint was pending and his property was made part and parcel of that complaint.[Sanjay Kumar v. Deputy Director Directorate of Enforcement, New Delhi, 2019 SCC OnLine ATPMLA 9, decided on 12-04-2019]

Case BriefsHigh Courts

Bombay High Court: B.P. Dharmadhikari, J. allowed a criminal appeal and acquitted the appellant who was convicted and sentenced by the trial court for commission of an offence punishable under Section 12 (punishment for abetment of offences) of the Prevention of Corruption Act, 1988.

The appellant was charged with aiding the main accused, an Assistant Sub-Inspector, in accepting a bribe from the complainant and thereby committing an offence under Section 12. The main accused died during the pendency of the trial and therefore the case against him abated. The appellant, however, was convicted by the trial court.

A.H. Jamal, Advocate, representing the appellant contended that any offence under Section 7 or Section 13 itself having not been established, there was no question of offence of abetment under Section 12. Per contra, N.R. Patil, Assistant Government Pleader, appearing for the State supported the trial court’s Judgment.

Relying on the decision of the Supreme Court in Sadashiv Mahadeo Yavaluje v. State of Maharashtra, (1990) 1 SCC 299 and CBI v. V.C. Shukla, (1988) 3 SCC 410, the High Court noted: “It was never the case of the prosecution that the appellant instigated complainant to pay bribe or then engaged himself and conspired to facilitate receipt of bribe. In fact, there is no charge of conspiracy at all. The only remaining part, therefore, is of aiding and, the provisions of Clause (iii) of Section 107 IPC (which defines abetment) show that aiding has to be with intention.” In Court’s view, the facts necessary to demonstrate that the appellant was dwelling under such intention were not brought on record. Prosecution only established the payment of Rs 1500 by the complainant to the appellant. However, its nature as a bribe could not be established. Therefore, it was held that the appellant’s conviction under Section 12 was unsustainable. the appeal was allowed and the appellant was acquitted. [Abdul Mannan Mohd. Yusuf v. State of Maharashtra, 2019 SCC OnLine Bom 824, decided on 16-05-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed criminal proceedings filed under the Prevention of Corruption Act, 1988 against a Panchayat Secretary, on the ground that the same lacked proper sanction of the competent authority.

Petitioner moved the Court under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of complaint case registered for offences under Sections 420 and 406 of the Penal Code, 1860 and Sections 13(2) and 13(1) (d) of PC Act. Petitioner, who at the relevant time was posted as Panchayat Secretary, was alleged to have committed irregularity in the purchase of solar panels.

Counsel for the petitioner Mr S. R. C. Pandey submitted that a complaint filed by a private person under PC Act against a public servant cannot proceed unless there is proper sanction by the competent authority. Petitioners, being Panchayat Secretary, were public servants under Section 2(c) of the Act, and were thus protected from prosecution without the previous sanction of the State Government in terms of Section 19(1)(b) of the Act.

Counsel for the respondent Mr Anjani Kumar agreed with the petitioner’s submission and submitted that both for preliminary enquiry as well as for lodging of FIR under the PC Act, prior sanction of the Competent Authority is required.

In view of the above, the instant application was allowed. [Rama Prasad Singh v. State of Bihar, 2019 SCC OnLine Pat 423, Order dated 29-03-2019]

Legislation UpdatesStatutes/Bills/Ordinances

The Rajya Sabha on Thursday passed the Prevention of Corruption (Amendment) Bill, 2013 by a voice vote, that seeks to punish bribe givers for the first time with imprisonment of up to a maximum of seven years. In the House debate, Minister for Personnel and Public Grievances Dr. Jitendra Singh said, the legislation against the corruption has been made wide based. He said the Bill has been brought in the House after it was deliberated in the Standing Committee, Law Commission and finally after holding consultations in the Select Committee. The Bill introduces the offence of giving a bribe as a direct offence. However, a person who is compelled to give a bribe will not be charged with the offence if he reports the matter to law enforcement authorities within seven days. The Bill has many provisions to ensure speedy trial of corruption cases besides providing protection to bureaucrats, even after their retirement, from malicious complaints.

Highlights of the Bill

  • The Act covers the offence of giving a bribe to a public servant under abetment.  The Bill makes specific provisions related to giving a bribe to a public servant, and giving a bribe by a commercial organisation.
  • The Bill redefines criminal misconduct to only cover misappropriation of property and possession of disproportionate assets.
  • The Bill modifies the definitions and penalties for offences related to taking a bribe, being a habitual offender and abetting an offence.
  • Powers and procedures for the attachment and forfeiture of property of public servants accused of corruption have been introduced in the Bill.
  • The Act requires prior sanction to prosecute serving public officials.  The Bill extends this protection to former officials, including those retired.
  • The Bill has included commercial organisation into its ambit.

The Bill will be tabled in the Lok Sabha.

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi and R. Banumathi, JJ. reversed the decision of the Gujarat High Court which had acquitted the accused of the charges under Prevention of Corruption Act, 1988.

The accused were working in the Non-Agriculture Department. The complainant was a businessman who wanted to start a new firm. Permission for non-agricultural use of the land was sought from the Department. The accused were alleged to have demanded bribe for expediting the process. Rs 500 were paid to the Accused 1 through Accused 2, who was caught red-handed in the trap laid by the ACB. They were tried for the offences punishable under Sections 7 and 13(1)(d) of the Act. The trial court convicted the accused and sentenced them accordingly. However, on appeal, the High Court acquitted the accused holding that the case was not proved against the accused. Aggrieved by this decision, the State preferred the instant appeal.

At the outset, the Supreme Court observed that to prove the offence of bribe, the demand and acceptance of illegal gratification was sine qua non. On the facts of the case, the Court found that statements of PWs 1 and 2 along with the recovery of bribe amount after following proper procedure by the ACB, proved the case against the accused. Further, it was observed that the presumption against the accused under Section 20 is a rebuttable one and the degree of proof is the preponderance of probabilities. However, in the present case, the accused were not able to give any explanation to rebut that presumption. In such circumstances, the Supreme Court was of the opinion that the High Court ought not to interfere with the decision of the trial court that suffered from no infirmity. Hence, the impugned judgment of the Gujarat High Court was set aside and that of the trial court was reaffirmed. However, considering that the matter was almost 27 years old, the sentence of the accused was reduced from 2 years to 1 year. [State of Gujarat v. Navinbhai Chandrakant Joshi,2018 SCC OnLine SC 699, dated 17-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Prakash D. Naik, J. answered a reference made by the Additional Chief Metropolitan Magistrate in a case where the co-accused, who were not public servants, were tried under the provisions of Prevention of Corruption Act 1988 (PC Act) even after the death of main accused, a public servant.

The main accused (now deceased) was a postman in the Post office, and thus a public servant. He was alleged to have misappropriated to his own use, along with other co-accused, several shares of a private company which he was to deliver in furtherance of his official duty. The main accused died before framing of charges and hence criminal proceedings against him stood abated. The remaining co-accused (not public servants) were however tried by the Sessions Judge for the charges framed under PC Act along with charges under Penal Code. The main issue inter alia contended by the respondents was that since the main accused was dead, the Sessions Court was divested of the powers of the trial of the co-accused under PC Act.

The High Court referred to various decisions of the Supreme Court and other High Courts and finally reached a conclusion that there was no infirmity in the trial of the co-accused under the Act even after the death of the main accused who was the public servant. The Court perused Section 4(3) of the PC Act which provides that a Sessions Judge was vested with powers of trying non-public servants for charges under the Act along with charges framed under other statutes. The Court noted the fact that none of the co-accused being tried under PC Act was a public servant and the main accused who was the only public servant was dead. However, having noted thus, the Court observed that death of the main accused does not result in abatement of trial as regards the other co-accused. While answering the reference in affirmative, the Court directed the learned Sessions Judge to proceed with the case in accordance with the law. [State of Maharashtra, In re, 2018 SCC OnLine Bom 1125, dated 04-06-2018]

Case BriefsSupreme Court

Supreme Court: In order to ensure that the civil or criminal proceedings do not remain pending for unduly period at the trial stage, the 3-judge bench of A.K. Goel, Navin Sinha and R.F. Nariman, JJ directed that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended.

The order of the Court came after it noticed that at times, proceedings are adjourned sine die on account of stay and even after stay is vacated, intimation is not received and proceedings are not taken up. Hence, remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up.

Stating that the mandate of speedy justice applies to the Prevention of Corruption Act, 1947 cases as well as other cases where at trial stage proceedings are stayed by the higher court i.e. the High Court or a court below the High Court, as the case may be, the Court, hence, directed:

 “In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters. Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced.”

The directions issued by the Court for future cases are:

  • In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order.
  • The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized.
  • The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.

The Court was hearing the issue relating to the interpretation of Section 19(3)(c) of the Prevention of Corruption Act, 1947, and whether superior constitutional courts, namely, the High Courts in this country, are bound to follow Section 19(3)(c) in petitions filed under Articles 226 and 227 of the Constitution of India. Another question that the Court had to decide was whether the inherent powers of High Courts are available to stay proceedings under the Act under Section 482 of the Code of Criminal Procedure.

Answering the questions, the Court said:

“the order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered.”

The Court concluded by stating that the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to reappreciate the matter. Even where such challenge is entertained, and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period. Though no mandatory time limit may be fixed, the decision may not exceed two-three months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order. [Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, 2018 SCC OnLine SC 310, decided on 28.03.2018]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr DY Chandrachud, JJ  listed the appeal by BJP leader Ajay Kumar Agarwal, challenging the 2005 Delhi High Court order quashing charges against Europe-based industrialists Hinduja brothers in the politically-sensitive Rs 64 crore Bofors pay-off case, for hearing in the week commencing from October 30 this year.

Here is the timeline of the events:

  • March, 1986: India and the Swedish arms manufacturer AB Bofors enter into Rs 1,437 crore deal for the supply of 400 155mm Howitzer guns for the Indian Army.
  • April, 1987: Swedish Radio claims that the company had paid bribes to top Indian politicians and defence personnel.
  • January, 1990: CBI registers case for alleged offences of criminal conspiracy, cheating, forgery under the Penal Code and other sections of Prevention of Corruption Act against Martin Ardbo, the then President of AB Bofors, alleged middleman Win Chadda and Hinduja brothers.
  • October, 1990: First charge-sheet is filed against Win Chadda, Italain businessman Ottavio Quattrocchi, then Defence Secretary SK Bhatnagar, Ardbo, the Bofors company and Hinduja brothers
  • July, 1993:  Ottavio Quattrocchi flees India and has never appeared before any court in India to face prosecution.
  • May, 2005: Justice R S Sodhi of the Delhi High Court, since retired, quashes all charges against the three Hinduja brothers, Srichand, Gopichand and Prakashchand, and the Bofors company and castigates the CBI for its handling of the case saying it had cost the exchequer about Rs 250 crore.
  • October, 2005: Ajay Agarwal files appeal before the Supreme Court after the CBI failes to approach the top court with the appeal within the 90-day deadline following the High Court verdict.
  • March, 2011: Special CBI Court discharges Ottavio Quattrocchi from the case saying the country cannot afford to spend hard-earned money on his extradition which has already cost Rs 250 crore.
  • 4 accused, namely, Ottavio Quattrocchi, SK Bhatnagar, Martin Ardbo and Win Chadda, have died pending trial.

In the matter that is pending before the Supreme Court since last 12 years, the Court had heard the matter on 01.12. 2016 after a gap of almost six years since 12.08.2010. The matter was last listed on 28.02.2017 when it was adjourned. The judge bench has now agreed to hear the 12 year old plea from the Month of October.

Source: PTI

 

Case BriefsSupreme Court

Supreme Court: While deciding a criminal appeal preferred against the judgment of the High Court of Punjab and Haryana, a Bench comprising of Amitava, J., set aside the judgment and order of the High Court which had convicted a police officer of taking bribes. The appellant (now deceased and represented by legal heirs) was a Station House Officer at a Police Station. He was accused of taking a bribe from the respondent and complaint for the same was filed with the DSP. The DSP, Chandigarh had laid down a trap to catch the appellant red handed and eventually the trap was claimed to be a success by the respondents. They filed a case against him in trial court and the appellant was held liable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. Aggrieved by the decision, the appellant filed an appeal in the High Court, which affirmed the decision of trial court. During the pendency of the case the appellant died and the case was then represented by his legal representative. Aggrieved by the order of High Court a criminal appeal was filed.

The learned counsel on behalf of appellant argued that the evidence on record was visibly deficient to prove the demand, receipt and recovery of any amount of illegal gratification as alleged and if the conviction was allowed it would be a gross travesty of justice. The counsel referred to P. Satyanarayan Murthy v. District Inspector Of Police, State of Andhra Pradesh, (2015) 10 SCC 152   and submitted that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charges against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, the conviction cannot be sustained.

The Court after examining the facts allowed the appeal and the judgment and order of the High Court affirming the decision of the trial court was set aside. [Mukhtiar Singh v. State of Punjab, 2017 SCC OnLine SC 742, decided on 14.07.2017]

 

Case BriefsSupreme Court

Supreme Court: Writing down a hefty 570-page judgement, the Bench of P.C. Ghose and Amitava Roy, JJ restored the conviction order of the trial court against Sasikala Natarajan, V.N. Sudhakaran and J. Elavarasi for holding disproportionate assets. All 3 were awarded the sentence of 4 years each by the Trial Court.

The judgement where the Court said that the present case demonstrates a deep rooted conspiratorial design to amass vast assets without any compunction and hold the same through shell entities to cover up the sinister trail of such illicit acquisitions and deceive and delude the process of law, came at the time when Sasikala was eyeing the post of Chief Minister of Tamil Nadu.

The Court noticed that J. Jayalalitha, who was the Tamil Nadu Chief Minister at the relevant time had come into possession of assets worth Rs.53,60,49,954.00, disproportionate to the known sources of her income during the check period and had got the same dispersed in the names of Sasikala, Sudhakaran and Elavarasi and the firms & companies involved to hold these on her behalf with a masked front.

The trial court had held that private individuals can be prosecuted by the Court on the ground that they have abetted the act of criminal misconduct falling under Section 13(1)(e) of the Prevention of Corruption Act, 1988 committed by the public servant. Setting aside the decision of the Karnataka High Court in Selvi J. Jayalalitha v. State, 2015 SCC OnLine Kar 124, decided on 11.05.2015, where the respondents were acquitted of all criminal charges, the Court held that the Trial Court is correct in the face of the overwhelming evidence indicating the circumstances of active abetment and conspiracy by Sasikala, Sudhakaran and Elavarasi in the commission of the offences under Section 13(1)(e) of the 1988 Act.

The Court further said that corruption is a vice of insatiable avarice for self-aggrandizement by the unscrupulous, taking unfair advantage of their power and authority and those in public office also, in breach of the institutional norms, mostly backed by minatory loyalists. Both the corrupt and the corrupter are indictable and answerable to the society and the country as a whole. [State of Karnataka v. Selvi. J. Jayalalitha, 2017 SCC OnLine SC 134, decided on 14.02.2017]