TaxTMI 
TaxTMI 
1997 (4) TMI 524
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....;The whole of Government consists in the art of being honest." - Thomas Jefferson, Works Vi, 186. Thus Realizing the importance of honesty and probity in public life and to weed out the corruption rampant amongst the public servants, the legislators thought it fit and proper to frame a comprehensive legislation in the form of Prevention of Corruption Act, 1947 as the existing laws in the form of Sections 161 to 165A Indian Penal Code, they felt, had proved inadequate for dealing with the situation obtaining at that time on account of war and immediately thereafter. Subsequently in order to further strengthen the anti- corruption laws and to make them very effective the Prevention of Corruption Act, 1988 was passed which received the assent of the President of India on September 9, 1988. 2. The present petitions relate to the corruption charges leveled against the petitioners under the Prevention of Corruption Act, 1988. 3. The petitioners herein, known as S/Shri L.K.Advani, V.C.ShukIa, J.K.Jain, N.K.Jain, S.K.Jain and B.R.Jain have taken exception through the present revision petitions bearing Nos. 124, 166, 167, 256, 257, 265, 328, 329, 330 and 331 of 1996, to the judgment....
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....being taken up together for disposal as the questions of law and facts which are likely to arise while disposing them of would be the same. Hence it is proposed to dispose them of by one and the same judgment. 7. Relevant and material facts which led to the presentation of the petition pertaining to charge sheet No. RC/1(A)/95-ACU-6 and charge sheet No. RGI(A)/95- ACU(VI) are as under: that during the years 1988-9 petitioners S/Shri S.KJain, J.K.Jain, B.RJain and N.KJain entered into a criminal conspiracy amongst themselves. The object of the said conspiracy was to receive un-accounted money and to disburse the same amongst themselves, friends, close relations and amongst different persons including the public servants and political leaders . With the said end in view petitioner Shri S.KJain lobbied with different public servants and government organisations in the power and steel sectors of the Government of India for the purposes of pursuing of award of various contracts to different foreign bidders with the motive of getting illegal kickbacks from them. The petitioners in connection therewith received ₹ 59,12,ll,685.00 during 1988-1991 by channeling some amount within the....
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....ly 1989 to April 1991. However, a sum of ₹ 38,85,834.00 is the only sum which was paid to him while he was a 'public servant'. Out of the said amount, a sum of ₹ 20 lacs was paid to him in February 1990 whereas ₹ 10 lacs are shown to have been paid to him in March 1990. A sum of ₹ 2,67,834.00 was paid to him in October, 1990, ₹ 5,30,000.00 paid to him in December 1990 ( 23.12.1990) and in January 1991 he was paid a sum of ₹ 88,000.00 . 9. Shri V.C.ShukIa, M.P.( Lok Sabha) was occupying a position of power in the Government of India for quite a long period and worked in various influential positions. He was a Member of Parliament ( Lok Sabha) from December 31,1984 to July 26,1989 and from June 20,1991 onwards. He also worked as Union Minister for External Affairs from November 21,1990 to February 20,1991, as Union Minister for Water Resources from June 20,1991 to January 18,1993 and as Union Minister of Parliamentary Affairs from January 18,1993 to January 17, 1996. The above-mentioned payments of ₹ 38,85,834.00 were made by Jains to Shri V.C.ShukIa while he was working as a 'public servant' with a motive which amounts to pa....
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....rajan, Senior Advocates, have, on the other hand, contended with all the vehemence at their command that an M.P. is a 'public servant' within the meaning of Section 2(c)(viii) of the Prevention of Corruption Act. There is sufficient evidence on record to prima facie show that Shri L.K.Advani and Shri V.C.Shukla are guilty of accepting illegal gratification under Section 7 and criminal misconduct under section 13(l)(d) of the Prevention of Corruption Act. There was general conspiracy amongst the petitioners i.e. Jain brothers, namely, S/Shri N.K.Jain, B.R.Jain and S.K.Jain and their employee Shri J.K.Jain. During the period the said conspiracy was afoot a sum of ₹ 35 lacs was paid to Shri L.K.Advani whereas a sum of ₹ 38.85 lacs was paid to Shri V.C.Shukla on different dates by the aforementioned Jain brothers and they accepted the same as gratification other than legal remuneration as a motive and reward for showing favours in the discharge of their official functions. There is ample evidence in the form of diaries and note books to prima facie substantiate the said averments of the prosecution. 12. It is manifest from the facts canvassed above that the most po....
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....cannot be held to be in the pay of the Government. The Members of the Legislative Assembly enjoy the power of the purse. There is an enactment whereunder the Members of the Legislative Assembly draw their salary and allowances. They have got the power to vote the grant and pay themselves. To illustrate the said point he has led me through certain lines of paras 56 & 57 of the judgment. "....... Therefore, even though Mla receives pay and allowances, he is not in the pay of the State Government because Legislature of a State cannot be comprehended in the expression 'State Government'..." (pr.57) "..... When all these aspects are pieced together, the expression 'Government' in Section 21(12(a) clearly denotes the Executive and not the Legislature. Mla is certainly not in the pay of the Executive. Therefore, the conclusion is inescapable that even though Mla receives pay and allowances, he cannot be said to be in the pay of the Government i.e. the Executive. This conclusion would govern also the third part of clause 12(a) i.e. " remunerated by fees for performance of any public duty by the Government". In other words, Mla is not remunerated by ....
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....e required to perform multifarious public duties. 16. I have heard the learned counsel for parties at sufficient length and have very carefully examined their rival contentions and have given my anxious thoughts thereto. 17. Since we are concerned with the construction of Section 2(c) of the Act which defines 'public servant' it would be just and proper to examine the provisions of the said Section before proceeding further in the matter. It is in the following words: - Public servant' means (i) any person in the service or pay of the Government or remunerated by the Government for fees or commission for the performance of any public duty; (ii) any person in the service or pay of local authority; (iii) any person in the service or pay of a Corporation .... (iv) any Judge ...... (v) any person authorised by a Court of Justice .... (vi) Any arbitrator or other person .... (vii) any person who holds an office.... (viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty. 18. Section 2(c)(i) is the reproduction of Section 21, clause 12(a) of the Indian Penal Code. The said provision was the subject ma....
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....iament. Third Schedule (B) of the Constitution of India deals with the form of oath or affirmation which is to be administered to a Member of Parliament. He is required to take oath in the following words: " That I having been elected ( or nominated) a Member of the Council of State ( or the House of the People ) do swear in the name of God, that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter." 20. Whereas the architects of the Constitution in case of form of oath or affirmation to be administered to a Minister of the Union of India have used the word 'office'. The learned counsel has thus argued that had the Mp been also holding the office he would have also been administered the same type of oath which is administered to the holder of an office i.e. the Minister. There was no question of any distinction being made in between the two oaths. 21. The learned counsel has further argued that whenever the framers of the Constitution have referred to the President of India, Vice President of ....
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....od beginning with such commencement and ending with the date on which his seat becomes vacant; (b) in relation to a new member,- (i) ...... (ii)........ (iii) where such new member is member of either House of Parliament elected in a bye-election to that House or a member nominated to the House of the People the period beginning with the date of his election referred to in Section 67A of the said Act or, as the case may be, the date of his nomination. 24. It would not be out of place to reproduce here Section 3 of the said Act which provides as under:- 3. Salaries and daily allowances.- A member shall be entitled to receive a salary at the rate of seven hundred and fifty rupees per mensem during the whole of his term of office and subject to any rules made under this Act an allowance at the rate of seventy five rupees for each day during any period of residence on duty." It thus can be concluded from above that the words 'seat' and 'office' are interchangeable terms and either one of them can be used while referring to a Member of Parliament. The term 'office' has been defined in the Oxford English Dictionary, IInd Edn., Vol.X ( p. 729) in th....
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.... Member, is subsisting, permanent and substantive and will be filled by others after him; this is provided by law ; and it is certainly of a more, rather than less, public character. Erskin May in fact speaks of "Corruption in the Execution of their office as Members." There is nothing to stop a court, Therefore, holding that membership of Parliament constitutes an office...... 26. Let us now see as to whether an M.P. holds an office? Admittedly, an M.P. enjoys a status and position. He is also required to perform public duties under the Constitution. Thus it can be safely concluded there from that a Member of Parliament is holder of an office. 27. The other contention of the learned counsel for the petitioners as put forward by Mr. R.K.Anand and Mr. Kapil Sibal is that since the legislators in their wisdom have not put an M.P. in the category of 'public servant' this Court would not be justified in doing so. According to them, the law is to be interpreted as it is and not as the Court wishes it to be or as it ought to be. This is none of the functions of a Court of Law. I am sorry I am unable to agree with the contention of the learned counsel. 28. A perusal o....
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....ption which is permeating every nook and corner of the country. Hence it should be so interpreted which would serve the object of the Act. I am tempted here to cite a few lines from Sutherland's Statutory Construction, page 56, " Where a public interest is affected an interpretation is preferred which favours the public. A narrow construction should not be permitted to undermine the public policy sought to be served. This is especially so where a narrow construction discourages rather than encourages the specific action, the legislature has sought to foster and promulgate." The founding fathers of the Constitution envisioned the legislators as men of character, rectitude and moral uprightness whose sole object was to serve the public with dedication, to be open, truthful and legal. I am reminded here of the memorable words of H.G.Wells. He was of the view: The true strength of rulers and empires lies not in armies or emotions, but in the belief of men that they are inflexibly open and truthful and legal. As soon as a government departs from that standard, it ceases to be anything more than "the gang in possession" and its days are numbered. 32. Mr. J.A.G.....
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....uties as an Mp or as an MLA. We think that an Mp or an Mla could in certain circumstances hold an office where he will be discharging certain public duties. These two situations are covered by this Act. ..... We are trying to fit this in with the pronouncement of the Supreme Court, and at the same time taking note of the felt needs of the situation." 36. It is amply clear from above that the Minister on being asked conceded that there may be certain situations when an Mp or an Mla would be a 'public servant' within the meaning of this Act and as such would be liable for his actions like an ordinary citizen. Thus there was not a total denial on the part of the Minister on this question. A perusal of the speeches in the Parliament at the time of the debate on the bill reveals that the learned Members of the Parliament showed their anxiety, concern and worry with regard to the corruption not only amongst the government employees but they talked of even political corruption. To illustrate the point Shri Y.S.Mahajan from Jalgaon was of the view " Sir, political corruption is pervasive in character. It assumes multiplicity of forms which is astonishing. It is a syndrom....
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....the Apex Court ( in para 60) in A.R.Antulay's case (supra) it was observed " If Mla is not in the pay of the Government in the sense of Executive Government or is not remunerated by fees for performance of any public duty by the Executive Government, certainly he would not be comprehended in the expression 'public servant' within the meaning of the expression in clause 12(a). He is thus not a 'public servant' within the meaning of the expression in clause 12(a). This conclusion reinforces the earlier conclusion reached by us after examining the historical evolution of clause 12(a)." 39. It is crystal clear from the above discussion that an Mla was not held to be a 'public servant' as it was found that he was neither in the service nor pay of the Government nor remunerated by fees or commission for the performance of any public duty by the Government. The above snags which came in the way of the Apex Court in coming to the conclusion that an Mla was not a 'public servant' have now been removed by the amendment of the definition vide clause 2(c)(viii). The scope of the said definition has been enlarged and widened by removing the said ob....
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....er in hand also came up before their Lordships of the Privy Council in Attorney General of Ceylon v. D.Livera And Another, 1962 (3) All.E.R. 1066. It was observed at page 1073 " With all respect to this clear enunciation of principle, their Lordships are of opinion that it puts too limited a construction on the words of the Act and might in some cases result in defeating the intention expressed by those words. To make the result depend on an inquiry into the range of the "exclusive" powers and duties of a member of Parliament is likely to hang it solely on the actual written provisions of the prevailing construction, and to do this may require a virtual ignoring of the plain facts of a particular case. Where the facts show clearly, as they do here, that a member of Parliament has come into or been brought into a matter of government action that affects his constituency, that his intervention is attributable to his membership and that it is the recognised and prevailing practice that the government department concerned should consult the local M.P. and invite his views, their Lordships think that the action that he takes in approaching the minister or his department i....
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....lleged against Shri V.C.ShukIa were in respect of acts of omission and commission between February 1990 and January 1991. The above said period fell within his tenure as a member of the Lok Sabha during the period from December 2,1989 to March 13,1991 i.e. 9th Lok Sabha. The said Lok Sabha was dissolved on March 13,1991. Thus the date on which the charge sheet was filed Shri Shukla was no more a member of the erstwhile Lok Sabha i.e. 9th Lok Sabha. He was a member of a newly constituted House. Hence it can be safely concluded there from that the acts of omission and- commission were committed by him in his capacity as a member of the earlier Lok Sabha i.e. the 9th Lok Sabha. I am Therefore of the view that no sanction was required on the date of the charge sheet i.e. January 23,1996 for his prosecution in respect of the acts of omission and commission alleged to have been committed during the period from February 1990 to January 1991, as he was, now a member of newly constituted Lok Sabha ( 10th Lok Sabha). 46. I am fortified in my above view by the observations of their Lordships, of the Supreme Court as reported in K.Veeraswamy's case (supra), wherein it was observed by thei....
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....within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act." 50. Now the question which arises for adjudication is as to whether the learned Special Judge was justified in ordering the framing of the charges against Shri L.K.Advani and Jains and in framing the charges against Shri V.C.ShukIa and Jains? The petitioners are being tried admittedly under the provisions of the Prevention of Corruption Act. A Special Judge under the Prevention of Corruption Act is under an obligation ( vide Section 5) to follow the same procedure as is followed by a Magistrate for trial of warrant cases instituted on a police report. Sections 239 & 240 Cr.P.C. deal with the framing of charges in cases instituted on a police report under Chapter I of the Criminal Procedure Code . entitled " Trial of warrant cases by a Magistrate". Section 239 envisages " If, upon considering the police r....
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.... if the prosecution has sown the seed in the form of the incriminating material which has got the potential to develop itself into a full-fledged tree of conviction later on. 53. The above view was given vent to in State of Bihar Vs. Ramesh Singh, 1977CriLJ1606 "......It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code." ........" If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defense evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial." ....." If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusi....
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....t which shall be not less than six months but which may extend to five years and shall also be liable to fine. Explanations. - (a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. 57. Section 12 of the Act deals with the abetment of offences defined in Sections 7 & 11 of the Act. It lays down as under:- Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. 58. Section 13 of the Act provides as under:- 13.(1). A public servant is said to commit the offence of criminal misconduct. (a)........ (b)........ (c)........ (d) if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his posit....
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.... or enjoyment of ( something) by one's own effort, or by request; (b) to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get." Thus both the words "accept" and "obtain" signify an active conduct on the part of the person in accepting or obtaining a thing. Thus if some thing is thrust into the pocket of a person without his consent and without a request from his side it would not be an acceptance or obtainment of the said thing on the part of the person in whose pocket the same is inserted or thrust, within the meaning of Section 7 of the Act. 62. Learned counsel for the petitioners on the basis of the above have contended that there is absolutely no evidence in order to prima facie show and prove that the petitioners Shri Advani and Shri Shukla have accepted or obtained any thing from Jains. The mere fact that certain amounts have been shown against their names in Mr 68/91 and Mr 71/91 against Shri Shukla ( ₹ 38.85 lacs), and in Mr 72/91 against Shri Advani ( ₹ 35 lacs) would not ipso facto be prima facie proof of acceptance against the petitioners for the framing of the charges under the sections alluded....
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....books of account are being regularly kept in the course of business; (c) the said entries alone be not sufficient enough to charge any person with liability. Thus as per the requirement of law the prosecution in order to make the entries in the said diaries and the loose sheets admissible in evidence must show that the same fall within the ambit of an account book within the meaning of Section 34 of the Evidence Act. 68. The term 'account' has been defined in Words & Phrases, Permanent Edition, Vol.1A, pages 336-338. The word 'account' means " (a) claim or demand by one person against another creating a debtor-creditor relation." (b) "Account" is a formal statement in detail of transactions between two parties made contemporaneously with the transactions themselves. It must be some thing which will furnish, to a person having a right thereto, information of a character which will enable him to make some reasonable test of its accuracy and honesty and it arises out of contract or some fiduciary relation." 69. The term 'book of account' has been defined in Words & Phrases, Permanent Edn. Vol. Va at page 185. " A book of accoun....
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....nt to other set of persons/entities on the other side. The purpose and nature of receipt and its subsequent payment is not revealed from these entries. No source or details of opening balance in 2/88 or closing balance in April, 1991 have been appearing in commercial manner. The diary entries do not give the complexion of proper books of account in strict sense of the term." 71. The said report was filed before this Court at the instance of the prosecution. Hence the prosecution is bound by the same. Thus it can be said that the said diaries are not books of account within the ambit of Section 34 of the Evidence Act. 72. There is another aspect of the matter. It has been observed above that the entries in the books of account by themselves are not sufficient enough to fasten the liability on the head of a person against whom they are produced. They are not a substantive piece of evidence. The said entries in the books of account can be used only by way of corroboration to other pieces of evidence which is led by a party. Admittedly there is no evidence with the prosecution besides the alleged entries in the diaries and in the loose sheets as conceded by the learned counsel f....
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....t the said diaries and loose sheets ( vide Mr 68/91, Mr 72/91 and Mr 73/91) are also admissible in evidence under Section 10 of the Evidence Act. Learned counsel for the petitioners, on the other hand, have argued to the contrary. 78. Section 10 of the Evidence Act reads as under:- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. 79. Section 10 of the Evidence Act is an exception to the rule of hearsay as is Section 21 of the Evidence Act. The said section is based on the principle of agency. However, to make a piece of evidence admissible under the said section it must be prima facie shown that : (a) there was a conspiracy; (b) if the conspiracy is shown to be in existence in that, eventuality anythin....
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....ng to do with carrying the conspiracy into effect. The principle in Rex v. Watson ( 2 Stark. N.P.C. 140), is quite in analogy with this decision; and the same distinction was taken in Regina v. Murphy (S.C.& P. 305), where my brother Coleridge rejected evidence of what was said after the transaction. Here the evidence offered is of a statement made after the conspiracy was affected." 80. It was observed by the Hon'ble Supreme court in Natwarlal Sakarlal Mody v. The State of Bombay, Vol. LXV-1963 BoM LR 660 , "This section lays down a rule of evidence and its application is strictly conditioned by the existence of reasonable ground to believe that two or more persons have conspired together to commit an offence. The opening words of the section laying down a condition and the qualification laid down in the body of the section in regard to admissible acts, that is, they should be in reference to their common intention and also should have been committed, after the time when such intention was first entertained, indicate that the existence of a conspiracy must be established by prima facie evidence before the acts done or things written by any of the persons can be used....
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....ution for the application of Section 10 of the Evidence Act must show the following: that there was a conspiracy in between Shri Advani and Jains on the one hand, and on the other hand a conspiracy in between Shri Shukla and Jains to commit certain actionable wrongs or offences. Admittedly there is no evidence on record except the alleged entries in the said diaries and in the loose sheets, to prima facie prove the factum of conspiracy. There is also no evidence to prima facie suggest that the said entries were made in reference to the common intention of the conspirators after it was first entertained. 86. Shri J.K.Jain made the entries in his own handwriting with regard to the receipt of certain amounts and disbursement thereof and the same were shown to other Jains also. There is no averment in the charge-sheet that the said entries in the books of account came into being in execution of the conspiracy and the same were in furtherance of the common intention of Shri Advani and Jains, and Shri Shukla & Jains. The alleged accounts were maintained by Shri J.K.Jain for the benefit of his employers to let them know as to what were the amounts received and disbursed by them. It can t....
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.... evidence. Hence it cannot be held to be admissible in evidence. The rationale behind the said rule is that any statement which can not be subjected to the test of cross examination can not be read in evidence against a person it has been made. I am tempted here to cite a few lines from Murphy on Evidence, page 180 " At common law, an admission made by one party is evidence against the maker of the statement, but not against any other party implicated by it. This principle is of considerable practical importance in relation to confessions in criminal cases, and is further considered in 8.14.1. In civil cases, admissions made by other parties may now be admissible under S. 2 of the Civil Evidence Act, 1968. The common law rule has the logical, though curious, result that if A and B are jointly charged with the offence of conspiracy, which cannot be committed by one person alone, A may be convicted upon his admission that he and B were guilty of the conspiracy, while B may have to be acquitted because of the lack of admissible evidence against him, As admission being of no evidential value against B." Thus the said admission, if any, can be used against Jains and not agains....
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....ot;. Says Halsbury: .... Statements in document may also be hearsay. So, if A had taken counsel's opinion before acting, the contents of the opinion would be admissible for the same purpose, but not to prove the truth of any statement of fact therein. 93. The same view was also expressed in Om Prakash Berlia and another v. Unit Trust of India and others, AIR1983Bom1 . 94. Admittedly there is no evidence with the prosecution to prove the contents and the truth of the entries in the said diaries and loose sheets, except the report of the fingerprint and handwriting expert and the statement of certain witnesses namely Pawan Jain, A.B.Pathak and D.K.Gupta which would simply prove the handwriting of Shri J.K. Jain and signatures of Shri S.KJain. 95. The present case admittedly is based on circumstantial evidence. It is a well established principle of criminal law that in case of circumstantial evidence it should be of such a nature that it is incapable of Explanation on any other hypothesis except the guilt of the accused. It must be a complete chain and no link of the said chain should be missing. In other words it can be said that the facts brought in the form of circumstanti....
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....regard to the monies which are alleged to have been received by Jains for the purpose of disbursement. There is no evidence with regard to the disbursement of the amount. Then there is no evidence with regard to the fact to prove prima facie that the petitioners i.e. Shri L.K.Advani and Shri V.C. Shukla accepted the alleged amounts as a motive or reward for showing favor or disfavour to any person and that the said favours and disfavours were shown in the discharge of their duties as public servants as contemplated by S.7 of the Act. Thus the Court will have to presume all the above facts in the absence of any evidence in connection therewith to frame charges against the petitioners. 99. It is a well recognised principle of criminal jurisprudence that there can not be any presumption in favor of the prosecution . There is only one presumption and that is a sine qua ,non of the criminal jurisprudence and it is with regard to the innocence of the accused. The onus to prove the guilt of the accused beyond any shadow of doubt is always on the prosecution. However, in a case under the present Act the onus would shift to the accused only in those discerning few cases where the accused a....