Your Honour, you are legally bound to reveal name of accused who...

Your Honour, you are legally bound to reveal name of accused who approached you in coal scam case and take action

SHARE

The Special CBI Court judge Shri Bharat Parashar, who is hearing a coal scam case, i.e., a case related to the allocation of the Amarkonda Murgadangal coal block in Jharkhand to two Jindal group companies, Jindal Steel and Power Limited (JSPL) and Gagan Sponge Iron Pvt Ltd (GSIPL) in 2008, said in open court yesterday (1 June 2015) that  he had been approached more than once by one of the accused, and warned defence lawyers against such a move being repeated. Indian Express reports that he told the Jindal group’s defence team that “it has happened again”. He is also reported to have told them that, “I am very sorry to say that with such senior lawyers appearing in the case, I had not expected that it would happen, but it has happened again. If this is happening without your knowledge, then I cannot say anything but this was not expected… if you want me to take it on record, I will do it”. However, the judge did not reveal the identity of the person who approached him or details of the previous instance when this had happened. He also said that he would not mention the incident in the case record.

Coal scam

It is pertinent to mention that in this case, Jindal Group industrialist Naveen Jindal himself is involved as an accused and former Union Minister of State for Coal Dasari Narayan Rao and former Jharkhand Chief Minister Madhu Koda are also named as accused persons.

The incident of an accused approaching the judge is shocking, to say the least. More shocking is the fact that he has been approached (at least) for the second time. Even more shocking is the fact (a) that the judge has not taken this incident on record, (b) that he has not revealed the name of the accused who approached him and also the details of the offer made to him now or on previous occasion, (c) that on the previous occasion when the same accused approached him (i.e., the judge) he did not reveal it in court and did not take any action, and (d) that he did not take any action against the accused as required under law. The judge did not even record the incident in the case record, as if it were a minor thing. Merely telling it in court to the defence counsel is not sufficient. Action as per law needs to be taken. “Shocking” is the only word that comes to my mind. It is not expected from a Special CBI Court judge who is trying a corruption case of importance and who is well-known for his impeccable integrity.

Let me respectfully submit before the Hon’ble judge as to what are the relevant provisions in this regard and what is his legal duty even as an ordinary citizen (i.e., even if we forget, for the moment, that he is a judge having much vast powers), even though the Hon’ble judge is supposed to know, and would in fact be knowing, much more than me. In fact, every citizen is supposed to know the law since ignorance of law is no excuse.

Firstly, since full details of the accused approaching the judge are not available and have not been disclosed, I think the act of the accused can be of one (or more) of the following three possible types:

(1) First scenario: The accused approached the judge and offered him bribe directly or through someone else. In this scenario, the accused has committed an offence under Section 12 of the Prevention of Corruption Act, 1988, for having offered bribe to a public servant, and action needs to be taken against the accused for this offence.

(2) Second scenario: The accused approached the judge and tried to otherwise influence the course of justice, i.e., may not necessarily be by offer of bribe, but through some pressure or personal influence, etc. Even in this scenario, the accused has committed an offence of “criminal contempt” as defined under Section 2 of the Contempt of Courts Act, 1971, as per which “criminal contempt”, inter alia, includes the doing of any act whatsoever which prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding, or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. It is punishable under Section 12 of the said Act, and its cognizance can be taken by the High Court under Section 15(2) of the said Act on a reference made by the concerned court (in this case, by the Special Court for CBI).

(3) Third scenario: The accused approached the judge and tried to merely socialize with him or merely contact him (may be, as a first step towards some future ill-intentions) and till this stage nothing illegal has happened. In this case, of course, no action can perhaps be taken against the accused (presuming that this scenario is not covered under the second scenario mentioned above wherein “contempt of court” is made out). But, then, in this case, it is the duty of the judge to at least clear all the doubts and specifically declare that nothing serious happened and that it was just a casual attempt to meet him which is not covered under any illegal act. This is necessary since the judge has already chosen to make it public in the open court that an accused has tried to approach him twice, and therefore the doubts will remain in the public mind unless he also declares that nothing serious, in fact, took place. Justice should not only be done, it should seem to have been done.

At this stage, it is pertinent to point out that Section 39 of the Criminal Procedure Code requires every person (irrespective of his status), who is aware of the commission of or of the intention of any other person to commit an offence that is listed in the said Section, to inform the police or the magistrate about that. Such information is required to be given forthwith, i.e., immediately after such person becomes aware about the commission of or of the intention of any other person to commit such an offence. Moreover, the duty to give such information about an offence is legally binding unless such person can show a reasonable excuse as to why he could not inform the police or the magistrate about such offence, and the burden of proving such excuse lies on such person himself. Thus, every person has a binding duty under law to inform the police or magistrate about the commission of certain offences listed in Section 39 of the Criminal Procedure Code, or of the intention of any other person to commit such an offence.

It is a well established principle of law that ignorance of law is no excuse. Everybody is supposed to know the law of the land. Even illiterates are supposed to know the law. There is a judgment of the Supreme Court of 1964 in the case of State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722 : (1965) 1 SCR 123 : (1965) 1 Cri LJ 641, in which it was laid down that even a foreigner is supposed to know the law of the land. And, this legal principle is applicable irrespective of whether or not one has read the law. Since this principle is applicable even to an illiterate commoner, there should be no doubt that it applies equally to the Hon’ble judge of the Special Court for CBI. Therefore, it is and was legally binding on the judge to have forthwith informed the police or magistrate about the offer of bribe, if any, made by the accused who approached him in the coal scam case.

It may be pointed out that out of the three scenarios mentioned above, in the first scenario, where the accused might have approached the judge and offered him some bribe, it is an offence under Section 12 of the Prevention of Corruption Act, and at least this offence is listed under Section 39 of the Criminal Procedure Code, the information of the commission of which has necessarily to be given forthwith to police or magistrate.

Clause (iii) of sub-section (1) of Section 39 mentions Section 165-A of the Indian Penal Code (IPC) under which offer of a bribe to a public servant is an offence. It may be pointed out that Section 165-A of IPC was omitted by Section 31 of the new Prevention of Corruption Act when the latter Act was enacted in the year 1988. In its place, a similar offence was created under Section 12 in the Prevention of Corruption Act, 1988. Therefore, the erstwhile Section 165-A of the Indian Penal Code is equivalent to the present Section 12 of the Prevention of Corruption Act, 1988. Thus, information of the commission of an offence under Section 12 of the Prevention of Corruption Act is required to be given to police or magistrate by every person who is aware of such commission. The intention of this section is to ensure that legal action is taken against the accused for every offence of type mentioned in Section 39 of Cr.P.C.

For removal of doubts, I may point out that Section 8 of the General Clauses Act, 1897, mandates that where any Central Act repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment to the provision so repealed shall be construed as references to the provision so re-enacted. In view of this, it is unequivocally clear that the reference to Section 165-A of the Indian Penal Code, in Section 39 of the Criminal Procedure Code, shall be construed as a reference to Section 12 of the Prevention of Corruption Act, 1988. Therefore, there should be no doubt that it is legally binding on every person, who is aware of the commission of (or the intention to commit) an offence under Section 12 of the Prevention of Corruption Act (which includes offer of bribe to a public servant), to forthwith inform police or magistrate.

It is noteworthy that a person who fails to comply with the provisions of Section 39 of the Criminal Procedure Code is himself guilty of an offence under Section 202 of the Indian Penal Code that makes it punishable with imprisonment for a term which may extend to six months or with fine or with both. However, this is not relevant in the present case because I know for sure that the judge Shri Bharat Parashar is a person of highest integrity and he is the same judge who had refused to accept the closure report filed by the CBI in a prominent coal scam case (which was apparently closed by CBI under political pressure or due to corruption), in which this Hon’ble judge later took suo motu cognizance of the offence himself and named Dr. Manmohan Singh, former Prime Minister, as an accused and summoned him to appear before his court (it is a different matter that the Supreme Court stayed the summons issued to Dr. Manmohan Singh and presently it remains stayed). Moreover, offence under Section 202 IPC is perhaps only for the lesser mortals, i.e., ordinary persons like me and you. Further, Section 202 IPC makes it an offence when it is an “intentional omission”. Here, in the present matter, it appears to be a “misguided or misinformed” omission and not “intentional” omission with the intention to save someone.

The judge Shri Parashar is a person of very high repute. He is an icon in judiciary and a person of the highest levels of impeccable integrity. I have the highest respect for him. However, under some misconception, unfortunately, he has chosen not to disclose full details and/or to take action as required under law. The least that was expected from him was to disclose the details of the accused approaching him with details of the offer or other type of overreach. Public interest requires it.

Merely not accepting a bribe is not sufficient; it is also a legal and moral duty to report to the authorities concerned about the offer of bribe so that necessary legal action could be taken. This is more so true in case of a judge of the reputation of Shri Parashar who is well-known for his solid reputation of fearlessness and integrity. And, this is more so true in a case where rich and influential persons have first looted or attempted to loot the natural wealth of the nation (coal) amounting to thousands of crores of rupees, and when they are ultimately caught in a rare case they try to win over the judiciary. Such unscrupulous persons need to be brought to justice if they have tried to corrupt the judiciary and/or tried to influence the judiciary in a manner that is against public interest. It is necessary to ensure that the confidence of the people in the system, in particular the judicial system, is not shaken.

Facebook Comments

Powered by TG Facebook Comments