L.K. Advani Vs Central Bureau of Investigation

CASE BRIEF

Appellant – L.K. Advani

Respondent – Central Bureau of Investigation

Decided On – 08/04/1997

Statues Referred –

1. Prevention of Corruption Act, 1988 – Section 7, Section 12 and Section 13(2) read with Section 13(1)(d).
2. Indian Penal Code – section 120(B).
3. Evidence Act – section 10, Section 21 and Section 34.

FACTS:

1. Aggrieved and dis – satisfied with the said judgements and orders the petitioners approached Supreme Court of India for quashment of the said charges and the proceedings pending decision before the learned lower court.
2. During the years 1988-89 appellants S.K. Jain, J.K. Jain, B.R. Jain and N.K. Jain entered into a criminal conspiracy among themselves. The object of the said conspiracy was to receive un – accounted money and to disburse the same among themselves, friends, close relations and among different persons including public servants and political leaders.
3. Shri S.K. Jain 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. They simultaneously received Rs. 59,12,11,685.00 during the year 1988 – 1991 by challenging some amount within the country and by receiving major portion of the same from foreign countries through hawala channels as kickbacks from the foreign bidders of certain projects of NHpc and NTPC.
4. The notebooks, diaries and files seized from the residence of J.K. Jain on May 3, 1991; disclosed the receipt of the amounts mentioned in charge sheet. It was also revealed that a total amount of Rs 60 lakhs was paid to L.K. Advani during April 1988 – 1991 and the expenses were under the heading of POE. A sum of 35 lakhs was paid to him during the period from April 1988 – March 1990. Similarly, a sum of Rs. 25 lakhs was paid to him on April 26, 1991.
5. The above – mentioned facts and circumstances disclosed that the Jains individually as well as collectively were in the habit of making payments to influential political leaders and public servants of high status and accepting official favours from them.
6. Shri L.K. Advani was a well – known political leader, he has been holding high public offices, e.g. Member of Rajya Sabha, Lok Sabha as well as Union Cabinet Minister for a long period. The payments made by Jains amounted to payment of illegal gratification other than legal remuneration. However out of 60 lakhs, the payment of a sum of Rs 25 lakhs pertained to the period when L.K. Advani was not a public servant in April 1991.
7. Thus, L.K. Advani committed an offence of criminal conspiracy and criminal misconduct punishable under Section 120(B) of IPC and Section 13(2) read with Section(1)(d) of the prevention of corruption act, 1988.
8. Jains who were the petitioners, committed offences punishable under Section 120(B) of IPC and Section 12 of the Prevention of Corruption Act, 1988.

ISSUE;

1. Whether member of parliament, M.P. and M.L.A comes under the heading of “public servant”?
2. Whether the learned special judge was justified in ordering the of the charges against L.K. Advani and Jains?
3. Whether the prosecution was under any obligation to obtain a sanction before launching the prosecution against V.C. Shukla?

CONTENTIONS BY PARTIES:

Appellant’s Arguments –

1. It was urged for and on behalf of appellant’s that the impugned order passed by the learned special judge with regard to the framing of charges against the appellant’s were illegal and invalid in as much as there is absolutely no material to show prima facie any case against the appellants. There was absolutely no evidence against the appellants except the alleged diaries and the note books, the entries wherein were not even worth the paper on which the same had been recorded, as the same are inadmissible in evidence and thus could not have been taken into consideration by the learned court at the time of framing charges. It was further contended that M.P. is not a public servant, a fortiori, the proceedings under the Prevention of Corruption Act could not have been launched against appellants. It has been further urged that even if it would have been presumed for the sake of arguments that an MP is a public servant which Mr. Shukla was at relevant time, in that eventuality no charge sheet could have been filed against him without obtaining sanction under Section 19(c) of the Prevention of Corruption Act from the authority competent to remove him.
2. No provision of the Constitution of India talks of an office which is to held by a member of parliament. The learned counsel thus urged that an MP does not hold an office.
3. A member of parliament is neither appointed nor removed.
4. Since the legislators in their wisdom have not put MP in public servant the court would not be justified in doing so.
5. V.C. Shukla was prosecuted for the offence of criminal conspiracy under Section 120B of IPC. Hence, the charge sheet against him for the alleged conspiracy could not have been filed without the prior sanction under Section 197 of Criminal Procedure Code.
6. The evidence does not prove anything and the entries were not relevant under any of the provisions of Evidence Act and as such was inadmissible in the court.

Respondent’s Arguments –

1. It was contended on behalf of Central Bureau of Investigation, with all the vehemence at their command that MP is a “public servant” within the meaning of Section 2(c)(viii) of the Prevention of Corruption Act. There is sufficient record to prima facie show that L.K. Advani and V.C. Shukla were guilty of accepting illegal gratification under Section 7 and criminal misconduct under Section 13(1)(d) of the Prevention of Corruption Act. There was general conspiracy amongst appellants, during that period; the said conspiracy was afoot a sum of Rs 35 lakhs was paid to L.K. Advani whereas a sum of Rs 38.85 lakhs was paid to V.C. Shukla on different dates by 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 was ample evidence in the form of diaries and note books to prima facie substantiate the said averments of the prosecution.
2. It was argued that the underlying idea while making amendment to the Prevention of Corruption Act, 1947 by the Prevention of Corruption Act, 1988 was to make the anti – corruption laws more effective widening their coverage and strengthening the provisions. Thus, the intention of legislature was clear i.e. to bring the members of parliament within the ambit section 2(c) of the act since by virtue of their office they are required to perform multifarious public duties.
3. The evidence of diaries and loose sheets were relevant and admissible under Section 34 of Evidence Act. Thus, according to respondent’s contention the entries against name of appellants are prima facie proof of their acceptance and obtainment of illegal gratification from Jains.

JUDGEMENT:

The Delhi High Court bench comprising of M Shamim held the following:

1. It is crystal clear that an MLA was not held to a ‘public servant’ as it was found that he was neither in the service nor pay for the government in the sense of executive government or is not remunerated by fees or commission for performance of any public duty by the executive government. He is thus not a public servant within the meaning of the expression in clause 12(a).
2. Thus, it can be presumed that the parliament while enacting the Prevention od Corruption Act, 1988 enlarged the definition of public servant so as to embrace within its domain each and every person whosoever holds an office.
3. Any point was not raised before the court and no argument was challenged by the appellant that MP is a public servant. Also, no arguments were advanced regarding the fact that sanction was requires to prosecute him. Therefore, the court did not find a need to go into the issue whether the sanction was required or not.
4. No sanction is required since V.C. Shukla is not a public servant within the meaning of Section 21 of Indian Penal Code. Furthermore it cannot be said that by any stretch of imagination the alleged act of taking bribe by the appellant Shukla was in discharge of his official duty.
5. No sufficient evidence in the case was established to attract Section 10 of Evidence act. It cannot be said that the evidence of entries made in Liladhar’s handwriting can implicate unless it is shown that knowledge and consent both was involved by reason of the application of section 10.
6. In the present case there is no evidence against the appellants except the diaries, note books and the loose sheet with regard to alleged payments. The said evidence is of such a nature which cannot be converted into a legal evidence against the appellants. There is no evidence in instant case with 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 appellants accepted the alleged amounts as a motive or reward for showing favour or disfavour to any person and that the favour or disfavours were shown in discharge of duties as public servants. Thus, the court presumed all the facts in the absence of any evidence in connection therewith to frame charges against petitioners.
7. In present case there is no such prima facie acceptance on the part of appellants and it was concluded that there was no evidence against appellants which could be converted into legal evidence.
8. In the circumstances stated above the appellants were entitled to succeed. The petitions were allowed and the proceedings pending decision before the learned special judge in the said petitions were quashed.

RULE OF LAW

The provision of the law which was under scrutiny by Hon’ble Delhi High Court of India was not of the sufficient evidence as to prove the criminal conspiracy.

CONCLUSION:

It can be concluded that in present case the Delhi High Court by its decision emphasized on the importance of evidence and the wide range of the definition of public servant.

Thus by doing so it laid an important concept of prima facie evidence and its importance in proving the legal standards of judiciary.