1997 (4) Crimes 1
DELHI HIGH COURT
Mohd. Shamim, J.
L.K. Advani & Ors. - Petitioners
Versus
Central Bureau of Investigation - Respondent
Criminal Revision Petition No. 265 of 1996
with
Crl. Revision Petition Nos. 124, 166, 167,
256, 257, 328, 329, 330 & 311 of 1996
All decided in April, 1997
Counsel for the parties:
For the Petitioners: Mis. Ram Jethmalani and Arun Jaitley, Sr. Advocates with Mis. K.K. Sud, Jayant Sud and Ms. Kamna Vohra, Advocates; Mr. RK. Anand, Sr. Advocate; with Mis. Muneesh Malhotra, Lovkesh Sawhney, Arun Birbal, Kanchan Singh & Manoj Ohri, Advocates for Shri V.C. Shukla. Mis. Kapil Sibal, Rajeender Singh, Sr. Advocates with Mis. Harish Gulati. S.K. Saxena. Herinder Singh. Atul Jain. Pawan Narang and- Mis. Rashmi Kathpalia Advocates for Jains.
For the Respondent: Mis. N. Natarajan, Gopal Subramanium Sr. Advocates with Mis Baljeet Singh. K.S. Thakur. S. Lal. Ramji Srinivasan. Atul Sreedharan. P.R. Kovilan K.N. Sharma. Shaju Francis and R.K. Verma Advocates.

Headnote:(i) Prevention of Corruption Act, 1988 - Section 2(c)(viii) -Public Servant -Position of a Member of Parliament - Whether an M.P. is a public servant? (Yes) - A Member of Parliament is holder of an office – An M.P. discharges a duty wherein the public or community at large is interested - A sanction is required to prosecute petitioner.

       Held: Clause is 2 (c)(viii) of the Prevention of Corruption Act which can embrace within its fold the case of an M.P. It lays down and provides that any person who holds an office by virtue of which he is authorised or required to perform any public duty would be a public servant. The term 'public duty' on the other hand has been defined in Clause (b) of Section 2 of the Act. It envisages 'public duty' means a duty in the discharge of which the State, the public or the community at large has an interest. Learned Counsel for the petitioners Mr. Sibal conceded with commendable fairness on his part that there is no dispute with regard to the fact that an M.P. discharges a duty wherein the public or community at large is interested. Thus the only question which arises for decision is as to whether an M.P. holds an office or not? (Para 15)

       The mere fact that the position which an M.P. occupies in the Parliament has been referred to as 'seat' instead of 'office' is not a sure indicium of the fact that an M.P. is not a 'public servant' and it would not be proper to place reliance thereupon for the conclusion of the fact that an M.P. is not a public servant It is true as it has been already observed above by this Court that in the Constitution of India a Member of Parliament has been referred to as one who holds a 'seat' in the House. However, a Member of Parliament has been adverted to as a person having an 'office' in the Salary, Allowances and Pension of Members of Parliament Act, 1954. (Para 19)

       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 therefrom that a Member of Parliament is holder of an office. (Para 22)

       A perusal of the Statement of objects and Reasons behind the enactment of the Prevention of Corruption Act, 1988 reveals that the legislators wanted to amend the existing anti-corruption laws with a view to making them more effective by extending the scope and ambit of the definition of 'public servant' and to bring within its sweep each and every person who held an office by virtue of which he was required to perform any public duty. (Para 24)

       Admittedly as the law is today every Member of the Executive, every Member of the Judiciary is covered by the provisions of the Prevention of Corruption Act, 1988 as observed by the Hon'ble Supreme Court in K. Veeraswamy v. Union of India and Others, (1991) 3 S.C.C. 655. Thus there is no reason, whatsoever, as to why Members of the Legislature should be immune from the operation of the Act. The Members of Parliament should not have any quarrel on the said score. (Para 34)

       (ii) INTERPRETATION OF STATUTES - Prevention of Corruption Act, 1988 Objects and reasons – A purposive interpretation should be put on relevant provisions of law to fulfill intention of legislature - An M.P. could be covered by definition of 'public servant' as given in Sec. 2(c) (viii) of the Act.

       Held: The object of the Act is a very laudable one. Hence it cannot be so construed as to narrow down its scope. It is well-known that when the words of a statute are wide and clear then a restrictive meaning cannot be given to them. The purpose of the Act is clear and unambiguous i.e. the eradication of the corruption. Hence a construction, which would enhance the object of the Act and curb the mischief has to be put. The object of the Act is to serve as a beacon. If there are certain crevices and dark areas in the enactment they are to be illuminated with the help of the said object, nay it is the duty of the Court to put such construction which would illuminate the said areas. Thus this Court is of the view that having regard to the moral and commendable object of the Act a purposive interpretation should be put on the relevant provisions of law so as to fulfil the intention of the Legislature and eschew an interpretation which defeats the object of the Act. If so construed an M.P. would be covered by the definition as given in Section 2(c)(viii) of the Act. (Para 25)

       Further held: That the legislators were aware of political corruption and wanted to eradicate the same, this could have been done only by including the M.Ps. within the ambit of a 'public servant'. This they did by enlarging the scope of Section 2(c) of the Act. (Para 31)

       (iii) Prevention of Corruption Act, 1988 - Sections 2(c) 7, 12 & 13- Prosecution for offences under Petitioner was no more a Member of erstwhile Lok Sabha on the date on which charge sheet was filed – He was a Member of newly constituted House - Acts of commission and commission committed by him in his capacity as a Member of earlier Lok Sabha - No sanction required on date of charge sheet for his prosecution. Held: Shri Shukla is being prosecuted in the present case for the offences, which he is alleged to have committed during the period from February, 1990 to January, 1991 as per the charge framed against him on August 19,1996 Shri V.C. Shukla was a Member of Parliament from December 31, 1984 to July 26, 1989. Thereafter he was a Member of Lok Sabha from December 2, 1989 to March 13, 1991. The Parliament was constituted on June 20, 1991. Shri V. C. Shukla was a Member of Parliament on the date of the presentation of the charge sheet against him on January 23, 1996 Thus the offences alleged against Shri V.C. Shukla were in respect of acts of commission and commission between February, 1990 and January, 1991. The abovesaid 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 therefrom 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 (l0th Lok Sabha). (Para 37)

       No sanction is required since Shri V.C. Shukla is not a 'public servant' within the meaning of Section 21 of the Indian Penal Code as held by the Hon'ble Supreme Court in Antulay's case. Furthermore, it cannot be said by any stretch of imagination that the alleged act of taking of the bribe by the petitioner Shri Shukla was in the discharge of his official duty. (Para 41)

       (iv) Criminal Trial- Framing of charges - Prosecution must show a prima facie case against accused

       Held: That the charges can be framed against an accused person only on those discerning few cases where the Court comes to the conclusion that the prosecution has shown a prima facie case against the accused and there is evidence before the Court which is capable of being converted into legal evidence later on during the subsequent proceedings after the framing of the charges. The matter with regard to the framing of the charges came up for consideration in a catena of authorities wherein time and again it was observed that the prosecution must show a prima-facie case against the accused in order to enable the Court to frame a charge against him. If the evidence before the Court is of such type which if un-rebutted and un-challenged by way of cross-examination would not be sufficient enough to convict the accused ultimately then the Court would not be justified in framing the charge against the accused. The Court at that stage is under no obligation to make an elaborate enquiry by sifting and weighing the material to find out a case against the accused beyond a reasonable doubt, which it is required to do at the time of the final hearing. The Judge at that preliminary stage is simply required to find out that there was material, which may lead to the inference that the accused has committed an offence. Thus the charge can be framed by the Court against an accused if the material placed before it raises a strong suspicion that the accused has committed an offence. In other words, the Court would be justified in framing the charges against an accused 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. (Para 44)

       (v) Prevention of Corruption Act, 1988 - Section 7 - Framing of charge for offence under - Meaning of words accept and obtain - Signify an active conduct on part of the person in accepting or obtaining a thing - Whether entries in diaries & loose sheets against names of petitioners are prima facie proof of their acceptance and obtainment of illegal gratification? (No).

       Held: A duty has been cast on the shoulders of the prosecution for framing of a charge under Section 7 of the Act to prima facie show that a public servant accepted or obtained any gratification other than legal remuneration as a motive or reward for doing or forbearing to do any official act by way of favour or disfavour to any person in the discharge of his official duties. (Para 49)

       Both the words "accept" and "obtain" signify an active conduct on the part of the person in accepting or obtaining a thing. Thus if something 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. With in the meaning of Section 7 of the Act, (Para 50)

       (vi) Evidence Act, 1872 - Sections 10 & 34 - Entries in books of account Admissibility - Application of Section 10.

       Held: 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, (Para 56)

       An account presupposes the existence of two persons such as a seller and a purchaser creditor and debtor. Admittedly the alleged diaries in the present case are not records of the entries arising out of a contract they do not contain the debits and credits. They can at the most be described as a memorandum kept by a person for his own benefit, which will enable him to look into the same whenever the need arises to do so for his future purposes. Admittedly the said diaries were not being maintained on day-to-day basis in the course of business. There is no mention of the dates on which the alleged payments were made. In fact the entries therein are on monthly basis. Even the names of the persons whom the alleged payments were made do not find a mention in full. They have been shown in abbreviated form. Only certain 'letters' have been written against their names which are within the knowledge of only the scribe of the said diaries as to what they stand for and whom they refer to. (Para 58)

       The said diaries are not books of account within the ambit of Section 34 of the Evidence Act. (Para 58)

       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 for the C.B.1. Thus the alleged entries in the books of account by themselves are of no avail to the prosecution. (Para 59)

       Further held: The prosecution 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. (Para 67)

       (vii) Evidence Act, 1872 - Sections 17 & 21 - Admissions - An admission cannot be used against a co-accused person.

       Held: An admission cannot be used against a co-accused person. Though the confession of a co-accused can be used against an accused person under Section 30 of the Evidence Act, Admittedly it is not a confession of a co-accused. Hence it is not admissible under Section 30 of the Evidence Act. The statement of a co-accused cannot be subjected to the test of cross-examination' hence such a statement would fall within the purview of rule of written hearsay 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. (Para 71)

       (viii) Evidence Act, 1872 - Section 3 - Documentary evidence Proof of - Held on facts entries in diaries and loose sheets, admissible but not relevant.

       Held: The entries in the said diaries and loose sheets, assuming arguendo, even if they are considered as a piece of evidence admissible under the Evidence Act, the same are of little help to the prosecution. The entries therein can at the most be said to be a document within the meaning of Section 3 of the Evidence Act. However, mere production of the said documents does not lead us anywhere unless the contents of the said documents are proved by proper evidence. A document can be proved either by examining the writer of the said document or by a person who is well versed with the handwriting of the maker of the said document or by a fingerprint and handwriting expert. However, even then the contents of the said document have to be proved still by a separate evidence like any other relevant fact. (Para 72)

       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.K Jain. (Para 74)

       (ix) Criminal Trial - Circumstantial evidence - Law relating to Facts brought must be incompatible with innocence of accused.

       Held: 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 circumstantial evidence must be incompatible with the innocence of the accused. (Para 75)

       (x) Prevention of Corruption Act, 1988 - Sections 7, 11, 12, 13 Indian Penal Code, 1860 - Section 120-B - Petitioners charge sheeted for offences under - Petitions for quashment of charges and proceedings pending before Lower Court Allegations of criminal conspiracy to receive unaccounted money and to disburse the same amongst them selves - Circumstantial evidence No evidence except diaries, note books and loose sheet with regard to alleged payments - These could not be converted into a legal evidence No evidence with regard to disbursement of amount - Failure to prove prima facie that petitioners accepted alleged amounts as a motive or reward - Proceedings pending are hereby quashed.

       Held: The prosecution must prove the factum of the conspiracy by evidence other than the disputed evidence i.e. the diaries and the loose sheets, which have been placed on the record of this Court. It has been observed above that there is no such evidence. The alleged entries relate to past facts. The alleged entries must have been made after the disbursement. Hence they cannot be said to have been made in execution of the common intention of the conspiracy. (Para 69)

       In the present case there is no evidence against the petitioners except the diaries. note books and the loose sheet with regard to the alleged payments (vide M.R Nos. 68/91. 72/91 and 73/91). The said evidence is of such a nature which cannot be converted into a legal evidence against the petitioners. (Para 76)

       It is a well recognised principle of criminal jurisprudence that there can not be any presumption in favour 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 accepts gratification other than legal remuneration under Section 20 of the Act. The said burden would shift on the accused only when it is shown that the accused has accepted or obtained or agreed to accept or obtain as a gratification other than legal remuneration as a motive or reward any valuable thing from a person in that eventuality it shall be presumed unless contrary is proved that he accepted or obtained or agreed to accept or obtain that gratification or valuable thing as the case may be as a motive or reward such as mentioned in Section 7. Admittedly in the present case there is no such prima facie acceptance on the part of the petitioners namely. Shri L.K. Advani and Shri V.C. Shukla (Para 77)

       (xi) WORDS AND PHRASES Words 'account' 'obtain', 'book of account Meanings of. (Paras 57 & 58)

       Result: Petitions allowed. Proceedings against Shri L.K. Advani. V.C. Shukla quashed.