1997 Supreme(Del) 768

High Court Of Delhi
P.V.NARSIMHA RAO - Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION - Respondent
CRIMINAL APPEAL 195 of 1997
Decided On : 09/12/1997

Headnote:Constitution of India 1950 — Article 105 — Powers & privileges — Members & Committee — House of Parliament — No confidence motion — Voting for or against — Acceptance of bribe by Members of Parliament — JMM Bribery case — Immunities — Breaches of privilege — Liability: Civil or criminal — Proceedings against in the court of law — Whether the members are entitled to protections under Article ? — (No) — Members are well enough protected in Criminal and civil matters by ordinary law — Charge framed — Revision — Dismissed.

       Held:

       Undoubtedly, the powers, privileges and immunities as provided by Clauses (2) and (3) of Article 105 are necessary for the protection of the Parliament and its members. But then "inviolability" has not met with unanimous approval in all Constitutions. Canada and Netherlands, for example, consider that members are well enough protected in criminal and civil matters by the ordinary law.

       Article 105(2) & (3) — Members of Parliament — Powers and privileges — Immunities — Breaches — No-confidence motion — Voting — Bribe given to members to vote against No-confidence motion — Criminal liability — To accept or offer bribe — Accepted — Booked — Criminal offence — Whether such members committed the offence punishable under criminal law (Yes) — Charged — Pleaded protection under — Jurisdiction of Criminal courts — Committed breach of — Courts have jurisdiction to try criminal offences by members committed within or outside Parliament — Charged — Revision against — Dismissed.

       Thus to offer bribe to a Member of Parliament to influence him in his conduct as a Member has been treated as a breach of privilege [CJ (1697-99) 528}. But then, merely treating the commission of a criminal offence as breach of privilege does not amount to ouster of jurisdiction of the ordinary courts to try penal offences. To claim that in such matters the courts would have no jurisdiction would amount to claiming a privilege to commit a crimep. Criminal Procedure Code 1973 — Section 164 — Confessions — Recording stage — Whether the confessions recorded during trial are admissible or not? Yes.

       It may be noticed that before recording the statement all the precautions as required under Section 164 of the Code, were taken. This being the position, I do not think that the statement purported to have been recorded under Section 164 would become inadmissible merely because it came to be recorded during trial. I do not think that a statement or a confession of an accused can be recorded only at the stage envisaged by Section 164 of the Code. There is nothing in Section 164 of the Code to warrant the proposition that if a statement or a confession is recorded during trial, the same becomes inadmissible. In any case it is not a defect of substance.

       Section 197 — Sanction — Constitution of India, 1950 — Article 75(2)-Holding of office by Ministers — No-confidence motion — Bribing of MPs to win support to defeat No-confidence motion — IPC 120-B — Criminal conspiracy — Booked — Charged — Revision against — No connection with discharge of duty — Plea taken under Article 75(2) of Constitution that the act done was "while acting or purporting to act in the discharge of his official capacity" Acts for which charged had reasonable connection with discharge of his duty — Held to be official — Plea taken under Article 75(2) of Constitution not justified — Dismissed.

       He, with a view to save the Government headed by him, was prima facie a party to a conspiracy to bribe MPs and thereby to win over their support. He was also a party to actual bribing of the MPs, It is no job of a Prime Minister to hatch or be a party to such a criminal conspiracy. Power intoxicates the best hearts as wine the strongest heads but then no body can thrive on corruption. It is the froth on water - an inch deep and then the mud. A prime Minister must not sustain his power and position on the crutches of corruption. It is unfortunate that P.V.Narsimha Rao thinks he was justified under Article 75(2) of the Constitution. The plea demeans the provision. He is looking out for something which is not there. All ambitions, including the ambition to remain perennialy in power, are lawful except those which climb upward by means unlawful. If the prosecution is to be believed, what P.V.Narsimha Rao did, cannot, to my mind, fall within the words "while acting or purporting to act in the discharge of his official duty.

       Section 227 and 228 — Discharge — Framing of charge — Effect of evidence — Application of test proof — Stage of reliance of — Scope of — Charged — Revision — Dismissed.

       I do not think anything more need be said. However, since, during arguments, it was time and again contended that the material on the record was neither truthfull nor its veracity could be vouchsafed and as I was urged repeatedly to meticulously judge the material I may, only by way of emphasis, and not because these points have not been met squarely in the judgments referred to above, make a mention to yet another judgment of the Supreme Court in Superintendent and Rememberancer of Legal Affairs, West Bengal v. Anil Kumar Bhinja wherein, while relying upon the judgment in State of Bihar v.

       Ramesh Singh it was observed that at the time of the framing of the charge "the truth, veracity and effect of the evidene which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal procedure, 1973".

       Evidence Act, 1872 — Section 10 — Common designs of conspirators — Evidence — Belief of existence of conspiracy — Declaration of acts by conspirators — Booked — Charged — Revision — Evidence of on record — Reasonable ground to believe — Existence of — Admissibility of — Dismissed.

       I may mention that I have been constantly reminding myself that as a general rule some prima facie satisfactory evidence should in the first instance be oh the record of there being reasonable grounds to believe in the existence of the conspiracy before evidence may be given of acts or declarations of the alleged conspirators in order to make them admissible against their fellows. And, while I am on it, I may mention that I do feel, and this feeling has stemmed out of repeated examination of the material on the record, that there is prima facie and satisfactory evidence to that effect. It is because of this that, to my mind, benefit can be availed of Section 10 of the Evidence Act.

       Penal Code, 1860 — Section 120-B — Criminal conspiracy — Bribe to Members of Parliament — On the occasion to defeat no-confidence motion — To win over the support from Members of — P.V.Narsimha Rao, former PM party to conspiracy to bribe MPs — Not necessary that each member of conspiracy must know alt details of conspiracy — Agreement to do — Consist of — Charged — Revision — Dismissed.

       Conspiracy consists simply in the agreement or confideracy to commit an offence. It is not an ingredient of the offence under Section 120B that all the parties should agree to do a single act. It may, in fact, comprise the commission of a number of acts. It is also not necessary that each member of the conspiracy must know all the details of conspiracy.

       Prevention of Corruption Act, 1988 — Section 2(c) — Definition — Public servant — Conditions of — Applicability of — Bribe offered and accepted by members of Parliament — Booked by CBI under the provisions of — Whether the MP or MLA holds office or he is authorised or perform public duty — Explained — Booked — Charged — Revision against — MPs do perform public duties on account of "Seat" they occupy — Revision dismissed.

       As far as the second requirement is concerned I need not lose my breath for the simple reason that it was admitted that MPs do perform public duties on account of the seat they occupy. I am thus, for this reason, confining myself only to the first requirement..

       Section 5(2) — Statement of Approver — Powers of Special judge — Exercising of granting of pardon — Statement recorded — Admissibility of — Charged — Revision against — Dismissed.

       The power so conferred can be exercised at any time after the case is received and before its conclusion. But then, before the Special Judge acts or tenders pardon, he must know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and in relation to the co-accused. After all, it is the duty of the Special Judge to be very cautious as to whom he admits to give evidence as an approver and should carefully inquire to what extent the approver is mixed up with the transaction, and if he be an accomplice, into the extent of his guilt.

       Section 7, 12, 13(2) r/w 13(1)(c) — Illegal gratification — Punishment — Criminal liability/misconduct — Pecuniary advantage — MPs booked for offering and accepting bribe for getting their support to defeat no-confidence motion — Charged — Sufficiency of evidence — Examination of — Significance of role in hatching conspiracy, abetment with the object to help former PM to remain in power — Motion got defeated by unlawful means — Direct evidence — No fault in impugned order — Dismissed.

       I have already discussed above the law of conspiracy and the requirements to prove its existence. I need not repeat the same again. However, what I do need to say is that the material on the recod is sufficient enough to raise a strong suspicion that D. K. Au-dikeshavalu was a party to the conspiracy and rather had a significant role to play. I have also dealt with above the plea regarding persons like D.K. Audikeshavalu, Ramalinga Reddy and H.M.Revanna etc. not finding any mention in the first charge sheet. As already noticed, I find it to be of no consequence since all the three charge sheets constitute parts of one conspiracy with different facets.

       Was it all? No. The Approver tells us that on the day of voting, thatis, the 28th of July SitaRam Kesari (only C.B.I. knows why he has been left out) called the four of the JMM MPs and said: "Look here Shibu. I have known you and Suraj for the past 15 to 20 years. At present the Government is in trouble. Each and every vote matters. We have settled a lot. You give your votes so that the Government is saved and all the talks with the Prime Minister shall be honoured". And, we are told, the day after the voting the first Installment of bags brimming with money had been delivered.

       The role of Buta Singh is to be looked into in that perspective and once we look at it that way, order for framing charges appears to be pre-eminently justified.

       Words and Phrases — "Office" and "Seat" — Meaning of — Explained/Distinguished — JMM Bribery Case — Members of Parliament involved in offer and acceptance of bribe — Criminally liable — Booked — Claimed do not hold office — Charged — Revision against — Dismissed.

       The word "office" is of indefinite content and its various meanings cover four columns of the New English Dictionary. But, then, which is the appropriate meaning to be ascribed to this word in the context? I think, when we examine the language employed in Clause (viii) of Section 2(c) for purposes of discerning the real meaning of the word "office", we need to look at Explanationn 2 also which, to my mind, does throw some light on the point. It says:

       "Explanation 2. - Wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation"

       This, then, is the meaning which, in the context, I attach to the word "office" as used in Clause (viii) of Section 2(c) of the Act of 1988, and if I am correct, then, surely, Members of Parliament would be taken as public servants within the meaning of Section 2(c) of the Act of 1988.

       As per Strouds Dictionary of Words and Phrases, Vth Edn. an office "necessarily implies that there is some duty to be performed".