Ex Finance Minister Chidambram is not entitled to bail.

The background of P. Chidambram:

P.Chidambram is a Senior Advocate practicing in the Hon’ble Supreme Court of India with 49 years of standing at the Bar, of which 35 years as a Senior Advocate. Currently, he is Member of Parliament (RS). He was formerly Union Minister of Finance (1996-1998, 2004-2008 and 2012-2014) and Union Minister of Home Affairs (2008-2012). He is a member of the Indian National Congress, which is the principal Opposition Party in Parliament, and has been in public life for over 40years. The Petitioner is also a senior Spokesperson of the Congress Party as well as a prominent and widely-read columnist.

The allegations against P. Chidmbram:

It is alleged that during the period from 15.11.2016 to 19.11.2016 huge cash to the tune of Rs. 31.75 crores was deposited in eight bank accounts in Kotak Mahindra Bank in the accounts of “group of companies”. The statements recorded during investigation have evidentiary value under Section 50 PMLA. Prima facie, the version given by them is in consonance with the prosecution case.

The stated activity allegedly indulged into by the accused named in the commission of predicate offence is replete with mens rea. In that, the concealment,possession, acquisition or use of the property by projecting or claiming it as untainted property and converting the same by bank drafts, would certainly come within the sweep of criminal activity relating to a scheduled offence. That would come within the meaning of Section 3 and punishable under Section 4 of the Act. Continue reading “Ex Finance Minister Chidambram is not entitled to bail.”

Repeal and re-enactment of a law

Principles for repeal and re-enactment of a law:

If the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded could there be any incongruity in attributing to the later legislation the same intent which Section 6 presumes where the word ‘repeal’ is expressly used. So far as statutory construction is concerned, it is one of the cardinal principles of the law that there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to effect a repeal is attributed to a legislature then the same would, in our opinion, attract the incident of the saving found in Section 6 for the rules of construction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statutes are drafted. Continue reading “Repeal and re-enactment of a law”

Sanction for prosecution of public servant on official duty.

The principles for prosecution are summarized hereunder :

I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner. III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.

IV. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply. V. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority. VI. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed. Continue reading “Sanction for prosecution of public servant on official duty.”

Effect of failure to maintain Police Diary.

Failure to maintain diary:

As the concept of maintaining General Diary has its origin under the Section 44 of Police Act of 1861 as applicable to States, which makes it an obligation for the concerned Police Officer   to   maintain   a   General   Diary,   but   such   non­ maintenance  per   se  may   not   be   rendering   the   whole prosecution   illegal.   However,   on   the   other   hand,   we   are aware   of   the   fact   that   such   non­maintenance   of   General Diary   may   have   consequences   on   the   merits   of   the   case, which is a matter of trial. Moreover, we are also aware of the fact that the explanation of the genesis of a criminal case, in some   cases,   plays   an   important   role   in   establishing   the prosecution’s   case.   With   this   background   discussion   we must  observe   that   the binding  conclusions reached in  the paragraph  120.8  of  Lalitha Kumari Case  (Supra) is an obligation of best efforts  for the concerned officer to record all   events   concerning   an   enquiry.   If   the   Officer   has   not recorded, then it is for the trial court to weigh the effect of the same for reasons provided therein. A court under a writ jurisdiction   or   under   the   inherent   jurisdiction   of   the   High Court is ill equipped to answer such questions of facts. The treatment provided by the High Court in converting a mixed question of law and fact concerning the merits of the case, into   a   pure   question  of  law  may   not  be  proper  in  light   of settled jurisprudence.

Our conclusion herein is strengthened by the fact that CrPC itself   has   differentiated   between   irregularity   and   illegality. The   obligation   of   maintenance   of   General   Diary   is   part   of course of conduct of the concerned officer, which may not itself   have   any   bearing   on   the   criminal   trial   unless   some grave prejudice going to the root of matter is shown to exist at   the   time   of   the   trial.1  Conspicuous   absence   of   any provision under CrPC concerning the omissions and errors during   investigation   also   bolsters   the   conclusion   reached herein.

[Source: State by Lokayukta Police vs H Srinivas decided by SC on 18 May, 2018]

Death sentence to remorseless terrorist

A self professed terrorist:

We are unable to accept the submission that the appellant was a mere tool in the hands of the Lashkar-e-Toiba. He joined the Lashkar-e-Toiba around December 2007 and continued as its member till the end, despite a number of opportunities to leave it. This shows his clear and unmistakable intention to be a part of the organization and participate in its designs. Even after his arrest he regarded himself as a “watan parast”, a patriotic Pakistani at war with this country. Where is the question of his being brain-washed or acting under remote control? We completely disagree that the appellant was acting like an automaton. During the past months while we lived through this case we have been able to make a fair assessment of the appellant’s personality. It is true that he is not educated but he is a very good and quick learner, has a tough mind and strong determination. He is also quite clever and shrewd.[104] Unfortunately, he is wholly remorseless and any feeling of pity is unknown to him. He kills without the slightest twinge of conscience. Leaving aside all the massacre, we may here refer only to the casualness with which the appellant and his associate Abu Ismail shot down Gupta Bhelwala and the shanty dwellers Thakur Waghela and Bhagan Shinde at Badruddin Tayabji Marg; the attempt to break into the wards of Cama Hospital to kill the women and children who were crying and wailing inside; and the nonchalance with which he and Abu Ismail gunned down the police officer Durgude on coming out of Cama Hospital.

The saddest and the most disturbing part of the case is that the appellant never showed any remorse for the terrible things he did. As seen earlier, in the initial weeks after his arrest he continued to regard himself as a “watan parast”, a patriotic Pakistani who considered himself to be at war with this country, who had no use for an Indian lawyer but needed a Pakistani lawyer to defend him in the court. He made the confessional statement before the magistrate on February 17, 2009, not out of any sense of guilt or sorrow or grief but to present himself as a hero. He told the magistrate that he had absolutely no regret for whatever he had done and he wanted to make the confession to set an example for others to become Fidayeen like him and follow him in his deeds. Continue reading “Death sentence to remorseless terrorist”