No sanction needed to try public servant under IPC

No sanction is required to prosecute a public servant under the Indian Penal Code (IPC), even if mandatory approval under the anti-corruption law has been refused, the Bombay high court has held.

Dismissing the plea of two senior Small Industries Development Bank of India (Sidbi) officers to discharge them in a case lodged by the CBI, Justice Sadhna Jadhav ruled that they will have to face trial on charges of cheating and criminal breach of trust for the loss caused to the bank. But the judge allowed the prayer of the officers and transferred the case from the special CBI court to the magistrate's court.

"It is clear that refusal to accord sanction for prosecution under the provisions of the Prevention of Corruption Act can't be held to be relevant to try an accused for the offence punishable under the IPC," said Justice Jadhav, while rejecting the plea of the officers, A S Tewari and S V Karade.

The officers' claim that they had been exonerated in a departmental inquiry and the central vigilance commission had agreed with it, failed to impress the HC. "The onus to prove that they had a guilty intention...when the fraudulent transaction had taken place lies on the prosecution, and only because the department has exonerated them on unwarranted grounds, the prosecution can't be denied an opportunity to lead evidence to prove that the accused had the guilty mind and therefore, there was wrongful loss to Sidbi."

The case concerns Sidbi's agreement with Tata Motors, under which the latter's vendors would be paid by the bank, and Tata Motors would then pay the bank. Sidbi would pay Ranflex, a vendor, through cheques. In August 2008, Sidbi lodged a complaint with the CBI after Ranflex said it had not got payments. A probe revealed that Sidbi had made online transfers of over Rs 1.64 crore to a bank account in Thiruppur, which was a fictitious account in Ranflex's name. Tata Motors said it had never instructed Sidbi to make online transfers.

Tewari, Karade and a bank official, who is absconding, along with 10 others were named as accused. The bank refused sanction to prosecute Tewari and Karade on the grounds that the third official was responsible for the alleged fraud. The trial court discharged the duo under the anti-corruption law but framed charges under the IPC. They then moved HC saying they had approved the transactions "in good faith".

The high court said, "Connivance between the officers/accused who made said payments is writ large on the face of the record. Special CBI court had rightly observed that...criminal conspiracy to cheat the bank... can't be treated as an act done in good faith."

Source - TOI

Supreme Court flays the government for turning to judges whenever in problem

Source - http://www.india.com/loudspeaker/supreme-court-flays-the-government-for-turning-to-judges-whenever-in-problem-101283/

New Delhi, Jul 23: Criticising the government for substituting judges with subject experts without legal background in tribunals under its control, the Supreme Courtsaid that whenever it is confronted with contentious issues it knocks at the doors of the court for their resolution. “Judges may not be expert but whenever problem arises they (government) come to judges either by way of (setting up) Commission or (approach) Court to decide the issues” said the apex court constitution bench of Chief Justice R.M. Lodha, Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice A.K. Sikri and Justice Rohinton Fali Nariman.

The court was apparently referring to numerous instance when government has moved the top court for the resolution of contentious and delicate issues which have political and other implications. The court said this as it reserved its verdict on a batch of petitions challenging the validity of the National Tax Tribunal Act and Article 323-A of the constitution providing for administrative tribunals, and Article 323-B providing for tribunals for all other matters including tax, foreign exchange, import and export and customs.

The government wants to do away with the “artificial knowledge” of the judges which they gain from decades of their practice of law first at the bar and later on bench, and substitute them on the tribunals with non-judicial members having “specialised knowledge” bereft of any legal grooming, the court said.

The scathing observations came as senior counsel Arvind Dattar told the court that the Income Tax Appellate Tribunal and National Tax Tribunals while deciding the tax matters were also deciding the matters related to the Hindu succession law. The court asked Dattar to provide with some of the cases where tax tribunal has decided the tax matters involving the Hindu succession law.

Dattar who appeared for Madras Bar Association told the court that while Article 323-A of the constitution had sought to eliminate judicial review for the executive actions in service matters, Article 323-B “enabled the creation of parallel judiciary under the executive control.” He said that at any rate Article 323-A “should be struck down” and Article 323-B must be interpreted so that the word “Tribunal” only covers tribunals that are part of the judiciary like Rent Control Tribunals, Motor Vehicles Tribunals, Labour Tribunals etc.”

Assailing the Centre’s stand that tribunals were created because high courts were clogged with the huge pendency, Dattar said that “clogging” of the high courts could not be a ground for creating a judicial system out the constitutionally mandated judiciary with defined hierarchy.

Dattar wondered whether same logic could be extended to have an “alternative institutional mechanism” for parliament as its functioning or lack of it has been criticised variously. The Chief Justice Lodha in a mocking observation said that tribunals that were being constituted were not independent what to talk of being autonomous.

Chief Justice Lodha’s scathing observations came as Solicitor General Ranjit Kumar while defending the dispensation of justice by the tribunals referred to a British judgment supporting tribunals. Ranjit Kumar landed in difficulty as British judgment stressed on the “autonomy” of the tribunals and not dispensing with the “constitutional role of the High Courts – a position that is non-existent in Indian context.

Earlier in the course of the hearing the court told senior counsel K.V. Vishwanathan that deciding an appeal involved a complex knowledge of law which was beyond the comprehension of a chartered accountant.

“How a CA who is not qualified in law, can help in the determination of substantial question of law, and to spell out what is the substantial question of law was beyond their comprehension”, the court told Vishwanathan who had appeared for the Instituted of Company Secretaries of India.