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|May 1, 2001||
Needed: legal enlightenment, please
Ultimately, the Congress had to eat crow. When Parliament adjourned sine die on April 27, Sonia and her sycophants had not got either the NDA government's resignation, or a Joint Parliamentary Committee on Tehelka, or even those half-baked documents known as FIRs against the "villains" of the Tehelka piece. And George Fernandes continuing as convener of the NDA was the non-iodised salt in the wound. It truly was retribution for the rumbustious, rowdy rumpus the Opposition parties had created right in the sanctum sanctorum of the Lok Sabha for two full weeks.
Symptomatic of the way the Opposition played out its innings in the "Obstruct Parliament" game was a hit by Somnath Chatterjee that must be the most mysterious stroke in criminal history. As quoted in The Telegraph of Kolkata in its edition of April 18, the distinguished CPM member of the Lok Sabha said, 'Though we are not opposed to the JPC, we want the guilty to be punished.'
That last sequence is as classic an example as you will ever get of putting the cart before the horse. One had all along believed that the suspect or the accused is prosecuted first and the courts decide whether s/he is innocent or guilty. But the eminent comrade wanted it otherwise. Having pronounced Laxman, Jaitly and others in the Tehelka tapes as 'guilty' without so much as taking them to court through any inquiry, he wanted the NDA government to punish them! One didn't know that in Jyoti Basu's version of Marxist ideology even the judicial process withers away.
Laloo Yadav not only demanded summary punishment but laid out its nature as well. On television he proclaimed that the 'culprits' had been seen taking money by the whole nation and therefore did not warrant any inquiry of any kind. In fact, the cunning king of Bihar said that the only point of debate was where exactly the 'traitors' seen on the Tehelka tapes should be exiled. The Congress has not been much behind in this thirst for action first, debate later. 'File FIRs first! Why doesn't government file FIRs against them?' thundered Kapil Sibal, the Sonia attorney with a perpetual smile or snigger.
Before discussing that demand, the boss of Bihar needs to be reminded that though a certain William Jefferson Clinton was not caught by the camera with his pants down, the whole of the USA and the rest of the world were certain that he had had oral sex more than once in the revered Oval office in White House, probably just a 'press' away from the nuclear button. Yet, the US senate defeated the impeachment motion brought against their president on charges of perjury. Yet, moreover, the entire Indian Parliament gave that same president a memorable standing ovation after which a backward class female MP of ours shook his hand for what seemed an eternity and then proclaimed that she would not wash her hands for quite a while. But were Yadav an American senator -- what a thought! -- he would, by his current rhetoric, have held Clinton guilty of treason by 'exposing' the American nation to nuclear threats, and demanded his banishment to outer space.
Now to Sibal's FIRs.
Construed to denote 'First Information Report,' the term actually means (under Sections 154 and 155 of the Criminal Procedure Code, 1973) the first statement of a person lodging information in a police station about the commission of a crime. Required to be reduced to writing, it is the complaint that enjoins the police officer in charge to observe certain duties and formalities. If the offence reported is cognisable, the police can start investigations without the order of a magistrate; if the offence is non-cognisable, they cannot investigate without the order of a magistrate. What Sibal has been demanding therefore is for the NDA government to set the police and criminal law in motion.
However, according to several judgments cited in the All India Reporter Manual, Volume XIII, an FIR is not an indispensable requisite for the investigation of a crime. Further, the courts have also held that an FIR may be given by anyone. Yes, anyone! Thus, since the NDA government was not willing to file FIRs against Laxman, Jaitly and other civilians in the Tehelka affair, the Congress party was at liberty to do so. Why hasn't it done so even a month and more after the Tehelka tapes exploded on the television screen?
Let's examine, nevertheless, what Laxman & Co can be prosecuted for. The most obvious offence is under Section 9 of The Prevention of Corruption Act, 1988. That Section reads as follows:
'Whoever accepts or obtains or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, any public servant whether named or otherwise to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and shall also be liable to fine.'
To determine their guilt under the above Section 9, it will have to be established without a reasonable doubt that both, Laxman (who accepted money) and Jaitly (who agreed to accept money) did so as 'a motive or reward' for using their personal influence to facilitate the fictitious West End Co to obtain a favour from Brajesh Mishra or George Fernandes or any such public servant. To do so, the edited tapes of Tehelka and their edited conversations (some of which don't even make grammatical sense) are not at all adequate. Instead, what would be required is an intelligent, painstaking study of the entire sequence of conversation between the parties concerned. Now that is a Herculean task and the ordinary police cannot be expected to perform it unless it is monitored by a judicial commission of the kind set up by the NDA government.
Further, whether the Prevention of Corruption Act applies to even fictitious 'favours' from public servants is a complex legal point and cannot be left to the ordinary police investigating an FIR or even to a multi-member JPC.
What seems a veritable can of legal worms is that while Laxman & Co could be prosecuted for the offence of accepting gratification under Section 9, at least this writer does not find in that act any section that will penalise Tehelka (posing as West End Co) for giving gratification to Laxman & Co!! This anomaly that reduces the law to an ass arises because neither Laxman nor Jaitly is a 'public servant' as defined in Section 2 of that Act, and, therefore, any private party giving any gratification to them cannot be deemed as having committed any of the following offences listed under that Act:
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