Welcome to All

DECISION MAKING

&

Precautions against criminal cases

On IRSE Day

rajendrasaxena@gmail.com

IT major Wipro's chairmanAzim Premji said few days back

"complete absence of decision making" in the government is the biggest concern for the country and warned that growth would suffer if prompt corrective action is not taken. 

"I think the biggest concerns are governance issues... complete absence of decision-making in the government...",

Psychological Fears in Decisions Making

Agencies waiting with net to catch

Account Vigilance Audit CBI

To assist all above agency ,there is RTI -

General

Most straight forward person can land in problem (if his star are bad) for none of his faults

He may be selected for random nationwide raid Programme

An enquiry of some of his associate may lead to him-2G case

This lecture will create awareness about provision of LAW & precaution required in decision making

In spite of it , if somebody lands in problem then how to defend in court of LAW

Tender & contract is most problematic for civil engineers & their decision in dealing tender cases can create problem for them

What Not to Do in Tender & contracts

Execute work in good faith without sanction or estimate or tender Award the contract on exorbitant rates Execution of substandard work- quality check Payment for works not executed –overpayments ,false payments Manipulation in tender such as Exaggerating performance of favorite tenderer & failures of Rivals Projecting artificial urgency –time is valuable Doctoring briefing note to project someone as most suitable Bypassing lowest bidder without convincing reasons Call negotiation for reduction of rates but accepting it after

negotiation even if no appreciable reduction achieved in negotiation

Non application of mind in tender Acceptance Do a thing for which your conscious is not permitting-Right or

wrong –conscious will give you one signal –respect or overshoot

Professional Hazards

During course of duty , an officer is exposed to situation where several vested intrests are involved & his decision affect adversally some body or other .

Such disgrunteled element try to level score with such officer by reporting various action either to vigillence or to CBI

This results in many false complaints against officers In enquiry of any decision ,always two views can be

taken as only thin line exist between Railway intrest & self interest

As such officer is subjected to harrasment

Common mistakes done by most of us

In our zeal ,sometime we take out of way decision to expedite some work without recording proper reason in detail on file

Very innocent action - depositing license fee by railway staff instead of by licensee resulted in a CBI case on WR & finally conviction .

Slackness in ensuring quality in Level xing work resulted in CBI case .all such thing are treated as fraud

A fraud case leads to raid & raid leads to another case ie Disproportionate Asset case

Asset-having assets is not a crime-We do’ not keep proper record of our financial assets resulting difficulties in case of problem.

Few Recent headlines of Newspapers

Retired GM of NWR raided ( feb 2010) A Chief Personnel Officer, North Western Railway, Jaipur for possession of

disproportionate assets to the tune of Rs. 2.69 crore.(feb 2002)) CBI files charge sheet in RRB scam ( sept 2010)(SCR) CBI arrests Railway engineer in bribery cases (21st sept 2010)(NR) Charge sheet against 14 railway force policemen (2nd oct 2010)(CR) RPF officer booked for property worth crores ( oct 2010)(CR) CBI busts railway ticket racket, catches 3 officials (oct 24,2010) CBI traps SECR law officer accepting bribe (nov 10.2010) he then Senior Cashier of Western Railway convicted for causing loss of Rs.41.70 lacs

to the Western Railway.  Dec 2010 CBI raids Retired -RPF officer's houses over DA case (mar 2011)-WR CBI court convicts Railway official for siphoning off funds (SR) apr2011 Railway officer arrested for taking bribe of Rs 50,000 ( CR) jun11 A case has been registered against Chief Engineer,(Const) SWR, Hubli jun 2011 CBI raids Rajasthan railway stations (NWR) jul2011 CBI raid 5 trains for misuse of reservation quota –Aug 2011

A Press Report (source- Railway Board Vig Directorate)

http://www.dnaindia.com/india/report_over-8500-railway-officers-booked-for-fraudulent-practices_1239563

New Delhi: In a drive to check corruption and bring in transparency in its administration, Vigilance Directorate of the Railway Board stated that, 8,638 officials including 117 gazetted ones, were booked for various charges

Of the staff booked for fraudulent practices, a maximum number of them -- 1,403 -- including 1,395 non-gazetted and eight gazetted officers were from South Western Railway,followed by 1,334 in Northern Railway, 760 in Southern Railway and 728 in North Eastern Railway zone.

Railways, in line with the instructions of Ministry of Home Affairs, every year prepare two lists -- Agreed and Secret list --

The Agreed List, prepared in consultation with CBI, includes names of officers whose integrity are doubtful. While, the Secret List are of those officers of doubtful integrity on the basis of accepted inquiry reports or proved charges of corruption.

"Persons in Agreed and Secret List are not assigned any sensitive posts and their working is kept under constant surveillance,

CBI CASES

Fraud cases - complainant is department

Disproportionate Asset case – source observation – either from vigillence or from way of living.General survey for Nation Raids – No arrest in such cases

Trap cases – complainant is a person who has a grudge with you

All these case comes under PC act 1988

Fraud case

The complaint is by department Source information Many time case are based on perception of gency

like CAG – Reliance KG basin , 2G , CWG etc Many time executive act out of way in interest of

work work but other side perceive it as vested interest Time is not evaluated –less time at higher cost -

money is evaluated Fraud leads to Raid & raids lead to asset case Our asset management is poor We are careless in keeping records of financial

assets

Common mistakes done by most of us-Assets

We conviniently forget to keep proper record of i)Marriage gifts ii)Maturity value of NSC or other financial instruments iii)Sale proceeds of any assets like flats etc iv)Gains from share Market v)Any awards ,honrarium etc vi)Gift received by children or spouse on birthday ,marriage

anniversary & their investments All above aspects results unknowingly in converting

white money in black money We habitually preserve all cash memo of our expenditure & feel

elite in using credit cards on entertainment expenditures

Management of Money is essential

Therefore Always keep record of your income & pay your tax

so that hard earned money does not get converted in black money for petty saving in tax

Always prepare a balance sheet along with tax return even if it is not mandatory

Declare your assets(with balance sheet as now tax authority do

not accept balance sheet) in annual property return

Where you want to be ?

even straight officers suffers a lot because some time their decision go against vested interest of few persons & some of these disgruntled element put a complaint against them .

So why not be ready for defense Unfortunately in CBI cases ,investigation starts after

Raids & registration of case causing harrasements Raid can happen for any reason . Some of your

associate is being investigated & your name crop up –kanimozhi case

Ignorance is no Defense

Many time ,a man is not able to defend as he is ignorant about provisions of LAW & had not kept proper records (of assets , reasons of decisions etc)

Better hire professional like CA or Income tax consultant for keeping up proper financial records .This investment will pay rich dividends

Every govt person should know salient provisions of Prevention of corruption act 1988

Prevention of corruption act 1988- Various relevant provision

Section 7 –Public servant taking gratification accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act ( No demand but agreed to accept is sufficient to convict).

Section -8. Taking gratification, in order, by corrupt or illegal means, to influence public servant-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 corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act,

Section -9. Taking gratification, for exercise of personal influence with public servant-

shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine

Prevention of corruption act 1988Punishments

Section10. Punishment for abetment by public servant of offences defined in section 8 or 9

Whoever, being a public servant, in respect of whom either of the offences defined in section8 or section 9 is committed, abets the offence, whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall

be not less than six months but which may extend to five years and shall also be liable to fine.

Section14. Habitual committing of offence under sections 8, 9 and 12 -shall be punishable with imprisonment for a term which shall be not less than two years but which may extend to seven years and shall also be liable to fine.

Prevention of corruption act 1988

13. Criminal misconduct by a public servant-(1) A public servant is said to commit the offence of criminal misconduct,- (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration

Section 13(1)d ii - by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

13 (1)–(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession property disproportionate to his known sources of income.

Section 13(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

Section 15. Punishment for attempt Whoever attempts to commit an offence referred to in clause (c) or clause (d) of

sub-section(1) of section 13 shall be punishable with imprisonment for a term which may extend to three years and with fine

Prevention of corruption act 1988

19.Previous sanction necessary for prosecution (1) No court shall take cognizance of an offence punishable under

section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction

Such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed

No finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

Section 20 –presumption if recovery is with accused

Prevention of corruption act 1988

Section 20. Presumption where public servant accepts gratification other than legal remuneration

(1) Where, in any trial it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be

(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.

Avoid cases

Prevention is better than cure How Do not indulge in any such activity willfully which can

create problem for you in life Do not be there where you should not normally be

like contractor residence , contractor car etc Do not talk on phone about money Always record full reason of taking particular

decision in file

Be prepared for defense in case of casuality (contd)

Fraud – follow rules so that you can defend your action on later date . If rule is bypassed ,record reasons

Dissproportinate Assets – keep your account clear . Maintain cash book .it is must . Keep record of marriage gifts & gifts received on various occassions by you ,your spouse & childrens –Need not keep record of expenditure – avoid using credit card

Do not think that you are smartest person in the world & other are fools .

Always Be prepare for visit of investigation agency next morning ( they may not come but what is harm in self defense)

How to defend the criminal cases in court

All the case are fought on fact & legality. Facts are provided by you & legal aspect is taken care of by your

Advocate. Therefore both have to work hard for

defending a case

Various stage of cases

Registration of FIR Investigation- to be ordered by SP Report to SP through legal deptt Sanction for prosecution Registration of case & submission of Charge sheet Recording of evidence Argument Judgement

Various stage of case

After registration of case for investigation ,a thorough investigation is done

Witness statement are taken by I.O. At last , accused is asked to give his defense These fact are examined by legal deptt of CBI &

based on evidence on record ,it is decided whether it is fit case for trial

If not , case is closed .if Yes ,regular case is registered

Sanction under section 19

In case CBI decide to prosecute the charged official , sanction for prosecution is asked from the appointing authority

If appointing authority ,on the basis of facts on record ,accord his approval for prosecution ,then charge-sheet is filed in the court . If he does not ,closure report is filed in court

How to defend your case on various stage

Stage 1 – Receipt of charge sheet Stage 2- framing of charge & examining of

documents Stage 3 –Recording of evidence Stage 4 Statement of the Accused under section

313 of Cr P C of 1973 Stage 5 Argument under section 314 of Cr P C of

1973 Judgment & appeals if necessary

Stage 4 Statement of the Accused under section 313 of Cr P C of 1973.

After Recording of evidence (prosecution as well as defense) is over ,the accused is given a chance to explain his point of view .

This is the only time when accused is permitted to speak in court . A written statement can also be given

Although there is not much evidence value of this statement ,However facts, if any ,not yet come in notice of court, are brought in notice of Judge , he may consider them while making his final judgment.

Accused can also act as own witness under oath .here he will be cross examined also. This has the evidential value .Howeve the accused can not be forced to answer such question which goes against him.

Stage 5 Argument under section 314 of Cr P C of 1973

After recording statement of the accused, Argument are held between prosecution & defense advocate orally in court . Here various decision ( with citation) of high court/supreme court are quoted by both the party to support their arguments

The Judge notes down salient points of arguments.

To avoid the omission or over looking of any crucial point during oral arguments , In addition to Oral argument , a written argument under section 314 of CR PC (optional) should also be submitted before conclusion of oral arguments as this is the only defense paper which remain on record which may help you in appeal in case judgement is gone against you.

Judgement

Based on the evidence on record , argument ,counter argument & laid down legal principles , Hon Judge Finally announce his final judgement

If acquital- then happy ending If conviction –quantum of sentence & fine is

also announce either on same day or next day

Appeal in high court

In case due to any reason, judgment is against you & then appeal is filed in high court ,

Written argument submitted in session court will be helpful as appeal in high court is decided on the bases of documents on record . No new documents or witness is permitted in high court .

Only oral arguments are again done in high court where your advocate has to explain where Judge in session court had gone against the evidence on record & sprit of settled law while convicting you.

FACT YOU WILL LIKE TO KNOW

The complainant & Investigation officer are interested witness . Their evidence value is low .Independent witness are necessary to establish the case

Panch witness is independent witness & his evidence value is very high .Cases are lost if independence of Panch is questionable like known to police or complainant or habitual panch or submissive

Case will continue even if the complainant become hostile witness Many case are lost due to defective sanction order for prosecution like

non application of mind Tap recorded evidence are not acceptable as primary evidence .These

are used as corroborative evidence only

No document can be introduced later on if not cited initially in charge sheet.There are many laid down procedure for collecting evidence like telephone recording ,recording of conversation ,voice sample ,writing Panchnamas etc.if they are not followed , evidence is not acceptable

FACT YOU WILL LIKE TO KNOW

1988 act is spl act & over ride general provisions of law ,Cr PC etc unless silent

In DA case ,it is accused who has to prove his innocense wheras in all other case prosecution has to prove charge

Suspension of sentence is different from suspension of conviction

Every acceptance of illegal gratification whether preceded by demand or not, would be covered by Section 7 of the Prevention of Corruption Act, 1988

Some common aspect for defense

CBI has to prove case beyond reasonable doubt . So create doubt in their story

The complainant & Investigation officer are interested witness . Their evidence value is low .Independent witness are necessary to establish the case.

Panch witness is independent witness & his evidence value is very high .Cases are lost if independence of Panch is questionable like known to police or complainant or habitual panch or submissive

Many case are lost due to defective sanction order for prosecution like non application of mind ,so find fault in sanction

Tap recorded evidence are not acceptable as primary evidence .These are used as corroborative evidence only

There are many laid down procedure for collecting evidence like telephone recording ,recording of conversation ,voice sample ,writing Panchnamas etc.if they are not followed , evidence is not acceptable . Learn about them & co- relate in your case

Read judgements of supreme courts & extracts favorable to your case may be shown to your lawyer

Case history in PC act

Krishna Ram vs State of Rajasthan  [SUPREME COURT OF INDIA, 17 Mar 2009]

Criminal – Prevention of Corruption Act, 1988, s. 13(1)(D) r/w 13(2) – Appeal against conviction and sentence – Held, once it is proved that the money was recovered from the possession of the appellant, the burden of presumption as contemplated under s. 20 of the P.C. Act, 1988 shifts upon the appellant,

which he could not rebut through cross-examination of the prosecution witnesses or by adducing reliable and convincing evidence to prove that DW-1 advanced Rs.500/- as loan to the appellant through the complainant – High Court has rightly concluded that the explanation given by the appellant was not probable and reasonable – Appeal dismissed

Case history- sanction & improper investigation

State of Madhya Pradesh vs Virendra Kumar Tripathi  [SUPREME COURT OF INDIA, 27 Apr 2009]Criminal – Prevention of Corruption Act, 1988, ss. 13(1)(e) r/w 13(2), 19(3)(1) and 17 proviso II – Circular D/- 09-02-1988 – Acquisition of assets disproportionate to the known sources of income – Framing of charge – Discharge claimed – Ground, investigation not conducted by the Authorized police officer, and sanction was not accorded in accordance with law – Accused submitted that sanction was to be accorded by the law Department after consulting the parent department of the applicant/accused i.e. Forest Department which was not done – Trial Court rejected the submissions – Appeal there against, allowed by High Court –

Order of High Court, whether proper? – Circular, provisions of Act esp. 19(3)(1), perused – Finding, advice of concerned Department was necessary – Whether absence of advice renders the sanction inoperative? – No – Undisputed fact, sanction was given by Department of Law and Legislative; State Govt. had granted approval of prosecution; grant of sanction was in the name of Governor of State –

Advice at the most is an inter-departmental matter – Court further observed that HC has failed to consider the effect of s. 19(3) wherein inter alia it is provided that finding etc. of Special Judge shall not be interfered with on ground of irregularity in sanction unless there is failure of justice – Prejudice or failure of justice not pleaded – Further Court noted that question of failure of justice cannot be entered into at the stage of framing of charge – Whether investigating officer was Authorized to conduct the investigation? – Yes – Deputy Superintendent of Police who conducted investigation in instant case, is duly uthorized officer u/s. 17© of Act – Appeal allowed.

Case history -trivial

A.Subair vs State of Kerala  [SUPREME COURT OF INDIA, 26 May 2009]Criminal - Prevention of Corruption Act, 1988, ss. 7, 13(1)(d) r/w 13(2) and 20 - Conviction and sentence by Trial Court - Confirmation by High Court - Whether conviction proper or whether there is sufficient legal evidence on record to bring home the guilt of the appellant for the offence u/ss. 7 and 13(1)(d) r/w 13(2)? –

Held, No - Provisions perused, evidence of PWs examined - Best evidence that of complainant not tendered in evidence by the prosecution; no explanation by investigating officer as to why complainant was not tendered in evidence; in absence of examination of the complainant, there is no substantive evidence to prove the factum of demand; best evidence was thus unavailable –

Factum of demand thus remained unproved; thus offence u/ss. 13(1)(d) r/w 13(2) not made out –

(i) HC raised presumption available u/s. 20 of Act for offence u/s. 7 - Whether justified? - Held, No - S. 20 perused - When alleged gratification is too trivial, Court is not bound to draw presumption; in instant case amount involved was Rs. 25 only, which Court observed was trivial - Conviction and sentence set aside - Appeal allowed.

Case history –excuse of loan

Mota Ram vs State of Haryana  [SUPREME COURT OF INDIA, 28 May 2009]Criminal - Prevention of Corruption Act, 1947, s. 5(2) - Indian Penal Code, 1860, s. 165 - Conviction by Trial Court - Upheld by High Court - Whether proper? - Held, Yes - Appellant employed as Ward Servant in Primary Health Center; misrepresented to complainant as to that he would help him get selected for such post if he pay him Rs. 2000/-; amount was paid, further demand was raised for Rs. 4000/- which was also paid; complainant was not selected, he demanded back the money which was repaid sporadically - Findings of facts by Courts below upheld –

Contention was raised that the amounts given were repayment for the loan taken from the complainant - No suggestion had been given and made to the complainant that he was in a position to lend money to the appellant; moreover in cross examination the complainant stated that he had borrowed the amount from his brother in law - Conviction and sentence upheld - Appeal dismissed.

Case history -Precedence

M. Radha Krishna Murthy vs AP -6th march 2009 The trial Court found the evidence to be acceptable and directed the conviction. In appeal the High Court held that since part of the prosecution version about demand and acceptance has not been proved, the remaining part of the case cannot be accepted. It was pointed out that according to the prosecution an amount of Rs.4,000/- was demanded and accepted and the first vital part of the prosecution version was that payment of Rs.2,000/- said to have been accepted by the respondent is not proved, therefore, when the part of the same is not accepted the remaining part of the case shall also not be accepted.

Placing reliance on a decision of this Court in Hari Dev Sharma v. State (Delhi Admn.) (1977 (3) SCC 352) the conviction as recorded was set aside. The High Court found that the prosecution case was that there was demand and an amount of Rs.2,000/- was paid on 13.6.1989 which has not been proved and with regard to the trap conducted by the prosecution while the accused was receiving Rs.2,000/- from P.W.1 on 19.6.1989. Even if the trap is proved beyond all reasonable doubt, the prosecution version cannot be upheld in view of the aforesaid decision of this court.

SC observation-"Precedent should be followed only so far as it marks the path of justice

In that view of the matter the judgment of the High Court is clearly unsustainable and is set aside and that of the trial Court is restored

What one should do

Be happy Do not get worried unnecessarily . You are not that

unlucky 1%. But be prepared with defense in case of

eventuality Enjoy life & have a Bright Future

Smile like Rose