Government Decision Making and Precautions against Criminal Cases

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 vigill
ence 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 intr
est & self interest
 As such officer is subjected to harrasment

Common mistakes done by most of us

 In our zeal ,som etim e 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 probl
em.

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 s
urvey 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 record
s .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 1988
Punishments

 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.

 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

 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

 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 reas
ons
 Dissproportinate Assets – keep your account clear .
Maintain cash book .it is must . Keep record of mar
riage gifts & gifts received on various occassions by
you ,your spouse & childrens –Need not keep recor
d 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 har
m 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 fro
m the appointing authority
 If appointing authority ,on the basis of facts
on record ,accord his approval for prosecutio
n ,then charge-sheet is filed in the court . If h
e 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 P
anchnamas 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 prose
cution 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

Government Decision Making and Precautions against Criminal Cases

Government Decision Making and Precautions against Criminal Cases

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