- 1.
- How to handle criminal cases in the court of Law
2. After all ,Why this lecture ?
- 99% of Railway employee have no criminal cases against
them.
- 99% of Railway employee also not have any vigilance case.
- This indicate that , Railway employee & officers are
generally straight forward irrespective of perception of
public
- But even most straight forward person can land in problem if
his star are bad
3. 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
asonly thin line exist between Railway intrest & self
interest
- As such officer is subjected to harrasment
4. Few Recent headlines of Newspapers
- Nation-wide Raids against corruption inJune 2009 ,
- XEN & Dy CE con convicted by CBI court Madurai on9 thjunein
Southern Railway
- An Executive Engineer of Northern Railways arrested by CBI15
thjuly 2009
- The divisional engineer arrested by CBI in Tinsukia division of
NF Railway10 thjuly 2009
- CBI arrests a Senior Inspector of Railway Protection Force22
ndjuly 2009
- CBI probing supply of escalators, elevators for MRTS stations25
thjuly Hindu
5. Few News paper reports of last one year
- Nation wise raids by CBI on central govt officerincluding one
RRB Chairman.
- CBI Registered case againt 2 oficer in SR
- CBI register case against a officer in RCF
- CBI register fraud case in Danapur divn
- CBI registered a case against Rly officer inBMRCL , NWR
,SWR,ECR ,WR ,CR & NER
- All this result in harrassment
6. A Press Report(source- Railway Board Vig Directorate)
http://www.dnaindia.com/india/report_over-8500-railway-officers-booked-for-fraudulent-practices_1239563
Monday, March 16, 2009
- 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 officers including117 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, f ollowed 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,
7. Case refered by Govt to CBI This information was given by the
Minister of State in the Ministry of Personnel, Public inRajyasabha
on 10 thjuly 2009 26 25 51 2008 12 31 43 2007 2 21 23 2006 Invest
pending Case investigated Case refered Year 8. CBI CASES
- Fraud cases - complainant is department
- DisproportionateAsset case source observation eitherfrom
vigillence or from way of living.General survey for Nationby 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
9. Common mistakes done by most of us
- Fraud - In our zeal ,sometime we takeout of waydecision to
expedite some work without recording proper reason in detail on
file
- Fraud- Very innocent actionlike depositing license fee by
railway staff instead of by licensee resulted in a CBI
caseonWR
- Fraud- Slackness in ensuring quality in Level xing work
resulted in CBI case
- Asset - We do not keep proper record of our financial assets
resulting difficulties in case of problem.
10. Common mistakes done by most of us - Assets
- We conviniently forget to keep proper record of
- 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
- vii) We habitually preserve all cash memo of our expenditure
& feel elite in using credit cards on entertainment
expenditures
11. Management of Moneyis essential
- All above aspects results unknowingly inconverting white money
in black money
- Always keep record of your income & pay your tax so that
hard earned money does not get converted in black moneyfor petty
saving in tax
- Alwayspreparea balance sheet along with tax returneven if it is
not mandatory
- Declare your assets (with balance sheet as now tax authority do
not accept balance sheet)in annual property return
12. Developments of Last one year
- Case closed after investigation against CR officer
- Case won in trial by NWR Officer
- Case is won by WR& CRofic ialafter trial
- Case is won by DOT official after trial in mumbai
- Case won by 2 income tax officer in mumbai after trial
- Case lost by C rly official inM umbai & punished for 5 yr
imprisonment
- Case lost by 2 SR officer in trial & 2 yr RI is
imposed.appeal is being heard on 7 thAug 2009
13. Where you want to be?
- It is true that No case may be initiated against any ofRailway
officeras99% of themare straight forward officer
- But even straight officers suffers a lot becausesome timetheir
decision go against vested interest of few persons & some of
thesedisgruntled element put a complaint against them .
- So why not be ready for defense
- Unfortunatelyin CBI cases , investigation starts after Raids
& registration of case causing harrasements
14. Ignorance is noD efen s e
- 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 hi r e 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 ofPrevention
of corruption act 1988
15. Avoid cases
- Prevention is better than cure
- Do not indulge in any such activitywillfullywhich 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
16. B e 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 )
17. How todefendthe criminal cases in court
- All the case are fought onfact & legality .
- Factsare provided by you &
- legal aspectis taken care of by your Advocate.
- Therefore both have to work hard for defending a case
18. Prevention of corruption act 1988 -Various relevant
provision
- Section 7 Public servant taking gratification accepts or
obtains or agrees to accept or attempts to obtainfrom 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 imprisonmentwhich shall be not less
than six months but which may extend to five years and shall also
be liable to fine
19. Prevention of corruption act 1988 Punishments
- Section 10. 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 .
- Section 14. 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.
20. 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
whichshall be not less than one year but which may extend to seven
years and shall also be liable to fine.
- Section15. 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
withimprisonment for a term which may extend to three years and
with fine
21. 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
- S uch sanction shall be given by that Government or authority
which would have beencompetent to remove the public servantfrom 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
22. Prevention of corruption act 1988
- Section20. Presumption where public servant accepts
gratification other than legal remuneration
- (1) Where, in any trial it is proved that an accused person
hasaccepted or obtained or has agreed to accept or attempted to
obtainfor 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
gratificationor 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.
23. Various stage of cases
- Investigation- to be ordered by SP
- Report to SP through legal deptt
- Registration of case & submission of Charge sheet
24. Various stage of case
- After registration of case for investigation ,a thorough
investigation is done
- Witness statement are takenby 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
25. Sanction under section19
- 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 approvalfor prosecution ,then charge-sheet is filed in
the court . If he does not ,closure report is filed in court
26. How to defend your caseon various stage
- Stage 1 Receipt of charge sheet
- Stage 2- framing of charge & examining of documents
- Stage 3 Recording of evidence
- Stage 4 Statement oft he Accused under section 313 of Cr P C of
1973
- Stage 5 Argument under section 314 of Cr P C of 1973
27. Stage 1- Receiptof Charge sheet How to defend
- All the Panchnama ,FIR & statement of witness are to be
studied word by word & various point in favor & against are
to be analyzed by the accused.
- Based on Analysis , a broad strategy for defense is to be
prepared by Lawyer
- Lotof time ( 2-3 years)is available between filing of charge
sheet & framing of Charge.This time should be utilized in
reading the case , consulting lawyers , reading various high court
,supreme court judgments & extracting judgments similar to ones
case
28. Stage 2 . Framing of Charge & examination of documents
under section 294 of Cr P C of 1973
- Framingof charge is first stage of start of trial.If one feel
that his case is strong & credible evidence are not against him
, a discharge application can be filedbefore framing of charge
- The copies of the documents are available alongwith charge
sheet also but here original document are shown.
- Only those documents should be accepted which are either
harmless or in favor of case .Even Panchnama can be denied .
- All the documents can be denied if purpose is to prolong the
case .
29. Stage 3 Recording of evidence
- Based on the statement givenby witness to police ,a
questionnaire is to be prepared for cross examinationof witness. It
should be further supplemented during deposition by witness in the
court .
- All important points of deposition need to be noted .
- Purpose of cross examination isnot to prove the witness liar
but to extract an answer which are favorable to you .
- These answers finally becomes basis for argument as court
recognizes only deposition of witness given in court(Not the
statement given to police during investigation)
30. Stage 4 Statement oft he 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
- Althoughthere is not much evidence value of this
statement,Howeverfacts, if any, not yet come in notice of court,
are brought in notice of Judge , he may considerthemwhile 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.
31. 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 pointsof 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 argumentsasthis is the only
defense paper which remain on record which may help you in appeal
in case judgement is gone against you.
32. Judgement
- Based on the evidence on record , argument ,counter
argument& laid down legal principles , Hon Judge Finally
announce his final judgement
- Ifacquital- then happy ending
- Ifconviction quantum of sentence & fineis also announce
either on same day or next day
33. 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 courtwill be helpful as
appeal inhigh court isdecided 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
youradvocate has to explain where Judge in session court had gone
against the evidence on record & sprit of settled law while
convicting you.
34. FACT YOU WILL LIKE TO KNOW
- The complainant & Investigation officer areinterested
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 ofP anch 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
prosecutionlike non application of mind
- Tap recorded evidence are not acceptable as primary evidence
.These are used as corroborative evidenceonly
- No document can be introduced later on if not cited initially
in charge sheet . There aremany 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
35. 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
36. Common problem faced by accused
- You are placed under suspension ,so your pass ,salary becomes
half ,your DOT phone get disconnected
- No money is available for defense asall bank accounts are
seized & salary is half due to suspension-No money when you
need it most
- Advocates tries to take advantage of your ignorancedemanding
huge money at every stage
- Your colleague starts maintaining distance from you
- A depression is set in you & your family due to uncertain
future
- Be patient as after every night ,day comes
37. Case history in PC act
- Krishna RamvsState 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
38. Case history- sanction & improperinvestigation
- State of Madhya Pradeshvs VirendraKumarTripathi [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 uthorized 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 FurtherCourt 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.
39. Case history -trivial
- A. Subair vsState ofKerala [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 ofcomplainant not tendered in evidenceby 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.
40.
- This presentation is prepared justto make you conversantvarious
provisions of LAWa ndaboutCare required to be takeninoffice work
&management of your Money So that No problem is faced
justbecause of careless ness
- Do not walk knowingly in problem.
- butif you landed in problem & needany help or have
anyquarry ,you are most well come( [email_address] )
41. Are you interested to proceed further
42. Trap cases
- Every acceptance of illegal gratification whether preceded by
demand or not, would be covered bythe Prevention of Corruption Act,
1988 & punishment is 6 monthto 7 year and fine
- Complaint is to be verifiedin trap cases in presence of
independant witness
- Then actual incidence ie acceptance of money is to take place
in presence of independant witness
43. How to avoid Trap cases
- Trap do notaccept money from any one.
- Never meet suspected persons at his place or in his car or any
other place where you have no reasonsfor being there.
- Never talk about money either on phone or in person with
suspected persons
44. How to defend trap case
- If money is recoverd from your possession ,you have to explain
how it reached there otherwise under section 20 ,it is presumed
that you have accepted the money. Explanation should be credible
becausemere acceptance of money even if there is no demand is
sufficient to convict you
45. Some common aspect for defense
- CBI has to prove case beyond reasonable doubt . Socreate doubt
in their story
- The complainant & Investigation officer areinterested
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 ofP anch is
questionable like known to police or complainant or habitual panch
or submissive
- Many case are lost due to defective sanction order for
prosecutionlike non application of mind,so find fault in
sanction
- Tap recorded evidence are not acceptable as primary
evidence.These are used as corroborative evidenceonly
- There aremany 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 & extractsfavorable to
your case may be shown to your lawyer
46. Case history excuse of loan
- MotaRamvsState ofHaryana [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.
47. Case history -Precedence
- M. Radha Krishna Murthy vs AP -6 thmarch 2009Thetrial 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 faras 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
48. Whatone should do
- Do not get worried unnecessarily. You are not that unlucky
1%.
- But be prepared with defense in case of eventuality
- Enjoylife & have a Bright Future
49. Smile like Rose