A legal quagmire
The strange case of the Marans and Karti Chidambaram.
Karti Chidambaram, son of the former Union Finance Minister P. Chidambaram, had refused to appear before the Central Bureau of Investigation (CBI) on Thursday, September 14, 2017. He was summoned to explain his role with the foreign investment clearance given in 2006 in the Aircel Maxis deal when his father was Finance Minister. Chidambaram junior's refusal to appear before the CBI is on the ground that the Special Court CBI had discharged all the accused in the matter. He claims that "all proceedings connected with the said case were also terminated". His interpretation is incorrect.
An order of discharge, legally, does not terminate the proceedings. There is no double jeopardy, which would have been the case had there been a trial followed by acquittal. This is a Constitutional safeguard to ensure a person tried for a crime and then acquitted is not compelled to face a trial again. Since in the aforesaid case, no trial was ordered and all accused were freed at the threshold, this protection is not available to Karti Chidambaram,
The Aircel-Maxis case has its roots in 2006 when the then Finance Minister cleared the Aircel-Maxis deal even though it was a Rs 3500-crore project and should have been cleared by the Foreign Investment Promotion Board (FIPB). The rules required an agreement between a party in India and a foreign-based company valued at more than Rs 600 crores to be vetted by the FIPB.
On April 3, 2017, nearly 10 years later, the apex court was informed by the CBI that it is still probing the deal. Karti has thrown a spanner in the wheels saying all proceedings have been terminated. Junior Chidambaran is obviously relying on the February 2, 2017, order of the Special Judge CBI/ED(Central Bureau of Investigation/Enforcement Director), which freed Maran, charged with corruption and money laundering of over Rs 740 crores.
These cases were taken up for enquiry and later criminal investigation in 2014 on the directions of the Supreme Court. Both the CBI and the Enforcement Directorate completed criminal investigation and filed the respective charges against Maran, then a Central Cabinet Minister, his brother, the latter's wife, and one another. The discharge order in the CBI matter runs to 743 pages; 76 pages for the ED complaint.
In eight paragraphs, the order has thrown out the CBI's massive chargesheet running into hundreds of pages of material evidence. In the ED case, all charges are dismissed in one sentence. The bulk of the text in the orders (743 pages in the CBI matter; 76 in the ED issue) is just extensive reproduction of material filed by the two agencies.
Both orders of February 2 are not judgments. The layman, TV anchors included, often use the words as if they are interchangeable. They are not. The order is written by the court before the actual trial begins. To write it, the judge relies on the material before him, submitted for his consideration by the prosecution/investigation. He is bound by law not to judge them but take them at face value.
In fact, here in the CBJ order, this proposition of law has been stated in as many words by the Court itself. Yet this requirement of the Criminal Procedure Code has been disregarded by the same court. The judge has evaluated the statement of the prosecution witnesses recorded by CBI in furtherance of investigation without hearing the witness in open court (emphasis mine).
The law of trial mandatorily requires witnesses of the investigating agency, in this case, the CBI and ED, to be heard in person in open court before their evidence in support of prosecution is adjudicated upon. The judge has not only dismissed their evidence but has compounded it by writing in his order that 5/6 witnesses who support the prosecution case are "untruthful".
"Free" all the CBI named accused of conspiracy and various act of crime punishable under the provisions of our anti corruption laws, he then has ordered. The judge has gone on to then indict the CBI for wrongly charging Maran and others. Further, five/six public servants, who are the prime prosecution witnesses, have been dubbed as criminal and untruthful. He has not summoned them to face trial though. They are subordinates of the minister, who is the beneficiary here of their "untruthful notings on file which minister accused and public servant accused approved", a fact which the court conceded.
The Special Judge has dismissed their candid admission, as recorded by the CBI, that they acted under pressure of their superior, that is Maran. This plea is not acceptable because, as the Special Judge in his discharge order notes,"they did not record in their noting on files that what they were writing were on orders of their superior". The superior's acceptance of these notes, which implied the superior's approval and the fact that he stood charged of gaining financially, the CBI Judge ignored.
In the ED matter, his order simply states that he has held that no crime has taken place in the CBI case and that the Rs 740 crores are not the proceeds of crime. Since proceeds of crime alone can be laundered, there is no crime under the Prevention of Money Laundering Act.
This order of discharge suffers from obvious failings. To mention the major ones. The witness' statements have been judged without hearing them. Next, the beneficiaries are Maran and those charged. The Special Court suggesting that those prosecution witnesses who said their notings were dictated cannot be believed because they also did not record that fact along with their note were given no opportunity to explain why they did not do so. Yet they were condemned as liars and not believed. Most significantly though, it does not signify termination of proceedings. That would have been the case had there been a trial in which the accused were acquitted. Karti Chidambaram would do well to heed this.
(Shantonu Sen is former Joint Director, CBI. The views expressed are strictly personal.)