Dear Dr Nutan I wish to clarify / correct this statement
"> 3. RTI India is not only for news but is certainly more about views. It seems you might have missed the crux, but the main emphasis was upon the relevance of section 197 CrPC" RTI India e-group is strictly focused on RTI and informed analysis of CIC/SIC decisions/events. Sarbajit Moderator --- In [email protected], Nutan Thakur <drnutantha...@...> wrote: > > Mr Nangia, > > While appreciating the views presented by you, I would like to put up a few > points of my own- > 1. No where have I claimed any kind of originality in the story > 2. It is not for the author but the others to decide whether it is worth > reading or not > 3. RTI India is not only for news but is certainly more about views. It seems > you might have missed the crux, but the main emphasis was upon the relevance > of section 197 CrPC > 4. It is not that write-ups on old topics already in public domain do not > come up. Very often they are heavily dependent on the facts already in > circulation. If someone tries to implement your yardsticks in all spheres, > atleast half the write-ups will die down > 5. I would reiterate that the emphasis was on section 197 CrPC though it was > introduced at a somwhat later stage > > Dr Nutan Thakur > > > --- On Mon, 6/15/09, suresh nangia <sknangia2...@...> wrote: > > > From: suresh nangia <sknangia2...@...> > Subject: Re: [rti_india] The Lavalin Case- Rethinking over section 197 CrPC > To: [email protected] > Cc: drnutantha...@... > Date: Monday, June 15, 2009, 12:51 PM > > > > > > > > Dr Nutan > > The information shared by you through this piece of writing is already > in public domain for a long time now and much has already been written & > debated about this. In fact, this has been the cause behind the inner party > tussle going on within CPM and Kerala Chief Minister being slighted by the > party leadership for his being in favour of Mr Vijayan being prosecuted. In > fact, State Governer has already given his okay in the matter.We find nothing > new in your write up. > > Unless there is something new and newsworkth to share, there is no point > in circulating stale stories and posting these on rtiboard > > S K NANGIA > > --- On Thu, 11/6/09, Nutan Thakur <drnutantha...@...> wrote: > > > From: Nutan Thakur <drnutantha...@...> > Subject: [rti_india] The Lavalin Case- Rethinking over section 197 CrPC > To: [email protected] > Date: Thursday, 11 June, 2009, 7:32 PM > > > > > > > > > > > Pinarayi Vijayan is the state Secretary of the Kerala CPI(M) and is also the > member of the Central Polit bureau, which is the highest decision making body > of the Party. The 19th Congress of the CPI(M) had elected a 87 member Central > Committee, which on April 03, 2008 elected a 15 Member Polit Bureau. Pinarayi > Vijayan is a member of both these. The other members of this Polit Bureau > include such stalwarts as the General Secretary Prakash Karat along with his > wife Brinda, Sitaram Yechury, Biman Basu, Manik Sarkar, the two CPI(M) Chief > ministers Buddhadev Bhattacharya and V S Achuthanandan along with others. He > is thus among the most important members of the CPI)M). > The so-called Lavalin case relates to memorandum of understanding (MoU) > Kerala State Electricity Board (KSEB) signed with SNC-Lavalin, a Canadian > company in August 1995. During the initial period of the contract, G. > Karthikeyan of the Congress Party was the Minister for Electricity. Later > during further contracts in February 1997 Pinarai Vijayan was the Minister > for Electricity. > Later the Comptroller and Auditor General of India (CAG) found that Lavalin > was only a consultant intermediary and not the original equipment > manufacturer and that the supply of goods and services was made by other > firms at a much higher cost leading to excess expenditure. According to the > CAG, various avoidable (and at times deliberate) failures on the part of the > Board and the government to properly execute the deal resulted in heavy > losses to the government of an amount nearly Rs 25 crores. On 16 January > 2007, Kerala High Court ordered a CBI enquiry into the scandal. On February > 19, 2008, the CBI informed High court of Kerala that the investigation was > progressing and hinted at the complicity of former Electricity Ministers > Pinarayi Vijayan and G. Karthikeyan. On 21 January 2009, the CBI filed a > progress report on the investigation in the Kerala High Court where it named > Pinarayi Vijayan as the 9th accused. A total of 11 persons have been > arraigned. > As per CBI's version Vijayan, while serving as Electricity Minister between > May 1996 and October 1998, colluded with K. Mohanachandran, Principal > Secretary (Power) in a criminal conspiracy already in motion in the matter of > awarding supply contracts of the projects to Lavalin. The investigations > revealed that the supply contract for renovation and modernisation of the > Panniyar, Shengulam and Pallivasal hydel projects was given to SNC Lavalin at > an exorbitant rate and the per MW cost for the same was the highest. This > caused a loss to the Government of Kerala with corresponding wrongful. Thus > CBI requested an order for prosecuting Vijayan. > Thus came the question of Prosecution. As per our statues, section 197 of the > Code of Criminal Procedure deals with prosecution of Judges and public > servants. Section 197(1) states that when any person who is or was a Judge or > Magistrate or a public servant not removable from his office save by or with > the sanction of the Government is accused of any offence alleged to have been > committed by him while acting or purporting to act in the discharge of his > official duty no court shall take cognizance of such offence except with the > previous sanction of the concerned government. > There are two important Supreme Court judgements in this regards, both > exactly opposite to each other. While in the state of Uttar Pradesh vs. Paras > Nath Singh, the Supreme Court has ruled that a public servant cannot be given > the protection of sanction under Section 197 CrPC if he is facing allegations > of indulging in criminal offences. The Court said that forgery, criminal > conspiracy, cheating and taking gratification cannot form part of official > discharge of duty by a public servant saying-''A public servant, however, is > not entitled to indulge in criminal activities,' '. The apex court also > noted, "It is no part of the duty of a public servant while discharging his > official duties to commit forgery of the type covered by the aforesaid > offences. Want of sanction under Section 197 of the code is therefore no > bar." At the same time, in another case related to some senior police > officers of Maharashtra another bench of the SC had held the prosecution of > these officers under the Maharashtra Control of Organised Crime Act (MCOCA) > illegal, on the ground that the accused cannot be prosecuted without proper > prior sanction. > The CPI (M) leadership and the workers, both at the Center and in the state > of Kerala have refused to take this prosecution lightly decided to fight it > out. While the Press Statement in its statement dated June 8, 2009 said that > the CBI case "is politically motivated" and that "it is unfortunate that the > Governor of Kerala decided to grant permission to the Central Bureau of > Investigation to initiate prosecution proceedings" , the workers on the > street took the message wholeheartedly and went for a heavy rampage and > large-scale ransacking and violence. Previously Vijayan had also issued > threats of retaliation and punishment to K. Gopalakrishnan, Editor, > Mathrubhumi Malayalam for having played a lead role in exposing and pursuing > the Lavlin case. > Thus all these efforts are being made to save a person who is primarily being > seen as an accomplish in a criminal case where he has supposedly misused his > official position to cause heavy losses to the State exchequer. This from a > party that has always boasted of belonging to the toiling masses- the workers > and the peasants. But more important than the individuals, it is the basic > legal postulate that I want to harp upon. Do we really need section 197 of > the CrPC? Isn't this provision of law being misused persistently or is being > used selectively for political ends? For the same criminal acts, the > governments and the authorities go by different yardsticks. Against some they > grant the prosecution sanction while for others they withhold it for years. > From all this, it seems that this provision of section 197 CrPC is primarily > being misused or is being used for specific purposes. At least, it shall be > scrapped for cases related with forgery, misappropriation, cheating, misuse > of official positions for wrongful gains etc. This is something that is > immediately required. > > Dr Nutan Thakur > Editor, > Nutan Satta Pravah > Lucknow > > > > > > > > > > > > > > > > > > Cricket on your mind? Visit the ultimate cricket website. Enter now! > > > > > [Non-text portions of this message have been removed] >
