by RP Saxena

Decision making,Vigilance awareness *R P Saxena

R P Saxena

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DECISION MAKING

R P Saxena*

R P Saxena

Decision making in GovtOfficer are for Taking decisionsPolicy decisionsCase to case decisionSpl cases which are not coming within purview of policyChange in policyDecision to overcome a unforeseen situation

Decision making in Govt ( contd)Stakes are very high in Govt decision at higher levelSanction of Project ,loan , restructuring etcGranting exemption & concessionsDisinvestment Industrial houses are benefitted by thousands of crores by just tweaking in Govt policy Intense Lobbying for influencing policy decisionEvery decision benefit/ Annoy somebody either you or your rival

Professional HazardsDuring course of duty , an officer is exposed to situation where several vested interests are involved & his decision affect adversally some body or other .Such disgrunteled elements try to level score with such officer by reporting various decisions either to vigilence or to CBIThis results in many false complaints against officers In enquiry of any decision ,always two views can be taken as only thin line exist between Public intrest & self interestHowever such officer is subjected to harrasment Seeing such harassments ,other officers stop taking decisions

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PM said on 17th Jan 2014Facing accusations of policy paralysis, Prime MinisterManmohan Singh admitted that growth rate had slowed down because clearances were not granted to infrastructure projects for the fear ofCAGand CVC.decision Making is slowed down in Govt for fear of CBI also

CBI Enquiry on bonafide decisionsCoal sect PC Parakh-retd in 2005HC Gupta coal secy 2006-2009SEBI chief CB BhaveNSEL dir GK PillaiSanjay chandra telecom secyKumar Manglam birlaNo prior sanction for retd officers or court monitored investigation

R P Saxena*

R P Saxena

Psychological Fears in Decisions MakingAgencies waiting with net to catchAccountVigilanceAuditCBI

To assist all above agency ,there is RTI -

Decision makingDecision making is biggest source of vigilance complaints

No decision making ..no complaints ..but then no works..Govt machinery come to halt. Do nothing but..

Do nothing is very difficult

Do nothing you need to be on TopR P Saxena*

R P Saxena

What Govt officer wantsProtection from investigation for Bonafide decision to serving as well as retired employee

CBI should prove that some pecuniary advantage flowed to concern officer before taking up investigation

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CBI ViewCBI is demanding for no sanction in cases of Bribery & Disproportionate casesIn Lokpal bill , lokpal sanction will require instead of GovtAs per CBI there are lot of corrupt bureaucrats & they should be tracked upto their death bed

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R P Saxena

PM Narendra Modi said on 4.6.2014 to secretaries of GOI How good are youHow much do you workEither work or Leave the chairWork fearlessly Bona fide decision will be backed by PMOnly corrupt have to fear

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R P Saxena

Present Govt PolicyPMO has prepared of list 125 top officers who are either slow in decision or corrupt ..to be retired either voluntarily or compulsorilyRailways has also prepared alist of tainted officers to retire themNitin Gadkari said ..Take decision or take VRSDelaying of files will not be tolerated

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R P Saxena

Govt has already compulsory retired 15 officer incl 4 commissioner .This action will continue quarterly

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Concern of Honest officersCBI should not draw hasty conclusions Reputation of an officer built over decades is involved when investigating ordered or FIR registeredOne has to take many decision in his service ..if one decision is considered wrong at later date .? Should he be hanged ?

Bibek debroy committee item 17 All powers decentralization down to the level of divisions DRMs should be sufficiently empowered to handle all tenders connected with works, stores procurement, service or even revenue-earning commercial tenders, pertaining to their division. DRMs should have powers to sanction new posts). Finance must completely be under the DRM. DRMs must have the option to choose between RPF and other security agencies.Liberty to spend part of earning in Divison

Before registering a vigilance case, one should ascertain the views of the DRM. (In general, before registering a vigilance case, views should be sought from at least three higher reporting level

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7 CPC states in para 1.30The government should inspire confidence in mind of civil servants that they will not be hounded by unnecessary harassment by investigation agenciesThe recent trend of hounding civil servants as criminals for the failure of bona fide decisions is not a happy one. This will decisions discourage the bureaucracy to take bold in fear of being hounded if such a decision misfires. Any misadventure should not be looked upon with suspicion unless it has definite criminal intent to benefit either himself or someone else. If this trend is not checked it will lead to disastrous consequences. "

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R P Saxena

VIGILLANCE AWARENESS

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R P Saxena

Different stage of vigilence caseComplaint..receivedVerification- genuineness of the complainant and complaintInvestigation ..fact finding enquiryReportSystem improvement DA R case if required

The identity of the complainant is kept secret and he is not exposed at any stage of the inquiry, investigation or trial.

Disciplinary action is recommended against staff found responsible for committing irregularities and systems improvements are suggested whenever flaws are detected in the work procedures/practices.

Type of complaintsHarassing by unfair demandsShowing favour in award of contracts Purchase at higher rates False Payment or fabricated purchasesExecution of substandard workFake appointments favour in departmental selections, promotions causing any undue pecuniary advantage to any one, without any public interest

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R P Saxena

Vigilance misuse of facilityMisuse of privilegeMisuse of duty passMisuse of privilege passFalse claim of TAMisuse of rest house facilityMisuse of inspection carriage-Removal from service

What constitutes Vigilance Angle? Demanding and/or accepting gratification Obtaining valuable thingPossession of assets disproportionate to known sources of incomeMisappropriation, forgery or cheatingGross or willful negligence; Blatant violations of systems and procedures; Exercise of discretion in excess, without any evident public interest;

All above can be summed as Recklessness in decision making

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GeneralMost straight forward person can land in problem for none of his faultsHe may be selected for random nationwide raid Programme An enquiry of some of his associate may lead to him-2G caseThis lecture will create awareness about provision of LAW & precaution required in decision makingIn spite of it , if somebody lands in problem then how to defend in court of LAWTender & contract is most problematic for civil engineers & their decision in dealing tender cases can create problem for them

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What Not to Do in Tender & contractsExecute work in good faith without sanction or estimate or tenderAward the contract on exorbitant ratesExecution of substandard work- quality checkPayment for works not executed overpayments ,false paymentsManipulation in tender such asExaggerating performance of favorite tenderer & failures of RivalsProjecting artificial urgency time is valuable Doctoring briefing note to project someone as most suitable Bypassing lowest bidder without convincing reasonsCall negotiation for reduction of rates but accepting it after negotiation even if no appreciable reduction achieved in negotiationNon 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 it or overshoot it

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Cvc instruction march 2007 & jan 2010As post tender negotiations could often be a source of corruption, it is directed that there should be no post tender negotiations with L1, except in certain exceptional situations.2007Few great people started post tender negotiation with L2 & L3 as they thought that No ban to negotiate with L2 & L3Clarification issued in 2010

Circular No. 01/01/10Attention is invited to the Commissions circular No. 4/3/07 dated 3.3.07 on the issue of TenderingProcess Negotiations with L1.In the said circular it has, among other things, been stated As post tender negotiations could oftenbe a source of corruption, it is directed that there should be no post tender negotiations with L1, except in certain exceptional situations.

It has come to Commissions notice that this has been interpreted to mean that there is a ban on post tender negotiations with L-1 only and there could be post tender negotiations with other than L1 i.e. L2, L3 etc. This is not correct.

It is clarified to all concerned that- there should normally be no post tender negotiations. If at allnegotiations are warranted under exceptional circumstances, then it can be with L1 (Lowest tenderer) onlyif the tender pertains to the award of work/supply orders etc. where the Government or the Government company has to made payment. However, if the tender is for sale of material by the Government or the Govt. company, the post tender negotiations are not to be held except with H1 (i.e. Highest tenderer) if required.

2. All other instructions as contained in the circular of 3.3.2007 remain unchanged.3. These instructions issue with the approval of the Commission and may please be noted for immediatecompliance.Sd/-(V. Ramachandran)Chief Technical Examiner

Functioning of CBI and CBI cases against Railway Officers

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R P Saxena

Few Head lines 2016SSE elect arrested in Agra for demanding 35000 ( jan)DA case registered against Sr DEN Guntur for wealth of Rs 66 lakhsMinistry of Railways decided to remove/retire tainted officers as directed by DOPTCBI case against Concor officer CBI case against engg officers SECR

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CBI case against RE officer Allahabad-itarasi section

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Few head lines 2015Rail neer case (oct 2015)Yard master agc trapped ( Rs 5000)SSE kaithal trapped ( Rs 40000) 2 julySR AEN suratgarh trapped in Rs 50000 bribe case .12th junSr DME Andal trapped in Rs 5000 bribe case 10th junSrDEE mumbai was arrested in trap case of Rs 1 lakh ..23 aprDEN Guntkal was arrested in trap case on 18th feb (Rs 50000)

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R P Saxena

Few head lines 2014convicted Shri Yogendra Kumar Pandey, the then Section Engineer (works) West Central Railway, PipariyaThe Central Bureau of Investigation has arrested a Junior Engineer, Rail Electrification Section, Rail Nilayam, Secunderabad for demanding & accepting a bribe of Rs. 40,000/- from the Complainant.CBI REGISTERS A CASE AGAINST AN INSPECTING ENGINEER OF RITES AND OTHERS FOR ALLEGED LOSS OF Rs. 21.48 LAKH (APPROX) TO RAILWAYSCBI spl court Nagpur has acquitted a SAG officer of Indian Railways in a DA case on account of defective sanction and Non authorised investigations

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News paper headlines of 2013CBI raids office, house of DRM Ahmedabad in DA case THREE YEARS RIGOROUS IMPRISONMENT TO THEN SENIOR DIVISIONAL ENGINEER OF CENTRAL RAILWAYS, FOR POSSESSION OF DISPROPORTIONATE ASSETS Indian Railways Accounts Service officer K V Brahmananda Reddy, an accused in the alleged disproportionate assets caseDEN MGS arrested by CBITWO YEARS RIGOROUS IMPRISONMENT TO THEN STATION MASTER OF RAILWAYS IN A BRIBERY CASECBI REGISTERS A CASE AGAINST A RAILWAY OFFICIAL AND OTHERS FOR ISSUING FAKE APPOINTMENT LETTERS CHAIRMAN RAILWAY RECRUITMENT BOARD(N.F RAILWAY) SENTENCED TO THREE YEARS IMPRISONMENT

Special Judge for CBI Cases, Hyderabad has convicted Sri Dandu Ravi, then Welfare Inspector, South Central Railway, Tirupati

News paper headlines of 2013Member staff is arrested-bail after 4.5 monthCBI REGISTERS A CASE AGAINST A SENIOR COMMANDANT OF RAILWAY PROTECTION FORCE FOR POSSESSON OF ALLEGED DISPROPORTIONATE ASSETS TWO YEARS RIGOROUS IMPRISONMENT TO TWO THEN OFFICIALS OF NORTHEAST FRONTIER RAILWAY CBI ARRESTS A SENIOR SECTION ENGINEER(ELECTRICAL) OF CENTRAL RAILWAY AND AN ADVOCATE IN TWO SEPARATE CASES OF BRIBERY CBI ARRESTS A JUNIOR ENGINEER OF RAILWAY FOR ACCEPTING BRIBE OF RS. 40,000/- CBI REGISTERS A CASE AGAINST AN INSPECTING ENGINEER OF RITES AND OTHERS FOR ALLEGED LOSS OF Rs. 21.48 LAKH (APPROX) TO RAILWAYS the Special Judge, Mumbai has convicted Shri Amit Kumar Roy, then Inspector, Railway Protection Force, MumbaiConvicted M. Jeyasekar madurai SRly-compassionate appointmenntRaid in NWR in connection with a tender case.credential not with tender.awarded to 2nd lowest

Common mistakes done by most of usIn 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 fraudA 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.

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CBI CASESFraud cases - complainant is department if decision has caused financial loss to Govt Department

Disproportionate Asset case source observation either from vigillence or from way of living.General survey for Nation Raids No arrest in such cases as having assets is not the crime

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

All these case comes under PC act 1988

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Trap cases Every acceptance of illegal gratification whether preceded by demand or not, would be covered by the Prevention of Corruption Act, 1988 & punishment is 6 month to 7 year and fine ( new bill pending in Rajyasabha minimum 3 yr)

To start a case , A Complaint is requiredComplaint is to be verified in trap cases in presence of independant witnessThen actual incidence ie acceptance of money is to take place in presence of independant witness

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Why Trap case happensSomebody dissatisfied So make complaintsType of BribesNazraranaShukranaHaqranaZabarana

R P Saxena*

R P Saxena

How to avoid Trap casesTrap do not accept money from any one.Never meet suspected persons at his place or in his car or any other place where you have no reasons for being there.Never talk about money either on phone or in person with suspected persons

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How to defend trap caseIf 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 because mere acceptance of money even if there is no demand is sufficient to convict

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Common problem faced by accused in CBI casesThe accused get arrested in Trap caseAccused placed under suspension ,so pass ,salary becomes half , DOT phone get disconnected No money is available for defense as all bank accounts are seized & salary is half due to suspension- No money when one need it mostAdvocates tries to take advantage of your ignorance demanding huge money at every stageBail is never Granted in first hearing .So avoid hiring expensive lawyer in Hurry

Normally bail is granted in 2nd or third hearing as maximum police custody as per Law is 15 days

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Common problem faced by accused in CBI casesThe colleague & Relatives starts maintaining distance

A depression is set in family due to uncertain future Suicide tendencies developsLife changes completelyOnly faith in GOD & support from friend & family can help

R P Saxena*

R P Saxena

Fraud caseThe complaint is by department Source informationMany time case are based on perception of Agency like CAG Reliance KG basin , 2G , CWG etc Many time executive act out of way in interest of work but other side perceive it as vested interestTime is not evaluated less time at higher cost -money is evaluatedFraud leads to Raid & raids lead to asset caseOur asset management is poorWe are careless in keeping records of financial assets

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DISPROPORTIONATE Asset cases

They are resultant of fraud & trap case

Money management is poor

Book keeping is poor

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R P Saxena

Common mistakes done by most of us-Assets

We conviniently forget to keep proper record ofi)Marriage giftsii)Maturity value of NSC or other financial instrumentsiii)Sale proceeds of any assets like flats etciv)Gains from share Marketv)Any awards ,honrarium etcvi)Gift received by children or spouse on birthday ,marriage anniversary & their investmentsAll 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

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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 taxAlways prepare a balance sheet along with tax return even if it is not mandatoryDeclare your assets(with balance sheet as now tax authority do not accept balance sheet) in annual property return

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Common defense in DA casesAgriculture incomeGiftsLoans from friends/relativesIncome of wifeIncome of dependantDowryShare..speculation..lotteryIncome from private trade

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Point to investigateWhether income is legalWhether income is intimated to concerned authority ( deptt, income tax .etc) as per LawIf illegal ..will not be consideredIf legal but not intimated will not be considered as it is not in known source of Income

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R P Saxena

Where you want to be ?Majority of Railway officer are straight forward officerBut 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 defenseUnfortunately in CBI cases ,investigation starts after Raids & registration of case causing harrasementsRaid can happen for any reason . Some of your associate is being investigated & your name crop up kanimozhi case

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Ignorance is no DefenseMany time ,a man is not able to defend as he is ignorant about provisions of LAW & had not kept proper records (of assets , detail of transactions etc)Better hire professional like CA or Income tax consultant for keeping up proper financial records .This investment will pay rich dividends

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Finance mgmt & PC act

NEW DELHI: An average of 265 companies got registered every day in January, taking the total their number for the whole month to 8,200 and most of them are from the private sector.Every govt person should know salient provisions of Prevention of corruption act 1988

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R P Saxena

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).

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To influence public servantSection -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

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 1988PunishmentsSection10. 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.

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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.

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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; or13 (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.

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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 committedNo 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;

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Sanction under section 19 In case CBI decide to prosecute the charged official , sanction for prosecution is asked from the appointing authorityIf 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

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The Prevention of Corruption (Amendment) Bill, 2013Offence of giving a bribe to a public servant under abetment. The Bill makes specific provisions related to giving a bribe to a public servant, and giving a bribe by a commercial organisation.The Bill redefines criminal misconduct to only cover misappropriation of property and possession of disproportionate assets.The Bill modifies the definitions and penalties for offences related to taking a bribe, being a habitual offender and abetting an offence.Powers and procedures for the attachment and forfeiture of property of public servants accused of corruption have been introduced in the Bill.The Act requires prior sanction to prosecute serving public officials. The Bill extends this protection to former officials.

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The Bill has replaced the definition of criminal misconduct. It now requires that the intention to acquire assets disproportionate to income also be proved, in addition to possession of such assets.

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If an authorised investigating police officer believes that a public official has committed an offence, he may approach Special Judge for attachment of the property. Extends the requirement of prior sanction to former public officials, if the act was committed in their official capacity.

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Pecular casesRly Bd denied permission in 21 casesSr DCM NagpurSr DCM Vadodara

In one case permission was given after denial by various Members Traffic..finally acquitted from court now in SAGIn other case, the permission is not given at all..now he is PHOD

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Railway board denied permission for porosecution in 21 case.. , /.. (1.12.1994), . . , /.. (21.09.1994), , / (6.6.1995), . . , /.. (11.7.1996) , /.. (31.12.1997), . , /... (27.8.1997), , /.. (27.08.1997), , /.. (.3.3.1997), . . , / (20.9.1997), . . , /... (15.10.1997), /.. (22.12.1999), . . , / (21.5.1999), . . , / (23.6.2000), . . , /, , .. (14.3.2000), , /,.. (12.1.2000), . . / (11.4.2000), , /.. (19.3.2001), . , /... (28.1.2001), , (12.9.2001), , (23.10.2001)

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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 (.

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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 casesPrevention is better than cureHowDo not indulge in any such activity willfully which can create problem for you in lifeDo not be there where you should not normally be like contractor residence , contractor car etcDo not talk on phone about moneyAlways record full reason of taking particular decision in file

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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 reasonsDissproportinate 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 cardDo 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)

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What one should doBe happy Do not get worried unnecessarily . .But be prepared with defense in case of eventualityEnjoy life & have a Bright Future

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Any question is most welcomerajendrasaxena@gmail.com

THANKS

*R P Saxena

R P Saxena

Part 2

How to defend the case in court of Law

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R P Saxena

How to defend the criminal cases in courtAll 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

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Various stage of casesRegistration of FIRInvestigation- to be ordered by SP Report to SP through legal depttSanction for prosecutionRegistration of case & submission of Charge sheetRecording of evidenceArgumentJudgement

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Various stage of caseAfter 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 defenseThese fact are examined by legal deptt of CBI & based on evidence on record ,it is decided whether it is fit case for trialIf not , case is closed .if Yes ,regular case is registered

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Sanction under section 19 In case CBI decide to prosecute the charged official , sanction for prosecution is asked from the appointing authorityIf 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

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How to defend your case on various stageStage 1 Receipt of charge sheetStage 2- framing of charge & examining of documentsStage 3 Recording of evidenceStage 4 Statement of the Accused under section 313 of Cr P C of 1973Stage 5 Argument under section 314 of Cr P C of 1973Judgment & appeals if necessary

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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 givenAlthough 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.

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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.

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JudgementBased on the evidence on record , argument ,counter argument & laid down legal principles , Hon Judge Finally announce his final judgementIf acquittal- then happy endingIf conviction quantum of sentence & fine is also announce either on same day or next day

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Appeal in high courtIn 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.

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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 casePanch 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 submissiveCase will continue even if the complainant become hostile witness

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Facts you will like to knowMany 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

Facts you will like to know1988 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 convictionEvery acceptance of illegal gratification whether preceded by demand or not, would be covered by Section 7 of the Prevention of Corruption Act, 1988

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Some common aspect for defenseCBI has to prove case beyond reasonable doubt . So create doubt in their storyThe 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 submissiveMany case are lost due to defective sanction order for prosecution like non application of mind ,so find fault in sanction

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Facts you will like to knowTap recorded evidence are not acceptable as primary evidence .These are used as corroborative evidence onlyThere 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 caseRead judgements of supreme courts & extracts favorable to your case may be shown to your lawyer

Case history in PC actKrishna 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

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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 Authorized officer u/s. 17 of Act Appeal allowed.

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Case history -trivialA.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.

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Case history excuse of loanMota 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.

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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 reasonsDissproportinate 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)

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What one should doBe happy Do not get worried unnecessarily . .But be prepared with defense in case of eventualityEnjoy life & have a Bright Future

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Any question is most welcomerajendrasaxena@gmail.com

THANKS

*R P Saxena

R P Saxena

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