The Lavalin Case- Rethinking over section 197 CrPC

Note: Procedural Establishments Under The Code Of Criminal Procedure, 1973: Section 197 of the Code of Criminal Procedure, 1973 gives protection to a person who is still a Public Servant at the time the prosecution is launched, and also when he is no longer a public servant. This is to protect the Public Servant from a case being filed against him after his retirement. When the government servant or the employee is not removable from his office without the sanction of the Central Government, then the same is necessary. Sanction under this section is not necessary before a Public Servant could be prosecuted for an offence of bribery under Section 161 of the Indian Penal Code, 1860. There are three facets in the consideration of the protection given by Section 197 of the Cr.P.C. to the acts done by public officers. (i) The act complained attaches to it the official character of the person doing it; (ii) The official character or status of the accused gave him an opportunity of doing the act, and (iii) The offence is committed at a time when the accused was engaged in his official duty.

By- Nutan Thakur

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.(mediavigil)