The Lavalin Case- Rethinking over section 197 CrPC

[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.


Dr Nutan Thakur
Editor,
Nutan Satta Pravah
Lucknow