Tuesday, Nov 25, 2003
Front Page |
Southern States |
Other States |
Advts: Classifieds | Employment | Obituary |
By J. Venkatesan
A Bench, comprising Justice S. Rajendra Babu and Justice P. Venkatarama Reddi thereby rejected the two appeals filed by the legal wing secretary of the DMK, R.S. Bharathi, and the Janata Party president, Subramanian Swamy, challenging a Madras High Court judgment acquitting her of the charges.
A special court in Chennai had sentenced Ms. Jayalalithaa, her close aide, N. Sasikalaa, and four others to three years imprisonment in one case and two years in another.
However, the Court noted that with respect to the sale of the TANSI properties, there was a "conflict of interest" and conduct "opposed to the spirit of the Code of Conduct if not its letter."
Writing the judgment for the Bench, Mr. Justice Rajendra Babu said the facts of the case that Ms. Jayalalithaa was a public servant and that the properties bought by the firm in which she was a partner would be insufficient to establish a charge under Section 169 of the Indian Penal Code (IPC), which barred public servants from bidding for Government properties.
The Bench said, "The High Court is justified in holding that Ms. Jayalalithaa is not guilty of the offences under Sec. 169 of the IPC and the other respondents not guilty of abetment."
The Bench noted that to attract the provisions of Sec. 13(1)(d) of the Prevention of Corruption Act, a public servant "obtains for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant or without any public interest."
The circumstances under which the properties were bought by Jaya Publications and Sasi Enterprises could not be treated as one obtained in the circumstances arising under Sec. 13(1)(d), it added.
The Judges pointed out that the purchase was effected through open sales held by TANSI and it was not established that Ms. Jayalalithaa or any other person obtained for herself any valuable thing or pecuniary advantage by abusing her position as a public servant.
The sale had been held pursuant to various resolutions of the Government since 1985 and the putting up of the properties in question for sale itself was not against any public interest.
"If the properties in question were sold by TANSI in the public interest, the obtaining of the same through purchase in such a transaction for valuation consideration which does not fall below the market value does not come within the scope of Sec. 13(1)(d). Thus the charge under Sec. 13(1)(d) is not established and we concur with the findings recorded by the High Court in this regard," the Court said. The judges also said that in the present case, it could not be said that the accused acted dishonestly because there was no wrongful gain or wrongful loss and hence it could not be said that they acted fraudulently.
On the conspiracy charge under Sec. 120B of IPC, the Bench said, "how there have been meeting of the minds of different accused at different stages and what the common design has been is not clear".
It observed that "even if we assume for the purpose of argument that some of the officers of the Government were circumspect in their attitude having come to the conclusion that Ms. Jayalalithaa was interested in purchase of the properties and have put their seal to such act either tacitly or overzealously by being too expressive of the same, we cannot hold that there was a conspiracy amongst various persons."
Rejecting the charge of criminal breach of trust levelled against Ms. Jayalalithaa, the Court said there was no supervision of the properties of TANSI by the Chief Minister as the corporation was a separate entity.
"In a case of this nature, where there is no dominion over the properties by a Chief Minister or a Minister, it cannot be treated as entrustment of the properties creating a trust which is an obligation annexed to the ownership of the properties and arises out of the confidence reposed and accepted by the owner."
But the Bench said that by buying the property, Ms. Jayalalithaa had not committed an offence as the Code of Conduct did not have a statutory status. The "property of a government company, which has a distinct legal identity, cannot be equated to the property of the government though the government may have control over the corporation. The prohibition must be clear and unambiguous to give rise to the offence."
The Judges observed that the code not having a statutory force and not enforceable in a court of law, nor having any sanction or procedure for dealing with a contravention thereof by the Chief Minister, could not be construed to impose a legal prohibition against the purchase of property of the government to give rise to a criminal offence under Sec. 169 IPC. "In law, there must be a specific provision prohibiting an act to make it illegal," they said.
'Conflict of interest'
At the same time, the Judges said that with reference to the purchase of a TANSI property, Ms. Jayalalithaa had breached the Code of Conduct, prohibiting Ministers from buying government properties since there was a "conflict of interest" between the office she held and the acts she committed.
They observed that "irrespective of the fact whether we reach the conclusion that Ms. Jayalalithaa is guilty of the offences with which she is charged or not, she must atone for the same by answering her conscience in the light of what we have stated not only by returning the property to TANSI unconditionally but also ponder over whether she had done the right thing in breaching the spirit of the Code of Conduct and giving rise to suspicion that rules and procedures were bent to acquire the property for personal benefit, though trite to say that suspicion, however strong, cannot take place of legal proof in a criminal case and take steps to expiate herself," the Bench said.
Soon after the pronouncement of the verdict, K.K. Venugopal, Senior Counsel for Ms. Jayalalithaa, brought to the notice of the court that the property had already been returned by her.
The Hindu Group: Home | About Us | Copyright | Archives | Contacts | Subscription
Group Sites: The Hindu | Business Line | The Sportstar | Frontline | The Hindu eBooks | Home |
Copyright © 2003, The
Hindu. Republication or redissemination of the contents of
this screen are expressly prohibited without the written consent of