Thursday, December 28, 2017

Did the 2G Scam Judge expect the prosecution to put a mind-reader on stand to penetrate the minds of the accused?

The 2G Scam judgment running into more than 1500 pages for a case record of more than 3 lakh pages clearly establishes that Judge O P Saini has a brilliant and unparalleled grip of the details of this Corruption scandal that rightly rocked India previously.
However, it is quite a tragedy that the Judge simply got lost in non-essentials in his judgment. The evidence to convict a few of the accused is plainly writ large in his own elaborate and richly detailed judgment, however. It is unclear why the Judge wanted more evidence in places where a judicial inference was called for instead.
The problem with corruption cases is that a judge cannot ask for the same nature of evidence as is sought and received in homicides; a large number of offences under the PC Act come down to making of judicial inferences upon the facts of a case.
And the Judge made a fundamental error in treating the charged offence under the PC Act as a fact instead of as a judicial inference that he is called upon to draw.
For example, take a murder. A murder is already a fact. However, take the offence of illegally conferring a benefit upon an undeserving person without any public good under the PC Act. Except the fact of benefit, rest of the ingredients of this offence are judicial inferences.
Several judges make the same error in Corruption cases and on appeals, our higher Courts do not do a satisfactory job of explaining this distinction and laying down better guides.
A similar judicial error let a former Chief Minister of a southern State dodge a possible conviction under the PC Act recently - to the CBI refusing to file any appeal.
The Central Government today is terribly dishonest in protecting public good in such cases of potential political benefit to it. It should ask the CBI to file an appeal immediately.
Raja, however, doesn't seem to think that this Central Government is interested in getting him behind bars, again.
K.V.Dhananjay

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