More than Seeking truth 2G judge focused on prosecution’s faults!!!

The judgments running into 2,183 pages in the 2G scam case, charge sheet in which was filed by the CBI after a Supreme Court-monitored probe, is a must read for all budding judges. It will educate them on a crucial issue — how not to appreciate evidence.
A trial judge’s cardinal duty is to give a fair trial to the accused. At the same time, he must appreciate evidence with the sole aim of arriving at the truth.

A seasoned trial judge knows the difficulties in gathering evidence in a crime after a time lapse, especially when committed by high public functionaries like ministers. He must know how to separate the chaff from the grain to arrive at the truth.

The 2G trial judge appeared to have been distracted by the volume of chaff to lose the grain and acquitted all the accused. The grain in the 2G case was not the proceeds of crime, which again is not of critical importance in a case under Prevention of Corruption Act. It is a crime under PC Act if a public servant, even without taking a bribe, awards a contract to a person if he knows it will cause loss to the exchequer.

The 2G judgment is strewn with irrelevant remarks resulting from misplaced stress on inconsequential incidents. Take for example the trial judge’s remark on witness Aseervatham Achary’s statement about the then telecom minister shouting at the secretary.

The judge justified it, saying, “What a minister shall do with such an obstruction and dithering secretary, except to shout at him?” The trial judge goes further and says, “A secretary must realize that as per the constitutional scheme of things, an elected representative has to be at the helm of affairs of a government department. A minister is a hardcore politician, who is responsible to his electorate as well as to Parliament. He has also to retain the faith of the prime minister to stay in the council of ministers.”

Was the trial judge examining whether political compulsions and electoral accountability were valid grounds for a minister to shout at his secretary?

The trial judge’s constant refrain was lacunae in prosecution and non-examination of witnesses. While being caustic on the prosecution’s faults, the judge forgot his powers under Section 311 of the Criminal Procedure Code to summon any witness to get to the bottom of a case? Under this provision, he also had the power to recall or order a re-examination of a witness, if he thought a particular witness was not examined properly. Why did he not order his reexamination? Sadly, as he confessed, he waited for years thinking that important evidence will be brought into his court by the CBI.

The judge made extra efforts to form opinions on Nripendra Misra, D S Mathur, A Raja, Pulok Chatterjee, T K A Nair and many others.

Did he give them a chance to defend themselves? If he could form an opinion on their conduct from documents, how could he miss the conduct of the accused from the same documents? The trial judge wrote a scathing commentary on law ministry’s insistence to send the 2G spectrum allocation policy matter to an empowered group of ministers.

He says, “If the law minister felt so strongly about the matter to be referred to the EGoM, he should have written either to the prime minister or to A Raja, instead of recalling from the department of telecom a reference which had already been returned. Law ministry had no business to surreptitiously recall the file in this manner. It was also equally uncalled for the law minister to give a wholly contrary opinion.”

Really? If the trial judge thought it was correct on part of the then telecom minister to shout at a secretary because the minister as an elected representative was answerable to Parliament and must be seen to be doing something to retain his place in the council of ministers, would the same principle not apply to the law minister for insisting that the 2G policy be sent to the EGoM? The trial judge has some years to go before retirement. He would do well to read two Supreme Court judgments on how to appreciate evidence.

 In C Muniappan vs Tamil Nadu [2010 (9) SCC 567], the SC had said, “There may be a highly defective investigation in a case.
The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by the perfunctory investigation, the faith and confidence of the people in criminal justice administration would be eroded.
“Where there has been negligence on the part of the investigating agency or omissions etc which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors (other than) such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.”



In Dalbir Singh vs Haryana, the SC on May 15, 2008, had said, “Even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. However, where large numbers of other persons are accused, the court has to carefully screen the evidence. It is the duty of court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons.” The 2G scam judgment is a vivid example of chaff getting the better of the grain.


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