By : M.S.Yatnatti Editor and Video Journalist Bangaluru : Blunt and Sharp facts: Coal block for mining is allocated to Joint Venture Company not to Hindalco or Birla as the case is made out .Dr Singh deserve the respect he commands and he is man of highest integrity and father of all economic reforms .No one should cast criminal aspersions on him without any tangible proof on his blunt decisions.. Dr Singh former prime minister must engage legal expert as he has many legal avenues to get relief from high court from the problems thrown by CBI court. Dr Singh is in need of correct legal help and consultancy from many experts to win and to get acquittal in the complex criminal case and the defense lawyers team need to consider every legal point small or big in favor of legal defense coming from any anybody or any quarter small or big without any hesitation along with their own legal points andprepare themselves.A special CBI court stunned former prime minister Manmohan Singh and his Congress colleagues by summoning him as an accused in a case of alleged illegal allocation of a coal block to Kumar Mangalam Birla's Hindalco at the cost of public sector Neyveli Lignite Corporation.
The FIR is filed under Sec 120B of (IPC) (Criminal conspiracy) Maximum sentence depend on crime involved ; 409 of IPC (criminal breach of trust by public servant) Max ten years ; Sec 13(1)(c) of prevention of corruption Act Max 7 years. and 13(1) (d) (3) .But this cannot be slapped on Dr Singh as there is no quid pro quo transaction involved. No evidence of taking money or getting pecuniary advantage .Special CBI court presumed that Dr Singh distributed cash or finished product to Hindalco and not given cash or finished product to Neyveli Lignite Corporation and presumed that Hindalco will make windfall profit and so Dr Singh is guilty . It is pertinent to note that finished product is not allocated to one single company. It is allocated to Joint Venture Company. Every company partner in JV makes investment according to their share holding and everybody will get the finished product according to their share holding and question of anybody or Hindalco making windfall profit does not arise as they get what is invested .Investment comes with risk and it investing capacityof investment .There is no Criminality in allocating the coal block to a JV company comprising of Neyveli Lignite, Mahanadi Coalfields and Hindalco with respective investment proposal from each JV company and its share holding..
It is time to debate Private sector and public sector .Private sector is also a public sector in a way as it share holding is largely held by public. And pubic sector share holding is also public. And SEBI controls the Private sector,. Basically the theory of private sector and public sector itself is questionable as government is not a for profit organization .It cannot discriminate between private sector only on account of just because it is private sector. In private sector again it belong to public at large as it is publicly traded and listed company. First, there is no rule that only public sector need to be preferred then question of following therule of law does not arise . then question of following an act of omission or commission in it does nit arose and lastly , question of an element of criminality is out of question,".
Criminal law:In criminal law, a guilty defendant is punished by either (1) incarceration in a jail or prison, (2) fine paid to the government, or, in exceptional cases, (3) execution of the defendant: the death penalty under Criminal Procedure Code 1973. The police stations never take civil cases for prosecution. Civil disputes are not the domain of criminal courts.Civil law:In contrast, a defendant in civil litigation is never incarcerated and never executed. An aggrieved person by government orders files civil writ petition or suite under Code of Civil Procedure, 1908 and the court either set aside the Government order or upheld the government order and no prosecution is allowed in respect of Government order. Civil disputes are very much different than criminal cases.
Wherefore filing criminal case for Government orders under civil laws is not tenable and maintainable against public servants where everything has been done as per law and rules for passing Government order under civil laws of state government and criminal courts have only jurisdiction under criminal procedure code 1973 and not have jurisdiction under Code of Civil Procedure, 1908. In past many writ petitions were filed against government orders and many were upheld and many were set aside by the courts in respect of de-notifications. But no criminal prosecution is allowed as criminal law is not applicable to Government order .Similarly lower court orders are upheld or set aside .No prosecution of lower court judge is allowed in case of it is set aside. Here the question of legal or illegal order does not arise. If criminal prosecution is allowed for each order of government or judges is allowed then governance will become impossible and policy paralyses will happen as nobody will dare to take any decision for anything or any work for fear of prosecution under the prevention of corruption Act 1988 Section 13(1) (a)(b) (c) (d) (i)(ii)(iii) and (e).Wherefore prevention of corruption Act 1988 Section 13(1) (a) (b) (c) (d) does not apply to Government orders. Section 13(1) (a)(b) (c) (d) need to read with section 7,8,9,10,12,13,14 of prevention of corruption Act 1988 . Criminal misconduct or offence of public servantis proved only when a public servant or group of public servants and others commit corrupt and illegal means or abuse of power orlegal official act ( even doing an official favors ) by taking money or getting pecuniary advantage without any public interest which culminates in a trap case of arresting red hand case gratification or taking valuable thing without paying anything or assets holding more than known sources of income. Complainant has not provided any evidence of taking money or getting pecuniary advantage without any public interest which culminates in a trap case of arresting red hand case gratification or taking valuable thing without paying anything or assets holding more than known sources of income. Wherefore the criminal case is not tenable and maintainable.
Hindalco's statement:In the context of the Trial Court's order with regard to the allocation of Talabira-II and III coal block, passed on Wednesday, Hindalco reiterates that none of its officials, including its Chairman Mr Kumar Mangalam Birla, have pursued any unlawful or inappropriate means for securing the allocation of the coal block.The Company had represented its case to the concerned authorities in a transparent and lawful manner, following which it was allocated a 15% share in the combined Talabira-II and III coal block in November 2005, in a joint venture with Mahanadi Coalfields Limited and Neyvili Lignite Corporation, both public sector undertakings with an 85% stake. The coal block has since been deallocated in 2014. Aditya Aluminium Project, for which this allocation was made, has been implemented by the Company at an investment of overRs 13,000 crore in Odisha. The plant is already operational even though Talabira-II & III coal block could not become operational for want of clearances. Consequently, Hindalco is having to suffer irrecoverable financial stress. Hindalco will study the order of the Trial Court in detail and would defend its case through the legal process. It has cooperated with the investigating authorities completely during the course of investigation since October 2013. The company's management is confident that it will stand vindicated at the end of the ongoing legal process.
Nothing wrong in approaching Government and political leaders for industry problems: The court order cites a letter written on January 20, 2005, by Shubhendu Amitabh, Group Executive President of the Aditya Birla Group to D. Bhattacharya, M.D, Hindalco stating "we need to now focus on both polity and bureaucracy" and refers to a request for a meeting with then coal secretary P.C. Parakh. But it is pertinent to note that every company or enterprise meets political circle and bureaucracy to get their work done it cannot become a case to attribute criminality to the action of companies. Meeting in a transparent manner is legal and essential to get the work done. Every politician meets industrialist .