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The verdict of the Delhi High Court in the Jain hawala case holding that
entries made in diaries about payment of alleged bribes cannot alone be
sufficient to charge any person of civil or criminal liability is in
tune with cardinal principle of criminal jurisprudence.
Under the criminal jurisprudence, criminal cases are no to be decided on
probabilities and that the prosecution in order to convict an accused is
to prove its case beyond any reasonable doubt.
One of the legal issue before the court was whether the entries in
diaries could be treated as a book of account under See. 34 of the
Evidence Act.
The Special Court, which framed charges against accused persons in the
case, agreed with the CBI view that diaries were books of account under
the relevant provisions of the act and on the basis of this assumption
charges were framed against them.
An entry to be admissible in evidence under Sec. 34 of the Act must be
shown to be in a book, that book must be a book of account and that
account must be one regularly kept in the course of business.
In order that a document could be relied upon as a book of account, it
must have the characteristic of being fool-proof. A bundle of sheets
detachable and replaceable at a moment's pleasure can hardly be
characterised as a book of account, the court opined.
Moreover, what Sec. 34 demands is a book of account regularly maintained
in the course of business. A ledger by itself could not be book of
account of the character contemplated by Sec. 34 of the Act, according
to the judgement.
The court made it clear that for the purpose of prosecution, diaries
have no evidenciary value and they could neither be looked into or
relied upon by the court for charging a person unless they were
supported by other supporting or circumstantial evidence.
"Entries in diaries have no value unless there is a chain of evidence so
as not to leave any reasonable doubt for a conclusion consistent with
the innocence of the accused and it must be such as to show that within
all human probability the act must have been done by the accused", the
court observed quoting the apex court judgement.
"The entries made in diaries about the payment of bribes at best can be
said to be a document within the meaning of Sec. 3 of the Evidence Act.
However, mere production of the said documents does not have any
evidenciary value unless the contents of the said documents are proved
by proper evidence," Justice Mohammad Shamim ruled in his 70-page
judgement which quashed charge against BJP president L. K. Advani and
others.
The judge said that a document could be proved either by examining the
writer of the said documents or by a person who w as well e d the
handwriting of the maker of the said document or by a fingerprint and
handwriting expert.
Another significant ruling given by the court was that MPs and MLAs were
public servant and, therefore, liable to be prosecuted under the
Prevention of Corruption Act. lie reason given by the court for its
ruling was that "each and every person who holds an office by virtue of
which he is required to perform any public duty in the discharge of
which the State, public or the community at large is interested would be
deemed to be a public servant."
"It is not necessary that to be a public servant, the said person must
be in the pay roll of the Government or remunerated for the performance
of any public duty by the Government," Justice Shamim observed and
added: "As the law stands today every member of the Executive and the
Judiciary is covered under the provisions of the Prevention of
Corruption Act and thus there is no reason, whatsoever, as to why
members of the legislature should be immune from the operation of the
Act."
Commenting on the judgement, senior lawyer, Mr Ashwani kumar said:
"Justice Shamim has vindicated people's expectations from the higher
judiciary: That is would render justice according to law to all without
fear and favour."
"The verdict of the court comes as a welcome assurance to political
leaders," Mr Kumar added.
Mr Lala Ram Gupta, noted lawyer, said that the verdict would strengthen
faith of people in the system of administration of justice.
About the impact of the verdict on the pending cases, the experts say
that where entries in diaries are not supported by other direct or
circumstantial evidence, they may be discharged but in other cases it
would depend upon facts and circumstances of each case.
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