Once the decision has been made to prosecute the accused, after procuring the sanction for CBI Prosecution, a charge–sheet must be filed in the Court of competent jurisdiction. There are certain instructions and a format that should be followed while filing such charge-sheet.
The Branch Public Prosecutor is entrusted with the task of examining the charge-sheet to ensure that it is prepared in the prescribed manner and checking whether all the requirements have been fulfilled.
It is also necessary to ensure that the copies of statements and other documents to be given with the charge-sheet, are submitted to the Court in a timely manner. i.e. at the time of filing of the charge-sheet.
Copies of statements in Hindi or the regional language must also be given.
In several cases, it has been found that the accused often persuades witnesses to give or not give evidence that would save them from incrimination. This can be done through threats or otherwise.
Undoubtedly, this can be an obstacle in the administration of justice. For this purpose, it is the duty of the Pairvi officer to keep an eye on these witnesses to ensure that they are not influenced by the accused.
The Pairvi officer must be supervised by the Branch SP in very important cases. Generally, the investing officer or any other officer that has been an active part of the investigation process should be appointed as the Pairvi officer.
Court Diaries
The CBI Prosecuting Officers are required to study their cases and make sure that summons are obtained and served in time.
Apart from this, the Prosecuting Officers are also required to maintain a Court Diary, which must be in line with the format provided. It must contain all the matters relating to the case including those of appeals and revisions.
If the CBI Prosecution seeks adjournment, the reasons as to why the adjournment was sought must be entered in the Diary. A duplicate must be sent to the Sr. PP/DLA along with an office copy to the Branch SP.
If there is a major development in the case that must be brought to the notice of the Branch SP or the Sr. PP/DLA, a report of the same must be forwarded to them. Along with their own comments, the report is then sent to the DLA/DIG who must bring it to the notice of the ALA/Joint Director if necessary.
The Diary is also utilized by the Branch Sr. PP and the SsP to decide any action that must be taken against defaulting officers.
The main information that the Court Diary must contain includes-
- Names of witnesses of both prosecution and defence
- A summary of their evidence, including situations where a witness tunes hostile with a comment on how the damage will be corrected,
- How the case proceeds,
- The proceedings that are due for the next hearing,
- If an adjournment was sought by either the CBI prosecution or the defence and reasons for the same,
- If the adjournment is done by not producing the witnesses and reasons for not producing them.
Summons
In a CBI prosecution, it is very important that summons on witnesses are served in time. It is the responsibility of the Legal Cell under the supervision of the Branch Sr PP- with an SI/ASI and two constables to serve the summons.
A Witness Register is to be maintained by the Legal Cell, and must contain the postal address, telephone, telex and fax numbers and this must be updated regularly.
The Branch Sr. PP follows the procedure below to oversee the service of summons-
- The Legal Section is required to make a list of cases under trial that are to come up in the next seven days, and it must be brought before the Branch Sr. PP/Branch SP every Friday.
- The list is reviewed every day by the Sr. PP and the SP, and an additional day is added to the list daily. This is to help the SP assist the CBI Prosecution in making sure that the service of summons is done in an effective and speedy manner.
- If during the trial, the Special Public Prosecutor wishes to summon a witness, he/she should apply to the Court for the next hearing. It must be done as early as possible so that there is enough time to issue the summons.
If the summons is issued well in advance, service of the summons may be tried again. However, if a witness does not appear in Court due to late service, the Public Prosecutor cannot apply to the Court for the witness’s appearance in the next hearing.
Monitoring Of Trials Under CBI Prosecution
The Legal Cell must prepare a report of all cases following the proforma prescribed. This is to allow the Sr. PP to monitor the trial and make sure that service of summons are issued in time.
A report of RDA cases that are to be heard in a month must also be sent to the Branch SP at the beginning of each month, and this must also be monitored.
Status Of Case Property
Property which has been seized during the course of investigation is to be forwarded to the Court, and this must in line with the Cr.P.C.
During the pendency of the trial, the Court can obtain custody or order its disposal according to Sections 451 and 457 of the Cr.P.C.
Furthermore, the court must dispose of the property at the end of the trial in accordance with Section 452 of the Cr.P.C.
Important Registers Kept With The SR. PP
The Sr. PP is required to maintain the following registers-
- Register of Cases Under Trial
- Register of Acquittals or Discharge
- Register of Appeals and Revisions
- Register of Summons and Warrants
- Register of Witnesses
What Is Sanction For CBI Prosecution? What Is The Procedure To Obtain It?
In general, cases that involve bribery, corruption, criminal misconduct or that which causes a major depletion in public funds by public servants- invite CBI prosecution.
The prior sanction order of the competent authority or government is necessary in prosecuting a public officer in court in cases that come within Section 19 of the Prevention of Corruption Act and Section 197 of Cr.P.C.
The sanction order of the competent authority or the government is also required in initiating the CBI Prosecution against those that have committed offences under the Explosive Substances Act, Arms Act and so on. Thus, by producing the relevant facts before the sanctioning authority, an order must be issued by the authority in order to launch the CBI prosecution against the accused.
These relevant facts are presented before the authorities after the investigations are conducted by the CBI, and it is not necessary for the departments or authorities concerned to carry out their own investigation.
Clarifications, if any, must be made by the CBI.
If the CBI finds that in a particular case, CBI Prosecution is applicable, the general procedure to follow is as follows:
It must be noted that sanction for prosecution can be of two types- namely:
- Cases where the sanction for prosecution is issued in the name of the President of India; and
- Cases where the sanction for prosecution is issued by an authority other than the President of India.
- Cases that come under the Prevention of Corruption Act of 1988 that necessitate sanction for CBI prosecution, it must be issued in the name of the President. On the completion of the investigation, the report must be sent to the Central Vigilance Commission.Furthermore, an endorsed copy of the report which should include all documents and recorded statements of witnesses- must be sent to relevant Ministry or Department. The Ministry or Department is free to make comments, and these comments must be sent to the Central Vigilance Commission within a month from the date of receipt of the report by the CBI.
This period can be shortened or extended by the Central Vigilance Commission. After scrutinizing the report and documents provided by both the CBI and the Ministry or Department, the CVC decides whether or not to launch the CBI Prosecution. If the CVC decides to launch the sanction for CBI prosecution, but this is opposed to by the Ministry or Department, the matter is brought before the Department of Personnel and Training to give a final decision.
- In cases where an authority apart from the President of India has the power to sanction the CBI Prosecution, the CBI is required to send its report to such authority. The report has to contain the evidence that has been obtained during the course of investigation.This must be done with a request by the CBI to the authority to launch the CBI prosecution against the public servant within three months of the date of submission of its report. If the authority does not act on it, the CBI can send the report with relevant documents and records to the CVC for advice on the matter. Where the CBI and the CVC both recommend sanction for CBI prosecution, but the authority decides not to, the matter is brought before the Department of Personnel and Training to give a final decision.
In situations where there are two or more Government servants that belong to different Ministries or Departments or where they are under the control of different authorities, the CBI is to seek sanction from the concerned Ministries or Departments or authorities. When there is a conflict regarding sanction granted to one servant and not the other, the question is finally dealt with by the Department of Personnel and Training.
There may be cases where there is ambiguity about which entity must launch the sanction for CBI prosecution, that is, whether the matter is within the competency of the Central or State Government or any other authority. To resolve such conflict, the sanction must be accorded by that authority or Government that has the power to remove the defaulting public servant from office.
As mentioned above, there is a procedure that should be followed to launch a sanction for CBI prosecution against a public servant. After receiving the sanction for prosecution from the concerned entity, the CBI branches can file charge-sheets of all the officers involved including the orders given by the competent entity, in the respective courts of competent jurisdiction. When an order has been given by the Central or State Government in the name of the President of India, it must be authorized by an officer that fulfills the requirements laid down in Article 77(2) of the Constitution of India.
To ensure that the issuance of the order or sanction is genuine, it is necessary to produce the following documents:
- The original order,
- A copy of the Gazette Notification under Article 77(2) of the Constitution,
- A copy of the Gazette Notification that pertains to the appointment of the officer signing the order to the office held by him while issuing the order.
In case the order that sanctions CBI prosecution is issued by an authority other than the Central or State Governments, the order has to be signed by the officer.
These orders are proved by producing the original order. In case the order is an oral order, it must be examined by the Sanctioning Authority or an officer that is familiar with the signature of the officer.
Jurisdiction Of The Court Under The Sanction Of CBI Prosecution
Since a sanction order is in the public domain, it can brought before the court upon request. To do this, it is necessary to produce the Gazette Notification under Article 77(2) of the Constitution of India, as well as that of the appointment of the officer that signed the order.
If the court decides not to take up the case, to persuade the court, the officer of the AVD that issued the sanction is summoned before the court to trace the application of mind to the facts in ordering for sanction for CBI prosecution.
How To Withdraw A CBI Prosecution
A proposal can be made with the effect of withdrawing the CBI prosecution by the investigating or prosecuting authority, provided there is some legal backing for it.
For this purpose, the Ministry of Law must be consulted and the advice given by it must be followed. Where the advice of the CVC was taken in launching the sanction, their advice along with the Ministry of Law must be taken in the event of a proposal to withdraw CBI prosecution.
In very rare cases, proposals for withdrawal, that are preferred by the accused, may be accepted provided consultation is first made to the Ministry of Law. The provisions of Section 321 of CPC must be followed in this regard.
However, it has been laid down in Rule 7 of the Government of India (Transaction of Business) Rules and Item (g) of the Second Schedule of the same Rules that any withdrawal of CBI prosecution that is to be done in a manner than otherwise stated by the Ministry of Law must be produced before the Cabinet.
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