COMMON WEALTH GAMES SCAM

TITLE : IN THE HIGH COURT OF DELHI

Decided On: 30.08.2011 APPELLANT/PETITIONER/PLAINTIFF: Suresh

Kalmadi
Vs. RESPONDENT/DEFENDANT: Union of India (UOI)

and Ors
HON'BLE JUDGES: Dipak Misra, C.J. and Sanjiv

Khanna, J.
SUBJECT: Criminal

 COUNSELS:
FOR APPELLANT: Ashok Desai, Sr. Advocate, Mitesh Jain, Siddharth Aggarwal, Diya Kapur and Shyel Trehan, Advocates. FOR RESPONDENTS: A.S. Chandhiok, ASG, Maneesha Dhir, Mithu Jain, Preeti Dalal,Bhagat Singh, Vidit Gupta and Yashwardhan Tiwari, Advocates for UOI, N. Waziri and Shoaib Haider, Advocates for GNCTD, Dayan Krishnan and Gautam Narayan, Advocates for CBI

DISPOSITION: Appeal dismissed

 ACTS/RULES/ORDERS: 1.Prevention of Corruption Act, 1988 - Sections 13(1) and 13(2) 2. Constitution (Forty-fourth Amendment) Act, 1978 Section 15 3. Indian Penal Code - Sections 120(B), 420, 467, 468 and 471 4. Criminal Procedure Code (CrPC) - Section 439 5. Civil Procedure Code (CPC) - Section 135(A) 6.Constitution of India - Articles 14, 19(1), 105, 118, 121, 194, 208, 211 and 226

GOVERNMENT AGENCIES PROBING INTO THE MATTER

The Comptroller and Auditor General (CAG) is looking into financial misappropriation. The Enforcement Directorate (ED) is probing the routing of funds, which have been traced to tax havens like Mauritius. The Central Bureau of Investigation (CBI) will be examining tenders issued for various Games related projects. The Central Vigilance Commission (CVC) is looking into allegations of corruption in all infrastructure projects like the stadia and Games' venues.

The CBI filed a charge sheet against nine people and two companies. 1. CWG OC Chairman Suresh Kalmadi 2. Lalit Bhanot 3. V.K. Verma 4. Surjeet Lal 5. A.S.V. Prasad 6. M. Jayachandran 7. Anil Madan 8. A.K. Reddy 9. Purshottam Arya. 10.AKR Construction a 11.Swiss Timing.

CHRONOLOGY OF IMPORTANT EVENTS

16 October 2010 A panel has been set up by the government to look into the corruption charges, financial bungling and administrative lapses in the Games headed by former Comptroller and Auditor General, VK Shunglu. Thirty case files have been prepared based on early investigations by the Enforcement Directorate, the CBI, and the Income Tax department.

22 October 2010
Special CBI Judge Talwant Singh accepted the charge sheet. The first charge sheet(36 pages) deals with irregularities in awarding a contract for TSR (Timing, Scoring and Result) equipment to a Swiss company Swiss Timing Omega at an inflated cost of 141 crore causing a loss of some Rs.95 crore to the exchequer. A Delhi court imposed a fine of Rs 10,000 on two accused Purshotam Dev Arya and Anil Madan, in the CWG TSR scam who have been absconding since the lodging of the case against them.

CVC Findings Initial CVC Report on CWG

23 October 2010
A cost over-run of over 200 per cent (668 Crore against Rs. 221 Crore) on the rental of temporary fittings and installations. Over Rs 8 lakhs spent on per treadmill Rs 1 lakh per door Garbage bags ordered at Rs 4 each from one firm, the same bags for Rs 3000 from another firm. Small refrigerator ordered at Rs 21,030 a piece was hired for Rs. 38,261. Office chairs priced at Rs. 1318 a piece were hired for Rs 4591. Cupboards priced at Rs. 8342 a piece were hired from the same company at Rs 15,764 a piece. Squash and Badminton courts contract awarded at hiked price of Rs. 154 Crore causing a loss of Rs. 36 Crore

Following 4 companies got the contract, and OC paid them money, the government of India gave this money to OC as a loan. M/S Pico Deepali Overlays consortium. Delhi, M/S Nussli (Switzerland) Ltd. Switzerland, M/S ESAJV: D ART: Indo Consortium, New Delhi. M/S GL - Meroform France.

 The Income Tax (I-T) department investigating the broadcasting rights appears to have found that London based SIS Live was given the Rs 246 crore contract by Prasar Bhrati, despite doubts over its legal status. This deal allegedly caused Rs.135 crore loss to the exchequer.

15 November 2010
The CBI raided the CWG OC office (near Jantar Mantar) in connection with corruption allegations. They also registered cases against T.S. Darbari and Sanjay Mahindroo, who were allegedly involved in the Queens Baton Relay scam. The organising committee paid AM Films over 450,000 pounds for services during the Queens Baton Relay function in London in October allegedly without following proper tendering procedure and paper work. A Delhi court sent T.S. Darbari and Sanjay Mohindroo and Suresh Kalmadi, to the CBI custody till Nov 22.

Darbari, Mahendroo, Jayachandran facing allegations under SECTIONS: 468 (forgery of court records and public documents), 471 (using forged documents as genuine) 120-B (criminal conspiracy) 420 (cheating) of the Indian Penal Code Prevention of Corruption Act. Facing charges of violation of Foreign Exchange Management Act (FEMA) The CBI has also registered cases against London based private firms AM Car and Van Hire Ltd and AM Films UK Ltd, their director Ashish Patel and CWG director Raj Singh.

15 January 2011: Patiala House court granted bail to Mahendroo. Delhi High Court granted bail to former OC official T.S.Darbari. Till Jan 20,the CBI had given time to file its charge sheet against Jayachandran, joint director (finance), who was arrested on Nov 21 2010

20 January 2011 An Australian company sued the Delhi Commonwealth Games Organising Committee over unpaid bills. Ric Brich (Executive producer) said India stood for Ill never do it again. There were up to 15 other companies involved with the opening ceremony and many more companies involved with the Commonwealth Games overall.

1 February 2011 Delhi High Court Justice Ajit Bharihoke issues notice to CBI to look into the bail plea of Binu Nanu (the director of event management company GL Events-Meroform). Binu Nani was in jail for his involvement in the controversy over granting Rs.600 crore overlays contract for the Commonwealth Games.

15 March 2011 Binu Nanu granted bail by high court Justice. 26th April 2011 Suresh Kalmadi sent to police custody till may 4th ordered by Additional District Judge Talwant Singh. Kalmadi was arrested for conspiracy to favour a private firm in Switzerland. 5th July 2011 The Delhi high court refused bail to Lalit Bhanot.

4 August 2011 CAG report on Commonwealth Games submitted in Parliament. HIGHLIGHTS Irregularities in Workforce Management Fraudulent payments amounted to more than Rs 40.13 lakh (USD 89186) Short deduction of income tax of Rs. 3.07 crore. And many more

15 september 2011 The CBI registered a new case, the 16th so far, the first by the newly-formed Special Investigation Team set up to study the CAG report CBI raid at 21 places and files case against 10 DDA officials 16 September 2011: The Supreme Court declined to interfere in the CBI probe into the scam in the preparations for the 2010 Commonwealth Games.

16 October 2011 CVC to give fresh cases of corruption to CBI CVC investigating at least 71 projects worth several crores executed by civic and construction agencies. Found irregularities in inviting tender for works and giving undue favours to the selected vendors.

 An apex court bench of Justice R.M. Lodha and Justice Gyan Sudha Misra said the petitioner Delhi Study Group,an NGO, has not pointed to any deficiency in the investigations already carried out by the investigating agency. 23 September 2011 Supreme Court refuses to hear Lalit Bhanot's (former secretary general of CWG OC) bail plea. Decision taken by a bench of justices J M Panchal and H L Gokhale Arrested for his role in awarding a Games-related contract at inflated rates.

JUDGMENT BY DIPAK MISRA, C.J.

In the present intra-Court appeal, the Appellant has called in question the legal pregnability of the order dated 5th August, 2011 passed by the learned single Judge in WP(C) No. 5367/2011. The facts which are necessitous to be exposited for the purpose of adjudication of the appeal are that the Appellant, a Member of the Parliament for last seven terms covering a span of 28 years, has been booked in RC No. DAI-2010-A-0044 registered by the CBI/ACB/New Delhi on 29th November, 2010 for offences punishable under Sections 420/467/468/471 read with Section 120B of the Indian Penal Code (for short, "Indian Penal Code") and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 The Appellant after being taken into custody moved an application under Section 439 of the Code of Criminal Procedure and the learned Special Judge rejected the application for bail after referring to the material brought on record. We think it appropriate to reproduce the ultimate conclusion arrived at by the learned Special Judge, CBI, ACB, New Delhi.

 On the basis of the aforesaid discussion and in view of the applicant being an influential person who was exercising full control over the Organizing Committee as its Chairman; gravity of offence being of very serious nature for causing loss to Government of India and unlawful gain to a private vendor to the tune of more than Rs. 95 Crores and the nature and character of evidence collected by CBI, I am of the view that accused is not entitled to bail at this stage and his bail application is dismissed. When the matter stood thus, the Appellant invoked the jurisdiction of this Court under Article 226 of the Constitution of India for issue of a direction for permission to attend the Parliament as the President of India has summoned the Parliament to session on 14th July, 2011 and he has been issued the intimation to attend the 8th session of the 15th Lok Sabha commencing 1st August, 2011. In the said communication, it was stated that as he is in prison, he can seek permission from the competent court of law and attend the parliamentary session.

 The learned Single Judge appreciated the factual matrix in entirety, referred to certain decisions in the field, adverted to the basic concept of democracy and eventually came to hold that the Petitioner had No. right in law to attend the Parliament and further there was No. justification to grant him the permission.

Mr. Ashok Desai, learned senior counsel appearing for the

Appellant, assailing the order passed by the learned Single Judge, has raised the following contentions: If the anatomy of Article 105 of the Constitution of India is scanned in proper perspective, it would be clear as day that certain privileges are conferred on a Member of Parliament and the said privileges have sacrosanct nexus and insegregable connection with the obligation cast on a member but the learned Single Judge has failed to appreciate the same as a consequence of which the denial of permission has ensued. A Member of Parliament does not stand on a higher pedestal than a citizen of the country but because of the constitutional framework, he has a constitutional obligation imposed on him and if he is not allowed to participate, that will tantamount to travesty of justice.

Mr. A.S.Chandhiok, learned Additional Solicitor

General, on the contrary, has propounded the following submissions: The Appellant does not have an existing right to claim participation in the parliamentary session and in the absence of such a right, No. writ of mandamus can be issued. The theory of constitutional obligation which has been edificed by the Appellant has No legs to stand upon in as much as a right and an obligation are correlated and once the Appellant does not possess the right, he cannot build up a structure exclusively on the ground that he has an obligation.

Presented by: Aditya Paul Sharma (02) Madhur krishan Khullar (20) Meenakshi Mattoo (24) Navjot Slathia (25)