Legal implications of Tehelka expose

By J. Venkatesan

NEW DELHI, MARCH 26. Even as Mr. Justice K. Venkataswami, retired judge of the Supreme Court, has been appointed the one-man Commission to probe the Tehelka exposure, lawyers feel that bribing by the Tehelka team to conclude a `non-existent arms deal' constitutes a prima facie offence.

According to senior lawyers, a person offering a bribe to a public officer is an accomplice. He is liable to be prosecuted for abetment under Section 12 of the Prevention of Corruption (PC) Act, whether or not the person who received the bribe is in a position to do the favour.

Mr. K. Subramanian, senior advocate, says laying a trap is not prohibited in investigation under the PC Act. The question that arises for consideration is whether (when the Tehelka team laid the trap for breaking the story) such a trap can be equated to an investigation by a police officer under the PC Act.

Citing a Supreme Court decision, he says even when a police officer lays a trap, he requires the permission of a magistrate. While so, laying a trap by journalists to expose a public servant is not authorised under the law and such an action could be termed illegal. And in this case the Tehelka team is liable to be prosecuted for giving bribe along with those who received the bribe.

Mr. M. N. Krishnamani, senior advocate and vice-president, Supreme Court Bar Association, who endorsed the above view feels that the Inquiry Commission should go into the root of the conspiracy. As those who gave and received the bribe were partners in the conspiracy, they are both liable to be prosecuted.

According to him, the Tehelka team had used sophisticated cameras, used only by the intelligence agencies like the ISI, RAW, CIA and the Scotland Yard police. The probe should examine how the team obtained these cameras costing lakhs of rupees.

Mr. Kapil Sibal, senior advocate and Congress MP, feels that the Government ought to have registered an FIR soon after the exposure and retrieved the video tapes, which have now been accepted as evidence. Both the bribe-giver and taker are liable to be dealt with under the PC Act as a cognisable offence has been made out.

Mr. P.H. Pandian, AIADMK MP and senior criminal lawyer, says the act of receiving bribe by BJP functionaries, public servants and senior Army officers has been conclusively proved by the videographs. As such, admission of guilt with respect to receipt of money needs no further proof. Though the bribe-giver is equally responsible, the question of prosecuting the Tehelka team will arise only if it is proved that the journalists themselves acted as arms dealers and bidders in the deal. Otherwise it will only form part of investigative journalism.

On the contrary, he points out that under Section 511 of the Indian Penal Code, even making an attempt to commit an offence is punishable. Therefore in the Tehelka episode, the fact that no deal was struck will not alter the situation as those involved in the conspiracy had attempted to commit an offence. Hence, they are liable to be prosecuted under the provisions of the PC Act.

Mr. N. Natarajan, senior advocate and Special Public Prosecutor, CBI, however, feels that for prosecuting the Tehelka team, it is very important to establish the motive.

If the investigation has been carried out at the instance of somebody, it is an offence. But if the motive is to ensure purity in public life, the team cannot be prosecuted.

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