July 19, 2018
Kalyan Banerjee speaks on The Fugitive Economic Offenders Bill, 2018
Deputy Speaker Sir, again I have got the chance to speak when you are in the chair. It is a happy coincidence, and I consider it to be a great privilege for me. In Bengal there is a proverb, Chor Palale Buddhi Bare, which loosely translates to ‘the owner of the property has become intelligent only after the thieves have stolen the property and fled’. That is the situation of the Central Government. That is why this Bill has been brought for discussion today.
I request the Hon Finance Minister to clarify. Take the Statement of Objects and Reasons. Clause 3 (1), the definition of the fugitive economic offender, as an individual who has committed a scheduled offense or offenses involving an amount of Rs 100 crore or more, and has absconded from India or refused to come back to India to avoid or face criminal prosecution in India. Therefore, crime offenses or crime amount should be (Rs) 100 (crore) and more according to the object and reasons. But, I do not find any such figure in the main Bill. No such figure is there. What is the correct position? Because, according to you, who will be fugitive economic offender decide in Clause 3 (1) of the object and reasons or delete it. Because, if you keep 100 and more, then those who have committed a crime of Rs 50 crore, he will fly and this Act will not apply. Therefore, would it not be a discrimination between the two persons who are committing same crime? Values are different. If 100 crores, then the rule applies; if less than 100 crores, it will not apply. Then is it not a discrimination? If you commit one murder, then you will not be treated as a criminal, and if you commit five murders, only in that case this Act will be applicable? This is a discrimination. Therefore think about it, I will be very happy if you delete this. Because if anyone has stolen even one rupee, this act would be applied, also if abscond and flee to other countries.
Now, so far this act is concerned when would it apply? This Act would apply, Hon Deputy Speaker Sir, when the offenses which have been mentioned in the Schedule have been committed, and the officers concerned of the particular department have initiated a criminal case, and the appropriate criminal court has issued warrant of arrest, and despite warrant of arrest, person is not available in India.
Only thereafter this Act should apply. Therefore, you have to take regular criminal court proceedings fast. You can’t divide up the initiation of regular criminal cases. So what is the speciality in this? If your officers detect whatever offences are there, the appropriate offences, and take steps at an appropriate time, then the criminal case would be in motion. Unless a criminal case is in motion and beneficial steps are taken, you can’t apply this Act at all.
Hon Deputy Speaker Sir, why are we doing it? Because we have seen the cases of Lalit Modi, Nirav Modi – the Modi syndicates – we have seen those cases. Now the question is, these offences were committed long time back, and appropriate authorities must have taken steps. So what are the steps? I want to know from you too. First, you file a case at the appropriate court, and if that has been filed, then the warrant must already have been issued. When proclamation has already been issued, the attachment of properties has also been issued. So if everything has been done upto this date, this Act has not been applied. No criminal law has retrospective effect; they have prospective effect. So what steps have you taken, the country wants to know. Why are Lalit Modi, Nirav Modi and Vijay Mallya not being arrested and their properties being attached? Is it an appropriate law? This law is an eyewash, although I support the substance of the law; this should become an Act. But the scam that has been done, the country is very sensitive today, it is concerned – the people of this country are suffering from insecurity for keeping their money in their banks. In that case, this Act will not be made applicable even in a single case, including the Punjab National Bank fraud case. It would only be applicable in future cases.
Now, Sir, I will show you a few things. Clause 4 (2) (c): A list of properties, the value of such properties, believed to be the proceeds of crime, including any such property outside India for which confiscation is sought. Now you read clause 5 (1): the director or any other officers not below the rank of deputy director, with the permission of the special court, attach any property mentioned in the application under such manner. Therefore, it is as if you are giving the power of the Indian court to attach a property which is situated outside the country. Can any Indian court do it?
India has the jurisdiction within India itself. Can the Indian court attach any property exist in London? Can any Indian court pass an order of arrest? Yes, arrest Mr ‘so and so’ who is there at London and bring him within seven days before the court. Can Indian court do it? Answer is negative. So what is the use, what is the use of writing all these things? Give this answer! If this power is there in the Indian Court, then why you have not taken steps for getting an order from the Indian court to arrest Mr Lalit Modi, Mr Nirav Modi and Mr Vijay Mallya and others. Arrest them and bring them to India. India wants to see their faces, India doesn’t want to hear your lecture. You have said so many things – “black money would be taken and black money would be distributed. Everyone will get 15 lakh”. – Where is the black money? You are making your speech, you are delivering speeches only. In substance people of the country want to see their faces in Indian jails. We are eagerly waiting and you are not doing anything!
Now come to the Clause 7 (I). ‘Notwithstanding anything containing any other provision of this Act, where a director or any other officer authorised by the director on the basis of materials in his possession has reasons to believe that this is to be recorded in writing that an individual maybe a fugitive economic offender, he may enter any place’. ‘He may enter any place’? That means this power can be abused? This power can be abused for so many reasons including political reasons. In India at present today, everybody knows the present central government is vindictive and they are exercising the power for political reason to arrest and harass the opposition political leaders and workers. That is known to everyone. This power is capable to be abused. Without framing any guideline, without having anything, can it be done? Sir, you are also the Law Minister of your state <interruptions> you know the law substantially. Sir you know the law. Can any law be made which is capable to be abused? If it capable to be abused that is unreasonable, that violating the constitutional provisions itself.
Now, Sir, Clause 9 is very interesting. We know the basic structure; basic thing of the Section 94 CrPC, 1973 gives the power to search and seizure. What is the minimum element, that there must be two independent witnesses. Now lets see Section 9: ‘If an authority authorised by the central government by general or special order are given to believe that any person has secreted about this person or anything under his possession or control any record of process of time which may be useful for a relevant proceeding under this Act, he may search that person and can seize such record or property which may be useful for or relevant to any proceeding under this Act’. There is no provision in the Act/Bill itself. The presence of independent persons are required when such seizures would take place. Sir you know, so many criminal cases have been squashed only on the ground that at the time of the search and seizure, no independent witnesses were there. Indian Courts have squashed so many cases. So many persons have been acquitted. What is the utility to bring such types of provisions? Why there should not be independent witnesses? Why have not such provisions been made? Under the statute itself? Therefore this is the one of the very important defect I must say remains in the Bill itself.
Now Sir, read Section 12. Only after exercising power under Section 12 the person can be declared by this special court as a fugitive economic offender. If only after declaration is done how can I read Section 4 that believed to be a fugitive economic offender. It may appear to be as a fugitive economic offender I can understand. Sir, a person may be named in an FIR, acquisitions may be made against him. Until conviction is made he cannot be said to be a criminal. Crime has been committed by him. Therefore clause 4 and clause 12 both are contradictory. I can appreciate the steps he sought to be taken but so many defects are there. Earlier speakers from the Congress, AIADMK, Mr. Premachandran have pointed these out and I do not want to repeat at all that.
Now Sir, coming to the Section 14, which has been mentioned repeatedly. Notwithstanding anything contained in any other law for the time being in force — on a declaration of an individual as a fugitive economic offender, any court or tribunal in India, in any civil proceeding before it, may, disallow such individual from putting forward or defending any civil claim. Sir, I most humbly say I have a very limited knowledge of law. This cannot sustain because of one reason – evidence of a civil criminal court or a judgment of a criminal court have no bearing at all in a civil proceeding. In a civil case can it be made applicable? Have you come across a case where the evidence of a criminal case have been relied upon by the civil court itself. Not a single one. They were very badly drafted although there is some desire but to desire to fulfill whom I do not know. The person who have committed the crime they are merrily enjoying their life and never they will be able to bring them. We want to see an effective finance minister if at all. I don’t know how long will Mr Goyal will be the finance minister. But if he can bring Lalit Modi, Nirav Modi, Vijay Mallya and others then we can appreciate your steps which are taken and if you cannot do it all will say that what you are doing everything is an eyewash only for the delivering speech. ‘Baat karo baat karo kaam mat karo’ – that is your policy and that is your principle.