Thursday, April 08, 2010

Naz Foundation case: A response to K.V.Dhananjay

My last post reproducing K.V.Dhananjay's view that the SLPs in the Naz Foundation case do not survive after the Supreme Court's judgment in the Laloo Prasad case has led to an interesting discussion in the comments section of that post. In this post, we are publishing a critique of Dhananjay's view from a reader:

The contents of this post should have been verified. Lalu Prasad's case was decided by a 3 judge bench with R.M. Lodha, J. delivering the verdict. The question turned on the interpretation of clauses (1) and (2) of Section 378 of the Code of Criminal Procedure. There was no general prescription about limiting the right to appeal which is anyway subject to statutory controls. The Court held that the State government cannot appeal against an acquittal by a CBI Court in a case which was investigated by the CBI in its entirety. I fail to see how this can be extrapolated to argue that private parties cannot file SLPs in a matter where the validity of a legislative provision is in question. Lalu Prasad and Naz foundation are two distinct types of cases.

The real point of concern is the intrusion into states' rights in the criminal justice system. In the Lalu Prasad case the Court has adopted a strict textual reading of the savings clause in Section 378(1) of the CrPC. This should be seen in conjunction with the recent constitution bench judgment authored by D.K. Jain,J. wherein it was held that the writ courts can order CBI probes without the consent of
State governments. So in effect the agency of the State Governments has been diluted both with respect to conducting investigation and subsequently filing an appeal against a finding of acquittal by CBI Courts.

2 comments:

Ashish said...

In that case an interesting situation would be when the CBI is directed to conduct an investigation and the State Government also proceeds with an investigation.

Best Attorney said...

Great info. Putting up a blog post about this and the other recent articles on bankruptcy. Keep up the good work!

Best Attorney