The Telegraph
Saturday , February 16 , 2013
Since 1st March, 1999
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President can be quizzed, not tried

New Delhi, Feb. 15: President Pranab Mukherjee can be questioned by the CBI in the AgustaWestland chopper deal but he cannot be prosecuted in court, legal experts have said.

Mukherjee was the defence minister when the Rs 3,550-crore contract for 12 VVIP helicopters was being authorised and approved by the government.

The experts said that although there is a bar on the President and a governor being tried in a judicial court, there is no statute or provision in law that prohibits questioning of suspects or accused in criminal cases, however big the person may be.

Section 154 of the CrPC mandates police to register an FIR on receipt of a complaint of any cognisable offence.

“As far my knowledge goes, there is no provision in law which provides any immunity for any constitutional authority from being questioned. The President or the governor enjoy immunity only from being tried in a court,” legal expert Sushil Kumar told The Telegraph.

Another lawyer, K.V. Dhananjay, said no immunity would lie for the President as the contract was authorised and approved when he was the defence minister.

He pointed out that then telecom minister A. Raja was not spared from being prosecuted in the 2G scam.

In the case of public servants, there is no bar on prosecuting them for criminal offences and other allegations under the Prevention of Corruption Act. The President can be questioned but not prosecuted.

“There is no bar on investigating or questioning any person in the country irrespective of his or her stature. There is nothing under any statute or Constitution against questioning a person to arrive at a certain conclusion as part of the investigations,” Dhananjay said.

“The question of immunity for such constitutional dignitaries may arise only at the time cognisance is being taken by a court after filing of the chargesheet. But certainly there is no bar under the Constitution or statute for questioning a person,” he said.

According to Section 154 (1):

Every information relating to the commission of a cognisable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the state government may prescribe in this behalf;

A copy of the information as recorded under sub-section (1) shall be given forth with, free of cost, to the informant;

Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the superintendent of police concerned who, if satisfied that such information discloses the commission of a cognisable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

So, an investigating officer can question any person for a cognisable offence.