Sentencing 'whistleblower' troubled me, says judge
Kumar was the erstwhile director of Primary Education in Haryana, who initially exposed the scam with a plea in the Supreme Court but was also found to be involved in it during the CBI probe.
Kumar along with former Haryana Chief Minister O P Chautala, his son Ajay Chautala and 52 others have been sentenced to varying jail terms for illegally recruiting 3206 junior basic teachers (JBT) in Haryana in 2000.
Special CBI Judge Vinod Kumar while sentencing Kumar observed that had he spoken the truth, at least at the stage of final arguments and the court would have treated him differently than the other convicts who were overseeing the execution of the entire conspiracy.
"What troubled me was to decide the question of sentencing Sanjiv Kumar. I have held him to be a 'whistle blower'. There is no law at present to protect the whistle blowers. Had Sanjiv Kumar not taken the step to approach the Supreme Court and had he not produced the second set of award lists, this scam would not have come to light," the court said in its 34-page order.
"The dilemma before this court in deciding the question of sentence is on account of simple reason that sentencing such a person may send a wrong message that a whistle blower is not appreciated by law, rather, he is put to trial and tribulation," the court said while suggesting principles to govern law for protection of whistleblowers.
"Law welcomes whistle blowers. If the whistle blower is innocent but only was a victim of circumstances, he must be cited as prosecution witness.
"If the whistle blower had a minor role in the commission of the offence or in the conspiracy for the commission of such offences, the courts should come forward to his rescue and in appropriate cases should not hesitate to make him an 'approver'," it said.
The court also suggested that "if the whistle blower had a major role in commission of such offences, he must come up with complete facts before the investigating officer and during trial he must testify on oath at the stage of defence evidence and should disclose the truth, the whole truth and nothing but the truth before the court during trial.
"The trial court, in such event, must certify in its judgement about the fact that such whistle blower had come out with the truth and has not concealed anything from the court."
The judge also clarified that on such certification in the judgement, "the court can proceed to award minimum possible sentence to such convicts and if possible, may release him on probation with recommendation to the government that no departmental action should be initiated against him in view of the said conviction."
After suggesting the guiding principles, the judge noted that Kumar's entire effort in the trial was to show "as if he had nothing to do with the entire offence. His stand as to which was the true award list was found to be false. He kept on saying that he had prevented the scam by not implementing the fake lists."
The evidence suggested his full involvement in the scam and that he had actually implemented the forged award lists, the judge said.
The court noted that "he took a wrong stand before the Supreme Court of India in respect of the fakeness and genuineness of the award lists. He maintained the same stand before the investigating officer and stuck to his guns to the last even during trial.
"Even if Sanjiv Kumar had taken a truthful stand, at least at the stage of final arguments in view of the overwhelming evidence forthcoming before this court, his case would have been taken entirely on a different footing than the other convicts.
"But in view of the consistent false stand in respect of the genuineness and fakeness of the award lists, I have no option but to treat him on parity with those convicts who were overseeing the execution of the entire conspiracy," he said.
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