The High Court’s larger bench yesterday dismissed the Anti-Corruption Commission’s appeal against the acquittal of two persons in the DeSuung training fund embezzlement case by its bench III earlier this month.
The High Court’s four-paged order states that the commission does not have the right to appeal, as it is not the prosecutor. “It would be unconstitutional,” the order states.
The order states that as per section 27.5 of the Constitution, “Prosecution of individuals, parties or organisations on the basis of the findings of the Commission shall be undertaken expeditiously by the Office of the Attorney General for adjudication by the courts.”
This section, the order states, makes it evident that the commission has no right to prosecute. “Even in the present case, the prosecuting agency is Royal Bhutan Army and only RBA prosecutors can appeal.”
It also cited that the Anti-Corruption Act 2011’s section 128 (1 and 2) spells out specifically that the commission’s primary duty is to investigate and not to prosecute. “Thus, for the commission to prosecute cases or appeal on judgments taking the role of a prosecutor is unconstitutional and will also violate the Anti-Corruption Act 2011,” the order states.
However, there is one subsection under section 128 of the Anti-Corruption Act that gives the commission certain conditional rights to take up prosecution.
“Notwithstanding subsection (2), the Commission may carry out its own prosecution of a person charged with an offence under this Act or take over the prosecution process from the Office of Attorney General when the case is: Delayed without a valid reason; Manipulated; or Hampered by interference.”
The order states that the two individuals and the prosecutor, the RBA, had not appealed within the appeal period. Further, as per section 31.2 of the Civil and Criminal Procedure Code, ACC being an investigating agency only in the case does not have the legal standing to petition, the court order states.
ACC’s grounds for appeal
The commission’s appeal on August 16 states that given the mandate to prevent and eliminate corruption, the commission having a role in the case was affected by the judgment of the court. Thus, it requested the larger bench to allow it to prosecute the case further in place of the RBA.
According to ACC’s appeal letter, defendant Major Sigay Tshewang’s statement to the ACC stated that he had destroyed the diary during his transfer from Samtse to Thimphu. He later produced the diary in the lower court but it was not accepted. ACC’s review of the court findings found that the High Court has taken into account only certain parts of the statement, which were in favour of Major Sigay Tshewang and did not take into consideration the statement holistically.
ACC’s appeal letter states that the judgment was prepared in a way to suit the accused based on the fact that only the part of the statements, provided by the vendors to the commission on the advances received by them, which favoured the accused were considered.
The commission also states that the defendant did not provide any details on the expenses on miscellaneous items during the training programme. The court had considered details of such expenses from the diary.
The commission also states that defendant Pelpon Nima Gyaltshen had retracted his statements given to the commission in the court saying that they were given under duress. It states that the court did not confirm that with the commission. Despite the money being deposited into his account, the court did not consider the evidence, as the deposit slip did not bear his name or signature, the commission’s appeal letter stated.
The commission stated that the shopkeepers, who were involved in the case, were not summoned to confirm the statements of the defendants.
The commission said that the Bench III, which acquitted the two defendants, did not conduct the cross-examination of Major Sigay Tshewang vs RBA.
It submitted to the larger bench to uphold the judgment of the trial court.