The Delhi High Court on Tuesday set aside a Trial Court order summoning documents from Ministries of Finance and Corporate Affairs and balance sheet of the party for 2010-11 in the National Herald case.
“The applications were moved in a casual manner and the orders passed on the same were also passed in a casual manner without due application of mind. The facts and circumstances mentioned above, non-issuance of notice to the opposite side and impugned orders being non-speaking and without due application of mind as per the law laid down by Hon’ble Apex Court, culminates into the impugned orders as ineffective, redundant and not sustainable in the eye of law and liable to be set aside,” Justice P.S. Teji observed.
But the Court has made it clear that the complainant always has a right to invoke the provision of Section 91 Cr.P.C. and the Court is always empowered to pass an order in the facts the circumstances of the case, keeping in view the necessity and desirability of the document in situations as discussed above and giving due opportunity of hearing to the other party.
The Court opined that while passing the order under Section 91 Cr.P.C. for summoning the documents, if the other party has already joined the proceedings, it is entitled to be heard. However, However, it is made clear that the right of the complainant shall not be curtailed in any circumstance to move the fresh application during the pendency of the proceedings before the Court below.
The Court was hearing a petition filed by Congress President Sonia Gandhi, Party Vice-President Rahul Gandhi and other party leaders, challenging a lower Court order in what came to be known as the National Herald Case.
The complaint in the National Herald Case was filed by Mr. Swamy under Sections 403, 406 and 420 of the Indian Penal Code (IPC), read with Section 120 of IPC. He had alleged that the accused persons had fraudulently acquired Associated Journal Ltd. (AJL), that used to publish the now redundant National Herald newspaper, and transferred its assets worth crores of rupees to another company, Young Indian.
The impugned order had been passed by Metropolitan Magistrate, Lovleen, summoning the balance sheet, receipts, income and expenditure statements for assessment years 2010- 11, 2011-12 and 2012-13 of the INC, AJL and Young Indian Pvt. Ltd.
Challenging this order, Mr. Sam Pitroda, represented by Mr. Kapil Sibal, had argued that while considering the application under Section 91 Cr.P.C., the Court is required to look into the desirability and necessity of the documents to be summoned. He contended that while passing the impugned order, Trial Court summoned the documents, without ascertaining their necessity. It was further argued that no notice of the application for summoning the documents was given to him. Mr. Oscar Fernandes had made similar allegations.
Apart from agreeing with the aforementioned contentions, Mr. Motilal Vora insisted upon the contention that the complainant had not given any detail or contents of the documents.
Agreeing with these contentions, the Court observed, “The facts and circumstances in the present case show that neither any list of witnesses has been furnished with proposed testimony nor any list of documents has been furnished which were to be exhibited through such witnesses to prove the fact and establish the case of the complainant at the pre-charge stage. The applications dated 02.01.2016 and 01.03.2016 have been filed in a casual manner and the orders have been passed in a casual manner without looking into the fact that no list of witnesses was furnished and no summons have been issued for the purpose of summoning the documents for proving a particular fact.”
The Court was of the opinion that “the plea of the complainant appreciating the order passed by the Trial Court without giving any notice or opportunity of hearing to the opposite side that too in a criminal case, would tantamount not only to the violation of principle of natural justice but also to the violation of Article 21 of the Constitution of India.”
Read the Judgment here.