Bureau of Investigation & Anr Vs. Ashok Kumar Aggarwal & Ors  Insc 283 (15
Dr. AR. Lakshmanan & Altamas Kabir
(Arising Out of SLP (Crl.) No. 1307 OF 2007) WITH
CRIMINAL APPEAL NO. 354 OF 2007 (Arising Out of SLP (Crl.) No. 1326 OF 2007)
Union of India ... Appellant(s) Versus Ashok Kumar Aggarwal & Ors.
...Respondent(s) Dr. AR. Lakshmanan, J.
Crl.A. No. 353 of 2007 @ S.L.P.(Crl.)No. 1307 of 2007 Leave granted.
The above appeal was filed by the Central Bureau of Investigation, New Delhi
and the Director, C.B.I., New Delhi against the interlocutory judgment and
order dated 21.2.2007 passed by the High Court of Delhi at New Delhi in W.P.
(Crl.) No. 1401 of 2002 whereby the High Court directed inspection of records
of the files relating to the grant of sanction for prosecution of respondent
No.1 (Ashok Kumar Aggarwal) prior to the prosecution leading evidence in the
Crl.A. No. ..of 2007 @ S.L.P.(Crl.)No. 1326 of 2007 Leave granted.
This appeal was filed by the Union of India against the interlocutory
judgment and order dated 21.2.2007 passed by the High Court of Delhi at New
Delhi in W.P.(Crl.) No. 1401/2002 whereby the High Court granted inspection of
the notings of the Finance Minister to the accused owing to the fact that the
same had been adverted to in the affidavit filed by the appellant.
By consent of the parties, both the appeals were taken up for hearing
We heard Mr. Gopal Subramaniam, learned Additional Solicitor General,
appearing for the appellants and Mr. Ram Jethmalani, learned senior counsel,
appearing for respondent No.1.
Mr. Gopal Subramaniam, learned ASG, invited our attention to the various
proceedings and the orders passed thereon and also the impugned judgment dated
21.2.2007. He invited our attention to the earlier order passed by this Court
on October 11, 2006 in Criminal Appeal No. 1038 of 2006 filed by the Central
Bureau of Investigation against the very same first respondent. The said order
Heard Mr. Gopal Subramaniam, learned Additional Solicitor General for the
appellant and Mr.
Ram Jethmalani, learned senior counsel appearing for the contesting
respondent No.1, Mr. Ashok Kumar Aggarwal.
The appellants have filed the above appeal against the interlocutory order
dated 25.4.2006 passed by the High Court of Delhi in Crl.Misc. No. 1653 of 2006
in W.P.(Crl.) No. 1401 of 2002. The impugned order reads thus:
Learned counsel Mr. Dayan Krishnan for respondents 1 and 2 submits that the
admission of petition should not come in his way to object to the
maintainability of the petition.
Mr. Jethmalani has no objection to that.
List the petition for hearing on 21st August, 2006.
Sd/- Manomohan Sarin, Judge J.M. Malik, Judge April 25, 2006."
The matter was argued herein by both the learned senior counsel for some
time. Later, both the learned senior counsel agreed that the High Court itself
may be requested to dispose of the preliminary issued in regard to the
maintainability of the writ petition as expeditiously as possible since the
matter is pending before one forum or the other for a long time.
It is represented that Writ Petition (Crl.) No.
1401/2002 is listed for hearing before the High Court on 30.10.2006. We,
therefore, request the Hon'ble Acting Chief Justice of the High Court to place
this matter before a Division Bench to consider the question of maintainability
of the writ petition on the same date itself. Liberty is reserved to both
parties to approach the Division Bench for other reliefs as well.
The Criminal Appeal stands disposed of accordingly. The Registry is directed
to send a copy of this order to the Registrar General of the High Court of
Delhi today itself.
Sd/- (Dr. AR. Lakshmanan) Sd/- (Altamas Kabir) New Delhi, October 11,2006."
The grievance of learned Additional Solicitor General is that the High Court
heard the matter on merits and directed the Department of Revenue to give
inspection of confidential files pertaining to sanction granted for prosecution
of respondent No.1 in spite of the specific direction of this Court to hear the
matter on maintainability. He further submitted that the High Court erred in
not appreciating that while exercising jurisdiction under Section 482 Cr.P.C.
the High Court would not ordinarily embark upon an enquiry whether the evidence
in question is reliable or not or whether on a reasonable appreciation of it
the accusation would be sustained as this is the function of the trial Court.
It was further submitted that the appellant perused all the relevant documents
and applied its mind in accordance with law while granting sanction dated
21.6.2002 and that the said fact is mentioned on the face of the order of
sanction and the application of mind was with reference to the documents
mentioned at S.Nos. 1-42 along with the report of the Superintendent of Police
forwarded by the Central Bureau of Investigation. It was also argued that the
documents received from the Federal Department of Justice and Appeals
(Switzerland) dated 11.7.2001 along with the letter Rogatory dated 29.1.2001
were also perused by the sanctioning authority before the grant of sanction. It
was further submitted that respondent No.1 herein had represented to the
Government that relevant documents and more particularly the reply to the
letter Rogatory received from Swiss authorities had not been perused by the
sanctioning authority and that the said representations were considered at the
highest level that is, at the level of the Hon'ble Minister of Finance on 18.6.2005,
27.12.2005 and more recently on 15.1.2007 and after detailed consideration of
the case, the Hon'ble Minister of Finance has come to the prima facie
conclusion that all relevant documents, including the reply to the letter
Rogatory were perused by the sanctioning authority before granting sanction on
21.6.2002. It was further submitted that the plea raised by the respondent/writ
petitioner that the sanctioning authority had not applied its mind to all the
documents and the reply to the letter Rogatory had not been shown to the
sanctioning authority cannot be countenanced. It was also submitted that the
documents are confidential in nature.
Per contra, Mr. Ram Jethmalani, learned senior counsel, appearing for
respondent No.1 submitted that the High Court should first go into the question
of validity of sanction and also submitted that the High Court had rightly
permitted the respondent herein to inspect all the three notings and,
therefore, the direction issued by the High Court is not liable to be interfered
with. He further submitted the reasons as to why the inspection of these
documents must be given to respondent No.1 herein. The reasons are as follows:
1. Having been disclosed and relied upon in paragraph 5 of the Affidavit
dated 12th February, 2007, they have become a part of the affidavit on the
principle of incorporation. Respondent No. 1 is entitled to inspect them and
have the copies thereof and the Court has no discretion in the matter.
2. In the said paragraph of the affidavit, the respondent has purported to
give a description of the contents of these documents. The description is
secondary evidence of the contents of the documents. The primary evidence is
documents themselves. They cannot be withheld from inspection.
3. This is an accord with the principle of Order XI Rule 15 of the Code of
4. The appellants have now offered to show these documents to this Court and
requested this Court to decide whether they should be given to respondent No.1
for his inspection. This procedure is not proper. Reference was made on
paragraph 415 of the judgment of this Court in Additional District Magistrate, Jabalpur
vs. Shivakant Shukla etc.
(1976) 2 SCC 521.
5. There is only one exception to this principle explained hereafter when a
party asks for a document in the possession of another party and the latter
claims privilege under Sections 123 and 124 of the Evidence Act, for the
purpose of deciding whether the privilege should be allowed, the Court can
inspect the documents and come to its own conclusion. Whether the document
relates to affairs of the State or whether public interest would suffer by the
disclosure are the issues which the Court decides on inspection. Reference was
made to judgment of this Court in S.P.
Gupta vs. Union of India & anr. 1981 (Supp) SCC 87 at pages 272 to 303.
No party can claim privilege for documents which it has voluntarily disclosed.
We have carefully considered the rival submissions made by both the parties.
It is not in dispute that challenges to sanction for prosecution and
maintainability of the writ petition are pending consideration before the High
Court in Writ Petition No.
1401 of 2002. While disposing of Criminal Appeal No.
1308 of 2006, this Court requested the High Court to consider the question
of maintainability of the writ petition on the same date itself and also
reserved liberty to both parties to approach the Division Bench for other
reliefs as well and dispose of the criminal appeal accordingly.
We are sorry to say that in spite of our specific direction, the High Court
has failed to comply with our specific direction. We, therefore, have no
hesitation to set aside the order which has been passed contrary to the
direction of this Court. Accordingly, the order of the High Court dated 21.2.2007
in W.P.(Crl.)No. 1401 of 2002 is set aside.
When the matter was heard on 12.3.2007, we requested the learned Additional
Solicitor General to place before us the notings made on the file on 18.6.2005,
27.12.2005 and 15.1.2007 for our perusal and for issuing further directions.
Accordingly, the relevant file was placed before us. We perused the file and in
particular, the observations made on 18.6.2005 (page 55 of the file),
27.12.2005 (page 57 of the file) and 15.1.2007 (page 59-64 of the file) by the
Hon'ble Minister of Finance. Since the writ petition is pending, we request the
High Court to peruse these notings and the observations made by the Hon'ble
Finance Minister and thereafter issue appropriate directions to the parties to
the action. Since the challenge is pending consideration before the High Court,
we request the High Court to take up both the issues of maintainability and the
validity of sanction for prosecution simultaneously and decide the same on
merits and in accordance with law and after affording opportunity to the
parties to the action.
Today, we return the file to Mr. Gopal Subramaniam after perusal. We direct
the CBI to place the notings and observations made by the Hon'ble Finance
Minister made on these dates referred to above in a sealed cover before the
learned Judges of the High Court who hear the writ petition.
Respondent No.1 will have no right of inspection till the entire file is
perused by the High Court and orders issued thereupon.
With the above directions, the appeals stand disposed of.