Stating that democracy will be hampered if investigations are ordered against Constitutional functionaries on the basis of what it called “loose and inadmissible” documents, the Supreme Court Wednesday declined to order a probe based on entries of alleged pay-offs to politicians recovered during raids at the premises of Sahara companies and based on interrogation of Birla executives.
A bench of Justices Arun Mishra and Amitava Roy rejected applications moved by NGO Common Cause, which had sought criminal investigations into the alleged recovery of various documents by CBI and Income Tax during raids at offices of Birla and Sahara. These documents purportedly reflected payments to various politicians, including Narendra Modi during his time as Gujarat Chief Minister.
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“There has to be some cogent material which is prima facie reliable…in case we do not insist for the same and order investigation, process of law can be misused and no democracy can function if investigation is set in motion against high Constitutional functionaries without cogent material”, noted the bench in its order after a day-long hearing.
The alleged entries had been cited by Delhi Chief Minister Arvind Kejriwal and, subsequently, by Congress Vice-President Rahul Gandhi to allege that Modi, as Gujarat Chief Minister, was also the recipient of these payoffs. Both leaders had also alleged that Sahara got immunity from prosecution in order to screen beneficiaries of the illegal pay-offs.
As reported first by The Indian Express last week, the Income Tax Settlement Commission granted immunity from prosecution and penalty to Sahara India over raids conducted in November 2014.
Demanding a court-monitored probe by a special investigation team, the NGO had alleged a “cover-up” following the raids but the bench described the plea as “meritless”. It held that “no case is made out” to direct probe since the petitioner has failed to place on record any credible material that could be relied upon to order an investigation.
“In the absence of relevant materials, it would not be safe to direct investigations against various political functionaries and officers, etc. These petitions are meritless and are thus dismissed…the courts have to guard against ordering investigation against important constitutional functionaries and officers in the absence of cogent material and documents,” said the court.
During the hearing, Prashant Bhushan, counsel for Common Cause, referred to various documents allegedly recovered after raids, which he had attached to his applications, and said he was not holding anybody guilty of any crime but just wanted a probe in public interest so that the truth could come out.
Opposing his plea, Attorney General Mukul Rohatgi said that nobody in the country would be safe if such documents were to be accepted as legal evidence. “Anyone can put name of anybody on such papers,” contended the AG, adding the Settlement Commission has already closed the matter vis-a-vis Sahara and it was now for the Income Tax department to decide whether it was proper to challenge this order or not.
The bench, accepting the AG’s arguments, said that it was not doubting the merits of the order passed by the Settlement Commission and that was a different proceeding altogether. “Any unscrupulous person may make some entries on the paper, which can be used to achieve ulterior goals by abusing the process of law. It can lead to hampering the functioning of the democracy,” noted the apex court.
Referring to the Settlement Commission order, the court further held: “We find the materials placed on record in Sahara and Birla case are random computer sheets, diaries, emails, etc. Those are not maintained in required manner. Further, in the case of Sahara, the Income Tax Settlement Commission has already concluded that those are not admissible.”
Bhushan cited a Constitution bench judgment in the Lalita Kumari case that an FIR was imperative when the commission of a cognisable offence was disclosed. But the bench relied upon V C Shukla’s case, popularly known as Jain Hawala Diary case, to hold that computer printouts, hard disks, etc., did not comply with the mandate of the Evidence Act and that they required corroboration to be appreciated as admissible as evidence.
As the Jain Hawala Diary case was referred to by the lawyers repeatedly, the bench, at one point, observed that the case reminded it of “intolerable anomaly”.
“On one hand, this court was ordering investigation and on the other, all accused were being discharged (by subordinate courts)…this case brought about a lot of changes that we would not want to discuss in these proceedings,” said Justice Mishra.
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