Delhi High Court
Central Bureau Of Investigation vs A Raja & Ors on 23 November, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: October 12, 2020
Pronounced on: November 23, 2020
+ Crl.M.A. 13703/2020, Crl.M.A. 13851/2020 & Crl.M.A.
14091/2020 in CRL.L.P. 185/2018
CENTRAL BUREAU OF INVESTIGATION .... Petitioner
Through: Mr.Sanjay Jain ASG with
Ms. Sonia Mathur, Senior
Advocate & Special Public
Prosecutor with Mr. Ripu
Daman Bhardwaj, Special
Public Prosecutor & Mr. Rishi
Raj Sharma & Ms. Noor
Rampal, Advocates
Versus
A.RAJA & ORS. .... Respondents
Through: Mr. Manu Sharma, Ms.
Ridhima Mandhar, Mr. Kartik
Khanna & Mr.Vijay Singh,
Advocates for respondent
No.1.
Mr. Siddharth Luthra, Senior
Advocate with Mr. Vedanta
Varma, Mr. Sanat Tokas, Ms.
Ankita Tiwari & Mr.Ayush
Kaushik, Advocates for
respondent No.2.
Mr.Vijay Aggarwal, Mr.Mudit
Jain, Mr.Ashul Aggarwal, Mr.
Shailesh Pandey & Ms.
Barkha Rastogi, Advocates
for respondents No. 3,4, 13 &
14.
Signature Not Verified
Digitally Signed
Crl.M.A. 13703/2020 & Crl.M.A. 13851/2020 & Crl.M.A. 14091/2020 Page 1 of 70
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Mr. Atmaram N S Nadkarni,
Senior Advocate with Mr.
Salvador Santosh Rebello,
Ms. Arzu Paul, Mr.Mahesh
Agarwal, Mr. Rishi Agrawala,
Ms. Niyati Kohli & Mr.
Pratham Vir Agarwal,
Advocates for respondent
No.5.
Mr. Varun Sharma, Advocate
for respondent No. 6.
Ms. Tarannum Cheema & Mr.
Akshay Nagarajan, Advocates
for respondent No.7.
Mr. D. P. Singh, Ms. Sonam
Gupta & Ms. Ishita Jain,
Advocates for respondent
No.8-M/s Unitech Wireless.
Mr. Mohit Kumar Auluck &
Mr. Pramod Sharma,
Advocates for respondents
No. 9 and 11.
Mr. N.Hariharan, Senior
Advocate with Mr.Siddharth
Yadav, Advocate for
respondent No.10/Surender
Pipara
Ms.Manali Singhal, Mr.
Santosh Sachin, Mr. Deepak S
Rawat & Ms. Aanchal
Kapoor, Advocates for
respondent No.12-M/s
Reliance Telecom Ltd.
Mr. Sandeep Kapur, Mr. Vir
Inder Pal Singh Sandhu,
Mr.Abhimanshu Dhyani, Mr.
Sahil Modi, Advocates for
respondent No.15.
Signature Not Verified
Digitally Signed
Crl.M.A. 13703/2020 & Crl.M.A. 13851/2020 & Crl.M.A. 14091/2020 Page 2 of 70
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Mr. Balaji Subramanian &
Ms. Ishani Banerjee,
Advocates for respondent
No.16.
Dr. Joseph Aristotle S. & Ms.
Sneha, Advocates for
respondent No.17.
CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI
ORDER
Crl.M.A. 13703/2020 (by R-13); Crl.M.A. 13851/2020 (by R-2) &
Crl.M.A. 14091/2020 (supplementary application by R-13)
1. Vide this common order, this Court will dispose of the above
captioned three applications. Vide first application [Crl.M.A.
13703/2020], applicant/respondent No.13- Asif Yusuf Balwa is
seeking necessary direction to the petitioner to furnish copy of
mandatory approval under Section 378(2) Cr.P.C. obtained by the
petitioner i.e. CBI along with concerned note sheets, reports, drafts,
letters and correspondence to file the present appeal. Vide second
application [Crl.M.A. 13851/2020], applicant/ respondent No.2-
Siddharth Behura is also seeking copy of mandatory approval with
complete file maintained by the Government containing all note
sheets, reports, drafts, letters, correspondence etc. under Section
378(2) Cr.P.C. Applicant/respondent No.2 is seeking copy of
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
approval/ notification under Section 24(8) Cr.P.C. in favour of
Mr.Sanjeev Bhandari, Special Public Prosecutor authorizing him to
file the instant petition. The prayer made by the respondents runs as
follows:-
Crl.M.A. 13703/2020 & Crl.M.A14091/2020
PRAYER
"It is, therefore, prayed that this Hon'ble
Court be pleased to:
(a) Pass necessary orders and directions to
Appellant to place on record all the
documents through official mode with
affidavit, which have been shared by the
Appellant with the respondents over email.
(b) Pass necessary orders and directions to
Appellant to place on record all the Truncated
documents along with its enclosures therein,
so that proper sense can be out of the
documents.
(c) Pass any other order(s) and direction(s) in
view of the facts and circumstances of the
case, in the interest of justice.
Crl.M.A. 13851/2020
PRAYER
It is, therefore, prayed that this Hon'ble Court
be pleased to:
(a) Pass necessary orders and directions, to
the Appellant for supply of copy of mandatory
approval alongwith the complete file
maintained by the concerned government
department containing all the note sheets,
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
reports, drafts, letters and correspondences
etc., if any, obtained by the Appellant under
Section 378 (2) of Code of Criminal
procedure, 1973 to file the captioned Appeal.
(b) Pass necessary orders and directions, to
the Appellant for supply of copy of the
approval/notification under Section 24 (8)
Cr.P.C of Sh. Sanjeev Bhandari, Spl Public
Prosecutor who has filed captioned Appeal
alongwith the Criminal leave application;
(c) Pass any other order(s) and direction(s) in
view of the facts and
circumstances of the case, in the interest of
justice."
2. Learned counsel for the applicant/respondent No.13 submitted
that the allegations levelled against the present applicant with other
accused was of intentionally aiding and facilitating the payment of
alleged quid pro-quo of Rs.200 crores as a reward for alleged undue
favours shown to company M/s Swan Telecom Private Limited.
Learned Special Court vide order dated 21st December, 2017 had
acquitted all the accused persons including the present applicant.
Thereafter, the petitioner/CBI has filed the instant leave to appeal
against the said order of acquittal passed by the learned Special
Court on 21st December, 2017. Learned counsel for
applicant/respondent No.13 has, however, submitted that this Court
cannot hear and decide the petition seeking 'leave to appeal' unless
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
petitioner/CBI places the mandatory approval u/S 378(2) Cr.P.C. on
record.
3. Learned counsel for the applicant/respondent No.13 had
drawn attention of this Court to Section 378 of Cr.P.C. Mr. Vijay
Aggarwal, learned counsel submitted that in terms of sub section
2(b) of Section 378 Cr.P.C. and Chapter 23 of CBI Manual, it is
mandatory to obtain sanction/approval before filing the
appeal/petition. He further submitted that appeal against acquittal
cannot be filed without the directions/ sanction of the Government
and petitioner's failure to place it on record goes to the root of the
matter, as it would make the instant leave to appeal "non est". He
also submitted that there is no document on record to show that there
is sanction/authorization in favour of Mr.Sanjeev Bhandari, learned
Special Public Prosecutor to file the instant petition or that Mr.
Sanjay Jain, learned ASG Jain has been authorized to conduct the
present appeal.
4. Learned ASG at the very outset submitted that though grant of
approval/authorization to the Public Prosecutor to file leave to
appeal/revision is an administrative order or internal communication
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
and petitioner is under no obligation to show it to the respondents,
however, he submitted that he would place the same on record for
perusal and satisfaction of the Court. Since the hearing was being
conducted through video conference, he had showed the relevant
documents i.e. approval/ authorization in favour of learned Special
Public Prosecutors on screen and also supplied the copy of the same
to the court as well as to all the learned counsels for the respondents.
5. Learned ASG submitted that filing of instant applications
which are frivolous in nature at this stage is, in fact, nothing else but
an abuse of the process of law and wastage of judicial time. At this
juncture, what is required to be seen is whether the judgment of
acquittal passed by the learned trial court is perverse or not and
consequently whether leave to appeal has to be granted or not, and
by raising vague averments, respondents are only wasting the
precious judicial time of this Court.
6. Mr. Vijay Aggarwal, learned counsel for applicant/respondent
No.13, however, argued that it cannot be presumed that if appeal has
been filed, then necessary sanction might have been obtained or
granted. He submitted that mandatory requirements provided by the
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
law have to be followed. In this regard, he has placed reliance upon
decision of State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC
358 wherein the Hon'ble Apex Court while referring to decision in
Nazir Ahmed Vs. The King Emperor AIR 1936 PC 253(2) has
observed that where a power is given to do a certain thing in a
certain way, then the said thing must be done in that way or not at
all. It was submitted that prosecution cannot withhold documents
while presenting a case before the Court. He further submitted that it
has been held in catena of judgments that the respondent has an
inherent right to obtain a copy of every such document which has a
bearing on the case of the prosecution. Reliance was also placed
upon decision in Additional District Magistrate Vs. State of
Jabalpur (1976) 2 SCC 521, which reads as under:-
"415. The view of the Bombay High Court that
Section 16-A(9) may be read down so as to
enable the court to examine the forbidden
material is impossible to sustain. What use
can a court make of material which it cannot
disclose to the detenu and how can it form a
judicial opinion on matters not disclosed to a
party before it? The High Court, at the
highest, could satisfy its curiosity by tasting
the forbidden fruit but its secret scrutiny of the
grounds and the file containing the relevant
information and material cannot enter into its
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
judicial verdict."
7. Mr. Siddharth Luthra, learned senior counsel submitted that
the relief sought in Crl.M.A. 13851/2020 by respondent No.2 is
more or less similar but he would also like to address arguments on
the issue in question. Mr. N. Hariharan, learned senior counsel
appearing for respondent No.10 submitted that though no formal
application has been filed on behalf of respondent No.10, but before
this Court proceeds to hear the criminal leave petition on merits,
petitioner be directed to place on record the sanction/direction issued
by the Government to prosecute/conduct this appeal in terms of
Section 378(2) Cr.P.C. and also to furnish copy of all concerned note
sheets, reports, drafts, letters and correspondence relating to filing of
the present appeal. Similar was the stand taken by Mr. Atmaram NS
Nadkarni, learned senior counsel appearing for respondent No.5 and
Mr.D.P.Singh, learned counsel appearing for respondent No.8.
8. During the course of arguments, it was brought to the notice of
this Court that by virtue of Gazette notification dated 17 th January,
2018, Mr. Tushar Mehta, learned ASG (now learned Solicitor
General) was appointed as Special Public Prosecutor for conducting
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
prosecution, appeals/ revisions or other proceedings arising out of
2G Spectrum cases investigated by the Delhi Special Police
Establishment (CBI) in the court of Special Judge, CBI as well as
appellate/ revisional courts. It was, however, argued by learned
counsels for the respondents that it is first required to be seen
whether Mr. Sanjay Jain, learned ASG has been authorized to appear
in this appeal and whether Mr.Sanjeev Bhandari, Special Public
Prosecutor for the CBI, was authorized to file the same.
9. The hearing on this application continued for about a week.
As discussed in para no. 4 hereinabove, during the course of hearing,
learned ASG produced before this court Notification dated 6th
March, 2014 issued by Government of India, vide which Mr.
Sanjeev Bhandari has been appointed as the Special Public
Prosecutor for the CBI and authorized for conducting prosecution
appeals, revisions and other matters arising out of the cases
investigated by the Delhi Special Police Establishment (CBI).
Leaned ASG submitted that by virtue of this authorization, the
instant appeal has been filed by Mr. Sanjeev Bhandari, learned
Special Public Prosecutor.
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
10. Learned ASG also placed before this Court communication of
17th January, 2018 of the Government of India opining that it was a
fit case to prefer an appeal against the judgment dated 21 st
December, 2017 passed by the learned Special Judge in CC No. 01
& 1A/2011 (RC.DAI.2009.A.0045) i.e. the 2G case and its decision
to engage Mr. Tushar Mehta, learned ASG to represent this case.
The communication of 17th January, 2018 reads as under:-
Most Immediate
By Special Messenger
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training
AVD-II(B)
Subject- Filing of Criminal Appeal in Hon'ble Delhi High Court under Cr.PC against the
impugned judgment dated 21.12.2017 of Ld. Special Judge in CC No. 01 & 1A/2011
(RC.DAI.2009.A.0045) - reg.
CBI may kindly refer to their letter No. 184/RC.DAI.2009.A 0045 dated
05.01.2018 on the above subject.
2. The proposal of CBI to file Criminal Appeal before Hon'ble Delhi High Court under
Cr.PC against the impugned judgment dated 21.12.2017 of Ld. Special Judge in CC No.
01 & 1A/2011 (RC.DAI.2009.A.0045) has been examined in consultation with ALA,
D/o Legal Affairs (DOLA), M/o Law & Justice. ALA, Department of Legal Affairs,
Ministry of Law & Legal has opined inter alia that is a fit case to prefer an appeal. A
copy of the advice conveyed by Department of Legal Affairs is enclosed herewith.
3. It has also been decided to engage Ld. ASG, Shri Tushar Mehta in the above case.
Necessary further action may be taken in the matter accordingly.
(Khushboo Goel Chowdhary)
Deputy Secretary to the Governmentof India
Encls.- As above
Shri Vineet Vinayak, Head of Zone, CBI, Anti-Corruption Branch, 1st Floor, CBI
Headquarters, 5-B, CGO Complex, Lodhi Road, New Delhi-110003.
DoP&T I.D.No.137/03/2018 -VD-II(B) 17 January, 2018
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
11. Learned ASG further submitted that Hon'ble Apex Court in
Civil Appeal No. 10660/2010, vide order dated 12th March, 2018,
had dismissed the plea vide which the appointment of Mr.Tushar
Mehta in place of Mr. Anand Grover, learned ASG to appear in
appeals arising out of 2G cases was challenged. The Hon'ble Court
while observing that the Government has issued a notification
appointing Shri Tushar Mehta, learned senior counsel, in exercise of
the power conferred by sub-section (8) of Section 24 of the Code of
Criminal Procedure, 1973 (2 of 1974) and the Central Government
has appointed him as per modified notification for the purpose of
appeals/revisions arising out of the cases related to 2G Spectrum
investigated by the Delhi Special Police Establishment (CBI) in 2G
spectrum cases. The Hon'ble Apex Court held that earlier Mr.
Grover, learned ASG was appointed as Special Prosecutor and
services rendered by him are appreciated. However, his appointment
was only confined to the trial court and Government had issued a
fresh notification for appeals, revisional proceedings etc. and it was
open to the Government to issue fresh notification and for this
reason, the Hon'ble Court allowed the application filed by Mr.
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Anand Grover, learned ASG for his discharge from the case.
12. Learned ASG submitted that by virtue of aforesaid order, the
Hon'ble Apex Court has categorically held that the Government has
the prerogative to appoint any Public Prosecutor who is duly
qualified to take up the appeals/revisions arising out of the 2G case.
13. Mr. Sanjay Jain, learned ASG also produced notification dated
6th May, 2019 vide which he was appointed Special Prosecutor for
conducting appeals or revisions before this Court and Hon'ble Apex
Court arising out of 2G Spectrum case.
14. Learned ASG has also brought the attention of this Court to
another communication dated 24th May, 2019 issued by the Central
Bureau of Investigation (CBI), wherein reference was made to
notification dated 6th May, 2019 vide which he was appointed as
Special Public Prosecutor to conduct appeals/revisions arising out of
the 2G Spectrum cases.
15. Mr. Vijay Aggarwal, Advocate for applicant/respondent
No.13, however, submitted that even though the above mentioned
documents have been produced before this Court by learned ASG in
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
support of his submissions, however, the prayer made in his
application is yet to be answered. He submitted that the twin prayers
have been made in his application, first one is for directing the
petitioner to furnish copy of mandatory approval under Section
378(2) Cr.P.C. granted by the Government of India for filing the
instant leave petition and second, to provide the copies of concerned
note sheets, reports, drafts, letters and correspondence with regard to
procedure followed in filing the instant petition.
16. Mr. Vijay Aggarwal, learned counsel submitted that the
documents produced by the learned ASG and copies of which have
been supplied to them by e-mail, do not form part of the record and
whatever has been submitted is truncated and not complete record.
Learned counsel further submitted that earlier learned Senior
Advocate Mr. U.U.Lalit (as his Lordship then was) was appearing as
Special Public Prosecutor before the trial court and thereafter vide
Notification dated 6th March, 2014, Mr. Sanjeev Bhandari was
appointed as Special Public Prosecutor to represent CBI in Delhi
High Court in all the appeals, revisions and other proceedings
arising out of investigation carried out by the Delhi Special Police
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Establishment, however, there is no specific order appointing him for
2G case i.e. in CC No. 01 & 1A/2011 (RC.DAI.2009.A.0045).
Learned counsel further submitted that similarly, the communication
dated 24th May, 2019 of CBI, is in the form of an advisory to appoint
Mr.Sanjay Jain, ASG in cases arising out of 2G Spectrum cases
before the trial court and appellate/revisional court and it also
mentions certain annexures, which have not been placed before this
Court.
17. Learned ASG, on the other hand, referred to the provisions of
Section 378(2) Cr.P.C. which contemplates that the Central
Government may direct the Public Prosecutor to present an appeal,
subject to the provisions of sub- section (3), to the High Court from
the order of acquittal. He also submitted that Section 378(2) Cr.P.C.
does not refer to appointment of Special Public Prosecutor and it is
the prerogative of the Central Government to appoint as many
Prosecutors as it requires in a specified case. Learned ASG also drew
attention of this Court to Section 24(8) which reads as under:-
" The Central Government or the State
Government may appoint, for the purposes of
any case or class of cases, a person who has
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
been in practice as an advocate for not less
than ten years as a Special Public
Prosecutor."
18. Learned ASG further submitted that appointment of
Mr.Tushar Mehta, learned ASG did not mean that he would be the
only one to file the leave to appeal or represent the petitioner in 2G
appeals and no other Public Prosecutor can do so. Learned ASG
drew attention of this Court to the provisions of Section 16 of The
Advocates Act, 1961 and Bar Council of India Rules, 1975, Chapter-
I, Part VI, Restriction on Senior Advocates (Rules under Section
16(3) and 49(1) (g) of Act) and submitted that since Mr. Tushar
Mehta, learned senior advocate was appointed as Special Public
Prosecutor, he could not have filed the petition being a Senior
Advocate. Learned ASG submitted that the instant appeal has,
therefore, been filed by Mr. Sanjeev Bhandari, learned Special
Public Prosecutor while assisting Mr. Tushar Mehta, learned ASG
and, thus, no further inquiry is required to be made in this matter.
19. Learned ASG further relied upon decision of Full Bench of
Punjab and Haryana High Court in Lal Singh Vs. State of Punjab
etc. (1981) 2 ILR 496 and submitted that essence of Section 378(1)
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Cr.P.C. or Section 378(2) Cr.P.C. is the presentation of the appeal to
the High Court and not the preceding steps leading to the same,
namely, the process of the formation of the opinion, the subjective
satisfaction or the decision of the State Government or the
consequential direction to present such an appeal.
20. Learned ASG further submitted that in the instant case, after
the opinion was formed by the Government, the present appeal was
filed and since decision to file an appeal is an administrative
decision, which lies within the executive powers of the Government,
process thereof is not required to be shown under any Statute.
Learned ASG submitted that with regard to filing of the appeal, this
Court has only to look into the provision of Section 378(2) Cr.P.C.,
documents placed before this Court and decision in Lal Singh
(Supra) and not the procedure adopted by the Government in
forming the opinion.
21. Learned ASG submitted that what is required to be seen is as
to whether the Public Prosecutor was authorized to file the leave
petition or not. According to learned ASG, as per notification dated
6th March, 2014 issued by Government of India, Mr.Sanjeev
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Bhandari, Advocate was appointed as Special Public Prosecutor for
the Central Bureau of Investigation to conduct trials of all the
appeals, revisions and other matters before this Court, which arise
out of investigation by the Delhi Special Police Establishment (CBI).
Learned ASG submitted that it is not the case of respondents that
Mr.Sanjeev Bhandari, Advocate did not have the eligibility to be
appointed as Special Public Prosecutor. Thus, according to him there
is no illegality in filing the appeal by Shri Sanjeev Bhandari, learned
Special Public Prosecutor.
22. Learned ASG further submitted that in case a Special Public
Prosecutor appointed in an appeal happens to be a Senior Advocate,
he is not supposed to sign or file the same. In such circumstances, he
can ask his Junior Associate Counsel to sign and file the same and
there is no illegality in the same. It was submitted that in this appeal,
Mr. Tushar Mehta, learned ASG was engaged by virtue of
Notification dated 17th January, 2018 for the purpose of filing appeal
against the judgment dated 21st December, 2017 and he was assisted
by Mr. Sanjeev Bhandari, Special Public Prosecutor, who has filed
the instant leave to appeal. Learned ASG, thus, submitted that the
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
arguments and objections raised by the respondents are baseless and
the instant leave petition should be heard on merits.
23. Mr. Sidharth Luthra, learned senior counsel for respondent
No.2 argued the matter in detail and submitted that since 2G matters
were class of cases, the Hon'ble Apex Court had appointed Special
Public Prosecutors during the trial. He argued that Mr. Sanjeev
Bhandari was appointed as Special Public Prosecutor to represent all
the cases pertaining to CBI in Delhi High Court and later on Mr.
Tushar Mehta, learned ASG was appointed to pursue the 2G appeals
and because of his appointment, the notification of Mr. Sanjeev
Bhandari stood superseded. He was, therefore, not at all authorized
to file the present leave to appeal. Mr. Sidharth Luthra, learned
senior counsel for respondent No.2 further submitted that neither Mr.
Sanjeev Bhadari nor learned ASG can represent the petitioner in this
case. He, therefore, argued that before the leave petitions are heard,
the jurisdictional aspect has to be considered and seen. In support of
his submissions, he relied upon the following case law:-
1). Management of the Express
Newspaper (P) Ltd. vs. Workers and
Others, (1963) 3 SCR 540,
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
2). Popular Muthiah Vs. State (2006) 7
SCC 296,
3). Carona Ltd. Vs. Parvathy
Swaminathan & Sons (2007) 8 SCC 559,
4). Arun Kumar & Ors. Vs. Union of
India & Ors. (2007) 1 SCC 732.
24. Mr. Sidharth Luthra, learned senior counsel further submitted
that the background of the matter is that the Hon'ble Apex Court in
Civil Appeal No. 10660 of 2010 while monitoring the proceedings in
the matter, had directed the appointment of Special Public
Prosecutors and creating a Special Court to try 2G cases.
25. The learned Senior Counsel next argued that Section 24(8)
Cr.P.C. uses the word(s)/phrase "cases or class of cases" which is
not defined in the provision. The term "class of cases" has a legal
import and has been considered in the context of Article 14 of
Constitution of India in the following decisions:
i. State of West Bengal v. Anwar Ali Sarkar,
AIR 1952 SC 75,
ii. LachmandasKewalram Ahuja v. State of
Bombay, AIR 1952 SC 235,
iii. KathiRaningRawat v. State of Saurashtra,
AIR 1952 SC 123,
iv. In Re Special Courts Bill, 1978,
(1979) 1 SCC 380.
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
26. It was further submitted by Mr. Siddharth Luthra, learned
Senior Counsel that ordinarily all prosecutions take place by the
Government appointed Public Prosecutor or Additional Public
Prosecutor. The appointment of a Special Public Prosecutor under
Section 24(8) Cr.P.C. for a 'cases or class of cases' cannot be done
as a matter of routine. Further, any such appointment/notification
must specify which case or class of cases, the appointment relates to.
He stated that power under Section 24(8) Cr.P.C. cannot be assumed
to have been exercised without a notification which is for a specific
purpose, for a specific case or class of cases. While a Public
Prosecutor or an Additional Public Prosecutor, who is incharge of
the case, may appear and plead before the Hon'ble Court without
any written authority under Section 301(1) Cr.P.C., this provision
does not apply to a Special Public Prosecutor who has to be
appointed by a notification and for specific reasons. The notification
dated 6th March, 2014 appointing Sh. Sanjeev Bhandari, Advocate as
Special Public Prosecutor only mentions in a generic manner that his
appointment is for CBI cases in the Delhi High Court but is silent in
regard to 2G cases.
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
27. It was further submitted by Mr. Siddharth Luthra, learned
Senior Counsel that appointment of Special Public Prosecutor is to
be done only in exceptional cases and for the reasons to be recorded.
In this regard, he has relied upon the following cases:-
i. The Deputy Superintendent and Remembrancer
of Legal Affairs v. Gaya Prosad AIR 1914 Cal
560,
ii. MukulDalal v Union of India 1988 (3) SCC 144,
iii. Sunil Kumar v. State of MP, 1992 MPLJ 772,
iv. Rajendra Nigam v. State of MP 1998 Cri LJ 998,
v. Poonamchand Jain v. State of M.P. 2001(2)
MPLJ 61,
vi. AdbulKhaderMusliar v. State 1992 Cri LJ 1249.
28. It was next submitted by learned senior counsel that Advocate
General cannot be treated as Public Prosecutor unless appointed
under Section 24(8) Cr.P.C. In this regard, he has placed reliance on
the following cases:-
i. Rajendran v Ayappan 1985 SCC Online Ker 40'
ii. Rajendra Nigam (Supra) (Follows State of
Kerala v. Krishna 1982 Cri LJ 301,
iii. BalachandraPrabhakarKodlekare v. State of Karnataka
MANU/KA/1803/2013.
29. It was next submitted that in the present case, the notification
for Mr. Bhandhari's appointment can be understood as follows:
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
a) It was issued in the year 2014 and was
not for the 2G matter.
b) The 2G trial was pending at the time of
his appointment;
c) His appointment was pursuant to a larger
exercise for appointment of CBI Public
Prosecutor/s for the High Court;
d) The mere use of the term 'Special' in the
notification does not comply with
S.24(8) Cr.P.C requirements generally
and specifically not for 2G cases.
e) It was also not approved or cleared by
the Hon'ble Apex Court at the time
though the said Trial was still pending.
30. It was next submitted that Mr. Bhandari was not empowered
to file the present Leave to appeal and this is a jurisdictional fact
which has to be considered first, as laid down by Hon'ble Apex
Court in the following decisions:
a. Express Newspapers (P)Ltd. v. Workers
& Ors. AIR 1963 SC 569,
b. Carona Ltd. v. Parvathy Swaminathan &
Sons (2007) 8 SCC 559,
c. Arun Kumar v. Union of India (2007) 1
SCC 732,
31. So far as Mr. Bhandari's right to present an appeal is
concerned, it was submitted that the right to file an appeal is
governed by Section 378(4) Cr.P.C and a specific direction is
required to do so. In this regard reference was made to the following
case laws:-
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
i. Subhash Chand v. State (Delhi
Administration)(2013) 2 SCC 17,
ii. Hitendra Vishnu Thakur v. State of
Maharashtra (1994) 4 SCC 602,
iii. ThilayilAbdurahiman v State of Kerala
1997 SCC Online 376,
iv. Lal Singh v State of Punjab 1981 Crl. LJ
1069,
v. State of Kerala v Krishnan 1981 SCC
Online Ker 199,
vi. Assistant Commissioner of Central
Excise v Sabnife Power Systems Ltd
2002 (9) SCC 389,
32. It was further argued that it is well-settled law as held in Nazir
Ahmed v King Emperor, AIR 1936 PC 253 that if something is to be
done in a particular manner, it must be done in that manner or not at
all. It is further submitted that the Apex Court in Dharani Sugars &
Chemicals Limited v Union of India, (2019) 5 SCC 480 has also
held that if a Statute confers power to do a particular act and has laid
down the method in which that power is to be exercised, it
necessarily prohibits the doing of the act in any manner other than
that which has been prescribed.
33. It was lastly submitted by learned Senior Counsel that the
genesis of the action is legally infirm in this case because of absence
of authority to file the Leave to Appeal by Sh. Sanjeev Bhandari and
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
this is fatal for the prosecution. Reliance in this regard was placed
upon State of Punjab v Davinder Pal Singh Bhullar 2011 (14) SCC
34. Mr. N. Hariharan, learned senior counsel appearing for
respondent No.10 submitted that Section 2(u) Cr.P.C. defines
appointment of Public Prosecutor and Section 24(1) Cr.P.C. provides
that Central or State Government, with the consent of High Court,
shall appoint a Public Prosecutor in the High Court for conducting
any prosecution or appeal. He submitted that Section 24(8) Cr.P.C.
provides that for a class of case or cases, the Central or State
Government may appoint a Special Public Prosecutor, who shall be
an Advocate with service of not less than ten years. While drawing
the attention of this Court to the aforesaid provisions, learned senior
counsel submitted that since 2G is a special class of case and,
therefore, Special Public Prosecutors were appointed for trial of the
same. He, however, submitted that the documents referred to by the
learned ASG do not meet the requirements with regard to
appointment of Special Public Prosecutor in the instant petition.
Learned senior counsel pointed out that the notification by virtue of
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
which Mr.Sanjeev Bhandari, Advocate has been appointed as
Special Public Prosecutor to represent CBI in Delhi High Court in
all the appeals, revisions and other proceedings arising out of
investigation carried out by the Delhi Special Police Establishment,
is dated 6th March, 2014. He was, therefore, appointed as a Special
Public Prosecutor in Delhi High Court for CBI cases or appeals
much before the pronouncement of the impugned judgment.
Whereas in the instant appeal which is of a special class category, a
Special Public Prosecutor was required to be appointed under
Section 24(8) of Cr.P.C. for filing appeal after passing of the
judgment. Learned counsel further submitted that even the
requirement of Section 24(1) Cr.P.C. of seeking permission of the
High Court in appointing the Special Public Prosecutor, has not been
complied with.
35. Mr. N.Hariharan, learned senior counsel further argued that in
view of the above submissions, Mr. Sanjeev Bhandari, Special
Public Prosecutor for CBI, had no authority to file the instant leave
petition as he did not satisfy the criteria under Section 24(1) Cr.P.C.,
as his appointment was not with the permission of the High Court
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
and also because of the fact that the notification dated 6 th March,
2014 is prior to the date of impugned judgment dated 21 st December,
2017 and did not specify the category/ class of cases he was
appointed for.
36. Learned senior counsel next submitted that notification dated
17th January, 2018 issued by the Central Government appointing Mr.
Tushar Mehta, learned ASG in this case, is under Section 24(8)
Cr.P.C. but it does not show that it also fulfills the requirement of
Section 24(1) Cr.P.C. Learned senior counsel further pointed out that
after the appointment of Mr.Tushar Mehta , learned ASG by
notification dated 17th January, 2018 vide which he was authorized
to appear in this case, any previous notification, became redundant.
Learned senior counsel pointed out that since on the date of filing of
the appeal, Mr. Tushar Mehta, ASG was the Special Public
Prosecutor for 2G cases, therefore, Mr.Sanjeev Bhandari, Special
Public Prosecutor had no authority to file the appeal. He further
submitted that the notification dated 17th January, 2018 nowhere
mentioned that he would be assisted by any counsel. In support of
his submissions, learned counsel placed reliance upon the decision of
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Hon'ble Apex Court in 'K. Anbazhagan Vs. State of Karnataka &
Ors. (2015) 6 SCC 158'. Learned senior counsel submitted that in K.
Anbazhagan (supra), the Hon'ble Apex Court has held that a
Special Public Prosecutor has to be appointed in consultation with
the Chief Justice of the High Court in terms of Section 24(1) Cr.P.C.
Learned senior counsel, thus, submitted that appointment of Mr.
Tushar Mehta, learned ASG, Mr. Sanjeev Bhandari, Special Public
Prosecutor and Mr.Sanjay Jain, ASG/learned Special Public
Prosecutor in this case does not satisfy the criteria under Section
24(1) Cr.P.C. and Section 24(8) Cr.P.C. Learned senior counsel
submitted that since the documents placed on record by learned ASG
are truncated and, therefore, in order to bring out the clear picture, all
the office notings, documents etc. are required to be brought on
record.
37. Mr. N.Hariharan, learned senior counsel has also drawn the
attention of this Court to 197th Law Commission Report on Public
Prosecutor's Appointment, dated 31st July, 2006 to submit that
Legislature has emphasized that any appointment in violation of
Section 24(1) Cr.P.C. will be violative of Article 14 of Constitution
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
of India and, therefore, appointment of Public Prosecutor in this case
has to be within the ambit of Section 24(1) Cr.P.C. The relevant
quoted portion of the aforesaid Report reads as under:-
"Before parting, we are also of the view that
appointment of Pubic Prosecutors and Addl.
Public Prosecutors in the High Court under
sec. 24(1) by dispensing with consultation
with the High Court is clearly violative of Art.
14 as it not only permits arbitrary
appointments but excludes the consultation
with the High Court in the matter of
appointment of these officers which is crucial.
Just as the provision for consultation of the
Chief Justice of a High Court in the matter of
appointment of Judges of the High Court is
mandatory, on the same analogy, sec. 24(1) is
of highest importance, though it is not a
constitutional provision. Absence of
consultation process with the High Court will,
in our opinion, clearly violate Art. 14 of the
Constitution."
38. Mr. N.Hariharan, learned senior counsel also submitted that
appointment under Section 24(8) Cr.P.C. cannot be made arbitrarily.
Learned senior counsel emphasized that extra ordinary cases require
extra ordinary consultation. According to learned senior counsel, any
person filing an appeal has to be appointed in consultation with the
High Court. Reliance in this regard was placed upon the decision in
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
State of Kerala Vs. Krishnan 1981 SCC OnLine Kerala 199.
39. Mr. D.P.Singh, learned counsel appearing for respondent No.
8 also raised objection with regard to appointment of learned ASG
and Special Public Prosecutor in this case. Learned counsel
submitted that trial pertaining to 2G case was conducted by the
Special Court under the directions of the Hon'ble Apex Court and
Special Public Prosecutor was also appointed by the Hon'ble Apex
Court in this case during the trial. He further submitted that
thereafter, the Government had also appointed Public Prosecutor and
Additional Public Prosecutor in this case for trial. He next submitted
that recently vide notification No. F./8/95/2020/HP-II/2626-2639,
dated 30th July, 2020 Special Public Prosecutors have been appointed
under Section 24(8) Cr.P.C. for conducting proceedings in bail, trial,
appeals, applications and writ petitions etc. in connections with FIRs
related to Citizenship Amendment Act protests and North East
District Delhi riots and in the same manner, a notification requiring
appointment of a Special Public Prosecutor in 2G appeals was
required to be issued. However, no such notification has been placed
on record by learned ASG appearing for the petitioner. Learned
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
counsel further pointed out that appointment of Mr.Sanjeev
Bhandari, Special Public Prosecutor for CBI in Delhi High Court is
of the year 2014 and he has never been specifically appointed for
this case and, therefore, he had no authority to file the instant
petition. Learned counsel submitted that before hearing the petition,
this Court has to first satisfy itself whether the appeal has been filed
by the CBI on the directions of Central Government.
40. Mr. Atmaram NS Nadkarni, learned senior counsel appearing
for respondent No.5 submitted that he adopts the arguments raised
by learned counsel for the respondents. He has also raised objection
with regard to admissibility of documents placed before this court.
41. Mr. Sanjay Jain, learned ASG submitted that the authority of
Mr. Sanjeev Bhandari, Special Public Prosecutor to appear in this
case is being questioned by the respondents. He submitted that by
virtue of notification dated 6th March, 2014, Mr. Sanjeev Bhandari
was appointed as Special Public Prosecutor to represent CBI in Delhi
High Court and therefore, he is vested with authority to appear in
any case or appeal pertaining to the CBI. Learned ASG submitted
that the powers of Mr. Sanjeev Bhandari, learned Special Public
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Prosecutor in filing the documents /petitions and appeals on behalf
of the CBI, are unfettered. Learned ASG submitted that after the
order of the Hon'ble Apex Court dated 12th March, 2018 in Civil
Appeal No. 10660/2010 (supra) was passed, it is now for the
Government to appoint a Public Prosecutor/Special Public
Prosecutor. It was further submitted that Mr. Tushar Mehta, learned
ASG was not obligated to file the appeal but the appeal was surely
filed under his guidance by Mr.Sanjeev Bhandari, learned Special
Public Prosecutor and these are matters of procedure to be followed
and not required to be gone into by this court. Learned ASG once
again submitted that the issue in hand is whether leave to appeal is to
be granted or not and respondents are raising completely non
productive arguments, which are beyond the jurisdiction of this
Court.
42. During the course of hearing of the application, respondent
No.13 filed Crl.M.A. 14091/2020 seeking a direction to
petitioner/CBI to place on record all the documents through official
mode with affidavit, which have been placed before this Court
during the course of hearing.
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
43. Mr. Vijay Aggarwal, learned counsel for applicant/respondent
No.13 submitted that in terms of office order
No.452/RG/DHC/2020, dated 28th August, 2020, all filing has to be
accompanied by requisite court fees as well as affidavit attested by
the Oath Commissioner and in e-filing mode, scanned copy of the
receipt of the court fee, attested affidavit along with
petition/suit/appeals/applications, has to be uploaded, failing which
it shall be returned with objections. Learned counsel submitted that
the documents/notifications placed before this Court are required to
be placed on record with appropriate court fee and affidavit, which
has not been done by the petitioner/CBI. Learned counsel further
argued that the Central Government had first to satisfy itself whether
it was a fit case for appeal. In this regard, he has drawn the attention
of this Court to Delhi High Court Rules, Vol. II, Chapter 25, Appeal
and Revision- Criminal, which reads as under:-
"Part-E
APPEALS FROM ORDERS OF
ACQUITTAL
1. Appeals to be filed in certain cases- Sessions
Judges and District Magistrates should bear in
mind the following order to the State
Government regarding appeals against
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
acquittals under Section 417 of the Criminal
Procedure Code [See Section 378 of new
Code].
The State Government will not direct an
appeal-
XXXXXX
(2) Where, however serious or otherwise
important the case, the legal guilt of the
accused is fairly questionable or the evidence
admits of any reasonable doubt, and the court
has considered and weighed it with
impartiality intelligence and care."
44. Learned counsel further submitted that petitioner/CBI has also
failed to produce the relevant document to show that Mr. Sanjeev
Bhandari, learned Special Public Prosecutor had filed the instant
petition on the instructions of State Government or the CBI.
45. Mr. Vijay Aggarwal, learned counsel thereafter relied upon
the decision of 11th April, 2010 of the Hon'ble Apex Court in Civil
Appeal No. 10660 of 2010, with regard to appointment of Special
Public Prosecutor to conduct prosecution on behalf of CBI and ED
in 2G Spectrum case, wherein it was observed that in normal course,
the Central Government or State Government may make
appointment of a Special Public Prosecutor, but since the Apex
Court was monitoring the 2G case, Mr. K.K. Venugopal, learned
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
senior counsel for CBI and ED, was requested to suggest names of
advocates for appointment as Special Public Prosecutor and
thereafter, Mr.U.U.Lalit, learned Senior Advocate (as his Lordship
then was) was appointed as Special Public Prosecutor and learned
Senior Advocate was further informed that he may choose two
advocates already on the panel of CBI, to assist him. He also placed
reliance upon decision in K. Anbazhagan (Supra) to submit that in
somewhat similar case, it was directed that State of Karnataka in
consultation with the Chief Justice of Karnataka shall appoint a
senior lawyer having experience in criminal trials, as Public
Prosecutor to conduct the cases, whereas no consultation with
Hon'ble Chief Justice of High Court of Delhi has taken place in the
present matter.
46. Mr. Vijay Aggarwal, learned counsel submitted that though
Gazette notification dated 16th February, 2018, vide which Mr.
Tushar Mehta, learned ASG was appointed in this case is on record,
however, no order has been placed on record showing the names of
his assisting counsels. He submitted that petitioner/CBI has failed to
place on record any document showing that Mr. Sanjeev Bhandari,
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
who was appointed as Special Public Prosecutor for the CBI, was
given the authority to assist Mr.Tushar Mehta, learned ASG in this
case. Learned counsel next submitted that appointment of Mr.Tushar
Mehta, learned ASG is of the year 2018, that is, after passing of the
impugned judgment on 21st December, 2017, whereas Mr. Sanjeev
Bhandari was appointed as Special Public Prosecutor for CBI in
Delhi High Court in the year 2014 and, therefore, he could not have
filed the appeal.
47. In continuation of his arguments, Mr. Vijay Aggarwal, learned
counsel submitted that Section 378(2) Cr.P.C. is akin to Section 196
Cr.P.C. or Sec.197 Cr.P.C. He submitted that this Court is vested
with the powers to ensure as to whether sanction with regard to filing
of the instant petition was granted or not. He also placed reliance
upon decision of the Hon'ble Apex Court in State of Karnataka Vs.
Ameerjaan (2007) 11 SCC 273 to submit that the sanction order
must demonstrate that there was proper application of mind on the
part of sanctioning authority. Reliance was also placed upon
decisions of Hon'ble Apex Court in Mohd. Iqbai Ahmed Vs. State
of Andhra Pradesh (1979) 4 SCC 172 and State represented by
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Inspector of Police, Chennai Vs. N.S.Gnaneswaran (2013) 3 SCC
594 in support of above submissions. Learned counsel also relied
upon decision of this Court in Ashok Kumar Aggarwal Vs. Central
Bureau of Investigation 2007(10) AD (Delhi) 73.
48. Learned counsel further brought attention of this Court to a
decision of 31st May, 2002 of a Division Bench of this Court in
C.W.P.4235/1996, Jayadeva Prasad Vs. Union of India (UOI) &
Ors. Manu/DE/0792/2002, vide which it was decided as under:-
"5. It is further decided that the Director
of Prosecution will be vested with the power
of direction and control over the prosecution
offices. However the Director, CBI will
continue to exercise general superintendence
over the prosecution wing.
6. It is decided that the duties of the
Director of Prosecution will include:-
(a) Supervising and monitoring the conduct of
prosecution in courts;
(b) Preferring as well as appearing in
appeals, revisions, etc. on behalf of the CBI in
Appellate and Revisional Courts;
(c) Giving advice to Police Officers on all
matters relating to criminal offences during
investigation and trial;
(d) Advising on the feasibility of filing
appeals, revisions, etc.;
(e)Preparing a panel of Special Counsels to
conduct prosecutions, appeals or revisions on
behalf of CJI with the approval of the
Government and operating the same; and
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
(f) Selecting retainer counsel for High
Courts."
49. Learned counsel submitted that in terms of para 6(e) of the
aforesaid decision, the instant petition seeking leave to appeal ought
to have been filed by a special counsel with the approval of the
Government.
50. Learned counsel further submitted that documents shown to
this Court should have been filed on affidavit as per Section 297(2)
Cr.P.C. which mandates that the affidavit of a deponent shall state
such facts which the deponent is able to prove from his own
knowledge and belief and deponent shall also clearly state grounds
of such belief. Learned counsel drew attention of this Court to a
decision of 14th March, 2017 of Bombay High Court in M/S Jaimin
Jewelery Exports Pvt. Ltd. Vs. The State of Maharashtra, in this
regard.
51. Mr. Vijay Aggarwal, learned counsel submitted that the stand
of learned ASG with regard to sanction to file the leave to appeal or
procedure followed is a question to be raised in writ jurisdiction is
incorrect, as this Court under Section 482 Cr.P.C or under Section
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
151 CPC or under Article 226 of the Constitution of India, has ample
power to answer the same.
52. Per contra, Learned ASG submitted that for appointment of a
Special Public Prosecutor, the Central Government is not required to
consult any one. Section 24(8) Cr.P.C. provides for appointment of
an Advocate as Special Public Prosecutor and Section 24 of Cr.P.C.
does not suggest that Section 24(8) Cr.P.C. is governed by Section
24(1) Cr.P.C. According to learned ASG, the Legislature could have
added any other condition in Section 24(8) Cr.P.C., if it had so
desired. Learned ASG further submitted that the Hon'ble Apex
Court while exercising its extra ordinary inherent power under
Article 142 of Constitution of India had appointed a Special Public
Prosecutor in 2G case, whereas the controversy with regard to
appointment of Mr.Tushar Mehta, learned ASG as a Special Public
Prosecutor in place of Mr. Anand Grover, learned ASG, has been put
to rest by the order dated 12th March, 2018 in Civil Appeal
No.10660/2010 (supra).
53. Learned ASG next submitted that Apex Court's decision in K.
Anbazhagan (Supra) does not state that the Special Public
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Prosecutor has to be appointed in terms of Section 24(1) Cr.P.C. He
submitted that Section 24 Cr.P.C. is divided into various sub-
sections, wherein Section 24(1) Cr.P.C. requires consultation with
High Court but Section 24(8) Cr.P.C. does not require any
consultation with High Court for appointment of a Special Public
Prosecutor. Learned ASG relied upon a decision of 15 th June, 2017
of High Court of Bombay in Suo Moto Writ Petition No.1 of 2016,
Registrar (Judicial) Vs. The State of Maharashtra & Anr. to submit
that it is exclusively in the domain of the Central Government to
appoint a Special Public Prosecutor and Section 24(8) Cr.P.C. cannot
be governed by Section 24(1) Cr.P.C.
54. Learned ASG further submitted that by virtue of decision of
Full Bench of Punjab and Haryana High Court in Lal Singh (Supra),
procedure adopted is not required to be shown to the respondents.
Learned ASG submitted that for the purpose of trial, the appointment
of Special Public Prosecutor was made by the Hon'ble Apex Court
and post trial, field has been left open for the Central Government to
appoint Special Public Prosecutor. Learned ASG further submitted
that notification of appointment of any Special Public Prosecutor
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
does not wash away the earlier notifications, unless specified and the
services of already empanelled Special Public Prosecutors can be
utilized in any case.
55. This court has heard the rival contentions raised by learned
counsel for the parties, gone through the entire material placed on
record and given its thought to the matters.
56. Lengthy arguments have been addressed by learned counsel
for the respondents and much stress has been laid upon Section 378
(2) Cr.P.C. For ready reference, Section 378 Cr.P.C. is reproduced
hereunder:-
"Section 378 in The Code Of Criminal
Procedure, 1973
378. Appeal in case of acquittal.
(1) Save as otherwise provided in sub- section
(2) and subject to the provisions of sub-
sections (3) and (5), the State Government
may, in any case, direct the Public Prosecutor
to present an appeal to the High Court from an
original or appellate order of acquittal passed
by any Court other than a High Court 2 or an
order of acquittal passed by the Court of
Session in revision.]
(2) If such an order of acquittal is passed in
any case in which the offence has been
investigated by the Delhi Special Police
Establishment constituted under the Delhi
Special Police Establishment Act, 1946 (25 of
1946 ), or by any other agency empowered to
make investigation into an offence under any
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Central Act other than this Code, the Central
Government may also direct the Public
Prosecutor to present an appeal, subject to
the provisions of sub- section (3), to the
High Court from the order of acquittal.
(3) No appeal under sub- section (1) or sub-
section (2) shall be entertained except with the
leave of the High Court.
(4) If such an order of acquittal is passed in
any case instituted upon complaint and the
High Court, on an application made to it by
the complainant in this behalf, grants special
leave to appeal from the order of acquittal, the
complainant may present such an appeal to the
High Court.
(5) No application under sub- section (4) for
the grant of special leave to appeal from an
order of acquittal shall be entertained by the
High Court after the expiry of six months,
where the complainant is a public servant, and
sixty days in every other case, computed from
the date of that order of acquittal.
(6) If in any case, the application under sub-
section (4) for the grant of special leave to
appeal from an order of acquittal is refused, no
appeal from that order of acquittal shall lie
under sub- section (1) or under sub- section
(2).
57. Learned counsels for the respondents have laid much stress
upon the words 'Central Government may also direct the Public
Prosecutor to present an appeal, subject to the provisions of sub-
section (3), to the High Court from the order of acquittal'
appearing in the provision. It is argued that in terms of Section 378
(2) Cr.P.C., it was mandatory for the appellant to first obtain a
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
sanction/ approval of the Government before filing the appeal and
the appellant was also duty bound to place the same on record along
with note-sheets, correspondence and file containing
sanction/approval. It was further argued that the petitioner has even
failed to place on record any authorization in favour of Mr.Sanjeev
Bhandari, Special Public Prosecutor to file the present leave to
appeal as well as in favour of Mr. Sanjay Jain, learned ASG to
conduct the same.
58. Learned ASG further argued that even approval of the
Government to file the appeal or the notings in the file or decision
taken by the Government is not required to be shown to the
respondents as these are internal matters of the Government.
However, later on during the course of arguments, to satisfy the
curiosity of respondents regarding appointments, learned ASG
shared the documents regarding authorization/ approval in favour of
Special Public Prosecutors on screen and copies were supplied to the
court and also given to learned counsels for the parties.
59. This Court has gone through the notifications placed on
record. The first notification pertains to appointment of Shri Sanjeev
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Bhandari by Central Government as Special Public Prosecutor for
Delhi High Court for conducting the prosecutions, appeals, revisions
or other matters investigated by CBI. It runs as under:-
[To be published in the Gazette of India in part-II Section-3, Sub-
section (ii)]
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training)
****
NOTIFICATION
New Delhi dated 6-03-2014
S.O. .......................... In exercise of the powers conferred by sub-
section (8) of Section 24 of the Code of Criminal Procedure, 1973 (Act
No. 2 od 1974). The Central Government hereby appoints S/Shri
Sanjeev Bhandari and K. Raghavacharyulu, Advocates as Special
Public Prosecutors of the Delhi Special Police Establishment (Central
Bureau of Investigation) in Delhi High Court at New Delhi for
conducting the prosecution appeals, revisions or other matters arising
out of the cases investigated by the Delhi Special Police Establishment
(CBI).
[F. No. 225/14/2014- AVD-II]
(Rajiv Jain)
Under Secretary to Government of India
To
The Manager,
Government of India Press
Mayapuri, Ring Road,
New Delhi- 110064
No.225/14/2014-AVD-II New Delhi dated 6 March, 2014
Copy to:
1. The Chief Secretary, Government of Delhi, New Delhi.
2. The Registrar, Delhi High Court, New Delhi.
3. The Director, Central Bureau of Investigation, New Delhi.
4. Director of Prosecution, Central Bureau of Investigation, New
Delhi.
5. Department of Legal Affairs, Shastri Bhavan, New Delhi.
6. Guard File.
(Rajiv Jain)
Under Secretary to Government of India
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
60. Perusal of above notification clearly shows appointment of
Mr. Sanjeev Bhandari as Special Public Prosecutor for CBI, for the
purpose of conducting appeals, revisions etc. The learned ASG has
also placed on record the communication of 17 th January, 2018 of
Government of India opining that it was a fit case to file an appeal
and also the decision to engage Mr. Tushar Mehta learned ASG
(now learned AG) to represent the case.
Most Immediate
By Special Messenger
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training
AVD-II(B)
Subject- Filing of Criminal Appeal in Hon'ble Delhi High Court under
Cr.PC against the impugned judgment dated 21.12.2017 of Ld. Special
Judge in CC No. 01 & 1A/2011 (RC.DAI.2009.A.0045) - reg.
CBI may kindly refer to their letter No. 184/RC.DAI.2009.A
0045 dated 05.01.2018 on the above subject.
2. The proposal of CBI to file Criminal Appeal before Hon'ble Delhi
High Court under Cr.PC against the impugned judgment dated
21.12.2017 of Ld. Special Judge in CC No. 01 & 1A/2011
(RC.DAI.2009.A.0045) has been examined in consultation with ALA,
D/o Legal Affairs (DOLA), M/o Law & Justice. ALA, Department of
Legal Affairs, Ministry of Law & Legal has opined inter alia that is a
fit case to prefer an appeal. A copy of the advice conveyed by
Department of Legal Affairs is enclosed herewith.
3. It has also been decided to engage Ld. ASG, Shri Tushar Mehta in
the above case. Necessary further action may be taken in the matter
accordingly.
(Khushboo Goel Chowdhary)
Deputy Secretary to the Governmentof India
Encls.- As above
Shri Vineet Vinayak, Head of Zone, CBI, Anti-Corruption Branch, 1st
Floor, CBI Headquarters, 5-B, CGO Complex, Lodhi Road, New
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Delhi-110003.
DoP&T I.D.No. 137/03/2018- AVD-II(B) 17 January, 2018
61. Learned ASG Shri Sanjay Jain has also placed on record
notification dated 6th May, 2019 vide which he was appointed as
Special Public Prosecutor to conduct prosecution, appeal/ revision or
other proceedings arising out of the cases related to 2G spectrum
cases before 2G Trial Court and Appellate/ Revisional Court and it
runs as under:-
[TO BE PUBLISHED IN THE GAZETTE OF INDIA IN PART- 2
SECTION3(2)]
DY No. 726/DOP Sec.
GOVERNMENT OF INDIA Dated 06.05.2019
MINISTRY OF PERSONNEL,PUBLIC GRIEVANCES AND
PENSIONS
(DEPARTMENT OF PERSONNEL AND TRAINING)
NEW DELHI
DATED: 06.05.2019
NOTIFICATION
The Central Government hereby appoints SHRI. Sanjay Jain,
Additional Solicitor General as Special Public Prosecutor for
conducting Appeals or revisions etc. before the High Court and Apex
Court in 2G spectrum case along with Shri Tushar Mehta, Solicitor
General of India. Further, Shri Sanjay Jain will appear on the said
appeal or revision on 2G Spectrum cases under the direct supervision
of Ld. Solicitor General of India and whenever it is desirable, the Ld.
Solicitor General of India would appear and argue the matter at his
discretion.
[F.No. 225/59/2014-AVD-2 ]
PK JAISWAL
UNDER SECRETARY TO THE GOVERNMENT Of INDIA
The Manager
Government of India Press
Mayapuri, Ring Road
NEW DELHI, 110064
No. 225/59/2014-AVD-2 New Delhi Dated 06/05/2019
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Copy Forwarded for information to
1. The Registrar, Apex Court of India, New Delhi
2. The Registrar, Delhi High Court, New Delhi
3. The Accountant General, Central Revenues, New Delhi
4. The Pay and Accounts Officer, CBI,CGO Complex, New
Delhi
5. Direction of Prosecution, CBI, CGO Complex, New Delhi
6. Department of legal affairs, New Delhi
7. Guard File
PK JAISWAL
UNDER SECRETARY TO THE GOVERNMENT OF INDIA
62. Thereafter, learned ASG also placed on record communication
dated 24th May, 2019 issued by CBI which referred to his
appointment as Special Public Prosecutor in the present matter vide
notification no. 225/59/2014-AVD-II dated 6th May, 2019. The same
runs as under:-
CENTRAL BUREAU OF INVESTIGATION
DIRECTORATE OF PROSECUTION
PLOT NO. 5B, 9th FLOOR, CBI HQ BUILDING
CGO COMPLEX, LODHI ROAD
NEW DELHI
Subject: Proposal for engagement of Shri. Sanjay Jain Additional
Solicitor General as Special Public Prosecutor to conduct prosecution,
appeals/ revisions or other proceedings arising out of the cases related
to 2G Spectrum cases before 2G trial court and Appellate/ Revisional
courts- regarding
Please find enclosed herewith DoPT Approval & Notification
No. 225/59/2014-AVD-II dated 6.05.2019 engagement of Shri. Sanjay
Jain Additional Solicitor General as Special Public Prosecutor to
conduct prosecution, appeals/revisions or other proceedings arising out
of the cases related to 2G Spectrum cases before 2G trial court and
Appellate/ Revisional courts.
This is for information and taking necessary action in the
matter.
(MUNISH KUMAR SHARMA)
Office Supdt. CBI, HO, DOP
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
New Delhi
Encl: As above.
HoB, CBI, ACB, New Delhi.
CBI, I.D. No. 394/11/3/2018- DOP Dated: 24/5/2019
63. Learned counsels for the respondents were, however, not
satisfied with the above notifications and submitted that all the
documents shown by the learned ASG, copies of which were also
supplied to them should have been filed on affidavit. In this regard
reference was made to the decision of M/S Jaimin Jewelery Exports
Pvt. Ltd. Vs. The State of Maharashtra (supra).
64. This Court has thoroughly gone through the above judgment
which clarifies as to how an affidavit has to be drafted for filing the
same in the court. The above pronouncement of Hon'ble Apex
Court related to a case under Section 138 of Negotiable Instruments
Act and it was discussed in the said case as to what should be the
contents of the affidavit and it must state and specify as to what
portion pertains to deponent's knowledge and what is written on his
information or belief.
65. In the opinion of the Court, the above judgment is not relevant
in the present context. The documents in the present petition were
shown to the Court by the learned ASG to dispel the doubt lingering
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
in the mind of respondents that perhaps Mr. Sanjeev Bhandari,
learned Special Public Prosecutor has filed the leave to appeal
without any authority and Mr. Sanjay Jain, learned ASG is
unauthorizedly representing CBI on his own without any approval
from the Government of India. In fact, this Court had never asked
the learned ASG to file the documents and thus, there was no
occasion or reason for learned ASG to file the said documents on
affidavit. Moreover, the notification of Mr. Sanjeev Bhandari,
Special Public Prosecutor and Mr. Sanjay Jain, learned ASG has
already been published in the official Gazette and there was no need
to file the same alongwith affidavit. The learned counsels have
questioned the appearance of learned ASG in the leave to appeal as
if he was appearing without any approval or sanction inviting
unwarranted trouble for himself and endangering his reputation and
standing at bar and exposing himself not only to disciplinary
proceedings by Bar Council but also inviting wrath of the CBI as to
why he is so enthusiastic to appear without any authority. The
contention raised by learned counsels for the respondents is,
therefore, devoid of any substance and is hereby rejected.
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
66. Let this Court now decide another important issue raised by
learned counsels for the respondents which according to them goes
to the root of the matter and it pertains to placing on record all the
note-sheets, drafts, correspondences and file containing sanction or
approval vide which decision was taken to file the appeal.
67. Mr. Vijay Aggarwal, learned counsel and Mr. Siddarth Luthra
and Mr. N. Hariharan, learned senior counsels have vehemently
argued that prosecution cannot withhold any document while
presenting a case. The prosecution be, therefore, directed to place on
record all the relevant documents, note-sheets, drafts and concerned
file granting sanction as well as order of sanction. Learned counsel,
Mr.Vijay Aggarwal in this regard has also placed reliance on the
decision of Hon'ble Apex Court in "Uttar Pradesh v. Singhara
Singh, AIR 1964 SC 358, wherein it was held that where a power is
given to do a certain thing in a certain manner, then the thing must
be done in that way or not all. The learned counsel also relied upon
decision in "Additional District Magistrate Vs. State of Jabalpur
(1976) 2 SCC 521, and further submitted that respondent has an
inherent right to obtain a copy of every such document which has
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
bearing on the case.
68. This Court is in total agreement with the law laid down in the
authorities cited by the learned counsels. However, the documents
sought by them can only be placed on record, provided it is the
mandate of law to do so and such mandate is also reflected by
Section 378 Cr.P.C. Perusal of Section 378 Cr.P.C. however,
reveals that it is totally silent about the fact that all proceedings
which have culminated into a decision to file an appeal by the
Government should be supplied to the learned counsels for the
respondents. Moreover, the procedural part which has resulted in
formation of opinion by the Government are internal proceedings of
Government. The learned Public Prosecutor's duty is only to file an
appeal if so directed by the Government. Whether the decision taken
by the Government to file an appeal was correct or not will be
decided by this Court while deciding the leave petition after hearing
the learned counsels for the parties and going through the evidence
and not on the basis of notes, drafts or opinion appearing in
Government files. In this regard, reference can be made to full Bench
judgment of Punjab and Haryana High Court in "Lal Singh Vs. State
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
of Punjab etc. 1981 Crl LJ 1069" wherein it was held that the
Government has to form an opinion that the judgment of acquittal
deserves to be appealed against or not and Section 378 (1) Cr.P.C.
does not even remotely makes mention of the process for the
formation of such an opinion or decision to do so. It only
contemplates presentation of appeal on the direction of the
Government through the medium of Public Prosecutor. It was further
held that ultimate decision i.e. the whole process starting from the
consideration of the judgment through the channels of various
officials is not contemplated by any statutory provision. In essence,
it was held that presentation of appeal to the High Court and not the
preceding steps i.e. decision of the State Government etc. is
contemplated under Section 378 of the Cr.P.C. The relevant paras of
the judgment run as follows:-
"22. Now it is axiomatic that before the
power or the right to present an appeal
against an order of acquittal under Section
378(1) is exercised, the State Government
must arrive at a clear opinion that the
judgment of acquittal deserves to be appealed
against. The formation of such an opinion
must inevitably precede the presentation of an
appeal. What deserves highlighting here is
the basic fact that Section 378(1) does not
even remotely make mention of the process
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
for the formation of such an opinion nor of
the decision to do so. It only envisages the
presentation of appeal on the direction of the
State Government through the medium of the
Public Prosecutor. This being patently so the
learned Additional Advocate General seems
to be on a firm footing in his submission that
both the process of the formation of an
opinion for preferring an appeal against the
judgment of acquittal as also a positive
decision to this effect is inherently
administrative in nature. The subjective
satisfaction of the State Government whether
a particular judgment of acquittal calls for
being challenged by way of appeal and the
process by which this satisfaction or decision
is to be arrived at is neither governed nor
prescribed by any statutory provision, far less
any specific section of the Code itself.
Therefore it would appear that the mode of
the formation of the opinion and the ultimate
decision in this regard by the State
Government is within the ambit of and
entirely governed by the general executive
power of the State Government under Article
162 of the Constitution of India and is thus
purely administrative.
23. Viewed from another angle it would
seem that there is no statutory provision in the
Code (nor has any such provision in any other
enactment been brought to our notice) which
mandates or obliges the State Government to
examine every or any judgment of acquittal. It
would follow, therefore, that the State
Government may in its discretion consider or
even refuse to consider or examine a judgment
for the purpose of arriving at an opinion
whether it should be appealed against or not.
The ordinary practice and process for
preferring appeals against acquittal, namely,
that the Public Prosecutor conducting the case
would opine and the District Magistrate may
recommend the filing of the appeal thereunder
to the Government and the State would then
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
proceed to form its opinion to prefer an appeal
is plainly not prescribed in terms by any
statutory provision as such. It is a practice or
procedure under the inherent executive
functions of the State under Article 162 of the
Constitution of India. Similarly the ultimate
decision or the subjective satisfaction of the
Government as also the whole process
beginning from the consideration of the
judgment through the channel of
recommendatory officials is not one which
has been laid out either in the Code itself or
by any other statutory rule on the point but is
wholly circumscribed by the purely executive
power of the State. Section 378(1) does not
either in express or implied terms adverts to
the process of the formation of the State's
opinion or its culmination one way or the
other. Reference in this connection may
instructively be made to the observations of
their Lordships of the Apex Court in Barium
Chemicals Ltd. v. Co. Law Board . What,
therefore, deserves highlighting is the fact
that any words about the formation of an
opinion are conspicuous by their very
absence in Section 378(1) of the Code. Again
it does not even make a mention of any
decision of the State Government consequent
thereto. Therefore, the very absence of the
word 'opinion' or 'decision' in the statute has
to be given its necessary import.
24. To conclude on this aspect we would
hold that the process of the formation of the
opinion as also the decision by the State
Government to prefers an appeal against an
order of acquittal is purely administrative and
derives its source from the general executive
power of the State under Article 162 of the
Constitution of India. Consequently the date
and time of such a purely administrative
decision is of little relevance in determining
the crucial issue as to when the power
under Section 378 of the Code would stand
exhausted.
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
25. Coming now to the mode of presenting
of an appeal against the order of acquittal it
calls for notice that the statute visualises a
direction to the Public Prosecutor to present
an appeal to the High Court, Plainly the
presentation of the appeal is the dominant
objective and the direction to the Public
Prosecutor is only a mode of achieving the
same. The direction to the Public Prosecutor
cannot be divorced from the presentation of an
appeal and it would be hyper technical to
dissect it from the same and treat it as an
independent entity. To put it in other words
the essence of Section 378(1) is the
presentation of the appeal to the High Court
and not the preceding steps leading to the
same, namely, the process of the formation of
the opinion, the subjective satisfaction or the
decision of the State Government or the
consequential direction to present such an
appeal. Therefore it follows that the date and
the time of the direction alone to the Public
Prosecutor for presenting the appeal is a
matter of little or no significance for
determining as to when the power
under Section 378 would exhaust itself."
(emphasis supplied)
69. Perusal of the above judgment clearly reveals that Section 378
(1) and (2) of Cr.P.C. does not make reference to or contemplate as
to how the Court has arrived at a decision to file an appeal. The
process of formation of opinion for preparing an appeal against the
judgment of acquittal i.e. analysis of the judgment, notes, drafts and
files pertaining to sanction or even grant of sanction i.e. the process
of arriving at a decision to file or not to file an appeal and subjective
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
satisfaction of the Government is not governed by any statutory
provision. It is rightly observed in the above judgment that Section
378 Cr.P.C. nowhere mentions the word 'opinion' or 'decision'
which may give a right to the respondents to challenge the same
being perverse or mala fide. Thus, what the provision contemplates
is the presentation of an appeal and not the preceding steps leading
to the same. In view of the above law, the contentions of learned
counsels for respondents seeking to place on record communication,
drafts, notes in the file relating to grant of sanction or approval, is
rejected being beyond the scope of Section 378 (2) Cr.P.C.
70. Next contention of learned counsels for the respondents was
that Mr. Sanjeev Bhandari, learned Special Public Prosecutor and
Mr. Sanjay Jain, learned ASG, have not been properly appointed for
the reason that 2G spectrum cases were monitored by the Hon'ble
Apex Court and Special Public Prosecutors were appointed to
conduct the trial. The appointment of other counsels/ Public
Prosecutors i.e. Mr. Sanjeev Bhandari or Mr. Sanjay Jain, is against
the spirit and order of the Hon'ble Apex Court and, therefore, their
appointments come under a cloud and they could not have filed or
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
conducted the leave to appeal.
71. This Court has carefully considered the above contention of
learned counsels for the respondents. Learned ASG, in this regard,
has drawn the attention of this court to the order of the Hon'ble Apex
Court in Civil Appeal No. 10660/2010 (Supra) dated 12th March,
2018 and submitted that vide said order, it was left open for the
Government to appoint a Public Prosecutor/ Special Public
Prosecutor after conclusion of 2G trial. This Court has carefully gone
through the order of the Hon'ble Apex Court in which the
appointment of Mr. Tushar Mehta, learned Standing Counsel, to
appear in appeals arriving out of 2G cases in place of Mr. Anand
Grover, learned ASG, was challenged. The Hon'ble Apex Court had
dismissed the said appeal and observed that Mr. Anand Grover was
appointed as Special Prosecutor for the purpose of trial in 2G cases
and the court appreciates the services rendered by him. It was next
observed by the Hon'ble Apex Court that appointment of Mr. Anand
Grover was confined to the trial court only and it was open to the
Government to issue fresh notification for other courts, appeals,
revisional proceedings etc. The Hon'ble Apex Court had also
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
accepted the application of Mr. Anand Grover seeking his discharge
from the case. The Court had further specifically observed that no
contempt was made out because of appointment of Mr. Tushar
Mehta, learned ASG in place of Mr. Anand Grover as the cases
before trial court were over and Mr. Anand Grover was appointed
for conducting trial before learned trial court only. The Hon'ble
Apex Court's order runs as under:-
"...Considering the importance of this matter,
earlier, this Court had appointed Shri U.U.
Lalit as Special Prosecutor. Since Shri Lalit
has been elevated as Judge of this Court, this
Court vide order dated 02.09.2014 nominated
Shri Anand Grover as counsel for the C.B.I.
and the Enforcement Directorate in the
proceedings before the "Trial Court".
Thereafter, the Government of India had
issued notification on 26.11.2014 and
27.11.2014 appointing Shri Anand Grover as
Special Public Prosecutor for conducting
prosecution, appeals/revisions or other
proceedings rising out of the cases related to
2G Spectrum investigated by the Delhi Special
Police Establishment (CBI) in the Court of
Special Judge (2G Spectrum cases), Central
Bureau of Investigation, New Delhi and
appellate/revisional courts and vide
notification dated 27.11.2014 Shri Anand
Grover was appointed as Special Public
Prosecutor for conducting prosecution,
appeals/revisions or other proceedings out of
the cases under the Prevention of Money
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Laundering Act, 2002 etc. arising out of 2G
Spectrum cases on behalf of the Directorate of
Enforcement before the Special Court of
PMLA and appellate/revisional and higher
Courts.
Thereafter, Shri Anand Grover had conducted
the matters. However, it is stated by Shri
Grover that the cases which were pending
before the trial court at the time when he was
appointed are over.
Now, the Government has issued a notification
appointing Shri Tushar Mehta, Sr.Adv, in
exercise of the power conferred by sub-section
(8) of section 24 of the Code of Criminal
Procedure, 1973 (2 of 1974). The Central
Government has appointed him as per
modified notification for the purpose of
"Appeals/revisions or other proceedings
arising out of the cases related to 2G
Spectrum investigated by the Delhi Special
Police Establishment (CBI) is the Court of
Special Judge (2G spectrum cases, Central
Bureau of Investigations, New Delhi
appellate/revisional Courts", arising out of
the cases related to 2G Spectrum investigated
by the Delhi Special Police Establishment
(CBI) in the Court of Special Judge "2G
spectrum cases, Central Bureau of
Investigation, New Delhi".
Contempt application has been filed on behalf
of the petitioner CPIL i.e. in Contempt
Petition (C) No.793 of 2018 questioning
appointment of Mr. Tushar Mehta. An
application No.28660 of 2018 has been filed
by Shri Anand Grover to discharge him from
the cases.
After hearing the learned counsel for the
parties, are of the opinion that Shri Grover
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
was appointed as Special Prosecutor by this
Court. We appreciate the services rendered by
him. At the same time, since his appointment
was confined to the trial court and
Government had issued a notification for
other courts, appeals, revisional proceedings
etc. it was open to the Government to issue
fresh notification and in the facts, we allow
the application filed by Shri Anand Grover for
his discharge
from the case.
In the aforesaid circumstances, we find that
no contempt is made out since the cases are
over before the trial court for which purpose,
this Court had appointed Shri Anand Grover
as special Public Prosecutor. It cannot be said
to be a case of contempt committed by the
Government while appointing Shri Tushar
Mehta as Public Prosecutor vide aforesaid
modified notifications. No case is made out to
proceed with the contempt petition and the
same is hereby dismissed.
(Emphasis supplied)
72. In view of the above order of the Hon'ble Apex Court, it is
clear that Government was free to appoint anyone as Special Public
Prosecutor or authorize any Prosecutor or counsel to file the appeal
and, therefore, to submit that the filing of criminal leave to appeal by
Mr. Sanjeev Bhandari and appointment of Shri Sanjay Jain, learned
ASG is against the mandate of Hon'ble Apex Court, will not be
correct.
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
73. Let this Court now proceed to the next argument of learned
counsels for the respondents that appointment of Mr. Sanjay Jain,
learned ASG to conduct the present appeal is bad in law and non est
as he was not properly appointed under Section 24 (8) of Cr.P.C. As
mentioned in earlier part of the judgment, it was argued that
appointment of Mr. Sanjay Jain does not carry the approval or
consent of the Hon'ble the Chief Justice as per Section 24 (1) of
Criminal Procedure Code. Section 24 of the Cr.P.C. deals with
appointment of Public Prosecutors. It runs as under:-
24. Public Prosecutors.
(1) For every High Court, the Central
Government or the State Government shall,
after consultation with the High Court,
appoint a Public Prosecutor and may also
appoint one or more Additional Public
Prosecutors, for conducting in such Court,
any prosecution, appeal or other proceeding
on behalf of the Central Government or State
Government, as the case may be.
(2) The Central Government may appoint one
or more Public Prosecutors for the purpose of
conducting any case or class of cases in any
district or local area.
(3) For every district, the State Government
shall appoint a Public Prosecutor and may
also appoint one or more Additional Public
Prosecutors for the district: Provided that the
Public Prosecutor or Additional Public
Prosecutor appointed for one district may be
appointed also to be a Public Prosecutor or
an Additional Public Prosecutor, as the case
may be, for another district.
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
(4) The District Magistrate shall, in
consultation with the Sessions Judge, prepare
a panel of names of persons, who are, in his
opinion fit to be appointed as Public
Prosecutors or Additional Public Prosecutors
for the district.
(5) No person shall be appointed by the State
Government as the Public Prosecutor or
Additional Public Prosecutor for the district
unless his name appears in the panel of names
prepared by the District Magistrate under
sub- section (4).
(6) Notwithstanding anything contained in
sub- section (5), where in a State there exists a
regular Cadre of Prosecuting Officers, the
State Government shall appoint a Public
Prosecutor or an Additional Public
Prosecutor only from among the persons
constituting such Cadre: Provided that where,
in the opinion of the State Government, no
suitable person is available in such Cadre for
such appointment that Government may
appoint a person as Public Prosecutor or
Additional Public Prosecutor, as the case may
be, from the panel of names prepared by the
District Magistrate under sub- section (4).
(7) A person shall be eligible to be appointed
as a Public Prosecutor or an Additional
Public Prosecutor under sub- section (1) or
sub- section (2) or sub- section (3) or sub-
section (6), only if he has been in practice as
an advocate for not less than seven years.
(8) The Central Government or the State
Government may appoint, for the purposes of
any case or class of cases, a person who has
been in practice as an advocate for not less
than ten years as a Special Public Prosecutor.
74. Section 24 (1) Cr.P.C. no doubt contemplates that the Central
Government or State Government after consultation with the High
Court will appoint a Public Prosecutor or one or more Additional
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Public Prosecutor for conducting any prosecution, appeal or other
proceedings on behalf of the Government. Thus, consultation with
High Court is required for appointment of a Prosecutor or Additional
Public Prosecutors under Section 24(1) of Cr.P.C. However, no such
condition is attached to Section 24 (8) Cr.P.C. to appoint special
Public Prosecutor. There is nothing on record which suggests that
Section 24 (8) Cr.P.C. is governed by Section 24 (1) Cr.P.C. To
bring the contents of Section 24 (1) Cr.P.C. into Section 24 (8)
Cr.P.C. will be to frustrate the intent of Legislature. A plain reading
of Section 24 (8) Cr.P.C suggests that Government is free to appoint
a Special Public Prosecutor for the purpose of any case or class of
cases. The only condition attached to this is that the learned
Advocate so appointed must be in practice as an Advocate for not
less than ten years and this is not in dispute that both Mr. Sanjeev
Bhandari, learned Special Public Prosecutor and Mr. Sanjay Jain,
learned ASG fulfill the above criteria.
75. Learned counsels for the respondents have, however, referred
to the judgment of Hon'ble Apex Court in K. Anbazhagan Vs. State
of Karnataka & Ors. (2015) 6 SCC 158 in support of their
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
contention. Perusal of the said judgment reveals that it does not
further the case of the respondents. The brief facts of the said case
are that case pertaining to prosecution of Ms. J.Jayalalithaa, who was
the Chief Minister of Tamil Nadu under Section 120B of the Indian
Penal code read with Section 13(1) & 13(2) of the Prevention of
Corruption Act, 1988 was transferred from the State of Tamil Nadu
to State of Karnataka on the direction of the Hon'ble Apex Court.
The observation regarding appointment of Special Public Prosecutor
in consultation with Chief Justice, Karnataka High Court was made
by the Hon'ble Apex Court in the peculiar facts of the case as it
related to the transfer of a case from State of Tamil Nadu to State of
Karnataka and this is not the case here nor any such direction has
been passed by the Hon'ble Apex Court.
76. On the other hand, in the case in hand, vide notification dated
6th March, 2014, issued by Government of India, Mr. Sanjeev
Bhandari has been appointed as Special Public Prosecutor for
Central Bureau of Investigation by virtue of Section 24(8) of Cr.P.C.
in Delhi High Court for conducting the prosecution, appeals,
revisions or other matters arising out of the case investigated by
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
Delhi Special Police Establishment. This notification has not been
specifically superceded by any subsequent notification. The
appointment of Mr. Tushar Mehta, learned ASG as Special Public
Prosecutor to conduct 2G trials did not mean that appeal should have
been filed by him only. In fact, being a Senior Advocate, he could
not have drafted or filed the appeal and that is why, Mr. Sanjeev
Bhandari, Special Public Prosecutor has done it and he has been so
authorized to do by virtue of notification which is quoted again for
ready reference:-
[To be published in the Gazette of India in part-II
Section-3, Sub-section (ii)]
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training)
****
NOTIFICATION
New Delhi dated 6-03-2014
S.O. .......................... In exercise of the powers conferred by
sub-section (8) of Section 24 of the Code of Criminal Procedure,
1973 (Act No. 2 od 1974). The Central Government hereby
appoints S/Shri Sanjeev Bhandari and K. Raghavacharyulu,
Advocates as Special Public Prosecutors of the Delhi Special
Police Establishment (Central Bureau of Investigation) in Delhi
High Court at New Delhi for conducting the prosecution appeals,
revisions or other matters arising out of the cases investigated by
the Delhi Special Police Establishment (CBI).
[F. No. 225/14/2014- AVD-II]
(Rajiv Jain)
Under Secretary to Government of India
To
The Manager,
Government of India Press
Mayapuri, Ring Road,
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
New Delhi- 110064
No.225/14/2014-AVD-II New Delhi dated 6 March,
Copy to:
1. The Chief Secretary, Government of Delhi, New Delhi.
2. The Registrar, Delhi High Court, New Delhi.
3. The Director, Central Bureau of Investigation, New
Delhi.
4. Director of Prosecution, Central Bureau of Investigation,
New Delhi.
5. Department of Legal Affairs, Shastri Bhavan, New Delhi.
6. Guard File.
(Rajiv Jain)
Under Secretary to Government of India
77. Thus, the appeal, of course, was to be conducted by learned
ASG as Special Public Prosecutor but there was no bar for Mr.
Sanjeev Bhandari to file the same. Mr. N.Hariharan, learned senior
counsel and other learned counsels have, however, submitted that the
impugned judgment is dated 21st December, 2017 whereas Mr.
Sanjeev Bhandari was appointed as Special Public Prosecutor on 6 th
March, 2014 i.e. much before filing of the appeal. He was,
therefore, not authorized to file the same. This Court has given its
thought to the matter. As discussed earlier, since Mr. Tushar Mehta,
learned ASG could not have filed the leave to appeal being a senior
counsel, Mr. Sanjeev Bhandari who has been appointed and
authorized vide notification dated 6th March, 2014, has done so and
as stated earlier his appointment has not been specifically superceded
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
by another notification. In these circumstances, there seems to be no
illegality in filing the appeal by him.
78. Mr. Vijay Aggarwal, learned counsel has next argued that
every sanction order must reveal that there was proper application of
mind by Sanctioning Authority. In this regard, he has placed reliance
upon Hon'ble Apex Court's decision in State of Karnataka Vs.
Ameerjaan (2007) 11 SCC 273; Mohd. Iqubai Ahmed Vs. State of
Andhra Pradesh (1979) 4 SCC 172 and State represented by
Inspector of Police, Chennai Vs. N.S.Gnaneswaran (2013) 3 SCC
594. He has also relied upon decision of this Court in Ashok Kumar
Aggarwal Vs. Central Bureau of Investigation 2007(10) AD
(Delhi) 73.
79. This Court has perused the above authorities and is of the
opinion that the same do not help the respondents. As held earlier,
there is no need for any sanction as Section 378 (2) Cr.P.C. nowhere
contemplates obtaining of any previous sanction as contemplated in
Section 196 or 197 of Cr.P.C. Therefore, there was no need or
requirement to produce any sanction, note-sheet, file or approval to
file the present leave to appeal.
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
80. A number of judgments were filed before this Court by
learned counsels for the respondents. This Court has carefully gone
through all the judgments and is of the opinion that there is no
quarrel with the proposition of law laid down therein. However,
these cases are distinguishable on the basis of facts and
circumstances stated therein. It is well settled that judicial precedent
cannot be followed as a Statute and has to be applied with reference
to the facts of the case involved in it. The ratio of any decision has
to be understood in the background of the facts of that case. What is
of the essence in a decision is its ratio and not every observation
found therein nor what logically follows from the various
observations made in it. It has to be remembered that a decision is
only an authority for what it actually decides. It is well settled that a
little difference in facts or additional facts may make a lot of
difference in the precedential value of a decision. The ratio of one
case cannot be mechanically applied to another case without regard
to the factual situation and circumstances of the two cases. Thus, the
judgments which are based upon their own peculiar facts and
circumstances are distinguishable and do not help the learned
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
counsels for the respondents.
81. In view of the above discussion, this Court is of the opinion
that petitioner/CBI is not bound to disclose or furnish on record the
copy of any approval/ sanction or notes for filing appeal under
Section 378(2) Cr.P.C. for the reason that the essence of Section
378(2) Cr.P.C. is the presentation of the appeal to the High Court
and not the preceding steps leading to the same, namely, the process
of the formation of the opinion, the subjective satisfaction or the
decision of the Government to present an appeal. Thus, it is difficult
to interpret Section 378(2) of Cr.P.C. in the manner in which the
learned counsels for the respondents intend this Court to interpret.
They intend that this Court should read the words 'previous
sanction' in Section 378(2) of Cr.P.C., whereas the Legislature has
not provided the same. The words 'formation of opinion' or 'how it
is arrived at' is conspicuously absent in Section 378 (2) of Cr.PC. In
these circumstances, this Court is of the opinion that respondents are
not entitled to the relief claimed for and petitioner cannot be directed
to place on record copies of drafts, letters, reports or approval to file
the present leave to appeal.
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
82. As discussed earlier, the appointment of Mr. Sanjeev
Bhandari, learned Special Public Prosecutor to file the leave to
appeal and Mr. Sanjay Jain, learned ASG to conduct the same, is in
consonance with law. The order of the Hon'ble Apex Court dated
12th March, 2018 in Civil Appeal No. 10660 of 2010 (Supra) has
dispelled all the doubts and has categorically stated that Special
Public Prosecutor in 2G case was appointed for the purpose of
conducting trials only before learned Special Judge and Central
Government was free to appoint anyone post trial.
83. In view of the above discussion, it is hereby held that
Government is not under any obligation by virtue of any provision of
law to place on record the documents i.e. note sheets, letters,
correspondence or approval to file an appeal and it is also not
mandated by Section 378 (2) Cr.P.C.
84. With aforesaid observations, these applications are dismissed.
85. The order be uploaded on the website of this Court forthwith.
BRIJESH SETHI, J
NOVEMBER 23, 2020
r/ak/ap
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA in CRL.L.P. 185/2018
Signing Date:23.11.2020
23:59:54
